Bazemore v. Friday Brief for Plaintiffs-Appellants P.E. Bazemore et al.
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February 15, 1983

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Brief Collection, LDF Court Filings. Bazemore v. Friday Brief for Plaintiffs-Appellants P.E. Bazemore et al., 1983. 07fd2a06-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/994c3db1-e5d0-4333-ad14-1b5bb03a650f/bazemore-v-friday-brief-for-plaintiffs-appellants-pe-bazemore-et-al. Accessed April 27, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Nos. 82-1873(L), 82-1881, 82-1927, 82-2065 P.E. BAZEMORE, et al. , and UNITED STATES OF 'AMERICA, Plaintiffs-AppeIIants, v. WILLIAM C. FRIDAY, et al., Defendants-Appellees On Appeal From The United States District Court For The Eastern District Of North Carolina BRIEF FOR PLAINTIFFS-APPELLANTS P.E. BAZEMORE, ET AL. EDWARD D. REIBMAN 108 North Eighth Street Allentown, Pa. 18101 CRESSIE H. THIGPEN, JR. Thigpen, Blue & Stephens Suite 214 Hallmark Building Raleigh, North Carolina 27601 JACK GREENBERG 0. PETER SHERWOOD ERIC SCHNAPPER Suite 2030 10 Columbus Circle New York, New York 10019 Attorneys for Plaintiffs- Appellants TABLE OF CONTENTS Cases: Page Statement of the Issues ............ 1 Statement of the Case .............................. 2 Statement of Facts ............... .................. 3 ARGUMENT ......................................... 5 I. THE DEFENDANTS ARE UNLAWFULLY PROVIDING SERVICES AND MATERIALS TO SEGREGATED 4-H AND EXTENSION HOMEMAKER CLUBS .......... 5 (1) NCAES Policies ........... 6 (2) The Applicable Legal Standards ....... 17 II. THE DEFENDANTS DISCRIMINATED AGAINST BLACK EMPLOYEES IN SALARIES ...... ........... 24 (1) Pre-1965 Hires ............... 24 (2) Post-1965 Hires ........... 33 (3) The Individual Claims .................. 41 III. THE DEFENDANTS DISCRIMINATED AGAINST BLACK EMPLOYEES IN SELECTING COUNTY EXTENSION CHAIRMEN ........................ 45 IV. THE DISTRICT COURT ERRED IN REFUSING TO CERTIFY THIS CASE AS A CLASS ACTION ___ ..... 54 (1) The Class of Black Actual and Poten tial Club Members ..... 55 (2) The Class of Black NCAES Employees ...... 57 (3) The Defendant Class ................ 62 CONCLUSION .............................. 64 - l - TABLE OF AUTHORITIES Cases: Pa9e Bell v. Georgia Dental Ass'n, 231 F. Supp. 299 (N.D. Ga. 1964) 62 Blacksher Res. Org. v. Housing Authority of the City of Austin, 347 F. Supp. 1138 (W.D. Tex. 1972) ................................... 18 Brown v. Board of Education, 347 U.S. 483 (1954) .... 6 Chisholm v. United States Postal Service, 665 F . 2d 482, 496 (4th Cir. 1981) ............. 38, 42, 49, 50 EEOC v. American National Bank, 652 F.2d 1176 (4th Cir. 1981) ............................... 52 EEOC v. Federal Reserve Bank, ____ F.2d ____ (1983) .............................................. 36 Evans v. Harnett County Bd. of Ed., 684 F .2d 304 ( 4th Cir. 1982) ................................ 30 General Telephone Co. v. EEOC, 446 U.S. 318 ( 1980) .............................................. 61 Green v. School Board of New Kent County, 391 U.S. 430 ( 1968) 20 Griffin v. School Board of Prince Edward County, 377 U.S. 218 ( 1964) 23 Hill v. Western Electric Company, Inc., 596 F .2d 99 (4th Cir. 1979) --- ................. 59 Meredith v. Fair, 298 F.2d 696 (5th Cir. 1962) ....... 62 Plessy v. Ferguson, 163 U.S. 537 ( 1895) .......... . 32 Simkins v. Moses Cone Memorial Hospital, 323 F . 2d 959 ( 4th Cir. 1963) ...................... 17 Sledge v. J. P. Stevens Co., Inc., 585 F.2d 625 (4th Cir. 1978) ................................ 41, 51 Stastny v. Southern Bell Telephone and Telegraph Co., 628 F . 2d 267 (4th Cir. 1980) ................. 59 - ii - Statutes: Page Title VI of the 1964 Civil Rights Act ...... 6, 7, 10, 18, 25, 31, 32, 55 Title VII of the 1964 Civil Rights Act ............ 60 Smith-Lever Act, 7 U.S.C. § 341, et seq............ 3 Other Authorities: Fifth Amendment .................................... 55 Fourteenth Amendment ............................... 32, 55 7 C.F.R. §§ 8.1-8.10 ............................... 5 7 C.F.R. § 15.3(b)(6)(i) ........................... 18 7 C.F.R. §§ 18.1-18.9 .................... 29 Restatement of Agency (Second) ...................... 62 Rule 23 ............................................. 63 - iii - IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Nos. 8 2-1873(L ), 82-1881 , 82-1927, 82-2065 P.E. BAZEMORE, et_ a H , and UNITED STATES OF AMERICA, Plaintiff s-Appe H a n t s , v. WILLIAM C. FRIDAY, et al., Defendants-Appellees On Appeal From The United States District Court For The Eastern District Of North Carolina STATEMENT OF THE ISSUES 1. May the North Carolina Agricultural Extension Service and other defendants provide millions of dollars of services and materials to all-white 4-H and Extension Homemaker clubs which (a) were established by the Extension Service on a segregated basis, or (b) are permitted to recruit their members on a racial basis? 2. Were black employees of the Extension Service subject to discrimination in the determination of their salaries? 3. Were black employees of the Extension Service subject to discrimination in promotions to the position of county extension chairman? 4. Did the district court err in refusing to certify this case as a class action? STATEMENT OF THE CASE This action was commenced on November 18, 1971, on behalf of black employees of the North Carolina Agricultural Extension Service ("NCAES") alleging racial discrimination in employment and by certain clubs organized and supported by NCAES. (App. 34-35). On April 7, 1972, the United States intervened in the action alleging discrimination similar to that claimed by the private plaintiffs. On October 9, 1979, the district court rejected a motion by the private plaintiffs and the United States to certify the case as a class action. (App. 21-24). A subsequent motion to recon sider the denial of class certification was denied on July 29, 1981. (App. 31-32). On August 20, 1982, following a lengthy trial, the district court issued a decision rejecting on the merits what it characterized as the "class-wide claims." (App. 111-112) and September 17, 1982, (App. 113-16) the district court issued additional opinions rejecting the claims of the individual plaintiffs. The original complaint alleged a wide variety of forms of discrimination by NCAES against blacks and Indians. During the eleven years between the filing of the complaint 2 and the district court opinion there were a number of changes in NCAES practices, some of which are described below. In light of those developments and the evidence at trial, plain tiffs press on appeal only three of these substantive claims — salary discrimination against blacks, discrimination against blacks in the selection of county extension chairmen, and the providing of services and material to segregated 4-H and Extension Homemaker clubs. STATEMENT OF THE FACTS NCAES is a division of the School of Agriculture and Life Sciences of the North Carolina State University in Raleigh. The purpose of the NCAES is to provide "useful and practical information on subjects relating to agriculture and home economics." Funds for the program are provided by the federal government under the Smith-Lever Act, 7 U.S.C. §341, et seg., by the State of North Carolina, and by each of the 100 counties in the state. NCAES provides services in four major areas: home economics, agriculture, 4-H and youth, and community resources development. The NCAES activities in each county are supervised by salaried county extension chairman. The other professional employeees at the county level hold one of six positions: full, associate and assistant home economics agents and full, associate and assistant agricultural agents. (App. 37-40). Prior to August 1, 1965, NCAES was divided into two com pletely segregated branches, a white branch (which had no formal racial designation) and a "Negro" branch. The black branch was 3 composed entirely of black personnel and served only black farmers, homemakers, and youth. The white branch employed no blacks but on occasion served blacks. In the fifty-one counties in which the black branch had programs the black and white programs were operated separately out of different offices. Although there was no interchange of personnel between the two organizations, black and white agents had identical responsi bilities, and their job descriptions were identical except for the appellation "Negro work" for blacks. The salaries of black agents in the segregated system were lower than the salaries of their white counterparts, and black agents had inferior office space and facilities in the segregated system. (App. 42-44). In August, 1965, the white and Negro branches of NCAES were formally merged. At the state and district levels the black administrative structure was abolished, and its black personnel were placed in positions with reduced supervisory responsibility under their white counterparts.—^ At the county level black and white employees were placed in the same offices but nothing was done to alter the salary dif ferentials established prior to that merger. See pp. 31-33, infra. In every county the chief white agent was given over all responsibility for the county, while the chief black agent was stripped of his administrative responsibilities. Prior to 1965 NCAES had established separate all-white and all-black ]_/ Tr. 307-09, 1302, 2917, 5781 ; see Government Proposed Findings 66-72. The district court adopted findings 66-71. (App. 44). 4 4-H and Extension Homemaker clubs; after 1965 these clubs continued to operate on a segregated basis. See pp. 9-11, infra. Many of their problems that gave rise to this litiga tion have their roots in the discriminatory practices which existed prior to 1965 and remained unaltered after that time. The particular facts relevant to the specific issues raised by this appeal are set out in detail below. ARGUMENT I. THE DEFENDANTS ARE UNLAWFULLY PROVIDING SERVICES AND MATERIALS TO SEGREGATED 4-H AND EXTENSION HOMEMAKER CLUBS The 4-H program is one of the major NCAES activities, operating in each of the 100 counties of the state. NCAES 4-H agents are to "recruit, train and utilize volunteers to establish 4-H clubs and ...[to] utilize materials and plan educational experiences ..." (DX 197) Federal law restricts the use of the name "4-H Club" to clubs affiliated with state 2/extension services and certain other organizations.— The equivalent of 122 full time NCAES employees work on 4-H club activities. (Tr. 4956). The annual state 4-H budget, which includes NCAES salaries and materials provided to the clubs, exceeds $5 million. (Tr. 5069) Organizing Homemaker clubs is one of the primary respon sibilities of the home economics agents. These agents meet 2/ 7 C.F.R. §§ 8.1-8.10. 5 regularly with the clubs, give lessons to them, and train certain club members to provide instruction for other members. [App. 38]. The lessons include practical advice on such subjects as food, nutrition, health, clothing, and family resource management. (App. 38.) Approximately 4-5% of the NCAES annual budget is used to provide this assistance to homemaker Clubs. (Tr. 4189) (1) NCAES Policies Prior to 1965 both types of clubs, like the rest of the Extension Service, were deliberately organized on a strictly racially segregated basis. Every club was either "white" or "Negro", and recruited individual members on a racial basis. White clubs were served solely by white agents, while only black agents worked with black clubs. The segregation of the 4-H clubs was ensured by organizing the clubs at the public schools, which were themselves segregated by law.—/ Separate county and state level 4-H and Homemaker activities were organized for blacks and whites. Although Brown v. Board of Education, 347 U.S. 483 (1954), made clear that such segregation was forbidden by the Fourteenth Amendment, North Carolina took no steps to end it until the adoption of Title VI of the 1964 Civil Rights Act, which mandated termination of federal funds for dis- 3 / Tr. 4203-4. The clubs were moved from the public schools to private homes in the mid-1960's when school integration began. Tr. 4201-2. 6 criminatory programs. On August 31, 1965, NCAES provided the Department of Agriculture with a compliance plan which asserted that both its 4-H and home economics activities had 4 /been integrated on a state and county level;— that plan, however, was silent regarding the fate of the segregated 4-H clubs. It acknowledged that the "[h]ome demonstration clubs were established on a segregated basis," but did not describe what new procedures they were to follow.—^ On December 31, 1965, NCAES advised federal authorities that it had re quested all 4-H and Home Demonstration clubs to provide it with a statement of assurance that they will not discrim inate on the basis of race, color, or national origin .... 6/ That was all that the NCAES proposed to do about the several thousand clubs which it had deliberately and systematically established on a racial basis. Between 1965 and 1980 the size of the 4-H club system varied considerably. Although a significant group of "inte grated"—^ clubs emerged, the total number of all-white clubs has remained largely constant. 4_/ GX 115, Revised Compliance Plans for Meeting the Re quirements of the Civil Rights Act of 1964, pp. 1-2. 5 / Id. p . 4. 6/ GX 115, Report on Status of Compliance of State Extension Service Under Title VI of the Civil Rights Act of 1964, As Of December 31, 1965, p. 3. 1_/ In its reports of club membership NCAES treats as "inte grated" a white club with even a single black member. 7 All-White 4-H Clubs 8/ Year All-White Clubs 1965 1,474 1968 1,202 1970 1,049 1971 1,058 1972 1,275 1973 1,373 1974 1,353 1975 1,270 1976 1,304 1977 1,246 1978 1,270 1979 1,311 1980 1,348 Beginning in 1972 the NCAES altered its reporting procedures to distinguish single race 4-H Clubs that were located in ethnically mixed communities from those that were not. Notwithstanding the potential for self-serving distortion in 9 /this data,—' it reveals a similar lack of progress: Single-Race 4-H Clubs1Q, in "Mixed Communities"— ' Year Clubs 1972 892 1973 964 1974 1,014 1975 906 1976 953 1977 898 1978 920 1979 852 1980 880 8/ App. 1806 (1965); GX 115 (letter of G. Hyatt to E. Kirby, May 26, 1972) (1968, 1971); App. 2237 (1970-74); GX 11 (1975-80). 9/ This system placed considerable discretion in the hands of county officials to avoid any appearance of discrimination merely by classifying all single-race clubs as located in single-race "communities". J_0/ App. 1 807, 1 813. - 8 - / In 1980, 5399 blacks were in all-black 4-H clubs in racially mixed communities. (GX 11). Even less progress has occurred in desegregating the Extension Homemaker clubs: Single-Race Homemaker Clubs— / All White All Non-White Integrated Year Clubs Clubs Clubs 1966 1,022 658 0 1968 1,562 569 10 1971 1,449 491 261972 1,378 466 22 Even the handful of "integrated" clubs listed appears to be inflated.— ^ NCAES, which insists that after 1972 it 13/kept no data on the racial composition of these clubs, — ' advanced no claim in the district court that the number of integrated clubs has increased significantly since that date. Extension officials from nine counties testified that in 1981 or 1982 all the Homemaker clubs in their counties remained 14/all-white or all-black, just as they had been in 1965.— J_1/ App. 1 797-1805. 12/ Of the 22 "integrated" clubs reported in 1972, 10 had only a single member of the less numerous race. Six had only 2 such members. Four were located on the Cherokee Indian Reservation. Outside of the Reservation only two Homemaker clubs in the entire state of North Carolina were integrated to more than a token degree. GX 7. 13/ GX 160, Deposition of Martha Johnson, Oct. 29, 1981, pp. 58-60, 70-71. 14/ Deposition of Zackie Harrell, Oct. 15, 1981, p. 56 (Hertford County); Tr. 731-32 (Hertford County), 870 (Caswell County), 941-2 (Perquimans County), 1079, 1082 (Gates County) 1524-25 (Union County), 1765 (Vance County), 1996 (Wayne County), 2390 (Jones County), 2449-50 (Washington County). 9 The perpetuation of this system of state established single-race 4-H and Homemaker clubs was the result of more than simple inaction on the part of NCAES. For many years after 1965 agents continued to be assigned to these clubs on 1 5/the basis of race.— A 1972 comparison of the race of agents and of the groups with whom they met demonstrated in graphic terms the extent to which such assignments were being made on a discriminatory basis. All-white Homemaker groups met with white agents 97.3% of the time, while all-black groups met with black agents on 96.2% of all occasions. (GX 23). All-white 4-H clubs met with white agents in 95.6% of all cases, while all-black 4-H clubs worked with black agents in 89.0% of all cases. (GX. 21). Several officials testified that, at least prior to 1974, black and white agents were assigned to clubs on the basis of race. (Tr. 1079, 2020, 2025, 1994). Not until July, 1974, did the Extension Service even purport to assign agents to 4-H and Homemaker clubs on a non-racial basis. (App. 1834). It is clear that for at 16/least 10 years— ' after the adoption of the 1964 Civil Rights Act NCAES personnel continued to service all-black and all-white clubs in North Carolina on a racial basis. That decade of illegality cannot have failed to impress upon the members and leaders of the clubs the state's tacit approval 15/ See also GX 115, Revised Compliance Plans for Meeting the Requirements of the Civil Rights Act of 1964, p. 2. 16/ Even in 1980 there was still a significant disparity in the race of agents assigned to meet with white and black groups. GX 35. 10 of organization along racial lines. On January 15, 1973, the Department of Agriculture issued affirmative action guidelines requiring that "newly organized 4-H and Homemakers Clubs which serve a community or area of interracial clientele must be interracial in composi tion in order to be eligible for assistance from the Extension Service". (App. 1905). No services were to be provided to a new single race club in an integrated area unless "all reasonable efforts have been made to recruit individuals from all racial groups." (Id.). Apparently in response to this federal directive, officials of the Extension Service met in March, 1974, to formulate new measures to integrate the large number of single-race clubs. They initially recommended that no new single-race clubs be permitted in bi-racial communities unless "sincere but unsuc cessful efforts were made to have an integrated membership." (App. 1823)— / Such efforts would have had to be documented by a statement indicating: (a) that ten (10) individuals of the "other" race were given personal invitations to participate (in cluding descriptions of the activities of the proposed club), (b) the names and addresses of the individuals, (c) the name of the person issuing the invitation to each person and (d) the date issued. The spirit of the policy on "invitations to join" is that it be personal (one-to-one) and not an announce ment in the press or at a meeting, although this method may be used to supplement the personal invitation." (App. 1824). The March 1974 meeting also proposed that steps be taken to 17/ Another staff proposal would have forbidden the creation of new single-race clubs in mixed areas under any circumstances. (App. 1829). disestablish the existing single-race clubs, many of which had originally been segregated by the state itself. A program will be undertaken to achieve a voluntary desegregation of all uniracial clubs in biracial com munities.... Voluntary desegregation will be re quested. Multiple approaches will be suggested, such as (a) combining clubs, (b) recruiting from the "other" race in the community, (c) joint meetings of clubs for educational programs .... (App. 1827). The Extension Service, however, rejected both of these specific proposals, as well as the USDA Guidelines requiring "all reasonable efforts" to integrate new clubs. It adopted instead certain so-called "civil rights initiations" that merely require that the creation of new clubs be announced to the public by radio and newspapers including the approximate location or area served by the club, its purposes and the fact that it is open to all people without regard to race. (App. 1840, 1987). In March 1977, Don Stormer, the state director of the 4-H programs, issued a directive to district extension chairmen ordering that, as required by the USDA guidelines, "a reasonable effort" be made to integrate new 4-H clubs. (App. 1839). A month later, however, that directive was rescinded. Extension officials issued instead a new statement expressly distinguishing the Extension Service policy from the more stringent USDA regulations: 1. If we are asked what affirmative action requires 1 / in formation of new 4-H and Homemaker clubs, then the correct response is to "make reasonable efforts" to integrate these units, basically as defined in Dr. Stormer's memo of March 25, 1977. 1/ See "Title 9, Equal Opportunity Administrative Regulations," USDA, November 18, 1976. 12 2. If we are asked what the policy of the North Carolina Agricultural Extension Service is with respect to affirmative action, then reference must be made to the "1974 Civil Rights Initiatives" which were agreed upon by the Administration.... (App. 1845-46). The officials explained that the state policy was different than that required by the federal regulations because the Extension Service "is essentially 'sheltered' from discrimination issues until the pending litigation is settled," and because "counsel advised that a court order resulting from the civil rights suit would likely require steps in addition to any affirmative action measures then being implemented." (Id. ) . In September 1979, Dr. D. G. Harwood, the Assistant Director for Agricultural Special Programs proposed that, as had long been required by the 1973 USDA guidelines, NCAES make "all reasonable efforts" to integrate new 4-H and Extension Homemaker clubs. Harwood noted that the NCAES Director himself "realize[d] that often participation is not encouraged through simply notifying minorities through mass media outlets," and pointed out that the previous director had "refused to allow implementation" of that USDA guideline, (App. 1850; GX 215). The Administrative Council of the Extension Service initially agreed to Harwood's proposal to implement this USDA "all reasonable efforts" rule." (App. 1855, 1959-62). Subsequently, however, Howard Manning, Sr., counsel for the Extension Service, advised NCAES that he opposed such further affirmative steps as inconsistent with the defense he proposed to offer in this litigation that the Service was already achieving integration and that a "rigid 13 affirmative action program" would simply drive members out of the clubs. Even though the case had not yet come to trial, Manning assured Harwood that "the judge understands this." (App. 1904). Harwood and Manning agreed "that ultimately we will be forced to get into the 'all reasonable efforts' program, but perhaps it might be best to wait until our civil action is resolved." (Id.). Harwood noted that such active recruitment of minorities for new all-white clubs would cause "a lot of resistance in our communities among clientele" and "a lot of dissension" within the Service itself. (Id. ) . Following these recommendations the proposal to implement the USDA "all reasonable efforts" guidelines were rejected for the third time. (Tr. 4284). In sum, the North Carolina Extension Service, which deliberately created many of the segregated clubs in the first instance, has overall a policy of benign indifference towards their continued existence. Dr. Stormer testified that there was no state policy in favor of integrating these clubs. (App. 981). Extension agents were never given instructions to go out and try to integrate the single-race clubs. (Tr. 4299) An agent who brought about such integra tion on his or her own initiative would receive no credit for that work that might affect his or her promotion or salary (Tr. 4298); an agent who made substantial progress in inte grating these clubs would not be rated more highly than one who made absolutely no progress. (App. 1133). Although extension agents train the volunteers who recruit members for 14 new or existing clubs, it is not NCAES's policy to train, instruct or encourage white volunteers to solicit blacks to join their clubs. (Tr. 4372-74, 5112-13). No all-white club has ever been threatened with the denial of a single state service if it did not recruit or obtain black members. (App. 957-60, 994). NCAES's general attitude was described by one of its county chairmen as follows: We have not made an effort to integrate for integra tion's sake. We have not, you know, frowned on it. If it happens, we'd be glad for it to happen, but it hasn't happened. 18/ So long as an existing all-white club does not actually reject a black applicant, the state simply did not care if it con tinues to operate as an all-white organization, The club leaders are neither forbidden nor even asked not to recruit on a discriminatory basis. If those leaders intentionally recruited only whites for an existing club, NCAES would take no action whatever. If whites were recruited in this dis criminatory fashion for a new all-white club, the sole response of NCAES would be to issue a press release announc ing the club's creation — a measure which the state itself recognized was often ineffective. (App. 1850, GX 215). Dr. Stormer conceded that, under the present NCAES policies, and in light of the miniscule rate of progress made prior to trial, it would take "forever" to eliminate all one-race clubs in mixed communities. (Tr. 1165-66). 18/ Deposition of Z. W. Harrell, October 15, 1981, p. 56. 15 NCAES officials offered conflicting and unpersuasive explanations for these policies. Dr. Stormer, the director of the 4-H programs, asserted that if the single-race clubs were merged, and individuals thus denied the opportunity to join a black club or a white club, members of the public would simply refuse to join the clubs or serve as volunteer leaders. (Tr. 4997-99, 5121-22). This opinion was not, however, the result of any actual experience in North Carolina; Stormer was a native of Michigan who had not moved to North Carolina until 1976. (Tr. 4947, 4951). He based his view on his general philosophy of human nature: You know, if you go back to the Boston Tea Party, people were told what they had to do and they did not do it. Just by the fact you tell them you have to do it, you create a certain amount of resistance because people don't like to be told what they have to do, especially by an agency of government. (Tr. 5121). The only instances which Stormer knew about of actual resistance to the integration of clubs were in the state of Texas prior to 1976. (Tr. 4996-8). Dr. Blalock, NCAES's director, offered a different reason for continuing to provide services to single-race clubs. In response to a question from the trial court as to the impact of a court order requiring the integration of these clubs, he did not assert such an order would fail or result in mass resignations, but testified that its effectiveness would depend, inter alia, on how many employees he could devote to that task and on the number of minority members to be added to each club. (Tr. 4413-15). Yet when asked if he could 16 insist that a 4-H club desegregate he replied "absolutely not". (Tr. 4415) We have no control over the volunteers. We have no control over who goes to that club.... It is an entirely voluntary effort. (Id.) Blalock, however, had no doubts about the ability of the NCAES to force these same clubs to accept any minority who actually applied. (Tr. 4373). Although attendance at 4-H camp, like memberships in the clubs, was also voluntary, NCAES long ago successfully insisted that youth who wished to attend do so on an integrated basis. (App. 950-53). In every other area of official activity Blalock understood that he could control the activities of a "voluntary" organization, including 4-H and Homemaker clubs, by imposing conditions on the receipt of state assistance; only when it came to integrat ing those clubs did he insist the state was powerless to affect the activities of such a group. (2) The Applicable Legal Standards The district court properly recognized that the Extension Service was fully accountable for the membership practices of the 4-H and Homemakers clubs. This Court long ago held that organizations which receive significant public assistance cannot engage in racial discrimination. Simkins v. Moses Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied 376 U.S. 938 (1964). In this case the federal and state governments not only provided both printed materials and professional training, instruction and guidance on the part of the extension agents, but were in most instances 17 instrumental in creating the clubs in the first place. The court below, however, concluded that neither the Constitution nor Title VI of the 1964 Civil Rights Act were violated so long as the all-white clubs were not, as of the time of trial, actually rejecting black applicants on the basis of race. In the absence of proof of any such present dis criminatory rejections, the court held that North Carolina was free to continue to provide millions of dollars in materials and services to the several thousand all-white clubs at issue. (App. 94-102). Appellants maintain that the decision below was erroneous as a matter of law. First, a substantial number of the present single-race clubs were established by North Carolina on a segregated basis prior to 1965. Because of the longevity and low membership turnover of the homemaker clubs, many if not most of the 1,690 intentionally segregated Homemaker clubs that existed in 1965 remain segregated today. The proportion of pre-1965 segregated 4-H clubs still in existence in 1982 may be somewhat lower. The applicable Title VI regulations, 7 C.F.R. § 15.3 (b )(6)(i), provide: In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination. (emphasis added). These regulations have the force of law and are entitled to deference by the courts. Blacksher Res. Org. v. Housing Authority of the City of Austin, 347 F. Supp. 1138, 1146-47 18 (W.D. Tex. 1972). Once clubs have been intentionally estab lished by a state on a segregated basis, that initial act of discrimination will, in the absence of affirmative action, continue in effect. Individual members remain in the clubs to which they were originally assigned on the basis of race; there are doubtless significant numbers of members of Extension Homemaker clubs today who are still in the clubs they joined prior to 1965. Since a substantial proportion of new club members are friends or relatives of existing members, such new members will naturally be recruited in racial patterns that mirror the initial act of intentional state discrimination. Perhaps most importantly, when existing clubs are either all- white or all-black, they are likely to stay that way because prospective members, even if willing or perhaps anxious to join integrated clubs, will be reluctant to be the only white member of a black club, or vice versa. That is especially probable where, as here, the state has given its apparent ap proval of such racial separatism by establishing the segregated clubs, servicing them on a racial basis until at least 1974, and taking no steps to require or even encourage them to integrate. The relatively unchanging number of all-white clubs in North Carolina is dramatic proof of the extent to which the effects of the intentional discrimination that existed in 1965 continue to control the membership patterns today. The continued operation of clubs originally established on a segregated basis violates the Fourteenth Amendment as 19 well. The state apparently believes that, having assigned youth and homemakers on the basis of race prior to 1965, it need only adopt a "freedom of choice" policy permitting them, if they wish, to transfer to other clubs. This practice doubtless has its origins in the freedom of choice plans which were adopted by segregated school districts prior to 1968 and which, like the freedom of choice plan adopted by the NCAES, had virtually no impact on the racial composition of existing segregated institutions. In 1968, however, the Supreme Court unanimously struck down freedom of choice plans where, as here, they had proved ineffective. Green v. School Board of New Kent County, 391 U.S. 430 (1968). Brown II was a call for the dismantling of well- trenched dual systems.... School boards then operating state-compelled dual systems were ... clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch .... The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now .... [I]f [freedom of choice] fails to undo segregation, other means must be used to achieve this end.... The Board must be required to formulate a new plan ... which promise[s] realistically to convert promptly to a system without a "white" school and a Negro" school, but just schools. 391 U.S. at 437. These principles are equally applicable to desegregation of a state-established dual 4-H and Extension Homemaker systems. There is no serious claim in this case that North Carolina has in fact succeeded in disestablishing the dual system it required prior to 1965. The number of all-white 4-H clubs has declined only 8% during the 17 years since 1965. The number of single-race 4-H clubs in integrated areas has 20 fallen by less than 2% since 1972. (App. 1807). A year after this action was filed barely 1% of the Homemaker clubs in the state were integrated; that deplorable pattern continues today With regard to the ongoing establishment of single-race clubs in mixed communities, NCAES does not claim that the segregated nature of their membership is the result of "chance Dr. Blalock conceded that the makeup of a particular club "is determined by the local volunteer who has been recruited to 1 9 /serve as a leader of a club in that area. " — ' The state's narrow prohibition against the discriminatory rejection of black applicants is palpably insufficient to eliminate present invidious discrimination. Discrimination in passing on applications for membership is not the only or even the most important method by which a club can be kept all-white. The vast majority of new club members join because they are individually recruited by club leaders or other members; teaching those leaders how to attract members is regarded as one of the most important functions of the extension agent. (App. 939-940). Since most if not all members join as a result of this word of mouth solicitation, discrimination in recruitment will ordinarily be extraordinarily effective. There is simply no need to reject black applicants if no black is ever invited to apply. Regardless of how the system of single-race clubs in mixed communities came about, its very existence violates 19/ Deposition of January 30, 1973, p. 74. 21 Title VI per se. Title VI contemplates that minorities will ordinarily be afforded a chance to participate in integrated federally funded activities. In many North Carolina communi ties today a black has no such opportunity. He or she is forced to choose between joining an all-white program, as the token and possibly ostracized non-white, or joining an all-black program where his or her race will again be a "badge of slavery." For a 10-year old black farm boy who only wants to learn how to grow corn, or for a black housewife who needs help getting by on a meager income, for ordinary black women and children, the message of intolerance communi cated by a club's all-white membership will turn them away as effectively as the "Whites Only" signs of the past. The price of admission is the courage and determination of James Meredith or a Linda Brown; that price is too high. The trial judge also upheld NCAES's refusal to require clubs receiving state aid to actually integrate by asserting that in North Carolina as well as all other states integra tion of the races more frequently than not meets with strong resistance. The choice thus posed is whether it is better that the Extension Service continue to provide its much needed services to well over 100,000 North Carolina club members while striving to achieve full integration of the clubs or that it withdraw such services altogether as the government would have it do. The Extension Service has opted for the former, and in so doing this court does not perceive that it has violated the rights of anyone under any law. (App. 101). The judge's assertion that North Carolinians would forgo the "much needed services" of the Extension Service rather than participate in a club with members of another race is without 22 support in this record. A policy of requiring clubs to inte grate as a condition of receiving state aid has not been tried and failed in North Carolina; it has never been tried. Compul sory integration of county and state-wide 4-H and Homemaker activities, on the other hand, has been an unqualified success For over a decade the members and leaders of all-white clubs have voluntarily participated in these integrated programs, evidently regarding their benefits as more important than avoiding contact with blacks. There is little reason to believe that the same youth and adults who today attend these integrated activities would withdraw from their clubs merely because they too were operated on an integrated basis. The judge's apparent willingness to postpone still further the integration of the 4-H and Extension Homemaker programs because of outdated assumptions about the unwilling ness of the public to obey the law of the land is sorely out of place in 1982. North Carolina today is not the Little Rock of 1958 or the Selma of 1965. Members of both races now attend the same schools, ride on the same buses, eat at the same restaurants, stay at the same hotels, and work on an equal basis at the same jobs. It is not unreasonable to ask or expect the men, women, boys and girls who have accepted integration in most aspects of their lives to do so in the 4-H and Homemakers clubs that are organized and supported with public funds. Eighteen years after the Supreme Court held that the time for "all deliberate speed" had ended,— ^ 20/ Griffin v. School Board of Prince Edward County, 377 U.S. 218, 234 (1964). 23 further delay is intolerable. II. THE DEFENDANTS DISCRIMINATED AGAINST BLACKS IN SALARIES The named plaintiffs alleged, on behalf of themselves and the purported class, that NCAES systematically discrimi nated in the salaries it paid to blacks in comparison to these paid whites holding the same position. The named plaintiffs include employees hired both before and after 1965, the year when the black and white branches of NCAES were merged. The legal issues raised by these two groups are somewhat different, and accordingly we discuss them separately. (1) Pre-1965 Hires The trial court properly recognized that salaries of black professional employees prior to the merger were inten tionally set lower than those of their white colleagues holding the same positions. (App. 43, 77). The court noted that the evidence of this systematic discrimination was "undisputed". (App. 77). Dr. Blalock, who had worked for NCAES prior to the merger and was its Director at the time of the trial, candidly acknowledged that it was the policy of NCAES to pay minority employees less than whites. He explained the difference in the average wages of whites and blacks as: ... a reflection of what existed not only in North Caro lina but throughout the country. At that point in time ...[black] home economics agents could be hired at a lower salary than the white agents could [B]lack agricultural agents could be hired and retained at a lower salary than white agricultural agents. (App. 999). One of the defendants' own exhibits demonstrated that before 1965 this difference between the salaries paid to blacks and whites 24 holding the same position was quite substantial. (App. 1625). In 1965 the two branches of NCAES merged physically; employees who had previously worked out of separate locations were placed in the same office. But the salaries of black employees, which prior to 1965 had been set at a lower level because of their race, were not changed. None of NCAES's written plans for compliance with the 1964 Civil Rights Act contained any provisions for altering this discriminatory wage structure.— ^ Although blacks were at least theoretically eligible for the same across the board and merit raises as whites, the base wage to which any raises were added, and thus their aggregate salaries, remained for discriminatory reasons lower than those of whites. In the absence of any steps to alter it, the discriminatory wage scales established prior to 1965 simply remained in effect. Black employees hired before that year might now work side by side with whites with identical records, but they continued to be paid less than their white colleagues simply because of their race. The first efforts to disestablish this discriminatory salary structure did not come until 1971, six years after the purported "merger". In 1970 the average white salary was higher than the average black salary for every category of professional positions within NCAES. Black full agricultural 21/ DX 207; GX 115 (Revised Compliance Plans for Meeting the Requirements of the Civil Rights Act of 1964; Cooperative Extension Service State of North Carolina, Report on Status of Compliance of State Extension Service Under Title VI of the Civil Rights Act of 1964, December 31, 1965; Letter of George Hyatt, Jr. to Dr. Lloyd Davis, Sept. 15, 1965). 25 agents, the position held by the largest number of blacks hired before 1965, averaged $432 a year less than whites in the same job. (App. 1560).* This figure substantially understated the actual disparity, since the average black agent had several more years of seniority than the average white. Virtually all of the named plaintiffs hired before 1965 earned less than the average white in the same position. 1970 Wages Job Average White Pre-1965 Average 22/ Plaintiff 23/ Difference Agricultural Agent $10,871 Associate Agent 9,876 Assistant Agent 8,796 Home Economics Agent 9,893 $9,562 8,307 8,184 9,182 $1,309 1,569 612 711 In 1971, apparently as a result of prodding by federal officials, Dr. Blalock, then assistant director in charge of budget, proposed adjustments in the salaries of blacks aimed at ending this discriminatory salary structure. A memorandum prepared by him at the time noted three reasons for the salary disparities: [0]ur salaries for women and non-white men on average are lower. Our figures verify. Due to several factors: - The competitive market — This is not accept able as a reason though. - Tradition - not just in Ext[ension Service] - Less County support for non-white positions. (App. 1606). 22/ App. 1560. 23/ Appendix A. - 26 - At trial Blalock explained that by "competitive market" he was referring to the fact that blacks because of their race were less in demand than comparable whites. (App. 897-98).— / Blalock urged in 1971 that action be taken "as quickly as pos[sible] and preferably before our plan went into Washington" (App. 1607), warning: Obviously one of the areas where we'll be checked is on salary. Easy to measure and at least see if there appears to be any [disparity]. (App. 1605). After reviewing figures from the Extension Service District Chairmen, Blalock concluded that the needed increase in black salary levels would be between $800 and $1100. (App. 1 608 ) . Although the salary changes urged by Blalock might, if fully implemented, have eliminated the salary disparities caused by pre-1971 intentional discrimination, that did not occur. The adjustments actually made in 1971 were far smaller than the disparities found by Blalock. The gap between black and white agricultural agents was reduced by only $85, while the difference between black and white home economics agents actually rose by $13 compared to 1970. Indeed, among the six categories of professional employees, in three blacks actually fell further behind their white colleagues between 1970 and 1971. (App. 1560). About a year and a half after these 24/ In his October 23, 1981 deposition Blalock reiterated re garding the salary disparities in existence in 1970, "[T]he organization had also been able to employ blacks at a lower salary, again, because of the market demand and because of the salary structure that we inherited when the two organizations came together in the mid-sixties." p. 37. 27 salary adjustments the Extension Service made a detailed analysis of the wages of full agents. It concluded that, when full agents with comparable tenure and education were compared, the salaries paid to blacks still averaged $455 less than those of whites. (App. 1610). The trial court concluded that the 1971 adjustments had only "beg[u]n" the elimination of the disparities rooted in earlier intentional discrimination. (App. 77, 108). Since 1972 virtually all pre-1965 blacks have been employed as full agents. Although the salaries of black full agents have risen slowly in comparison to those of whites, throughout the last decade black agricultural agents have consistently averaged five to six years of more tenure than 2 5/whites.— Even ignoring the differences in tenure, the disparity in the wages of home economics and agricultural agents did not end until 1974 and after 1976 respectively.— ^ Salary analyses offered at trial showed that on the average a year of additional tenure for similar employees in the same position was worth $50-56 in 1974,— ^ and $150-156 in 1981.— Taking into consideration the additional salaries ordinarily paid employees with more years of service, the disparity between black and white wages in 1974 was still approximately 25/ App. 1562; GX 95; PX 50; PX 100; PX 98. 26/ See note 25, supra. 27/ GX 123, pp. 338-352. The size of the difference depends on which other variables are considered. 28/ GX 122, pp. 30-57. 28 $750 for agricultural agents and $200 for home economics agents. The disparity between black and white home economics 2 9/agents continued until 1979,— while the disparity between black and white agricultural agents still has not clearly been eliminated In short the uncontradicted evidence showed, and the trial court actually found, (1) that the wages of blacks hired prior to 1965 were for discriminatory reasons set at levels lower than those of whites in the same position, (2) that no steps to eliminate those discriminatory wage levels were taken until 1971, and (3) that the 1971 adjustments were insufficient to fully achieve that result. The dispari ties which existed before and after the 1971 adjustments continued until at least 1976. The lower court recognized that the limitations period applicable to the claim of uncon stitutional racial discrimination began in 1968. (App. 64, n.20). The government was also entitled to seek back pay for employment discrimination in or after that year, since such discrimination violated USDA equal employment regulations issued in August, 1968. 7 CFR §§ 18.1-18.9. These facts constitute an actionable violation of the constitution, 42 U.S.C. § 1981, the USDA regulations and, after March 1972, Title VII; the only possible area of dispute is not whether 29/ In 1979 blacks had .35 years more seniority than whites, but earned $94 a year less. See note 25, supra. 30/ In 1981 blacks had 5.9 years more experience than whites, which should have been worth over $850 a year in wages; in fact they earned only $707 a year more. See note 25, supra. 29 that unlawful discrimination existed, but when, if ever, the defendants brought it to an end. The burden of proving that that discrimination had ended was on the defendants. Evans v . Harnett County Bd. of Ed., 684 F.2d 304, 307 (4th Cir. 1982). Yet the trial court inexplicably denied all relief. The trial court's error appears to derive from its pre occupation with the narrow question of whether there was still intentional discrimination in 1981. The court dismissed a government comparison of salaries earned by similar employees in January 1973 on the ground that it involved differences that existed "almost ten years ago," although this was over 4 years after the commencement of the limitations period. (App. 78) Much of the court's opinion is devoted to regression analyses of employee salaries between 1974 and 1981 (App. 75-77, 80-86). After noting that the statistical evidence appeared to establish a prima facie case of discrimination, App. 78, 80, 87), the trial judge concluded it was rebutted by defense evidence concerning the years 1976 through 1981. (App. 87-88). The trial court's ultimate conclusion that the defendants had explained the "seeming salary disparities" clearly refers only to the disparities in the regression analyses for 1974-1981. That conclusion is clearly erroneous, but even if it were correct those regression analyses cover only the period after 1973. In sum, having held that the salary disparities which existed before and after 1971 were the result of intentional discrimination, and that the plaintiffs would be entitled to back pay for salary discrimi- 30 nation in or after 1968, the trial court never clearly resolved the defendants' liability for years prior to 1974, and simply disregarded those holdings in assessing the evidence of salary disparities after 1974. The trial court's apparent indifference to its own findings of discrimination based disparities prior to 1974 may also have been the result of its sympathy for a supposed "problem" faced by NCAES in obeying federal law. The Extension Service's problem of bringing black and white salaries into line has been similar to that which faced most business enterprises with a prior history of racial discrimination following the passage of the Civil Rights Act of 1964. Just as it had been found in the area of education that there is no such thing as instant integration, it was soon found in the field of business and industry that there is no such thing as instant equality in employment. Without risking serious disruption of a business by prohibitively costly budgetary alterations and a possible practice of wholesale reverse discrimination it was soon recog nized (though not always by the courts) that the adjust ments mandated by the law simply could not be made over night. The dilemma of the Extension Service was further compounded by the fact that its operating funds come from three separate political entities each of which retains a voice in all major employment decisions. (App. 77) This passage is without foundation in this record or American experience. This statement literally means that, where an employer prior to 1965 was paying blacks less than whites, it would have been "prohibitively costly" and "wholesale reverse discrimination" to equalize those salaries when the 1964 Civil Rights Act became effective on July 1, 1965 or when the Title VII amendments became effective in March, 1972. These purported burdens apparently justified in the trial judge's mind continuing such intentionally discriminatory salary 31 disparities for some time after the letter of the law required their elimination. In the case of the Extension Service, this period of grace seems to have to have extended until at least 1976. Other portions of the district court opinion suggest that NCAES, having prior to 1965 intentionally set the base salaries of blacks lower than those of whites, could continue to pay blacks hired prior to that date less than whites for the rest of their natural lives. (App. 91-93). Nothing in the decisions of this or any other court sanctions paying blacks less than whites as a cost saving measure, or warrants characterizing as "reverse discrimination" the simple act of paying blacks and whites the same salary for the same work. We know of no basis, and none can readily be imagined, for asserting that business found there was a "problem" or "dilemma" in paying equal wages for equal work as soon as the law required it. The NCAES never asserted that it would have ben impossible or even difficult to eliminate in 1971, 1965, or earlier the wage disparities rooted in the segregationist policies of its past. Tolerance of con4-in,ied salary discrimination on the part of state or county officials to after 1965 is particularly unjustifiable, for their obliga tion to avoid such discrimination does not date from the enact ment of the 1964 Civil Rights Act or the 1972 amendments, but from the enactment of the Fourteenth Amendment over a century ago. No authoritative federal decision, not even Plessy v. Ferguson, 163 U.S. 537 (1895), sanctioned discrimination on the 32 basis of race in fixing the wages of government employees. (2) Post-1965 Hires Although the salaries of black employees hired prior to 1965 were established during a period when the Extension Service had an avowed policy of discrimination, that is not true of blacks hired after 1965. Both the initial salaries and subsequent raises of post-1965 hires were fixed during an era when the NCAES had at least a nominal policy of non-discrim ination. For pre-1965 hires the critical issue is when, if ever, the admittedly discriminatory wage disparities were ended; for post-1965 hires the issue is whether such purposeful disparities existed at all. The vast majority of the pre-1965 hires were already full agents by 1971;— / thus the treatment of blacks hired since 1965 that year can readily be traced by by examining the salaries of assistant and associate agents. State NCAES officials establish a minimum salary for newly hired assistant agents although particular individuals may at times be paid more. Since employees typically remain at the assistant agent level only a few years, the cumulative effect of any disparity in raises would likely be small. Prior to 1974 the salaries of assistant agents were consistently higher for whites than for blacks; the difference varied from $56 for assistant home economics agents in 1970 to $621 32/for assistant agricultural agents in 1971.— All of the 31/ See Appendix A. 32/ See note 25, supra. Data for 1971 and 1972 can be found at App. 1560. 33 n*med plaintiffs hired since 1965 who were assistant agents in 1970 were making less than the average white in these positions. Appendix B. Since 1975 average white salaries have exceeded average black salaries about as often as the opposite was the case. The situation of associate agents presents a far greater opportunity for discrimination than does that of assistant agents. The average black associate agent has been in that position for 5 or 6 years;— ^ any consistent discrimination in raises over that longer period of time would result in a no ticeable difference in total salary. The record in this case demonstrated that that is precisely what has occurred: Associate Home Economics Agents Salaries 1970-81 34/ Average Average Average Average Difference White White Black Black in YearYear Salary Tenure Salary Tenure Average Wage 1970 $ 8553 $ 8,195 $358 1971 $ 9146 $ 9,040 $106 1973 $ 9503 4.7 $ 9,421 5.0 $ 82 1974 $ 9683 4 $ 9,589 6 $ 94 1976 $11,879 5.03 $11,677 5.82 $202 1979 $14,087 5.29 $13,929 5.71 158 1980 $14,473 4.8 $14,051 5.1 442 1981 $16,643 6.5 $16,232 6.5 411 33/ App. 1562; GX 95; PX 48, 50, 98, 100. 34/ See n. 25, supra. The data for 1976-80 is for employees with bachelor degrees. The exhibits do not contain average ten ure data for 1970 and 1971. 34 Associate Agricultural Agents Salaries 1970-81 35/ Average Average Average Average DifferenceWhite White Black Black inYear Salary Tenure Average Tenure Average Waqe 1970 $ 9,876 $ 8,956 $ 9201971 10,240 9,558 682 1973 10,292 3.6 9,797 5.6 4951974 10,244 3 9,840 6 4041976 12,711 4.55 11,885 5.43 8261979 14,754 4.55 13,518 6.00 1,2361980 15,253 4.3 14,485 5.3 7681981 17,035 5.2 15,849 6.7 1,186 The wages of white associate agents have exceeded those of black associate agents in every year, for both home economics and agricultural agents, despite the fact that in every year— ^ for which the data is available average black tenure exceeded average white tenure. Blalock's 1971 description of the forms of discrimination behind then existing wage patterns, and his estimate of the re sulting disparities in income, are not limited to pre-1965 hires or policies. His 1971 memorandum referred to the treatment of all black employees, and to then present rather than merely his torical discriminatory practices. Blalock knew the 1970 salary disparity between black and white associates agents was actually greater than that between black and white full agents, for the adjustments implemented at his insistence were larger for asso ciate agents than for those for full agents. (App. 1560). 35/ See n. 25, supra. 36/ Except for 1981 associate home economics agents, whose average tenure was equal. 35 After 1971, however, although the salary disparity for full agents eventually declined, that for associate agents actually increased. Thus in 1981, when black full agricultural agents earned more than white agents, black associate agricultural agents earned $1,186 less than white associate agents. The decision of the court below contains no consideration of these specific salary differences in the wages of associate and, prior to 1974, assistant agents. It considered only the general salary studies, "regression analyses", conducted by experts for the government and the defense. Utilizing standard and essentially identical statistical methods, the two experts calculated the average salary difference between blacks and whites with the same position, education, tenure, and sex. The results of their calculations were quite similar: Salary Disparities: Average Amount by Which White Salary Exceeded That of Blacks With Same Position, Education, Tenure and Sex Year 1974 1975 1981 Government 3 7 , Defense 3Q , Regression Analysis— / Regression Analysis— / $257-337 312-395 158-248 $364-381 384-391 310-415 Although these calculations of the average disparities within 37/ App. 399-418, 1568, 1601; GX 123 at 289, 297, 310 (1974), GX 124 at 33, 39, 48, 60 (1975); GX 122 at 37, 46, 55 (1981). Differences in each year depend on which other variables are considered. 38/ App. 1681, 1693-1715. Differences in each year depend on which other varibales are con~idered. These figures do not include adjustments for quartile ratings, which are discussed below at p. 48. 36 all positions provide a less detailed picture than the above analysis of the disparities in particular jobs, the results are entirely consistent. The trial court recognized that the government's statis tical analysis "unquestionably establishes salary disparities" (App. 77) which were sufficient to establish a prima facie case of intentional discrimination. (App. 80, 87). In fact these salary disparities proved considerably more than a mere prima facie case. If plaintiffs in an ordinary Title VII case were to calculate the company-wide average wages of blacks and whites, any resulting difference might be entitled to limited weight; where the different positions averaged together in volve entirely unrelated skills and educational requirements, ranging from custodians to lawyers and accountants, disparities in average wages could be caused by differences in the jobs to which, possibly on the basis of their qualifications, employees may be assigned. But in the instant case the salary compari son is of blacks and whites wiht the same tenure and education holding the identical position, precisely the comparison called for in E.E.O.C. v. Federal Reserve Bank, ___ F.2d ___ (4th Cir. 1983) (slip opinion, pp. 61, 63). There is ordinarily a strong presumption that blacks and whites in the same position will re ceive the same salary. The employer itself often has, in deciding to hire or promote individuals into a particular job, determined that they have roughly comparable skills. While there may be some differences between particular individuals, 37 it is unlikely that there will be any significant relevant dif ferences in qualification between blacks and whites as a group hired by the same employer in the same era for the same job. The trial court, however, chose to disregard these striking salary disparities because it believed the plaintiffs had not eliminated every possible legitimate explanation for them: [B]ecause of their failure to include many of the vital factors to be considered in fixing salaries the probative force of these statistics has been so substantially under mined that they cannot sustain a finding of purposeful discrimination .... (App. 87-88) The lower court conceded that the plaintiffs had established that neither tenure nor education could explain why blacks were being paid less than whites for doing the same job, but ar gued that there were at least nine other possible explanations, and insisted that the plaintiffs had failed to show that these were not behind the d i s p a r i t i e s / 39/ "(1) Performance of agents measured against the agents' plan of work; (2) The variations in salaries created by across the board state raises with the different percentage of state contributions in each county; (3) The across the board increases in agent salaries by some counties and not in others; (4) The merit raises provided by the state; (5) The merit raises provided for by the counties in which Extension Service personnel have no input; (6) The merit raises provided by the counties with limited or full participation in the merit re commendation by Extension Service personnel; (7) The range in merit salary increases provided by the counties (0 to 12% in 1981); 38 This contention misconceives the burden of proof on a plaintiff alleging intentional racial discrimination. No plaintiff is required to prove groundless every defense that could be conceived of by the court or a defendant's attorney. A prima facie case is "prima facie" because it is sufficient, not to satisfy this unmeetable burden, but to shift to the de fendant the responsibility of coming forward with evidence de monstrating that the proven disparities were not the result of discrimination. See Chisholm v. United States Postal Service, 665 F.2d 482, 496 (4th Cir. 1981). Here the plaintiffs not only showed pronounced disparities in the salaries paid to blacks and whites in the same position, evidence sufficient by itself to establish a strong prima facie case, but went further and elim inated by uncontradicted evidence the possibility that these disparities could be exolained by differences in education or tenure. At that juncture the burden was on the defendant to offer credible evidence that the disparities were the result of some specific legitimate non-discriminatory circumstance. The defendant, however, did not do so; it responded by insist ing that such defenses could still be imagined and that the plaintiff had not disproved them. This was insufficient as a matter of law. No matter how strong a plaintiff's case, it (8) Prior and relevant experience; and (9) Variations in salary due to market demands both at time of hire and later for agents with skills in short supply or prior experience." (App. 81-82). 39 will always be possible to imagine some facts which, if true, would establish the defendant's innocence. It is possible, for example, that some of the higher paid whites had won the Nobel Prize in biology, or that blacks were rejecting raises because they felt that NCAES needed the money for other things. But neither these nor any of the nine other possible explana tions mentioned in the court's opinion were substantiated by defense evidence.— ^ The court also concluded that this evidence of salary discrimination had been rebutted by "defendants' explanatory evidence". (App. 78). It relied primarily on Defendants' Exhibits 201-205, (App. 2227-31) which it summarized as follows In 1976, when the salaries of all agents except county chairmen were compared, the average salary of white agents exceeded that of black agents by $130, but the average tenure of white agents exceeded that of black agents by 1.5 years. In the same year the salaries of black agents with a bachelor's degree exceeded that of white agents with the same degree by $121 although the average tenure of the white agents exceeded that of the black agents by 1.6 years. . . . The figures for 1979, 1980 and 1981 showed comparable results. . . . (App. 86-87) The defendants' assertion, heavily relied on by the court, that blacks had less average tenure than whites in 1976 is simply false. The critical error is contained in DX 201 (App. 2227), 40/ Job performance ratings, listed by the trial judge as one possible reason why blacks were paid less, revealed that in 1975 the ratings of blacks were actually higher than those of whites. App. 1716, analyses 5 and 6. The disparity between the wages of comparable blacks and whites in the same job was $384; when blacks and whites with comparable quartile ratings were considered, the disparity was $475. In 1981, on the other hand, the salary disparity was lower when quartile ratings were considered. App. 1691, analyses 5 and 6. 40 which states that the average tenure in 1976 of blacks (other than chairmen) with a bachelor's degree was 7.7 years; an ex amination of the more detailed figures in PX 48 shows that the actual average black tenure is 12.6 years. Thus in 1976 all blacks and blacks with bachelor degree had 3 years more tenure than whites, precisely the opposite of the court's assumption. The court's assertion that the 1979, 1980, and 1981 figures are "comparable" to its description of the 1976 data is, with regard to tenure, also inaccurate. In all of those years blacks in every category had more tenure than whites. (App. 2228-31). These defense exhibits, moreover simply do not provide a meaningful basis for determining whether there is discrimi nation in the salaries paid to employees in the same job. The exhibits were prepared by deliberately omitting the 96-99 4 1/best paid white employees — those serving as state chairmen. — ' Such artfully constructed "averages" are insufficient to rebut specific and otherwise unexplained disparities in the salaries of blacks and whites in particular jobs. (3) The Individual Claims Approximately a month after its decision rejecting the pattern and practice and class claims, the district court handed down a second opinion regarding the salary discrimin- 42/ation claims of the named plaintiffs.— 7 (App. 115-161). £1/ App. 2227-31. 42/ The claims of some plaintiffs were dismissed in an order dated August 20, 1982, the same date as the order regarding the class claims. (App. 111-112). 41 The court expressly recognized that, had the private and government plaintiffs been upheld in its earlier decision, even blacks who were not named plaintiffs "would have been entitled to relief as members of the class." (App. 115, n.1). The court's analysis of those individual claims was made against the background of its erroneous assumption that NCAES had not engaged in systematic salary discrimination. As we demonstrated above, the undisputed evidence in the record, and in certain instances the court's own findings, compel the conclusion that the lower salaries paid to blacks by the de fendants were the result of a pattern of racial discrimination. That conclusion requires the reversal of the lower court's disposition of the individual claims. Sledge v. J.P. Stevens Co., Inc., 585 F.2d 625, 637-38 (4th Cir. 1978). The named plaintiffs, like all other black employees, are entitled to relief as members of the group discriminated against by the Extension Service. The trial court's resolution of the individual claims was also tainted by several other errors. In rejecting most of the claims the court below expressly insisted that proof that a black was being paid less than comparable whites was insufficient . . . 43/to make out a prima facie case of discrimination.— The claims of sixteen plaintiffs were dismissed with a single sentence: On behalf of these plaintiffs exhibits were offered showing salary comparisons between them 43/ App. 78, 112, 126, 127, 130, 133, 137, 138, 142, 143, 145, 154, 156, 158. 42 and certain white employees, but there was no evidence to show the relative qualifications and job performances of these plaintiffs and those of the persons with whom they were sought to be compared, and this evidence standing alone was not sufficient to create a prima facie case of discrimination. (App. 112). The trial judge asserted that in the absence of proof by a plaintiff that "any disparity was predicated on race rather than performance. . . it would be sheer speculation to find otherwise." (App. 130). This is the precise opposite of the allocation of burden of proof approved by this court in Chisholm v. United States Postal Service, 665 F.2d 482, 496 (4th Cir. 1981) . We urge that, as in its analysis of the difference in average black and white salaries, the trial judge erred as a matter of law and misallocated the burden of producing evi dence. This is not a case in which plaintiffs sought to com pare the salary of the Director of the Extension Service with that of a secretary, or simply relied on disparities between, for example, the wages of a custodian and a nuclear physicist employed by the same firm. The evidence adduced by plaintiffs showed that the black named plaintiffs were earning less than whites who held the same position and whose education and ten ure were either less than or no better than equal to that of the plaintiffs. Such evidence is sufficient to place on the defendants the burden of adducing credible evidence that this disparity was not the result of unlawful discrimination. The 43 plaintiffs were not required to anticipate and disprove every possible explanation for such disparities. The defendants were in possession of the employment records of all the employees involved in these comparisons, and, where a legitimate reason had existed for a particular disparity, they could readily have proved it. In some instances the defendants attempted to ad duce evidence of this kind, but in others they did not. In those cases in which the defendant offered neither documenta tion nor witnesses to suggest any particular justification for a given disparity, the trial court erred in speculating that such evidence might nonetheless have existed. In a number of cases the court's analysis is limited to possible disparities in the present salaries of the named p l a i n t i f f s ^ i n others it is simply unclear what years the court is referring to.— ^ The findings of the earlier opinion concerning the pattern and practice claim, on which the district court relied, were expressly limited to salary discrim ination "since 1972" (App. 92, n.48). The limitations period applicable ‘'O this case runs from 1968 to the present, and the record contains detailed evidence regarding black and white salaries throughout this period. It is no defense to the claims of a particular plaintiff over this 14 year period that in 1981, or at some other isolated time, he or she earned as much as the average white or some specific comparable white. The evidence in this case put in issue whether the W App. 47, 125, 148. 45/ App. 120, 130. - 44 - plaintiffs had been the victims of salary discrimination at any point during that 14 year period. Accordingly, the trial court was obligated to consider the salary of each plaintiff for this entire period, and to provide a remedy if discrimina tion occurred during any part of it. In light of the salary patterns discussed earlier, particular consideration should have been paid to the salaries of pre-1965 hires during the earlier years of the limitations period, and to the salaries of post-1965 hires during the period when they served as associate agents. This was not done. III. THE DEFENDANTS DISCRIMINATED AGAINST BLACK EMPLOYEES IN SELECTING COUNTY EXTENSION CHAIRMEN The county chairmen are the highest paid county level NCAES employees, averaging $4,000 a year more than the full agents. [App. 83). The primary responsibility for selecting county chairmen lies with the NCAES Director and three other state officials. They interview applicants for the position and usually recommend a single individual to the board of county commissioners of the county involved. (App. 60-61). State officials concededly have no objective standard by which they make these promotions; indeed, each official uses his own . 4 6/personal criterion and method of evaluation.— / Although the county commissioners have a right to reject the Extension 46/ App. 921-22. 45 Service's recommendation, that rarely occurs. NCAES documents refer to the chairmanship as "an appointive position by the Extension Director [that] requires the approval of the Board of County Commissioners." (App. 1769). The position of county chairman was created in 1962. The number of blacks and whites appointed since that time is as follows: Promotions to County Chairman 1962-1981— / Year White Bla< 1962-63 103 0 1964 1 0 1965 6 0 0 1967 5 0 1968 6 0 1969 9 0 1970 16 0 1971 3 1 1972 2 0 1973 5 0 1974 7 0 1975 11 0 1976 8 1 1977 8 0 1978 3 1 1979 16 1 1980 10 1 1981 (Oct.) 3 2 Total 227 6 47/ Blalock testified there were only 11 such rejections in a 12 year period. App. 792-98 In four of these cases, however, the county had not in fact rejected the Extension Service's proposed chairmen; three of the candidates withdrew and the name of the fourth was withdrawn by the Service itself. App. 792, 796; Tr. 1309. 48/ App. 1745. The appointment of a black in 1981 was de scribed at trial. Tr. 4011 These figures do not include whites, if any, promoted between May and October 1981. 46 Because of the experience requirements for the position, all but one of the individuals selected as county chairman were 49/promoted to that position from within NCAES,— and vir tually all were promoted from the position of full agent. (App. 1755-57). Throughout the recent history of NCAES blacks have accounted for approximately one-quarter of the full agents and one fifth of the professional work force, (App. 1562, PX 98), yet from 1962 to 1982, they have received only 2.6% of the promotions to county chairman, and prior to 1976 they won only .5% of the promotions. The record reveals in detail how the position of county chairman has remained virtually all-white. Not once in the history of North Carolina has a black been named to a county chairmanship for which a white male had applied. Of the six blacks who were named to that job over the last 20 years, four were appointed because no white had applied for the particular vacancy at issue. (App. 1736-42). These chairmanships were given to blacks, not because the Service recognized the par ticular black applicants were better qualified than their white competitors, but because there were no white competitors. The only occasions on which a black was appointed rather than a white applicant were in 1979 and 1981 when the white appli cants were women. (App. 1737). The historic exclusion of women from the position of county chairmen is even more striking than 49/ Dr. Hyatt, the former Director of the Extension Service, explained, "In most cases we like to fill these positions from people already within the organization." App. 485. 47 that of blacks; women account for almost half of the full agents, but only a handful of women have been named county chairman in the last 20 years.— ^ This pattern of discrimination is not surprising in light of the fact that the position of county chairman was originally created as a white position. In 1957 an advisory committee recommended that the white agricultural agent in each county be named "Chairman of the County Extension Group" and be given overall responsibility for the white branch of the 51 /Service;— the chief black agricultural agent was to assume similar administrative responsibility for the work of the black employees, but with no change in title. This proposal was implemented in 1962,— at a time when the Extension Service's work at the county level was still segregated into two autonomous racial branches. Until 1965 there was no county level official responsible for both black and white employees; while from 1962-64 the "county chairman" was responsible for county activities of the white branch, officials of the black branch reported to separate black district and state supervisors. When the merger occurred the state Director issued a policy statement to the effect that each of the 100 white county chairmen "would assume responsi- 50/ See, e.g., PX 48-49 (1 woman chairman in 1976), PX 98 (3 women chairmen in 1981). 51/ DX 34-A, p. 6; DX 34, pp. 71 ("County Director", "County Extension Chairman). 52/ GX 31, DX 52, DX 214. 48 bility for coordinating the total Extension program in his county." (DX 27, p. 4.) This order gave the new position of chairman of the integrated office in every case to the white director of the white branch, regardless of the skills, education and experience of the black official who had until then been the supervisor of the black branch. For seven years after the merger the possibility that a black might apply for the position of county chairman was min- mized by the simple expedient of not announcing when vacancies existed or were expected. "Potential candidates were informed of vacancies in many instances by word of mouth. They were asked by individual members of the Extension Service adminis tration to apply for such positions." (App. 135). Not until the fall of 1972, a year after this action was filed, did the defendant adopt a policy of disclosing publicly the existence of these vacancies. But both before and after 1972 the record of the Extension Service gave blacks good reason to believe that it would be futile to apply for promotion to county chairman; until 1976 only one black had been appointed as county chairman in the state's history, and he had won that position by default. Six black agents testified that they were deterred from applying because of the obvious futility of doing so.13/ There is no claim or evidence that the paucity of blacks 53/ App. 67. (Wright, 1960's; Lloyd, 1971), 68 (James, 1965; Payne, 1974); 135 (McNeil, 1969), 146 (Lloyd, 1971), 149 (Swann, 1975). 49 ever appointed to this position was due to any differences in the qualifications of blacks as a group. On the contrary, the trial court repeatedly noted that many among the named plain tiffs were well qualified for that job. (App. 120, 122 n. 7, 128). One unsuccessful black applicant had previously served as an acting county chairman. (App. 136). Three of the named plaintiffs initially rejected for appointment were ultimately named as county chairmen, (App. 131, 135, 136) but not until they sought a position for which no white male applied. The district court properly recognized that the disparity in the number of blacks and whites appointed as county chairmen, both before and after 1972, would " [sjtanding alone ... certainly create a prima facie case of discrimination." (App. 63) See Chisholm v. United States Postal Service, 665 F.2d 482, 494-95 n. 17 (4th Cir. 1981). The court, however, rejected that proof; it insisted that any analysis of the defendants' promo tion practices must disregard all promotion decisions made prior to 1972, and all vacancies for which no blacks had applied. (App. 61). Having thus drastically narrowed the scope of its inquiry, the court found that for the 18 vacancies that remained there were 18 black and 37 white applicants. It calcu lated that 13 of these 37 whites (35%) were successful, compared to 5 blacks (28%). (App. 61). This difference, it reasoned, was too small to justify a finding of intentional discrimination. (App. 61-62). This rather novel method of analysis is for several 50 reasons insufficient to refute the evidence of discrimination. The court's approach is founded on treating as irrelevant the appointment of whites to vacancies for which no blacks applied, yet the court insisted on treating as proof of non-discrimina tion the appointment of blacks to position for which no whites had applied. If the latter appointments are also disregarded, the success rates would be 13% for blacks and 35% for whites; that disparity would be far greater than the guideline the trial court itself believed a p p l i c a b l e ^ The court's statistical analysis, moreover, does not purport to account for the sig nificant number of instances in which blacks did not apply for these high paying jobs. The court disregarded testimony by blacks that they had been deterred from applying because of the evident futility of doing so; the district judge, relying on his own statistical analysis, concluded that any such fears of discrimination were baseless. (App. 36). But all of the black appointments relied on by the court occurred in 1976 or later; blacks before 1976 could only act on the basis of the Extension Service's actual record up until that time. Not a single black was appointed chairman for four years beginning in 1972, and at no time until 1979 was a black appointed to a chairmanship for which any white had applied. The trial court's strained statistical analyses, even if ac- 54/ The court thought the critical issue was whether the black selection rate was less than 80% of the white rate. Calculated in the manner described above the black selection rate is only 37% of the white rate. See Chisholm v. United States Postal Service, 665 F .2d 482, 495 n.22 (4th Cir. 1981). 51 cepted, suggests only that the defendants' discriminatory pol icies began to change in the late 1970's; even if that conclu sion is correct, it is hardly surprising that black agents, who had no way of predicting any such development but who were well aware of the Service's actual record of appointments, chose to act on the basis of past experience rather than speculation about future reform. The district court rejected the claims of twelve black named plaintiffs who asserted they had been denied promotion to chair man because of their race,— ^ and of four plaintiffs who as serted they had not applied for that position because they be lieved it would be futile to do so.— ̂ The dismissal of these individual claims came after, and was based in part upon, the court's erroneous disposition of the pattern and practice and class claims, and must for that reason be reversed. Sledge v. J.P. Stevens & Co., 585 F.2d 625, 637-38 (4th Cir. 1978). The court recognized that many of the black applicants were well qualified, but was unwilling to find discrimination in their re jection in favor of white males in the absence of proof of a general practice of discrimination. The record reveals, however, that blacks always lost when seeking a promotion for which a white male had applied, and compels the conclusion that there was 55/ App. 120-21 (Bazemore), 121-22 (Wright), 125 (McDaniel), 127-29 (Belfield), 130 (Payton), 131 (Cooper), 136 (Edwards), 138 (James), 139 (Grimes), 144 (Barber), 147 (Palmer), 150 (Murfee). 56/ App. 135 (McNeil), 143 (Stroud), 146 (Lloyd), 149 (Swann); see also _id. at 145 (Wright), 154 (Taylor). 52 just such a practice. Against that background the claims of all the qualified applicants must be upheld. Similarly, the court's erroneous rejection of evidence that blacks generally correctly believed it would be futile to apply for appointment as chairman necessarily colored and fatally taints its rejection of such futility claims on the part of the named plaintiffs. Here, as with its consideration of the salary claims, the district judge also failed to consider the full period of time to which these claims were relevant. In its opinion on the class claims the district court dealt almost exclusively with whether there was a practice of discrimination between 1972 and 1982. The court's conclusion that there was no discrimination rested entirely on the fact that 5 blacks were named county chairmen in or after 1976. Even if the court's method of analysis is accepted, it cannot provide a basis for such a finding for the years 1972 to 1975, when 25 whites and not a single black were appointed. The class claim decision, moreover, does not even purport to consider whether there was a practice of discrim ination between 1968 and 1972. Of the 16 individual plaintiffs, four presented claims arising between 1968 and 1971, and six asserted they had been victims of discrimination between 1972 and 1975. The stark evidence of discrimination to be found in the Extension Service's promotion policies in these years can not be refuted by resort to evidence of any change in policy in later years. EEOC v. American National Bank, 652 F.2d 1176, 1195 (4th Cir. 1981) . 53 IV. THE DISTRICT COURT ERRED IN REFUSING TO CERTIFY THIS CASE AS A CLASS ACTION In the proceeding below plaintiffs repeatedly but unsuccess fully sought certification of several plaintiff classes and one defendant class. In this appeal we urge that the district court erred insofar as it refused to certify classes consisting of: (1) all black employees of NCAES on or after November 18, 1971; (2) all black members and potential members of the NCAES 4-H and Extension Homemaker clubs on or after November 18, 1971; 57/ (3) all county commissioners in North Carolina who held that position on or after November 18, 1971. The classes of which certification were sought in the district court were somewhat broader, since the complaint contained some 5 8/claims which we are not pursuing on appeal. — ' Although the refusal to certify the more broadly defined classes was in our view also erroneous, that issue has been rendered moot by subsequent events. Most of the facts relevant to the dis puted class certification are not in dispute; the question on appeal is whether the trial court applied the correct legal standards in analysing those facts. 57/ Certification was sought for separate classes of actual and potential members of the two types of clubs. Since the class certification issues raised by the two proposed classes are identical we discuss them together. 58/ Certification was sought of a class of all present and potential recipients of NCAES services. App. 46. Since we do not press on appeal our claim of discrimination in the furnishing of such services, the propriety of the rejection of that claim is moot. 54 (1) The Class of Black Actual and Potential Club Members The size of this proposed class is clearly so great that the joinder was and is impracticable. As of 1980 there were 5399 blacks who belonged to all-black clubs in racially mixed neighborhoods. (GX 11). The number of black extension homemak ers is also in the thousands (GX 30), and virtually all of them are in all-black clubs. (See pp. 9-10, infra.) The potential black members of the 4-H and Extension Homemakers clubs are respectively, all black youth in North Carolina between the ages of 9 and 1 9— ^ and all black women over 21.— ^ The policies of NCAES regarding the establishment, per petuation, and servicing of all-white clubs are described in detail supra, pp. 6-17. The existence of uniform statewide practices dictated by state NCAES officals was not questioned by the district court. Although state officials may at times have consulted with, or taken into consideration the views of, county officials or staff, the final decisions were made at the state level. Similarly, individual agents seeking guidance as to their responsibilities in dealing with all white clubs con sulted directly with state officials (GX 185). Such practices were generally recognized to involve questions regarding NCAES obligations under Title VI, and the memorandum of understanding between NCAES and county officials placed authority for assur- 59/ Gx 28. There are over 300,000 blacks in this age group. 60/ GX 27. There are over 300,000 black women in this age group. 55 6 1/ing compliance with Title VI in the hands of NCAES personnel. — ' There is no claim or evidence that individual county offices adopted or were even authorized to adopt practices regarding their relationships with these clubs different from those mandated by state NCAES officials. The existence of these statewide practices presents issues regarding the proper construction and application of the Fifth and Fourteenth Amendments, Title VI of the 1964 Civil Rights Act, and the Title VI regulations and guidelines promulgated by the Department of Agriculture. The district court's opinion addresses these class-wide claims; although the opinion, in our view, reaches a mistaken conclusion as to the merits of these claims, it implicitly recognizes that what is at issue is the legality of a single set of practices affect ing the thousands of blacks in the proposed class. The proposed class representatives included black members of Extension Homemaker clubs and parents of black children who were members of 4-H clubs. The district judge did not deny that the claims of these plaintiffs were typical of those of the class they sought to represent, and did not question the competence of their counsel, whom he described as "exception ally able." (App. 48, n.7.). The district court apparently refused to certify the 61/ See Exhibit "A" to Brief in Opposition to Plaintiff-Inter- venor's Motion to Certify as a Class Action (filed January 23, 1975); exhibit appended to Reply Brief in Support of United States' Motion to Certify as a Class Action (filed February, 1975); DX 207. 56 class of actual and potential club members because there was no proof that either the plaintiffs or other blacks had been rejected by clubs because of their race. (App. 47-48). The court asserted that "presumably" plaintiffs sought to head "a class of black [s] allegedly denied membership in all white ... clubs" (App. 47). In light of this mistaken characterization of the nature of the class claim, the trial judge concluded that neither the plaintiffs nor anyone else belonged to the purported class. But the court's "presump tion" regarding the nature of that claim and the proposed class definition were mistaken; they reflected, not the claims actually asserted by the plaintiffs, but what the court thought ought to have been proved in order to establish liability. The actual issue in this case is not whether the all-white clubs reject black applicants on account of race, but what affirmative steps, if any, NCAES must require as a condition of state services and materials. A class action to litigate that issue is clearly appropriate. (2) The Class of Black NCAES Employees The proposed black employee class, although not as large as the club member class, was clearly sufficiently numerous to meet the requirement of Rule 23. The number of black professonal NCAES employees has consistently exceeded one hundred in any one year (PX 100; GX 95). The proposed class would be substantially larger, because there has been significant turnover ~ince 1971, with senior blacks retiring 57 and new black employees being hired. The claims which the named black employees seek to litigate on behalf of this class are (1) the legality of NCAES services to single race clubs, (2) the existence of salary discrimination against black NCAES employees, and (3) the existence of discrim ination in the promotion of employees to the position of 6 2 /county extension chairman. — ' With regard to the claim of salary discrimination, the question of fact common to the class members was whether NCAES had engaged in a practice of discriminating against blacks in fixing this key term of employment. Although the level of each county's contribution to NCAES employee salaries varied,— ^ the ultimate determination of the salary of each NCAES employee even at the county level, was made by state NCAES officials.— / Dr. Blalock, the Director of NCAES, tesitifed "I look at sal aries myself. I go over every individual salary each year at salary adjustment time . . . . " — '' When in 1971 an effort was made to eliminate the salary disparities rooted in past discrim 62/ Plaintiffs in the district court asserted a number of other discrimination claims which we are not pursuing on appeal. 63/ Blalock testified that NCAES was usually able to get the counties to pay whatever NCAES thought was their fair share of an agent's salary. Deposition of January 30, 1973, p. 37. 64/ App. 992-93, GX 159.1, pp. 36-44, 89-97; GX 151.1(b), pp. 94-97, 152-56; Deposition of Dr. Blalock, January 30, 1973, p. 86. 65/ Deposition of October 23, 1981, p. 44. 58 ination, this was undertaken as a state NCAES responsibility. (See pp. 26-27, supra.) In 1977, when there were allegations of similar disparities in the wages of NCAES employees in Meck lenburg County, county officals referred the matter to state NCAES authorities. (PX 90). State NCAES officals play a similarly dominant role in the selection of county chairmen. Those state officials announce each vacancy, receive and review each application, select the qualified applicants to be interviewed, conduct those inter views, and recommend the individual to be appointed. County officials retained a nominal right to reject the NCAES recom mendation, but in practice that rarely occurred. (See n.47, supra.) Occasionally NCAES would recommend several applicants to the county, but this too was uncommon. Whether there was a general practice by NCAES of discrim ination in salaries and in promotions to county chairman was thus a factual question common and critical to each named plaintiff and each member of the proposed class. Proof of the existence of such practices would be largely dispositive of the claims of both. The trial court recognized that these common questions were of controlling importance to the claims of every black employee. (App. 115, n.l). Far from disputing the existence of those questions of fact, the district court explicitly undertook to decide them, resolving on the merits the assertion that there was a pattern or practice of discrim ination in salaries. (App. 60-70). These critical common 59 questions of fact clearly warranted certification of the proposed class. The district court, however, believed that the decisions of this Court establish a per se rule forbidding under any circumstances the certification of a class action on behalf of employees in different offices: [T]he Fourth Circuit requires in employment discrimination cases that all the plaintiff representatives and all the class members must be from the same work facility ... Hill v. Western Electric Company. Inc., 596 F.2d 99, 102 (4th Cir. 1979)... . A representa tive plaintiff cannot represent ... employees in different facilities with the same kind of job. Hill, 596 F .2d at 102. In the instant case ... [t]he representa tive plaintffs of the putative class come from roughly thirty of the one hundred counties. In no sense can they be deemed to work within the same facility ... as each of the other black ... employees in the remaining seventy counties. (App. 24). This Court's decision in Hill established no such absolute prohibition; it merely found that on the particular facts of that case certification of a multi-facility class was inappropriate. The more recent decision in Stastny v. Southern Bell Telephone and Telegraph Co., 628 F„2d 267 (4th Cir. 1980), makes clear that whether a class action many cover several different offices or plants depends on the particular circumstances of each case. Stastny lists a variety of factors to be con'idered in resolving that issue. 628 F.2d at 277. Where supervisors at separate facilities enjoy 60 absolute autonomy, fix the terms and conditions of employment without consulting with and independent of any officials outside their own facility, and draw from different labor markets — in short, where the facilities have no more in common than ownership by the same organization — certification of a multi-facility class is inappropriate. Id. at 279. Such certification is warranted, on the other hand, if there is a claim of "statewide policy or practice, either subjectively or objectively administered, that effectively control [s] on a systematic basis local facility decisions in the challenged basis." at 279 n.19. In this case neither the determination of salaries nor the selection of county chairman was made by autonomous local officials; state authorities played a critical and usually controlling role in those decisions. The district court apparently believed as well that class certification was never appropriate in a case where the government was also seeking relief for the members of the purported class. Once the government was permitted to amend its complaint to allege a Title VII violation, the court reasoned, The cases proceed as one with the named plaintiffs and the government making common cause against the defendants. Thereupon for all intents and purposes the suit became a class action for it is now settled law that class action certification is inappropriate and un necessary in pattern and practice suits brought by the EEOC and the government to Title VII. General Telephone Co. v. 61 EEOC, 446 U.S. 318 (1980). If the govern ment prevails herein the relief granted can be as broad as any that could be granted in any private class action suit. (App. 49) (emphasis added). This refusal to permit private class actions because of the existence of a related government Title VII suit is clearly inconsistent with the decision in General Telephone. The Supreme Court refused to require class certification in government lawsuits because to do so would make the results of the government litigation binding on employees to whom Congress had given a separate right of action. In light of the "general intent to accord parallel or overlapping remedies against discrimination" ... we are unconvinced that it would be consistent with the remedial purpose of the statutes to bind all "class" members with discrimination grievances against an employer by the relief obtained under an EEOC judgment or settlement against the employer. This is especially true given the possible differences between the public and private interests involved. 446 U.S. at 333. The district court decision in the instant case forbidding certification because of the existence of a government suit has precisely the same effect condemned by the Supreme Court in General Telephone; employees who do not participate in the litigation as named plaintiffs can look only to the government action, not any private class action, for relief. (3) The Defendant Class If, as we urge, the district court erred in not certifying the plaintiff class of black NCAES employees, it erred as well in refusing to certify the defendant class of county 62 commissioners. Although NCAES played the dominant role in fixing salaries and selecting county chairman, the fact remains that county level extension workers were receiving paychecks from NCAES and the counties and serving to some degreee under the control of both.— ^ If blacks who were joint employees of NCAES and the counties were subject to employment discrim ination, both NCAES and the counties must be held liable for any resulting injury. It is irrelevant in such a case whether the administrative official who was empowered by both NCAES and the counties to regulate the terms and conditions applied to their joint employees, and who was thus the particular indi vidual immediately responsible for the discrimination, was on the payroll of NCAES or of a county. Regardless of who was paying his salary, that discriminatory official acted with the authority of both NCAES and the counties, and both are accountable for his conduct. Restatement of Agency (Second) §§ 140(c), 161, 161A(a )(ii), 165. The situation is no differ ent from that which would exist if the counties were to dele gate control over some aspect of their activities to a private party. See, e.g., Meredith v. Fair, 298 F.2d 696, 701-02 (5th Cir. 1962); Bell v. Georgia Dental Ass'n, 231 F.Supp. 299 (N.D. Ga. 1964). Since the counties face joint liability with NCAES for 66/ DX 207, "Memorandum of Understanding," p.3 ("The Board oT County Commissioners will ... [c]onfer and advise with the District and County Extension Chairman and Extension Advisory Counsel relative to county Extension programs ... Extension agents will follow county policies to office hours and holidays.") 63 any discrimination against county level extension employees, joinder of all the county commissioners would clearly be proper. In the instant case, however, there are several hun dred county commissioners, so many that joinder is clearly impracticable. Certification of a defendant class is thus appropriate if there are common questions of law and the other requirements of Rule 23 are met. In this case county liability need not be premised on particular distinct and independent practices by each county, but on the practical and legal relationships among the counties, NCAES, and the county level Extension employees. The questions of fact common to the defendant class are (1) whether NCAES officials engaged in the systematic discrimination described above and (2) whether the counties are as a matter of law jointly liable for that dis crimination. Whether there is joint liability depends on the structure of the relationship between the counties and NCAES. That relationship is the same for all the counties, being controlled by an identically worded Memorandum of Understanding executed by officials of each county. (DX 207). The three named county defendants, having entered into the same arrange ment with NCAES as the other 97 counties, were suitable class representatives. CONCLUSION For the above reasons the decisions of the district court should be reversed with instructions to (1) certify the case as a class action, (2) certify the defendant class - 64 - of county commissioners, (3) enter a finding of class-wide discrimination in fixing salaries and appointing chairmen, (4) order appropriate injunctive and back pay relief, and (5) enjoin NCAES service to single-race clubs unless they merge with single-race clubs of the other race in the same community or, where no such other clubs exist, take effective affirmative action to recruit members of the other race. Respectfully submitted, EDWARD D. REIBMAN 108 North Eighth Street Allentown, Pa. 18101 CRESIE H. THIGPEN, JR. Thigpen, Blue & Stephens Suite 214 Hallmark Building Raleigh, North Carolina 27601 JACK GREENBERG 0. PETER SHERWOOD ERIC SCHNAPPER Suite 2030 New York, New York 10019 Attorneys for Plaintiffs- Appellants 65 CERTIFICATE OF SERVICE I hereby certify that on this day I caused to be deposited in the United States mail, first class postage prepaid, two copies of the Brief for Plaintiffs-Appellants Bazemore, et al., addressed to: Wm. Bradford Reynolds David Marblestone Civil Rights Division Department of Justice Washington, D.C. 20530 Howard E. Manning, Jr. Manning, Fulton & Skinner Wachovia Bank Building Raleigh, North Carolina 27602 February 15, 1983 APPENDIX A Named Plaintiffs Hired Prior to July 1, 1965: Salary on 1/1/70 Agent (Average White Salary $10,871) Luther Baldwin $10,331 Fletcher Barber 9,666 Philip Bazemore 11,722 Fred Belfield 8,162 Chester Bright 9,240 Avant Coleman 8,443 Plese Corbett 10,330 Leonard Cooper 10,219 Richard Edwards 9,766 Cleo Greene 9,450 Clifton Grimes 8,370 Donald Ivey 10,140 Leroy James 9,860 George Koonce 7,730 Slayter Lloyd 8,510 George McDaniel 11,760 Booker McNeill 11,503 Iley Murfee 9,793 Hernando Palmer 10,748 Wiley Payton 8,217 Lloyd Peace 10,304 Henry Revell, Jr. 9,535 Hoover Royals 9,210 Ernest Short 8,290 John Spaulding 9,484 Chester Stocks 8,300 William Strowd 9,768 Earl Swann 10,354 Joseph Turner 8,939 David Waymer 10,054 Riddick Wilkins 9,718 Percy Williams 8,606 James Wright 9,035 Associate Agent (Average White Salary $9,876) 8,302 8,312 10,932 Calvin Hargrove Clarence Stockton W. F. Wright Assistant Agent (Average White Salary $8,796) Warren Barnes $8,182 Robert Lancaster 7,737 James West 8,634 Home Economics Agent (Average White Salary $9,893) Pennie Battle $8,870 Inez Foster 8,060 Mary Martin 8,086 Mary Parham 8,506 Esther Roscoe Winston 10,430 Jeanette Sherrod 8,470 Louise Slade 9,440 Minnie Taylor 8,480 APPENDIX B Named Plaintiffs Hired After July 1, 1965: Salary on 1/1/70 Assistant Agent (Average White Salary $8,796) Haywood Harrell $7,400 Roosevelt Lawrence 8,415 Clifton Parker 7,955 Cassius Williams 8,040 _1/ Associate Home Economics Agent (Average White Salary $8,553) Judy Wallace $7,570 Assistant Home Economics Agent (Average White Salary $7,852) Dorothy Mobley Hearne $7,150 Geraldine Ray 6,500 V July 1, 1970. Williams was on military leave in January, 1970.