Hutto v. Jones Petition for Writ of Certiorari to the US Court of Appeals for the Eight Circuit

    No.

3 n  tfje

Supreme Court of tfje ©mteh States
October Term, 1985

Terrell Don Hutto, Individually
and as State Corrections Commissioner,
A.L. Lockhart, Individually and as 
Superintendent of the Arkansas 
Department of Corrections - Cummins Unit,
Je rry  Campbell, Individually and as 
Assistant Superintendent of the Department 
of Corrections - Cummins Unit, Marshall 
N. Rush, W.L. Curry, Lynn Wade,
Thomas Worthen and Richard Griffin,
Individually and as Members of the 
Board of Correction of the Arkansas
Department of C orrections,.................................. Petitioners

V .

Johnny Jones and Huey Davis, III,
E t A1........................................................................Respondents

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

JOHN STEVEN CLARK
Arkansas A ttorney General

BY: JEFFREY A. BELL 
TIM HUMPHRIES 
Assistant A ttorney General 
Justice Building 
Little Rock, Arkansas 72201 
(501) 371-2007

Attorneys for Petitioner



1

QUESTIONS PRESENTED

I. WHETHER THE EIGHTH CIRCUIT ERRED IN 
FINDING THAT THE DISTRICT COURT WAS 
CORRECT IN CERTIFYING THIS CASE AS A 
CLASS ACTION, IN REFUSING TO DECERTIFY 
THE CLASS, AND IN THE SCOPE AND BREADTH 
GIVEN TO THE CERTIFIED CLASS.

II. WHETHER THE EIGHTH CIRCUIT ERRED IN ITS 
INTERPRETATION OF GRIGGS V. D U KE POW ER  
CO. AND IN ITS AFFIRMANCE OF THE DISTRICT 
COURT’S APPLICATION OF A DISPARATE 
IMPACT THEORY TO THE FACTS OF THIS CASE.



11

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.............................................. iii

OPINIONS B ELO W ..........................................................   1

JURISDICTION ..................................................................  2

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ........................................  2

STATEMENT OF THE C A S E .........................................  3

REASONS FOR GRANTING THE W R IT ...................... 5

I. THIS COURT SHOULD GRANT CERTIORARI 
BECAUSE THE EIGHTH CIRCUIT’S RULING 
THAT THE DISTRICT COURT WAS CORRECT
IN CERTIFYING THE CASE AS A CLASS 
ACTION, IN REFUSING TO DECERTIFY THE 
CLASS, AND IN THE SCOPE AND 
BREADTH GIVEN TO THE CERTIFIED 
CLASS IS IN CONTRADICTION TO THIS 
COURT’S DECISIONS REGARDING CLASS 
ACTIO N S........ ............................................................  5

II. THIS COURT SHOULD GRANT CERTIORARI IN 
THIS CASE BECAUSE THE EIGHTH CIRCUIT 
HAS IMPROPERLY INTERPRETED THIS 
COURT’S DECISIONS IN AFFIRMING THE 
DISTRICT COURT’S ERRONEOUS 
APPLICATION OF THE LAW TO THE FACTS
OF THE CASE ...........................................................  10

CONCLUSION ....................................    13

APPENDIX A ........................................................   A-l

APPENDIX B ......................................    B-l



I ll

TABLE OF AUTHORITIES

CASES: Page

American Pipe and Construction Company
v. Utah, 414 U.S. 538 at 553 (1974)............  ...................8

East Texas Motor Freight Systems, Inc. 
v. Rodriquez, 431 U.S. 395 at
405 (1975) ............................................................................6

General Telephone Co. v. Falcon,
457 U.S. 147 (1982)............ ..........................5 ,6 ,7 ,8 ,9 ,1 0

Griggs v. Duke Power Co., 401 U.S. 424 at
430-431 (1971)...................................................... .. . .11, 12

Harris v. Ford Motor Co., 651 F.2d 609
at 611 (8th Cir. 1981)...............................    12

International Brotherhood of Teamsters v.
United States, 431 U.S. 324 at
335 (1977) ........................................     10

Jones and Davis v. Hutto, U.S.D.C. No.
PB-74-C-173 (Memorandum Opinion and
Order entered August 29, 1983)..................................... 2

Jones and Davis v. Hutto, et al
763 F. 2d 979 (8th Cir. 1985) ............................................1

Schlesinger v. Reservists Committee 
to Stop the War, 418 U.S. 208 at 
216 (1971) ......................      6

STATUTES:

28 U.S.C. §1254 (1) 2



iv

42 U.S.C. §1981 ......................................................................... 3

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

42 U.S.C. §2000e-2(a) ..........................   2,3,10

PROCEDURAL RULES:

F.R.C.P. 2 3 ........ ............................................................5, 6, 8, 9



N o .___

i n  tfje

Supreme Court of tjje ®mte& States
October Term, 1985

Terrell Don Hutto, Individually
and as State Corrections Commissioner,
A.L. Lockhart, Individually and as 
Superintendent of the Arkansas 
Department of Corrections - Cummins Unit,
Jerry  Campbell, Individually and as 
Assistant Superintendent of the Department 
of Corrections - Cummins Unit, Marshall 
N. Rush, W.L. Curry, Lynn Wade,
Thomas Worthen and Richard Griffin,
Individually and as Members of the 
Board of Correction of the Arkansas
Department of C orrections,.................................. Petitioners

V .

Johnny Jones and Huey Davis, III,
E t A1........................................................................Respondents

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

The above-captioned Petitioners hereby petition for a 
writ of certiorari to review the Judgment of the United 
States Court of Appeals for the Eighth Circuit in this case.

OPINIONS BELOW

The opinion of the Eighth Circuit Court of Appeals, 
filed on June 5, 1985, is reported at 763 F.2d 979 (8th Cir. 
1985), and is reprinted as Appendix A to this Petition. The



2

Memorandum Opinion and Order of the United States 
District Court is unreported, and is reprinted as Appendix 
B to this Petition. It is case number PB-74-C-173.

JURISDICTION

The judgment of the Court of Appeals was filed on 
June 5, 1985. The Court of Appeals entered an Order on 
July 1, 1985, in which it stayed the issuance of its mandate 
for a period of thirty  (30) days, until July 31, 1985. On July 
24, 1985, Petitioners filed a Motion requesting the Court of 
Appeals to extend said Stay for an additional twenty (20) 
days, until August 20, 1985. This Motion was granted on July 
31, 1985. No Petition for Rehearing was filed in this case. 
The jurisdiction of this Court is envoked under 28 U.S.C. 
§1254(1). The parties listed in the caption to this proceeding 
are all the parties involved in the case before the Eighth 
Circuit Court of Appeals.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

42 U.S.C. §2000e, et seq. (Title VII of the Civil Rights 
Act of 1964) provides in pertinent part:

2Q00e-2(a). It shall be an unlawful employment 
practice for an employer -
(1) to fail or refuse to hire or to discharge any 
individual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s race, color, religion, sex, or national 
origin; or
(2) to limit, segregate, or classify his employees or 
applicants for employment in any way which would 
deprive or tend to deprive any individual of 
employment opportunities or otherwise adversely 
affect his status as an employee, because of such 
individual’s race, color, religion, sex, or national 
origin.



3

STATEMENT OF THE CASE

On May 8, 1974, Johnny Jones and Huey Davis, III, 
filed this case as an individual and class action race 
discrimination suit pursuant to 42 U.S.C. §§1981 and 1983, 
and 42 U.S.C. §2000(e) et seq. (Title VII of the Civil Rights 
Act of 1964). The persons listed as Petitioners in this 
Petition for W rit of Certiorari were named as Defendants in 
the Complaint. The Complaint sought declaratory and 
injunctive relief to restrain the Arkansas Department of 
Correction from engaging in alleged discriminatory 
employment practices. The Complaint further prayed for 
back pay for the individual and class Plaintiffs, and for other 
monetary damages.

The District Court conditionally certified the case as a 
class action by an Order dated September 27, 1976. By 
subsequent Order dated January 18, 1982, the Court 
defined the class as follows:

All Black persons who have been employed by the 
defendant Department of Correction at any time 
from May 8, 1971 to the date of the commencement 
of the trial, who are or have been limited, classified, 
restricted, discharged or discriminated against by 
the defendants with respect to promotions, 
assignments, training or who have been otherwise 
deprived of employment opportunities related to 
said factors because of their race or color.

By Order dated March 22, 1982, the District Court 
subsequently amended the portion of its class designation 
reading “to the date of the commencement of the trial” to 
read “to the date of judgment, if any, entered on the 
question of liability.” (See Appendix A at A-2, A-3; 
Appendix B at B-2).

The District Court determined that the case would be 
tried in a bifurcated manner, the first phase to deal solely



4

with the issue of liability. Following extensive discovery in 
pre-trial proceedings, the liability phase of the case was 
tried to the District Court over a period of fifteen (15) days 
between March 29, 1982 and April 28, 1982. The District 
Court issued its Opinion on August 29, 1983, in which it 
found that the named Defendants had not discriminated in 
initial hiring of blacks, but had unlawfully discriminated in 
job placement, promotions, and other employment 
practices. (See Appendix B at B-16).

The Petitioners herein appealed the decision of the 
District Court to the Eighth Circuit Court of Appeals, on 
the following grounds: that the District Court abused its 
discretion by certifying the case as a class action, or by 
failing to decertify the class at some point in the 
proceedings, because the Plaintiffs had failed to comply 
with the requirements of Rule 23; that the District Court 
erred by certifying a class which was entirely too broad, and 
by failing to narrow said class at some point in the 
proceedings, all in contradiction to current law pertaining 
to across-the-board classes as stated by this Court; that the 
District Court erred at law by applying the wrong legal 
standard to the facts in determining whether racial 
discrimination had occurred; that the District Court was 
clearly erroneous in its finding of discrimination because 
Plaintiffs had failed to prove a pattern or practice of 
discrimination. The Respondents herein filed a eross-appeal, 
claiming that black applicants who were not hired by the 
Department of Correction should have been included in the 
certified class by the District Court. On June 5, 1985, the 
Eighth Circuit Court of Appeals filed an Opinion in which it 
affirmed the judgment of the District Court in all respects. 
(See Appendix A).



5

REASONS FOR GRANTING THE WRIT

I,

THIS COURT SHOULD GRANT CERTIORARI 
BECAUSE THE EIGHTH CIRCUIT’S RULING THAT 
TH E D IS T R IC T  COURT W AS CO RRECT IN 
CERTIFYING THE CASE AS A CLASS ACTION, IN 
REFUSING TO DECERTIFY THE CLASS, AND IN THE 
SCOPE AND BREADTH GIVEN TO THE CERTIFIED 
CLASS IS IN CONTRADICTION TO THIS COURT’S 
DECISIONS REGARDING CLASS ACTIONS.

An individual plaintiff seeking to maintain a class 
action under Title VII has the burden of establishing that 
the case is certifiable as a class action and that he meets the 
requirements of numerosity, commonality, typicality, and 
adequacy of representation specified in F.R.C.P. 23(a). 
General Telephone Co. v. Falcon, 457 U.S. 147 at 157 (1982). 
“[A]ctual, not presumed, conformity with Rule 23(a) 
remains, . . . indispensable.” Id. at 160. The trial court is 
obliged to subject the proposed class to “rigorous analysis” 
and “to evaluate carefully the legitimacy of the named 
plaintiffs plea that he is a proper class representative 
under Rule 23(a).” Id at 160-161.

The District Court certified this case as a class action 
without a hearing, and subsequently defined an across-the- 
board class in an order denying Petitioners’ Motion to 
Decertify the Class. No hearing was conducted on 
decertifica tion . The only evidence p resen ted  by 
Respondents in support of class certification was a two page 
affidavit by one of their attorneys, which simply parroted 
the provisions of Rule 23(a) itself. It is error for a trial court 
to presume that a plaintiffs claim is typical of other claims 
“without any specific presentation identifying the questions 
of law or fact that were common to the claims . . . of the 
members of the class he sought to represent.” Falcon, 
supra, 457 U.S. at 158.



6

The Eighth Circuit Court of Appeals held that the 
District Court did not abuse its discretion in certifying this 
case as a class action without conducting a hearing to 
determine whether Plaintiffs met the requirements of Rule 
23. The Court further held that the District Court did not 
abuse its discretion in failing to decertify the case as a class 
action at a later point in the proceedings. (See Appendix A 
at A-4). The District Court’s actions and the Eighth 
Circuit’s holding affirming such actions violate this Court’s 
previous rulings in Falcon and other cases.

F.R.C.P. 23(a) requires that a plaintiff demonstrate: (1) 
that the proposed class is too numerous to join its members 
as parties; (2) that plaintiffs claims are common in law or 
fact to those in the class; (3) that plaintiffs claims are typical 
of absent class members; and (4) that plaintiff will 
adequately represent the class. In essense, “a class 
representative must be part of the class and possess the 
same interest and suffer the same injury as class members.” 
East Texas Motor Freight Systems, Inc. v. Roderiguez, 431 
U.S. 395 at 405 (1975) quoting Schlesinger v. Reservists  
Committee to Stop the War, 418 U.S. 208 at 216 (1971). The 
Plaintiffs in this case were non-supervisory, security 
officers at the Cummins Unit of the Arkansas Department 
of Correction during a portion of the years 1973-1974, who 
both resigned their employment. They asserted highly 
individualized claims of promotional and treatm ent 
discrimination. They have nothing in common with the class 
allegations concerning Department of Correction practices 
regarding hiring, discharge, non-security employees, 
supervisory employees, present employees, employees who 
preceded them, or employees employed at facilities other 
than Cummins. Without any specific presentation by 
Plaintiffs identifying questions of law or fact common to the 
claims asserted on behalf of the proposed class members, it 
was error for the District Court to certify the case as a 
class action. The Eighth Circuit Court of Appeals contradicted 
holdings of this Court in affirming said error. See Falcon, 
supra, 457 U.S. at 158.



7

Just as Plaintiffs failed to show commonality to the 
claims of the putative class, neither did they show that their 
claims were typical. Plaintiffs offered no pre-trial evidence 
that their claims were typical, other than the pleadings and 
their attorney’s affidavit. Their testimony at trial indicated 
that their grievances were highly individualized. Where the 
Plaintiffs’ grievances are highly individualized and reflect 
unique circumstances, the claims are not typical and no 
class should be certified. As this Court stated in Falcon, 
supra, 457 U.S. at 157:

Conceptually, there is a wide gap between (a) an 
individual’s claim that he has been denied a 
promotion on discriminatory grounds, and this 
otherwise unsupported allegation that the company 
has a policy of discrimination, and (b) the existence of 
a class of persons who have suffered the same injury 
as that individual, such that the individual’s claim 
and the class claims will share common questions of 
law or fact and that the individual’s claim will be 
typical of the class claims.

Plaintiffs failed to bridge that gap in this case. The 
testimony regarding discrimination in their particular 
employment was insufficient to sustain the additional 
inference that there was a pattern or practice of racial 
discrimination in employment at the Department of 
Correction which was motivated by discriminatory animus. 
The Eighth Circuit erred in its affirmance of the District 
Court’s continued certification of this case as a class action.

Plaintiffs also failed to show that they were adequate 
class representatives. In order to adequately represent the 
class, the class representative must have knowledge of and 
be familiar with the work environment of, the nature of the 
jobs held by, and the practices affecting the class members. 
Plaintiffs introduced no evidence prior to trial to show that 
they met this requirement. Furthermore, the evidence at 
trial showed that Plaintiffs had made only casual attem pts 
to familiarize themselves with employment practices and



8

policies of the Department of Correction since 1974 or to 
follow the progress of the lawsuit, leaving virtually all the 
decisions to the discretion of their attorneys. Again, the 
Eighth Circuit Court of Appeals erred in affirming the 
District Court’s certification of this case as a class action, in 
light of Plaintiffs’ failure to comply with Rule 23.

The principle purpose of the class action is to advance 
the efficiency and economy of litigation. Falcon, supra, 457 
U.S. at 155. The class action device is especially appropriate 
when the issues are common to all class members and when 
they turn  on questions of law which are applicable in the 
same manner to each class member. Id. at 154. Under such 
circumstances a class action would serve its purpose by 
allowing issues affecting potentially every class member to 
be litigated in an economical fashion. Id. Testimony at trial 
indicated that the principal purpose of the class action 
device as stated in Falcon was not advanced in this case. 
There were not issues of fact or law common to the class. 
The individual Plaintiffs’ claims were highly individualized 
and particular to their situation, and the other witness 
advanced a wide range of complaints covering virtually 
every aspect of the Department of Correction. Maintenance 
of this case as a class action did not advance the “efficiency 
and economy of litigation which is a principal purpose of the 
procedure.” Falcon, supra, 457 U.S. at 159, quoting 
American Pipe and Construction Company v. Utah, 414 
U.S. 538 at 553 (1974).

The District Court abused its discretion in certifying 
this case as a class action, and in failing to decertify the case 
as a class action at some point during the pendency of the 
proceedings. The Eighth Circuit’s affirmance of the actions 
of the District Court violates the previous holdings of this 
Court. As stated in Falcon, supra, the initial designation of a 
case as a class action is “inherently tentative,” and even 
after a judge has certified a case as a class action, the judge 
is free to decertify the class or to modify it based on the



9

evidence produced in the litigation. See Falcon, supra, 457 
U.S. at 160. By initially certifying this case as a class action 
without requiring the Plaintiffs to make a showing of 
compliance with Rule 23, the District Court required 
Petitioners to defend against a scatter gun approach to the 
case by Plaintiffs. Additionally, during the pendency of the 
trial the Plaintiffs failed to show any commonality or 
typicality with the putitive class, thereby making it 
imperative upon the Court to decertify the class which it had 
earlier certified. The Eighth Circuit’s affirmance of the District 
Court’s actions is in contradiction to the law on class actions set 
forth by this Court.

Finally, even if this case were correctly certified as a 
class action, the scope of the class as certified by the 
District Court was an entirely too broad across-the-board 
class, of the sort condemned by this Court in the Falcon 
case. This Court noted in Falcon that even though suits 
alleging racial discrimination are often by their very nature 
situations involving class wide wrongs, simply because a 
plaintiff alleges that such discrimination has occurred 
“neither determines whether a class action may be 
maintained in accordance with Rule 23 nor defines the class 
that may be certified.” Falcon, supra, 457 U.S. at 157. In its 
opinion in this case, the Eighth Circuit Court of Appeals 
stated:

Finally, while the evidence supporting the finding of 
liability may have been less substantial with respect to 
some of the ADC facilities than others, that does not 
support a finding that the class was over broad. At the 
remedial phase of this lawsuit the District Court can 
cure any over broadness of the class which might exist 
by carefully scrutinizing the evidence then presented in 
light of the evidence already adduced, and tailoring the 
remedy as such that only those harmed by the 
discriminatory practices will be compensated. (See 
Appendix A at A-4).



10

The Court of Appeals improperly interpreted this 
Court’s decision in the Falcon case by its upholding of the 
across-the-board class certification. This error is not cured 
by the statem ent tha t the trial court can remedy any over­
broadness of the class by scrutinizing the evidence 
presented at the damages phase of the trial and tailoring its 
remedy in conformance therewith. This approach works an 
unfair prejudice against Petitioners and violates the law 
established by this Court. A claim presented by two 
individuals who were non-supervisory, security personnel 
at one unit of the prison system for a period of one year 
before voluntarily resigning, is not sufficient to represent a 
class alleged to contain persons with claims regarding 
hiring, discharge, non-security positions, supervisory 
positions, present employees, preceding employees, or 
employees employed at other units. The Eighth Circuit 
violated this Court’s rulings when it affirmed the District 
Court’s across-the-board class certification.

II.

THIS COURT SHOULD GRANT CERTIORARI IN 
THIS CASE BECAUSE THE EIGHTH CIRCUIT HAS 
IM PR O PER LY  IN T E R P R E T E D  TH IS CO URT’S 
DECISIONS IN AFFIRMING THE DISTRICT COURT’S 
ERRONEOUS APPLICATION OF THE LAW TO THE 
FACTS OF THE CASE.

A disparate treatm ent claim brought under Title VII 
turns on the basic issue of whether the employer 
intentionally treated  some persons less favorably than 
others because of their race, color, religion, sex or national 
origin. Proof of discriminatory motive is critical in a 
disparate treatm ent case. International Brotherhood of 
Teamsters v. United States, 431 U.S. 324 at 335, n. 15 (1977). 
Title VII also prohibits employment practices that are 
neutral on their face but that in fact fall more harshly on one 
group than another, and have a disproportionate or 
disparate impact on tha t group, which cannot be justified by



11

business necessity. Proof of discriminatory motive is not 
required under a disparate impact theory. Griggs v. Duke 
Power Co., 401 U.S. 424 at 430-431 (1971).

In the case below, Respondents presented allegations 
and testimony contending tha t Petitioners intentionally 
treated  blacks different than whites in various aspects of 
the employment practices at the Department of Correction. 
In its Memorandum Opinion and Order the District Court 
discussed numerous findings related to alleged purposeful 
acts of Department of Correction authorities, such as 
subjective job assignments, shift assignments, and 
promotional decisions. Although the Court’s findings dealt 
with issues which require some purposeful action on the 
part of Respondents, the Court based its finding of 
discrimination on a disparate impact analysis. For example, 
the Court found that the “subjectivity” of the wardens and 
others who controlled the promotion process had a 
disparate impact on blacks. The subjectivity of a 
promotional, discharge, or other employment process, 
which requires some purposeful or intentional activity on 
behalf of the employer, should be considered under a 
disparate treatm ent analysis rather than a disparate impact 
analysis.

In its Opinion, the Eighth Circuit Court of Appeals 
found that the District Court had properly employed the 
disparate impact model of analysis established in the Griggs 
case in rendering its decision regarding the class claim in 
this case. As such, the Court of Appeals has erroneously 
and improperly applied the Griggs decision. The Griggs 
case dealt with a typical disparate impact situation, where 
an employer was requiring an objective criteria of obtaining 
a high school education or passing a standardized general 
intelligence test as a condition of obtaining certain jobs. The 
Griggs analysis is not appropriate when considering a 
subjective promotional or other process affecting the 
conditions of employment.



12

The Eighth Circuit has previously recognized that the 
Griggs analysis is not appropriate when considering an 
employer’s subjective employment practices. In Harris v. 
Ford Motor Co., 651 F.2d 609 at 611 (8th Cir. 1981), the 
Eighth Circuit rejected a contention that an employer’s 
practice of making “subjective” decisions in discharging 
employees for poor workmanship disproportionately 
impacted on women. The court held that while non-objective 
evaluation systems may be probative of intentional 
discrimination, subjective decision making systems are not 
the types of practices prohibited by the Griggs decision and 
cannot form the foundation for a finding of discriminatory 
impact under Griggs and its progeny.

By its opinion in the case at bar, the Court of Appeals 
not only erroneously applied the Griggs decision but also its 
own previous decision in the Harris case. The Court 
justifies its analysis by characterizing the case at bar as an 
"adverse impact ‘excessive subjectivity’ case,” and cites as 
support for this characterization material from a leading 
treatise on employment discrimination law. This is not an 
adequate basis upon which to ignore the law established by 
this Court in the Griggs decision.

The D is tric t C ourt engaged in a confusing 
misapplication of the proper legal standard to the facts in 
reaching its decision. The Court of Appeals affirmed the 
District Court in its legal analysis, and in effect misapplied 
the previous holdings of this Court as discussed above.



13

CONCLUSION

For the reasons stated above, the Petition for W rit of 
Certiorari should be granted.

Respectfully submitted,

JOHN STEVEN CLARK 
Arkansas A ttorney General

BY: JEFFREY A. BELL 
TIM HUMPHRIES 
Assistant A ttorney General 
Justice Building 
Little Rock, Arkansas 72201 
(501) 371-2007

Attorneys for Petitioner



14



A-l

APPENDIX A

United States Court of Appeals 
for the Eighth Circuit

Nos. 83-2320 and 83-2370

Johnny Jones and Huey Davis, III, ) 
et al., )

)
Appellees/Cross-Appellants, )

v. )
) Appeals from the 
) United States District 

Terrell Don Hutto, Individually ) Court for the Eastern 
and as State Corrections ) District of Arkansas.
Commissioner, A. L. Lockhart, )
Individually and as )
Superintendent of the Arkansas )
Department of Corrections — )
Cummins Unit, Jerry Campbell, )
Individually and as Assistant )
Superintendent of the Depart- )
ment of Corrections—Cummins )
Unit, Marshall N. Rush, W.L. )
Curry, Lynn Wade, Thomas )
Worthen and Richard Griffin, )
Individually and as members of the )
Board of Corrections of the )
Arkansas Department of )
Corrections, )

)
Appellants/Cross-Appellees. )

Submitted: April 10, 1985

Filed: June 5, 1985



A-2

Before ROSS and JOHN R. GIBSON, Circuit Judges, and 
COLLINSON,* District Judge.

ROSS, Circuit Judge.

This case comes before the court on appeal by the 
Arkansas Department of Corrections (hereinafter ADC) from i 
the district court’s 1 finding of liability in an employment 
discrimination class action suit filed by two former ADC 
employees. Jurisdiction is premised on 28 U.S.C. §1291. For the 
reasons stated herein we affirm.

FACTS

In May, 1974, two former employees of the ADC filed this 
lawsuit against the ADC alleging that the Department 
unlawfully discriminated against blacks in hiring, placement, 
promotions, and other employment practices. In January, 1976, 
the plaintiffs sought to have the case certified as a class action. 
By an order dated January 18,1982, the district court certified 
the class as follows:

All Black persons who have been employed by the 
defendant Department of Corrections at any time from 
May 8, 1971 to the date of the commencement of the 
trial, who are or have been limited, classified, restricted, 
discharged or discriminated against by the defendants 
with respect to promotions, assignments, training or 
who have been otherwise deprived of employment 
opportunities related to said factors because of their 
race or color. * 1

♦The HONORABLE WILLIAM R. COLLINSON, Senior Judge, United 
States District Court for the Eastern and Western Districts of Missouri, sitting 
by designation.

1
The Honorable Oren Harris, Senior United States District Judge for 

the Eastern District of Arkansas.



A-3

Jones v. Hutto, No. PB-74-C-173 (E.D. Ark. January 18, 
1982) (Order). 2

A fter extensive discovery, trial commenced on March 
29,1982, and the case was tried over a period of fifteen days. 
The record in this case is voluminous, containing almost 
4,000 pages of transcript, several hundred exhibits, as well 
as depositions. On August 29, 1983, the district court issued 
a cogent opinion which copiously analyzed the abundant 
evidence presented in this case. The court discerned that 
the ADC had unlawfully discriminated against blacks in 
placement, promotion, and other practices, but held there 
was no unlawful discrimination in the ADC’s hiring 
practices. This appeal and cross-appeal followed.

ISSUES

A. Appeal

On appeal the ADC raises three issues:

1. W hether the Court abused its discretion by failing 
to decertify or narrow the class;

2. W hether the court was clearly erroneous in its 
ultimate finding of discrimination; and

3. W hether the court applied the correct legal 
standard to the evidence in this case.

B. Cross-Appeal

In their cross-appeal the plaintiffs claim that the 
district court erred by failing to include black applicants

2
The district court subsequently amended the provision “to the date 

of the commencement of the trial,” to read: “to the date of judgment, if 
any, entered on the question of liability.” Jones v. Hutto, No. PB-74-C-173 
(E.D. Ark. March 22, 1982) (Order).



A-4

who were denied employment in the class which was 
certified.

DISCUSSION

A. Class Certification

The appellants claim that the district court should have 
held a hearing to determine whether the plaintiffs’ claims 
were sufficiently similar to those of the class members, and 
to limit the scope of the class to include “only non- 
supervisory security officers employed at the Cummins 
Unit during the term  of plaintiffs’ employment, who claim 
the same type of discrimination * * * .” Appellants’ Brief at 
8. The cross-appellants claim the court should have included 
applicants in the class. We reject both claims.

The certification of a class under Rule 23 of the Federal 
Rules of Civil Procedure may be overturned if the district 
court abused its discretion in so certifying the class. See 
Shapiro v. M idwest Rubber Reclaiming Co., 626 F.2d 63, 71 
(8th Cir. 1980). Nothing in the record in this case indicates 
that the court abused its discretion in certifying the class as 
it did. Furtherm ore, the district court had sufficient 
material before it to determine the nature of the allegations, 
and rule on compliance with Rule 23, without holding a 
formal evidentiary hearing. See Walker v. World Tire 
Corp., 563 F.2d 918, 921 (8th Cir. 1977). Finally, while the 
evidence supporting the finding of liability may have been 
less substantial with respect to some of the ADC facilities 
than others, tha t does not support a finding that the class 
was overbroad. At the remedial phase of this lawsuit the 
district court can cure any overbroadness of the class which 
might exist by carefully scrutinizing the evidence then 
presented in light of the evidence already adduced, and 
tailoring the remedy such that only those harmed by the 
discriminatory practices will be compensated.



A-5

B. Substantive Finding of Discrimination

The appellants claim that the district court erred in its 
factual findings which were relied upon to support the 
ultimate finding of liability. To support their position the 
ADC discusses at length the evidence in the record which 
demonstrates that certain black individuals were in fact 
promoted. In our opinion, the fact that not every black was 
discriminated against, or that there were exceptions, does 
not militate against the district court’s finding of liability in 
this case. See Bell v. Bolger, 708 F.2d 1312, 1318 (8th Cir. 
1983). The district court rejected this argument on the same 
basis as we reject it:

The defendants attempted to demonstrate that 
blacks have progressed in the Department of 
Correction and that they are not underrepresented in 
supervisory positions. First, an employer cannot 
respond to a classwide showing of exclusion by 
identifying a few blacks who progressed in the system. 
The plaintiffs have readily conceded that this is not a 
situation where no black had ever been promoted. 
Rather, the discrimination lies not in total exclusion but 
rather in the Department’s disproportionate allocation 
of promotions to whites. [That] * * * blacks * * * have 
progressed through the system hardly demonstrate^] 
that no discrimination has existed.

Jones v. Hutto, No. PB-74-173, Slip op. at 27 (E.D. Ark. 
August 30, 1983).

In this case both parties had the opportunity to present 
evidence to the district court regarding their respective 
positions. The district court had the opportunity to observe 
the demeanor of the witnesses and weigh the conflicting 
evidence. There is substantial evidence in the record to 
support the court’s factual determinations which formed 
the basis for the finding of liability. The Supreme Court 
recently reaffirmed that the clearly erroneous standard 
applies in cases such as this, see Anderson v. City of



A-6

Bessemer City, 105 S.Ct. 1504,1511-12 (1985), and the record 
before us establishes tha t the district court’s findings are 
not clearly erroneous. Id. See also Tolliver v. Yeargan, 728 
F.2d 1076 (8th Cir. 1984). 3

C. Proper Legal Standard

The ADC’s final allegation is that the district court 
erroneously based its finding of liability as to the class on a 
disparate impact model while the testimony raised issues of 
disparate treatm ent.

As to the named plaintiffs’ claims of discrimination, the 
court clearly employed the disparate treatm ent analysis of 
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 
It is equally clear that the court employed the disparate 
impact model of analysis established in Griggs v. Duke 
Power Co., 401 U.S. 424, 431-32 (1971), to the class claim in 
this case. This, however, was not error.

This case presented what is commonly referred to as an 
“adverse impact ‘excessive subjectivity’ case”, where an 
employer’s excessively subjective selection process results 
in an adverse impact upon a protected group. See Schlei & 
Grossman, Em ploym ent Discrimination Law  1288 (2d ed. 
1983). “However characterized, d isparate trea tm ent

3
The ADC also takes issue with the district court’s discussion of past 

litigation involving segregation of inmates and prison conditions in 
general at the ADC. See Finney v. Mabry, 534 F.Supp. 1026 (E.D. Ark. 
1982); Finney v. Mabry, 528 F.Supp. 567 (E.D. Ark. 1981); Finney v. 
Mabry, 458 F.Supp. 720 (E.D. Ark. 1978); Finney v. Hutto, 410 F.Supp. 251 
(E.D. Ark. 1976) aff’d 548 F.2d 740 (8th Cir. 1977); Finney v. Hutto, 505 
F.2d 194 (8th Cir. 1974); Holt v. Hutto, 363 F.Supp. 194 (E.D. Ark. 1973); 
Holt v. Sarver, 309 F.Supp. 362 (E.D. Ark. 1970), aff’d in part, rev’d in 
part, 442 F.2d 304 (8th Cir. 1971); Holt v. Sarver, 300 F.Supp. 825 (E.D. 
Ark. 1969). Those prior decisions do not appear to have formed the basis 
of the district court’s decision, but they may have served as a valuable 
backdrop against which the ADC’s employment policies could be viewed. 
This is not impermissible.



A-7

‘pattern and practice’ cases are factually and analytically 
ind istingu ishab le  from adverse  im pact ‘excessive 
subjectivity’ cases.” Id. (footnotes omitted). As the evidence 
sufficiently supported both theories of liability in this case, 
liability could be premised on either theory. See generally 
K irby v. Colony Furniture Co., 613 F.2d 696, 702 & 705 (8th 
Cir. 1980).

As the appellants acknowledge, in addition to 
examining the specific disparate treatm ent claims of the 
named plaintiffs, the court received substantial testimony 
from other witnesses as to the “assignment of blacks to 
least desirable jobs; m istreatm ent and verbal abuse by 
white supervisors; arbitrary terminations of blacks for 
reasons for which whites are not terminated; submission of 
only white applicants to QRC and Legislative Council; 
subjective denials of promotions due to favoritism toward 
white applicants; and a multitude of other intentional acts of 
discrimination.” Appellant’s Brief at 10 (emphasis added). 
Additionally, however, the court also relied on impact-type 
evidence to support his finding that the otherwise “neutral” 
subjective promotional policies of the ADC adversely 
affected blacks. 4 Specifically, the court found:

Commissioner Lockhart also enumerated his 
criteria in evaluating employees for promotions: a 
person who is energetic, a person who can adapt to the 
institutional environment, a person who will go by 
policy and procedure, a person who will devote lots of 
time to the job, a person who is willing to learn and 
listen, a person who can be depended on in a crisis 
situation, a person who shows maturity with staff and 
inmates, a person you can trust in a time of trouble, a

4
“In the excessive subjectivity case, plaintiffs do not challenge a 

specific employment practice but allege that the employer’s total 
selection process (which is analyzed as if it were a test or objective 
criterion) allows excessive subjectivity which results in an adverse 
impact upon a protected group.” Schlei & Grossman Employment 
Discrimination Law 1288 (2d ed. 1983) (emphasis added).



A-8

person you can depend on to aid a fellow staff person, 
and a person who would perform in a professional 
manner. Mr. Lockhart was not able to explain how 
these personality traits could be measured objectively, 
but indicated that you could observe these qualities by 
working with an individual.

* * *

In summary, the administrators and Wardens who 
controlled the promotion process were allowed to make 
subjective judgments and to bring to their selection 
their own personal philosophies concerning corrections. 
This has had a disparate impact upon blacks.

* * *

During the relevant time period, the defendants 
have used a variety of procedures available under state 
personnel guidelines to disproportionately benefit 
whites. The defendants followed the correct procedures 
but this does not insulate them from liability. By use of 
these procedures, opportunities were given to whites 
that were not given to blacks. In addition to the use of 
the substitution requests, the department brought in a 
number of employees at advanced steps. These 
employees were processed in accordance with state 
personnel procedures. In 1979, Commissioner 
Housewright made more than 25 such requests for 
individuals in grades 15 and above. Not one of those 
individuals was black.

* * *

The result of the defendants’ practices is that 
white employees were generally hired into the 
department at higher grades than black employees. The 
evidence shows that for the entire period from 1973 to 
1979 no black person was hired into the department 
above grade level 19. Black employees comprised only 
5.4% of the employees hired into grade 16 and above 
and only 20.4% of those hired into grade 12 and above.



A-9

More than 23% of all white males were hired into grade 
12 and above while just under 8% of black males were 
hired into grade 12 and above. There can be no equal 
opportunity in employment when only whites are 
considered for either qualifications substitutions or 
advanced step placement.

These employment practices are underscored by 
the evidence that there are several positions at the 
Department which have never been held by a black.

Jones v. Hutto, No. PB-74-173, Slip op. at 21-24 (E.D. Ark. 
August 30, 1983). Our reading of the record is consistent 
with the district court’s. The evidence in this case clearly 
establishes that the subjective promotion practices had an 
adverse impact upon blacks. Furtherm ore, the neutral state 
personnel guidelines were employed in a manner that 
produced disparate impact upon black ADC employees 
Accordingly, we do not believe the court erred in its 
application of the law to the evidence in this case.



A-10

CONCLUSION

We have examined the appellan ts’ rem aining 
arguments in this case and find them to be without merit. 
We have also carefully examined the cross-appellants’ claim 
that black applicants who were not hired should have been 
included in the certified class and do not find this to be an 
abuse of the trial court’s discretion. Accordingly, the 
judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



B-l

APPENDIX B

In the United States District Court 
Eastern District of Arkansas 

Pine Bluff Division

Johnny Jones and Huey Davis, III, ) 
et al., )

)
Plaintiffs, )

)
v. )

) No. PB-74-C-173
Terrell Don Hutto, Individually )
and as State Corrections )
Commissioner, A. L. Lockhart, )
Individually and as )
Superintendent of the Arkansas )
Department of Corrections — )
Cummins Unit, Jerry Campbell, )
Individually and as Assistant )
Superintendent of the Depart- }
ment of Corrections — Cummins )
Unit, Marshall N. Rush, W.L. )
Curry, Lynn Wade, Thomas )
Worthen and Richard Griffin, )
Individually and as members of the )
Board of Correction of the )
Arkansas Department of )
Corrections, )

)
Defendants. )

MEMORANDUM OPINION AND ORDER

The complaint in this case was filed on May 8, 1974, by 
Johnny Jones and Huey Davis, III, invoking jurisdiction



B-2

under 42 U.S.C. §2000e et seq (Title VII of the Civil Rights 
Act of 1964) and 42 U.S.C. §§1981 and 1983. Named as defen­
dants are the Commissioner of the Arkansas Department of 
Correction, a Superintendent of the Cummins Unit, an 
A ssistant Superintendent, and members of the Board of 
Correction of the Arkansas Department of Correction. The 
case was brought as a class action and alleged a broad pat­
tern  of discrimination by the defendants on the basis of 
race. Allegations are made that Blacks are hired in token 
numbers into low paying jobs with little or no chance for ad­
vancement while Whites are accorded promotional oppor­
tunities in a disproportionate number. Further, Whites are 
given the opportunity to receive on-the-job training while 
Blacks are denied this opportunity. The alleged 
discriminatory practices of the defendants were generally 
outlined in paragraphs 24, 25 and 27 of the complaint.

The complaint sought a declaratory judgment and in­
junctive relief from the practices and policies of the defen­
dant. In addition, the plaintiffs requested appropriate 
equitable relief and affirmative action, together with back 
pay and attorneys’ fees consistent with the requirements of 
Title VII.

The Court conditionally certified the case as a class ac­
tion by Order dated September 27, 1976. By subsequent 
Order dated, January 18, 1982, the Court defined the class 
as follows:

All Black persons who have been employed by 
the defendant Department of Correction at any time 
from May 8, 1971 to the date of the commencement of 
the trial, who are or have been limited, classified, 
restricted, discharged or discriminated against by the 
defendants with respect to promotions, assignments, 
training or who have been otherwise deprived of 
employment opportunities related to said factors 
because of their race or color.



B-3

A fter extensive discovery and pre-trial proceedings, 
the m atter was tried to the Court commencing March 29, 
1982. In all, the trial lasted fifteen days with testimony con­
cluding on April 28, 1982. The parties requested and the 
Court granted time to prepare and submit post-trial briefs. 
All proposed findings conclusions, briefs, and reply briefs 
have now been submitted to the Court for determination of 
the issues.

From the pleadings, the testimony and exhibits receiv­
ed in evidence, and in consideration of the proposed find­
ings and conclusions and briefs presented in support 
thereof, the Court makes the following findings of fact and 
conclusions of law. These findings of fact and conclusions of 
law are incorporated herein pursuant to Rule 52 of the 
Federal Rules of Civil Procedure.

The individual plaintiffs are black citizens of the 
United States and were employees of the Arkansas Depart­
ment of Correction at the time the lawsuit was filed. The 
Departm ent of Correction is an employer within the defini­
tion of the 1964 Civil Rights Act, 42 U.S.C. §2000e. The 
Court, therefore, finds and concludes tha t it has jurisdiction 
of the parties and of the cause of action herein pursuant to 
42 U.S.C. §2000e-5(f)(3) and 28 U.S.C. §1343 as to claims 
under 42 U.S.C. §§1981 and 1983.

The Board of Correction, which is composed of five 
members appointed by the Governor, is empowered to for­
mulate general policies and practices with regard to 
employment by the Department of Correction. The Board 
must act within guidelines prescribed by the State Office of 
Personnel Management of the Department of Finance and 
Administration and is bound by the provisions of the 
Uniform Classification and Compensation Act. Ark. Stat. 
Ann. §12-3201 et seq. Directly below the Board is the posi­
tion of Commissioner or Director. The Commissioner for­
mulates policy for the Department, subject to the policies 
and procedures prescribed by the Board of Correction.



B-4

Most of the information concerning the operation of the 
departm ent is communicated to the Board through the 
Commissioner. His duties include the employment of per­
sonnel needed for the administration of the Department 
and the promotion, discipline, suspension and discharge of 
personnel in accordance with Board policy.

Below the Commissioner is the position of Assistant 
Commissioner or Assistant Director. Until 1977, there was 
only one such position. In 1977, the Commissioner (James 
Mabry) instituted a tripartite  Assistant Director system 
and divided the services provided by the Department 
among the three assistants. The system includes the Assis­
tan t Director for Special Services with jurisdiction over 
Probation and Parole. The jurisdiction of the Assistant 
Director for Administrative Services includes fiscal and 
personnel m atters. The Assistant Director for Institutional 
Services has jurisdiction over the custodial facilities and 
wardens.

Most of the testimony and evidence at trial concerned 
practices within the jurisdiction of Institutional Services. 
This included the correctional institutions and was the 
focus of the prison conditions litigation. 1 There are eight 
major facilities maintained by the Department of Correc­
tion and six of these are under the jurisdiction of the Assis­
tan t Director for Institutional Services:

1. The Cummins Unit is the largest unit both in terms 
of personnel and inmates in the system. It houses the 
most serious and older male offenders and contains the

l
Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969); Holt v. Sarver, 309 

F. Supp 362 (E.D. Ark. 1970), affd in part, rev’d in part, 442 F.2d 304 (8th 
Cir. 1971); Holt v. Hutto, 363 F.Supp. 194 (E.D. Ark. 1973); Finney v. Hutto, 505 
F.2d 194 (8th Cir. 1974); Finney v. Hutto, 410 F. Supp. 251 (E.D. Ark. 1976); affd 
548 F.2d 740 (8th Cir. 1977); Finney v. Mabry, 458 F.Supp. 720 (E.D. Ark. 1978); 
Finney v. Mabry, 528 F.Supp. 567 (E.D. Ark. 1981); Finney v. Mabry, 534 
F.Supp. 1026 (E.D. Ark. 1982).



B-5

maximum security area. Cummins is located near 
Grady, Arkansas, in Lincoln County on a 16,000 acre 
farm. At the time of trial, some 16,043 inmates were 
housed at Cummins. Approximately 300 employees are 
authorized at Cummins.

2. The Tucker Unit is the Intermediate Reformatory 
and houses the less serious and younger male offenders. 
Tucker is located near Tucker, Arkansas, in Jefferson 
County on a 4,500 acre farm and is authorized to have 
approximately 125 employees.

3. The Women’s Unit houses female offenders. It is 
located near Pine Bluff, Arkansas, in Jefferson County 
and is authorized to have approximately 65 employees.

4. The Diagnostic Unit contains the hospital and 
houses sick and injured inmates and some less serious 
offenders and acts as the reception center for the 
Department (except for females). It is located near Pine 
Bluff, Arkansas, in Jefferson County and is authorized 
to have approximately 65 employees.

5. The Benton Unit is a work release and pre-release 
facility. It is located near Benton, Arkansas, in Saline 
County and is authorized to have approximately 30 
employees.

6. The Wrightsville Unit is a pre-release unit near 
Wrightsville, Arkansas, in Pulaski County and is 
authorized to have approximately 75 employees.

7. The Blytheville Unit is a work release facility. It is 
a small unit near Blytheville, Arkansas in Mississippi 
County.

8. The Booneville Unit is a farming operation and 
houses no inmates. It is located in Booneville, Arkansas, 
in Logan County.

The structure of each of the custodial units is essential­
ly the same. Each unit is headed by a Warden who is also



B-6

referred to as a Superintendent. Wardens are somewhat 
autonomous within their units and have a tremendous im­
pact on the character of that unit. Below the Warden is the 
A ssistant Warden position. 2 Below Assistant Warden is 
the Major, 2 3 Chief of Security position. Below Major is the - 
Captain or Correctional Officer IV (CO IV) position. Below 
Captain is the Lieutenant or Correctional Officer III (CO 
III) position. Below Lieutenant is the Sergeant or Correc­
tional Officer II (CO II) position. The lowest 4 position is the 
Correctional Officer I (CO I).

Each position within the Department is assigned a 
numerical grade which conforms to State Personnel 
guidelines. Higher grades receive higher compensation. An 
employee who remains in the same position is periodically 
entitled to a “step increase” even though his grade is un­
changed, An increase in step means higher compensation 
though not as much as an increase in grade. Grade increases 
are supposed to be based on merit while step increases are 
mainly a function of longevity of service.

During the course of this litigation, the grades 
associated with the correctional officer positions have 
changed as follows:

2
The units do not have the same number of Assistant Wardens. The 

Blytheville Unit has no assistants. The Women’s Unit presently has no 
assistant although there has been one in the past and the unit is authoriz­
ed to have one. The Cummins Unit began with two assistants and is 
presently authorized to have three.

3
In the Women’s Unit, the Chief of Security is filling a Captain’s slot. 

Cummins and Tucker have two Major’s slots, one for the Building and one 
for the Field. The small units do not have Majors.

4
In the field the lowest officer is a correctional Officer II (Sergeant) 

although the individual has no supervisory authority over other correc­
tional officers.



B-7

1972-
CO I

1974
1975-

10

1979
1980-

11

1982 13

CO II CO III

12 14

12 15

15 17

Chief of
CO IV Security

15 17

17 18

18 19

Jobs within the Department may be broadly separated 
into two catgories: security positions and non-security posi­
tions. Security positions are those individuals responsible 
for the control and maintenance of inmates. Non-security 
positions would include support services such as laundry, 
mail room or kitchen. The majority of the employees in each 
unit are classified as security personnel.

There are two broad divisions within the security per­
sonnel classification: The Field Force and Building Securi­
ty. The Field Force is responsible for inmates assigned to 
outside labor such as the “hoe squad.” Officers assigned to 
the Field Force do not work in the building. These officers 
are armed and generally ride horses in performing their 
duties. Officers assigned to Building Security perform a 
variety of functions. Some of these officers work outside, 
but are still considered part of Building Security because 
their main function involves prisoners within the building. 
Tower guards, for example, are stationed in the lookout 
towers which surround the unit to guard against inmates 
leaving the unit. Similarly, officers assigned to the Rover or 
to one of the gates perform their duties outside the 
building. The officer in the Rover vehicle patrols the 
grounds surrounding the facility while the officer at a gate 
is responsible for individuals entering or leaving the prison 
grounds.

Within the building, there are three main types of 
assignments: Barracks, PBX and Yard Desk. An officer



B-8

assigned to one of the barracks is involved in immediate 
and personal contact with the inmates and is responsible for 
order and discipline within the building. The PBX is the 
communications center of the unit. Persons entering or 
leaving the building are processed through this position and 
communications between the units or within units are con­
trolled from there. The Yard Desk is the operations center 
of the unit. The shift supervisor is stationed there and ac­
tivity of both officers and inmates is monitored from this 
position.

The Department also maintains a central office which 
is responsible for administrative m atters. There are ap­
proximately 100 employees in this sub-division. The Parole 
and Probation Division is responsible for the monitoring 
and counseling of recently released prisoners or prisoners 
eligible to be released and employs about 60 persons.

As previously indicated, the record in this case is quite 
extensive and while the case will be decided upon this 
record, the Court must note tha t this case did not arise in a 
vacuum. The Arkansas Department of Correction has been 
in litigation concerning prison conditions for more than a 
decade. 5 From the outset of that litigation, both the 
District Court and the Eighth Circuit Court of Appeals con­
fronted and dealt with employment at the Department. A 
review of the prison conditions opinions is helpful in placing 
the instant case in perspective.

In Holt v. Sarver, 309 F. Supp. 362, 373 (E.D. Ark. 
1970), [referred to as Holt II], Judge Henley found that the 
Arkansas prison system was controlled and operated in 
large part by the inmates. At that time there were almost 
1000 inmates confined at Cummins; there were only 35 “free 
world” employees, eight of whom were available for guard 
duty. Judge Henley stated that a sentence to the Arkansas

See footnote 1, supra.
5



B-9

Penitentiary amounted to a banishment from civilized 
society to a dark and evil world completely alien to the free 
world, a world administered by criminals under unwritten 
rules and customs completely foreign to free world culture. 
Holt v. Sarver, supra at 381. The Department was ordered to 
replace those trustees serving as guards with free world 
personnel. Thus, began the monitoring of employment at 
the Department of Correction.

In Holt v. Hutto, 363 F. Supp 194, 205 (E.D. Ark. 1973), 
(Referred to as Holt III), employment of free world person­
nel was again confronted by Judge Henley. Again, this was 
in the context of the constitutional requirement of a 
desegregated prison.

. . . And it should be obvious that apart from any ques­
tion of constitutional law black inmates will make a bet­
ter adjustment to prison life and will conform better to 
prison routine and requirements if they believe affir­
matively that members of their race are being treated 
fairly and without discrimination on account of race.

The Court’s previous decrees will be supplemented 
so as to enjoin racial discrimination in any form and in 
all areas of prison life.. .  .

To start with, existing prison rules about employee 
language should be enforced rigorously and higher 
echelon personnel should set an example to their 
subordinates . . . .

Third, and this is extremely important, more black 
employees should be recruited, and blacks should be 
assigned to meaningful positions of authority, including 
assignments to Classification and Disciplinary Commit­
tees . . . .

. . .  The Court realizes that qualified blacks who are 
willing to fill positions of responsibility and authority in 
prison administration may be in short supply . . . .  But, 
the difficulty of hiring qualified blacks should certainly 
not deter respondents from trying to do so.



B-10

Holt III was appealed to the Eighth Circuit Court of 
Appeals. Finney v. Arkansas Board of Corrections, 505 F.2d 
194, 210 (8th Cir. 1974). [Referred to as Finney I]. Judge Lay, 
writing for the majority, noted tha t when the litigation 
began in 1970 racial discrimination was a serious problem 
within all the institutions operated by the Arkansas Board 
of Correction. The Court found that the District Court opi­
nion fell short of its intended goal.

Very little has been accomplished in the recruit­
ment of black employees. Those who have been hired 
assume, with slight exception, no position of control in­
fluence or even persuasion. Resources, according to 
Commissioner Hutto, will not permit offering salaries 
sufficient to attract the qualified individuals he seeks. 
We need only repeat that inadequate resources cannot 
justify the imposition of constitutionally prohibited 
treatment. Even assuming qualified blacks cannot be 
found, we are not persuaded that an alternative such as 
establishing a program in which blacks could be trained 
until qualified is not viable.

On remand the district court should amend its 
decree to include an affirmative program directed 
toward the elimination of all forms of racial discrimina­
tion. In doing so it should consider the standards now 
employed in the hiring and promotion of prison person­
nel. The court must assure itself that those standards 
are reasonably related to proper correctional goals and 
not designed to preserve institutional racial dis­
crimination.

The Court of Appeals remanded the case to the District 
Court for further evidentiary hearings. The Court found 
the Arkansas correctional system to be unconstitutional.

On remand, the District Court, Judge Henley sitting by 
designation, again considered race relations within the 
prison system. Finney v. Hutto, 410 F. Supp. 251, 265-68 
(E.D. Ark. 1976).



B-ll

Negroes in Arkansas are in a substantial minority 
when compared with the population of the State as a 
whole. In the Department of Correction, however, black 
inmates make up nearly one-half of the total prison 
population and have done so for as long as this court has 
been familiar with the Arkansas prison system.

Administration of the Department, on the other 
hand, is clearly under the control of white people. 
Although in recent years the Department has employed 
a substantial number of blacks and is trying to hire 
more, a large majority of the employees are white, and 
Negroes occupying positions of any real authority are 
very few indeed.

Regardless of the fact that at Cummins, and 
presumably at Tucker as well, one finds a number of 
black employees bearing titles such as Captain, Lieute­
nant or Sergeant, it appears to the court that the only 
black person who occupies a position of any real authori­
ty in the administration of the prison system is Ms. 
Helen Carruthers, the Superintendent of the Women’s 
Reformatory. . . .

In Holt III the court found that race relations in 
the Department were bad, to say the least, and the 
Court of Appeals certainly did not disagree with that 
finding. [Citation omitted].

Most of what the court had to say in Holt HI by 
way of criticism of the Department in the field of race 
relations is still valid today, . . . While conditions in the 
Department have probably improved somewhat over 
the last two years and several months, the court finds 
that in spite of Departmental regulations and memoran­
da designed to improve race relations and to eliminate 
or mitigate the effects of poor race relations, the rela­
tions between whites and blacks are still bad at both 
Cummins and Tucker, particularly at the former institu­
tion. And the court further finds that the poor relations 
are still due to the factors that the court found 
causative in Holt III, namely a paucity of blacks in posi­
tions of real authority that are meaningful to inmates in



B-12

their day to day prison life,. . .  and the poor quality and 
lack of professionalism of the lower echelons of prison 
employees who are in close and abrasive contact with 
inmates every day. . . .

This is not a fair employment practices case. The 
question is not whether the Department is 
discriminating against blacks in matters of hirings, pro­
motions, or discharges, but whether the recruitment 
and promotional policies of the Department are design­
ed to correct or alleviate the racial imbalance of the 
Department’s staff which has contributed so much to 
the difficulties that the Department has had in the area 
now under consideration.

What the Department needs to do is not to hire 
people without regard to race but to make a conscious 
effort to hire qualified blacks in additional numbers and 
to place them in positions in the institutions which will 
enable them to exercise some real authority and in­
fluence in the aspects of prison life with which black in­
mates are primarily concerned.

The Department needs more blacks who are in 
positions that will entitled them to sit on classification 
committees and on disciplinary panels, to counsel with 
inmates about their problems, and to supervise inmates 
while at work . . . .

There is no constitutional objection, of course, to 
the Department’s using the ESD as a referring service, 
but the exclusive use of that agency is not apt to 
produce applicants the hiring of whom will meet the 
Department’s need to correct the existing racial 
imbalance of the staff.

The court recognizes, as it has recognized in the 
past, that it is difficult to recruit blacks who are 
qualified and willing to hold responsible positions in the 
Department; a number of factors are involved, including 
the rural location of the prisons. But the court is not 
satisfied that Commissioner Hutto and others



B-13

connected with prison personnel have really exerted 
themselves to the fullest extent possible or have 
exhausted their resources as far as hiring responsible 
blacks is concerned.

There is nothing to indicate that the Department’s 
need in this connection has been made known to the 
black population in Arkansas through advertising or 
otherwise, or that anyone connected with the 
Department has sought to enlist the good offices of the 
University of Arkansas at Pine Bluff, which is a 
predominately black institution of higher learning and 
which used to be an all black college, or that help has 
been sought from such agencies or organizations as the 
Urban League or the National Association for the 
Advancement of Colored People, or from any 
governmental agencies concerned with the welfare 
of minorities.

In 1978, a Consent Decree was entered in Finney v. 
Mabry, 458 F. Supp. 720 (E.D. Ark. 1978). This decree 
contained specific agreements between the parties as to an 
affirmative action program for the recruitm ent and 
promotion of blacks to decision-making positions within the 
Department.

. . . The following mechanism will be employed to carry 
out this obligation.

(1) The immediate assessment of all Black 
employees of the ADC for promotions to vacant 
positions of authority.

(2) The continuation of a personnel office within 
the ADC.

(3) The establishment of an employment 
referral service with the Urban League of Greater 
Little Rock.

(4) Listing of all job vacancies with the Placement 
Office of the University of Arkansas at Pine Bluff.



B-14

(5) Continuation of the ADC’s present policy of 
hiring personnel, regardless of race.

Judge Eisele in Finney v. Mabry, 534 F. Supp. 1026, 
1043-1045, (E.D. Ark. 1982) found the Department not to be 
in compliance with previous Court Orders, the Consent 
Decree and the Constitution with regards to the affirmative 
action program.

The implementation of the affirmative action 
program is a more complex issue with which to deal. 
This is not an employment discrimination case where 
the court is interested in testing, and remedying if 
necessary, possible discrimination against blacks by the 
respondents in their hiring practices. The reason the 
affirmative action program is so important is not to 
benefit potential employees of the department, 
although they are directly benefited. Rather, the 
importance is in obtaining a racial mix of the security 
personnel in order to alleviate feelings by black 
inmates, which are approximately half of the inmate 
population, that they are being discriminated against. 
The primary effort must be to hire qualified blacks and 
place them in positions of authority in all aspects of 
prison life.

The evidence demonstrated that the respondents 
have increased their efforts to recruit qualified black 
persons to work within the department. Those efforts 
have been successful to the extent that blacks are well 
represented among the highest and the lowest ranking 
officers. In fact, it was shown that at the time of the 
hearing 53 percent of the correctional officers, the 
lowest level officers, were black. However, there have 
not been, and still are not, blacks in the middle 
management positions in significant numbers . .  .

. . . However, the Court finds it difficult to 
understand, with a pool of black persons for potential 
advancement as high as 50 percent of the relevant work 
force, why greater efforts at selection and training



B-15

would not result in promotion and retention of a greater 
number of blacks.

. . . However, the respondents must know that 
blacks, as previously ordered, must be employed in 
reasonable numbers at all levels of free-world 
personnel.

The District Court found the Department of Correction 
to be in full compliance with the Constitution and previous 
Court Orders in August, 1982 and dismissed the litigation. 
It marked the end of more than a decade of litigation 
involving prison conditions. In its final opinion, the District 
Court stated, “The affirmative action program for hiring 
and promoting women and minorities as free-world 
personnel, especially into mid-level management positions, 
is another area where the results accomplished have fallen 
somewhat short of expectations.” Finney v. Mabry, 546 F. 
Supp. 628 (E.D. Ark. 1982). The Court further noted that the 
concern in the case was not with the rights of minority and 
female employees, but rather with the rights of the inmate 
class to have an appropriate racial and sexual mix in the 
administrators of the system. This difference in focus 
greatly affected the standard for evaluating the affirmative 
action program of the Department.

This Court, however, is directly concerned with the 
rights of minority employees and its focus is on whether 
their constitutional right to equal opportunities in 
employment have been violated. After careful review of the 
record in this case, the Court must conclude that there has 
been discrimination in employment at the Arkansas 
Department of Correction.

As indicated by Judge Eisele in his dismissal of the 
prison conditions litigation, the Department of Correction 
has come a long way since Judge Henley first described it as 
a dark and evil world. The various prison institutions are



B-16

being run by free world personnel. Blacks have been hired 
and in 1980 comprised 31.2% of this free world workforce; 
at the time of trial, blacks comprised 34% of the workforce 
at the department. The Court has concluded there is no 
discrimination in initial hiring; blacks are hired at the 
Department of Correction in proportion to their number in 
the Pine Bluff Area. It is a different story, however, with 
initial placement and promotions.

Blacks are invariably hired as CO I’s and most remain 
in that position. They are not promoted in proportion to 
their numbers within the workforce. Further, they are 
assigned to the least desirable shifts and jobs at the 
Department, tha t being the evening and night shifts and 
Tower duty. Blacks are especially overrepresented on the 
night shift. Testimony at trial indicated that not only are 
these shifts the least desirable, but also do not allow an 
employee to gain experience deemed valuable when being 
considered for promotions. Commissioner Lockhart 
testified tha t when evaluating employees for promotion he 
looked to their experience within the Department. He 
stated that someone who had only worked at night and in 
the Tower would not be rated as highly as someone who had 
had direct contact with inmates during the day.

With promotions, it is abundantly clear from the 
testimony and the evidence introduced at trial, tha t blacks 
must be overqualified through either experience and/or 
education to receive a promotion. Whites are routinely 
promoted without the stated qualifications and are allowed 
extensive periods of on-the-job training. Jerry Campbell, 
Warden at the Tucker Unit, came to the Department of 
Correction in 1972 as a Personnel and Training Officer. He 
had a Bachelor’s Degree in Physical Education and had 
worked as a junior high and high school football coach, an 
insurance salesman and a management trainee. When hired 
as the Personnel and Training Officer, Campbell admitted 
that he did not meet the stated requirem ents for the 
position. He did not have the appropriate degree nor did he



B-17

have any correctional experience. He readily admitted that 
he received on-the-job training. After less than a year with 
the Department, Campbell became the Assistant Warden at 
the Tucker Unit. Again, Campbell admitted that he did not 
have the educational or experience requirement for the 
position and had to be trained on-the-job. Campbell has 
advanced within the departm ent and has served as both a 
Warden at Cummins and Tucker. The Court does not mean 
to imply that Campbell has not been an excellent and hard 
working employee. However, there is no evidence that any 
black has ever been given the same kind of opportunity to 
receive on-the-job training and be advanced to this degree.

Warden Campbell is not the only example of a white 
who has been placed and promoted to positions for which 
they were not initially qualified. Charles E. “Lefty” Thomas 
has held many positions in the Department including 
Personnel Director. He was made an Assistant Warden at 
Tucker in 1978 even though he had no custodial experience. 
He experienced severe difficulties in doing the job but was 
retained and allowed to gain the requisite experience to 
handle the job. In 1982, he was promoted to Warden at the 
Benton Unit. Jerry  Gassaway came to the Department in
1973 as a Secretary. After four and one-half years as a 
Secretary and with no custodial experience, she was made 
Captain at the Women’s Unit. It was admitted that she was 
not qualified for the position and was given on-the-job 
training. Tim Baltz, a disc jockey, joined the Department in
1974 as the Public Information Officer and Special Assistant 
to the Commissioner in charge of Public Affairs. In 1982, he 
was made an Assistant Warden. Larry Norris had 
experience as a nurse, phlebotamist and oven worker. He 
was hired in 1976 as a CO IV. In 1977, he was promoted to 
Assistant Warden even though he had no custodial 
experience. Again, the Court does not wish in anyway to 
diminish the work these people have done at the 
department, but blacks have not been afforded the same 
opportunity to receive on-the-job training. Those blacks 
who have been promoted have worked themselves up



B-18

through the ranks and have had to be overqualified for the 
positions they finally received.

Rodney Croseford, a black male, applied for the 
position of Garden Supervisor. He had completed four years 
at the University of Arkansas at Pine Bluff with a Major in 
Agronomy. He lacked ten elective hours to complete his 
degree. In his interview with A rt Davis, the Farm 
Administrator, he was told he was qualified for the job but 
was told his best chance would be to s ta rt as a CO I because 
the Department had a policy of promoting from within. 
While he was a CO I, the Garden Supervisor position 
remained open and he reapplied for the position. He was 
then the only applicant. Later a co-worker was hired. This 
white co-worker, Grimes, was told to apply by the 
Promotion Board. He did not have as much training or 
experience as Croseford.

Cleophus Montgomery, Jr., a black male, was employed 
by the Department in 1972 as a CO I. At the time of his 
resignation in 1981, he was a Lieutenant. He had applied for 
a Captain’s position on two occasions but had not been 
selected. Each time, a white with less custodial experience 
was selected. Montgomery resigned and took a position 
with the Federal prison system. He testified that he simply 
saw no future with the Arkansas Department of Correction.

Bruce Collins, a black male with a Bachelor of Science 
degree, has been employed at the Department since 1972. 
He began with the Department as a CO I and has advanced 
through the ranks to become an Assistant Warden at the 
Wrightsville Unit. In the ten years it has taken him to 
progress to Assistant Warden, Collins has had to endure 
the racial slurs of fellow officers. Yet he has learned about 
all aspects of the prison area. He has had experience in 
administration and in corrections. He has had training in 
transactional analysis and inmate psychology. Despite his 
qualifications, Collins was not selected for the Warden 
position at Wrightsville Unit. The white individual selected



B-19

for the position had been a superintendent in the 
Construction area. Although Collins would not claim 
discrimination, he readily stated that he was better 
qualified in both correctional and administrative experience 
than the white employee chosen.

The selection process within the Department has been 
changed over the years. Initially, the Personnel 
Department of the Department of Correction reported 
directly to the Commissioner. The Wardens had almost 
complete control over promotional decisions. Except for Ms. 
Corrothers, Warden of the Women’s Unit, all individuals 
with authority to make decisions were white, including 
Wardens, Assistant Wardens, Treatm ent Coordinators, 
Personnel Officers, Majors and Captains. There were no 
written guidelines concerning promotion criteria and no 
check on the system. In 1974, the promotion board policy 
was set up at the units. The purpose of the boards was to 
allow for a group interview rather than the subjective 
impression of one individual, the Warden.

Two types of promotion boards were instituted. For 
promotions to grade thirteen and above, interviews would 
be held at the central office. These were called 
“Departmental Promotion Boards.” Members of these 
boards served three months and were appointed by the 
central Personnel Officers. The boards would make 
recommendations to the Commissioner concerning the most 
qualified candidate. If the commissioner did not accept the 
recommendation of a board he could ask that the board be 
held again and more applicants solicited. As in all decisions, 
the Commissioner had the ultimate responsibility for the 
composition of the boards as well as their selections.

Promotions to grade twelve (a Correctional Officer II 
was a grade 12) and below were handled at the respective 
units and were called “Unit Promotion Boards.” Unit board 
members were selected by the Wardens and changed for



B-20

each promotion. 6 Ultimate responsibility for these boards, 
however, also resided in the Commissioner.

In 1979 Acting Commissioner Lockhart eliminated the 
promotion board policy because unit personnel (i.e., 
Wardens, Assistant Wardens, etc.) did not have enough 
input into the promotion process. Thereafter, all applicants 
for promotion would be screened and rank-ordered by the 
personnel office. If there were ten or fewer applicants, the 
top three candidates were to be submitted to the Warden or 
departm ent head for selection. If there were more than ten 
applicants, five names were referred.

There have never been w ritten criteria to instruct 
either the promotion boards or the Wardens in how to make 
promotion decisions. Mr. Campbell, for example, admitted 
that he never received training in what to look for in 
promoting an individual and utilized his own personal, 
subjective judgment in determining who should be 
promoted. Mr. Campbell said that he would not s ta rt with 
the job specifications showing minimum state qualifications 
but instead attem pted to find the right person to do the job. 
He testified that he might look at a person’s education, 
depending on the job. Mr. Campbell, who has been Warden 
and Assistant Warden at both Cummins and Tucker, then 
proceeded to enumerate the qualities he looked for in 
selecting an individual to promote. These included 
leadership ability, self-confidence, someone looking for a 
career in corrections, the person’s knowledge about what is 
going on, the respect the person had from others, the way 
the person dealt with inmates and officers, the person’s 
pride in being in corrections. Campbell had difficulty

6
Wardens would sometimes allow their secretaries to sit on boards as 

their representatives. These secretaries, all of whom were white, had no 
training in personnel or employee selection and were given no guidelines 
in determining which employees should be promoted.



B-21

explaining the meaning of these criteria and conceded that 
some subjective judgment was involved.

Commissioner Lockhart also enumerated his criteria in 
evaluating employees for promotions: a person who is 
energetic, a person who can adapt to the institutional 
environment, a person who will go by policy and procedure, 
a person who will devote lots of time to the job, a person 
who is willing to learn and listen, a person who can be 
depended on in a crisis situation, a person who shows 
m aturity with staff and inmates, a person you can trust in a 
time of trouble, a person you can depend on to aid a fellow 
staff person, and a person who would perform in a 
professional manner. Mr. Lockhart was not able to explain 
how these personality tra its could be measured objectively 
but indicated that you could observe these qualities by 
working with an individual.

Willis Sargent, the present Warden at Cummins, 
testified he relied heavily on attitude. Warden Sargent feels 
that a person going into the supervisory ranks has to have a 
positive attitude towards those he is supervising. When he 
considers a prospective promotee he looks in the record for 
attitude problems. Warden Sargent admitted that it was 
hard to explain but that attitude was a combination of the 
whole person. He further suggested that you can tell 
attitude from talking to a person and that such a judgment 
is made by being around people.

In summary, the administrators and Wardens who 
controlled the promotion process were allowed to make 
subjective judgments and to bring to their selection their 
own personal philosophies concerning corrections. This has 
had a disparate impact upon blacks.

All jobs at the Department of Correction are bound by 
the provisions of the Uniform Classification and 
Compensation Act. An individual who applies for a job must



B-22

meet the requirements listed in the job description for that 
particular job. If an employee or applicant does not meet the 
stated qualifications outlined in the job descriptions, the 
Department could substitute additional education over that 
required by the description for a portion of the experience 
and vice versa. This substitution must be approved by the 
Qualifications Review Committee. 7 The defendants have 
argued that once a person has been approved by this 
Committee, he or she is “qualified”. The point, however, is 
that very few if any substitution requests have been made 
for blacks. This process was used almost exclusively to 
qualify whites. Aundra Thornton, a black female employee 
in the Departm ent’s personnel office, testified tha t she had 
not processed any substitution requests for blacks. At the 
time of trial, Hayward Battle was the Personnel Director 
for the Department. He testified tha t during his tenure 
there had been only seven requests for qualification 
substitutions, but all seven of them were for white 1 
individuals. As was demonstrated overwhelmingly by the 
evidence, at the same time that the defendants were telling 
the courts in the prison conditions litigation tha t there were 
not enough qualified blacks to hire or promote based on the 
job descriptions, they were making extraordinary efforts to 
qualify whites who did not meet the job descriptions.

During the relevant time period, the defendants have 
used a variety of procedures available under state 
personnel guidelines to disproportionately benefit whites. 
The defendants followed the correct procedures but this 
does not insulate them from liability. By use of these 
procedures, opportunities were given to whites that were

7
This is a Committee which is set up through the Office of Personnel 

Management of the Department of Finance and Administration. Ark. 
Stat. Ann. §12-3206. The qualifications Review Committee is given the 
responsibility of reviewing the qualifications of applicants whose 
education and experience do not meet that required by the class 
specification, but who have other job related qualifications which might 
be validly substituted for the class requirements.



B-23

not given to blacks. In addition to the use of the substitution 
requests, the departm ent brought in a number of employees 
at advanced steps. These employees were processed in 
accordance with state personnel procedures. In 1979, 
Commissioner Housewright made more than 25 such 
requests for individuals in grades 15 and above. Not one of 
those individuals was black. Mr. Sherman Tate, who was 
the State Personnel Administrator from 1977 to 1980, 
testified tha t there was much concern about Mr. 
Housewright’s practices. Mr. Embree, the Personnel 
Director for the Department of Correction at that time, 
testified that he discussed with Mr. Housewright the EEC 
implications of bringing in all those whites.

The result of the defendants’ practices is that white 
employees were generally hired into the department at 
higher grades than black employees. The evidence shows 
that for the entire period from 1973 to 1979 no black person 
was hired into the departm ent above grade level 19. Black 
employees comprised only 5.4°/o of the employees hired into 
grade 16 and above and only 20.4% of those hired into grade 
12 and above. More than 23% of all white males were hired 
into grade 12 and above while just under 8% of black males 
were hired into grade 12 and above. There can be no equal 
opportunity in employment when only whites are considered 
for either qualifications substitutions or advanced step 
placement.

These employment practices are underscored by the 
evidence that there are several positions at the Department 
which have never been held by a black. At the time of trial, 
there had never been a black Treatm ent Coordinator, 
Records Supervisor, Farm  M anager, C orrectional 
Administrator or Personnel and Training Officer. As late as 
August 26, 1977, there were at least thirty-five positions 
which had not been held by a black individual.

It is well-established that Title VII of the Civil Rights 
Act of 1964 and Sections 1981 and 1983 of 42 U.S.C.



B-24

proscribe employment practices and procedures which, 
although neutral on their face, have a disproportionate 
impact on blacks. Fumco Construction Co. v. Waters, 438 
U.S. 567 (1978); International Brotherhood of Teamsters v. 
United States, 431 U.S. 324 (1977); Griggs v. Duke Power 
Co., 401 U.S. 424 (1971); Hameed v. International 
Association of Bridge, Structural and Ornamental and Iron 
Workers, Local Union NO. 396, 637 F.2d 506 (8th Cir. 1980); 
K irby v. Colony Furniture Co., Inc., 613 F.2d 696 (8th Cir. 
1980); “Criteria which disproportionately exclude one racial 
group are ‘used’ to discriminate within the meaning of the 
Act unless the user can show a business necessity for their 
use.” Hameed, supra, at 512. Plaintiff is not required to 
show discriminatory intent or lack of good faith on the part 
of the employer:

As set out by the Court in Griggs v. Duke Power Co. to 
establish a prima facie case on a disparate impact claim, 
a plaintiff need not show that the employer had a 
discriminatory intent but need only demonstrate that a 
particular practice in actuality “operated to exclude 
Negroes.” Once the plaintiff has established the 
disparate impact of the practice, the burden shifts to 
the employer to show that the practice has a “manifest 
relationship to the employment in question.” The 
“touchstone is business necessity” and the practice 
“must be shown to be necessary to safe and efficient job 
performance to survive a Title VII challenge.”

Fumco Construction Co. v. Waters, supra at 583.

The defendant’s burden of proving a “business necessity” 
is a heavy one. The challenged practice or procedure must be 
justified by more than “routine business considerations.” There 
must be “a compelling need for the employer to maintain that 
practice” and the employer must prove that “there is no 
alternative to the challenged practice.” Kirby, supra at 705, n.6. 
As the Eighth Circuit held in United States v. St. Louis-San 
Francisco Ry. Co., 464 F.2d 301, 365 (8th Cir. 1972);



B-25

The business purpose must be sufficiently 
compelling to override any racial impact; the challenged 
practice must effectively carry out the business 
purpose it is alleged to serve; and there must be 
available no acceptable alternative policies or practices 
which would better accomplish the business purpose 
advanced, or accomplish it equally well with a lesser 
differential racial impact.

In establishing the disparate impact of the employer’s 
practices, the plaintiff may rely on statistical compilations. 
Teamsters, supra; Dothard v. Rawlinson, 433 U.S. 321 
(1977); Kirby, supra; Green v. Missouri Pacific Railroad Co., 
423 F.2d 1290 (8th Cir. 1975); The Eight Circuit has 
indicated that “a disproportionate racial impact may be 
established statistically in any of three ways.” Green, supra 
at 1293. The first method announced by the Court was to 
consider “whether blacks as a class (or at least blacks in a 
specified geographical area) are excluded by the 
employment practices in question at a substantially higher 
rate than whites.” Id. This is the method generally applied 
when the employer imposes a requirement such as 
education or experience on employees or applicants for 
employment.

The Court is of the opinion the plaintiffs have made a 
prima facie case of disparate impact with regard to the 
promotional and placement practices at the Department of 
Correction. Once the plaintiffs established this prima facie 
case, the burden of producing evidence to show the 
challenged is justified by business necessity shifts to the 
defendant. Kirby, supra at 703. The Court is of the opinion 
the defendant has not articulated a business necessity for 
its practices. No manifest relationship to the employment in 
question nor that the practice is necessary to safe and 
efficient job performance has been presented to the Court.

The defendants attem pted to demonstrate that blacks 
have progressed in the Department of Correction and that



B-26

they are not underrepresented in supervisory positions. 
First, an employer cannot respond to a classwide showing of 
exclusion by identifying a few blacks who progressed in the 
system. The plaintiffs have readily conceded tha t this is not 
a situation where no black had ever been promoted. Rather, 
the discrimination lies not in total exclusion but ra ther in 
the Department’s disproportionate allocation of promotions 
to whites. The eleven blacks who have progressed through 
the system hardly demonstrate that no discrimination has 
existed.

Secondly, the defendants attem pted through the use of 
statistics to produce evidence that blacks were represented 
in supervisory positions in relationship to their number in 
the workforce. The statistics utilized by the defendants 
covered a period of May 27, 1978 through March 31, 1982. 
The actionable period begins May 8, 1971. Further, the 
statistics with regard to promotions are extremely 
misleading. The defendants’ expert counted as a promotion 
every individual who completed the two or three week 
Training Academy. While an employee who completes this 
program receives a grade increase, this is automatic and 
non-competitive. The inclusion of these individuals 
camouflages the Departm ent’s failure to promote blacks to 
positions beyond the entry level.

The defendants’ expert, Dr. Robert Baker, further 
claimed that his analysis showed that blacks were not 
underrepresented at the CO II level and above. However, 
on cross-examination, the expert admitted that his 
conclusion was based on an erroneous assumption: the 
expert assumed that all individuals without a high school 
degree were hired into grade 11 or below. Because of this 
error, the expert used an incorrect benchmark. He used the 
weighted percentage of blacks with a high school diploma in 
the outside workforce. However, almost all the blacks 
within the Departm ent’s workforce were high school 
graduates. The appropriate comparison is to the percentage 
of blacks in the workforce (30%) and not to the percentage



B -2 7

of blacks with high school degrees in the outside workforce 
(19°/o). The Court cannot accept the conclusions drawn by 
the expert proffered by the defendants. 8

The Court can only conclude that the defenants have 
failed to produce evidence to rebut the prima facie case of 
the plaintiffs. They have not articulated a business 
necessity for the employment practices utilized by the 
Department of Correction.

The Court must note at this time that it is fully 
cognizant of the pressure the Department of Correction and 
its administrators have faced over the past few years. The 
need to obtain competent help with severe budgetary 
problems has been almost overwhelming. In the struggle to 
meet whichever problem is most severe at a particular 
instant, the departm ent has utilized procedures allowed by 
state personnel but these have had a disparate impact upon 
blacks. In reaching this result, the Court wishes to 
emphasize that it recognizes the hurculean efforts made by 
the departm ent over the last decade.

8
The Court would also note here that in answer to an Interrogatory 

propounded by the plaintiffs’ counsel, the defendants responded that they 
did not intend to call an expert witness. The Interrogatories were 
deemed continuing. On January 1, 1981, the defendants’ pre-trial 
information sheet was filed. No expert witness was denoted. An amended 
pre-trial information sheet was filed on March 26, 1982, some three days 
prior to the commencement of trial. Robert Baker was listed as a witness 
but was not listed as either an expert nor was his professional degree 
noted. The nature of his testimony was not given. Local Rule 21 of the 
District Courts of the Eastern and Western Districts of Arkansas 
requires that expert witnesses and the nature of their testimony be 
included on the pre-trial information sheet. Further, the failure to notify 
the plaintiffs of the intention to call an expert witness certainly violates 
the spirit of Rules 26(b)(4)(A)(i) and 26(e)(1) of the Federal Rules of Civil 
Procedure. The Court is of the opinion that even if the testimony of Dr. 
Baker was probative, it would have to be excluded due to the failure of 
counsel for the defendant to apprise the plaintiffs of his intention to call 
an expert. The Court sees this as a deliberate attempt to avoid legitimate 
discovery.



B-28

There was much testimony at trial concerning the use 
of racial epiteths. Several witnesses, including A.L. 
Lockhart, Ronald Dobbs, and Bruce Collins, stated that 
despite departm ent policy prohibiting the use of racial slurs 
they were sometimes used by prison employees. The Court 
is convinced there has been a diligent effort to eliminate 
this as a problem. This effort must continue. All individuals 
must be able to work in an atmosphere which is free from 
the use of racial epithets.

Further, there was much testimony concerning 
discipiinaries and terminations within the department. 
Several witnesses stated that their personnel file contained 
warnings or reprimands which they had never seen. This 
has apparently been a problem for some time. Edwin Evans, 
one of the first black employees of the departm ent, testified 
that he found false reports in his personnel file. These had 
been placed there by a supervisor. Then Warden Lockhart, 
had them removed. Evans testified tha t if it had not been 
for Lockhart they would have remained in there. Warden 
Campbell stated tha t he has instituted the practice of 
having an employee sign any disciplinary which was being 
placed in his file. The Court finds this to be a good practice 
and should be instituted throughout the department.

The Court would also note at this juncture that it 
appears that many of the problems faced by black 
individuals, especially in the early 1970’s, were caused by a 
few white supervisors. These supervisors are no longer 
with the department. There is no evidence in the record 
that present administrators knew of the problems or 
acquiesced in the trea tm en t of subordinate black 
employees.

INDIVIDUAL CLAIMS 

Johnny Jones

Jones, a black male with a degree in Sociology from 
UAPB, was initially employed at the Department of



B - 2 9

Correction in July, 1973 as a prison guard, CO I. Prior to 
that time, Jones has applied for a parole officer position, but 
was not hired. During his employment, Jones also applied 
for a total of four other upper level positions, but was not 
chosen on any of his applications.

In November, 1973, Jones applied for the position of 
Treatm ent Coordinator. The vacancy announcement stated 
that a degree in Sociology or related experience was 
required. Roger McLemore, a white male with less than two 
years of college was selected. The evidence at trial showed 
that Warden Campbell told McLemore to apply for the job, 
sat on the promotion board and selected McLemore for the 
position.

The plaintiff, in an individual case of discrimination, 
has the burden of proving by a preponderance of the 
evidence a prima facie case of discrimination. The plaintiff 
must show his qualifications to be equal to or greater than 
the one selected. An employer has discretion to choose 
among equally qualified candidates, provided the decision is 
not based on unlawful criteria. Texas Dept, o f Comm. 
Affairs v. Burdine, 450 U.S. 248 (1981). The plaintiff made a 
prima facie case that he was equal to or better qualified 
than Roger McLemore for the position of Treatm ent 
Coordinator.

The defendants articulated a legitimate reason for his 
non-selection, tha t the selectee was better qualified. It was 
asserted at trial that McLemore was better qualified for the 
position because he had more security experience. The 
Court would note that McLemore had field security 
experience and not building security experience. The Court 
is of the opinion the reason articulated by the defendants is 
pre-textual. The Court can only conclude Jones was not 
promoted to the Treatm ent Coordinator position due to his 
race.



B-30

Huey Davis, III

Huey Davis, a black male with a BS degree in 
Sociology, served in the Army for three years as a 
neuropsychiatric technician. This job required that he do 
intake histories, supervise other technicians and be able to 
do routine medical tasks such as administer shots, diagnose 
illness, dispense medication, suture wounds and generally 
serve as an independent medical officer. He had medical 
training in the Army.

Davis was hired in October, 1973, by the Department of 
Correction as a Medical Assistant, Correctional Officer I. 
Prior to that time, he had applied at the departm ent for the 
position of medical assistant (CO II), but was not hired. The 
supervisor selected a white male with less education but 
who had served as a navy corpsman. The plaintiff has 
established a prima facie case of discrimination.

The supervisor testified that he felt navy corpsmen 
were better trained and qualified. The supervisor testified 
that he believed a navy corpsman was always a better 
choice. There is no indication in the record tha t the 
qualifications of Mr. Davis and the other applicant were 
compared. The Court does not believe that one can 
automatically assume that a navy corpsman is better 
qualified. The Court is of the opinion this articulated reason 
is pre-textual.

As previously stated, the Court conditionally certified 
this case as a class action. The Court is of the opinion the 
class action has been sustained.

This case has been bifurcated. During Stage II 
proceedings members of the class must be identified, the 
individual relief to which they are entitled must be 
determined, and appropriate class relief considered and 
determined. The parties are directed to proceed forthwith, 
in the light of the foregoing findings and conclusions, with



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prompt preparation for a hearing in connection with Stage 
II of this litigation.

As settlem ents by mutual agreement are encouraged 
in Title VII proceedings, the parties are urged to engage in 
good faith discussion of possible stipulation and settlement 
of the Stage II proceedings, and are directed to report to 
the Court on the progress of preparation and settlement 
negotiations within 90 days of the entry of this opinion.

This opinion and order are final for purposes of 
determining liability and should be considered a final 
decision.

IT IS SO ORDERED this 29th day of August, 1983.

Isl Oren Harris_________________
United States District Judge