Shipp v TN Department of Employment Security Appellants Reply Brief

    IN THE

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

No. 76-1515
v — -----------------------
*

ERONEOUS SHIPP, et al.,
Plaintiffs-Appellants,

vs.

MEMPHIS AREA OFFICE, TENNESSEE DEPARTMENT 
OF EMPLOYMENT SECURITY, et al.,

Defendants-Appellees.

Appeal From The United States District Court For The 
Western District of Tennessee, Western Division

APPELLANTS' REPLY BRIEF

WILLIAM E. CALDWELL 
520 Woodward Building 
733 Fifteenth Street, N.W. 
Washington, D.C. 20005

JACK GREENBERG 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

ELIJAH NOEL, JR.
Ratner, Sugarmon, Lucas & Salky 
525 Commerce Title Building 
Memphis, Tennessee 38103

Attorneys for Plaintiffs-Appellants



INDEX

Page

Jurisdiction ............................................. 2

Class Action ............................................. 5

TDES Discriminated In Referrals ........................  19

The Legality of Defendants' Employment
Tests Was Raised Below ............................... 25

The Tests Used By Defendants Are Unlawful .............. 32
Servicing of Discriminatory Employers ..................  39

Shipp's Individual Claim ................................ 40

Conclusion ............................................... 42

-l-



TABLE OF AUTHORITIES

Page

Baxter v. Palmigiano, 47 L.Ed. 2d
810 (1976 ...........................................  19

Board of School Commissioners v. Jacobs, 420
U.S. 128 (1975) ....................................  19

Boston Chapter, NAACP, Inc. v. Beecher,
371 F.Supp. 507 (D. Mass. 1974) ....................  34

Bridgeport Guardians, Inc. v. Members of 
Bridgeport Civil Service Commission,
482 F .2d 1333 (2d Cir. 1973) .......................  34

Brown v. General Services Administration,
48 L.Ed. 2d 402 (1976)   4

Campbell v. Gadsden County District School
Bd., 534 F . 2d 650 (5th Cir. 1976) ..................  2

City of Kenosha v. Bruno, 412 U.S. 506
(1973) ............................................... 2

E.E.O.C. v. Detroit Edison Co., 515
F . 2d 301 (6th Cir. 1975) ............................ 18, 19

E.E.O.C. v. MacMillan Bloedel Containers,
Inc., 503 F . 2d 1086, 1095 (6th Cir. 1974) .........  4

Electrical, Radio & Machine Workers, etc., 
v. Robbins & Myers, Inc., 45 U.S.L.W.
4068 (1976) .........................................  4

Garrett v. City of Hamtramck, 503 F.2d
1236 (6th Cir. 1974) ................................ 17, 18

Kirkland v. New York State Dept, of
Correctional Services, 374 F.Supp. 1361
9S.D.N.Y. 1974) .....................................  34

Matthews v. Diaz, 48 L.Ed. 2d 478 (1976) .............. 19

Monroe v. Pape, 365 U.S. 167 (1961) ...................  2
Northcross v. Board of Education of City of

Memphis, 333 F.2d 661 (6th Cir. 1964) .............. 15

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Page

Parham v. Southwestern Bell Telephone Co.,
433 F . 2d 421, 425 (8th Cir. 1970) ...................  15

Rice v. Gates Rubber Co., 521 F.2d 782
(6th Cir. 1975)   15

Rogers v. Paul, 382 U.S. 198 (1965) ................  14, 15, 38

Rolfe v. County Board of Education, 391 F.2d
77 (6th Cir. 1968)   24

Senter v. General Motors Corp., 532 F.2d 511
(6th Cir. 1976) ..................................  12, 19, 24

Sethy v. Alameda County Water Dist., 545 F.2d 1157
(9th Cir. 1976)   2

Terminello v. Chicago, 337 U.S. 1 (1949) ............... 41

Thorpe v. Housing Authority of Durham,
393 U.S. 298 (1969)   4

Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205 (1972) .....................................  38

United States v. State of North Carolina,
400 F.Supp. 343, 350 (E.D.N.C. 1975) ................  33

;
Statutes;
42 U.S.C. § 1981 ........................................  2, 3

42 U.S.C. § 1983 ........................................  2, 3

1964 Civil Rights Act § 701 ..........................  2, 3, 4/
Pub. Law 92-261 .........................................  4

Rules:

Federal Rules of Civil Procedure, Rule 19 .............. 3, 4

Federal Rules of Civil Procedure, Rule 21 .............. 3

Federal Rules of Civil Procedure, Rule 23 .............. 12, 13

Federal Rules of Civil Procedure, Rule 52(a) 24, 40

-in-



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

No. 76-1515

ERONEOUS SHIPP, et al.,

Plaintiffs-Appellants,

vs.

MEMPHIS AREA OFFICE, TENNESSEE DEPARTMENT 
OF EMPLOYMENT SECURITY, et al.,

Defendants-Appellees.

Appeal From The United States District Court for the 
Western District of Tennessee, Western Division

APPELLANTS' REPLY BRIEF

Plaintiffs-Appellants Eroneous Shipp, et al., 

submit this Reply Brief in response to the Brief of

Appellees



Jurisdiction

Appellees correctly concede that jurisdiction over

TDES exists by virtue of section 701(c) of the 1964 Civil

Rights Act which included within the scope of Title VII any

state employment service receiving federal assistance. Brief
1/

for Appellees, p. 10. This jurisdictional basis should be 

insufficient for the award of the relief sought in this action.

Jurisdiction over all the defendants is also alleged
2

under 42 U.S.C § 1981, a provision not discussed by appellees. 

Unlike § 1983, § 1981 is not limited in its application to 

"persons," and thus does not fall under the construction of 
§ 1983 in Monroe v. Pape. 365 U.S. 167 (1961) and City of 

Kenosha v. Bruno, 412 U.S. 506 (1973). Campbell v. Gadsden 
County District School Bd.. 534 F.2d 650 (5th Cir. 1976);
Sethy v. Alameda County Water Dist., 545 F.2d 1157 (9th Cir. 
1976) .

Jurisdiction over the individual defendant, Jane L. 
Hardway, exists by virtue of 42 U.S.C. § 1983, since a state 

official alleged to have engaged in unlawful discrimination 

may be sued as a "person" under that statute. The Amended 

and Supplemental Complaint squarely alleges complicity by 

defendant Hardway and the Department of Personnel in the dis-
ucrimination at issue in this case.

1/ Paragraph I of the Answer reads: "The Defendant admits
that the Court has jurisdiction pursuant to the statutes 
named in the complaint." 12a.

2/ Complaint, p. 1, 5a.

_3/ Amended and Supplemental Complaint, p. 3, 35a; see 
also Answer of Tennessee Department of Personnel and 
Commissioner Jane L. Hardway, p. 2, 39a.

-2-



employment discrimination, the Department must be deemed 

within the scope of section 701(c). Functions normally 

performed by a state employment service subject to section 

701(c), such as the hiring and promotion of personnel, cannot 

be placed beyond the reach of section 701(c) merely by dele­

gating them to other state officials. Finally, whatever 

the reach of section 701(c), Title VII was amended in 1972 

to apply to all state and local government agencies. Pub. Law 

92-261. Although this occurred a year after the commencement 
of this action, such new legislation must generally be applied 

to actions such as this pending on the date of enactment.

Thorpe v. Housing Authority of Durham, 393 U.S. 298 (1969).

The Supreme Court has specifically indicated that the 1972 

amendments should be applied to cases in that year. Brown 
v. General Services Administration, 48 L.Ed. 2d 402, 406 

(1976); Electrical, Radio & Machine Workers, etc, v. Robbins 

& Myers, Inc., 45 U.S.L.W. 4068, 4071 (1976).
Regardless of whether there was an independent basis of 

jurisdiction over the Department of Personnel, addition of 

that defendant under Rule 19, Federal Rules of Civil Proce­

dure, was clearly authorized by "Title VII1s grant of broad 

equitable powers to the courts." E.E.O.C. v. MacMillan Bloedel 

Containers, Inc., 503 F.2d 1086, 1095 (6th Cir. 1974) (Union 

can be joined under Rule 19 despite absence of E.E.O.C.charge 

against it).

-4-



Class Action

The procedural history of the class action

issue is as follows: The complaint in this action,

filed on September 16, 1971, alleged that class action

on behalf of victims of discrimination practiced by
5_/

TDE3. In its answer of October 26, 1971, TDES stated

with regard to this issue "It is vigorously denied that

this is a proper class action because the Defendant does
not now nor has in the past engaged in any pattern or

practice of discrimination with respect to race, creed
_6_/

or color as to persons who are referred for employment."

5 / Paragraph III of the Complaint stated in part:

"Plaintiff sues on behalf of himself and 
all others similarly situated, pursuant to Rule 23 
of the Federal Rules of Civil Procedure. The 
class which plaintiff represents is composed of 
Negro persons similarly situated who have been, 
are being or will be subjected to unlawful and 
unconstitutional discriminatory practices in­
stituted, maintained, encouraged, engaged in or 
knowingly permitted by the defendant, as here­
inafter more fully appears. The class is so 
numerous that joinder of all members is imprac­
tical. There are questions of law and fact common 
to the class. The claims or defenses of the plain­
tiff are typical of the claims or defenses of the 
class. Plaintiff will fairly and adequately protect 
the interests of the class. Defendant has acted on 
grounds generally applicable to the class, thereby 
making appropriate release with respect to the class 
as a whole. The question of law and fact common to 
the members of the class predominate over any ques­
tions affecting the individual plaintiff, and a class 
action is superior to other available methods for the 
fair and efficient adjudication of the controversy." 
App.

6 / Answer, 5 III, 12a.

-5-



This denial, on its face, was only an assertion with regard 

to the merits of the action, not an assertion that, even if 

the defendant was proven to have had a policy of discrimina­

tion, class action treatment would be inappropriate. The 

answer did not specifically deny, or address, the detailed 

class action allegations in paragraph III of the complaint.

The parties engaged in extensive discovery, on 

both the class and individual claim, from the fall of 1971 

until early 1974. A pre-trial conference was held on March 3, 

1974, to determine the legal and factual issues requiring 

resolution by the District Court. Plaintiffs, in their pro­

posed pre-trial order, suggested that one of the outstanding 

questions was the propriety of class action treatment. Counsel 
for TDE3, Mr. Durham, expressly agreed that the case was a 

proper class action, and suggested that this issue therefore
_z_/be deleted. On the basis of this agreement the parties sub­

mitted, and the District Court on March 11, 1974, approved, 
a pre-trial order which did not list the class action question 

among the issues to be resolved. The order further provided 

that, at the hearing to begin on March 20, 1974, plaintiffs 

would present all their evidence and the defendants would 

present their evidence regarding the individual claim of 

Mr. Shipp. The hearing regarding the class claims was then 

to be adjourned until a later date to allow the defendants 

more time to prepare evidence regarding and "to respond to 

the class action aspect of plaintiffs' case."

_7_/ on March 15, 1973, the District Court continued a trial 
date originally set for March 14, 1973, so that "discovery 
on the class action aspect of the case" could be completed.

-6-



On March 12, 1974, plaintiffs filed a Pre-Trial 

Memorandum which dealt largely with the evidence regarding

the class claim and the law regarding what was sufficient
8 /

to establish a prima facie case. On March 18, 1974, the
defendants filed a Pre-Trial Memorandum dealing largely

with the class claims, and which stated in part:

The claim is that black people are dis­
criminated against as a class. . . .
The defendants admit that if plaintiffs 
can make out a class of racial discrimina­
tion by a State agency in connection with 
employment opportunities, they would be 
entitled to injunctive relief. 64a.

Defendants, however, continued to deny that such a policy 

of discrimination existed.

Three days of hearings were held on March 20-22, 

1974, in the manner provided for in the agreement of March 3 

and the pre-trial order of March 11, 1974. Counsel for plain­

tiffs, in his opening statement, asserted that,

the plaintiff brings this case not only 
on its own behalf, but he brings it on 
behalf of the class of black citizens 
which, whom, we believe the proof will 
show to be adversely affected by, pri­
marily, the job classifications, the 
job referral practices of the Memphis 
Office of the Tennessee Department of 
Employment Security. . . . [T]he in­
dividual plaintiff has, patiently and 
faithfully pursued this case, not only 
on his own behalf, but on behalf of all 
persons similarly situated, but we think 
that the plaintiff's particular fact 
situation is exemplary and typical of 
what happened in the Memphis labor market 
insofar as the Memphis area office of 
Tennessee Employment is concerned.
Transcript of Hearing of March 20, 1974, 
pp. 26, 32 ; 69a.

8 / 51a-61a. Of the five page summary of the evidence
to be presented, only one paragraph dealt with the individual 
claim.

-7-



Mr. Durham for the defendants opened with a summary of

"what to expect in the way of the proof as to the class
_2_/

action." The bulk of the testimony heard during these
ID./three days dealt with the class claims. After the con­

clusion of the testimony Mr. Durham stated he intended

to "make a motion for a directed verdict on the class
Xl/action aspect," and that, while evidence on the indivi­

dual claim was now complete, he would present further
22/evidence on the class claim at a subsequent hearing.

The Court agreed that defense evidence on the "class action
JL3/aspect" would be entertained at a later date.

On April 15, 1974, the defendants moved for a 

directed verdict on the merits of the class claim. On

9 / Transcript of Hearing of March 20, 1974, p. 32.

10/ The testimony of Robert Chaffin (44 pages), Charles 
Radford (38 pages), Hubert Murphy (23 pages), Martin Mador 
(68 pages), Joseph Ullman (108 pages) and Emma Batchelor 
(42 pages) dealt primarily or exclusively with the class 
claims. The testimony of Erroneous Shipp (53 pages), 
Mildred Ewing (28 pages), Sarah Askew (42 pages), Robert 
Phillips (24 pages) and Bert Fletcher (18 pages) dealt 
primarily with the individual claim.

11/ Transcript of March 22, 1974, p. 122.
_U>/ " [T]he class action would be the only thing remain­
ing, the only thing remaining would be the class action 
case, if these ware going to be any rebuttal." Id., 
p. 128.

13/ Id.

-8-



June 13, 1974, the District Court took this motion under 

advisement and directed the defendants "to go forward 

with their proof and evidence in response to the class
ja /action aspect of this case." An additional day of 

testimony on the class claim was held on April 23, 1975. 

Subsequently plaintiffs filed a 76 page Proposed Findings 

of Fact and Conclusions of Law. Of 64 pages of proposed 

findings of fact, 49 pages dealt with the class claim and 

11 pages concerned the individual claim. Plaintiff speci­

fically requested an express finding embodying the agree­

ment of March 8, 1974, that the case was a oroper class
JJ/

action. The defendants filed an 8 page Proposed Findings 

of Fact and Conclusions of Law which contained the following 
paragraph:

14 / 738a.

15 / Paragraph 3 of the proposed Conclusions of Law read:

"Plaintiff may properly maintain this action 
on behalf of all black persons who have utilized, 
who do utilize and who will utilize the employment 
services of the Memphis Area Office. Rule 23(b) (2), 
Fed. R. Civ. P.; Afro American Patrolmen's League 
v. Duck, 503 F .2d 294, 298 (6th Cir. 1974); Roberts 
v. Union Co.. 487 F.2d 387 (6th Cir. 1973); Matthews 
v. St. Joe Paper Co., C.A. No. 73-462 (W.D. Tenn.
April 19, 1974). The class which plaintiff represents 
is so numerous that joinder of all members is imprac­
ticable; there are common questions of law and fact 
applicable to the class; plaintiff's claims are 
typical of the claims of the class; plaintiff will 
fairly and adequately protect the interests of the 
class; and defendant has acted or refused to act 
on grounds generally applicable to the class, thereby 
making appropriate final injunctive and declaratory 
relief with respect to the class as a whole." 973a.

-9-



This case is not properly maintainable 
as a class action because the named plaintiff 
was not improperly denied referral and thus 
does not represent the class and because the 
members of the putative class, numbering 
thousands, are too numerous. Eisen v. Carlisle 
& Jacquelin. 414 U.S. 1141 (1974). 908a. 16/

Plaintiffs replied to this sentence at length, noting the 

prior agreement as to the propriety of the class action and 

discussing the merits of the contentions made by the de­
fendants .

Finally, defendants argue (for the first 
time since they filed their answer) that this 
case— after several years of preparation and 
trial as a class action—  is not a proper 
class action. First, they argue that "because 
the named plaintiff was not improperly denied 
referral...[he] thus does not represent the 
class...." This contention is wrong. See, 
e.g., Roberts v. Union Co., 487 F.2d 387 (6th 
Cir. 1973). Second, they argue, citing Eisen 
v. Carlisle & Jacquelin, 417 U.S. 156 (1974), 
that "the members of the putative class, num­
bering thousands, are too numerous" for the 
case to be maintained as a class action. 
Defendants' "too numerous" argument seems 
frivolous on its face, but it certainly finds 
no support in Eisen. That case was a Rule 
23(b)(3) class action; where, as here, the 
requirements of Rule 23(b)(2) are met, the 
problems addressed in Eisen are of little if 
any import. See, e.g., Wetzel v. Liberty Mutual 
Ins. Co., 508 F.2d 238 (3d Cir.), cert. denied,
43 U.S.LoW. 3644 (June 9, 1975). Finally, we 
observe that defendants 1 post-trial class action 
position is wholly inconsistent with their prior 
acquiescence in the trial of this case as a class 
action. In an early draft of the pre-trial order 
entered March 11, 1974, plaintiff's counsel had 
proposed to include an issue relating to the pro­
priety of maintaining this action on a class 
basis. At the direction of defendants' counsel 
this proposed issue was deleted, and the agreed- 
upon pre-trial order that was entered makes no 
mention of any issue relating to the class suit. 
In their pre-trial memorandum filed March 13, 
1974, defendants did not challenge maintenance

16/ The defendants, in their brief in this Court, appear to 
have repudiated the first argument and abandoned the second. 
See Brief for Appellee, pp. 15-16.

-10-



of the case as a class action; rather, they 
dealt with the merits of the class claim.
And in their "Motion for Directed Verdict" 
filed April 5, 1974, defendants accepted the 
case as a class action and sought a judgment 
on the merits. Defendants' present class 
action position is belated and stale; it is 
inconsistent and unfair; and it is wrong. 991a-992a.

The defendants filed no response indicating any disagreement

with this description of their earlier position.

On September 25, 1975, the District Court entered
its decision on the merits of the class claim. It stated
in part:

This was filed as a class action on behalf 
of similarly situated black persons charging 
defendant with individual and class-wide 
race-based discrimination in its job referred 
and related services, as well as in its own 
employment practices. . . .  The court entered
an order on December 20, 1974, after hearings 
with respect to Shipp's individual claim, deny­
ing him relief but without adverse effect upon 
the class action aspects of the case . . . .
Further hearings were held as to the latter 
asserted class action claims, and expert 
testimony was adduced by both sides . . . .
From these findings the court concludes that 
the court does have jurisdiction of this 
cause, including the class action allegations 
made by plaintiff Shipp as to all defendants. 994a, 
995a, 1007a.

The last sentence of this order appears to be an inartfully 

drawn approval of the case as a class action.

Notwithstanding this procedural history, defendants 
maintain in this court that this case is not a proper class 

action. They appear to urge, in the alternative, (a) that 

the class action claims were abandoned by plaintiffs below,
(b) that the District Court rejected this as a class action, 

or (c) that the facts of this case make class action treat­
ment inappropriate. Defendants thus urge that this Court

-11-



hold the four years of discovery and trial of the class 

action claim were a nullity, and that this Court is thus 

without power to review on the merits the District Court's 
decision on the merits of that claim.

Plaintiffs maintain, first, that the defendants, 
having agreed at the pre-trial conference of March 8, 1974, 

that this case is a proper class action, cannot now argue 

the opposite position. Certainly defendants, having made 

such an agreement and suggested that a formal resolution 

of the propriety of a class action was unnecessary, cannot 

now complain that the plaintiffs acceded to their suggestion 

and did not move for formal certification at an early stage 

of the litigation.

Second, we contend that the undisputed fact that 

the District Court did in fact try and decide on the merits 
the class action claim, together with the language quoted 
supra, p. 11, are sufficient to constitute the order con­
templated by Rule 23(c)(1), Federal Rules of Civil Procedure, 

approving the class action. See Senter v. General Motors 
Corp., 532 F .2d 511, 524 (6th Cir. 1976).

Third, plaintiffs urge that their proposed pre­

trial order of March 1974, and paragraph 3 of their proposed 

Conclusions of Law, each constitute an adequate request for 

certification of the class action. If this Court concludes 

that the District Court failed to fully resolve this issue, 

that question can properly be decided here.

-12-



Fourth, we believe the circumstances of this case

clearly require class action treatment. Appellees do not,

and could not, deny that the general requirements for a

class action are met here: the class of alleged victims

is too numerous for joinder, the questions of law and fact

regarding defendants 1 practices are common to the class

and predominate over any questions affecting only individual

members, and the defendants are alleged to have acted on
racial grounds generally applicable to the class. See
Federal Rules of Civil Procedure, Rule 23(b) (2).

Defendants now offer four narrow objections to
class treatment, none of which were raised below.

(a) Appellees urge that, since plaintiffs'
individual claim was rejected prior to
formal certification, it was within the

"discretion" of the District Court to deny
17/

class action treatment on this ground. In 

fact, however, the District Court never 

purported to exercise any such discretion,
.is/

or to deny class action treatment. Even 

if such discretion existed, which appellants 

deny, it could not be exercised in an action 

in which the individual claim was expressly 
reconsidered by the District Court when it

17/ Brief for Appellees, p. 16.

18/ See 1007a. In initially finding against the individual
claim the District Court expressly indicated it would nonetheless 
resolve the class claim on its merits.

-13-



decided the class claim. In this case the 

individual claim was decided before comple­

tion of the hearings on the claim solely 

because the defendants asked for, and 

obtained, an additional year, after plain­

tiffs 1 case on the class claim was heard, 

to prepare a defense. Under these circum­

stances the defendants are clearly estopped 

from claiming that the procedure they sought 

for deciding the class claim on its merits 

in fact made such a decision, and class action 
treatment, inappropriate.

(b) Appellees object that plaintiff never held 

or sought employment by TDES, and thus is 

not a member of the class of victims of
13/internal employment discrimination by TDES.

Plaintiff asserted in his complaint that the
discrimination' in referral to which he was

subject was due to discrimination in the hiring
2 Q/

of interviewers and other TDES personnel. The 

federal courts have consistently held that ag­

grieved citizens can sue to correct discrimina­

tion in the selection or hiring of government 

personnel with whom they deal. Rogers v. Paul.

19 / Appellees Brief, pp. 14-15.
20 / 8a.

-14-



382 U.S. 198, 200 (1965); (Students can sue 

to redress faculty segregation); Northcross

v. Board of Education of City of Memphis,
333 F.2d 661, 666 (6th Cir. 1964). A similar

standing is present in this case and necessary
to assure an adequate remedy for the problems

of discrimination in referral. Rogers v. Paul.

We note that in a case like Rogers it is unclear

whether the teachers, interviewers, etc., need
be regarded as members of a represented class.

It is sufficient to establish the remedial

authority of the court that relief concerning

the teachers, interviewers, is necessary to

protect the civil rights of the students,

applicants, etc. whose lives this affects.

(c) Appellees note that, several years after the

alleged discrimination against plaintiff, the

defendants modified their procedures to include
21/

the so-called "COMO" and "job bank" systems.
But "[t]he crucial issue in a suit of this kind 
is whether the plaintiff establishes . . . bias
at the time of his . . . employment and subsequent 

complaint to the EEOC, not the employment practices 

utilized two years later." Rice v. Gates Rubber Co., 

521 F .2d 782, 785 (6th Cir. 1975); Parham v. 
Southwestern Bell Telephone Co., 433 F.2d 421,

425 (8th Cir. 1970). Moreover, although appellees

21/ Brief for Appellees, pp. 16-17.

-15-



urge the present procedures are "different 

from those used at the time Shipp's claim 
arose," id., they do not assert that they 

have resorted to a totally novel form of 
discrimination. On the contrary, the defense 

presented below was that these changes had 
reduced, though not necessarily eliminated, the 

opportunities for discrimination which existed 

in 1969. Many of the specific problems of dis­
crimination alleged by plaintiff, including 

discrimination in the classification of appli­

cants and in the selection of TDES personnel, 

were unaffected by the use of COMO and the job 

bank. The physical division of TDES's referral 
offices, roughly along racial lines, has con­

tinued unabated. Even if, as alleged, the de­

fendants have reduced the degree of discrimina­

tion at TDES, such a partial improvement would 
not affect the propriety of class action treat­

ment.
(d) Appellees urge that appellants, although here 

briefing extensively the issue of discrimina­

tion employment tests, failed to pursue this
22/

below. Appellees rely on a statement by appel­

lants' counsel, Mr. Caldwell, that plaintiff
2 2 /

was not seeking "relief with regard to testing;" 

later in their brief, however, appellees correctly 
22/ Brief of Appellees, pp. 17-18.

23/ Id., p. 18.
-16-



concede that this statement was ''about the

issue of tests as allegedly required for

applicants for referral as opposed to tests

or other ranking criteria employed by the
Department of Personnel for applicants for

2A/employment." The extensive evidentiary

presentation offered by plaintiffs in the
District Court on the testing issue is set
out at pp. 25-32, infra.

Appellees urge this Court hold as a matter of law

that "Where there is no certification, the case must be treated
2-5/on appeal as though it were brought on behalf of a single party." 

This rather extraordinary rule would mean that a denial of, or 

failure to decide, a request for class action treatment could 

never be appealed, and that a defendants1 agreement that class 

action treatment was proper would operate to preclude precisely 

such treatment. No such rule is warranted by the cases on which 

appellees rely.

In Garrett v. City of Hamtramck, 503 F.2d 1236 (6th 

Cir. 1974), the plaintiffs never filed a formal motion for 

class certification. The case proceeded without a formal 
certification, but was tried, as here, as a class action. 

Subsequent to the trial the District Court entered an order 

with regard to four different urban renewal projects, and 

the defendants objected that they had understood, at the 

time of trial, that plaintiffs were seeking to represent 
only residents affected by three of the projects —  Wyandotte,

24J  Id., p. 63, 112 

25J  id., p. 12.
-17-



Denton-Miller and Grand Haven. On appeal this court upheld 

class action treatment as to the class of residents in those 

three projects, but held that the plaintiffs could not obtain 

class relief as to the fourth since they had failed to object 
to a pre-trial order delineating the class to include only 

the first three. 503 F.2d at 1243-48. The instant case is 

similar to that of the Denton-Miller and Grand Haven projects; 

appellees were of course aware of what class plaintiffs sought 

to represent and what issues were being tried at the 1973 and 

1974 hearings.
Although the Court in Garrett noted the obligation

under Rule 23(c)(1) to pass on the propriety of a class "as

soon as practicable," the Court did not hold that class

treatment was forever forfeited if such plaintiffs did not

immediately move for certification. On the contrary, the

Court upheld class treatment as to Denton-Miller and Grand

Haven even in the absence of such a motion or order, and

noted that the responsibility was not that of the parties
but, at least in the absence of a motion, of the district

judge: "the court has a duty to certify whether requested
2 6/

to do so or not." While we believe a formal order after 
the March 8, 1974, conference, might have avoided the problems 
posed by appellees subsequent conduct, we believe the District 

Court was entitled, as were we, to rely on the representations 

made by counsel for defendants at that conference.
Similarly, in E.E.O.C. v. Detroit Edison Co., 515

26/ 503 F .2d at 1243.

-18-



F.2d 301 (6th Cir. 1975), the private plaintiffs never sought,
and the District Court never issued, a formal certification

order; there, as here, the case simply proceeded to trial as

a class action. This Court, while again urging the lower courts

to proceed in a more formal manner, never questioned the power

or responsibility of the lower court in such a case to decide

the merits of the class claim. See also Senter v. General

Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976).

Board of School Commissioners v. Jacobs, 420 U.S. 128

(1975); Matthews v. Diaz, 48 L.Ed. 2d 478 (1976) and Baxter v.

Palmigiano, 47 L.Ed. 2d 810, 817 n. 1 (1976) all dealt with a

rather narrow problem not present here —  whether a plaintiff
can continue to represent a class even if, subsequent to the

commencement of the case, his individual claim becomes moot.

The Supreme Court concluded that the individual plaintiff

could still represent the class if the case were certified

as a class action, but not otherwise. In the instant case,
of course, neither the individual nor the class claim are

27/
alleged to be moot.
TDES Discriminated In Referrals

The rebuttal evidence offered by appellees, and 

discussed at pages 29-57 of their brief, is analysed at length 

at pages 36-49 of the Brief for Appellants. We restrict our 

discussion in this Reply Brief to the rebuttal arguments not 

previously analysed.

27/ Jacobs, et al., would not, of course, permit a defendant 
to obstruct a class action by deliberately mooting the claim 
of the class representative while the case was still in the 
trial court or while the issue of certification was still pending, 
on appeal or otherwise. So long as the case remains active the 
class representative, regardless of the status of his own claim, 
can seek class certification. Senter v. General Motors Corp.,
532 F .2d 511, 519-20 (6th Cir. 1976).

-19-



Appellees place great emphasis on the willingness

of the defense expert, Dr. Siskin, to conclude that there
28/

was no discrimination at TDES, and the unwillingness of

plaintiffs' expert, Dr. Ullman, to draw conclusions either
22/way. We believe that the proper role of these experts was 

to explain the statistical tables they had prepared, not to 

assume the responsibility of the trial judge to decide the 

case. Dr. Siskin, for example, was tendered and accepted 

as an expert on statistics, not on employment discrimination 

in Tennessee or at TDES. Neither witness purported to have 

reviewed all the exhibits or documentary evidence in the 

case, or to have read all the depositions. Dr. Ullman testi­

fied in the middle of the trial, and Dr. Siskin was not 

present during the first three days of hearing; neither was 

in a position, or authorized, to evaluate the testimony 

of the other witnesses. The limited testimony of these 

experts regarding possible inferences was about the inferences 

they would draw from certain parts of the data, not all of it. 

Neither Siskin nor Ullman, for example, ever discussed the

fact that white applicants were being referred to higher paying
30/

jobs than blacks with identical DOT codes. Neither expert 

had or professed any familiarity with the applicable legal 
rules of evidence or substantive law. Dr. Siskin felt the

28/ Brief for Appellees, pp. 44-57 

29/ Id., pp. 32-33, 37-38, 41-43 
30/ Brief for Appellants, pp. 16-21

-2 0-



difference between black and white wages could be "explained"
3J/

by unequal treatment of women, most of them black, an ex­

planation which virtually mandates judgment for plaintiff 

in a Title VII case. We believe that the testimony of 

these witnesses was relevant only to explain the statistical 

materials they had prepared, and that Dr. Ullman was wise 

in declining invitations to usurp the responsibility of 

the District Judge to decide the case on its merits.
Appellees urge, as they did below, that the sub­

stantial disparities in the wages of jobs to which blacks

and whites were referred are due largely to differences in
2 2 /

experience. As we noted in our initial brief, however, there 

is nothing in the record to support a conclusion as to the 

experience of the workers who chose to visit TDES. First, 

appellees note testimony by Dr. Siskin that in the overall
Memphis workforce whites are concentrated in the higher

33/
paying jobs, and black in the lower. Siskin conceded, 

however, that highly skilled whites were "considerably less
34/likely to use TDES," and the record shows that blacks used 

TDES' services at a rate 7 times that of whites. The group 

of workers using TDES services is so skewed, and skewed in 

the direction of lower skill workers of both races, that no 

inferences can be drawn as to the comparative skills and

31/ Id., p. 46 .

32/ Brief for Appellees, pp. 38, 39, 49, 51, 52-55

33/ Id., p. 51; Exhibit 94, table 1.

24/ Exhibit 95, n.l, 894a.

-21-



experience of blacks and white applicants. Second, appellees note

that blacks were generally classified by DOT in the lower 
35/

paid DOT codes; but the accuracy of these classifications

is one of the primary questions in dispute in this case.

Plaintiffs maintain that this concentration of blacks in the
low skill and low paying codes was due to differences in

36/
color, not in skill. Next appellees urge that an appli­

cant DOT code must indicate prior experience in the area, 

and note that more whites than blacks were referred to trainee 

jobs in which their DOT code matched the code of the job.

They reason that this shows skilled whites being referred 

to jobs for which they are qualified. This argument again 

assumes the truth of what is in question, i.e. that whites 

and blacks were properly classified in the first place. It 

also assumes that blacks and whites were being referred to 

jobs that matched their skills, whereas the evidence showed 

that TDES consistently referred whites to jobs for which

they were underqualified and blacks to jobs for which they
37/

were over-qualified.

Appellees continue to urge, as they did below, 

that TDES in fact had a policy of giving preferential 

treatment to blacks by referring them to jobs for which they
as/were underqualified. Not a single example of such a referral

35/ Brief for Appelles, pp. 51-53 

36/ See Brief for Appellants, pp. 31-32 
37/ Id., pp. 27-28

38/ Brief for Appellees, pp. 46, 54, 56

-22-



can be found in the record. Not a single one of the TDES 

employees who testified at trial or on deposition, ever so 

stated, or was ever asked about this secret policy by 

counsel for defendants. All the TDES files and employees 

were under defendants' control prior to and at trial; had 

a shred of substantial evidence existed to support this 

theory they surely would have produced it.

Appellees lay great stress on the "multi-variate 

statistical analysis of wage rates using regression analysis" 

performed by Dr. Siskin. We have already discussed the 

defects of that analysis at pages 45-49 of Appellants Brief. 

Aside from the merits of this particular case, we believe 

this sort of esoteric statistical calculation should not be 
given great probative value as a defense to a Title VII 

action. The courts have uniformly recognized that plaintiffs 

can rely on pronounced patterns of overall black and white 
wage rates or assignments to establish a prima facie case 

of discrimination; that rule has been founded on the fact 

that, in most cases, as here, virtually all the relevant 

documents are in the control of the defendants, virtually 

all of the witnesses with direct knowledge of the defendants' 

policies and intent work for the defendants, and the ligita- 

tion resources of the defendant substantially exceed those 

of the defendants. When the burden of proof shifts to the 

defendants, the same considerations militate in favor of 

requiring them to establish their case, not with an imported 

statistician, but with the witnesses and documents already



in their control. Rolfe v. County Board of Education, 391

F.2d 77, 80 (6th Cir. 1968). In this case the defendants 

sought to establish that black applicants were less skilled 

than whites, not by producing from their files application 

forms with hard information about skills, but with statis­

tical inferences from census data. They sought to establish 

a policy of giving preferential treatment to blacks, not by 

calling their interviewers or counsellors who supposedly 
were following such a policy, but by a statistician hypo­

thesizing that this could explain away the disparity in 

referral wages. This is not the way a defaise can be made 

out to a prima facie case of employment discrimination, and 

it might be appropriate for this Court to make that unequivo­
cally clear for the guidance of defendants who might other­
wise make the same mistake in the future.

Since the District Court decision in this case 

was founded on erroneous legal principles, its conclusions 

are not subject to the provisions of Rule 52(a), Federal 

Rules of Civil Procedure. Senter v. General Motors Corp.,

532 F .2d 511, 526 (1976) .

-24-



The Legality of Defendants 1 Employment Tests Was Raised 
Below

Appellees assert the following position with 

regard to the tests used by the defendants in the hiring 

and promotion of personnel.

No suggestion was made in any of the 
pleadings, the pre-trial Orders, at trial 
or in the plaintiffs' post-trial proposed 
Findings of Fact that the testing or other 
competitive features of the Tennessee 
civil service system were racially dis­
criminatory. This issue has surfaced for 
the first time on appeal. Brief for 
Appellees, p. 60.

Appellants maintain that this is not an accurate descrip­

tion of the proceedings in the District Court.
The original complaint in this action, filed in 

September, 1971, alleged, inter aJLia, that TDES was
discriminating against Negro applicants 
for employment by or promotion within,
Tennessee Employment . . .. 8a..

The Answer generally denied that TDES had "deprived Plain­

tiff or any other person similarly situated of any rights, 
privileges or immunities constitutionally protected [sic]." 

13a.
The discovery which occurred from 1971-1974 with

regard to internal employment practices at TDES focused

largely on the problem of discriminatory examinations.

Plaintiffs First Interrogatories, served in January, 1973,

requested a list of the name, race and position of all
39/

present and recent TDES employees, and asked 5 different
40/

questions with regard to tests used by TDES. While some 

of the questions referred solely to "pencil and paper"
39/ Question 22.
40/ Questions 24-28. -25-



tests, others did not. TDES’ answers mentioned that tests
41/were administered for clerical civil service positions, 

but said nothing about the use of tests for interviewers 

and other non-clerical personnel. Question 29 asked "for 

each job title, category or classification named in response 

to Interrogatory No. 22(c) above which is presently in use, 

list the requirements for employment by the Memphis Area 

Office (e.g. college degree, civil service examination, 

etc." Defendants' answer stated "Standards are set out by 

the United States Department of Labor. See attached Appendix 

'E'." Appendix E was a description of the positions at TDES 

which made no mention of tests and/or the Department of Labor.
In view of what was subsequently learned about the extensive 

and critical use of civil service examinations at TDES,

Answer 29 cannot be said to have been "full" and "complete" 

as required by the Federal Rules of Civil Procedure, Rules 
33 (a) , 27 (a) (3) .

In May of 1973 plaintiffs' counsel, apparently

aware of the widespread use of civil service tests at TDES,

served a second set of interrogatories which asked,for each

present employee, "Scores obtained on all written and/or

performance tests given by Tennessee Employment for each

test taken indicate the highest possible score and the lowest

possible score." Interrogatory 4. Defendants initially

objected to providing test scores, even under a proposed

format which would allow them to keep confidential the name 
42/

of the employee. Subsequently defendants provided a document 

41/ Answers 24D, 26E.
42/ Defendants' Reply to Plaintiff's Second Interrogatories, p. 4.

-26-



stating that test scores were "NA" for 55 of 114 TDE3 

employees. Negotiations between counsel occurred in 

July and August of 1973 on this issue, as required by 

Local Rule 10(c), but counsel were unable to agree. On 

September 5, 1973, plaintiff moved for an order compelling 
discovery, seeking disclosure of the missing scores and 

the identity of the tests used. On September 11, 1973, the 

District Court ordered the defendants "to disclose to the 

plaintiff the numbers or ratings obtained by employees of 

the Memphis Area Office on the Tennessee Civil Service 

System's rating scale in the process of qualifying for the 
position presently held." 30a-32a.

In this same period it became clear that TDES
would attempt to defend the small number of blacks in

interviewer and counsellor positions by arguing that only
whites had scored high enough on the state Civil Service
examinations to be placed on lists of persons eligible for
appointment, and that these tests, lists, and its other

hiring and promotion procedures were substantially controlled
and limited by the Tennessee Department of Personnel.

Plaintiff therefore moved, on August 29, 1973, for leave
to amend his complaint to add the Department of Personnel

as a defendant; TDES did not oppose the motion, and it was

granted on September 11, 1973. The Amended and Supplemental

Complaint specifically focused on the lists prepared by the
43/

Department of Personnel on the basis of the disputed tests.

4̂j/ "[W]hen job vacancies have occurred and do
occur in the Memphis Area Office such vacancies

-27-



On Saptember 27, 1973, plaintiffs filed a third

set of Interrogatories and Requests for Production of

Documents, directed entirely to the problem of employment

discrimination within TDES, and focusing largely on the
tests used by TDE3 and the Department of Personnel and

44/
the resulting lists. Defendants again objected to provid—

ing certain of this information, and filed on December 3,

1973, a Motion for Hearing on Scope of Discovery. Aftp>r
.45/ '

a hearing on December 14, 1973, the District Court directed

the defendants to answer these additional interrogatories
and requests, including the "test scores and ratings" of

all persons placed on lists of eligibles, subject to a

protective order forbidding public disclosure of certain
46/

personnel matters. The defendants thereupon produced the

43/ continued

have been and are filled by persons referred 
by added defendants from promotion or initial 
employment lists which are compiled and main­
tained by added defendants. The persons whose 
names are at the top of these lists, and thereby 
eligible for referrals, are overwhelmingly white, 
although black persons lower on the lists are 
equally well qualified and would be eligible 
for referrals but for the policies and prac­
tices of added defendants which serve ti per­
petuate the vestiges of past racial discrimination. 
Defendant Memphis Area Office asserts that it is 
limited to filling vacancies from persons re­
ferred by added defendants." 35a.

44/ 41a-45a.

45/ The 20 page transcript of this hearing is in the record.
46/ 49a.

-28-



lists of test scores, and explanations of tests, found 

in Exhibits 2B and 80.
AjyBoth Plaintiffs' Pre-Trial Memorandum and 

48/
opening statement reiterated that employment discrimina­

tion within TDE3, especially its failure to appoint black 

interviewers or counsellors, was one of the key issues in 

the case. In addition to introducing the exhibits with 
regard to testing noted supra, plaintiffs called Robert

Chaffin of the Tennessee Department of Personnel, who testi-
49/

fied at length regarding the civil service tests and lists.

Counsel for defendants asked no questions of Mr. Chaffin by
10/way of cross examination. Plaintiffs' Proposed Findings

of Fact and Conclusions of Law noted at the outset that
one of the 5 allegations requiring resolution was "that
TDES discriminates in its internal hiring and promotion 

51/
practices." Nine pages of the Proposed Findings were

12/devoted to internal employment discrimination within TDES.

This section focused on the tests and lists of "certified

eligibles" prepared by the Department of Personnel, noting

that "a disproportionate percentage of minority applicants"

scored too low to be considered, although they had scored
53/

well enough to rate as qualified." Plaintiffs expressly 

47/ P . 6 .
48/ Transcript of hearing of March 20, 1974, p. 29, 72a.
49/ Transcript of hearing of March 20, 1974, pp. 88-130, 107a-149a. 
50/ Id., p. 130, 149a.
51/ Plaintiffs' Proposed Findings of Fact and Conclusions 
of Law, p. 2, n. 1, 910a.
_52/ Id., pp. 24-32, 932a-940a.
53/ Id., pp. 29-32, 937a-940a.

-29-



relied on Griggs v. Duke^Power j2o._, 401 U.S. 424 (1971),

and proposed the following conclusion:

defendants Department and Commissioner 
concede that the limitations on their 
certifications of eligibles to fill 
civil service openings work to the 
disadvantage of blacks, and they have 
not contended that the present system 
is compellingly or otherwise essential 
to the safe and efficient operation of 
the Memphis Office or that qualified 
black applicants are unavailable for 
job openings in that office. The Court 
concludes, therefore, that the present 
internal employment practices of the 
Memphis Office are unlawful, requiring 
prompt and effective remedial action 
which must also involve defendants 55/
Department and Commissioner of Personnel.

The District Court's opinion, while not resolving the legal

issues in the manner required by Griggs, expressly noted

the claim that "TDES discriminated against blacks in 
56/

internal hiring" and discussed the use of tests and certifica-
57/

tion lists by TDES and the Department of Personnel, ultimately

deciding, erroneously in our view, that this case "is not
58/

a Griggs v. Duke Power .Co._"
Appellees urge that "plaintiff's counsel repeatedly

stated to the Court that tests were not an issue in this case,

54/

54/ Id., pp. 56, 67, 974a, 975a. 

55/ Id., p. 69, 977a.
_56/ 995a.

57/ 1002a-1003a.

58/ 1008a.

-30-



but then concede that this may have been "about the issue

of tests as allegedly required for applicants for referral

as opposed to tests or other ranking employed by the Depart-
59/

ment of Personnel for applicants for employment." In fact,
that is manifestly the meaning of the statements relied on 

fit)/
by appellees. The District Court proceeded to expressly 

decide this issue, and appellees do not contend that, when 

the case was at trial, they did not understand plaintiffs 

had abandoned only the issue of testing for referrals.

Indeed, having heard the extensive deposition and testimony 

of Mr. Chaffin, read the detailed exhibits regarding testing, 

and reviewed the discussion of that issue in Plaintiffs 1 

Proposed Findings, defendants trial counsel could not have 

failed to understand what was at issue.

59/ Brief for Appellee, p. 63, n. 112.

60/ The statement in the transcript of March 21, 1974, 
transcript, at p. 7, relied on by appellee, is by way of 
explanation of a decision to withdraw certain exhibits 
relating solely to tests used for referrals. 180a. See also 
Plaintiffs' Proposed Findings of Fact and Conclusions of 
Law, p. 2, n. 1, 910a.

-31-



The Tests Used By Defendants Are Unlawful

In our initial brief we set forth distinct and 

independent grounds each of which, we believe, require
fil/unless rebutted that the use of the disputed tests be

enjoined: that the tests preclude disproportionate numbers 
62/of blacks, that they are general knowledge tests not related

to the requirements of the specific jobs for which they are 
63/

used, that the floating cut-off score was unrelated to 
64 /

actual ability, that the test scores now required of blacks
65/

are higher than those required when most whites were hired, and

that there are other non-discriminatory selection devices
66 /

available for picking the best qualified personnel. Appellees 

brief is concerned primarily with the appropriate standard 

for assessing the variable cut-off procedure used by the

61/ Appellees suggest the term "test" is technically limited 
to written paper and pencil tests. Brief for Appellees, p. 69, 
n.120. The EEOC Guidelines, on which Appellants rely but which 
they quote only in part, use the term more broadly to include 
any "paper and pencil or performance measure." Thus "[t]he 
term 'test' includes all formal, scored, qualtified or standard­
ized techniques of assessing job suitability including, in ad­
dition to the above, specific qualifying personal history or 
background requirements, scored interviews, biographical in­
formation blanks, interviewers' rating scales, scored applica­
tion forms, etc." 29 C.F.R. § 1607.2.

In any event, the interviewer and counsellor tests, 
with which we are particularly concerned are entirely paper 
and pencil tests. See Brief for Appellants, pp. 67-69.
62/ Brief for Appellants,
63/ Id., pp. 60-61, 74-77.
64/ Id. , pp. 62-6.
65/ Id. , pp. 66-69 .

66/ Id. , pp. 69-70.

-32-



defendants.

We believe it is useful, as appellees have suggested 

to distinguish three types of tests:

(i) a simple cut-off test (all applicants

must type at least 60 words per minuts);

(ii) a ranking test (applicants are ranked

according to their typing speed, though 

this is not the sole criterion for selec­

tion) ;

(iii) a ranking variable cut-off test

(applicants are ranked according to 

their typing speed; only the top 3 (or 

any other number) are considered for the 
job) .

67/
To overcome a showing of adverse impact, a single cut-off 

test must actually measure a skill which is oroven to be
68/

necessary to the job at issue, and must set the cut-off no 
higher than the score which correlates with a level of 

adequate job performance. A ranking test must measure a 

skill increases in which are proven to correlate with sig­

nificantly increased levels of job performance. Appellees 

suggest as an example of a valid ranking test typing speed, 

since faster typing (all other things being equal) yields 

better performance as a typist, and suggest as an example 

of a non-valid ranking ability to read bottle labels, since

67/ And disregarding certain other problems, such as the 
existence of other non-discriminatory selection procedures 
or the use of less stringent standards for whites.
68/ See United States v. State of North Carolina. 400 F.Supp. 343, 
350 (E.D.N.C. 1975).

-33-



once an applicant can read labels at all his or her reading
fig/speed is unlilely to affect his or her job performance. This 

requirement of "significance" means that, if a score difference 

of less than 5 points is not reflected in differing job per­

formance, employment decisions cannot be based on distinctions
70

of a lesser magnitude.

A ranking variable cut-off test, to meet the appli­

cable legal requirements, must meet several requirements.

(i) Each of the factors which it measures must be
"rankable", i.e. higher scores in each distinct 
part of the test (typing, stenography, etc.) 
must correlate with significantly better job 
performance. Unless this is required an appli­
cant could be excluded from the "best" appli­
cants because he or she was a "slow" bottle 
label reader. 471a.

(ii) The test must rank all rankable skills related 
to the job. Thus the list of the "best" appli­
cants for a job as typist-stenographer could 
not be based solely on typing speed. Boston
Chapter, NAACP, Inc, v. Beecher. 371 F.Supp. 507 
517-18 (D. Mass. 1974), aff'd 504 F.2d 1017 
(1st Cir. 1974).

(iii) The relative weights accorded to each tested
skill must be directly related to the relative 
importance of each skill on the job. See 
Kirkland v . New York State Dept, of Correc­
tional Services, 374 F.Supp. 1361, 1377 (S.D. 
N.Y. 1974); Bridgeport Guardians, Inc, v.
Members of Bridgeport Civil Service Commission, 
482 F .2d 1333, 1338 (2d Cir. 1973).

69/ Brief for Appellee, p. 70. 
70/ See p. 36, infra.

-34-



(iv) The resulting overall test must correlate

with significantly increased performance. 471a.

No one of these criterion is sufficient. For 

example, a typist-stenographer test that ignored steno­

graphy skills but ranked bottle reading speed would cor­

relate, overall, with increased job performance (iv), 

since in a large sample random distribution of bottle 

reading and stenography skills would cancel out, but such 

a test would obviously not pick the best qualified appli­

cants .
The United States Civil Service Commission has 

properly recognized that there are limits to the extent 

to which the "best" applicants can be selected on the basis 

of such a numerical ranking system. There are too many im­

ponderables in the personnel problems to quantify with pre­

cision the abilities of applicants for any but the most 

mechanical of tasks. Weighting of various factors (iii) 

is particularly difficult, and some rankable considerations 

(dedication, congeniality) cannot readily be assigned a 

numerical score. For these reasons the Civil Service Com­

mission has expressly provided for federal personnel decisions

that many jobs, e.g. all attorney positions, are not to be
71/filled on the basis of such mechanical measurements. Where 

numerical rankings are assigned, the Commission has provided 

that personnel officials must consider, in addition to the

71 / These are known as Schedule B positions.

-35-



top three applicants, all other applicants with scores equal 

to the lowest of the three. This rule is particularly 

important in the large number of cases in which small dif­

ferences in score (89.1 versus 89.2) would bear no rela­

tionship to actual job performance. in such a situation, 

where only a single digit ranking (e.g. 1-10) would correlate 

with significant differences in job performance, there might 

be substantially more than 3 people in the highest category 

and thus eligible for consideration under the federal merit 
system.

We do not understand Appellees to differ with this 

tripartite distinction, or this analysis of the requirements 

for a valid job related ranking variable cut-off test. 

Appellees, having elaborated on the desirability of using 

such tests where there are large numbers of competent appli­

cants, assert that its own "selection criteria are used 

to distinguish the best qualified applicant from the merely 

qualified" and thus its selection procedure is "almost iden­

tical to that used for the selection of employees in the
72/

United States Civil Service." Appellees' procedures re­

semble the Civil Service procedures only in that a ranking 

variable cut-off approach is used (i.e. selection from the 
top 3 or 5); but whether the tests employed by appellees 

actually pick out "the best qualified”, i.e. meet the criteria

72/ Brief for Appellees, pp. 71, 73-4.

-36-



spelled out supra, p. 34-35. is a factual question.

In view of the conceded disparate impact of these 

lists, appellees were required to prove that the disputed 

tests in fact picked the most qualified applicants. Appellees, 

however, introduced no evidence whatever to substantiate their 

generalized claim that its tests, which invariably lead to 

the selection of white counsellors and interviewers, were 

in fact selecting "the best" applicants. The evidence by 

plaintiffs demonstrated that none of the legal requirements 
were met, (i) The skills which are measured by the tests, 

generalized mathematics and vocabulary, have no direct con­

nection with the jobs at issue, and certainly are not rankable
73/

skills for these jobs. (ii) The rankings assigned by appli­

cants do not consider their experience at TDES or in related
74/

jobs, or any specialized relevant education. (iii) There is 
no showing that the relative weight assigned to particular 

parts of the test bear any relationship to their relevance 

to actual job performance. (iv) There is no showing that 

higher ranking on the test in fact correlated with better 

job performance.

For the reasons noted supra, pp.14-15, we believe 

plaintiffs clearly have standing to seek an end to unlawful 

discrimination in the selection of TDES personnel. The vir­

tual exclusion of blacks from the critical interviewer and 

counsellor jobs must be corrected if discrimination in re­
ferrals is to be ended. Even if discrimination in referrals 

were otherwise eliminated, or had never existed, plaintiffs 

73/ Brief for Appellants, p. 60.

74 / Id., pp. 61, 68, 70.
-37-



would have the same right to object to segregated personnel 

at TDES that a student would have to object to segregated 

teacher assignments. Rogers v. Paul, 382 U.S. 198, 200 (1965). 

Title VII authorizes suit by any "person claiming to be ag­

grieved" by employment discrimination, and the Supreme Court 

has noted that these words demonstrate "a congressional inten­

tion to define standing as broadly as is permitted by Article 

III of the Constitution." Trafficante v. Metropolitan Life 

Ins. Co.. 409 U.S. 205, 209 (1972).

Appellees urge, finally, that even if TDES was 
rejecting almost all black applicants for counsellor and 

interviewer jobs on the basis of tests that violated Title 

VII, and even though TDES was subject to Title VII through­

out the period in question, the Court lacks jurisdiction
over the matter and can afford no relief because the tests

21/were prepared by the Department of Personnel. Since the 

actual promotion and hiring decisions were made by TDES 

employees, an injunction against them to follow other pro­

cedures, and to redress past violations, should provide an 

adequate remedy, and such an order is within the power of 

the Court. Actions of TDES employees, otherwise subject 

to Title VII, is not immunized merely because they administer 

tests, or lists, prepared by the Department of Personnel, 

the Educational Testing Service, or some foreign government.

If TDES had delegated personnel activities normally the 

responsibility of an employment service to any other individuals 
or agencies, the coverage of Title VII's prohibition against 

discrimination by an employment service would extend to such 

75/ Brief for Appellees, pp. 77-78.
-3 8-



other individuals or agencies. In addition, since the

activities of the Department of Personnel are subject to
2 6/both Title VI and the Civil Service Commission standards, 

and since the disputed tests are inconsistent with that 
Title and standards, the Title VII issue posed by appellees 

would not immunize them from liability even if it were 

resolved in their favor.

Servicing of Discriminatory Employers

Appellants set out at pages 78-85 of their 

brief the evidence demonstrating that TDES had violated 

its legal obligation to detect, and refuse to service, 

employers who discriminate on the basis of race or sex. 

Appellees have not briefed this issue.

76/ Brief for Appellants, pp. 71-73.

-39-



Shipp 1s Individual Claim

Appellants' brief sets out two grounds for reversal 

with regard to plaintiff's individual claim. First, we main­

tain that the District Court failed to make express findings

on the disputed facts of the case, as required by Rule 52(a),
77/

Federal Rules of Civil Procedure. Second, we urged that, if

the District Court's rejection of the class allegations were
78/

overturned, the individual claim must also be reconsidered.

Appellees' brief addresses neither of these issues.

It is limited, instead, to a recital of some of the evidence

bearing on the individual claim, and concludes simply, "The

burden of proof of discrimination is with the plaintiff, who

has provided no substantive evidence of racial discrimination
79/

against him in the above-mentioned instance." It is clear, 
however, that plaintiff established at the very least that 

he was fully qualified for the actual vacancy at R.C.A. and 

that the defendants refused to refer him for it. The defendants 
offered three not entirely consistent explanations for their 
refusal: that the vacancy was already filled, that plaintiff's
experience was insufficiently recent, and that plaintiff 
lacked experience in local rates. The testimony of the key 

defense witnesses were in conflict with one another, and with 

their previous sworn statements and affidavits. The actual 

nature of the job at R.C.A. lends no support to a good faith

77 / Brief for Appellants, pp. 86-93.

78/ Id., pp. 93-94.

79 / Brief for Appellees, p. 28.

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belief that plaintiff was unqualified, and at least one
80/

of the interviewers who refused to refer plaintiff ad­

mittedly did not believe the job was filled. This evidence, 

alone or in combination with the evidence of class wide dis­
crimination, would clearly have been sufficient to sustain 

a finding for plaintiff. Whether it would permit an affirmance 
of detailed findings of fact against plaintiff need not now 

be decided, for no such findings were made by the District 
Court. We do not know what the District Judge believed the 

facts to be or whether, perhaps having concluded the job at

R.C.A. was filled, he did not bother to resolve the specific
81/

disputes as to the intent of Mrs. Askew and Mrs. Ewing.

We do not know what rules of law or evidence may have led 

to the lower court's conclusion, and thus cannot assess 

whether or not they may have been in error. Terminello v. 

Chicago, 337 U.S. 1, 5 (1949). After 4 years of discovery, 

three days of trial, and numerous exhibits, the Federal 

Rules and meaningful appellate review required more than 

the summary rejection of plaintiffs which occurred below. 

Accordingly this aspect of the decision below must be vacated 
and remanded.

8C/ Mrs. Ewing.

OV See Brief for Appellant, p. 92.

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CONCLUSION

For the above reasons the decisions of the 

District Court of December 20, 1974 and September 25, 

1975, should be reversed, and the case remanded with 

instructions to fashion appropriate relief for the 

class claims, and to make new findings on the in­

dividual claim.
Respectfully submitted,

WILLIAM E. CALDWELL
520 Woodward Building 
733 Fifteenth Street, N.W. 
Washington, D.C. 20005

JACK GREENBERG 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

ELIJAH NOEL, JR.
Ratner, Sugarmon, Lucas & Salky 
525 Commerce Title Building 
Memphis, Tennessee 38103

Attorneys for Plaintiffs-Appellants

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