Bazemore v. Friday Brief for Plaintiffs-Appellants P.E. Bazemore et al.

    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

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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.