Chisholm v. United States Postal Service Brief for Plaintiffs-Appellees
Public Court Documents
May 22, 1981
Cite this item
-
Brief Collection, LDF Court Filings. Chisholm v. United States Postal Service Brief for Plaintiffs-Appellees, 1981. 2c7c1b6e-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/9a5384b6-8514-4a9e-939c-f0a862112583/chisholm-v-united-states-postal-service-brief-for-plaintiffs-appellees. Accessed November 30, 2025.
Copied!
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NO. 80-1800
NAPOLEON CHISHOLM, et al. ,
v.
Plaintiffs-Appellees,
THE UNITED STATES POSTAL SERVICE, et al.,
Defendants-Appellants.
On Appeal Fran The United States District Court
For The Western District Of North Carolina
BRIEF FOR PLAINTIFFS-APPELLEES
JONATHAN WALLAS
Chambers, Ferguson, Watt,
Wallas, Adkins & Fuller, P.A.
951 South Independence Boulevard
Charlotte, North Carolina 28202
(702) 375-8271
LOUIS L. LESESNE, JR.
Gillespie & Lesesne
2060 First Union Plaza
Charlotte, North Carolina 28282
(702) 372-5700
JACK GREENBERG
BILL LANN LEE
BETH J. LIEF
Suite 2030
10 Columbus Circle
New York, New York 10019
(212) 586-8397
Attorneys for Plaintiffs-Appellees
ii:
1
2
2
-4
6
6
7
9
11
12
13
13
13
15
15
15
21
24
I N D E X
Table of Authorities ..................................
Issues Presented ......................................
Statement of the Case .................................
Administrative Proceedings ......................
Judicial Proceedings ............................
Statement of Facts ....................................
Organization of the Workforce ...................
Higher Level Promotional System .................
Initial Level Supervisory Examination ...........
Details to Higher Level Positions ...............
Discipline .......................................
Other Policies and Practices ....................
Individual Claims ................................
Judgment .........................................
Argument ..............................................
I. The District Court Had Power to Remedy
Racial Discrimination Extending Back to
March 24, 1970................................
A. Title VTI, and, Alternatively the Fifth
Amendment, Provide a Judicial Remedy for
Discrimination Back to March 24, 1970. ...
B. A Remedy for Classwide Continuing
Violation of Law Back to March 24, 1970,
Is Appropriate...........................
II. The Class Action Was Properly Certified and
Defined Pursuant to Rule 23, Fed. R. Civ. Pro.
A. The Class Was Property Certified.........
i
1. Exhaustion .................................. 25
2. Adequacy of Representation................. 27
B. The Scope of the Class Was Proper................ 32
III. The District Court's Findings of Fact Are Not
Clearly Erroneous.................................... 33
A. The Initial Level Supervisory Examination....... 33
B. Higher Level Promotions......................... 32-
C. Higher Level Details............................ 4-0
D. Discipline ...................................... 22
E. Individual Claims .............................. 23
IV. The Judgment Is Well Within the Equitable
Discretion of the Court.............................. 26
Conclusion .................................................. 50
Certificate of Service ...................................... 50
Page
- ii -
TABLE OF AUTHORITIES
Cases: Page
Acha v. Beame, 570 F.2d 57 (2d Cir. 1978) ........................ 22
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ................ 19, 21, 43,
46, 47, 48
Asbestos Workers, Local 53 v. Vogler, 407 F.2d
1047 (5th Cir. 1969) ........................................... 36, 39
Bachman v. Collier, 73 F.R.D. 300 (D. D.C. 1976) ................. 31, 33
Barnett v. W. T. Grant Co., 518 F.2d 543
(4th Cir. 1975)......................................... 32, 41, 46,
48
Barrett v. Civil Service Commission, 69 F.R.D.
544 (D. D.C. 1975) ............................................. 20, 33
Berman v. Narragansett Racing Association, 414
F.2d 311 (1st Cir. 1969), cert, denied,
396 U.S. 1037 (1970) ............ ............................... 31
Bradley v. Richmond School Board, 4l6 U.S. 696
(1974) ......................................................... 49
Bridges v. Brown & Williamson Tobacco Corp., 414
F. Supp. 371 (E.D. Va. 1976) ................................... 24
Brown v. Gaston County Dyeing Mach. Co., 457 F.2d
1377 (4th Cir.), cert, denied, 409 U.S. 982
(1972) ......................................................... 30, 41
Brown v. GSA, 425 U.S. 820 (1976) ................................. 5, 16, 18,
20, 21
Carlson v. Green, 64 L. Ed. 2d 15 (1980) ......................... 20
Carreathers v. Alexander, 587 F.2d 1046
(10th Cir. 1978) ............................................... 15, 16, 19
Castaneda v. Partida, 430 U.S. 482 (1977) ........................ 8, 34, 35
Chandler v. Roudebush, 425 U.S. 840 (1976) ....................... 5, 19
Chewning v. Schlesinger, 471 F. Supp. 767
(D. D.C. 1979) ................................................. 15, 18, 19
- iii -
Cooper v. Bell, 24 EPD 11 31,215 (9th Cir. 1980) ................... 23
Crawford v. Western Electric Co., Inc., 6l4 F.2d
1300 (5th Cir. 1980) ........................................... 42
Crockett v. Green, 388 F. Supp. 912 (E.D. Wis. 1975) .............. 33
Cyprus v. Newport News Gen. & Nonsectarian Hosp,
Ass 'n, 375 F. 2d 648 (4th Cir. 1967) ............................. 42, 48
Danner v. Phillips Petroleum Co., 447 F.2d 159
(5th Cir. 1971) ................................................. 26, 27
Davis v. Califano, 21 FEP Cases 272
(D.C. Cir. 1979) ................................................ 31
Davis v. Passman, 422 U.S. 228 (1979) .............................. 20
Day v. Matthews, 530 F.2d 1083 (D.C. Cir. 1974) ................... 44
Donaldson v. Pillsbury Co., 554 F.2d 825
(8th Cir.), cert, denied, 434 U.S. 856
(1977) .......................................................... 31
Dothard v. Rawlinson, 433 U.S. 321 (1977) ......................... 43
Dupree v. E.J. Brach & Sons, 77 F.R.D. 3 (N.D. 111. 1977) ......... 30
East Texas Motor Freight v. Rodriguez, 431
U.S. 395 (1977) ................................................. 28, 31
EEOC v. Chesapeake & Ohio Railway, 577 F.2d
229 (4th Cir. 1978) ............................................. 38
EEOC v. General Electric Co., 532 F.2d 359
(4th Cir. 1976).................................................. 25, 26
EEOC v. Radiator Specialty Co., 610 F.2d 178
(4th Cir. 1975) .............................................. 36, 38
EEOC v. United Virginia Bank, 615 F.2d
147 (4th Cir. 1980) .......................................... 8, 38
Ellis v. NARF, 404 F. Supp. 391
(N.D. Cal. 1975) ................................................ 26
FTC v. Ruberoid Co., 343 U.S. 470 (1952) .......................... 47
Franks v. Bowman Transportation Co., 424
U.S. 747 (1976) ................................................. 30, 47
Franks v. Bowman Transportation Co., 495 F.2d
398 (5th Cir. 1974) ............................................. 29
Page
Clark v. Olinkraft, Inc., 556 F.2d 1219
(5th Cir. 1977) ............................................. 22
Furno Construction Corp. v. Waters, 438
U.S. (1978) ............... 43
Gamble v. Birmingham So. R.R. Co., 514
F.2d 678 (5th Cir. 1975) .......................................... 26
Godblatt v. Hughes Tool Co., 63 F.R.D. 370
(S.D. Tex. 1972) .................................................. 33
Graniteville Co. v. EEOC, 438 F.2d
32 (4th Cir. 1971) ................................................ 26
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ....................... 39, 47
Hagans v. Lavine, 415 U.S. 528 (1974) ................................ 20
Hanson v. Hoffman, 21 FEP Cases 1645
(D.C. Cir. 1980) .................................................. 20
Harvey v. Int'l Harvester Co., 58 F.R.D. 47
(N.D. Cal. 1972) .................................................. 35
Hawkins v. North Carolina Dental Society, 355
F.2d 718 (4th Cir. 1966) .......................................... 42
Hazelwood School District v. United States,
433 U.S. 299 (1977) .............................. 8, 34, 35, 37, 38
Henderson v. Defense Contract Administrative
Services, 370 F. Supp. 180 (S.D. N.Y. 1973) ...................... 18
Hill v. Western Electric Co., 596 F.2d
99 (4th Cir. 1979) ................................................ 24, 38
IMPACT v. Firestone, 24 FEP Cases 572
(N.D. Fla. 1980) .................................................. 24
International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977) ...................... 32, 35, 36, 37,
39, 40, 41
James v. Stockham Valves, 559 F.2d 311 (5th Cir. 1977) .............. 49
Jenkins v. Home Ins. Co., 24 FEP Cases 990
(4th Cir. 1980) ................................................... 22
Johnson v. Georgia Highway Express, Inc., 417 F.2d
1122 (5th Cir. 1969) .............................................. 31
Johnson v. Railway Express Agency, 421 U.S. 454
(1975) ............................................................ 20
Page
Friend v. Leidinger, 588 F.2d 6l (4th Cir. 1978) ................... 34
v
Page
Jones v. Milwaukee County, 68 F.R.D. 638
(E.D. Wis. 1975) .............................................. 33
Keller v. Hills, 73 F.R.D. 10-(N.D. Ga. 1976) ................... 31, 33
Koger v. Ball, 497 F.2d 702
(4th Cir. 1974) ......................................... 15, 16, 18, 19
Lewis v. N.L.R.B., 22 EPD U 30,710 (S.D. Tex, 1979) ............. 31
Louisiana v. United States, 380 U.S. 145 (1965) ................. 45
#
Love v. Pullman, 404 U.S. 522 (1972) ............................. 27
McBroom v. Western Electric Corp., 7 EPD
11 9347 (M.D. N.C. 1974) ....................................... 28
McBroom v. Western Electric Co., 429 F. Supp. 909
(M.D. N.C. 1977) .............................................. 24
McDonnell Douglas v. Green, 411 U.S. 792 (1973) ................. 43
McLaughlin v. Hoffman, 547 F.2d 918
(5th Cir. 1977) ................................................ 30, 31
MEAN v. Fletcher, 14 FEP Cases 10007
(D. D.C. 1976) ................................................ 31
Moody v. Albemarle Paper Co., 474 F.2d 134 (1973)
vacated and remanded on other grounds,
422 U.S. 405 (1975) ........................................... 47
Moore v. City of San Jose, 615 F.2d 1265
_ (9th Cir. 1980) ............................................... 19
Morton v. Mancari, 417 U.S. 535 (1974) .......................... 18
Moss v. Lane Co., 471 F.2d 853
(4th Cir. 1973) ............................................... 30
Oatis v. Crown Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968) ............................................... 28
Parham v. Southwestern Bell Tel. Co.,
433 F.2d 421 (8th Cir. 1970) .................................. 34
Parson v. Kaiser Aluminum & Chemical Corp.,
575 F.2d 1374 (5th Cir. 1978) ................................. 40
Patterson v. American Tobacco Co., 535
F.2d 257 (4th Cir. 1975), cert, denied,
425 U.S. 935 (1976) ........................................... 31
- vi -
Page
Patterson v. American Tobacco Co., 586
F.2d 300 (4th Cir. 1978) ....................................... 22
Patterson v. American Tobacco Co., 24 FEP
Cases 531 (4th Cir. 1981), pending on
cert, on other issues, 49 U.S.L.W. 3648 (1981) ................ 22
Payne v. Travenol Laboratories, Inc., 565
F.2d 895 (5th Cir.), cert, denied, 434
U.S. 835 (1977) ................................................ 47
Penn v. Schlesinger, 490 F.2d 700 (5th Cir. 1973) ................ 20
Penn v. Schlesinger, 497 F.2d 970
(5th Cir. 1974) (en banc) ...................................... 20
Pittman v. Anaconda Wire & Cable Co., 408
F. Supp. 286 (E.D. N.C. 1976) .................................. 21, 32
Provident Tradesmen B. & T. Co. v. Patterson, 390
U.S. 102 (1968) ................................................ 49
Redmond v. Commerce Trust Co., 144
F.2d 140 (8th Cir.) cert, denied,
323 U.S. 776 (1944) ............................................ 31
Reed v. Lockheed Aircraft Corp., 613
F.2d 757 (9th Cir. 1980) ....................................... 22
Rich v. Martin Marietta Corp., 522 F.2d
333 (10th Cir. T975) ........................................... 22
Robinson v. Lorillard Corp., 444 F.2d 791
(4th Cir.), cert, denied, 404 U.S. 1006 (1971) ................ 40, 49
Rowe v. General Motors Corp., 457 F.2d 348
(5th Cir. 1972) ................................................ 41, 42
RWDSU, Local 194 v. Standard Brands, 24 FEP Cases
409 (N.D. 111. 1981) ........................................ 24, 32, 33
Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.
1970) ................................................ 26
Schmidt v. Lessard, 414 U.S. 474 (1974) .......................... 47
Sherrill v. J. P. Stevens & Co., 551 F.2d 308
(4th Cir. 1977), aff’g, 410 F. Supp. 770
(W.D. N.C. 1975) ............................................... 47
Singleton v. Wulff, 428 U.S. 106 (1976) .......................... 49
- vii -
Sinyard v. Foote & Davies, 13 FEP Cases
1257 (N.D. Ga. 1975) ........................................... 24
Sledge v. J. P. Stevens & Co., Inc.,
585 F.2d 625 (4th Cir. 1978) ................................ 43, 46, 47,
48,
Smith v. Trojan, 520 F.2d 492
(6th Cir. 1975) ................................................ 34
Social Services U., Local 535 v. Santa Clara,
609 F.2d 944 (9th Cir. 1979) ..................... ............. 30
Stastnyv. So. Bell Tel. & Tel. Co.,
628 F.2d 267 (4th Cir. 1980) ................................... 31
Teal v. State of Connecticut, 25 FEP Cases 529
(2d Cir. 1981) ................................................. 34
Texas Dept, of Community Affairs v. Burdine,
49 U.S.L.W. 4214 (March 4, 1981) ............................... 44
United States v. County of Fairfax, 629
F.2d 932 (4th Cir. 1980) ....................................... 48
United States v. Hunter, 459 F.2d 205
(4th Cir.), cert, denied, 409 U.S.
934 (1972) ..................................................... 48
United States v. Ironworkers Local 86, 443 F.2d 553
(9th Cir. 1971) ................................................ 46
United States v. Local 38, IBEW, 428 F.2d
144 (6th Cir.), cert, denied, 400 U.S.
943 (1970) ..................................................... 48
United States v. Texas Educ. Agency, 429 U.S.
990 (1976) ..................................................... 20
United States v. Warwick Mobile Homes Estates,
Inc., 558 F.2d 194 (4th Cir. 1977) ............................. 47, 48
United States v. W. T. Grant Co., 345 U.S.
629 (1953) ..................................................... 48
Valentino v. USPS, 25 FEP Cases 24
(D. D.C. 1981) ................................................. 35
Walker v. Kleindienst, 357 F. Supp. 749
(D. D.C. 1973) ................................................. 18
Wetzel v. Portney, 548 F.2d 489 (4th Cir. 1977) .................. 20
Wetzel v. Liberty Mut. Ins. Co., 508 F.2d
239 (3d Cir. 1975) ............................................. 23- 28
Page
viii -
White v. Carolina Paperboard Corp., 564
F.2d 1073 (4th Cir. 1977) ...................................... 30
Williams v. Norfolk & Western Ry. Co., 530
F.2d 539 (4th Cir. 1975) ....................................... 22
Wright v. National Archives, 21 FEP Cases 8
(4th Cir. 1976) ................................................ 44
Constitutional and Statutory Provisions:
Fifth Amendment, U.S. Constitution ............................ 1, 4, 5, 15,
20, 21, 48
5 U.S.C. § 5596 ................................................... 16
5 U.S.C. § 7201 ................................................... 16
42 U.S.C. § 1981 .................................................. 4, 5
42 U.S.C. § 2Q00e ................................................. Passim
42 U.S.C. § 2000e-5(e) ............................................ 23
42 U.S.C. § 2000e-5(g) ............................................ 19
42 U.S.C. § 2000e-l6 .......................................... 4, 15, 18, 23
Civil Rights Act of 1964, Pub. L. No. 88-352,
§ 701(h) , 78 Stat. 241 ........................................ 16
N.C.G.S. § 1-52(1) ............................................... 21
Other Authorities:
E.O. 11478 .................................................... 2, 15, 16, 18
5 C.F.R. Part 713 ............................................... 23, 24, 26
29 C.F.R. § 1613.601 et se£...................................... 20, 26, 44
Rule 23, Fed. R. Civ. Pro......................................... 32
Rule 42, Fed. R. Civ. Pro......................................... 29
Page
Weahkee v. Norton, 621 F.2d 1080 (10th Cir. 1980) ............... 23
- ix -
Page
Advisory Committee Notes, Proposed Federal
Rules of Civil Procedure, 39 F.R.D. 98
(1966) ......................................................... 32
Federal Personnel Manual, ch. 335-6 ................................ 44
H. R. Rep. No. 238, 92nd Cong., 2d Sess.
Reprinted in 1972 U.S. Code Cong.
Admin. News 2137 ............................................... 17
11 Wright & Miller, Fed. Pract. & Pro.,
§ 2955 (1973) ................................................ 47
- x
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NO. 80-1800
NAPOLEON CHISHOLM, et al.,
Plaintiffs-Appellees,
v.
THE UNITED STATES POSTAL SERVICE, et al.,
Defendants-Appellants.
On Appeal From The United States District Court
For The Western District Of North Carolina
BRIEF FOR PLAINTIFFS-APPELLEES
Issues Presented
1. Whether black federal employees have a judicial remedy for
equal employment opportunity prior to March 1972 in an action alleging
and demonstrating continuing violations of Title VII and, alternatively,
the Fifth Amendment where an administrative charge was pending on the
effective date of Title VII (March 24., 1972).
2. Whether the district court abused its discretion in certify
ing a class action of black employees subject to the demonstrated
discriminatory promotional system of the U. S. Postal Service in
Mecklenburg County, North Carolina, including the promotion process,
details, the use of written tests, and discipline.
3. Whether the district, court's meticulous findings of fact are
clearly erroneous.
4. Whether the district court abused its discretion in framing
injunctive relief carefully tailored to provide a remedy for the spe
cific violations found.
~k /Statement of the Case—
This is an appeal from a judgment that the U. S. Postal Service
in Mecklenburg County (hereinafter "USPS") subjected its black employees
to continuing violations of Executive Order 11478, Title VTI and, alterna
tively, the Fifth Amendment.
Administrative Proceedings
On March 15, 1972, Napoleon Chisholm, a black mail carrier, ini
tiated an administrative charge of discrimination pursuant to Executive
Order 11478 and implementing regulations of the U. S. Civil Service
Commission (PX 1, p. 40). His formal complaint of discrimination, filed
March 24, 1972, stated he was discriminatorily denied consideration for higher
level positions of financial examiner and budget assistant, and "[t]hat
such denial of equal opportunity for black employees in relation to pro
motion in the U. S. Postal Service, Charlotte, N. C. is a continuing
discriminatory practice" (M.O. 4). Chisholm gave as the date of the
alleged discrimination, "[sjpecifically: March 4, 1972, and March 13,
1972," when two white employees were selected over him, and "[gjenerally,
1960 through present time" (Jd.). He further alleged that black employees
were denied promotions to supervisory positions, excluded from promotion
advisory boards and denied details to supervisory and other higher level
jobs (M.O. 4-5). A USPS investigation was conducted (PX 1, p. 43). The
*/ The Memorandum Opinion is referred to as M.O.
- 2 -
investigation included, inter alia, statistical and other data, by race,
for December 1, 1970, through November 30, 1971, of work force by grade
levels, promotions, rural carriers, details, training, discipline,
recruitment, assignments, and initial level supervisory examination
data (including test results, candidates considered and supervisors
selected) (PX 1, pp. 56-68). Promotions from April 1, 1971, through
March 31, 1972, were also analyzed. (PX 1, pp. 69-72)
A hearing was held limited to the denial of the two positions
(PX 1, p. 16). The Civil Service Conmission examiner found that the
positions permitted substitution of education for "specialized exper
ience" in accounting at required grade levels (PX 1, pp. 80, 85) and that
Chisholm had sufficient college credits to qualify for finance examiner
(PX 1, p. 26). Evidence was presented that (a) "specialized experience"
was improperly waived for white employees applying for similar jobs (PX
1, pp. 27-29), (b) black employees were denied details to higher level
jobs which often led to promotion (PX 1, pp. 167-168, 224-), although
management argued that only employees who passed the initial level super
visory examination were eligible for details (PX 1, pp. 122, 168),
and (c) black employees were excluded from serving on promotion advisory
boards (PX 1, p. 160). The examiner decided, inter alia, that Chisholm
was denied consideration for finance examiner because of race, that
qualification standards were inconsistently applied, and that
Chisholm "be given priority consideration for promotion to the first
available position for which he applies in which he meets the minimum
qualifications" (PX 1, p. 30).
USPS adopted the examiner's decision and recommendations (PX 1,
p. 12). Chisholm appealed to the Civil Service Commission, stating that
- 3
"on behalf of all of the minority employees in the Charlotte, N. C. Post
Office and myself I am appealing to you for equitable relief from the
practices of discrimination against the minority employees by manage
ment in the Charlotte, N. C. Postal Office." The Board affirmed (PX 1,
p. 9, M.O. 6a-7).
It is undisputed that Chisholm raised classwide issues of continuing
discrimination, and that both USPS and the Civil Service Cormdssion ignored
them (May 29, 1975, opinion, M.O. 6, 7).
Judicial Proceedings
On June 27, 1973, Chisholm timely filed this class action to enforce
§ 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, 42 U.S.C.
§ 1981 and the Fifth Amendment (Compl., A. Compl.). Five other black
Charlotte Post Office employees moved to intervene and filed a complaint
1/
as plaintiffs and*class representatives (Mot, Compl.). USPS raised
numerous procedural and jurisdictional objections. On May 29, 1975, the
court ordered that the action may proceed as a trial de novo under Title
VII; alternative jurisdiction exists under 42 U.S.C. § 1981 "and, possibly,
the Fifth Amendment"; a class was conditionally certified of black employ
ees and applicants at "the Charlotte-Mecklenburg County branch" of USPS;
and intervenors accepted as plaintiffs for all purposes (Order). The
rulings were certified for interlocutory appeal and all discovery stayed
(Id.). USPS sought, and this Court granted leave to appeal.
Briefing of the appeal was stayed pending Supreme Court review of
related cases. Eventually, the parties agreed that the trial de novo
1/ USPS is wrong that intervenors did not seek to represent the class
of black employees. Brief for Appellants, p. 3 (hereinafter Brief).
The complaint in intervention specifically incorporates the complaint's
class allegations (A. Compl, I. Carpi).
4 -
ruling should be affirmed in light of Chandler v. Roudebush, 4-25 U.S.
84-0 (1976), and that the § 1981 ruling should be reversed in light of
2/
Brown v. GSA, 425 U.S. 820 (1976). USPS briefed class action and inter
vention issues. Two years after filing, the appeal was dismissed on
plaintiffs' unopposed motion, and the case remanded for further proceed
ings (Mot., Resp., Order).
The case was tried in August 1979. At the close of trial, the
court preliminarily found the promotional system and a range of sub
sidiary and related employment practices discriminatory, and directed the
parties to attempt to settle the case (M.O. 8). The parties could not
agree. Thereafter, on June 23, 1980, the court issued a memorandum of
decision outlining soecific findings, and directing the parties to file
1/
proposed findings of fact and conclusions of law (Memo). A judgment and
2/ USPS is wrong that plaintiffs waived Fifth Amendment jurisdiction.
Brief, 4, 25. The lower court had not definitively ruled on Fifth Amend
ment jurisdiction (Order). The brief filed by USPS states: "On the basis
of Brown v. GSA, ... the district court's decision that this case may
proceed upon the alternative basis of 42 U.S.C. § 1981 should be re
versed." Brief for Appellants, 4th Cir. Nos. 75-2068, 2069
Plaintiffs' brief states that it "agrees with the government ... that
the decision that this case may proceed under 42 U.S.C. § 1981 should be
reversed in light of Brown v. General Services Administration, supra."
Brief for Appellee, p. 12, n. 13
USPS did not rely on any waiver. On the eve of trial, USPS moved
to dismiss for lack of jurisdiction insofar as the action is brought
under any provision other than Title VII, and did not mention any waiver
(May 25, 1979, Mot.). The court below found no waiver.
3/ The court generally adopted plaintiffs' proposed findings and con
clusions with modifications, and several of USPS' class findings (Aug.
28, 1981 Memo). USPS' findings on individual cases and conclusions of
law were rejected because they were inconsistent with the memorandum of
decision (id.). USPS filed no proposed judgment.
- 5 -
findings of fact and conclusions of law were issued on October 3, 1980 (Judg
ment, M.O.) This appeal followed.
Statement of Facts
The facts are set forth in the lower court’s meticulously detailed
and comprehensive memorandum opinion. This discussion is lim
ited to describing certain parts of the record relevant to this appeal.
Organization of the Workforce
The USPS in Mecklenburg County functions as a single personnel
system (M.O. 8-10). It is part of the larger Charlotte Sectional Center,
and personnel decisions made by supervisors and managers are reviewed
and approved by a single personnel office and Sectional Center Manager
(id.). There is undisputed substantial movement by employees between
4/
various functional areas and offices. (Id.) Employees are normally hired
into craft positions, and promotion to higher level jobs is generally an
"in-house" process from this internal labor pool (M.O. 10-13). Supervi
sory positions, which are the bulk of higher level jobs, are usually
filled by promotion of regular craft employees, and an employee first must
be an initial level supervisor before moving to a higher level supervisory
4/ USPS in Mecklenburg County consists of the Charlotte Post Office,
a first class post office with facilities both inside and outside
Charlotte, and several small associate offices in the County outside
Charlotte. Id. Chisholm, for instance, worked as a city carrier and in
the finance division in the Charlotte Post Office, and as an officer-in
charge in the Matthews associate office in the County outside Charlotte.
(M.O. 68-72)
The finding of overall responsibility of Sectional Center management
for personnel actions of all USPS facilities in Mecklenburg County is well
supported. (E.g., PX 3, PX 21, pp. 7-9, 24—29.) USPS is wrong that asso
ciate offices are independent. Brief, 6-7. The finding, in any event,
is admittedly, id., not clearly erroneous.
- 6 -
or management position (Id.).
It is undisputed that black employees were disproportionately
concentrated in lower level craft levels, and largely absent from upper
levels through the date of filing of the action (M.O. 14— 17).
Higher Level Promotional System
The court found that the facially neutral promotional system was
discriminatory in whole and in part. (M.O. 30-4-3) The following selec
tion devices were found to be discriminatory components of the promo
tional system:
a. The initial level supervisory examination, which was used for
detailing and promotion to initial level supervisory positions, for
detailing and selection to other higher level positions, as a substitute
for experience requirements and generally by promotion advisory boards
(M.O. 18, 21-22, 35, see generally, 19-28);
b. Detailing to higher level positions for training and to gain
"specialized experience" and "general experience" for eventual promotion
to such positions (M.O. 39-40, 42-43, 53-60);
c. Waiver of experience requirements to favor whites (M.O. 35-36);
d. Subjective, standardless and arbitrary promotion advisory board
and postmaster determinations favoring whites (M.O. 36-41);
e. Deviation from procedures in order to avoid selection of black
employees (M.O. 41);
f . Discipline practices which disproportionately penalized black
employees and their prospects for promotion (M.O. 60-63); and
5/ The court found that initial level supervisory positions were desig
nated Postal Service pay levels 7-9 were redesignated Postal Management
Schedule levels 15-17 after March 5, 1973. Higher level non-supervisory
positions continued to be designated Postal Service 7 and above. (M.O.
11, 12, see 106-107). USPS is wrong that the court was not aware of
these designations. Brief, p. 18.
1/
- 7 -
USPS admitted that it had discriminated against black employees
prior to 1970, and all evidence, statistical and testimonial, is con
sistent (E.g., M.O. 117, 14— 16, 43-47.). With respect to the post-1970
period "[rjegardless of whether the court utilizes the statistics
asserted by plaintiffs or defendants, a prima facie case of discrimina
tion is presented" (M.O. 106). Using defendants' figures, of 114 promo
tions to levels 7-9 (levels 7-15 after March 1973) during the 1970-1975
period, only 14 went to black craft employees although the relevant labor
pool of employees level 6 and below was 30% black (M.O. 106-108). This
statistical disparity is 4.13 standard deviations from the expected num
ber of 34.2 promotions black craft employees would have received had
there been a non-discriminatory system (id.), and the disparity presents
a compelling case of discrimination. See, Castenada v. Partida, 430
U.S. 482, 496 (1977); Hazelwood School District v. United States, 433
U.S. 299, 311 (1977); EEOC v. United Virginia Bank, 615 F.2d 147 (4th
Cir. 1980). If plaintiffs' figures are adopted, the promotion picture
6/
shows more discrimination against blacks. The court also found that
only 5 of 50 upper level promotions above level 9 (above level 15 after
March 1972) went to blacks from March 24, 1972, to December 31, 1975,
and that post-1975 figures show some improvement as a result of litiga
tion pressure (M.O. 107). The court also found that the labor pool
6/ USPS is wrong that the court relied on plaintiffs' statistics,
which it contends are unreliable. USPS plainly ignores that the court
applied the Castenada analysis to defendants' figures and found compel
ling discrimination (M.O. 106-108). Plaintiffs' statistics, even taking
account of defendants' objections, show discrimination (M.O. 43-52)-
The analysis of statistics is plainly not clearly erroneous.
g. Exclusion of black employees from management training and
rural carrier positions (M.O. 64-66).
- 8 -
was discriminatorily composed, would perpetuate prior discrimination,
and was not justified by any showing of business necessity (M.O. 108-110,
7/
see 51b-52).
The statistical proof was buttressed by undisputed evidence that
selection procedures were standardless, subjective, unreviewable, and
often wholly ignored in favor of whites (M.O. 35—41, 57, 111-113).
There was also a substantial record that plaintiffs and class members were
denied numerous promotions to all levels and kinds of higher level posi
tions from 1970 through 1978. E.g., Chisholm (M.O. 58-72), Rushing (M.O.
72-75), Hart (M.O. 75-77), McCombs (M.O. 77-79), Holman (M.O. 79-81),
Little (M.O. 81-82), Pettice (M.O. 82-83), Lee (M.O. 84-85), Dixon (M.O.
85-87), McGill (M.O. 87-89), Yongue (M.O. 90), Talbert (M.O. 91),
McCullough (M.O. 92), Morgan (M.O. 92-93), and Harrison (M.O. 94-95).
Findings in two-thirds of these individual cases are not disputed.
Initial Level Supervisory Examination
From, at least, 1969 to 1975, USPS established initial level
supervisory promotion registers based on craft employees' scores on
several versions of an OS 100 initial level supervisory examination
(M.O. 20-28, 114-116). The examination had severe adverse inpact and
USPS made no attempt to show that the examination was a valid selection
device or the device with the least adverse inpact (Id.). The examination
7/ The involvement of district office management in certain promotions
is irrelevant. See, Brief, pp. 10, 12, in light of USPS' concession that
the Postmaster General is a proper defendant. Brief, 24.
8/ USPS is wrong that the court did not distinguish between several
versions of the examination. Brief, p. 8. The court discussed and
found that each examination had severe adverse impact using both chi
consisting of lower high level employees for these upper level positions
9
was used as a pass-fail mechanism: only those passing were put on the
initial level supervisory promotion register. However, only employees
in a top 15 percent "zone of consideration" or employees in rank order
on the register were then considered,; practices that aggravated the
adverse impact of the test and were unjustified (Id.). It is undisputed
that the initial level supervisory register was used for more than
detailing and promotion to initial level supervisory positions. The register
was also used as a criteria for detailing and selection to other upper
level positions not formally requiring the examination, as a substitute
for otherwise required experience and for the general use of promotion
9/
advisory boards (M.O. 18, 21-22). These findings are not clearly
erroneous.
8/ Continued
square analysis and the "four-fifths rule" and that each examination was
unvalidated (M.O. 20-28).
USPS also suggests that the court ignored other tests, Brief, 8,
but the court expressly noted that separate tests were used to fill initial
level supervisory jobs in maintenance (custodial), building maintenance
and motor vehicle areas, where there are few supervisory positions (see
M.O. 11, 20).
9/ USPS is wrong that this finding has no record support. Brief, pp.
9-10. The very finance examiner position sought by Chisholm, for example,
permitted substitution of the examination score for specialized experience.
(PX 1, p. 80; DX 12, Exh. 1, p. 3; T.R. 623-624-.) The qualifications
analysis work sheet given to promotion advisory boards for use in filling
all higher level vacancies has a place for test data (Tr. 601, PX 12,
Exh. 8.).
In any event, these findings are unrebutted and uncontradicted.
USPS presented no contrary evidence at trial.
10
The district court made findings that the following black employees
were discriminated against as a result of failing the examination or
not scoring high enough to be considered between 1970 and 1976, thus
being denied details, promotions and other benefits: Chisholm
(M.O. 68, 70), Hart (M.O. 75), McCombs (M.O. 77), Holman (M.O. 79-80),
Little (M.O. 84-), Dixon (M.O. 86), Talbert (M.O. 91), McCullough
10/
(M.O. 92), and Morgan (M.O. 93).
Details to Higher Level Positions
Details or temporary assignment of craft employees by their imme
diate supervisors to higher level positions provide training, enable
a craft employee to meet specialized and general experience require
ments for eventual promotion, and entitle an employee to receive higher
level pay (M.O. 53). While details to initial level supervisory jobs
were theoretically required to be made from the supervisory register,
there were in fact no written guidelines, no review procedures, and abuse
in favor of white employees (M.O. 54— 57, 113). USPS and Civil Service
Commission investigations revealed the same thing. (Id.) The court
found that "[w]hite supervisors and managers have tended to detail their
white 'buddies' to upper level supervisory and managerial jobs thereby
grooming such buddies for the permanent vacancies" (M.O. 55). The court
10/ USPS is wrong that certain initial level supervisory promotion sta
tistics show no discrimination. Brief, p. 8. The court, however, found
that black employees were denied other benefits: The statistics do not
include details and do not include promotion to jobs other than initial
level supervisory positions and cover only the March 1972-1974 period.
In any event, USPS' figures show there was disparate impact in initial
level supervisory jobs in 1972-1973 when only one of 10 such
jobs went to a black employee (M.O. 116).
- 11 -
found numerous undisputed specific examples of whites being preferen
tially detailed for long periods over black employees and obtaining
promotions from 1970 to 1978 (M.O. 55-56). E.g., Chisholm (M.O. 68, 70),
Rushing (M.O. 73-74), Hart (M.O. 76), Holman (M.O. 80-81), Pettice (M.O.
82-83), McCullough (M.O. 92). In addition, blacks were denied details
because they failed the discriminatory supervisory examination. See, p. 7-11,
supra. Statistical evidence beginning in 1965 shows graphically the
exclusion of blacks, particularly from the better upper level details
11/
(M.O. 58-60).
Discipline
Discipline was significant not only because of its immediate effects,
which include termination, suspension, and loss of wages, but as part of a dis
criminatory environment (M.O. 60-64, 118). Uncontradicted evidence demon-
4
strates that from January 1970 through September 1978, the ratio of black
employees to white employees involuntarily separated was more than 2 to 1
11/ USPS is wrong that there was no evidence of disproportionate
selection for details after 1973. Brief, pp. 12-13. After March 1973,
USPS statistics lumped together all details no matter what their level
(M.O. 60). The court, therefore, while noting some improvement, found
it inpossible to determine if the best upper level details were still
given disproportionately to whites, as the pre-1973 statistics plainly
show. (Id.) In addition, the court relied on unrebutted non-statistical
evidence which showed continuing discrimination in details after 1973.
Supra.
USPS is also wrong that lumping statistics at all levels for 1972
and 1973 helps them. Brief, p. 12. The statistics still show discrim
ination. Moreover, non-statistical evidence showed that white employees
got the better and longer details (M.O. 54-56). USPS did not dispute
this evidence. Nor did USPS attempt to show that blacks were unquali
fied for details, which, in any event, are training assignments (M.O.
53-54) •
12 -
although blacks are only 30% of the workforce (Id.). Pre-suit, 86.4-%
(38 of 44) of all employees discharged were black. Statistics for other
disciplinary actions in 1975 and 1976 also show disproportion of black
employees. The uncontradicted record also shows that there were no
objective criteria, guidelines or adequate review procedures for dis
ciplinary actions. Findings in individual cases are also unrebutted.
Chisholm (M.O. 72), Mosley (M.O. 63, 95-96), Brooks (M.O. 63), Todd (M.O.
63), McGill (M.O. 64, 89), and Mitchell (M.O. 85).
Other Policies and Practices
USPS does not raise any questions as to uncontradicted findings
that: Black employees, including Chisholm, were denied the opportunity
to participate in the management training program (M.O. 64-65). The
administrative process for dealing with complaints of discrimination was
ineffective (M.O. 65-66, 119). Black employees, including Mosely, were
denied rural carrier positions, which were all white until the eve of
trial (M.O. 66-67, 95).
Individual Claims
With respect to individual cases, plaintiffs rely on the court's
extensive findings of fact, which have substantial support in the record
and are not clearly erroneous (M.O. 67-96). USPS objects to findings in
only 5 of seventeen cases, which we respond to at pp. 43-46, infra.
Judgment
The judgment provides detailed injunctive relief for the violations
found, including the following:
USPS was enjoined from discriminating against the class with
respect to a set of specific violations, viz., "promotions (including
all conponents of the promotion process), details, the use of written
13 -
tests, discipline, or pay, in any fashion, intentionally or unintention
ally, because of their race or color" (J.l). The class was revised to
include only black employees from March 24, 1970 (the back pay limita
tions period) to date of judgment who were subject to discrimination in
premotions, details, use of written tests, discipline or pay (J.2).
USPS was required to pay back pay to each plaintiff or class
member who establishes entitlement for discrimination in promotion,
detailing or discipline since March 24, 1970. However, the issue of
individual entitlement was referred to a master (Id.). The court ordered
that specific relief be provided in the seventeen individual cases, but
that "exact parameters of the promotions and details to which said indi
viduals are entitled and the amount of back pay they should received shall
be determined by the master" (J.3). The court also ordered that 7 of the
seventeen individuals be promoted to the next vacancy at specified levels
or specified jobs, "unless USPS can show by clear and convincing evidence
that they are not qualified or cannot assume the position with a reason
able amount of training " (J.3). Additional claims could be presented
to the master, but only "with respect to promotions, detailing and disci
pline for actions which occurred within the limitations period" (J.4).
USPS was enjoined "to take affirmative efforts to achieve the
recruitment, appointment and promotion of qualified black persons" to use
"as a goal but not as a rigid quota" and "as a framework' to seek to reach
certain higher level workforce percentages reflective of the black USPS
Mecklenburg workforce (J.5). Extensive reporting was ordered (J.5-7),
USPS was also ordered to formulate objective criteria for promotions,
details and discipline; establish a new job of EEO Employee Complaints
Representative; to use only validated written tests or other selection
devices for jobs level 9 and above, and to pay an interim award of fees
(J .7-9).
- 14 -
A R G U M E N T
I.
The District Court Had Power
to Remedy Racial Discrimination
Extending Back to March 24, 1970
The district court correctly ruled that there was a judicial
remedy for continuing violations of Executive Order 11478, §717 of
Civil Rights Act of 1964, 42 U.S.C. §2000e-l6, and the Fifth
Amendment extending back to March 24, 1970, where an administrative
complaint was pending when §717 went into effect on March 24, 1972.
(M.O. 105-106, 117-118). USPS' objections have no support in the
record or law. See, Brief, 23-27.
A. Title VII and, Alternatively, the Fifth Amendment, Provide A
Judicial Remedy for Discrimination Back to March 24, 1970.
USPS concedes that Title VII jurisdiction exists for post-March
1972 claims of discrimination, but declines to accord full effect to
Roger v. Ball, 497 F.2d 702 (4th Cir. 1974), with respect to
retroactive relief. Compare, Carreathers v. Alexander, 587 F.2d
1046, 1051-1052 (10th Cir. 1978); Chewning v. Schlesinger, 471 F.
Supp. 767, 774-775 (D.D.C. 1979).
In Roger, supra, 497 F.2d at 706, this Court held that where, as
here, an administrative "complaint of discrimination based on race
... [was] brought pursuant to ... Executive Order 11478," Title VII
applies and provides a judicial remedy for administratively pending
claims. The Court explained that:
[T]he 1972 Act did not create a new substantive
right for federal employees. The Constitution,
statues, and executive orders previously
granted them the right to work without
racial discrimination. Sections 717(c)
simply created a new remedy for the enforcement
of this existing right.
- 15
497 F.2d at 705. (emphasis added)12/
Prior to the enactment of §717, the federal government had long
barred its departments and agencies from discrimination on the ground
of race pursuant to the Fifth Amendment, statutory law and executive
order. See, Brown v. GSA, 425 U.S. 820, 825 ( 1976); Koger v. Ball,
supra, 497 F.2d at 704-705, n. 7. In 1964, Congress included a
provision in Title VII, as orginally enacted, that federal policy
prohibited discrimination by federal agencies on account of, inter
alia , race or color. Civil Rights Act of 1964, Pub. L. Mo. 88-352,
§701(h). 78 Stat. 24l.il/ This policy of Title VII was effectuated
through a series of executive orders, including E.0. 11478, 34 Fed.
Reg. 12985 (1969) which prohibited employment discrimination and
imposed an affirmative duty on each federal agency to promote equal
employment opportunity, and Civil Service Commission administrative
procedures. See Koger v. Ball, supra, 497 F.2d at 704.
12/ Koger has been followed by every Circuit which has subsequently
addressed the question. See, Carreathers v. Alexander, supra, 587
F.2d at 1050, n. 1. (collecting cases).
13/ Congress reenacted this proviso as a separate statutory duty of
the federal government in 1966. 5 U.S.C. § 7201. In the same year,
Congress fortified these rights by authorizing back pay awards to all
federal employees who suffered losses as a result of certain unjustified
or unwarranted personnel actions contrary to law or regulation. 5
U.S.C. § 5596.
- 16 -
"The 1972 extension of the Civil Rights Act to Government
employment is in large part merely a codification of prior anti-
discrimination Executive Orders." Morton v. Mancari, 417 U.S. 535,
549 (1974). Thus, legislative history states that the existing
executive order, like Title VII, was violated by unjustified
"disparate impact" as well as intentional discrimination, but that
administrative authorities had erred by not fully applying the
disparate impact standard in administrative proceedings.lii/
14/ [T]he Civil Service Commission has been plagued
by a general lack of expertise in recognizing
and isolating the various forms of discrimina
tion which exist in the system ... The Civil
Service Commission seems to assume that employ
ment discrimination is primarily a problem of
malicious intent on the part of individuals.
It apparently has not recognized that the gen
eral rules and procedures it has promulgated
may actually operate to the disadvantage of
minorities and women in systemic fashion ...
Civil Service selection and promotion require
ments are replete with artificial selection and
promotion requirements that place a premium on
"paper" credentials which frequently prove of
questionable value as a means of predicting
actual job performance. The problem is further
aggravated by the agency's use of general ability
tests which are not aimed at any direct relation
ship to specific jobs. The inevitable consequence
of this, as demonstrated by similar practices
in the private sector, and, found unlawful by
the Supreme Court, is that classes of persons
who are culturally or educationally disadvan
taged are subject to a heavier burden in seek
ing employment.
H.R. Rep. No. 238, 92nd Cong., 2d Sess., reprinted in 1972 U.S. Code
Cong. & Admin. News 2137, 2159-
- 17
The change effected by the 1972 amendments, therefore, was remedial.
"Sections 717(b) and (c) establish complementary administrative and
judicial enforcement mechanisms designed to eradicate federal employ
ment discrimination," Brown v. GSA, supra, 425 U.S. at 831, inasmuch
as the "Executive Order ... had proved ineffective because of inade
quate enforcement machinery." Morton v. Mancari, supra, 417 U.S. at
549. Thus, §717 (c) provides, in pertinent part, that "on a com
plaint of discrimination based on race [or] color ... brought pur
suant to ... Executive Order 11478 ... an employee ... if aggrieved
by the final disposition of his complaint ... may file a civil
action."75/ Section 717(c) made the courts "the final tribunal for
the resolution of controversies over charges of discrimination after
all administrative remedies have been exhausted."
This policy applies with equal reason to discrimination
that occurred either before or after the passage
of the Act when the earlier discrimination was
the subject of administrative proceedings at
the time of enactment. In both instances, the
wrong is similar.
Roger v. Ball, supra, 497 F.2d at 706. "It is a well settled rule of
construction that 'a remedial statute shall be so construed as to
make it effect its evident purpose and if the reason of the statute
extends to past transactions, as well as those in the future, then it
will be so applied,' "16/
15/ A savings clause was included that, "federal agencies were not
relieved of responsibilities under Executive Order 11478 relating to
equal employment opportunity in the Federal Government." §717(e).
16/ Henderson v. Defense Contract Administration Services, 370 F.
Supp. 180, 183 (S.D.N.Y. 1973), quoting, Walker v. Kleindienst, 357
F. Supp. 749, 751 (D. D.C. 1973); see also, Chewning v. Schlesinger,
471 F. Supp. 767, 774 (D. D.C. 1979).
- 18 -
§717 (d) expressly provides that " [t]he provisions of section
2000e-5(f) through (k) of this title, as applicable, shall govern
civil actions brought hereunder." See Chandler v. Roudebush, supra,
425 U.S. at 845-848. Section 706(g) of Title VII, 42 U.S.C. § 2000e-
5(g) therefore is incorporated. That provision states, in pertinent
part, that injunctive relief, including back pay, is an "appropriate"
remedy and that "[b]ack pay liability shall not accrue from a date
more than two years prior to the filing of a charge. Back pay is
therefore available in a Title VII action for a two year period prior
to the filing of the administrative charge or, in the instant action,
March 24, 1970. Carreathers v. Alexander, supra, 587 F.2d 1051-1052
(back pay extending back two years to July 10, 1970 may be recovered
where administrative complaint filed July 1972); Chewning v.
Schlesinger, supra, 471 F. Supp. at 774-775; see also, Moore v. City
of San Jose, 615 F.2d 1265, 1272-1273 (9th Cir. 1980).
Sovereign immunity is no bar. Congress "intended by enacting
§ 717(c) to grant employees consent to sue for redress of pending
cases of pre-Act discrimination." Koger v. Ball, 497 F.2d 708-709;
Carreathers v. Alexander, supra. "To exclude the effects of pre-Act
discrimination from the computation of back pay in the present case
would frustrate the remedial purpose of the 1972 amendments by
impairing the ability of the class members to vindicate fully their
long-established right to be free from employment discrimination."
Chewning v. Schlesinger, 471 F. Supp. 767, 774 (D. D.C. 1979). See
Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 421 (1975).
- 19
Although it is unnecessary to decide the constitutional question
in light of controlling authority on the retroactive scope of Title
VII, supra,1Z/ the Fifth Amendment provides an alternative basis of
jurisdiction for pre-1972 claims (M.O. 106). Davis v. Passman, 442
U.S. 228 (1979); Hanson v. Hoffman, 21 FEP Cases 1645, 1649 (D.C.
Cir. 1980) (federal employment discrimination); see also, Carlson v.
Green, 446 U.S. 14 ( 1980). Thus, Brown v. GSA, supra, 425 U.S. at
825,_826, recognized that "federal employment discrimination clearly
violated ... the Constitution ... before passage of the 1972 Act" and
that "an action seeking to enjoin unconstitutional agency conduct
would lie." Doubts expressed by the Court as to whether judicial
relief was available, id., were subsequently answered for Fifth
Amendment claims where Title VII is unavailable in Davis v. Passman,
supra, 4.42 U.S. at 246-249, which states that "we do not now interpret
§ 717 to foreclose the judicial remedies of those expressly unprotected
by the statute." Nor do administrative exhaustion requirements apply
to Fifth Amendment actions.I^/ The lower court correctly determined
17/ See, Hagans v. Lavine, 415 U.S. 528, 549 (1974). If the Fifth
Amendment is the only judicial remedy, a remand is necessary for
further proceedings. See, U.S. v. Texas Educ. Agency, 429 U.S. 990
(1976).
18/ See, Brown v. GSA, 425 U.S. at 833 (any non-Title VII judicial
remedies would not impose § 717's "rigorous administrative exhaustion
requirements"); Johnson v. Railway Express Agency, 421 U.S. 454, 461—
462 (1975) (42 U.S.C. § 1981). Penn v. Schlesinger, 490 F.2d 700,
707-714 (1973), adopted in 497 F.2d 970; (5th Cir. 1974) (en banc)
was decided before Brown and Johnson and Wertzel v. Portney, 548 F.2d
489, 492 (4th Cir. 1977), concerned exhaustion in a Title VII action.
In any event, Chisholm clearly exhausted his individual claim.
What the Postal Service is arguing is that Chisholm or class members
did not exhaust class claims. However, there was no administrative
procedures for class complaints of discrimination until 1979- See,
29 C.F.R. § 1613-601 et seg., orginally adopted pursuant to Barrett
v. U.S. Civil Service Commission, 69 F.R.D. 544, 549-554 (D. D.C.
1975).
20
that the three-year limitations period found in N.C.G.S. § 1-52(1) is
the appropriate limitations period, Pittman v. Anaconda Wire & Cable
Co•) 408 F. Supp. 286, 293 (E.D. N.C. 1976), and that relief pursuant
to the Fifth Amendment should go back to June 27, 1970 (three years
prior to filing).i£/
B. A Remedy for Classwide Continuing Violation of Law Back to March
24, 1970 Is Appropriate._______________________________________ _
The district court did not abuse its discretion by including in
the class black employees subject to discrimination since March 24,
1970 (M.O. 104, 117, J.2). USPS, Brief, p. 27, asserts with no
record support that the case "challenge[s] discrete acts, any of
which may have been lawful or unlawful." This factual premise wholly
ignores that the administrative complaint specifically put USPS on
notice that the case discrimination "is a continuing discriminatory
practice" and that the date of alleged discrimination is "[g]enerally:
1960 through present time." See, p. 3, supra also ignores
express findings (e.g., M.O. 119)-
19/ Chisholm did not somehow waive Fifth Amendment claims, nor did
USPS rely on any concession. See, p. 5, n. 2 supra. Brown v. GSA,
supra, 425 U.S. at 823-824 and n. 3, moreover, did not decide any
Fifth Amendment claims. Nor did the court find any waiver or
prejudice. See Albemarle Paper Co. v. Moody, supra, 422 U.S. at 423-
424.
The record does not show that USPS destroyed any documents
because of any waiver. These documents, in any event, were sought by
plaintiffs for proof of their Title VII claims. Chisholm's
administrative complaint, for instance, alleged discrimination since
1960. See p. 2, supra.
20/ Indeed, the administrative investigation included personnel
■data from December 1970 forward.
21
In Patterson v. American Tobacco Co., 24 FEP Cases 531> 536 (4th Cir.
1981) (en banc), pending on cert, on other issues, 49 U.S.L.W. 3648-
3649 (1981), this Court analyzed the impact of United Airlines, Inc,
v. Evans, 431 U.S. 553 (1977), upon a case with a similar factual
posture of "continuing violations of Title VII."
In Evans the Court specifically rejected
the employee's claim that the failure to accord
her retroactive seniority benefits constituted
a "continuing violation" that was not time-
barred. Rejection was on the basis that the
seniority system itself was not charged or
proven to constitute an existing violation of
the claimants' rights to nondiscriminatory
conditions of employment. In the instant case,
by contrast, the violations charged and found
by the district court were "continuing" in the
very sense not present in Evans. Here the promotional
policies adopted in 1968 were alleged by the
claimants, found by the district court, and
affirmed by this court to involve a continuing
pattern or practice of dicrimination that
locked black and women employees into less
favorable positions. These effects, unlike the
denial to the Evans claimant of retroactive
seniority benefits, constitute truly "continuing"
violations of Title VII. Hence, claims related
to these violations are not barred by failure
to have challenged at its inception the policy
which gave continuing rise to them.
Compare, Patterson v. American Tobacco Co., 586 F.2d 300, 304 (4th
Cir. 1978); Jenkins v. Home Ins. Co, 24 FEP Cases 990 (4th Cir.
1980); Williams v. Norfolk & Western Ry. Co., 530 F.2d 539, 542 (4th
Cir. 1975).
21/ Accord, Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 760-761
(9th Cir. 1980); Acha v. Beame, 570 F.2d 57, 65 (2d Cir. 1978); Clark
v. Olinkraft, Inc., 556 F.2d 1219, 1222-1223 (5th Cir. 1977); Rich v.
Martin Marietta Corp., 522 F.2d 444, 328 (10th Cir. 1975).
22
Thus, the law of the Circuit is that Chisholm timely filed
administrative charges concerning continuing violations of Title VII
since, at least, March 24, 1970. Defendant suffers no prejudice.22/
USPS also erroneously argues that the class may include only
black employees who could have filed a timely charge within the 15
day limitations period of Chisholm's March 15, 1972, complaint, i.e .,
March 1, 1972, Brief, pp. 24-27, in reliance on Wetzel v. Liberty
Mutual Ins. Co., 508 F.2d 239, 246 (3d Cir. 1975). Wetzel however,
concerned a statutorily-imposed limitations period, § 706(e), 42
U.S.C. § 2000e-5(e), but none applies here.22a/ If Congress had
intended to enact a similar rule for federal employees it could easily
have done so, either expressly or by incorporating §706(e) through
§717(d). Congress did not. 5 C.F.R. §713- 2l4(a)(i), in any event,
22/ Where a discriminatory policy continues in
existence, the critical question posited by
Evans— whether any present violation exists— is
answered in the affirmative. In such a case,
the continuing violaton theory is not being
used to attack an employer policy which no
longer is in existence, but rather, it operates
to bring within the scope of litigation all
those acts which are pursuant to the present
policy of the employer. Use of the continuing
violaton theory in the former instance clearly
would undermine the goals served by the statute
of limitations. An employer could be unfairly
surprised by state claims brought on the basis
of discrete acts performed far in the past. In
the latter cause however, any acts for which
the employer is held liable would be the result
of a policy which he maintained up to the date
of the complaint. Accordingly, he cannot claim
that the statute of limitations is circumvented
by holding him responsible for the results of
that policy.
RWDSU, Local 194 v. Standard Brands, 24 FEP Cases, 409, 417 (N.D.
111 . 1981).
22a/ Cooper v. Bell, 24 EPD 11 31,215, pp. 17, 435-36 (9th Cir. 1980);
see, Weahkee v. Norton, 621 F.2d 1080, 1081 (10th Cir. 1980) (admin
istrative limitation non-jurisdictional).
- 23 -
is inappropriate because class allegations were not accepted so there in
fact was no prejudice to USPS, see, p. 4, supra, and § 713.214(a)(1) is
waivable. See, § 713.214(a)(2). Moreover, the limitations should not
be applied across-the-board at the outset to "deny relief to some indi
viduals who, in fact would qualify for an award of back pay," but on a
23/
case-by-case basis in second stage proceedings as the equities require.
II.
The Class Action Was Properly Certified and
Defined Pursuant to Rule 23, Fed. R. Civ. Pro.
The court was careful in his treatment of the class action. Ini
tially, the class was conditionally certified in May 1975 to cover both
applicants and employees errployed at the Charlotte-Mecklenburg County
branch of USPS subject to discrimination. (Order, pp. 1-2) USPS appealed
the certification, but then abandoned its appeal. See, pp. 4-5, supra.
In July 1979, the class was revised to exclude applicants in light of
Hill v. Western Electric Co., 595 F.2d 99 (4th Cir. 1979) (M.O. 101-
104). After trial, the court found that:
Plaintiff Chisholm is a member of the class of blacks
who has suffered as a result of discrimination at USPS.
The evidence leads the Court to conclude (a) that
blacks at USPS have historically been limited and
restricted to lower level jobs in spite of regula
tions and Executive Orders prohibiting discrimination,
(b) that such discrimination continued after March 24,
1972, (c) that the pervasive discrimination infested
the whole range of personnel practices including poli
cies and practices relating to detailing, testing,
discipline and promotion, and (d) that Chisholm and
23/ McBroom v. Western Electric Co., 429 F. Supp. 909, 912-913 (M.D.
N.C. 1977); RWDSU, Local 194 v. Standard Brands, 24 FEP Cases 409, 417-
418 (N.D. 111. 1981); IMPACT v. Firestone, 24 FEP Cases 572, 577 (N.D.
Fla. 1980); Bridges v. Brown Williamson Tobacco Corp., 414 F. Supp. 371
(E.D. Va. 1976); Sinyard v. Foote & Davies, 13 FEP Cases 1257 (N.D. Ga.
1975).
The class member limitations period for the new administrative class
action procedure, see, p. 20, n. 18, supra, is 135 days for class members.
29 C.F.R. 1613.614‘(cr)'.
24 -
the class he represents have been adversely affected
by defendants' discrimination and are entitled to
appropriate relief.
(M.0.103-04.) The court further revised the class (a) to limit theclass
to employees from March 24, 1970, to the date of judgment, and (b) to
limit further the class to employees actually subject to specific dis
criminatory practices, i.e., "promotions (including all components of
the promotion process), details, the use of written tests, discipline,
or pay" (M.0. 104, J.2). USPS does not challenge the court's findings
as to numerosity, commonality, and typicality under Rule 23(a), Fed. R.
Civ. Pro., or that Rule 23(b)(2) prerequisites are met (M.0. 102-104).
These findings are plainly correct.
USPS limits its challenge to exhaustion and adequacy of represen
tation, and to the scope of the class. Brief, 38-45.
A. The Class Was Properly Certified.
1. Exhaustion
USPS concedes that Chisholm's administrative complaint raised
promotion and detailing issues, but argues that certain other issues
were not exhausted. This contention has no basis in law or fact.
The law of the Circuit is that in a Title VII action:
The charge is not to be treated as a camion-law
pleading that strictly cabins the investigation
that results therefrom, or the reasonable cause
determination that may be rested on that inves
tigation. The charge merely provides the
[agency] with "a jurisdictional springboard to
investigate whether the employer is engaged in
any discriminatory practices!" and that inves
tigation may well "disclose, as in this instance,
illegal practices other than those listed in the
charge." ...
EEOC v. General Electric Co., 532 F.2d 359, 364 (4th Cir. 1976). The
general rule is that a suit '"may encompass any kind of discrimination
- 25 -
like or related to allegations contained in the charge and growing out
of such allegation during the pendency of the case before the [agency]. "
24/
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970).
25/
Indeed, applicable administrative regulations required no less.
Application of these principles to the record is not difficult.
The initial level supervisory examination was.in fact a subject of the
administrative investigation and the supervisory register was raised by
management itself as the reason black employees were denied details.
24/ See, e.g., EEOC v. General Electric Co., supra (sex claims per
mitted where test alleged to be racially discriminatory only); Sanchez
v. Standard Brands, Inc., supra (discharge and national origin claims
permitted where only harassment and sex discrimination issues stated
in charge); Danner v. Phillips Petroleum Co., 447 F.2d 159, 161-162 (5th
Cir. 1971) (seniority issues permitted where only discharge alleged
because they would reasonably arise because of inquiry into reasons for
discharge); Gamble v. Birmingham So. R.R. Co., 514 F.2d 678, 687-689
(5th Cir. 1975) (supervisory promotion reasonably related to conductor
promotion alleged where EEOC did not investigate).
25/ Federal employment claims at the administrative
level are also entitled to broad construction.
The agency's own regulations require that the
investigation of administrative complaints shall
include:
"(a) *** thorough review of the cir
cumstances under which the alleged discrim
ination occurred, the treatment of members
of the complainant's group identified by
his complaint as compared with the treatment
of other employees in the organizational
segment in which the alleged discrimination
occurred, and any policies and practices
related to work situations which may consti
tute discrimination even though they have
not been expressly cited by the complainant."
5 C.F.R. § 713.216(a).
In addition, 5 C.F.R. § 713.218(c)(2) requires the
complaint examiner to develop a complete record and
to record into evidence "information having a bearing
on the complaint or employment policies and practices
relevant to the complaint ***."
Ellis v. NARF, 404 F. Supp. 391, 395 (N.D. Cal. 1975). 5 C.F.R. Part
713 is now codified as 29 C.F.R. 1613.601 et seq.
- 26 -
See p. 2, supra; see also, p. 10 n. 9. Discipline and rural carrier
workforce were also in fact investigated. (Id.) Moreover, the central
promotional system issue cannot be narrowly cabined. See, pp. 7-8,
supra. It is not disputed that discipline, like the initial supervi-
27/
sory examination, was a criterion for promotion (M.O. 6). Not only
should USPS have been on notice of like and related issues which rea
sonably grew out of the administrative charge; the uncontradicted
28/
record shows that it in fact was.
2. Adequacy of Representation
After hearing the case, the court expressly found that
"[pjlaintiff Chisholm is a member of the class of blacks who has suffered
as a result of discrimination at USPS." The court had previously found
26/
26/ USPS asserts that an investigation of the initial level supervi
sory examination.was not required by the complaint. Brief, 39. How
ever, testing statistics in fact were investigated by the USPS and the
results were offered by management as a "reason" for the failure of blacks
to be detailed and hence promoted. See, p. 2, supra. Compare, Danner v .
Phillips Petroleum Co., supra, 447 F.2d at 161-162. No doctrine of Title
VII law insulates local management from liability for implementing employ
ment policies and practices promulgated by national postal authorities in
an action against, inter alia, USPS as a whole. In any event, local
authorities in fact set the cut-off scores on the examination (PX 72, 78,
81).
27/ Nothing justifies USPS' effort to foist a requirement of pleading
technical "disparate impact" or "disparate treatment" legal theories on
a layman, see, Love v. Pullman, 404 U.S. 522, 527 (1972), especially
where the very terms were not part of the law in 1972. Chisholm's com
plaint, in any event, alleges both (M.O. 4-5).
28/ If USPS was never able, as it claims, to ascertain the scope of the
lawsuit against it, plaintiffs were not responsible. Brief, pp. 40-41.
Plaintiffs sent to USPS counsel a Statement of Issues on February 21, 1979,
which was also filed with the court on August 8, 1979. Response to Motion of
Defendants-Appellants for a Stay of Judgment, Exhibits B and C, 4th Cir.
No. 80-1800, filed November 26, 1980. The Federal Rules of Civil Pro
cedure plainly provide means for a party to discover the scope of an
adversary's lawsuit.
The cornnents of a trial judge in the midst of trial, whatever their
precise import, certainly do not provide adequate or competent evidence
to impeach carefully considered findings of fact, see, Brief, p. 41, where
no evidence was precluded. Judicial questions about the relevance of
evidence are always proper.
27
that "[i]t is clear from the administrative record in this case and
the complaint, that plaintiff Chisholm has vigorously pursued his
rights in the past both individually and as a representative of the
blacks at the postal service" (May 29, 1975 opinion). After the trial,
the court expanded its finding of adequacy of representation by Chisholm
and plaintiff-intervenors: "by their conduct in this case and by pre
senting overwhelming evidence of discrimination, plaintiffs and their
counsel have justified this Court's previous finding that they would
adequately represent the class." (M.O. 103) These findings are not
an abuse of discretion.
The lower court's findings fully comport with relevant authority.
There is no dispute that plaintiffs' counsel are qualified and exper
ienced. Wetzel v . Liberty Mut. Ins. Co., supra, 508 F.2d at 247. USPS
conceaes that Chisholm "'possess[es] the same interest and suffer[s] the
same injury' as the class members," East Texas Motor Freight v. Rodriguez,
431 U.S. 431, 403 (1977), with respect to promotions and details. Brief,
43-44. However, the record shows that Chisholm was in fact subject to
discrimination in the initial level supervisory examination and disci
pline, and that both are elements in discriminatory promotion and detail
policy. See, pp. 7-8, supra. Moreover, USPS ignores that, as the lower
court found, the claims of plaintiff-intervenors strengthen the ade
quacy of representation. (Opinion of May 29, 1975); Oatis v. Crown
Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968); McBrocm v . Western
Electric Corp., 7 EPD 1T 9347 (M.D. N.C. 1974). USPS also concedes that,
unlike the named plaintiffs in Rodriguez, supra, 431 U.S. at 403-405,
Chisholm and plaintiff-intervenors vigorously pursued the class action.
No collusion is alleged.
- 28 -
USPS, however, makes the novel contention that Chisholm "betrayed
his fiduciary obligation" to class members by seeking individual
relief. Brief, at 44—4-5. USPS neither objected below nor now appeals
the Rule 42, Fed. R. Civ. Pro., consolidation of the trial of class
liability together with individual liability claims of Chisholm and other
plaintiffs and class members who testified. There was, in any event, no
29/
abuse of discretion. Indeed, the consolidation promotes judicial
efficiency since the judge heard their testimony, was able to weigh
their credibility and determine liability, and then to outline the
required relief. No authority requires reference of all claims to a
master. Moreover, the promotion Chisholm obtained to the next vacancy
at level 21 or above for which he is qualified merely enforces the relief
USPS itself was originally required to provide after administrative
proceedings in 1973 (M.O. 70-71, J.4).
USPS, without record or legal support, speculates that some
antagonism of interests arose when Chisholm sought individual relief.
There was no record evidence of any actual conflict of interest. The court
gave pre-trial notice of the trial to class members, permitted thorn to
opt out, and permitted their participation through their own counsel
(Notice). No one opted out or was separately represented. Several
plaintiffs and class members, in addition to Chisholm, also had their
individual claims decided. No class member raised any objection to the
trial of individual claims, nor raised any conflicting claim. Moreover,
if some other class member does establish entitlement to the same job in
29/ See, e.g., Franks v. Bowman Transportation Co., 495 F.2d 398, 402
(5th Cir. 1974).
- 29 -
second stage proceedings, the court or master may determine who has the
superior claim to back pay or divide the relief among the claimants, as
Judge Widener permitted in White v. Carolina Paperboard Corp., 564- F.2d
1073, 1087 (4-th Cir. 1977).
No rule of law requires that a named plaintiff, who prevails, or,
for that matter, loses his individual claim, is thereby disqualified from
30/
representing the class. Authority is contrary. Otherwise, no one would
ever bring a class action discrimination claim. The very basis for the
concrete adversity between individual plaintiffs and employer, indeed,
assures their adequacy of representation. Any claimed conflict, in any
event, does not rise to the level of the kind of antagonism going to the
heart of the subject matter of the discrimination required by Rule 23(a)
(4). See, e.g., Social Services U., Local 535 v. Santa Clara, 609 F.2d
94-4, 948 (9th Cir.'1979); DuPree v. E. J. Brach 8 Sons, 77 F.R.D. 3, 9
(N.D. 111. 1977)(Title VII cases).
As to defendant's ... contention that the repre
sentatives are in competition for a limited number of
spaces, the Supreme Court has noted that "conflicting
interests of other employees will of course always be
present in instances where some scarce benefit is dis
tributed among employees." Franks v. Bowman Transpor
tation Co., 424 U.S. 747, 760 (1976). Although the
class members might have some arguable conflicts for
the limited supervisory openings, their interests are
clearly coextensive with the named individuals since
they both wish to insure that race is not a criterion
for promotion.
Id. The general rule for class actions is the same: "'The possible
situation that the beneficiaries may have divergent views as to their
30/ See, Franks v. Bowman Transportation Co., 424 U.S. 747, 752-757
(1976); McLaughlin v. Hoffman, supra, 547 F.2d 918, 920-921 (5th Cir.
1977; Moss v. Lane Co., 471 F.2d 853, 855-856 (4th Cir. 1973); Brown v .
Gaston County Eyeing Machine Co., 457 F.2d 1377, 1380 (4th Cir.), cert,
denied, 409 U.S. 982 (1982).
- 30 -
undivided rights in the distribution of a trust fund which is alleged to be
insufficient to pay all in full does not prevent this being a class
action. The preservation of the trust fund is the prime jurisdictional
consideration.'" Berman v . Narragansett Racing Assoc., 414 F.2d 311,
317 (1st Cir. 1969), cert, denied, 396 U.S. 1037 (1970), quoting
Redmond v. Commerce Trust Co. , 144 F.2d 14-0, 151-152 (8th Cir.), cert.
denied, 323 U.S. 776 (1944). Any issue of possible antagonism, in any
event, should first be presented to the trial court for evidentiary
hearing. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124-
31/
1125 (5th Cir. 1969).
31/ USPS is wrong that the interests of class members are too heterog
enous. Brief, 42. "[S]uits alleging racial or ethnic discrimination
are often by their very nature class suits, involving classwide wrongs.
Common questions of law or fact are typically present." East Texas
Motor Freight v. Rodriguez, 431 U.S. 395, 405 (1977). Chisholm's claims
in fact were typical as indicated by the testimony of class members. See,
Donaldson v. Pillsbury Co., 554 F.2d 825, 831-832 (8th Cir.), cert, denied,
434 U.S. 856 (1977). All class members stand to benefit from relief from
classwide discrimination in the overall promotional system. See,
McLaughlin v. Hoffman, 547 F.2d 918, 920-921 (5th Cir. 1977).
USPS also is wrong that there is no proof that the supervisory
force did not act as "autonomous decision-makers." Brief, 43. The court
found that there was a single personnel system in which all personnel
actions were reviewed and approved by the Charlotte Sectional Manager.
See, p. 6 and n. 4, supra. Unlike Stastny v. Southern Bell Tel. & Tel.
Co., 628 F.2d 267 (4th Cir. 1980), this is not a statewide case, and the
commonality standards of Stastny, 628 F.2d at 277, are expressly met.
There is a single supervisory force found to be Implementing an overall
discriminatory promotional system constituting a continuing violation of
Title VII. Compare, Patterson v. American Tobacco Co., 535 F.2d 257
(4th Cir. 1975), cert, denied, 425 U.S. 935 (1976). Courts have corrmonly
found the requisite degree of uniformity and centralization in similar
or larger federal agency discrimination cases. See, e.g., Bachman v .
Collier, 73 F.R.D. 300, 306 (D. D.C. 1976); Keeler v. Hills, 73 F.R.D.
10, 11 (N.D. Ga. 1976); MEAN v, Fletcher, 14 FEP Cases 1007, 1008-1009
(D. D.C. 1976); Lewis v. NLRB, 22 EPD TI30,710 (S.D. Tex. 1979); see, Davis
v, Califano, 21 FEP Cases 272, 279 (D.C. Cir. 1979).
Nor did the court neglect to address these questions (M.0. 101-103).
- 31
B. The Scope of the Class Was Proper.
USPS erroneously suggests that the scope of the class is indefinite.
Brief, 41-42.
The suggestion is made that the court abused its discretion by
limiting the class to black employees actually subject to discrimi
nation as a result of specified practices found violative of Title
VII. See, p. 14- , supra. However, the lower court's definition was
well within the Federal Rules and precedent. Rule 23(b)(2) is appli
cable, as here, where "the party opposing the class has acted or refused
to act on grounds generally applicable to the class, thereby making appro
priate final injunctive relief or corresponding declaratory relief with
respect to the class as a whole." The Advisory Committee understood
Rule 23(b)(2) to be appropriate when "[ajction or inaction is directed
to a class ... provided it is based on grounds which have general
application to the class" and that "[illustrative are various actions
in the civil rights field where a party is charged with discriminating
unlawfully against a class, usually one incapable of specific enumera
tion." Advisory Committee Notes, Proposed Federal Rules of Civil
Procedure, 39 F.R.D. 98, 102 (1966); Barnett v. W. T. Grant Co., 518
F.2d 543, 547 (4th Cir. 1975). Moreover, questions of individuals
actually entitled to relief in Title VII cases are not appropriate until
after a determination of class liability. International Brotherhood of
Teamsters v. United States, 431 U.S. 324, 360-361 (1977). It is there
fore proper to define a Rule 23(b)(2) Title VII class in terms of those
affected by discrimination alleged or, as in this case, proved, leaving
32/
the precise enumeration for subsequent determination. The lower
32/ See, e.g., RWDSU, Local 194 v. Standard Brands, 24 FEP Cases 409,
418 (N.D. 111. 1981); Pittman v. Anaconda Wire 8 Cable Co., 408 F. Supp.
32 -
court's definition of the class, thus, clearly gave USPS adequate notice
of the membership.
Nor was it an abuse of discretion for the court to revise the
class to include employees up to the date of judgment. See, e.g.,
RWDSU, Local 194- v. Standard Brands, 24- FEP Cases 409, 418 (N.D. 111.
1981).
III.
The District Court's Findings of Fact
Are Not Clearly Erroneous.
The district court's meticulous findings of fact are not clearly
erroneous, and, indeed, USPS nowhere identifies any findings as clearly
erroneous. See Brief, 27-38.
A. The Initial Level Supervisory Examination
The court found that the examination was used for detailing and
promotion to higher level jobs other than initial level supervisory
positions, as a substitute for otherwise required experience require
ments and for general use of promotion advisory boards. See, pp. 9-10
(M.O. 20-28, 114-116). The admitted unjustified adverse impact of the
examination in fact denied black employees benefits in all these
respects. It therefore was proper to reject USPS’ very limited "bottom
line" statistics for initial level supervisory promotions from 1972-
1974 as dispositive. See p. 11, n. 10, supra (M.O. 52-53, 116).
32/ Continued
286, 294-295 (E.D. N.C. 1974, 1976); Keeler v. Hills, 73 F.R.D. 10, 11
(N.D. Ga. 1976); Bachman v. Collier, 73 F.R.D. 300, 306 (D. D.C. 1976);
Barrett v. U. S. Civil Service Commission, 69 F.R.D. 544, 554 (D. D.C.
1975); Jones v. Milwaukee County, 68 F.R.D. 638, 640 (E.D. Wis. 1975);
Crockett v. Green, 388 F. Supp. 912, 915 (E.D. Wis. 1975); Godbolt v .
Hughes Tool Co., 63 F.R.D. 370, 374 (S.D. Tex. 1972); Harvey v. Int'l
Harvester Co., 58 F.R.D. 47, 48 (N.D. Cal. 1972).
- 33
The statistics do not address details, and other uses of the examination,
and do not include any pre-1972 promotions of any kind. Even then exami
nation scores continued to be relevant in the promotional practice, e.g.,
by promotional advisory board, after the date the examination register
expired. Moreover, there was disparate impact for initial level super
visory promotions in 1972-1973 in the period when this suit was first filed
when only one of 10 such jobs went to a black employee. Statistical evi
dence when suit is first brought is most probative, see, e.g., Parham v .
Southwestern Bell Tel. Co., 433 F.2d 421, 426 (8th Cir. 1970), especially
where, as the court found, post-suit changes were due to litigation pressure
33/
(M.O. 107).
B. Higher Level Promotions
Overwhelming statistical proof of discrimination in promotion was found
from 1970-1975 using either plaintiffs' or defendants' figures. See, p. 8,
34/
supra (M.O. 106-108). According to defendants' figures, there were 114
33/ Friend v. Leidinger, 588 F.2d 61, 66 (4th Cir. 1978), is inapposite.
Friend involved the simpler situation of a test used for a single purpose,
not the multiple uses here. Moreover, the statistical showing was not
partial and disparate inpact was not great in Friend. Id. The examina
tion in the instant action acted as a pass-fail barrier which itself
deprived black employees of a range of promotional system benefits, and,
therefore, was discriminatory in its own right. See, Teal v. State of
Connecticut, 25 FEP Cases 529, 532-533 (2d Cir. 1981); Smithy. Troyan,
520 F.2d 492, 497-498 (6th Cir. 1975). The examination in Friend had
no independent significance other than to qualify for a defined set of
jobs. There was no "bottom line."
34/ USPS is wrong that percentage increases in black employees from year
to year, Brief, 31, somehow disestablish the significance of the court's
analysis using the authoritative statistical approach of Castenada v.
Partida, 430 J.S. 482, 496 (1977); Hazelwood School Dist. v. U. S ., 433
U.S. 299, 311 (1977); EEOC v. United Virginia Bank, 615 F.2d 147 (4th Cir.
1980). With such small numbers of blacks in higher level positions, even
one black promotion is translated into a substantial percentage gain of no
probative weight. Thus, black promotions between 1973 and 1975 resulted
in a 23% gain and, although higher level promotions to blacks increased by
34 -
promotions to jobs immediately above craft level (job levels 7-9 prior
to March 5, 1973, and job levels 7-15 after that date) during the 1970-
1975 period, yet only 14 went to blacks (M.O. 108). The district court
found the statistical disparity between the actual promotions and the
number of black employees in the labor pool to be 4.13 standard deviations,
using the statistical approach in Castenada v. Partida, 430 U.S. 482,
495 (1977), and Hazelwood School District v. United States, 433 U.S.
299, 311 (1977). Again, using defendants' figures, the court found the
statistics with respect to higher level positions to be "even more com
pelling" (M.O. 107). From March 24, 1972, to December 31, 1975, only 5
of 50 upper level promotions (level 9 to March 5, 1973, and above level 15
thereafter) went to blacks, although blacks comprised approximately 30%
of the labor force (M.O. 105, 107).
USPS attempts to rely on post-1976 promotion statistics, but these
later post-suit changes "could be of little comfort to the victims of
earlier ... discrimination, and could not erase its previous illegal con
duct or its obligation to afford relief to those who suffered because of
it." International Brotherhood of Teamsters v. U. S ., 431 U.S. 324, 341-
35/
342 (1977). Moreover, the court found that, although "[t]he post-1975
figures show improvements ... such improvements, in light of all the evidence,
34/ Continued
30% between 1972 and 1973, blacks received only 8% of such promotions in
1972, and by 1973 still only received 9.5%.
35/ Nor can USPS rely on a partial applicant flow analysis from which
admittedly one-third of the promotion files were missing (Brief, p. 32),
and as to the remaining two-thirds of the files, it is unknown whether
the files contained all applicants for the position or whether the vacancy
was even posted (Tr. 762-763). The court correctly admitted the analysis only
"as a fragmentary report on the premotions." (Tr. 770) This case is
unlike Valentino v. U. S. Postal Service, 25 FEP Cases 24, 51-53 (D. D.C.
- 35 -
appear to be due to the pressure of litigation, rather than a real change
in USPS practices" (M.O. 107).
USPS cites EEOC v. Radiator Specialty, 610 F.2d 178 (4-th Cir. 1979),
to attack the court's statistical findings, but the analysis in Radiator
Specialty is not applicable to this case. None of the cases cited in
Radiator Specialty or in footnote 37, infra, involved a situation where
an employer had control over which workers acquired the qualifications
for promotion and had discriminated against blacks in exercising that con
trol. Where an errployer discriminatorily limits the pool of qualified
workforce to whites, it should not be allowed to rely upon the pool, for
to do so actually rewards such discrimination. See Teamsters v. United
States, supra, 431 U.S. at 349; Asbestos Workers, Local 53 v. Vogler, 407
F.2d 1047 (5th Cir. 1969).
In any event, even if Radiator Specialty is applicable to this case,
it is of no help to defendants. Although USPS made no effort at trial to
prove the existence of special qualifications (M.O. 107), it now argues
that such qualifications are "manifest" in reliance on EEOC v. Radiator
36/
Specialty Co., 610 F.2d 178, 185 (4th Cir. 1975). However, the court
35/ Continued
1981), where there was no indication that the applicant flow analysis was
statistically invalid. Secondly, the court specifically found, and it is
undisputed, that black employees were discouraged from applying for promo
tions by the intractability of discrimination (M.O. 41-42, 77-78, 80).
Thirdly, blacks were discriminatorily denied the opportunity to become eligible
for promotion. See, pp. 11-12, supra. An applicant flow analysis under
these circumstances cannot show what would have occurred absent discrimi
nation., Hazelwood School District v. U. S., supra, 433 U.S. at 308. n. 13 and is notr'bfe'ttsh" proof. -----
36/ This Court in EEOC v. Radiator Specialty Co. , supra, summarized the
relevant standards by which to determine the proper labor pool in a promo
tions case and set forth the three types of cases that may arise. Plain
tiffs submit that this case falls into the first category of cases; at
worst, this case is like that described by the court as being in the third
- 36
specifically found that USPS used an internal labor pool for higher level
jobs, and that such jobs are filled by craft employees who gain higher level
specialized and general experience through discriminatory details. See,
pp. 6-7, 11-12 (M.O. 30-31, 39-4-0, 53-55, 113). The special qualifications
for which there is record evidence is the finance examiner job that
Chisholm sought, but that job was filled by a white who became "qualified"
as a result of preferentially being given details for lengthy periods (M.O.
68, 70). The same is true of the driver instruction examiner job sought by
Holman (M.O. 80). Indeed, the court found such preferential details to
be carmon (M.O. 56), a finding not challenged as clearly erroneous. The
court also found that specialized experience "requirements" were often
waived for whites (M.O. 35-36). Thus, it is manifest that no special
qualifications as such exist, as the court found, specifically citing EEOC
36/ Continued
category. In either category, the statistics offered by plaintiffs
and accepted by the district court are proper proof of discrimination.
In the first category of cases, where it is manifest that no special
qualifications exist for a job, a court may look to general population
statistics to assess plaintiffs' prima facie case. (E.g., Teamsters v .
United States, supra, 610 F.2d at 175 (drivers).) In the second category
are cases where the fact that special qualifications do exist are mani
fest from the mere identification of the job. (E.g., Hazelwood School
District v. United States, 433 U.S. 299 (1977). (teachers) Id. In the
last category, it is unclear from the identification of job positions
whether special qualifications exist for them. In such cases, this Court
held,
the burden should be on defendants to. show
that the positions in fact do require special
qualifications not possessed or readily
acquired by the general population, at peril
of having the general population statistics
presumed appropriate in assessing plaintiffs'
prima facie proof.
Id.
37
V. Radiator Specialty Co., supra (M.O. 107). In this case:, the skills in
question are ones "generally possessed or readily acquired." Hazelwood,
37/
supra, 4-33 U.S. at 308 n. 13 (emphasis added).
At worst, this case falls into the category of cases described in
EEOC v. Radiator Realty Co., supra, 610 F.2d at 185, as where the nature
of special qualifications is unclear, and defendants have the burden to
establish the existence of such qualifications and the inability of the
workforce to acquire them. It is undisputed that USPS failed to do so
38/
(M.O. 107).
The lower court also correctly held that USPS is not free to con
tinue to promote to upper higher level positions from jobs levels 7-9
because it locks in admitted historic discrimination at those levels
that continued after the effective date of § 717 (M.O. 108-110). As the
57/ This case is not a case where special qualifications are manifest,
such as Hazelwood, supra (teachers); EEOC v. Chesapeake 8 Ohio Ry., 577
F .2d 229 (4th Cir. 1978) (specific technical background); Hill v. Western
Electric Co., supra (no in-house training program allowed lower level
employees to obtain specialized qualifications on the job). Moreover, in
Hill, supra, only a small percentage of black employees had any signifi
cant amount of experience with the employer. In contrast, blacks have
long been represented in large numbers in the workforce and in fact are bet
ter educated than white employees (M.O. 113, 41). For instance, Chisholm
has been employed by USPS since 1960 (M.O. 68), Rushing since 1955 (M.O.
72), Hart since 1966 (M.O. 75), McCombs since 1956 (M.O. 77), Holman since
1962 (M.O. 79). Nor is this case like EEOC v. United Virginia Bank,
supra, 615 F.2d at 153, a hiring case where plaintiffs relied upon general
population statistics and offered no evidence as to how any specialized
qualifications could be obtained.
38/ Many of the positions referred to as needing■special qualifications
were found to have responsibilities that could be learned through the
detailing process. E.g., finance examiner, postal service auditor (M.O.
68). In the year 1972 through 1977, an average of only slightly over
three promotions annually were for positions that arguably required
skills not capable of being readily acquired by the entire workforce.
Plaintiffs here set forth those positions by year. As shown, elimination
of these jobs from the promotional analysis does not materially change
the results.
cont'd
38 -
Supreme Court stated in Griggs v. Duke Power Co. , 4-01 U.S. 424, 430
(1971), "Under [Title VII] practices, procedures, or tests neutral on
their face, and even neutral in terms of intent, cannot be maintained
if they operate to 'freeze' the status quo of prior discriminatory
employment practices," cited with approval in Teamsters v . United
States, supra, 431 U.S. at 349. Accord, Asbestos Workers, Local 55 v .
Vogler, 407 F.2d 1047 (5th Cir. 1969) (union nepotism requirement, while
applicable to all,is discriminatory because its present effect is to
forever deny minorities real opportunity for membership), cited with
3 8/ Continued
1972 1975
1 Vehicle Maintenance
1 Foreman, Mechanics
4 Electronic Technicians
1973
1 Electronic Technician
1 Nurse
2 Industrial Engineers
1 Senior Stenographers
1974
1 Senior Stenographer
Year 1972 1973
% black promotions
including "special
ized" positions 4.65% 9.5%
% black promotions
excluding "special
ized" positions 5.4% 10.0%
1 Electronic Technician
1 Industrial Engineer
Coordinator
1 Senior Stenographer
1976
2 Electronic Technicians
1 Senior Stenographer
1977
2 Electronic Technicians
1974 1975 1976 1977
12.5% 11.5% 8.33% 33.3%
12.5% 13.0% 0% 33.3%
Source: PX 5.
- 39
approval in Teamsters, supra, 4-31 U.S. at 349, n, 32; see also, Parson
v. Kaiser Aluminum 8 Chemical Corp., 575 F.2d 1374 (5th Cir. 1978)
(restriction on transfer policy and prior experience requirement held
discriminatory because of present exclusionary impact due to past dis
crimination) . Nor did USPS make any showing that the practice of limiting
upper level management to employees in the next lower supervisory levels
was justified by business necessity. See Robinson v. Lorillard Corp., 444
39/
F<2d 791 (4th Cir. 1971).
C. Higher Level Details
The district court's compelling and undisputed findings on details
are described at pp. 11-12, supra. USPS is wrong that the court found
that there was no statistical pattern of discrimination after 1973.
Brief, p. 32. Rather, the court found that although there was some
improvement in the detailing process
it is impossible to know if the best details were still
disproportionately given to whites. What is clear is
that there were numerous examples of discriminatory
individual abuse with respect to details after 1973.
(M.O. 60) Moreover, USPS faults the court for its failure to distinguish
between short and long details (a failure caused by USPS' own record-keeping),
but ignores the finding that "since the cold statistics lump together short
details with longer ones, the effect of the discrimination was even greater
than that reflected by the figures alone" (M.O. 57) (emphasis added).
39/ It is disengenuous at best for USPS to argue that there was "no evi
dence" to support a finding that the pool from which upper and middle-level
supervisors are drawn was exclusively white. Until after 1973, there was
never more than one black employee at a level 10 or above (M.O. 14-17).
USPS points out that notices of vacancies were circulated outside the Charlotte
Post Office but conveniently ignores, and does not challenge the very next
finding of fact, that "promotion to supervisory and management jobs is an in-
house process. USPS in Charlotte utilizes an internal labor market for upper
level jobs" (M.O. 12).
- 40
USPS does not challenge as clearly erroneous the district court's
finding that "[t]he record is replete with examples of discriminatory
abuse of the detailing process" from 1970-1978 (M.O. 55). In addition
to finding a total lack of objective criteria or guidelines to bridle
the white supervisory force's discretion and favoritism toward white
buddies (M.O. 53, 55), the court cited fourteen specific individual
instances of discrimination in detailing (M.O. 56-57), only three of
which USPS even arguably challenges. Brief, pp. 4-7-48. Under these cir
cumstances, where the supervisory force is largely white, "Blacks may very
well have been hindered in obtaining recommendations from their foremen
since there is no familial or social association between the two groups."
Rowe v. G.M. Corp., 457 F.2d 348, 359 (5th Cir. 1972). The individual
testimony as to discrimination in detailing brought "the cold numbers con
vincingly to life." Teamsters v. United States, supra, 431 U.S. at 339.
Finally, in and of itself, the statistical evidence established
a prima facie case of discrimination in detailing a case which was unrebut
ted by USPS. Teamsters v. United States, 431 U.S. at 339. Out of 295
details at levels 10 and above over an eight year period (1970-1978)
only 8, or 3% went to black employees (M.O. 58-60). With one exception,
blacks have been completely excluded from all details in levels 11
through 17 (id.). The discrepancy between the percentage of black employees
and the percentage of all higher level details (levels 7-17) was never less
than 10% pre-suit and close to that post-suit (id.). This Court has found
significant statistics in other cases that are not as corrpelling as those
40/
present here, and upon which USPS relies.
40/ Barnett v. W. T. Grant Co., supra, 518 F.2d at 549; Brown v. Gaston
County Dyeing Mach. Co., supra, 457 F.2d at 1380-1382.
- 41
D. Discipline
The court's undisputed findings on the overwhelming statistical
showing on discipline are described at pp. 12-13, supra. USPS's argu
ment that the gross disparities may be due to the identity of supervisors
points out the very flaw in USPS' discipline system. Disciplinary
determinations which depend almost entirely upon the subjective evalua
tions of white supervisors "are a ready mechanism for discrimination against
Blacks." Rowe v. General Motors Corp., 4-57 F.2d 348, 359 (5th Cir. 1972).
This Court, as well as other Courts of Appeals, have expressed realistic
skepticism that black persons directly dependent upon whites for evalua
tions can expect non-discriminatory treatment. See Cypress v. Newport
News General and Monsectarian Hosp. Ass'n, 375 F.2d 648, 655 (4th Cir'.
1967); Hawkins v. North Carolina Dental Society, 355 F.2d 718, 723-724
(4th Cir. 1966), cited with approval in Crawford v. Western Electric
Co., Inc., 614 F .2d 1300, 1315-1317 (5th Cir. 1980) (Title VII case where
subjective evaluations by white foreman of black employees found discrim
inatory). The overwhelmingly statistical proof of disproportionate
disciplinary action against black enployees, coupled with the total lack
of objective standards or safeguards and evidence as to individual cases
of discrimination in discipline (M.O. 63-64) leave the district court's
41/
findings unassailable.
41/ USPS cannot complaint of the need to fine tune statistics, given
the consistently gross disparities in discipline over an eight-year
period. Cf., Teamsters v. United States, 431 U.S. 324, 342 n. 23 (1971).
USPS has all records relating to discipline in this case, yet came for
ward with neither a single document nor witness to show that any statis
tics were inaccurate. The Supreme Court has rejected a defense that
statistics were too generalized in a similar case.
cont'd
- 42
E. Individual Claims
The district court's findings on individual claims are not clearly
erroneous (M.O. 67-96, 119-123). USPS simply failed to marshall any
proof as to its reasons for denial of specific promotions or details,
but relied on speculation by one not involved in the selection process.
£2/
See, Albemarle Paper Co. v. Moody, supra, 4-22 U.S. at 433, n. 32.
41/ Continued
"If the employer discerns fallacies or defi
ciencies in the data offered by plaintiffs,
he is free to adduce countervailing evidence
of his own. In this case no such effort was
made."
Dothard v. Rawlinson, 433 U.S. 321, 331 (1977).
The cases cited by USPS for their argument that discipline is
difficult to deal with in the class action context, see, Brief, 34, do
not apply since Chisholm and other witnesses who testified presented
claims typical of the class.
The cases cited by USPS for their argument that it was error to
have the judgment encompass disciplinary issues have nothing to do with
the issue. These cases were not even brought under Title VII but,
rather, raised procedural due process claims. Brief, p. 35.
42/ The court heard the testimony and evaluated the credibility of
each plaintiff or individual class member who presented a claim.
Liability was found on two alternative standards of recovery, first, that
each individual was a presumptive victim of discrimination upon the show
ing of classwide overall promotion system discrimination, Sledge v. J.P.
Stevens 6 Co., supra, 585 F.2d 637-638, and, second, the more difficult indi
vidual case analysis standard of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-804 (1973); Fumco Construction Corp. v. Waters, 438 U.S. 567 (1978);
- 43 -
USPS contests only findings in five of 17 individual cases. With
respect to Chisholm, the administrative finding of discrimination in the
finance examiner position, which USPS ignores, was not challenged and is
the law of the case (M.O. 120). USPS did not demonstrate by clear and
convincing evidence that Chisholm would not have received the promotion
if he had been interviewed, the standard imposed by applicable regula
tions, 29 C.F.R. § 1613.271(a)(1), and authority, Day v. Mathews, 530 F.2d
1083 (D.C. Cir. 1976) (M.O. 68-72, 120-121). No promotion advisory board
member, for example, testified. The court also found discriminatory
assignment of details for whites and denial to Chisholm which affected
his promotion opportunities. (Id.) Although the administrative decision
required that he be given priority consideration "for promotion to the
first available position for which he applies in which he meets the mini
mum qualifications," he was discriminatorily denied promotion to a level
21 finance position (M.O. 71). It therefore was proper for the court to
grant Chisholm the promotion he was discriminatorily denied (J. 2) and
23/
the findings are not clearly erroneous.
22/ Continued
Wright v. National Archives, 21 FEP Cases 8 (2th Cir. 1979), and the sub
sequently-decided Texas Dept, of Community Affairs v. Burdine, 29 U.S.L.W.
2212 (March 2, 1981). USPS failed to carry its burden under either
standard (M.O. 122-123).
USPS consistently failed to show the actual factors used by promotion
advisory boards and others for particular personnel actions detrimental to
black employees, but consistently relied on speculation about greater
seniority and experience of white employees by a personnel specialist who
never participated in the actual selections and did not know the actual
reasons for employee actions. (Id., Tr. 825-835). Indeed, Federal Personnel
Nfenual, ch. 335-6, states that: "Length of service or experience may not be
the factor given the greatest weightor consideration unless the nature of the
job is such that other factors cannot be expected to identify significant
qualitative differences between qualified candidates." (emphasis added).
No such showing was attempted.
23,/ USPS is wrong, for instance, that the initial level supervisory exam
ination Chisholm failed in 1968 is not relevant. Brief, 12. The 1968
_ 22
The court was entitled to conclude on the basis of his testimony
and documentary evidence that Rushing should be granted a level 17
position (M.O. 72-75, Tr. 214-224, PX 48, 101-104,- 108). USPS presented
no rebuttal of any kind. The court's finding that Rushing was discrim
inated against is not clearly erroneous. For instance, Rushing was
more highly rated by two of three promotion advisory board members for
a promotion (M.O. 74-75, 122). The only rebuttal to Lee's prima facie
case of denial of a higher level senior postal service data technician
position (M.O. 117-118) is that the white applicant was senior and
speculation that seniority was a factor in the selection (Tr. 808-809)
although higher level promotions do not turn on seniority (M.O. 30).
The court's findings were not clearly erroneous. For instance, it is
undisputed that Lee had greater experience than the white applicant,
that the white applicant had been detailed into the position for a
year prior to selection, and that the promotion advisory board included
two supervisors who detailed the white employee (M.O. 84-85).
The court’s findings in the individual cases of McCombs (M.O. 77-79)
and Yongue (M.O. 90) are also not clearly erroneous. USPS presented no
proof that McCombs was not qualified for promotion or had not been dis
criminated against. USPS' only evidence as to Yongue's promotion was
the greater experience of the white employee (Tr. 809-810) without any
43/ Continued
examination register was in effect from February 1969 through February
8, 1971 (M.O. 20). Moreover, Chisholm passed, but did not score high
enough to be given any details or promotions from the 1970 examination
until a post-complaint detail (M.O. 68). USPS also is wrong that
Chisholm did not make known his interest in finance positions. Brief,
16. He was denied a finance position in 1968-69 (M.O. 68), and details
are not applied for.
- 45 -
evidence that greater experience in fact was the factor relied on in deny
ing Yongue the promotion.
IV.
The Judgment Is Well Within the
Equitable Discretion of the Court.
In Albemarle Paper Co. v. Moody, 4-22 U.S. 4-05, 418 (1975), the
Supreme Court declared the duty of the district court in framing equitable
relief in a Title VII action is "to make persons whole for injuries suf
fered on account of unlawful employment discrimination."
Where racial discrimination is concerned, "the
[district] court has not merely the power but
the duty to render a decree which will so far as
possible eliminate the discriminatory effects of
the past as well as bar like discrimination in
the future." Louisiana v. United States, 380 US
145, 154 (1965).
The trial court's discretion in shaping relief is thus broad. Sledge v .
J . P . Stevens 6 Co., supra, 585 F.2d at 643; Barnett v. W. T. Grant Co.,
supra, 518 F.2d at 550; United States v. Ironworkers Local 86, 443 F.2d
553 (9th Cir. 1971).
USPS' various technical objections to the form of the judgment do not
establish any abuse of the lower court's equitable judgment. Thus, the
court's injunction that defendants are enjoined from discrimination
against the class "with respect to promotions (including all components
of the promotion process), details, the use of written tests, disci
pline, or pay, in any fashion, intentionally or unintentionally, because
of their race or color" (J. 1) is appropriate: It is based on detailed
findings of fact. See, pp. 7-13, supra. USPS is put on notice of dis
criminatory practices enjoined. Moreover, "Title VII is not concerned
with the employer's 'good intent or absence of discriminatory intent'
for Congress directed the thrust of the Act to the consequences of
employment practices, not simply the motivation." Albemarle Paper Co.
v . Moody, supra, 422 U.S. at 422, quoting, Griggs v. Duke Power Co.,
44/
401 U.S. 424, 432 (1971). Such remedial provisions are common. In
any event, "[w]hen infringements of civil rights have taken or may
take place ... courts are justified in issuing decrees that embrace
a fairly wide range of conduct." 11 Wright & Miller, Fed. Pract. & Pro.,
45/
§ 2955, pp. 548-549 (1973) (construing Rule 65(d), Fed. R. Civ. Pro.).
In particular, the court below was well advised in concluding that a
more narrowly drawn injunction might be circumvented in light of USPS'
intransigence in curing discriminatory practices its own administrative
procedures long ago revealed. See, e.g., FTC v. Ruberoid Co., 343 U.S.
470, 473 (1952).
USPS argues that the affirmative promotional relief is inappropriate
because discrimination ended as early as 1972. The court, however, found
continuing violations of Title VII beginning before 1970 and continuing to
the date of trial. See, pp. 7-13, supra. Nor does USPS claim that
44/ See, e.g., Franks v. Bowman Transportation Co., 424 U.S. 747, 751
(1976); Moody v. Albemarle Paper Co., 474 F.2d 134, 137 (1973), vacated
and remanded on other grounds, 422 U.S. 405 (1975); Sledge v. J.P. Stevens
& Co., Inc., 585 F.2d 625, 643 (4th Cir. 1978), aff'g in pertinent part,
12 EPD 1T 11,047 at p. 643 (E.D. N.C. 1976); Sherrill v. J.P. Stevens Co.,
551 F.2d 308 (4th Cir. 1977), aff'g, 410 F. Supp. 770, 833 (W.D. N.C.
1975); see also, United States v. Warwick Mobile Homes Estates, Inc.,
558 F.2d 194 (4th Cir. 1977).
^ Schmidt v . Lessard, 414 U.S. 473 (1974), involving a judgment entered
"in accordance with the Opinion," is in no way comparable to the provision.
Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 897-898 (5th Cir.),
cert, denied, 434 U.S. 835 (1977), involved a bar to "[discriminating
on the basis of color, race, or sex in employment practices or conditions
of employment." In contrast, the provision in the instant case specifies
discriminatory practices enjoined, and concerns only discrimination on
the basis of race.
- 47 -
46/
discriminatees have been put in their "rightful place." Affirmative
relief, therefore, was appropriate. See, Albemarle Paper Co. v. Moody,
supra, 422 U.S. at 418; United States v. W. T. Grant Co., 345 U.S. 629,
633 (1953); United States v. Warwick Mobile Homes Estates, Inc., 537
F.2d 1148, 1150-51 (4th Cir.1976). "'[A] court cannot abdicate to defend
ants' good faith its duty of insuring removal of all vestiges of discrim
ination, United States v. County of Fairfax, 629 F.2d 932, 941-942
(4th Cir. 1980), citing, Barnett v. W.T. Grant Co., supra, 518 F.2d at
550 (the conclusion that affirmative relief was necessary is within the
court's discretion) See, United States v. W.T. Grant Co., supra; United
States v. Hunter, 459 F.2d 205, 220 (4th Cir.), cert, denied, 409 U.S.
934 (1972); Cypress v. Newport News Gen. 8 Nonsectarian Hosp. Ass'n, 375
F -2d 648 (4th Cir. 1967). The district court expressly found that what
ever progress was made in promotions was made because of the pressure of
the lawsuit rather than a real change in USPS practices (e.g., M.0. 107).
Compare, United States v. Local 58, IBEW, 428 F.2d 144, 151 (6th Cir.),
_47/
cert, denied, 400 U.S. 943 (1970).
The suggestion that collective bargaining agreements are adversely
affected in some unexplained way has no record support and was not raised
4c/ With respect to leaving affirmative action to administrative offi
cials, the court found that USPS violated executive order and Title VII
and Fifth Amendment affirmative action requirements guarantees from at
least March 1970 to the present.
47/ Sledge v. J.P. Stevens 8 Co., Inc., supra, 585 F.2d at 644-651, is
inapposite. Unlike the long term goals which the district court was
careful to direct should be used "as a goal but not as a rigid quota"
and that the "goal is to be used as a framework by defendants," Sledge
involved blanket rigid quotas. Indeed, if class members who prove their
claims of past discrimination are promoted, it is likely that the goals
will be largely reached. Moreover, in Sledge, the defendant was specif
ically found to have not consciously engaged in discriminatory employment
- 48 -
as an issue below. The issue is therefore foreclosed. Singleton v .
Wulff, 4-28 U.S. 106, 120 (1976); Provident Tradesmen B. 6 T. Co. v .
Patterson, 390 U.S. 102, 110 (1968). In addition, no collective bar
gaining agents came forward to intervene, and defendants never made any
motion to join in seven years of litigation. In any event, Title VTI
rights cannot be bargained away. Robinson v. Lorillard Corp., 444 F.2d
791, 799 (4th Cir.), cert. denied, 404 U.S. 1006 (1971).
Nor is it true that the record does not support other relief.
The EE0 Employee Complaints Representative is a specific remedy for the
court's uncontradicted finding that USPS EE0 procedures were ineffective
(M.O. 65-66, 119). The suspension of assignment of excessed employees to
Charlotte is based, on undisputed findings that many of the excessed
supervisors were less qualified than black employees who often trained them
for their duties (M.O. 34-35), and no showing was made that excessing
was necessary for the operation of USPS in Mecklenburg County.
The unopposed motion for an interim award of attorney's fees was
well supported with affidavit evidence (Mot., Dkt.), and the court's
order clearly articulates the bases of the award (Order). The interim
award was not an abuse of discretion. Bradley v. Richmond School Board,
416 U.S. 696 (1974); James v. Stockham Valves, 559 F.2d 311, 358-359 (5th
Cir. 1977).
47/ Continued
practices or deliberately chosen to violate Title VII. In contrast, USPS
was found to have persisted in practices it knew were discriminatory for
years.
- 49 -
CONCLUSION
The judgment and memorandum opinion of the district court should
be affirmed.
Respectfully submitted,
^ / '
JONATHAN WALLAS
Chambers, Ferguson, Watt,
Wallas, Adkins & Fuller, P.A.
951 South Independence Boulevard
Charlotte, North Carolina 28202
(701) 375-8151
LOUIS L. LESESNE, JR.
Gillespie & Lesesne
2060 First Union Plaza
Charlotte, North Carolina 28282
(701) 372-5700
JACK GREENBERG
BETH J. LIEF
BILL LANN LEE
Suite 2030
10 Columbus Circle
New York, New York 10019
(212) 586-8397
Attorneys for Plaintiffs-Appellees
. j
i
° CERTIFICATE OF SERVICE
I hereby certify that copies of the Motion of Plaintiffs-Appellees
to File Brief Out of Time by One Day and foregoing Brief for Plain
tiffs-Appellees were served on counsel for the parties by prepaid first
class mail this 22nd day of May, 1981, addressed to:
50 -
*
0
Stephen E. Alpem, Esq.
David G. Karro, Esq.
David Fishman, Esq.
Office of Labor Law
United States Postal Service
4-75 L'Enfant Plaza, S.W.
Washington, D . C . ,^20260
Attorney, for Plaintiffs-Appellees
/
4
4
*