Nabrit to Seek Broader Faculty Desegregation in Richmond

    No. 88-

In The
S u p re m e  C o u r t  o f t\)t U n itc t i  s ta te s

October Te r m, 1988

LO U IS SW IN T, e tc ., e t  a l.,
P e t i t i o n e r s ,

V.

P U L L M A N -ST A N D A R D , e t  a l.,
R e s p o n d e n ts .

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

FOR THE ELEVENTH CIRCUIT

JA M E S U. B L A C K S H E R E L A IN E  R. JONES
5th F loor N A A C P  Legal Defense &
Title Building Educational Fund, Inc.
300 21st St. N orth Suite 301
Birmingham, A labam a 35203 1275 K Street, N .W .
(205) 322-1100 W ashington, D.C. 20005 

(202) 682-1300
O SC A R  W . A D A M S, III

B row n M arx Building JU LIU S L. CH A M BE R S
Suite 729 E R IC  SC H N A PPE R *
2000 First Avenue N A A C P  Legal Defense &
Birmingham, Alabam a 35203 Educational Fund, Inc.
(205) 324-4445 16th F loor 

99 Hudson Street 
N ew  Y ork, N ew  Y ork  10013 
(212) 219-1900

C ou nsel f o r  P e tit io n er s

* Counsel o f  Record

press OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



1 .

QUESTIONS PRESENTED*
Does the plaintiff or the 

defendant bear the burden of proof as to 
whether a seniority system is "bona fide" 
under section 703(h) of Title VII and 
Teamsters v. United States, 431 U.S. 324 
(1977)?

2. Where an employer or union 
engages in intentionally discriminatory 
seniority practices whose purpose and 
effect is to nullify or violate the 
nominal seniority rights of blacks, is 
their seniority system nonetheless "bona 
fide" so long as those discriminatory

* Most of the discriminatory 
seniority practices at issue in this case 
were originally adopted before 1965, the 
effective date of Title VII. One of the 
issues raised in Lorance v. A.T.& T. Technologies. No. 87-1428, is whether 
intentionally discriminatory seniority practices are immune from attack if those 
practices were adopted prior to the 
effective date of Title VII. (See pp. 
32-34, infra.

i



seniority practices are not explicitly set 
forth in the nominal written seniority 
rules?

3. Where a written seniority 
system was framed for the express purpose 
of discriminating on the basis of race, 
may an employer nonetheless invoke the 
"bona fide seniority system" exception of 
section 7 03 (h) on the ground that it was 
the union which sought and framed the 
racially motivated provisions, and that 
the company agreed to that racially 
motivated system simply to accommodate the 
wishes of the union?

4. Did the lower courts err in 
failing to determine whether discrimina­
tory intra-departmental seniority 
practices continued after 1965?



PARTIES
The petitioners are Louis Swint, 

Willie James Johnson, William B. Larkin, 
Spurgeon Seals, Jesse B. Terry, Edward 
Lofton, and the class of all black workers 
employed at the Bessemer plant of Pullman- 
Standard between 1965 and 1974.

The respondents are Pullman-Standard, 
a division of the Pullman, Inc., the 
United Steelworkers of America, AFL-CIO, 
Local 1466 of the United Steelworkers of 
America, the International Association of 
Machinists, and Local 372 of the 
International Association of Machinists.

iii



TABLE OF CONTENTS

Questions Presented........   i
Parties ......................   iii
Table of Contents .............  iv
Table of Authorities ......... . vii
Opinions Below ................ 2
Jurisdiction .............. . . . . 4
Statutory Provisions Involved *. 4
Statement of the Case.....  5
Statement of the Facts ........  10

(1) Seniority Rules Govern­
ing Intra-Department 
Promotions .........  11
(a) Prior to 1965 ..... 11
(b) Subsequent to 1965 . 12

(2) The Division of Existing 
Integrated Departments 
Into All-White and All-
Black Seniority Units ... 15

(3) The Creation of New
Single Race Departments . 20

(4) The Racially Motivated
1965 Training Require­
ment ................... 2 4

Page

iv



Page
Reasons for Granting the Writ .. 28

I. Certiorari Should Be 
Granted To Resolve A Conflict Among the Circuits As To Whether 
The Bona Fides of A 
Seniority System Is 
Controlled By Actual Seniority Practices, Or 
Turns Solely on the 
Substance of the Nominal Written Seniority Rules .. 35

II. Certiorari Should Be Granted To Resolve A Conflict Among the Circuits As To Whether Section 703(h) Provides a "Bona Fide Seniority 
System" Defense to An 
Employer Which Agrees to and Enforces Seniority 
Rules Framed And Proposed By A Union for the 
Purpose of Discriminating on the Basis of Race .... 44

III. Certiorari Should Be
Granted To Resolve A Con­
flict Among the Circuits 
As to Which Party Bears the Burden of Proof 
Regarding Whether a 
Disputed Seniority SystemIs a Bona Fide .......... 53

Conclusion .................... 63

v



Page
Appendix
Opinion of the Court of Appeals,

April 4, 1983 ............ . la
Opinion of the District Court,

September, 198 6 .......... . 5a
Memorandum Opinion, District

Court, November 25, 1986 ... 41a
Order, District Court,

November 25, 1988 .......   54a
Opinion of the Court of Appeals,

September 21, 1988 ........ 58a
Opinion of the Court of Appeals,

January 3, 1989 ...........  212a

vi



TABLE OF AUTHORITIES
Cases: Page
Acha v. Beame, 570 F.2d 57(2d Cir. 1978)   35
American Tobacco Co. v.

Patterson, 456 U.S. 63(1982)   29,30
Bernard v. Gulf Oil Corp.,841 F.2d 547 (5th Cir.

1988)   54
California Brewers Ass'n v.Bryant, 444 U.S. 598(1980)   29,30
County of Washington v. Gunther,452 U.S. 161 (1981)   59
Crosland v. Charlotte Eye, Ear 

and Throat Hosp., 686 F.2d 
208 (4th Cir. 1982)   55

EEOC V. Ball Corp., 661 F.2d 531(6th Cir. 1981)   53-54
EEOC v. Westinghouse Elec. Corp.,725 F.2d 211 (3d Cir. 1983). 55
Gantlin v. West Virginia Pulpand Paper Co., 734 F.2d 980

(4th Cir. 1984)   57,58
Jackson v. Seaboard Coastline R.Co., 678 F.2d 992

(11th Cir. 1982)   56

vii



Cases: Page
Keyes v. School District No. 1,

413 U.S. 189 (1973) ___.... 63
Larkin v. Pullman-Standard,

854 F.2d 1549 (11th Cir.(1988)     2
Lorance v. A.T. & T.

Technologies, No. 87-1428 .. Passim
Mitchell v. Mid-Continent

Spring Co., 583 F.2d 275
(6th Cir. 1978)   36

Mozee v. Jeff Boat, Inc.,
746 F.2d 365 (7th Cir.1984)     36

Nashville Gas Co. v. Satty,
434 U.S. 136 (1977) ........ 42,59

Pullman-Standard v. Swint,
456 U.S. 273 (1982) ........ 3,9,51

Robinson v. Lorillard,
444 F.2d 791 (4th Cir.(1971)    48

Sears v. Atchison, T. & S.F.Ry.Co., 645 F.2d 1365
(9th Cir. 1981)   47,48

Smart v. Porter Paint Co.
630 F.2d 490 (7th Cir.
1980)     55

Swint v. Pullman-Standard,11 FEP Cas. 943
(N.D.Ala. 1974)   3,7,14,24

viii



Cases; Page
Swint v. Pullman-Standard,

539 F.2d 77 (5th Cir.1976)   3,7,12,14
Swint v. Pullman-Standard,15 FEP Cas. 144

(N.D.Ala. 1977)   3,8
Swint v. Pullman-Standard 

17 FEP Cas. 730(N.D.Ala. 1978)   3,8,22
Swint v. Pullman-Standard,

624 F.2d 525 (5th Cir.1980) ............... 3,9,17,19,22
Swint v. Pullman-Standard,692 F.2d 1031

(5th Cir. 1983) ........... 3
Teamsters v. United States,

431 U.S. 324 (1977) ....... Passim
Trans World Airlines v. Hardison

431 U.S. 63 (1977)   43,60
Trans World Airlines v. Thurston,469 U.S. Ill (1985)   59
United Airlines v. Evans,

431 U.S. 553 (1977)   29
United States v. First City 

Nat. Bank, 386 U.S. 361 (1967)   58

ix



Cases; Page
Wattleton v. International

Brotherhood of Boilermakers,686 F.2d 586 (7th Cir.
1982)   37

Other Authorities:
Title VII, Civil Rights Act

Of 1964 ................ 4,43,50,52
Section 703(a), Civil Rights Actof 1964 ...............   4

Section 703(h), Civil Rights Act
of 1964 ................... Passim

28 U.S.C. § 1254 (1)   4
Age Discrimination in

Employment Act ............ 5 4 , 5 9

Equal Pay Act ..................  59

Rule 52, Federal Rules of
Civil Procedure ........... 9

2A Moore's Federal Practice .... 60

x



NO. 88-

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1988

LOUIS SWINT, etc., et al..
Petitioners.

v.
PULLMAN-STANDARD, et al..

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Petitioners Louis Swint, etc., et 
al., respectfully pray that a writ of 
certiorari issue to review the judgment 
and opinion of the Court of Appeals for 
the Eleventh Circuit entered in this 
proceeding on September 21, 1988.



2
OPINIONS BELOW

The decision of the Eleventh Circuit 
is reported at 854 F.2d 1549 (11th Cir.
1988), sub. nom. Larkin v. Pullman- 
Standard. and is set out at pp. 58a-211a 
of the Appendix; the portions of that 
opinion of particular relevance to this 
petition are set out at parts IA and V of 
the opinion pp. 64a-68a and 166a-184a. 
The Court of Appeals decision denying 
rehearing, which is not yet reported, is 
set out at pp. 212a-215a of the Appendix. 
The Eleventh Circuit opinion reviewed 
three earlier district court orders, dated 
Sept. 8, 1986, Nov. 25, 1986 and Nov. 25,
1986; these orders, none of which are 
officially reported, are set forth at pp. 
5a-40a, 41a-53a and 54a-57a, respectively, 
of the Appendix. Part III of the 
September, 1986, opinion (App. 23a-31a),



3
deals with the issues raised by this 
instant petition.

This case, which has been pending for 
18 years, was the subject of two previous 
appeals, one of which was heard in this 
Court. The previous reported opinions, in 
chronological order, are as follows:

Swint v. Pullman-Standard. 11 FEP
Cas. 943 (N.D.Ala. 1974)

Swint v. Pullman-Standard. 539 F. 2d
77 (5th Cir. 1976)

Swint v. Pullman-Standard. 15 FEPCas. 144 (N.D.Ala. 1977)
Swint v. Pullman-Standard, 15 FEPCas. 1638 (N.D.Ala. 1977)
Swint v. Pullman-Standard, 17 FEPCas. 730 (N.D.Ala. 1978)
Swint v. Pullman-Standard, 624 F. 2d525 (5th Cir. 1980)
Pullman-Standard v. Swint, 456 U.S.273 (1982)
Swint v. Pullman-Standard. 692 F. 2d1031 (5th Cir. 1983) (App. la-

4a)



4
JURISDICTION

The original decision of the Eleventh
Circuit was entered on September 21, 1988.
A timely petition for rehearing was denied
on January 3, 1989. (App. 212a-215a).
Jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED
Section 703 (a) of Title VII of the

1964 Civil Rights Act, 42 U.S.C. § 2000e-
2(a), provides in pertinent part:

It shall be an unlawful practice for an employer —
(1) to ... discriminate against any 

individual with respect to his 
compensation, terms, conditions, 
or privileges of employment, 
because of such individual's race....

Section 703(h) of Title VII, 42 U.S.C.
§ 2000e-2(h), provides in pertinent part:

Notwithstanding any other 
provision of this title, it 
shall not be an unlawful 
employment practice for anemployer to apply different __terms, conditions, or privileges 
of employment pursuant to a bona



5
fide seniority ... system provided that such differences 
are not the result of an intention to discriminate....

STATEMENT OF THE CASE 
The procedural history of this 

litigation is summarized in part II of the 
Fifth Circuit's 1986 opinion (70a-98a). 
This Title VII action was originally filed 
in 1971 by several black employees at the 
Bessemer, Alabama, plant of Pullman- 
Standard. The plaintiffs alleged that the 
company and the United Steelworkers (USW) 
had engaged in a variety of racially 
discriminatory practices, and that the 
effects of those discriminatory practices 
were perpetuated by the seniority system 
in effect at the plant.

The nominal terms of the seniority 
system were embodied in two collective 
bargaining agreements, one between 
Pullman-Standard and the Steelworkers, and 
a second between Pullman-Standard and the



6
International Association of Machinists 
(IAM). The two unions represented
different, albeit closely related 
departments in the same plant. There 
were, for example, two separate 
Maintenance Departments, one represented 
by the USW and the other represented by 
the I AM. The seniority rules in the
Pullman-Standard-IAM agreement directly 
affected the promotion and transfer rights 
of Pullman-Standard employees in USW 
represented departments, since that 
agreement required any worker in a USW 
unit to forfeit all seniority if he or she 
moved into an IAM represented department.

The case was originally tried in 
1974. The district court held that the 
seniority system at the Bessemer plant did 
not have any discriminatory effect. The 
court acknowledged that most blacks had 
been assigned to particular departments on



7
the basis of race, and that the seniority 
system —  which forfeited all seniority 
rights of any person transferring to a new 
department —  locked blacks into those 
departments. The district court reasoned, 
however, that the departments to which 
blacks had been assigned on the basis of 
race were in fact as desirable as the 
departments to which most whites had been 
assigned. Swint v. Pullman-Standard. 11 
FEP Cas. 943 (N.D.Ala. 1974). In 1976 the 
Court of Appeals, noting that virtually 
none of the higher paying jobs at the 
plant were in the units to which blacks 
were restricted by the seniority system, 
reversed and remanded for further 
proceedings. Swint v. Pullman-Standard. 
539 F.2d 77 (5th Cir. 1976).

While the case was pending on remand, 
this Court decided Teamsters v. United
States, 431 U.S. 324 (1977), which held



8
that Title VII permitted the use of a 
seniority system which perpetuated the 
effects of prior discrimination, so long 
as the system was bona fide. In light of 
Teamsters. the district court in 1977 held 
an additional hearing on the bona fides of 
the seniority system at the Bessemer 
plant. Swint v. Pullman-Standard. 15 FEP 
Cas. 1638. The district court concluded 
that the system was indeed bona fide. 
Swint v. Pullman-Standard. 17 FEP Cas. 730 
(N.D.Ala. 1978).

The Court of Appeals in 1980 again 
reversed, holding that the district 
court's finding of bona fides rested on 
subsidiary findings which were either 
tainted by errors of law, or were clearly 
erroneous. The appellate court concluded 
that the evidence demonstrated that the 
seniority system was not bona fide. Swint
v. Pullman-Standard. 624 F.2d 525 (5th



9
Cir. 1980). This Court granted certiorari 
to consider whether the Court of Appeals 
had erred in deciding itself whether the 
system was bona fide, rather than 
remanding the case for reconsideration by 
the district court. The Court held that 
Rule 52, Federal Rules of Civil Procedure, 
required that the district court be 
afforded an opportunity to reassess the 
bona fides of the system in light of the 
subsidiary errors identified in the 
circuit court's 1980 opinion. Pullman- 
Standard v. Swint. 456 U.S. 273 (1982).

On remand in 1986 the district court 
again upheld the seniority system as bona 
fide. (App. 23a-31a). On appeal the 
Eleventh Circuit affirmed. (App. 166a- 
184a). Petitioners had prevailed on 
several other claims, and the company 
filed a timely petition for rehearing with 
regard to those aspects of the case. The



10
petition for rehearing was denied (App. 
212a-215a).1

STATEMENT OF FACTS
The dispute in the instant case 

regarding the bona fides of the seniority 
system turns on four seniority related 
practices, described below. In most 
instances the lower courts agreed that the 
seniority related practices were racially 
motivated, but held that the seniority 
system was nonetheless bona fide.

(1) Seniority Rules Governing Intra- 
Department Promotions 1

1 The instant petition, like the 
relevant portions of the Eleventh Circuit 
decision, is concerned with whether the 
seniority system at issue is bona fide 
within the meaning of section 703(h). In 
the context of this litigation, however, 
resolution of the section 703(h) issues 
has somewhat broader ramifications for the 
parties. The Eleventh Circuit properly 
recognized that a subsidiary finding of 
post-Act discrimination, even if based on evidence originally adduced primarily to 
show non-bona fides, might also entitle petitioners as well to a remedy for that 
post-Act discrimination as such. (App. 153a-157a).



11

(a) Prior to 1965 
In 1954 the ostensible seniority 

system required that promotions within a 
given department be awarded to the most 
senior department employee in a lower 
level position.2 It is undisputed, 
however, that prior to 19 65 the actual 
seniority practice was entirely different. 
The district court3 and the Eleventh 
Circuit4 agreed that at least until 1965

z App. 66a; 456 U.S. at 278-79.
3 11 FEP Cas. 943, 947 and n. 12(N.D.Ala. 1974); 15 FEP Cas. 144, 147 n.

7, 148 (N.D.Ala. (1977); 17 FEP Cas. 730,733 (N.D.Ala. 1978).
4 App. 64a-65a:
"[P]rior to 1965 ... [t]here
were ..., within each mixed-race 
department, 'white7 jobs and 
'black' jobs, meaning that when 
a particular job was vacated, it was necessarily filled with an employee of the same race. The 
'white' jobs tended to be the higher paying; and the 'black' jobs the lower paying."



12
the seniority system was avowedly racial 
in nature, since only whites could promote 
into "white" jobs, while black in the same 
department were limited to lower paying 
"black" jobs. Thus if a vacancy arose in 
a "white" job, it was awarded to the most 
senior white worker, regardless of whether 
one or more blacks in the unit actually 
had more departmental and plant seniority, 

(b) Subsequent to 1965 
There is an unresolved dispute 

as to whether this race based seniority 
practice in fact ended in 1965, or 
continued for years thereafter. At the 
1974 trial petitioners introduced 
extensive testimony that the old "white" 
jobs were still being filled by less 
senior whites in place of more senior

See also 539 F.2d 77, 83 (5th Cir. 1976).



13
blacks.5 Black witnesses testified that 
the company frequently did this by 
providing training only to the white 
employees in lower level positions, and 
then deeming the more senior blacks 
ineligible because they lacked that 
training.6 Petitioners asked that this 
systematic disregard of the seniority 
rights of blacks be ended, in part, by an 
order requiring the company to post a 
notice of all vacancies.

In its 1974 opinion the district 
court, although refusing to order any 
posting of vacancy announcements, did not 
decide whether the pre-Act race based

5 See e.q.. R.v. 3, pp. 56-62, 81,103-04, 126-32, 160-61, 191, 210-12; R.v.4, pp. 311-13, 341-42, 375-76, 471, 481,
528; R.v. 5, pp. 534, 580; R.v. 6, pp.840, 847, 895.

6 See. e.q., R.v. 3, pp. 103, 105,126-28, 139-45,, 207-09, 238-42; R.v. 4,pp. 262, 342, 347-48; R.v. 5, pp. 615-16,
630; R.v. 6, p. 753, 923-24, 948, 951-52.



14
promotion system had continued after 1965. 
11 FEP Cas. at 959. The court of appeals 
in 1976 directed the district court, inter 
alia, to reconsider its denial of the 
requested posting order. 539 F.2d at 102. 
In its 1977-78 opinions, however, the 
district court inexplicably failed to do 
so. When the case was again remanded in 
1984, petitioners reiterated their 
contention that the seniority system for 
promotions had even after 1965 been 
administered in a discriminatory manner, 
and sought to introduce additional 
evidence to supplement the extensive 
testimony adduced on this subject at the 
1974 trial. (App. 30a n. 25).

In its 1986 opinion, the district 
court acknowledged that that record 
contained evidence of such discrimiantory 
application of the seniority system, but 
insisted that consideration of that issue



15
was outide the scope of the remand. (App. 
3 0a n. 25) . On appeal the Eleventh 
Circuit apparently agreed that its 1983 
remand order did not permit the district 
court to decide whether discriminatory 
intra-departmental seniority practices 
continued after 1965. (App. 181a). Thus, 
none of the numerous lower court opinions 
in this case has ever decided, on the 
basis of the record at the 1974 trial or 
otherwise, whether the discriminatory 
operation of the seniority promotion 
system ended in 1965 or at a later date. 
(See App. 67a n. 10).

(2 ) The Divis ion of Existina
Intearated Deoartments Into All-
White and All-Black Senioritv
Units

Prior to 1940 there was a single,
racially integrated Maintenance Department 
and a single, racially integrated Die and 
Tool Department. In 1941 each of these 
departments was subdivided into separate



16
single-race seniority units, an all-white 
Maintenance Department and an all-white 
Die and Tool Department, both represented 
by the International Association of 
Machinists, (App. 64a) and an all-black 
Maintenance Department and Die and Tool 
Department, and Die and Tool Department, 
both represented by the United 
Steelworkers. The salary levels were 
generally higher in the jobs placed in the 
IAM represented departments. Also in 1941 
Pullman-Standard agreed with the IAM to a 
seniority rule which forbad any person in 
the all-black Maintenance or Die and Tool 
Departments to use his company or 
departmental seniority when bidding on 
jobs in the IAM represented Maintenance 
and Die and Tool Departments. This 
unusual dual system of two Maintenance 
Departments and two Die and Tool 
Departments continued in existence until



17
the plant closed in 1980, as did the 
seniority rule creating separate seniority 
rights and rosters for the duplicate 
departments.

Both courts below agreed that this 
dual system was established at the behest 
of the IAM, and that the IAM's purpose in 
framing this dual was to create a 
seniority system that would prevent blacks 
in Maintenance or Die and Tool jobs from 
promoting into the better paid all-white 
positions represented by the I AM. App. 
25a and n. 20, 173a; 624 F2 at 532-33.

Although the IAM was the prime mover 
behind this deliberately discriminatory 
seniority system, it was Pullman-Standard 
which actually enforced that system, 
maintaining the separate seniority rosters 
for the dual system, and refusing to 
credit time worked in the all-black units 
in making promotions into or within the



18
duplicate IAM units. The company 
expressly agreed to and signed with the 
IAM the collective bargaining agreement 
which provided for these seniority rules. 
The company has never claimed that it was 
unaware of the IAM's motives, nor could it 
plausibly do so. The IAM's constitution 
in 1941, and for years thereafter, 
expressly limited membership to whites. 
(App. 25 n. 20) When the NLRB certified 
the IAM, against its wishes, as the 
representative of some 24 blacks from the 
original Maintenance and Die and Tool 
Departments, the IAM "ceded" those 
positions to the USW, effectively 
transferring them from the IAM represented 
unit to the USW represented unit, and thus 
stripping them of the rights they enjoyed 
under the original NLRB certification to 
bid on the better paid jobs represented by



19
the IAM.7 Until 197 0 the company only 
hired whites into the two IAM departments.

From the effective date of Title VII, 
until the plant closed in 1980, this 
racially motivated seniority arrangement 
was enforced by the company against any 
person in a USW Maintenance or Die and 
Tool job who sought to move into the 
better paid Maintenance and Die and Tool 
jobs represented by the IAM. There is no 
question that these seniority rules, had 
they been administered by the IAM, would 
not have been "a bona fide" seniority 
system. The Eleventh Circuit reasoned, 
however, that both the dual departmental 
system and the seniority rules effectively 
prohibiting transfers from the black to 
the parallel white units were bona fide 
seniority systems because they were 
administered instead by Pullman-Standard,

7 624 F .2d at 531.



20
which had not divided the original 
integrated departments on its own 
initiative, but merely did so to 
accommodate the wishes of the racially 
motivated IAM. (App. 173a-175a).

(3) The Creation of New Single Race Departments
Prior to 1950 virtually all the 

departments represented by the USW were 
racially mixed although, of course, blacks 
could not be promoted into "white" jobs in 
their departments. In 1954 the defendants 
created out of the mixed departments 8 new 
single race departments, 5 all-white and 3 
all-black. (See App. 64a). The creation 
of these new single race units had a 
severe effect on the nominal seniority 
rights of blacks. Those black workers 
moved into all-black departments lost the 
right to be promoted without seniority 
forfeiture into jobs in their former 
departments. Black workers in departments



21
from which "white" jobs were removed could 
no longer use their nominal seniority 
right to promote into those jobs. These 
new departments and attendant transfer 
barriers became of decisive importance 
when, at an undetermined point after the 
adoption of Title VII, black employees 
were finally permitted to promote into 
white jobs in their own departments.

During the 1978 hearing regarding the 
bona fides of the seniority system, 
petitioners urged that the redrawing of 
these departmental lines to create 8 
single-race departments was racially 
motivated. The district court in 1978 
made no finding as to whether this 1954 
gerrymandering of departmental lines was 
racially motivated; the trial court merely 
commented that the new departmental lines



22
were "rational." 17 FEP Cas. at 734-37.8 
On appeal the circuit court held that this 
finding of rationality was clear error, 
and went on to hold that "[t]he 
establishment and maintenance of the 
segregated departments appear to be based 
on no other considerations than the 
objective to separate the races." 624 
F.2d at 531; see also id. at 532. When 
the case was in this Court, the defendants 
urged the Court to overturn the circuit 
court's holding on this issue, and to find 
that the creation of the 8 single-race 
departments was the result of legitimate

See, e.g., 17 FEP Cas. at 735
("while the company's apparently 
unilateral creation of a separate Inspector's department ... can be seen as 
having a racial impact (all the inspectors were white), this change was certainly rational.")



23
considerations.9 This Court declined to 
do so.

On remand in 1984-86 we again urged 
that the creation of the 8 single race 
departments was racially motivated. The 
district court's 1986 opinion contained no 
discussion whatever of this issue. On 
appeal the Eleventh Circuit read this 
Court's opinion to criticize appellate 
reconsideration of the district court's 
1978 finding that the new departmental 
lines of rational. (App. 177a N. 44) . 
The latest circuit court decision appears 
to reinstate the 1978 district court 
holding that those lines are rational. 
The district court, however, never decided 
whether those lines, even if rational,

y Brief for Petitioners, Nos. 80- 
1190 and 80-1193, pp. 18, 40, 10a-16a.



24
were in fact racially motivated? that 
question remains, at best, unresolved.10

(4) The Racially Motivated 1965 
Training Requirement

Under the seniority system, as it 
existed before and after 1965, a vacancy 
in a higher paying job was to be filled, 
in theory, by the most senior department 
employee in a lower level position. Prior 
to 1965 the normal practice was to give 
the senior worker whatever on-the-job 
training was needed to perform the work 
involved. In some instances the senior 
employee would be given such informal 
training prior to the actual reassignment; 
in other instances he would be trained 
after being promoted. 11 FEP Cas. at 947 
n. 16. The most important application of 
this on-the-job training practice was with

10 Petitioners maintain that the 1980 finding of racial motivation, not 
having been overturned by this Court, remains the law of the case.



25
regard to welders, since two-thirds of the 
best paid positions at the Bessemer plant 
were welder jobs. Prior to 1965, of 
course, welder was a "white" job, and 
welder vacancies were awarded to the most 
senior white in the lower levels of the 
welding department, even though there were 
blacks in the department with far greater 
seniority.

In 1965, following the enactment of 
Title VII and a related arbitration 
proceeding, blacks in the welding 
department had a clear right to be 
considered for the white welder jobs. 
Virtually all the more senior department 
workers below the welder level were black, 
and blacks would have won the vast 
majority of welder jobs had promotions 
been made —  as the ostensible seniority 
system had always required —  on the basis 
of seniority. At this juncture, Pullman-



26
Standard radically changed the system for 
selecting new welders; it declared that no 
worker could utilize his seniority to 
promote into a welder job unless he first 
acquired welding experience, or completed 
a welding training program, outside the 
Bessemer plant. The company eliminated 
the long-standing on-the-job training 
program, and announced that it would 
refuse even to test the welding skills of 
workers who had claimed to have learned 
those skills at the Bessemer plant itself.

This change in rules effectively 
nullified the seniority rights of the 
blacks in the Welding Department. In the 
following 6 years, only 26 of the 198 
black welder helpers, all with substantial 
seniority, were promoted to welder 
positions. During the same period 417 
newly hired whites, all with less
seniority than the black welder helpers,



27
became welders.11 The company admitted 
that it had abolished on-the-job training, 
and substituted an outside training 
requirement, because its white welders 
refused to obey orders to train black 
workers.11 12 Both the district court13 and

11 PX 12, 18; Exhibit Appendix,No. 74-3726 (N.D.Ala), pp. 65X, 275X.
12 The key Pu11man-Standard 

supervisor explained:
"Q. [W]hy didn't Pullman just go out and 

tell the White employees to start training the Black employees.... [W]hy didn't Pullman go tell the White employees that were on the 
higher jobs to start training the Black employees that .had the seniority?

A. "Well, mister, ... there is no man 
can force me to train somebody I 
don't want to train. Those fellows 
in their estimation, they had a valid 
reason for not training me with 40 years service and they didn't have 
but 15 because it was taking bread and money out of his mouth and 
pocket. In other words, people were caught in that they were victims of a situation they had no control over."

(R.v. 14, transcript of hearing of May 1, 
1984, pp. 127-28). Counsel for the



28
the Eleventh Circuit14 agreed that this 
change in the seniority rights of blacks 
in the welding department was the result 
of intentional racial discrimination.

REASONS FOR GRANTING THE WRIT 
Twelve years ago, in Teamsters v. 

United States. 431 U.S. 324 (1977), this
Court held that under section 703 (h) of 
Title VII an employer may engage in 
practices which perpetuate the effects of 
past discrimination so long as those

company offered the same explanation. 
(R.v. 13, transcript of hearing of April30, 1984 pp. 162-63.)

3 lE><3i^nS
14 App. 167a and 167a n. 39:
" [I]n 1965, after it appeared that all jobs at the plant would have to 
be opened to persons of all races, 
Pullman abandoned its earlier 
practice of offering on-the-job training in welding...."
"A Pullman official admitted that the practice changed because white 
welders at the Bessemer plant were 
unwilling to train black employees."



29
practices are part of a "bona fide" 
seniority system. Decisions of this Court 
in the intervening years have repeatedly 
increased the importance of the section 
703(h) exception to Title VII.15 But 
although this Court has repeatedly granted 
certiorari to resolve procedural issues 
arising under section 703(h), neither 
Teamsters nor its progeny attempted to 
delineate when and under what 
circumstances past discrimination in

Xi3 United Airlines v. Evans. 431 U.S. 553 (1977), extended the exemption to 
seniority systems which perpetuate the 
effect of discrimination occurring after the adoption of Title VII. American 
Tobacco Co. v. Patterson. 456 U.S. 63 ( 1982 ) , extended the exemption to seniority systems adopted after 1965. California Brewers Ass'n v. Bryant. 444 U.S. 598 (1980), adopted an expansive view of what practices are to be deemed part of a seniority system for purposes of section 703(h).



30
connection with a seniority system would 
render that system non bona fide.16

In the absence of guidance from this 
Court, the lower courts have been faced 
with, and have disagreed about, a number 
of recurring legal issues concerning the 
bona fides of a seniority system. The 
instant petition presents several of the 
most important of those questions —  (1 )
Where the bona fides of a seniority system 
is in dispute, which party bears the 
burden of proof? (2) When is an 
intentionally discriminatory seniority 
practice sufficiently connected to the

xt> In both Teamsters and Evans the plaintiffs conceded that the seniority 
system at issue was bona fide. Teamsters 
v. United States. 431 U.S. at 355-56; 
United Airlines v. Evans. 431 U.S. at 560. 
in American Tobacco and California Brewers 
the bona fides of the systems had not yet 
been tried, and this Court simply directed 
that that issue be addressed on remand. American Tobacco Co. v. Patterson. 456 
U.S. at 77 and n. 18; California Brewers Ass'n v. Bryant. 444 U.S. at 610-611.



31
seniority system to render that system 
non-bona fide?17 (3) If a discriminatory 
seniority practice is adopted at the 
behest of a union in order to discriminate 
against blacks, is the seniority system 
nonetheless bona fide when enforced by the 
employer?

The questions posed by the instant 
case are essentially legal; the courts 
below either agreed that the particular 
seniority related practices at issue were 
racially motivated, or concluded that the 
disputed seniority system could be upheld 
without deciding whether the remaining 
disputed seniority practices were indeed 
racially motivated. The recurring nature

' Because in part of its view on the first two issues, the Eleventh Circuit 
never resolved whether racially 
d i sc riminatory intra-departmental seniority practices continued after 1965. 
Question 4 of the Questions Presented is 
inextricably intertwined with, and turns on, Questions 1 and 2.



32
of these issues is illustrated by the fact 
that arguments touching on all three 
questions have been raised by the briefs 
in Lorance v. A.T.& T. Technologies. No. 
87-1428.

We set out below the particular 
circumstances which warrant review of the 
section 703(h) issues raised by this case. 
We acknowledge, however, that it may be 
appropriate to defer action on this 
petition until the Court has decided 
Lorance v. A . T. & T. Technologies. The
respondents in Lorance maintain that a 
finding that a seniority system is not 
bona fide can never be based on the 
adoption prior to 1965, the effective date 
of Title VII, of intentionally discrimina­
tory seniority rules or practices.18 in

18 See, e.g., B r i e f  for Respondents, No. 87-1428, p. 41 n. 46:
" [N] o Title VII claim can be brought
unless the facts showing the lack of



33
the instant case the bona tides of the 
seniority system turns on the legal 
significance of four seniority related 
intentionally discriminatory practices; 
three of these were adopted prior to the 
effective date of Title VII.19 A decision

bona fides occurred during the 
limitations period.... Whatever reasons may have entered into the 
initial adoption of a seniority system, a neutral system that is 
maintained and applied free of unlawful discrimination during the limitations period is, under Section 
703(h), not a violation of Title VII."

(Emphasis in original). Pre-1965 actionsadopting a racially motivated seniority 
practice necessarily occur outside any Title VII limitations period. Respondents 
in Lorance insist that this Court's own prior decision in Swint. although 
apparently concerned with pre-Act 
discriminatory actions in the adoption of the instant seniority system, " [p] resumably" was concerned in fact only with post-1965 discriminatory practices. Id. at 43.

19 The division of the Maintenance 
Department and the Die and Tool Department 
into separate single race seniority units occurred in the 1940's. 624 F.2d at 531.
The undisputed practice of allowing only



34
sustaining the position of respondent in 
Lo ranee would not necessarily be 
controlling in this case, because the 
underlying claims are significantly 
different. See pp. 60-62 infra.
Nevertheless, it is possible that the 
decision ultimately rendered in Lorance 
will bear significantly on the 
certworthiness of the instant case, or on 
the propriety of remanding this case to 
the Eleventh Circuit for reconsideration 
in the light of Lorance.

white department members to bid on white 
jobs in their department was adopted long before 1965. (See p. 11-12, supra). The 
creation of new single-race departments 
out of previously integrated USW 
departments occurred between 1954 and 1965. (See pp. 21-23, supra).



35

CERTIORARI SHOULD BE GRANTED TO 
RESOLVE A CONFLICT AMONG THE 
CIRCUITS AS TO WHETHER THE BONA FIDES OF A SENIORITY SYSTEM IS 
CONTROLLED BY ACTUAL SENIORITY 
PRACTICES, OR TURNS SOLELY ON THE SUBSTANCE OF THE NOMINAL 
WRITTEN SENIORITY RULES
Until the Eleventh Circuit decision

in the instant case, the circuit courts
were in agreement that the "seniority
system" whose bona tides must be assessed
under section 703(h) is the set of actual
seniority practices adhered to and
utilized by the defendant employer. The
Second Circuit in Acha v. Beame. 570 F.2d
57 (2d Cir. 1978) , held that although
written seniority rules might be facially
neutral and have originally been created
for non-discriminatory reasons, if in
practice those rules were administered in
a discriminatory manner the system would

I.



36
not be bona fide within the meaning of 
section 703(h):

Bona f ides. in the context of 
the statute requires, at least 
in part, that the seniority- 
system be applied fairly and 
impartially to all employees.
. . . A system designed or 
operated to discriminate on an illegal basis is not a "bona fide" system.

570 F. 2d at 64. In Mitchell v Mid- 
Continent Spring Co.. 583 F.2d 275 (6th 
Cir. 1978), the ostensible rules governing 
inter-shift transfers made no overt 
distinctions on the basis of sex. The 
Sixth Circuit, however, found the 
seniority system was not bona fide under 
section 703(h) because other evidence 
established that, despite the nominally 
sex-neutral rules, the company in fact 
maintained separate seniority rosters for 
men and women, and would only consider 
transfer requests from male employees. 
563 F. 2d at 280-81. In Mozee v. Jeff



37
Boat. Inc.. 746 F.2d 365 (7th Cir. 1984), 
the official seniority policy required 
promotion of "the most senior 'qualified' 
employee" seeking each position. The 
Seventh Circuit held that, in order to 
ascertain whether the company in fact had 
a bona fide seniority system, it was 
necessary to determine "whether there 
might have been discrimination in the 
identification of qualified applicants." 
746 F. 2d at 374. In Wattleton v. 
International Brotherhood of Boilermakers. 
686 F. 2d 586 (7th Cir. 1982), the Seventh 
Circuit held invalid a seniority system on 
the ground that it had been "operated to 
discriminate on an illegal basis," citing 
evidence that blacks had not in practice 
been permitted to transfer into certain 
"white" jobs. 686 F.2d at 591-93.

Had this case arisen in the Second, 
Sixth or Seventh circuits, each of those



38
circuits would for two distinct reasons 
have declared Pullman-Standard'’s seniority 
system non-bona fide as a matter of law. 
First, all the lower courts in the instant 
case have agreed that at least until 1965 
the actual seniority system for intra- 
departmental promotions at Pullman- 
Standard was to promote the senior white 
employee if the vacancy were in a white 
job, and the senior black employee if the 
vacancy were in a black job. (See pp. 11- 
12, supra). Had the written seniority 
rules drawn such racial distinctions, they 
would of course have been non-bona fide; 
the Second, Sixth and Seventh Circuits 
insist that the result is the same 
regardless of whether, as here, the actual 
race based seniority rules were not 
reflected in the nominally race-neutral 
written seniority rules. Second, in 1965 
Pullman-Standard made a fundamental change



39
in its seniority practices, thereafter 
refusing to permit an employee to utilize 
his or her seniority to obtain a promotion 
unless the worker first obtained training 
outside the plant, at his or her own 
initiative, to do the job in question. 
(See pp. 24-28, supra). Pullman- 
Standard' s officials expressly conceded, 
and the Eleventh Circuit acknowledged, 
that this change was the result of white 
opposition to permitting senior blacks to 
use their seniority to promote into better 
paying jobs. (See pp. 27-28, supra). 
Neither this new limitation on seniority 
rights, nor the reason for it, were 
reflected in the written seniority rules; 
nonetheless, in the Second, Sixth and 
Seventh Circuits such a racially motivated 
change in actual seniority rights would 
also have rendered the system non-bona 
fide as a matter of law.



40
The Eleventh Circuit, however, held 

that as a matter of law these same facts 
required a conclusion that Pullman- 
Standard seniority system was bona fide 
under section 703(h). The Eleventh
Circuit reasoned that the "seniority 
system" at issue was the nominal written 
seniority system, which was facially 
neutral and which reflected no 1965 change 
in seniority rights. To the Eleventh 
Circuit, the undisputed racial discrim­
ination in the seniority practices was 
only tangential evidence, and legally 
insufficient evidence at that, regarding 
the bona fides of the facially benign 
system. The two discriminatory seniority 
practices, the court of appeals insisted, 
were not themselves part of the seniority 
system, but constituted merely 
"manipulation" of the nominal "system."

[N]one of this evidence goes
directly to Pullman's intent



41
regarding the system. It tends to prove instead that Pullman 
engaged in a number of other, s e p a r a t e  discriminatory 
practices ...

(App. 175a) (Emphasis in original).
For a plaintiff to prevail . . . 
there must be a finding that
the system itself was negotiated or maintained with an actual 
intent to discriminate.

(App. 171a) (Emphasis in original).
Evidence that the seniority 
system has been manipulated can 
certainly be considered in 
evaluating an employer's intent 
with respect to the creation or 
maintenance of a seniority 
system . . . but a system cannot be invalidated on such evidence 
standing alone.

(App. 171a n. 43) (Emphasis added)
On the Eleventh Circuit's view 

section 703(h) prohibited a finding of 
non-bona fides based on evidence, 
"standing alone," that despite the 
existence of a nominal, facially neutral 
written system, the actual seniority 
practices were deliberately and



42
pervasively based on the race of the 
affected employees. Although no other 
circuit distinguishes in this way between 
a nominal seniority system, and actual 
seniority practices, the defendants in 
Lorance v. AT&T Technologies. No. 87- 
1428, appear to advocate such an 
interpretation of Title VII.20

The Eleventh Circuit rule conflicts 
as well with the decisions of this Court. 
In Nashville Gas Co. v. Sattv. 434 U.S. 
136 (1977), the disputed seniority system, 
as here, was neutral on its face? the 
Court nonetheless held the seniority rule 
at issue was unlawful because other 
evidence demonstrated that in practice it 
penalized only women. Compare 434 U.S. at

20 Respondent's Brief, No. 87-1428, 
p. 31 n.3 3 (if "a seniority system was discriminatorily administered ... the relief in such cases is to remedy the 
particular discrimination, not to dismantle the entire system.")



43
140 with 434 U.S. at 140 nn.2-3. See also 
Trans World Airlines v. Hardison, 432 U.S. 
63, n. 14 (1977). The distinction adopted 
by the Eleventh Circuit in this case is an 
engraved invitation to subterfuge. An 
employer can pursue race based seniority 
practices, and simultaneously retain the 
protections of section 703(h), simply by 
adopting facially neutral seniority rules 
which are completely different from its 
actual racial seniority practices. On the 
Eleventh Circuit's view of Title VII, the 
nominal written rules, although frequently 
or uniformly ignored in practice, would be 
the real "seniority system", and the 
actual discriminatory practices would be 
mere "manipulation", neither inconsistent 
with section 703(h) nor sufficient by 
themselves to support a finding that the 
largely theoretical "seniority system" was
not bona fide.



44

CERTIORARI SHOULD BE GRANTED TO RESOLVE A CONFLICT AMONG THE 
CIRCUITS AS TO WHETHER SECTION 
703(H) PROVIDES A "BONA FIDE SENIORITY SYSTEM" DEFENSE TO AN 
EMPLOYER WHICH AGREES TO AND 
ENFORCES SENIORITY RULES FRAMED AND PROPOSED BY A UNION FOR THE 
PURPOSE OF DISCRIMINATING ON THE 
BASIS OF RACE
The vast majority of the seniority 

systems in American industry today are 
established by collective bargaining 
agreements between employers and unions. 
Although Teamsters observed that the bona 
fides of a seniority system would turn on 
whether the system was created or 
maintained for a discriminatory purpose, 
Teamsters did not address how section 
703(h) should be interpreted in a case in 
which an employer and union acted with 
different motives. Such differences, of 
course, are common under the collective 
bargaining process, in which provisions 
sought and favored by only one party are

II.



45
agreed to in exchange for provisions 
sought and favored by the other. The 
Fourth and Ninth Circuits hold that a 
racial motive on behalf of either party 
renders a joint seniority system non-bona 
fide; the Eleventh Circuit, on the other 
hand, has expressly rejected that 
interpretation of section 703(h).

In the instant case the Eleventh
Circuit held that a seniority system
framed for the purpose of racial
discrimination is nonetheless a "bona 
fide" seniority system when implemented by 
an employer, if the moving force behind 
the racial motivated seniority system was 
a union, and the employer merely agreed to 
establish and enforce that discriminatory 
system at the behest of the union. The 
Eleventh Circuit conceded that "no one can 
seriously question that I AM" insisted for 
racial reasons on dividing both the



46
Maintenance and Die and Tool Departments 
into two parallel single race departments, 
and on the adoption of seniority rules 
that would effectively preclude blacks 
from transferring into the better paying 
all-white positions represented by the 
I AM. (App. 173a) . But the Court below
insisted that those very seniority rules, 
when implemented by Pullman-Standard, were 
"bona fide" because there was no 
"independent evidence of Pullman7s intent 
with respect to the seniority system." 
App. 174a.21 (emphasis added) The
Eleventh Circuit expressly held that the 
company did not lose its ability to invoke 
the section 703(h) defense merely because 
it had signed the collective bargaining 
agreements which contained the provisions 
designed by the I AM to discriminate 
against blacks.

21 See also App. 172a.



47
The Eleventh Circuit decision in this

case is squarely in conflict with
decisions in the Fourth and Ninth
Circuits. In Sears v. Atchison, T & S. F.
Rv. Co.. 645 F. 2d 1365 (9th Cir. 1981),
the Ninth Circuit held that a union faced
liability under Title VII if it was party
to a collective bargaining agreement that
established a non-bona fide seniority
system, regardless of whether the union
might have accepted that portion of the
agreement for entirely benign reasons.

A union's role as a party to a collective bargaining agreement may be sufficient to impose back pay liability on the union.22
It is unnecessary for us to find 
that the union entered the 
agreement with the intention of 
discriminating. The action of agreeing to the seniority system was n o n a c c i d e n t a  1 and 
deliberate.23

22 645 F.2d at 1375.
23 645 F.2d at 1375 n.9.



48
[T]he union's role in freezing 
the status quo of a prior 
discriminatory seniority system, not immunized under section 
703(h), renders it liable to 
those upon whom the seniority 
system had an adverse impact.24

This is, of course, precisely the argument
rejected by the Eleventh Circuit in the
instant case.

Similarly, the Fourth Circuit in 
Robinson v. Lorillard. 444 F.2d 791 (4th 
Cir.), cert dismissed. 404 U.S. 1006
(1971), rejected an employer's argument 
that an unlawful

seniority system was only 
adopted under union pressure, 
and that, "A company would probably never establish a 
seniority system of its own 
accord ..." ... Lorillard's
apparent point is that it was 
forced either to accept the 
system or endure a strike....
The rights assured by Title VII 
are not rights that can be bargained away.... Despite the 
fact that a strike over a 
contract provision may impose 
e c o n o m i c  costs, if a

24 645 F.2d at 1375.



49
d i s c r i m i n a t o r y  contract 
provision is acceded to the 
bargainee as well as the bargainor will be held liable.

444 F.2d at 799.
The importance of this issue is

illustrated by the briefs in Lorance v A.
T. & T. Technologies. The company in that
case acknowledged that union discussions
of the disputed seniority provision were
permeated with statements hostile to
respecting the seniority rights of female
workers. The company insisted, however,
that there was no evidence that its own
officials, in agreeing to the provision at
issue, had acted from any such motives:

[I]t [is not] alleged that AT&T 
knew what had been said at the 
union meetings much less that 
anyone from AT&T who negotiated 
the Tester Concept then acted 
other than for legitimate 
business reasons.

Respondent's Brief, No. 87-1428, p. 7.
The decision of the Eleventh Circuit 

cannot be reconciled with the language of



50
section 703(h), or with the terms of 
Teamsters and its progeny. The Eleventh 
Circuit decision analyzes separately the 
motives of each party to a collective 
bargaining agreement, holding in this case 
that Pullman-Standard acted with bona 
fides in agreeing to the provisions at 
issue, while conceding that the I AM did 
not. But section 703(h), like Teamsters 
and its progeny, concerns whether a 
seniority system is bona fide; it flies in 
the face of the statutory language to 
hold, as has the Eleventh Circuit in this 
case, that the self same seniority system 
is bona fide when administered by Pullman- 
Standard, but not bona fide if implemented 
by the IAM.

The distinction created by the 
Eleventh Circuit would at times virtually 
nullify enforcement of Title VII. On the 
Eleventh Circuit's view, because section



51
703(h) protects employer implementation of 
a union sponsored racially motivated 
seniority system, an employee injured by 
that discriminatory system could not 
obtain any remedy whatever against the 
employer. It is typically the case that 
seniority provisions are largely the 
creation of a union but are in practice 
implemented by the company officials who 
make promotion and layoff decisions. In 
such circumstances it would be impossible 
on the Eleventh Circuit's view to enjoin 
the implementation of a racially motivated 
seniority system, because the 
administration by an employer of such a 
race based system would be lawful under 
Title VII.25

25 The Eleventh Circuit thought that this unusual result was required by 
footnote 23 in this Court's opinion in 
Pullman-Standard v. Swint. 456 U.S. 273, 
292 n.23 (1982), which states in part:

" I A M ' s d i s c r i m i n a t o r y



52

motivation, if it existed, 
cannot be imputed to USW. It is relevant only to the extent 
that it may shed some light on the purpose of USW or the 
company in creating and maintaining the separate 
seniority system at issue in 
this case."

(Emphasis added). This footnote was
addressed to the argument, apparently 
accepted by the Fifth Circuit in its 1981 
opinion, that the discriminatory I AM 
motives underlying the lAM-Pullman- 
Standard seniority system supported a 
finding that the separate USW-Pullman- 
Standard seniority system was also racially motivated. See 624 F.2d at 533. 
This case also presents a dispute, 
however, about the legality of the IAM- 
Pullman-Standard rules which effectively 
precluded transfers into IAM represented 
jobs; this Court's 1982 decision does not, 
of course, suggest that the IAM's motives are irrelevant to the bona fides of the 
IAM-Pullman-Standard system.



53

CERTIORARI SHOULD BE GRANTED TO 
RESOLVE A CONFLICT AMONG THE 
CIRCUITS AS TO WHICH PARTY BEARS THE BURDEN OF PROOF REGARDING 
WHETHER A DISPUTED SENIORITY 
SYSTEM IS BONA FIDE
In many instances in which the bona 

tides of a seniority system is in dispute,

III.

it is of critical importance to the
resolution of the case whether the
plaintiff or the defendant bears the
burden of proof. This Court has not
previously been asked to resolve this
question. There is lancruacre in Teamsters
and its progeny which appears to support 
both possible interpretations of section 
703(h), and the circuit courts have, as a 
consequence, disagreed as to which party 
bears the burden of proof.

The Sixth Circuit construes Teamsters 
to place the burden of proof under section 
7 03 (h) on the defendant. EEOC v. Ball
Corn.■ 661 F.2d 531 (6th Cir. 1981).



54
Ball Corporation asserts that its promotion and transfer policies qualify as a bona fide seniority system under Section 
703(h) of Title V I I . . . . In 
Teamsters ... the Supreme Court 
held that Section 703(h) exempts 
from Title V I I  liability those 
"neutral, legitimate system[s]" that do not have [their] genesis 
in racial ... discrimination and 
that ... "[were] negotiated and 
... maintained free from any illegal purpose." 431 U.S. at 353-56 .... Thus, if anemployer shows that differences 
in pay or employment conditions 
result from the operation of a 
bona fide seniority system, the 
plaintiff's prima facie case is effectively rebutted.

Ball Corporation made no such showing below.
661 F.2d at 538-39. (Emphasis added). In 
Bernard v. Gulf Oil Corp. . 841 F.2d 547
(5th Cir. 1988), the Fifth Circuit 
described the issue raised by a seniority 
system that perpetuated past discrimina­
tion to be whether "the defendants failed 
to prove that the seniority system was 
bona fide under section 703(h)." 841 F.2d
at 551, 554. The Third, Fourth and



55
Seventh Circuits hold that the burden of 
proof is on the defendant to establish 
bona fides under the section 4(f)(2) of 
the ADEA which, like section 703(h), 
creates an exemption for bona fide 
seniority and other systems.26

The Eleventh Circuit adheres to an 
unusual hybrid rule contrary to the 
standard in the other circuits. On the 
one hand, the Eleventh Circuit recognizes 
that section 703(h) creates an affirmative 
defense. Jackson v. Seaboard Coast Line 
R. Co.. 678 F.2d 992 (11th Cir. 1982).27

26 EEOC v. Westinahouse Elec, Coro.,
725 F. 2d 211, 223 (3d Cir. 1983); Smart
v. Porter Paint Co. . 630 F.2d 490, 493
(7th Cir. 1980) ; Crosland v. Charlotte 
Eye, Ear and Throat Hoso.. 686 F.2d 208, 
213 (4th Cir. 1982) .

27 "The [union] ... claims as error 
that the district court did not find and the appellees failed to 
prove that the alleged 
discrimination did not result from the normal operation of a bona f ide seniority system 
protected from attack under



56
On the other hand, the Eleventh Circuit 
also holds that once a defendant has 
merely pled the existence of a section 
703(h) affirmative defense, the burden of

section 703(h).... The district 
court held that the [union] waived its right to advance this claim by failing to plead it as an affirmative defense under Ref. R. Civ. P. 8(c). We agree....
[S] everal courts have held that the 
section 703(h) exemption is in the 
nature of an affirmative defense....[T] he courts have generally treated 
statutory exemptions from remedial 
statutes as affirmative defenses.... 
[Rjequiring the section 703(h) exemption to be pled as an 
affirmative defense promotes fairness. It places the burden of pleading on the party who will be 
benefitted by the departure from the 
normal operation of Title VII, and 
permits plaintiffs to proceed without 
the undue burden of having to 
anticipate a section 703(h) defense by stating in their complaint that 
the challenged discrimination is not the result of a bona fide seniority 
system.... [W]e hold that the 
section 703(h) exemption for bona fide seniority systems constitutes an affirmative defense."

688 F.2d at 1012-13.



57
proof is on the plaintiff to disprove that 
defense: "the burden of persuading the 
district court that a system is the 
product of an employer's discriminatory 
intent lies with the plaintiff." (App. 
172a) .

The Fourth Circuit has expressly 
recognized that there is a conflict among 
the lower courts as to which party bears 
the burden of proof under section 703(h), 
but that circuit has refused to decide 
which rule is correct. Gant 1 in v. West 
Virginia Pulp and Paper Co.. 734 F.2d 980, 
992-93 (4th Cir. 1984). Somewhat 
paradoxically, the Fourth Circuit panel in 
Gantlin criticized the district judge in 
that case for having himself failed to 
address the burden of proof issue under 
section 703(h), which it emphasized was 
both a "critical" and "open" question. 
734 F.2d at 993 n.20.



58
The decisions of this Court contain 

language which provides support for both 
sides of this intercircuit conflict. On 
the one hand, as the Sixth Circuit 
emphasized, Teamsters repeatedly described 
section 703(h) as an exemption which 
"immunized" seniority practices that would 
otherwise have been illegal under Title 
VII. 431 U.S. at 345, 349, 350, 353. 
Ordinarily "the burden of proof is on ... 
one [who] claims the benefits of an 
exception to the prohibition of a 
statute". United States v. First City 
Nat. Bank. 386 U.S. 361, 366 (1967). In 
Nashville Gas Co. v. Sattv. 434 U.S. 136 
(1977), the Court held that the burden of 
proof was on the defendant to demonstrate 
the existence of a business justification 
for a seniority system which had the



59
effect of discriminating against women.28 
This Court has expressly held that the 
seniority system exceptions to the Age 
Discrimination in Employment Act and the 
Equal Pay Act, both extremely similar to 
section 703(h), are affirmative defenses. 
County of Washington v. Gunther. 452 U.S. 
161 (1981); Trans World Airlines. Inc, v. 
Thurston. 469 U.S. Ill (1985). The normal 
rule is that a defendant bears the burden 
of proof with regard to factual issues 
x-aised by an affirmative defense. 2A 
Moored Federal Practice, p. 8-177, 8- 
179. On the other hand, as the Eleventh 
Circuit noted in the instant case, some

28 434 U.S. at 143:
"[W]e agree with the District Court in this case that since there was no proof of any business necessity adduced with respect to the policies in question, that court was 
entitled to 'assume no 
justification exists.'"



60
passages in the Teamsters progeny do 
suggest that the plaintiff bears the 
burden of proof on this issue. Trans. 
World Airlines. Inc., v. Hardison. 432 
U.S. 63, 82 n. 13 (1977).

This very dispute is evident in the 
briefs in Lorance v. A.T & T.
Technologies . No. 87-1428 . The
respondents there assume that a challenge 
to a seniority system requires that the 
plaintiff prove that the system was or is 
racially motivated. (Respondents' Brief, 
No. 87-1428, passim). The Solicitor 
General, on the other hand, evidently 
construes Title VII in the opposite way, 
describing the plaintiffs' allegations in 
Lorance that the seniority system was 
racially motivated as "simply meeting a 
possible defense to their discrimination 
claim." (Brief for the United States, No. 
87-1428, p. 20 n. 26) (Emphasis added.)



61
The conflict among the lower courts, 

and the uncertainty generated by this 
Court's opinions, exist in part because 
disputes about the racial purpose of a 
seniority system in fact arise under Title 
VII in three quite distinct circumstances, 
(a) In some cases, as in Teamsters. the 
plaintiff complains that the seniority 
system has the effect of perpetuating past 
discrimination, and the defendant asserts 
section 703(h) as an affirmative defense. 
That is the posture of the instant case,29 
and is the situation in which the Fifth 
and Sixth Circuits, but not the Eleventh, 
place the burden of proof on the 
defendant? (b) In some cases, as appears 
to be the situation in Lorance, the

29 The respondents in Lorance insisted that the disputed seniority rule in that case neither perpetuated any past 
discrimination nor had any net adverse impact on women. Brief for Respondents, No. 87-1428, p. 3 n. 2, p. 16 n. 18.



62
gravamen of the plaintiffs complaint is 
that a particular seniority practice, 
whatever its net effect, was adopted or 
maintained for an illegal purpose. In 
such a case the plaintiff may well bear 
the burden of proof of racial purpose, not 
because of section 703(h), but because the 
case presents a garden variety claim that 
a particular practice (which happens to be 
a seniority practice) is racially 
motivated; (c) In some instances, whether 
effect cases like Teamsters or an intent 
case like Lorance. the plaintiff may prove 
that the disputed seniority system or 
practice was in the past created or 
maintained with a discriminatory purpose; 
in that situation the burden of proof 
would ordinarily be on the defendant to 
demonstrate that discriminatory purpose, 
and its ongoing effects, had been
eliminated. See Keyes v. School District



63
No. 1 ■ 413 U.S. 189 (1973). That
circumstance is also presented by the 
instant case.30 The very complexity of 
these overlapping questions is likely, 
absent clarification by this Court, to 
spawn even greater conflict and confusion.

CONCLUSION
For the above reasons, a writ of 

certiorari should be granted to review the 
judgment and opinion of the Eleventh 
Circuit. In the alternative, it may be 
appropriate to defer action on this 
petition pending the decision by this 
Court in Lorance v. A. T & T. 
Technologies.

30 The lower courts agreed that , at least until 1965, there was in practice a 
race-based seniority system for intra- 
departmental promotions. See pp. 11-12, 
supra. When, if at all, that racial 
seniority practice ended remains a matter of dispute, and was not definitively 
resolved by the courts below. See pp. 
12-15, supra.



64
Respectfully submitted,

ELAINE R. JONES
NAACP Legal Defense and Educational Fund, Inc. 
Suite 301
1275 K. Street, N.W. 
Washington, D.C. 20005 
(202) 682-1300

JAMES U. BLACKSHER 5th Floor Title Building 300 21st Street, North 
Birmingham, Alabama 35203 (205) 322-1100

OSCAR W. ADAMS, III
Brown Marx Building Suite 729
2000 First Ave., North Birmingham, Alabama (205) 324-4445



65
JULIUS L. CHAMBERS 
ERIC SCHNAPPER*NAACP Legal Defense & 

Educational Fund, Inc. 
16th Floor 99 Hudson Street New York, New York 10013 
(212) 219-1900

Counsel for Petitioners
*Counsel of Record



APPENDIX



Louis SWINT and Willie James Johnson, on behalf of themselves and others 
similarly situated, Plaintiffs- 
Appellants,

v.
PULLMAN-STANDARD, Bessemer, Alabama, United Steelworkers of America, Local 
1466, United Steelworkers of America AFL-CIO and International Association 
of Machinists and Aerospace Workers, AFL-CIO, Defendants-Appellees,

No. 78-2449.
United States Court of Appeals,Fifth Circuit.*

Dec. 6, 1982.
As Corrected April 4, 1983.

Appeal from the United States 
District Court for the Northern District 
of Alabama.

ON REMAND FROM THE SUPREME COURT 
COURT OF THE UNITED STATES

Before RONEY and HATCHETT, Circuit 
Judges, and WISDOM, Senior Circuit Judge.

PER CURIAM:

Former Fifth section 9(1) of Public 
October 14, 1980.

Circuit 
Law 9 6

Case, 
452-

la



This employment discrimination 
action's first journey to this court 
resulted in a remand to the district 
court for further proceedings with respect 
to Pullman-Standard's seniority system and 
its selection of supervisory personnel. 
Swint v. Pullman-Standard. 539 F.2d 77 
(5th Cir. 1976) . Subsequently, the 
district court held that the seniority 
system did not discriminate against blacks 
and was therefore bona fide under 42 
U.S.C. § 2000e-2(h), that Pullman-
Standard did not follow a discriminatory 
practice or policy in job assignments 
after the effective date of the Civil 
Rights Act of 1964, 42 U.S.C.A. § 2000e-
1(a), and that Pullman-Standard had 
rebutted the plaintiff's prima facie case 
of discrimination in the selection of 
supervisory personnel. We reversed and 
held that: (1) although the statistics

2a



disclosed that Pullman-Standard had made 
significant advancements in eliminating 
previous all-black and all-white 
departments subsequent to 1966, the total 
employment picture revealed that racially 
discriminatory assignments were made after 
the effective date of Title VII; (2) 
Pullman-Standard's department seniority 
system was not "bona fide" within the 
meaning of section 703(h) of Title VII, 42 
U.S.C.A. 2000e-2(h); and (3) the 
plaintiffs' prima facie showing of racial 
discrimination in the selection of 
supervisory personnel had not been 
rebutted. Swint v. Pullman-Standard, 624 
F.2d 525 (5th Cir. 1980).

The United States Supreme Court 
granted certiorari to review the seniority 
system issue, reversed the judgment of 
this court, and remanded the case to us 
"for further proceedings consistent with

3a



this opinion." U.S. 102
S.Ct. 1781, 1792, 72 L.Ed.2d 66, 82
(1982). Accordingly, we VACATE our 
judgment as to this issue and REMAND the 
case to the district court for further 
proceedings to determine what impact the 
"locking-in" of blacks to the least 
remunerative departments had on 
discouraging transfer between seniority 
units, and the significance of the 
discriminatory motivation of IAM with 
respect to the institution of USW's 
seniority system, and any other 
proceedings that may be deemed necessary 
in view of our prior opinion and that of 
the United States Supreme Court.

REMANDED.

4a



UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA Southern Division

LOUIS SWINT, et al., )
)Plaintiffs, )
)-vs.- ) No. CV71-P-0955-S

PULLMAN-STANDARD, et al., )
)Defendants.

OPINION
(Pullman-Standard IX)

For decision are certain issues still 
at "Phase I" after fifteen years of 
litigation. The first trial was conducted 
in 1974; additional evidentiary hearings 
were held in 1977, 1978, and 1984.
Although a detailed recital of the prior 
proceedings in the trial and appellate 
courts is unnecessary, reference must be 
made from time to time to these earlier

5a



opinions.1 Pullman-Standard ceased its 
operation in Alabama more than five years 
ago? however —  absent settlement or 
providential intervention -- this 
litigation appears destined for yet 
further hearings and decisions.

I. SCOPE OF INQUIRY 
Before proceeding to questions of 

liability, the court must define the scope 
of this inquiry —  that is, the proper 
anterior (beginning) and posterior 
(ending) cut-off dates of this liability 
period and the appropriate class 
definition. *

x Pullman-Standard I. 11 FEP Cases 
943 (N.D. Ala. 1974? Pullman-Standard II. 539 F. 2d 77 (5th Cir. 1976)? Pullman- 
Standard III. 15 FEP Cases 1638 (N.D. Ala. 1977) ? Pullman-Standard IV. 15 FEP Cases 
144 (N.D. Ala. 1977)? Pullman-Standard V . 
17 FEP Cases 730 (N.D. Ala. 1978) ? 
Pullman-Standard VI. 624 F.2d 525 (5th Cir. 1980)? Pullman-Standard VII. 456 U.S. 273 (1982)? Pullman-Standard VIII. 692 F.2d 1031 (5th Cir. 1983).

6a



A. Anterior Cut-off Date.2
The question of the anterior cut-off 

is intertwined with, and complicated by, 
motions to intervene by four putative 
class members and the existence of a Title 
VII charge filed on March 27, 1967, by 
Commissioner Shulman of the Equal 
Employment Opportunity Commission. 
Plaintiffs contend that this intervention 
should be allowed, and that the anterior 
date should be set by reference to the 
EEOC charge filed on October 30, 1966, by 
one of the proposed intervenors, Spurgeon 
Seals. In the alternative, they argue 
that Commissioner Shulman's charge should 
be the date designator. Defendants 
maintain that the anterior date should be

Typically, the anterior cut-off 
for class membership and for the liability 
period are the same. Case law referring 
to the beginning date of membership in a class usually also refers to the beginning 
of the liability period and is relevant to 
the instant discussion.

7a



measured by reference to October 15, 1969, 
the filing date of the charge of Louis 
Swint, the named plaintiff and class 
representative during the past 15 years. 
The court agrees with the defendants.3

Some factual background is necessary 
for an understanding of the attempted 
intervention. On December 9, 1975, a 
separate suit was filed in this district 
by William Larkin, Spurgeon Seals, Edward 
Lofton, and Jesse Terry against Pullman- 
Standard for redress of alleged Title VII 
violations. Pullman-Standard I was 
already on appeal to the Fifth Circuit at 
the time this new suit (Larkin  ̂ was filed. 
On January 20, 1976, Larkin was dismissed

J The Fifth Circuit has succinctly stated the law: "The opening date for
membership in a class for a Title VII 
claim should be set by reference to the earliest charge filed by a named plaintiff." Pavne v. Travenol
Laboratories. 673 F.2d 798, 813 (5th Cir. 1982) .

8a



by the judge to whom it had been assigned, 
holding that the plaintiffs were putative 
class members in Pullman-Standard and that 
their interests were adequately protected 
by class representatives in Pullman- 
Standard. Eight years later, on March 23, 
1984, the plaintiffs in Larkin filed a 
motion to alter or clarify this dismissal. 
The motion was denied on April 16, 1984, 
with the judge adhering to his prior 
ruling and rationale.

On June 4, 1984, Larkin, Seals, 
Lofton, and Terry moved to intervene in 
the present case. This motion was denied 
on September 4, 1984.4

Intervention under Rule 24 of the 
Federal Rules of Civil Procedure, whether

4 At the same time, the court 
denied a motion that had been filed in 
February 24, 1984, seeking to designateSeals as a class representative in 
Pullman-Standard, even though at the time 
he was neither a party nor an intervenor.

9a



"of right" or "permissive," may be granted
only upon "timely application." The rule 
is silent as to what constitutes a timely 
application, and this determination has 
long been held to be within the sounds 
discretion of the trial court. McDonald 
v. E. J. Lavino Co. . 430 F.2d 1065, 1071 
(5th Cir. 1970) . The court must balance 
the competing interests of the parties and 
weigh any possible prejudicial effects 
intervention would create. With respect 
to permissive intervention, the court is 
explicitly directed to "consider whether 
the intervention will unduly delay or 
prejudice the adjudication of rights of 
the original parties." FED. R. CIV. P. 
24(b). This consideration is primary in 
the court's determination. WRIGHT 7 
MILLER, FEDERAL PRACTICE AND PROCEDURE § 
1913. All circumstances of the case are 
to be examined, particularly whether the

10a



would-be intervenor was in a position to 
have requested intervention at any earlier 
time. Id. at §§ 1913, 1916.5

In the case at bar, the would-be 
intervenors were explicitly informed by 
the opinion issued in Larkin on January 
20, 1976, of the existence of Pullman-
Standard and of their interest in it.6 
No attempt was made to intervene in 
Pullman-Standard until 1984, after the 
case had twice been resubmitted for final

b See also Howard v. McLucas.
782 F. 2d 956, 959 (11th Cir. 1986); Diaz
v. Southern Drilling Coro.. 427 F.2d 1118, 
1125 (5th Cir. 1970).

6 The court here picks a datecertain, although, in all likelihood, the intervenors knew of Pullman-Standard and 
their interest in it no later than the date the Larkin complaint was filed. 
Their attorneys were the same as those for plaintiffs in Pullman-Standard. and these 
attorneys obviously had knowledge of the 
relation between the two cases. The court, however, will not indulge in speculation as to what information was communicated between attorneys and clients, but will make findings only on 
that evidence which is squarely before it.

11a



decision. In light of the would-be 
intervenors' knowledge, eight years is an 
unreasonable time to delay in taking 
action purportedly necessary to protect 
their rights. Such a belated effort is 
untimely by the most lenient standards. 
Even absent any legal bar to such an 
attempt, the equitable concept of laches 
dictates that the motion be denied. 
Inexcusable delay, lack of diligence, and 
prejudice to the defendants justify this 
application of laches. Occidental Life 
Ins. Co. of California v. EEOC. 432 U.S. 
355, 373 (1977).

Allowing intervention would arguably 
broaden the temporal scope of the case, 
potentially increasing the liability of 
the defendants fifteen years after the 
case was filed. There has been no showing 
that denial of intervention would unfairly 
prejudice the would-be intervenors, who,

12a



as the case now stands, are class members 
whose interests are being adequately 
protected by the class representatives. 
They will hardly be deprived of their "day 
in court," as plaintiffs contend. The 
intervention motions were made only after 
the original plaintiffs had secured a 
partial decision in favor of the class; 
absent a showing of significant prejudice 
to the applicants and sound justification 
for their inordinate delay in seeking 
intervention, the court finds no basis for 
granting such motions.

Plaintiffs have alternatively moved 
that EEOC Commissioner Shulman's charge of 
March 27, 1967, be used as the date 
designator for beginning the period of 
liability. This motion should likewise be 
denied.

Although the Commissioner's charge 
did allege some of the same violations of

13a



Title VII as are alleged in the instant 
case, it did not list any of the named 
plaintiffs or would-be intervenors as 
aggrieved or charging parties.7 It did 
not progress beyond internal EEOC level. 
There were findings of fact issued8 and an 
EEOC decision made which found reasonable 
cause to believe that respondents had 
engaged in unlawful employment practices.9

The Commissioner's charge, assuch, was never introduced into evidence.The findings of fact and the EEOCdecision based on it were.
8 The findings of fact wereentered into evidence as Plaintiffs'Exhibit 60 in the 1974 hearing. Pullman- Standard and the USW Local and ALF-CIO 

were named as respondents. These
findings, although of evidentiary value, are not binding on the court in its de 
novo consideration of a Title VII action. See also EEOC Decision 72-1704, page 3.

The decision was entered into evidence as Plaintiff's Exhibit 58. For 
purposes of rendering a decision, the EEOC 
consolidated Commissioner Shulman's charges and the charges filed by Terry, Lofton, Seals, and Larkin.

14a



A decision finding reasonable cause 
under the then-existing EEOC guidelines 
meant only that the matter merited an 
attempt to conciliate, not that it was 
substantial enough to be litigated.10 11 
1454 BNA Daily Labor Report, E-l, et seq. 
(July 27, 1977). No evidence was
presented at any of the hearings before 
this court to show that this charge 
proceeded beyond this point. No evidence 
of conciliation or recommendation to the 
Attorney General to litigate the cause was 
brought forth.11

10 On July 20, 1977, the EEOC adopted a resolution modifying this policy. The standard of review was changed so that a finding of reasonable cause was 
thenceforth to indicate that a claim 
merited litigation if conciliation failed. The decision whether to litigate was to e 
made by the Commission. EEOC Compliance 
Manual § 30.1.

11 At the time this charge was filed, the EEOC did not have the power to bring suit eo nomine. but it did have the 
authority to recommend the filing of suit by the Attorney General of the United

15a



The EEOC has sought neither 
litigation of the Commissioner's charge 
nor intervention in the case sub judice.12 
It is only at plaintiffs' instance that 
this charge has been raised for the 
court's consideration. Plaintiffs' motion 
on this point is without merit. The 
Commissioner's charge is analogous to a 
private EEOC charge which was not pursued

States. Public Law 88-352. § 705(g)(6)of the Civil Rights Act of 1964.
12 Under the present law, the 

EEOC's power to bring suit is not subject to statutory time limitations. 42 U.S.C. 
§ 2000e5(f)(1), as amended. SeeOccidental Life Insurance Company v. EEOC. 
432 U.S. 355 (1977); EEOC v. GuarantySavings & Loan Association. 561 F.2d 1135, 1137 (5th Cir. 1978) ; EEOC v. Griffin 
Wheel Co.. 511 F.2d 456, 457 (5th Cir. 1975). The court, however, does maintain 
the authority to reach a just result where 
defendant would be prejudiced by plaintiffs' inordinate delay in bringing 
suit. This inherent power of the court 
applies to actions involving the EEOC just as it does to suits by private 
litigants. Occidental Life. 432 U.S. at 
373. An attempt by EEOC to bring suit to 
intervene at this point would be viewed as 
untimely by the court.

16a



through the administrative process into 
the courts. It retains no legal
significance and has no bearing on the 
instant case's temporal boundaries. It 
has died of old age and neglect.

Having decided that Louis Swint's 
charge of October 15, 1969, controls the
anterior cut-off in this suit, the court 
must now decide how many days prior to 
this charge the liability period will 
include. The law as originally enacted 
provided a ninety-day period. Public Law 
88-352, Civil Rights Act of 1964. An
amendment enacted on March 24, 1972,
extended this period to 180 days. 42
U.S.C. 2000e-5(e).

Swint's charge was filed on October 
15, 1969, and the EEOC issued a right-to- 
sue letter on September 21, 1971. The
charge did not complain of a violation 
occurring within 180 days of enactment of

17a



the 1972 amendment nor was 
before the EEOC on or 
amendment's enactment.13

it pending 
after the

13 Section 14 of Public Law 92-261 
provided that: "The amendments made by
this Act to section 706 of the Civil 
Rights Act of 1964 shall be applicable with respect to the charges pending with 
the Commission on the date of enactment of 
this Act [March 24, 1972] and all charges
filed thereafter."

The bare language of the 1972 
amendment has been broadened somewhat by judicial interpretation in regard to what constitutes a timely complaint. The 
Supreme Court has allowed an action filed 
180 days after the alleged violation to go 
forward, because it occurred within 180 
days prior to the effective date of the 
amendment. The law at the time of filing 
required filing within 90 days of the 
violation. International Union ofElectrical. Radio and Machine Workers v. 
Robbins & Mvers■ inc.. 429 U.S. 229
(1976) . The Ninth Circuit has held that it was not critical for the alleged 
violation to have occurred within 180 days of the amendment if the charge were still 
pending before the EEOC on or after the amendment's effective date. Inda v. 
United Airlines. 565 F. 2d 554 (9th Cir. 1977) .

The question here, however, is not whether Swint's complaint was timely 
filed. The class's temporal scope cannot 
be expanded by an attempt to analogize

18a



In the opinion of the court, the 
proper anterior cut-off is ninety days 
prior to the filing of Swint's EEOC 
charge.* 14 Accordingly, the period of 
potential liability commenced July 17, 
1969.

B. Posterior Cut-Off.
In its 1980 opinion, the Fifth 

Circuit of Appeals found liability on 
certain class claims but did not define 
the liability periods.15 Pullman-Standard 
VI, 624 F. 2d 525 (5th Cir. 1980). In

these holdings to the situation now before 
the court.

14 See Pavne v. Travenol 
Laboratories. 673 F.2d 798 (5th Cir. 1982) .

15 The Supreme Court subsequently 
granted certiorari regarding the bona 
fides of the seniority system and reversed 
the Fifth Circuit on its finding of 
liability on that issue. Pullman- Standard VTT. 456 U.S. 273 (1982). The 
seniority system issue is before the court foe determination of liability. The 
period of liability would need to be 
defined if liability were found.

19a



1983, the Circuit remanded the cause to 
this court for proceedings in conformity 
with its 1980 opinion and the intervening 
Supreme Court opinion. Pullman-Standard 
VIII. 692 F.2d 1031; Pullman-Standard VII, 
456 U.S. 273. Much of the task now before 
this court is to determine the ending 
dates for violations found to exist by the 
Circuit.

In the pretrial order of September 
19, 1983, this court rejected defendants' 
position that claims of liability after 
1974 were untenable. The plaintiffs were 
allowed at the 1984 hearing to present 
evidence of liability up to the date of 
that hearing.

Due to the complexity of the case, 
the court must determine appropriate 
posterior cut-off dates for each class 
claim separately. This issue will be

20a



addressed on that basis in subsequent 
portions of this opinion.

C. Class Definition.
The class definition established in 

the pretrial order of June 5, 1974,
remains in effect. The order states that 
"[T]his action may hereafter be maintained 
on behalf of all black persons who are now 
or have (within one year prior to any 
charges under Title VII) been employed by 
defendant company as production or 
maintenance employees represented by the 
United Steelworkers.1,16

II. DISCRIMINATORY SELECTION OF 
* SUPERVISORY PERSONNEL 16

16 Arguably, this definition should be redrafted to conform to the limits 
imposed by the court's rulings regarding the cut-off dates. The result, however, 
would be the same with or without this 
change. Limits on recovery by members of 
the class are clearly laid out in the body of this opinion. As this case moves into Phase II, this opinion must be looked to 
in its entirety for limitations on the 
scope of liability.

21a



The Court of Appeals in Pullman- 
standard VI reversed this court's finding 
that the company had successfully rebutted 
plaintiff's prima facie case of racial 
discrimination in the selection of 
supervisory personnel after the effective 
date of Title VII. This ruling was not 
reviewed by the Supreme Court in Pullman- 
Standard VI or vacated by the appellate 
court in Pullman-Standard VIII.17 
Accordingly, it is to be treated, despite 
the company's protest, as the law of the 
case. At the 1984 hearing, no additional 
evidence was offered with respect to 
claims of discrimination in the 
appointment of supervisory personnel after 
1974, and the court accordingly denied any 
claim with respect to this issue after * VIII.

17 Pullman-Standard VI. 624 F.2d 
525 (5th Cir. 1980); Pullman-Standard VII. 456 U.S. 273 (1982); Pullman-Standard
VIII. 692 F.2d 1031 (5th Cir. 1983).

22a



that point. 1984 Hearing Transcript, Vol. 
I, 5. As to these claims, therefore, the 
defendant company is subject to liability 
upon proof of damages at a Phase II 
hearing for the period from July 17, 1969, 
until August 16, 1974.

III. SENIORITY SYSTEM 
Pursuant to the opinions of the 

Supreme Court in Pullman-Standard VII and 
the Fifth Circuit in Pullman-Standard 
VIII. this court has considered afresh the 
bona fides of the United Steel Workers' 
seniority system at Pullman-Standard.18 A * VII,

-L° The Supreme Court reversed the Fifth Circuit's judgment regarding the 
bona fides of the seniority system, and remanded the case to that court for 
further proceedings consistent with the Supreme Court opinion. Pullman-StandardVII, 456 U.S. 273 (1982). The Fifth
Circuit, in turn, vacated its prior 
judgment regarding this issue, and 
remanded the case to this court "for further proceedings to determine what impact the 'locking-in' of blacks to the least remunerative departments had on 
discouraging transfer between seniority units, and the significance of the

23a



three-day evidentiary hearing was held in 
1984 to allow the presentation of 
exceptional additional evidence and newly 
discovered evidence. A broad range of 
evidence was presented. Anecdotal and 
expert witnesses testified; statistical 
exhibits and depositions were received. 
Post-trial briefs were submitted. The 
evidence introduced at this hearing, as 
well as the evidence previously in the 
record, has been considered by the court 
in making its determination regarding the 
validity of the seniority system. The 
essential facts relating to this seniority 
system were- outlined in Pullman-Standard 
V, 17 FEP Cases 732-39, and need not be * VIII.

discriminatory motivations of IAM with 
respect to the institution of USW's seniority system...." Pullman-Standard
VIII. 692 F.2d at 1031-32.

24a



repeated, but are adopted by reference as 
findings of the court.

The Fifth Circuit specifically 
instructed this court to address the 
effect of the IAM's discriminatory 
motivation on the institution of USW's 
seniority system.19 Plaintiffs argue that 
the racial animus of the I AM should be 
imputed to the USW. Such a finding would 
be contrary to the evidence taken as a 
whole. The IAM's discriminatory behavior 
is detailed in Pullman-Standard V.20 In 
addition to the evidence discussed 
therein, extensive testimony and

■Ly Pullman-Standard VII. 692 F.2d 1031 (5th Cir. 1983) .
20 17 FEP 730 (N. D. Ala. 1978). Inaddition to the conduct described therein, 

the I AM also followed a policy under its 
printed ritual (in effect until 1948) of allowing only '"qualified white 
candidates" to be proposed for membership. Joint Appendix to Writs for Certiorari, 346. (Plaintiffs' request for judicial notice of adjudicative facts.)

25a



deposition evidence were presented at the 
1984 hearing which established that blacks 
were involved in the formation of the USW 
and the negotiation of its 1954 
contract.21 The evidence, both at the 
1984 hearing and at earlier hearings, 
indicates that the USW desired to 
represent all maintenance and production 
workers at Pullman-Standard regardless of 
race. The IAM's motives cannot fairly be 
imputed to the USW. Even if USW's
acquiescence in IAM's discriminatory 
conduct were shown, it would not be * 19

21 Deposition of Joseph Jeneske, USW international representative at the 
1954 contract negotiations. Defendants' 
Exhibit 1301, 1984 Hearing. See also 1984 
Hearing Transcript, Vol. II, 4-5. 
Rosters of USW officers from 1965 through
19 7 3 showed extensive involvement of 
blacks in leadership of the union. Joint 
Appendix for Writs of Certiorari, 66-89 (copy of Co. Ex. 309). Also, the 
anecdotal evidence throughout this case's 
long history has alluded repeatedly to blacks' active role in the formation and leadership of the union.

26a



equivalent to discriminatory purpose on
the part of the USW. Pullman-Standard
VII. 456 U.S. at 293, n. 23.

In Pullman-Standard VII. the United
States Supreme Court stated the applicable
standard regarding discriminatory intent:

Differentials among employees that result from a seniority system are not unlawful employment practices unless the product of an intent to 
discriminate. It would make no sense, therefore, to say that the intent to discriminate 
required by Section 703(h) may be presumed from such an impact.As Section 703(h) was construed 
in Teamsters, there must be a finding of actual intent to 
discriminate on racial grounds on the part of those who 
negotiated or maintained the system. That finding appears to 
be a pure question of fact.

Pullman-Standard VII. 456 U.S. at 80.
This court finds no intent to discriminate
on the part of the USW.22 **

* * Inequities did exist, but the court finds that they resulted ultimately 
from the initial assignments made by the company.

27a



The Fifth Circuit further instructed 
this court "to determine what impact the 
'locking-in' of blacks to the least 
remunerative department had on 
discouraging transfer between seniority 
units." Pullman-Standard VIII. 692 F.2d 
at 1031. The Fifth Circuit had previously 
concluded that the assignment of blacks in 
a racially discriminatory manner to the 
least remunerative departments did not 
cease on the effective date of Title VII. 
Pullman-Standard VI. 624 F.2d 525 (5th 
Cir. 1980). These assignments, however, 
were the province of the company, not the 
union.

Any "locking-in" effect produced by 
the departmental seniority system was felt 
equally blacks and whites until 1972. In 
1972, an agreement between the company and 
the Office of Federal Contract Compliance 
gave certain advantages to specified

28a



groups of black employees in regard to 
interdepartmental transfers.23 This 
agreement sought to correct inequities 
created by discrimination in initial 
assignments, not inequities in the 
application of the seniority system. 
Evidence showed that reluctance to 
transfer between departments turned on 
facts extraneous to Title VII issues, such 
as skill levels and personal preference.

Whether a seniority system is bona 
fide in a Title VII context is controlled 
by International Brotherhood of Teamsters 
V. United States.24 That case applied a 
four-pronged test to the seniority system

 ̂ Memorandum of Agreement (between Pullman-Standard and the United 
States Department of Labor, OFCC, May 19, 1972), Defendants' Exhibits 272, 1974Hearing.

24 431 U.S. 324 (1977).

29a



In Pullman-Standard V.under scrutiny.25 
this court used these guidelines and 
considered the totality of the 
circumstances in its detailed analysis of 
the USW's system. Nothing presented at 
the 1984 hearing has changed the court's 
opinion that the seniority system sub 
iudice is bona fide and falls within the 
immunity provisions of Section 703(h) of

25 At the 1984 hearing, plaintiffs 
attempted to embark on a new theory to 
invalidate the seniority system. The 
presentation centered on dual application 
of the seniority system. Plaintiffs' 
attorneys were permitted to voice their 
theory at length and to question two witnesses extensively on this issue, The 
court then stated, "The problem [here] is that that is the identical evidence the Court called for and heard back in 1977 and '78, and the only thing we are doing 
here is supplementing [the record] if there is some unusual or exceptional 
reason why some evidence couldn't have 
been received back at that time." 1984 
Hearing, Transcript Vol. II, 48. Given this case's lengthy history and the sample opportunity previously afforded plaintiffs to present evidence of all types, this 
attempt was untimely and beyond the 
clearly defined scope of the 1984 hearing.

30a



the Civil Rights Act. The defendants have 
successfully carried their burden of 
showing that the seniority system is bona 
fide, and that the differences caused 
thereunder were not the result of any 
intent to discriminate on the basis of 
race.

Having considered the totality of the 
evidence presented at the various hearings 
and all submissions of counsel, the court 
finds that USW's seniority system at 
Pullman-Standard was bona fide under the 
terms of Section 703(h) of the Civil 
Rights Act.

IV. DISCRIMINATORY DEPARTMENTAL ASSIGNMENTS.
The court of appeals in Pullman- 

Standard vt reversed the court's finding 
that the company had not made racially 
discriminatory initial job assignments

31a



after the effective date of Title VII.26 
This ruling was not reviewed by the 
Supreme Court in Pullman-Standard VII or 
vacated by the appellate court in Pullman- 
Standard VIII.27 Accordingly, it is to be 
treated, despite the company's protests, 
as the law of the case. Establishing the 
date this practice ceased is the task left 
to this court.

Both sides have presented reams of 
statistical evidence on this issue. The 
courts and legal scholars have expressed 
many common sense caveats concerning the 
use of statistics in Title VII cases. 
Statistics showing racial imbalance are 
probative of discriminatory conduct. They

624 F.2d 525 (5th Cir. 1980).
27 Pullman-Standard VII. 456 U.S. 273 (1982); Pullman-Standard VIII. 692F.2d 1031 (5th Cir. 1983).

32a



In mostare not, however, irrefutable.28 
instances, infirmities and omissions in 
statistical evidence affect its probative 
value not its admissibility. Bazemore v.
Friday. --  U.S. -- , 106 S.Ct. 3000
(1986). The court should not consider 
statistical evidence in a vacuum,29 and, 
indeed, should be cognizant of the 
potential for manipulation of statistics 
in Title VII cases. These cases all too 
frequently develop into "contests between 
college professor statisticians who revel 
in discoursing about advanced statistical 
theory." Otero v. Mesa County Valiev 
School District No. 51. 470 F. Supp. 326,

Defendants' rebuttal may take various forms. They may impeach the 
reliability of the evidence, offer rebuttal evidence, or bring into question 
the probative value of plaintiff's 
evidence. Dothard v. Rawlinson. 433 U.S. 321, 338-39 (1977) (Rehnquist, J.,concurring).

29 See Teamsters. 431 U.S. at 340.

33a



331 (D.Colo. 1979), aff/d. 628 F.2d 1271
(10th Cir. 1980).30 Analysis of
statistical evidence requires attention to 
the precise questions addressed by the 
statistics. The limits of statistical 
tests in supporting causal inferences must 
be recognized.31 In the case at bar,
intrinsic non-quantitative evidence 
concerning the selection process has been 
considered in conjunction with the 
statistical evidence from both sides.

The statistical evidence was 
generally divided into two time periods—

J u See Schlei & Grossman. Employment Discrimination Law (1983) 
Supplement, 166) ; Richey, Charles, Manual on Employment Discrimination Law and Civil 
Rights Actions in the Federal Courts. A-29 (August 1985)

31 Baldus & Cole, Statistical Proof 
of Discrimination. § 9.42. The Fifth Circuit Court of Appeals has cautioned the 
courts to give "close scrutiny [to the] 
empirical proof" on which statistical models are based. Pettwav v. American Cast 
Iron Co. , 494 F.2d 211, 230-32, n.44 (5th Cir. 1974).

34a



1964 to 1969 and 1969 to 1974. As might 
be expected, the defendants' and 
plaintiffs' experts took different 
statistical approaches and arrived at 
somewhat conflicting conclusions. The 
court carefully studied the evidence 
presented by the parties and at trial 
presented to the parties for their comment 
another standard statistical model.32 
Plaintiffs' expert acknowledged that a 
considerable change had taken place in the 
job class distribution by 1969.33 
Defendants' expert found a statistical 
difference between the pre-1969 and post-, 
1969 periods, with a rough parity between 
the races in terms of job class assign-

Court's Exhibit 1, 1984 Hearing.
33 1984 Hearing Transcript, VolumeI, 90.

35a



merits from 19 69 forward.34 The alterna­
tive study prepared by the court indicated 
that post-1969 assignments were not 
racially tainted.

An extrinsic event ties in with and 
bolsters this statistical evidence as to a 
change in early 1969. In 1968, negotia­
tions were begun between the company and 
the Department of Labor. In January 1969, 
the company agreed to a conditional 
memorandum of understanding designed to 
enhance opportunities for Pullman's black 
employees.35 This agreement put into

34 1984 Hearing Transcript, Volume 
II, 165 (testimony of Robert Herrick in reference to Company's Exhibit 1208, pages 5-7) .

35 This agreement was never termed official because the union never voted its 
approval. Nevertheless, the company put in place programs which affected real changes in policy. As was stated in 
Pullman-Standard I;

The memorandum contained provisions similar to those 
later incorporated in the 1972

36a



motion the engines of change. The company 
cast its contract compliance officers—  
one black and one white —  in the role of 
equal employment counselors. They encour­
age blacks in "low ceiling" department to 
transfer to other departments, monitored 
the filling of temporary vacancies to 
insure fair allotment to blacks, and 
encouraged black employees and their 
families to take advantage of the 
company's vocational education tuition 
program.36

agreement, including transfer rights with seniority carryover 
for black employees from four 
"low-ceiling" departments or to 
the five formerly all-white departments. (A black employee had already been assigned to one of the five "white only" 
departments, plant protection.)

The vocational education program allowed employees and their families to obtain outside training and education at the company's expense. This program was 
particularly significant in the training of black welders. Id. at 947.

37a



Based on the statistical and non- 
statistical evidence, the court finds that 
Pullman-Standard's practice of making 
racially discriminatory initial job 
assignments ceased as of February 1969. 
The changes reflected by the evidence at 
that point were not mere tokenism. These 
changes were substantial and legally 
significant.37 Since the period of 
liability in this case does not commence 
until July 17, 1969, the effect of this 3 * * * * * * * *

3 ' The question of legalsignificance is ultimately one for the
court, rather than an expert witness, to
decide. The court must integrate the
circumstances with the statistics. Mere 
technical statistical significance may or 
may not amount to legal significance, depending on the surrounding facts.
Baldus & Cole, Statistical Proof ofDiscrimination. §§ 9.22, 9.41. "[T]he
levels of significance required of a claimant may vary from one subject matter 
area to another under the same legal theory, and ... the required level ofsignificance is a question of law to be 
decided by the court and not an expert witness.11 Id. at § 9.41.

38a



ruling is that the company faces no 
liability on these claims.

V. CONCLUSION
Based on the foregoing discussion, 

the court finds and concludes as follows:
1 The period of potential liabi­

lity commenced on July 17, 1969.
2. Plaintiffs' motion that Commis­

sioner Schulman's charge of March 27, 
1967, be used as the date designator for 
the opening of the class is denied.

3. The class definition remains as
stated in the pretrial order of June 5, 
1974, but with liability periods for 
affected subclasses as outlined in this
opinion.

4. Regarding discriminatory selec­
tion of supervisory personnel, the defen­
dant company is subject to liability upon 
proof of damages at Phase II proceedings 
from July 17, 1969, until August 16, 1974.

39a



5. The USW seniority system is bona 
fide. Judgment is entered in favor of the 
defendants on claims of discrimination 
wrought by the seniority system.

6. Regarding plaintiffs' claims of 
racially discriminatory initial job 
assignments, judgment is entered in favor 
of defendant company.

SO ORDERED.
This the 8th day of September, 1986.

Sgd. Sam C. Pointer, Jr.
United States District Judge

40a



UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

LOUIS SWINT, et al. )
)Plaintiffs, )
)v. )No.CV 71-P-0955-S
)PULLMAN-STANDARD, et al.)
)Defendants. )

Memorandum of Opinion

This cause is before the court on a 
variety of post-judgment motions by both 
parties. All concerned would like to lay 
this case to its final rest, but, unfor­
tunately, this is not yet to be. Despite 
the frustrations involved in taking 
another appeal, both sides and this court 
agree that appellate review and guidance 
would be beneficial prior to proceeding 
into Phase II on the issue of discrimi­
natory supervisory promotions.

41a



Turning first to plaintiffs7 motions, 
the court is presented with amotion under 
Fed.R.Civ.P. 59(e) to alter or amend its 
judgment of September 8, 1986, regarding 
the statute of limitations applicable to 
the issues of initial assignments, super­
visory promotion, and, to the extent they 
are successful on appeal in regard to it, 
the seniority system.1 The plaintiffs 
would have the court abandon the law of 
the case and apply a six year statute of 
limitations via retroactive application of 
Wilson v. Garcia and adherence to Miller 
v, Hall7s Birmingham Wholesale Florist

1 Plaintiffs have not sought a Rule 59 amendment of judgment on the seniority system issue, but they do seek entry of a final judgment pursuant to Rule 
54(b) on all issues decided adversely to plaintiffs and plaintiff class. The court 
presumes that plaintiffs would seek the 
same broad period of liability to apply to all of their claims. The court finds it 
appropriate that final judgment be entered regarding its rulings concerning 
the seniority system, and that they be 
reviewed by the appellate court.

42a



and, tangentially, to Jones v. Preuitt v.
Maudlin.2

The Supreme Court in Wilson ruled 
that each state was to choose one statute 
of limitations as applicable to all 
Section 1983 actions arising in that 
state. The Court hopes to achieve uni­
formity, certainty, and minimization of 
unnecessary litigation by mandating the 
abandonment of case-by-case selection of 
statute of limitations in the civil rights 
arena. Wilson v. Garcia. 471 U.S. 261 
(1985), aff'q Garcia v. Wilson. 731 F.2d 
640 (10th Cir. 1984) . It must be noted
that the very day it decided Wilson the 
Tenth Circuit declined to apply Wilson

 ̂ Wilson v. Garcia. 471 U.S. 261 (1985), aff'q Garcia v. Wilson. 731 F.2d 
640 (10th Cir. 1984). Miller v. Hall's
Birmingham Wholesale Florist. 640 F.Supp. 948, (N.D. Ala. 1986). Jones v. Preuitt
^ __Mauldin. 763 F.2d 1250 (11th Cir.■*■985) , on remand. 634 F.Supp. 1520 (N.D.Ala. 1986) .

43a



retroactively. The Tenth Circuit speci­
fically ruled that Wilson be applied 
prospectively only. Jackson v. Bloom­
field.731 F.2d 652, 653-55 (10th Cir. 
1984)(en banc).

The Eleventh Circuit and, subsequent­
ly, the district court in Jones applied 
Alabama's six year statute of limitations 
for trespass, Code of Alabama §6-2-34(1), 
to actions brought under 42 U.S.C. §1983. 
Jones v. Preuitt & Maudlin. 763 F.2d 1250 
(11th Cir. 1985), on remand. 634 F.Supp. 
1520 (N.D. Ala. 1986).

In July 1986, the district court in 
Miller applied this same six year statute 
tp an action brought under 42 U.S.C. 
§1981. The ruling in Miller has not 
undergone appellate review as of the date 
of this opinion, therefore, the Eleventh 
Circuit has not declared its opinion 
concerning the correctness of this posi­

44a



tion. Miller v. Hall's Birmingham Whole­
sale Florist. 640 F.Supp. 948 (N.D.Ala. 
1986) .

In the case at bar, the one year 
statute of limitations was incorporated 
into the case definition in the pretrial 
order. It was explicitly stated in 
Pullman-Standard I by this court. The 
Fifth Circuit repeated this limitation in 
both Pullman-Standard II and Pullman- 
Standard VI with no adverse comment.^ All 
claims brought under 42 U.S.C. S1981 which 
arose outside the one year period have 
been denied by this court's rulings. This 
time restriction was never the subject of 
appeal, and, thus, became the law of the 
case. Defendants have relied on this 
statute of limitations throughout this 3

3 Pullman-Standard I. 11 FEP Cases 943, 948, n. 20 (N.D. Ala. 1974); Pullman- 
Standard II. 539 F. 2d 77, 85, n.17 (5th Cir. 1976); Pullman-Standard VI. 624 F.2d 525, 526 (5th Cir. 1980).

45a



case's long history. Nothing plaintiffs 
have presented has persuaded this court 
that this reliance was unfounded, that 
retroactive application of Wilson and 
Miller is proper4 of that there are valid 
grounds for diverging from the law of the 
case.5

4 The Eleventh Circuit has applied 
Wilson retrospectively to a 42 U.S.C. § 1983 claim in Williams v. City ofAtlanta. 794 F. 2d 624, 627-28 (11th Cir.1986). The appellate court clearly stated 
that it found this application proper because the plaintiffs had no precedent 
for waiting more than two years to file 
suit (the longest period which had been 
applied in Georgia for a Section 1983 
claim for money damages). Plaintiffs had 
not relied upon any ruling of the court in 
their suit to the contrary nor upon any other precedent. The case at bar is 
clearly distinguishable by the defendants' long years of reliance on the one year 
statute of limitations.

See Leggett v. Badger. 798 F.2d 
1387 (11th Cir. 1986); Stanley v. United
States. 786 F.2d 1490, 1498 (11th Cir.
1986) ; Dorsey v. Continental Casualty 
Company. 730 F.2d 675, 678 (11th Cir.
1984); and IB Moore's Fed. Prac. f 0.404.

46a



The applicability of the six year 
statute of limitations to 42 U.S.C. §1981 
actions in Alabama is still a debatable 
issue, particularly in cases which were 
litigated prior to Wilson and Miller.6 
The equities in the case at bar militate 
convincingly toward strict adherence to 
the law of the case doctrine on this 
issue. The parties have relied throughout 
the case's fifteen year life on the one 
year statute of limitations as dictated by

In the interest of achieving the uniformity, certainty, and minimization of unnecessary litigation sought by the 
Supreme Court through its opinion in Wilson. the Eleventh Circuit has stated 
that "[t]he same single limitations period should apply to §1981 claims [as applies 
to §1983 claims]. Goodman v. Lukens Steel 
Company. 777 F.2d 113, 120 (3d Cir.1985)." Friedlander v. Troutman. Sanders. Locker- man & Ashmore. 788 F.2d 1500, 1503, n.2 
(11th Cir. 1986). The court has no 
quarrel with this proposition, but it does not agree that the ruling in Miller should 
be retroactively applied in knee-jerk fashion.

47a



Section 6-2-39(a)(5) of the Alabama Code.7 
This provision had been applied to Section 
1981 actions by federal courts in Alabama 
before Miller was decided. Ingram v. 
Steven Robert Corp.. 547 F.2d 1260, 1263 
(5th Cir. 1977) ; Buckner v. Goodyear Tire 
& Rubber Company. 476 F.2d 1287 (5th Cir. 
1973), aff' a 339 F.Supp. 1108 (N.D. Ala. 
1972) .8

The Supreme Court has established a 
three-part analysis for considering retro­
active application of judicial decisions.

7 This section was repealed in 1985, and replaced by Ala. Code §6-2-38 
which provides a two-year statue of limitations.

8 See also Rav v. TVA. 677 F.2d818, 822 (11th Cir. 1982), cert denied.459 U.S. 1147 (1983) (A Veterans Prefer­
ence Act case in which the court states that Alabama's one year statute of 
limitations is not so short as to frus­trate federal policy); Watkins v. Scott 
Paper Co.. 530 F.2d 1159, 1196 (5th Cir.), cert denied. 429 U.S. 861 (1976) (A title
VII backpay case which applied the one- 
year statute of limitations).

48a



Chevron Oil v. Huson, 404 U.S. 97, 106-07
(1971).9 The final factor of weighing 
likely resultant inequities and hardships 
is the most persuasive in the instant 
case. After careful consideration of all 
facts, the court finds that substantial 
inequity, hardship, and injustice would 
result from retroactive application of 
Wilson and Miller. The plaintiffs' motion 
for alteration or amended of judgment 
under Fed.R.Civ.P. 59(e), therefore, is 
DENIED.

The court stated:(1) "[T]o be applied nonretroactively [the decision] must establish a new principle of law 
either by overruling clear past precedent on which litigants may have relied ... or 
by deciding an issue of first impression 
whose resolution was not clearly for- shadowed ...." (2) The history of the rule, its purposes, and whether retrospec­
tive application would further or retard its operation must be considered. (3) The inequity, hardship, and injustice that 
would result from retroactivity must be weighed.

49a



The plaintiffs have further moved for 
entry of final judgment under Fed.R.Civ.P. 
54(b) of all rulings decided adversely to 
them and to the plaintiff class. The 
court finds this request appropriate, 
except as to those rulings which relate to 
the selection of supervisory personnel 
during the period from July 17, 1969, to 
August 16, 1974. The court's denial of 
plaintiffs' Rule 59 motion regarding the 
appropriate statute of limitations in no 
way impedes plaintiffs' right to appeal 
that issue. The plaintiffs' motion for 
entry of final judgment under Fed.R.Civ.P. 
54(b) is GRANTED, subject to the afore­
mentioned exception.

Defendant, Pullman-Standard. has made 
motions to alter or amend the judgment 
under Fed.R.Civ.0. 52(b) and 59(e). The 
company contends that there has never been 
a finding of intentional discrimination in

50a



its selection of supervisory personnel. 
The Fifth Circuit specifically found that 
the company had failed to rebut 
plaintiffs' prima facie case regarding 
racially discriminatory selection of 
supervisory personnel. Pullman-Standard 
VI, 624 F. 2d 525, 536 (5th Cir. 1980).
This issue was not a subject of the 
Supreme Court appeal, and, thus, became 
the law of the case. Stanley v. United 
States. 786 F.2d 1490 (11th Cir. 1986);
Dorsey v. Continental Casualty Co. . 730
F.2d 675 (11th Cir. 1986). The court
finds that this holding is ripe for Phase 
II proceedings, and that the plaintiffs 
will not be required to prove intentional 
discrimination by the company at this 
point. Defendant Company's motions under 
Fed.R.civ.P. 52(b) and 59(e) are DENIED.

Defendant company has moved in the 
alternative for leave to appeal this issue

51a



under 28 USC §1291(b). Defendant has 
further moved for leave to appeal under 
that section the issue of whether named 
plaintiffs have standing to represent 
class members claiming discriminatory- 
initial job assignments. The court finds 
that there are controlling questions of 
law as to which there is substantial 
ground for difference of opinion regard­
ing: (1) its holding that there has been a
finding of intentional discrimination in 
the selection of supervisory personnel 
during the period from July 17, 1969, to 
August 16, 1974, and that defendant com­
pany is subject to potential liability at 
a Phase II hearing with respect to such 
claims, and (2) the issue of whether named 
plaintiffs have standing to represent 
class members claiming discriminatory 
initial job assignments. The court 
further finds that immediate appeal of

52a



these issues may materially advance the 
ultimate termination of this litigation, 
and recommends that the court of appeals 
permit said appeal. Motion for leave to 
appeal these issues is GRANTED.

An order in conformity with this 
opinion will be entered contemporaneously 
herewith.

This the 25th day of November 1986.

United States District Judge



UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

LOUIS SWINT, et al. )
)Plaintiffs, )
)

V. )No.CV 7X-P-0955-S
)PULLMAN-STANDARD, et al.)
)Defendants. )

ORDER

In accordance with the Opinion filed 
concurrently herewith, this court's 
opinion entered September 8, 1986, is
hereby AMENDED in the manner described 
herein. The final sentence of the para­
graph beginning on page eleven and ending 
on page twelve is to read:

In the case at bar, extrinsic 
nonquantitative evidence, concerning the selection process 
has been considered in 
conjunction with the statistical evidence from both sides.

54a



In all other respects, the court's order 
and opinion entered September 8, 1986, are 
hereby RATIFIED and REAFFIRMED in their 
entirety.

It is FURTHER ORDERED:
1. Plaintiffs' Motion to Alter or 

Amend Judgment pursuant to FRCP 59(c) is hereby DENIED.
2. Defendant, Pullman-Standard's, Motion to Alter or Amend the 

Judgment pursuant to FRCP 52(b) ad 59(e) is hereby DENIED.
3. The court finds that there is nojust reason for delaying entry of final judgment on the claims 

decided adversely to plaintiffs and the plaintiff class in the 
court's decision of September 8, 1986, being all claims except those relating to the selection 
of supervisory personnel during the period from July 17, 19 69,to August 16, 1974. Theplaintiffs' motion for entry of final judgment on these isues pursuant to FRCP 54(b) is hereby 
GRANTED. It is further ORDERED that final judgment be ENTERED denying all claims of the 
plaintiffs and the plaintiff class except those relating to 
selection of supervisory 
personnel during the period from July 17, 1969, to August 16,1974.

55a



4. The court finds there to be a 
controlling question of law as 
to which there is substantial ground for difference of opinion 
regarding this court's holding that there has been a finding of 
intentional discrimination in 
the selection of supervisory personnel during the period from July 17, 1969, to August 16,
1974, and that the defendant 
company is subject to potention 
liability at a Phase II hearing with respect to such claims. 
The court further finds that 
immediate appeal of this issue may_ materially advance the 
ultimate termination of this litigation. Therefore, the defendant's motion for leave to appeal under 28 U.S..C. § 1292 is 
hereby GRANTED with the 
recommendation of this court that the Court of Appeals permit said appeal.
The court is of the opinion that 
there is substantial ground for 
difference of opinion regarding the named plaintiffs' standing to represent class members claiming discriminatory initial job assignments during the period from July 17, 1969, to
August 16, 1974. The court
further finds that immediate appeal of this issue may 
materially advance the ultimate 
termination of this litigation. Thus, leave to appeal this issue of standing is hereby GRANTED

56a



pursuant to 28 U.S.C. § 1292with the recommendation of this court that the Court of Appeals permit said appeal.
This the 25th day of November 1986.

(sgd.) Sam C. Pointer



William B. LARKIN; Louise Seals, as personal representative of Spurgeon Seals, deceased; Lillie Lofton, as personal representative of Edward 
Lofton, deceased; Jesse B. Terry, on behalf of himself and others similar­
ly situated, Plaintiffs-Appellants,

v.
PULLMAN-STANDARD DIVISION, PULLMAN, INC., a corporation, Defendant-Appellee.
Louis SWINT and Willie James Johnson, on behalf of themselves and others similarly situated; Clyde Humphrey, Plaintiffs- Appellants,

v.
PULLMAN-STANDARD, Bessemer, Alabama; 

United Steelworkers of America Local 
1466; and United Steelworkers of 
America, AFL-CIO, International Asso­
ciation of Machinists, Defendants- Appellees.

Louis SWINT, and Willie James Johnson, on 
behalf of themselves and others 
similarly situated; Clyde Humphrey, 
Plaintiffs-Appellees,

v.
PULLMAN-STANDARD, Bessemer, Alabama 

Defendant-Appellant
United Steelworkers of America Local 1466; 

and United Steelworkers of America, 
AFL-CIO, International Association of Machinists, Defendants.

58a



Nos. 84-7319, 86-7886 and 87-7057.
United States Court of Appeals, Eleventh Circuit.

Sept. 21, 1988
Appeals from the United States District Court for the Northern District of Alabama.
Before JOHNSON and CLARK, Circuit Judges, and DUMBAULD*, Senior District Judge.
CLARK, Circuit Judge:
Few cases better represent the idea 

that the road to justice can be a long and 
tortured one. The class action giving 
rise to two of these three consolidated 
appeals was filed in 1971. The named 
plaintiffs, Louis Swint and Willie Johnson 
(the "Swint plaintiffs"), alleged that 
Pullman-Standard, Inc. (Pullman) the 
United Steelworkers, and United Steel-

Honorable Edward Dumbauld, Senior U.S. District Judge for the Western 
District of Pennsylvania, sitting by designation.

59a



workers Local 1466 (collectively USW) had 
engaged in a number of racially 
discriminatory employment practices in 
violation of Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. §2000e-2 (1982),1
and 42 U.S.C. §1981 (1982).* 1 2 Since the

1 Title VII provides that
(a) It shall be an unlawful employment practice for an employer -

(1) 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.
42 U.S.C. §2000e-2(a)(1982).

Section 1981 provides that
All persons within the jurisdiction of the United States shall have the same 

right in every State and Territory to make 
and enforce contracts, to sue, be parties, give evidence, and to the full and equal

60a



complaint was filed, many members of the 
plaintiff class have died, and our 
consideration of the case marks its fourth 
appearance before this court. Both sides 
have appealed certain aspects of the 
district court's decision.

A related suit, from which the 
remaining appeal arises, was filed in 
1975. The plaintiffs in that suit- 
William Larkin, Spurgeon Seals, Edward 
Lofton, and Jesse Terry (the 11 Larkin 
plaintiffs") - brought similar charges 
against Pullman, and our consideration of 
their case marks its second appearance 
here. The Larkin plaintiffs appeal a 
separate district court's decision in 
favor of Pullman. *

benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penal­ties, taxes, licenses, and exactions of every kind, and to no other.
61a



Regretting that we cannot resolve the 
case in its entirety, we affirm in part 
and reverse in part the Swint district 
court decision, and affirm the Larkin 
district court decision.

I. The Factual Background 
Both the Swint and Larkin lawsuits 

challenge employment practices at Pull­
man's Bessemer, Alabama plant before it 
closed in 1980. Employees at the plant 
during the general3 time frame covered by 
the complaints were drawn from twenty- 
eight departments, each department 
covering roughly a particular phase of 
Pullman's manufacture of railroad cars. 
Pursuant to collective bargaining agree­
ments with the two unions, two of the 
departments were represented by the

It is necessary to refer to the general time period because, as will be come apparent later, the time period 
covered by the complaints is very much at issue.

62a



International Association of Machinists 
(IAM); and the remaining twenty-six by 
USW.4 The agreements were different, but 
they had one important provision in 
common: seniority, the primary factor upon 
which promotions were based, was not 
transferable between the various depart­
ments,5 at least prior to 1972.6 If an

Because IAM was not named in any of the EEOC charges or in Swint's com­plaint, the union is in the case as a 
defendant only to the extent that some of 
the relief sought by the plaintiffs might 
entail modification of its contract with 
Pullman. For this reason, any further references to "the union" will be to USW 
unless otherwise specifically noted.

5 USW's agreement provided that seniority meant continuous service in a 
single department. IAM's seniority system was even more restricted. Seniority meant 
continuous service in the same type of job, i.e. millwrights got credit only for 
the time they had been millwrights. Be­cause the agreements differed with respect to what constituted seniority, we shall refer to Pullman's overall seniority system as "nontransferable" rather than "departmental."

63a



employee transferred to another depart­
ment, he6 7 lost his seniority.
A. Assignments and Promotions

There is little dispute that prior to 
1965, there were both segregated depart­
ments and mixed-race departments. Four 
USW departments - Die & Tool, Janitor, 
Steel Miscellaneous, and Truck - were all 
black. Five USW departments - Air Brake, 
Inspection, Plant Protection, Powerhouse, 
and Template - and the two IAM departments 
- Die & Tool and Maintenance - were all

6 Pullman entered into an 
agreement with, the Department of Labor's 
Office of Federal Contract Compliance in 1972 that permitted certain blacks to transfer to certain other departments 
without losing their seniority. See infra 
part I.A.

There were twenty or so women 
working at the Bessemer plant in the late sixties-early seventies. However, because 
the workforce was predominantly male, and to prevent the reader's distraction, the 
masculine gender of pronouns will be used 
in this opinion.

64a



white.8 There were also, within each 
mixed-race department, "white" jobs and 
"black" jobs, meaning that when a parti­
cular job was vacated, it was necessarily 
filled with an employee of the same race. 
The "white" jobs tended to be the higher­
paying, and the "black" jobs the lower- 
paying. Within the USW departments, in 
addition to the racial division of job 
assignments, there were specific pay-skill 
levels, each represented by a job class 
(JC) number. The JC number reflected the 
highest level of skill at which an 
employee had demonstrated he could work, 
and it determined what the employee's base 
pay would be.

Although the two unions' reasons for doing so are disputed, it is not dis­
puted that agreements between IAM and 
USW's predecessor, the Steel Workers 
Organizing Committee (SWOC), in the 194Q's 
resulted in IAM trading its twenty-four black members for two of SWOC's white members.

65a



Both before and after 1965, when a 
person was hired, he was assigned to both. 
a department and a particular job. The 
job assignment would set the employee's JC 
level. Under the collective bargaining 
agreement, promotions to higher JC-level 
jobs were to be awarded on the basis of 
seniority (which in effect meant they were 
intradepartmental only), provided that the 
employee could actually perform the work 
and that the position was not filled from 
the outside. The highest JC level an 
employee could achieve within his depart­
ment varied with the department. In the 
all-black departments, the maximum JC 
level varied from 8-20.  ̂ Vacancies were 
not announced or posted. Pullman super­
visors would choose the employee to fill

These JC level figures refer 
exclusively to the USW departments.

66a



the position or make the determination to 
hire from the outside.

In 1965, after an arbitration deci­
sion had opened up the previously all- 
white riveter job to blacks, some changes 
began to take place. The system of non- 
transferable seniority and promotions re­
mained in place,10 but a reporting system 
of hires and promotions was developed, and 
Pullman expressed its desire to recruit 
blacks for the highly-skilled positions. 
Unfortunately, at the same time, Pullman 
terminated its practice of offering on- 
the-job training and began to require that 
employees wanting to move to a higher 
skill level demonstrate that they had 
formal outside training or experience.

xu As will be discussed in more detail later, see infra part V, the 
Parties dispute whether the practice of 
reserving certain intradepartmental jobs 
for whites and others for blacks continued after 1965.

67a



In January 1969, Pullman entered a 
conditional memorandum of understanding 
with the Department of Labor's Office of 
Federal Contract Compliance (OFCC) that it 
would encourage blacks to move from "low- 
ceiling" departments (where the highest JC 
level available was still quite low) to 
higher-ceiling ones. Pullman also agreed 
to offer at the company's expense, and 
encourage black employees to take part in, 
a program of outside vocational education. 
The memorandum, however, did not offi­
cially become effective because the union 
did not approve it. In May 1972, Pullman 
entered another agreement with OFCC that 
allowed blacks who were hired into the 
four traditionally black departments prior 
to April 30, 1965 to transfer into any 
department without losing their seniority. 
Additionally, any black whatsoever hired 
prior to April 30, 1965 was permitted to

68a



transfer to one of the five traditionally 
white departments without losing his 
seniority. The transfers, of course, were 
dependent on there being a vacancy in the 
department to which an employee wished to 
transfer. Seventeen blacks used this 
agreement to transfer, though it, like the 
1969 memorandum, was not formally adopted 
by the unions.
B. Selection of Supervisors

The selection of supervisors, both 
before and after 1965, was not based on 
seniority. There were four levels of 
supervisors: "hourly foremen," who alter­
nated between regular and supervisory 
work; "A foremen," the lowest-level 
salaried employees? "B foremen"; and 
Department Heads. These positions were 
considered within Pullman's (rather than 
USW's) purview. The B foremen would 
select the hourly and A foremen, and the

69a



Department Head would select the B fore­
men. The selections were based on the 
relevant supervisor's subjective 
evaluations of the employees, which were 
in turn based on what Pullman calls 
"objective" criteria, such as the ability 
to get along with other employees and 
knowledge of the particular department's 
operations. Foremen were not necessarily 
drawn from the department they would 
ultimately supervise.

II. The Litigation 
A. The EEOC Proceedings

After Title VII became effective in 
June of 1965, the Equal Employment Oppor­
tunity Commission (EEOC) received several 
charges complaining that Pullman had 
engaged in racially discriminatory employ­
ment practices. Five of these charges are

70a



relevant here. On November 4, 1966,11 
Spurgeon Seals, a Larkin plaintiff, filed 
a charge alleging that he had been passed 
over for a better paying job in spite of 
his seniority. On March 27, 1967, EEOC 
Commissioner Stephen Shulman filed a 
charge alleging that Pullman discriminated 
against blacks in its hiring and promo­
tional practices. On April 11, 1967, 
Spurgeon Seals, Edward Lofton and Jesse 
Terry filed a document that they styled an 
"amendment" to Seals' 1966 charge. To 
Seals' specific complaint that he was *

xx There is some confusion about this date. The copy of the charge that 
appears in the record indicates that it was signed October 30, 1966, but there is 
no indication of the filing date. Because 
documents filed by Pullman with the EEOC 
argue that the charge was filed on 
November 4, and, at least at one point, 
the plaintiffs' brief so indicates, we will assume that November 4 is the actual 
filing date. In any event, our disposi­tion of this charge renders any dispute 
over the date insignificant. See infra note 32.

71a



passed over, they added allegations that 
white employees in their department were 
(1) disproportionately assigned to those 
jobs that would lead to the higher-paying 
positions, (2) disproportionately selected 
for temporary assignments that would prove 
an employee's ability to perform in a 
higher position, and (3) given the easier 
and cleaner work. On October 13, 1967,
William Larkin filed a charge alleging 
that Pullman discriminated in its hiring 
and promotional practices. Finally, on 
October 15, 1969, Louis Swint filed a
charge alleging that Pullman discriminated 
in its training and promotional prac­
tices . 12

12  This summary of the EEOC charges 
does not include any claim that the par­
ties have agreed are no longer in the case, e.g., the claims that Pullman 
physicians maintained racially segregated 
facilities. Nor does it include later 
charges filed by Swint, because those 
charges are not relevant to the issues 
before the court.

72a



The EEOC consolidated all of the 
charges other than Swint's, and on April 
26, 1972, issued its decision. The Com­
mission concluded that there was reason­
able cause to believe that Pullman had 
discriminated in "hiring, promotion, job 
assignments, terms and conditions of 
employment and the operation of an unlaw­
ful seniority system." Swint's charge 
appears not to have been similarly 
resolved. On September 22, 1971, before
disposing of the case and at the request 
of Swint's attorney, the Commission issued 
Swint a letter advising him that he could 
institute a civil action within thirty 
days.
B. The Swint Case

Swint did so, seeking injunctive, 
declaratory, and monetary relief on behalf 
°f himself and all other similarly 
situated black Pullman employees. His

73a



complaint, as amended, alleged that 
Pullman and USW (to the extent that the 
latter participated in a particular 
practice or was a party to a discrimina­
tory practice because it was embodied in 
the collective bargaining agreement) had 
practiced racial discrimination in hiring, 
training, temporary assignments, promo­
tions, and the maintenance of the senior­
ity system. ̂-3 on June 4, 1974, in an 
order following the second pretrial con­
ference, the district court certified the 
class Swint sought to represent:

[T]he court finds and concludes that the prerequisites of Rule 23(a) and 
Rule 23(b)(2) are satisfied and that this action may hereafter be main­
tained on behalf of all black persons who are now or have (within one year prior to the filing of any charges 
under Title VII) been employed by defendant Company as production or 13

13 As with the summary of the EEOC 
charges, this summary of Swint's allega­tions omits certain allegations that have 
no bearing on the issues before the court.

74a



maintenance employees represented by 
the United Steelworkers.

Record, Vol.II, Tab 18 at 1. According to 
the court, the parties had "made known 
certain facts to the court and . .. agreed 
that such facts may be considered by the 
court without formal hearing otherwise 
required under Rule 23." Id.

After sixteen days of trial testimony 
and the submission of numerous exhibits, 
the district court concluded that the 
plaintiffs had not proven that the senior­
ity system of promotions was unlawful or 
that the selection of supervisors was 
discriminatory. See Swint v. Pullman- 
Standard (Swint I), 11 F.E.P. 943, 954,
959 (N.D.Ala. 1974) [available on WESTLAW, 
1974 WL 262]. However, in the course of 
its discussion of the seniority system, 
the court found that, insofar as Pullman 
had maintained some single-race depart­
ments, it had discriminated in its

75a



assignments of new employees until as late 
as 1972, See id. at 953-54. The district 
court held that the proper remedy for this 
discrimination was to expand the transfer 
eligibility made available by the OFCC 
agreement.14 See id. at 954.

On appeal, this court reversed the 
district court's conclusions on the 
seniority system and the selection of

14 As noted above, the OFCC agree­
ment provided that any black hired prior 
to April 30, 1965 and assigned to one offour all-black departments could transfer 
to any department without losing his seniority. The district court directed 
Pullman to set the eligibility dates (dates of employment) later with respect 
to three of the four black departments, so 
that the eligibility dates would corres­pond with the date on which discrimina­
tory assignments to each of those three departments ended. The OFCC agreement 
also provided that any black employee 
hired prior to April 30, 1965 couldtransfer to one of the four all-white 
departments without losing his seniority. 
The district court directed Pullman to again move the eligibility dates later 
insofar as a black employee wanted to transfer to one of three departments that 
remained all white until well after 1965.

76a



supervisors. See Swint v. Pullman- 
Standard (Swint_II), 539 F.2d 77, 93, 104
(5th Cir. 1976) . With respect to the 
seniority system, the court found that the 
district court had erroneously required 
the plaintiffs to prove that the discrimi­
natory initial assignments caused class­
wide economic harm. See id. at 93. 
Segregation in and of itself, the court 
held, constituted discrimination in viola­
tion of Title VII, and if the seniority 
system perpetuated such discrimination,15 
it, and promotions pursuant to it, also 
would violate Title VII. See id. at 91. 
With respect to the selection of super-

x“> Swint II was decided prior to the ̂ Supreme Court's decision in Inter­
national Brotherhood of Teamsters v. United States. 431 U.S. 324, 97 S.Ct.

52 L. Ed. 2d 396 (1977). As will be
discussed, Teamsters reversed this cir­cuit's holdings that any seniority system 
that perpetuated past discrimination could not be bona fide and thus protected 
under 42 U.S.C. §2000e-2(h)(1982).

77a



visors, the court found that two of the 
four grounds for the district court's 
decision were invalid. See id. at 104.
The case was remanded for whatever 
proceedings the district court felt were 
"appropriate or necessary" to comply with 
the opinion. Id. at 105.

On remand, a two-day hearing was 
held, at which additional evidence and 
briefs were submitted. While the district 
court was considering its decision, the 
Supreme Court issued its decision in 
International Brotherhood of Teamsters v. 16

16 The court held that the district 
court should not have treated literacy as the explanation for the racial discrepancy 
unless it had been proven a business 
necessity. The court also rejected the district court's reliance on his conclu­
sion that pre-1965 discrimination had 
prevented blacks from gaining the skill 
and experience they needed to be able to 
supervise. That justification would have been valid, the court held, only if Pull­
man had shown that the skills were a busi­
ness necessity and that blacks did in fact 
lack them. See Swint II. 539 F.2d at 104.

78a



United States, 431 U.S. 324, 97 S.Ct.
1843, 52 L.Ed. 2d 396 (1977). The Court
rejected what had become this circuit's 
standard approach to seniority systems. 
See, e.q., United States v. T.I.M.E.-D.C.. 
517 F.2d 299, 320 (5th Cir. 1975)(collect­
ing cases), rev'd sub nom. International 
Brotherhood of Teamsters v. United States. 
431 U.S. at 324, 97 S.Ct. at 1843; Local
189, United Papermakers & Paoerworkers v. 
United States. 416 F.2d 980, 987-88 (5th
Cir. 1969), cert, denied. 397 U.S. 919, 90 
S.Ct. 926, 25 L.Ed. 2d 100 (1970). Plain­
tiffs could not prevail, the Court held, 
simply by showing that a seniority system 
perpetuated the effects of pre-Title VII 
discrimination. See Teamsters. 431 U.S.
at 353-54, 97 S.Ct. at 1864. To overcome 
the bona fide seniority system exception, 
see. 42 U.S.C. §2000e-2 (h) ( 1982 ) , 
Plaintiffs had to show that a seniority

79a



system was established or maintained with 
discrimi-natory intent. See Teamsters. 
431 U.S. at 356, 97 S.Ct. at 1865; see
also Trans World Airlines v. Hardison. 432 
U.S. 63, 82, 97 S.Ct. 2264, 2275, 53
L.Ed.2d 113 (1977).

Relying on Teamsters, the district 
court again held for Pullman on the 
promotions issue. See Swint v. Pullman- 
Standard (Swint_III) , 15 F.E.P. 144, 147
(N.D.Ala. 1977)[available on WESTLAW, 1977 
WL 888]. Realizing that it would have to 
focus on post-Act discrimination, the 
court assumed that the liability period 
should be dated from December 27, 1966:
"To give plaintiffs7 [sic] the benefit of 
the doubt, the court has in this opinion 
used the earliest possible date, i.e., 90 
days before the March 27, 1967 Commis­
sioner's charge, while nevertheless having 
substantial reservations that such a date

80a



is proper." Id. at 146 n.5. It then 
found that by December 19 66 the company 
was no longer making assignments to 
departments based on race. The court 
acknowledged that this finding conflicted 
with its findings in Swint I. but con­
cluded that its original decision, "based 
largely upon a mechanical application of 
statistical data respecting a few depart­
ments, was incorrect." Id. at 149. The 
court also held that Pullman had not 
discriminated in its selection of super­
visors. The court's calculations revealed 
no statistically significant disparity in 
the number of blacks and whites chosen,17

The court found that "the number °f blacks appointed to salaried super­
visory positions is less than two standard 
deviations from the number expected from the composition of temporary foremen." Saint III. 15 F.E.P. at 151. The court 
acknowledged that there was a disparity of some 2.54 standard deviations" in the 
Welding department, by far the largest department at the plant.

81a



and, in any event, Pullman had demonstrat­
ed that experience as a temporary foreman 
- which, due to pre-Act discrimination 
blacks were less likely to have - was a 
bona fide occupational qualification. See 
id. at 150-52.

The plaintiffs filed a motion to 
amend the judgment with respect to the 
court's language on the date from which 
Pullman's liability was measured. They 
argued that the liability period should 
have been backdated from the 
Commissioner's charge 180 rather than 90 
days, due to a 1972 amendment to Title VII 
that extended the time for filing. The 
court wrote that "[p]laintiffs are 
probably correct," but found that even if 
a September date were used, its finding 
that Pullman had not discriminated during 
the liability period would stand. Swint 
v. Pullman-Standard (Swint IV) . 15 F.E.P.

82a



1638, 1639 (N.D.Ala. 1977) [available on
WESTLAW, 1977 WL 40]. The plaintiffs also 
asked for a new trial on the seniority 
system on the ground that they had pro­
ceeded on trial on an accepted theory that 
Teamsters reversed. The court granted 
that motion. See id. at 1640.

The evidence presented at the third 
trial did not alter the district court's 
conclusion. Operating under the four- 
factor framework this court had set forth 
(after Teamsters] in James v. Stockham 
Valve & Fittings Co. . 559 F.2d 310 (5th 
Cir. 1977), cert, denied. 434 U.S. 1034, 
98 S.Ct. 767, 54 L.Ed.2d 781 (1978), the
court held that three of the factors as 
well as the totality of the circumstances 
indicated that the seniority system did 
not reflect an intent to discriminate. See 
£wint y. Pullman-Standard (Swint V ) , 17
F.E.P. 730, 739 (N.D.Ala. 1978)[available

83a



on WESTLAW, 1978 WL 115]. The court was
unimpressed with the plaintiffs' showing
that blacks appeared to be locked into the
least economically desirable departments,
asserting that this court had precluded
any consideration of economic unfairness:

[t]he rationale of the Fifth Circuit in Pullman-Standard II indicates that such a study of relative economic 
desirability would be inappropriate. 
If one is to measure inequality 
without reference to economic desir­ability, it would seem logical to measure its opposite - equality or neutrality — without reference to such desirability.

Id. at 734.
On appeal, this court reversed and 

remanded "for proceedings necessary to 
render appropriate relief." Swint v. 
Pullman-Standard (Swint VI). 624 F.2d 525, 
526 (5th Cir. 1980). In independent sec­
tions of its opinion, the court held that 
Pullman had violated Title VII in its 
assignments to departments, its system of 
nontransferable seniority, and its selec­

84a



tion of supervisors. With respect to 
departmental assignments, the court cited 
several numerical mistakes in the district 
court's calculations and concluded that 
the district court's ruling was "factually 
unsubstantiated." See id. at 529. With 
respect to the seniority system, the court 
found several errors in the district 
court's analysis. First, the district 
court had been unreasonable in construing 
Swint II to preclude any consideration of 
the fact that blacks were relegated to the 
economically undesirable departments; 
Swint II merely held that discrimination 
could take a non-economic form as well as 
an economic one. See id. at 530-31. 
Second, the district court had no basis on 
which to find the seniority system 
rational; "[n]o credible explanation has 
been advanced to sufficiently justify the 
separate seniority units." Id. at 531,

85a



533. Third, the district court improper­
ly rejected any consideration of IAM's 
role in the creation of nontransferable 
seniority, given IAM's undisputed past 
efforts to exclude blacks from its 
bargaining units. Id.; see supra note 8. 
On the last issue, the selection of super­
visors, the court found that Pullman had 
failed to show that requiring salaried 
supervisors to come from the ranks of the 
temporary supervisors was a business 
necessity. The court noted further that 
Pullman had not articulated any particular 
skills necessary to performing as either a

86a



temporary or salaried supervisor.18 See 
Swint VI. 624 F.2d at 535-36.

18 Despite holding that the plain­
tiffs were entitled to judgment in their 
favor on all three liability issues, the 
court did not specify the time period for which Pullman was liable. Its only dis­
cussion of the EEOC charges was as follows:

Although the first primary charge directly bringing into question the company's assignment policies was 
filed on May 11, 1970, a charge hadbeen previously filed by an EEOC 
Commissioner on March 27, 1967
questioning the hiring and promotion practices of Pullman. Because the 
district court found this earlier 
charge to be susceptible to the interpretation that it related also to assignment and transfer matters, the court used the date 90 days 
before the March 27, 1967 Commission charge for its analysis.
The 1972 amendment to Title VII extended the time for filing charges to 180 days, and this extension has been con­

sidered to be effective retroactively .... But, the district court asserts that it 
finds there was no practice of discrimi­nation assignments to departments after 
September 28, 1966. The 180 day statu­tory period is inconsequential to this analysis.
£wint_Vl, 624 F.2d at 528 n.l.

87a



The Supreme Court granted certiorari 
to consider the seniority system issue and 
reversed. See Pullman-Standard v. Swint 
(Swint VII) . 456 U.S. 273, 102 S.Ct.1781, 
72 L.Ed.2d 66 (1982). The majority held 
that this court, despite stating that it 
was applying a clearly erroneous standard 
to the district court's finding of no 
intentional discrimination, had improperly 
weighed the evidence and entered factual 
findings of its own. The proper procedure 
would have been to review the record only 
for clear error and then remand to the 
district court for reconsideration. Id. 
at 292, 102 S.Ct. at 1792. The Court did 
not specify the aspects of Swint VI that 
it considered fact-finding.

The opinion remanding the case to the 
district court directed it to conduct 
whatever proceedings it felt necessary to 
comply with Swint VI and Swint VII and "to

88a



determine what impact the 'locking-in' of 
blacks to the least remunerative depart­
ments had on discouraging transfer between 
seniority units, and the significance of 
the discriminatory motivation of IAM with 
respect to the institution of USW's 
seniority system." Swint v, Pullman- 
Standard (Swint VIII). 692 F.2d 1031, 1031 
-32 (5th Cir. 1982) . A fourth trial was 
held, and the district court entered the 
decisions that gave rise to two of these 
appeals. See Swint v. Pullman-Standard 
(Swint IX) , No. CV71-P-0955-S, slip. op. 
(N.D.Ala. Sept. 8, 1986), Record, Vol. II, 
Tab 136. Without discussion, the court 
concluded that it was bound by Swint VI to 
find Pullman liable for discriminating 
both in its departmental assignments and 
ln its selection of supervisors. Swint 

slip op. at 8, 11. The court rejected 
Pullman's argument that Swint did not have

89a



standing to represent the class on the 
departmental assignment claim. On the 
promotions issue, however, the court found 
the seniority system bona fide and entered 
judgment in favor of Pullman and USW. See 
id. at 11.

In view of its ruling that there had 
been discrimination in departmental 
assignments and the selection of super­
visors, the court was faced squarely with 
defining the temporal scope of Pullman's 
liability. Relying on Pavne v. Travenol 
Laboratories. 673 F.2d 798 (5th Cir.), 
cert, denied. 459 U.S. 1038, 103 S.Ct. 
451, 74 L.Ed.2d 605 (1982), the court held 
that the liability period should be dated 
from ninety days prior to the date of 
Swint's first EEOC charge, i.e., Pullman 
would not be liable for any discrimination

90a



Seeoccurring prior to July 17, 1969.19
Swint IX. slip op. at 6. The court then 
found that any discrimination in depart­
mental assignments ended prior to February 
1969. See id. at 13. The bottom line was 
that there was no discrimination in 
departmental assignments for which Pullman 
would have to pay damages. The date on
which discrimination in the selection of 
supervisors ended, the court held, had in 
effect been set by Swint VI. Pullman

xy The plaintiffs filed a motion to alter or amend the judgment asking the 
court to apply Alabama six-year trespass statute of limitations to the section 1981 claims in their case. This would have, at 
least to the extent that the plaintiffs were able to show intentional discrimi­nation (which section 1981 claims re­quire) , worked to extend the liability 
period backward to 1965. The court 
refused to alter its previous application of the one-year trespass on the case 
statute, citing a Pullman's reliance 
throughout the litiga-tion on that deci­sion. Swint v. Pullman-Standard (Swint_JC) , No. CV71-P-0955-S, slip op. at 3 (N.D.Ala. Nov. 26, 1986), Record, Vol. II, Tab 136at 3.

91a



would be liable for discrimination in the 
selection of supervisors from July 16, 
1969 to August 16, 1974.20 See id. at 8.

The plaintiffs appeal the rulings 
against them on the seniority system, the 
date from which Pullman's liability was 
measured, and the date that discrimination 
in departmental assignments ended. Pull­
man, having been granted leave to appeal 
immediately under 28 U.S.C. §1292 (1982), 
appeals the rulings against it on the 
selection of supervisors and on Louis 
Swint's standing to represent the class

20 It is unclear how the district 
court arrived at the August 16 date. 1974 
appears to have been chosen because the plaintiffs had presented statistical 
evidence through that date and this court 
did not distinguish periods of time when, in Swint VI. it found that there had been 
discrimination. See Swint IX. slip op. at 
8.

92a



with respect to departmental assign­
ments .21
C. The Larkin Case

Some four years after Louis Swint 
filed suit against Pullman and USW, on 
December 9, 1975, the Larkin plaintiffs
filed a class action against Pullman 
alone. The complaint alleged that Pullman 
had excluded blacks from its desirable 
jobs and departments and its salaried 
foremen jobs. On January 20, 1976, the
district court dismissed the Larkin case 
with prejudice, finding "that all issues 
presented by the complaint are presently 
on appeal to the Fifth Circuit Court of 
Appeals in the case of Louis Swint, 
and that plaintiffs herein are included in

21 USW remains in the case only as 
an appellee, because the only issue still 
disputed and involving USW is whether or not the seniority system was bona fide 
rather than intentionally discriminatory. For that reason, the bulk of this opinion 
will refer to Pullman alone.

93a



the putative class of plaintiffs on whose 
behalf said appeal was taken." Larkin v. 
Pullman-Standard Division. Pullman, Inc. 
(Larkin I), No. 75-G-2266-S slip op. at 1 
(N.D.Ala. Jan. 20, 1976), Record, Vol. I,
Tab 4, at 1. The Larkin plaintiffs 
appealed, but the appeal was ultimately 
dismissed for failure to prosecute. 
Larkin v. Pullman-Standard Division, 
Pullman. Inc. (Larkin II) , No. 76-1538, 
slip op. at 1 (5th Cir. Apr. 15, 1976),
Record, Vol. 1, Tab 6, at 1.

Nothing further happened in the 
Larkin case for several years. In June 
1983, however, after this court in Swint 
VIII remanded the Swint litigation to the 
district court, Pullman began urging the 
Swint district court to consider running 
the liability period from a later date, as 
of 1969 rather than 1966. Pullman argued 
that the beginning of the liability period

94a



could be based only on the charge of a 
named plaintiff, i.e., on Louis Swint's 
October 1969 charge. Concerned that such 
a decision would preclude consideration of 
claims that the Larkin court had dismissed 
precisely because they were to be con­
sidered in Swint. the Swint plaintiffs 
moved, in February 1984, to add Spurgeon 
Seals (a Larkin plaintiff who had filed 
his EEOC charge on November 4, 1966) as an 
additional named plaintiff. A motion to 
add all of the Larkin plaintiffs as named 
Swint plaintiffs was filed on June 4, 
1984.

Pullman allegedly22 opposed the 
motions to add the Larkin plaintiffs on 
the ground that Larkin I. which included 
the language, "dismissed with prejudice,"

22 It appears that Pullman did not tile a written response to the plaintiffs7 Notions to add the Larkin plaintiffs, so 
We have been unable to verify that Pullman actually made this argument.

95a



constituted an adjudication on the merits 
that prevented the Larkin plaintiffs from 
pursuing any of their claims against 
Pullman in Swint. The Larkin plaintiffs 
responded by returning to the Larkin court 
and filing a motion for relief from judg­
ment under Fed.R.Civ.P.60(a) or 60(b)(6). 
The plaintiffs asked the court to delete 
the words "with prejudice" from the Larkin 
I order. "[R]eluctant to alter in any way 
an order of judgment which is over eight 
years old," the Larkin court denied the 
motion. Larkin v. Pullman-Standard Divi-. 
sion, Pullman Inc. (Larkin III), No. 75-G- 
2266-S, slip op.at 1 (N.D.Ala., Apr. 16, 
1984), Record, Vol. I, Tab 8, at 1. The 
court made clear, however, that Larkin I 
constituted "no opinion as to the rights 
which these plaintiffs might have as 
unnamed members of the Swint class." Id. 
at 2.

96a



Soon thereafter, without opinion, the 
Swint court denied both of the motions to 
add the Larkin plaintiffs. See Swint v. 
Pullman-Standard. No. CV-71-P-0955-S, slip 
op. (N.D.Ala. Sept.4, 1984). In Swint IX. 
the court explained the grounds for the 
denial: the delay in filing the motions
was unreasonable, permitting the interven­
tion would prejudice Pullman, and the 
Larkin. plaintiffs would not suffer any 
prejudice if not permitted to intervene. 
See Swint IX. slip op. at 3-4. The court 
acknowledged, however, that Larkin I did 
not preclude the Larkin plaintiffs' mem­
bership in the Swint class. See id. at 4.

The Larkin plaintiffs timely appealed 
from the judgment in Larkin III. This 
court stayed the appeal pending the out­
come on remand in Swint. After Swint IX 
and Swint X were appealed, the court 
consolidated the Swint and Larkin cases.

97a



III. The Liability Period 
The first dispute we must resolve 

concerns the date from which Pullman's and 
USW's liability must be measured. With 
respect to the plaintiffs' Title VII 
claims, the district court held that only 
the charge of a named plaintiff could be 
used to start the liability period running 
and that the period would begin 90, rather 
than 180, days before Louis Swint's charge 
was filed. See Swint IX, slip op. at 6. 
With respect to the plaintiffs' section 
1981 claims, the court held that liability 
had to be measured from one year prior to 
the plaintiffs' filing suit, because 
Alabama's one-year, trespass on the case 
statute of limitations was the most appro­
priate to section 1981 claims. See Swint 
X, slip op. at 3? supra note 19.

We will discuss both of these 
holdings separately. In certain cases, it

98a



is necessary only to address whichever 
approach yields the earliest date of 
potential liability. Unfortunately, we 
are unable to do so here. On one of the 
substantive claims - that involving the 
selection of supervisors - the plaintiffs 
appear to have proceeded not on a theory 
of intentional discrimination but on a 
theory of disparate impact. Because 
section 1981 requires a showing of 
intentional discrimination see Stallworth 
v, Shuler. I l l F.2d 1431, 1433 (11th Cir. 
1985), the plaintiffs are potentially 
entitled to relief on this claim only 
under Title VII, and will not be able to 
benefit from the longer liability period 
we adopt for the section 1981 claims.
A. Dating the Title VII Claims

Title VII requires that an employee

99a



file an EEOC charge within 180 days23 of 
an allegedly illegal employment practice 
if he intends to bring a civil suit based 
on that practice. See 42 U.S.C. §2000e- 
5(e)(1982). In addition to operating as a 
statute of limitations, this requirements 
has been interpreted to shield a Title VII 
defendant from damages for any like 
conduct he may have engaged in prior to 
180 days before the filing of a charge.24

On March 24, 1972, Title VII was amended to extend the filing period from 90 days to 180 days. See Equal Employment 
Opportunity Act of 1972, Pub.L. No. 92- 261, §4(a), 86 Stat. 103, 105 (1972)(codi­
fied at 42 U.S.C. §2000e-5(e)(1982). The retroactivity of this amendment will be discussed in connection with the district 
court's backdating Swint's charge 90 rather than 180 days.

24 At first blush, the statement in the text may seem tautologous. It is con­ceivable, however, that, in the continuing 
violation context, a plaintiff could file a charge within 180 days of the violation, 
thereby meeting the statute of limita­tions, and still attempt to recover dam­
ages for harmful effects suffered well before 180 days prior to the EEOC charge. 
In addition, it is important to distin-

100a



See United Air Lines v. Evans. 431 U.S. 
553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d
571 (1977); Fisher v. Proctor & Gamble
Manufacturing Co. . 613 F.2d 527, 540 &
n.25 (5th Cir. 1980) , cert, denied. 449 
U.S. 1115, 101 S.Ct, 929, 66 L.Ed.2d 845
(1981). The issue here involves the 
latter aspect of the 180-day period: 
selecting the appropriate EEOC charge to 
establish the date Pull-man's liability 
commences?

The plaintiffs argue that dating the 
liability period from the first EEOC 
charge complaining of like practices, 
regardless of whether the charge was filed 
by a named plaintiff, is the correct 
approach. They also contend that by

guish the two concepts in class actions, where class members who did not themselves file EEOC charges will be bound, and may be foreclosed from recovery, by the liabi­lity period that someone else's charge creates.
101a



dating Pullman's Title VII liability from 
Louis Swint's October 1969 charge, the 
district court violated the law of the 
case. They point to the court's 1974 
certification of the class, which includ­
ed "all black persons who are now or have 
(within one year prior to the filing of 
any charges under Title VII) been employ­
ed by defendant Company." Record, Vol. 
II, Tab 18 at 1 (emphasis added) . In the 
plaintiffs' view, this constituted a 
holding that liability would be measured 
from Seal's November 1966 charge. The 
plaintiffs also cite the court's dis­
cussion in Swint III, where the court 
assumed that liability should be dated 
from 90 days prior to Commissioner 
Shulman's March 1967 charge. 15 F.E.P. at 
146 n.5. Finally, the plaintiffs direct 
us to the pretrial order entered prior to 
the last trial, in 1984. The district

102a



court there instructed the parties to 
prepare for trial on the assumption that 
the anterior cutoff date would be 180 days 
prior to Seals' EEOC charge. Record, Vol. 
II, Tab 96 at 1; see supra note 25.

The plaintiffs maintain further that 
despite all these suggestions, if not 
holdings, that the liability period would 
be dated from 1966, it was not until 1983 
and the rulings against it in Swint VI 
that Pullman raised any objection to a 
1966 cutoff date. Thus, even if Swint's 
charge should have been the one from which 
liability was dated, Pullman and USW 
waived any objection they might have had. 
To find otherwise, the plaintiffs contend, 
would be especially inequitable given the 
decision in Larkin I that the Larkin 
plaintiffs' claims were precluded because 
they were adequately covered by the Swint 
litigation: the Larkin court surely would

103a



not have so decided had it been aware that 
three years of the plaintiffs' claims were 
going to be severed from Swint on the 
fourth trial of the case.

Pullman asserts that the plaintiffs' 
representation of the district court's 
decisions is inaccurate and that none of 
the district court's discussions consti­
tuted a holding on the liability period. 
As a result, the law of the case did not 
preclude the district court's setting the 
July 17, 1969 date, and under Kilgo v. 
Bowman Transportation Inc.. 789 F.2d 859 
(11th Cir. 1986), and Pavne v. Travenol 
Laboratories. 673 F.2d 798 (5th Cir.),
c e r t .__denied, 459 U.S. 1038, 103 S.Ct.
451, 74 L. Ed. 2d 605 (1982), a Title VII 
liability period can be dated only from a 
Haffled— plaintiff's charge. Pullman also 
insists that the standing principles 
enunciated in General Telephone Co. of the

104a



Southwest v. Falcon, 457 U.S. 147, 102 
S.Ct. 2364, 72 L.Ed.2d 740 (1982), dictate 
that a named plaintiff cannot represent 
class members on claims that accrued 
before his own.

We hold that the district court erred 
in dating Pullman's potential liability 
from 90 days prior to Swint's EEOC charge. 
The circumstances of this case, when 
combined with Title VII's role as remedial 
legislation, convince us that the district 
court improperly narrowed the Saint liti­
gation after the fourth trial of the case. 
Pullman's potential Title VII liability 
should have been dated from September 28, 
1966, 180 days prior to Commissioner 
Shulman's charge alleging that Pullman had 
discriminated in its hiring and promotion­
al practices.

It is apparent that Pullman waived 
any objection it might have had to such a

105a



date. The district court discussed the 
case from the very beginning as if Pull­
man's potential liability might be dated 
from 1966. Due to its various disposi­
tions of the case, the district court 
stopped short of so holding; for that 
reason, the law of the case does not 
require us to accept a 1966 date. See 
Signal Oil & Gas Co. v. Barge W-701, 654
F. 2d 1164, 1169 (5th Cir. Unit A Sept.
1981)("law of the case does not operate to 
bar subsequent consideration of matters 
that could have been, but were not raised 
and resolved in the earlier proceeding"), 
cert, denied. 455 U.S. 944,102 S.Ct. 1441, 
71 L.Ed.2d 656 (1982); see also Robinson
v. Parrish. 720 F.2d 1548, 1550 (11th Cir. 
1983)(district court need not rigidly 
adhere to its own rulings in an earlier 
stage of a case") . Even so, the 18 0 day 
filing requirement, "like a statute of

106a



limitations, is subject to waiver, estop­
pel, and equitable tolling." Zioes v. 
Trans World Airlines, Inc.. 455 U.S. 385, 
393, 102 S.Ct. 1127,1132, 71 L.Ed.2d 234 
(1982). Insofar as the liability periods 
simply the inverse of the filing require­
ment, it too must be subject to waiver and 
estoppel. By failing before 1983 to raise 
any objection to the numerous suggestions 
that 1966 might be set as the anterior 
cutoff date for its liability, as well as 
arguing in the Larkin case that the Larkin 
plaintiffs7 claims - which indisputable 
dated back to 1966 - were being litigated 
in the Swint case, Pullman waived any 
objection it might otherwise have had.25

There is a strategic reason why a  ̂class action defendant might waive 
objections to the size or inclusiveness of a class: a favorable decision against an 
all-inclusive class of plaintiffs will in many instances bar further suits.

107a



In any event, in this case dating 
liability from 1966 is the most appro­
priate and logical holding. In consider­
ing this issue, it is important to look at 
the purposes of the 180-day filing re­
quirement, insofar as that requirement 
dictates the liability period. It is 
well-established that potential plaintiffs 
are required to file an EEOC charge within 
180 days of an allegedly illegal act or 
practice so that employers will be given 
prompt notice of the complaints against 
them, and the EEOC sufficient time to 
attempt the conciliation process before a 
civil action is filed. See Zines v. Trans 
World Airlines. Inc.. 455 U.S. at 398, 102 
S.Ct. at 1135; Kiloo v. Bowman Transporta­
tion, Inc. . 789 F. 2d at 877; Crawford v.
United States Steel Coro.. 660 F.2d 663,
666 (5th Cir. Unit B Nov. 1981). Neither 
of these purposes would be defeated by

108a



permitting the charge of the Commission to 
establish the temporal scope of this 
action. Spurgeon Seals filed an EEOC 
charge in November 1966 complaining that 
the seniority system was being misapplied 
on account of his race, and less than six 
months later, an EEOC Commissioner filed a 
charge launching a broad-based challenge 
to Pullman's hiring and promotional prac­
tices. By the time Louis Swint filed his 
1969 charge, Pullman was well aware that 
its hiring and promotional practices were 
under scrutiny, and the EEOC had been 
given ample time to attempt conciliation. 
To ignore this and restrict Pullman's 
liability to 180 days prior to Swint's 
charge would be nothing more than a tech­
nical reading of Title VII, which is 
"particularly inappropriate in a statutory 
scheme in which laymen, unassisted by 
trained lawyers, initiate the process."

109a



Love v. Pullman Co.. 404 U.S. 522, 527, 92
S.Ct. 616, 619, 30 L.Ed.2d 679 (1972).

Indeed, one case from this circuit 
(cited, oddly, by Pullman) has already 
held that, in appropriate circumstances, 
liability may be dated from the EEOC's 
charge of a person other than one of the 
named plaintiffs.26 In Kilgo v. Bowman 
Transportation. Inc.. Edna Kilgo, who had 
filed an EEOC charge earlier than any 
other member of the class, died before the 
class was certified. Her husband was

The Seventh Circuit and several district courts have so decided as well. See McDonald v. United Airlines. 587 F.2d 
357, 361 (7th Cir. 1978) (liability couldbe dated from charge filed by two class members who were not named plaintiffs where their charges gave the employer 
sufficient notice that certain practices 
were challenged), cert, denied. 442 U.S. 
934, 99 S.Ct. 2869, 61 L.Ed.2d 303 (1979); 
Allen v. Isaac. 99 F.R.D. 45, 50 (N.D.I11. 
19 8 3) ; Williamson v. Bethlehem Steel 
Corp., 488 F.Supp. 827, 830-35 (W.D.N.Y.
1980) / Petty v. Peoples Gas Light & Coke 
Co., 86 F.R.D. 336, 342 N.D.I11. 1979);see__also Inda v. United Airlines. 83F.R.D. 1, 7-8 (N.D.Cal. 1979).

110a



permitted to substitute for her as a class 
member, but was found an inadequate class 
representative to serve as a named plain­
tiff. After concluding that the purposes 
of the 180-day filing requirement had been 
met by Kilgo's charge - the employer had 
notice of the claim and the EEOC was given 
an opportunity to settle the grievance- 
this court held that the date of her EEOC 
filing could be used to determine the 
temporal scope of the action. See Kilao. 
789 F.2d at877. Not only was this result 
fair to the employer, in that it turned on 
his receiving adequate notice, but it 
advanced judicial economy by ensuring that 
all the claims of employees discrimi­
nated against in similar fashion were 
heard in a single action.27 The same can

27 To insist that liability be dated only from a named plaintiff's charge would essentially force whomever in a 
class of employees filed the earliest EEOC charge to do one of three things: act as

111a



be said of our decision to permit the
charge of a non-named plaintiff to estab-

• 2 8lish the temporal scope of the action.
Pullman asserts that General_Tele­

phone Co. of the Southwest v. Falcon, 457 
U.S. at 147, 102 S.Ct. at 2364, 72 L.Ed.2d 
at 740, prevents using a non-named plain­
tiff's charge to date liability. In 
Falcon, the Supreme Court held that a 28

the class representative, file a separate 
action covering the period of time that would not be covered by the class suit, or give up altogether a portion of his claim. Noting that there are many reasons a class 
member might not wish to be able to act as his class' representative, we reject the 
opportunity to fashion a per se rule that 
would have this effect.

28 We do not, of course, address the situation when a class member files an EEOC charge and receives a right-to-sue letter, and then no suit is filed within 
the period specified by the letter. The 
situation here is quite different. The 
charges filed by the Larkin plaintiffs and 
Commissioner Shulman were still pending 
before the Commission when Swint filed suit, so there was no indication that those who filed the earliest charges in­
tended to abandon their causes of action.

112a



person who has not himself suffered a 
particular type of discrimination does not 
have Rule 23(a) standing to bring a class 
action for those who have, simply because 
he and the class have both suffered forms 
of racial discrimination. See id. at 158, 
102 S.Ct. at 2371. Pullman apparently 
reasons from this that a class representa­
tive also cannot represent class members 
on portions of their claims for which the 
representative would not, due to the 18 0- 
day filing requirement, have been able to 
sue; reasoning backward from this propo­
sition, Pullman concludes that liability 
must be dated from the named plaintiff's 
charge. The company also argues that it 
could not have waived any objections to a 
1966 date because standing is a jurisdic­
tional and thus non-waivable issue.

We do not agree. First, the Court 
made clear in Falcon that its decision was

113a



based on the commonality and typicality 
requirements of Fed.R.Civ.P. 23(a), and 
there is no reference in the opinion to 
the constitutional requirement of stand­
ing.^® See id. at 160, 102 S.Ct.at 2372
("The District Court's error in this case, 
and the error inherent in the across-the- 
board rule, is the failure to evaluate 
carefully the legitimacy of the plain­
tiff's plea that he is a proper class 
representative under Rule 23(a)."). Be­
cause Rule 23's requirements have never

Indeed, the word "standing" appears only one time in the entire 
opinion, in a footnote: "The mere fact
that an aggrieved private plaintiff is a member of an identifiable class of persons 
of the same race or national origin is 
insufficient to establish his standing to litigate on their behalf all possible 
claims of discrimination against a common employer." Falcon. 457 U.S. at 159 n.15, 102 S.Ct. at 2371 n.15. We do not read 
this statement as a reference to consti­tutional, jurisdictional standing.

114a



been regarded a jurisdictional,30 
Pullman's argument that it cannot have 
waived any objections to a 1966 date is 
without merit. See e.q Reynolds v. Sheet 
Metal Workers. Local 102, 702 F.2d 221,
224 (D.C.Cir. 1981)("[a] claim that the 
district court erred in its class certi­
fication decision does not go to the 
court's subject matter jurisdiction"); 
Harris v. Palm Springs Alpine Estates. 
Inc.. 329 F.2d 909, 912-13 (9th Cir.
1964)(the requirements of Federal Rule 
23(a) are not jurisdictional). This seems

30 The Supreme Court has recogniz­
ed that the Congress that enacted Federal Rule 23 was advised that it would neither 
expand nor constrict subject matter 
jurisdiction. See Snyder v. Harris. 394 
U.S. 332, 341, 89 S.Ct. 1053, 1059, 22 
L.Ed.2d 319 (1969). It follows that the 
requirements of Rule 23 are not jurisdic­
tional requirements that cannot be waived. See also Franks v. Bowman Transportation 
Co., 424 U.S. 747, 752-57, 96 S.Ct. 1251, 
1258-60, 47 L.Ed.2d 444 (1976)(class retains standing despite mooting of named 
plaintiff's Title VII claim).

115a



all the more apparent when one remembers 
that the liability period derives directly 
from the 180-day filing requirement, which 
the Supreme Court has expressly held is in 
the nature of a statute of limitations and 
waivable. See Zipes v. Trans World Air­
lines , Inc.. 455 U.S. at 398, 102 S.Ct. at 
1135.

Second, even if we were to read 
Falcon as a case involving a jurisdic­
tional type of standing, it does not 
necessarily follow from a requirement that 
a named plaintiff have suffered the same 
type of injury as those he represents that 
he is also required to have suffered it 
(and filed an EEOC charge) at precisely 
the same time. Cf. Domingo v. New England
High Co. , 727 F. 2d 1429, 1442 (9th Cir.
1984)(named plaintiff may represent all 
class members whose claims were not 
already time-barred at the time he filed

116a



his charge); Spalitta v. National American 
Bank of New Orleans, 444 F.2d 291, 294 
(5th Cir.)(named plaintiff could represent 
stockholders on certain fraud claims even 
if the frauds did not occur while the 
plaintiff was a stockholder), cert, 
denied. 404 U.S. 883, 92 S.Ct. 212, 30 
L.Ed.2d 164 (1971). The commonality and 
typicality requirements of Federal Rule 
23(a) are phrased in substantive terms: a 
party may sue on behalf of a class only if 
"(2) there are questions of law or fact 
common to the class, [and] (3) the claims 
or defenses of the representative parties 
are typical of the claims ' or defenses of 
the class." Fed.R.Civ.P. 23(a)(2), (3). A 
disparity in the forms of discrimination 
suffered will cause the questions of law 
and fact and the claims and defenses of 
the named plaintiff and the class members 
to be different. In contrast, a disparity

117a



in the dates on which the named plaintiff 
and other class members filed EEOC charges 
does not mean that the legal questions or 
the claims will be different.

Our holdings that Pullman waived any 
objection to a 1966 date and that a non- 
named plaintiff's charge may govern do no 
end our inquiry. We must still deter- 
^in® which of the EEOC charges could give 
rise to the class claims that were ulti­
mately brought. Unless a charge alleges 
P^^ctices "like or related to" the prac­
tices alleged in the complaint, it cannot 
serve as the basis for a civil action.

Evans v.— U.S.- Pipe & Foundry Cn. , 696 
F.2d 925, 928 (11th Cir. 1983); Sanchez v.
Standard Brands,_Inc., 431 F.2d 455, 466
(5th Cir. 1970) . The Supreme Court has 
elaborated on this "like or related to" 
test: "Any violations that the EEOC ascer­
tains in the course of a reasonable inves-

118a



tigation of the charging party's complaint
are actionable." General Telephone Co. v. 
EEOC. 446 U.S. 318, 331, 100 S. Ct. 1698, 
1706, 64 L.Ed.2d 319 (1980).

Having considered these principles, 
we conclude that Commissioner Shulman's 
March 1967 charge is the earliest charge 
including allegations sufficiently like or 
related to those in the complaint.31 The 
charge alleged that Pullman had discrimi­

The plaintiffs' brief to this court suggests that Spurgeon Seals' November 1966 charge could be used to date 
the liability period. On June 6, 1983,
the plaintiffs filed a motion expressly asking the district court to date 
Pullman's liability from Commissioner's Shulman's March 1967 charge. In light of 
the numerous allegations already in the case that given arguments have been waiv­ed or are foreclosed by the law of the 
case, we find the plaintiffs' failure to 
acknowledge that they made this argument 
very irritating. In any event, we are not 
convinced that Seals' charge was suffi­
ciently like or related to the charges in 
Swint's complaint. It alleged that the 
seniority system was discriminatorily misapplied, not that the seniority or 
assignment systems were in themselves discriminatory.

119a



nated in its hiring and promotional prac­
tices. The investigation that followed 
addressed every practice that would 
ultimately be challenged in Swint's 
complaint: initial assignments to depart­
ments and jobs, temporary assignments, 
opportunities for training, promotions, 
the seniority system, and the selection of 
supervisors. Pullman thus received more 
than sufficient notice that several of its 
plantwide policies and practices were 
under attack.

P u l l m a n  a r g u e s  t h a t  the 
Commissioner's charge cannot be used as a 
basis for Swint's suit because certain 
statutory requirements were not met. The 
language on which the Company relies is as 
follows:

If a charge filed with the Commission 
pursuant to subsection (b) of this 
section is dismissed by the Commis­
sion, or if within one hundred and eighty days from the filing of such 
charge or the expiration of any

120a



period of reference under subsection 
(d) of this section, whichever is later, the Commission has not filed a 
civil action under this section, 
whichever is later, the Commission 
has not filed a civil action under 
this section . . . , or the Commission has not entered into a conciliation agreement to which the person 
aggrieved is a party, the Commission 
••• shall so notify the person aggrieved and within ninety days 
after the giving of such notice a civil action may be brought against 
the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful 
employment practice.

42 U.S.C. §2000e—5(f)(1) (1982) (emphasis 
added). Directing us to the emphasized 
language, the company complains that Swint 
was not named in the charge and that the 
Commission did not issue Swint a right-to- 
sue letter in connection with the proceed­
ing involving the Commissioner/s charge. 
We reject this argument for several 
reasons. First, Pullman presents this 
challenge for the first time on appeal and

121a



we can perceive no miscarriage of justice 
that might result from following the 
general rule that such challenges will not 
be considered. See Sanders v .— United 
States. 740 F.2d 886, 888 (11th Cir.1984); 
Roofing & Sheet Metal Services. Inc, v. La 
Quinta Motor Inns. Inc.. 689 F.2d 982, 
989-90 (11th Cir. 1982). Pullman had
adequate opportunity to raise these 
arguments before the district court, 
especially after the plaintiffs filed a 
specific written request that the court 
date liability from the Commissioner's 
charge. Second, Pullman's claim that 
Swint had to be expressly named in the 
Commissioner's charge to qualify as an 
"aggrieved" individual under the statute 
is specious. The statute expresses a 
clear congressional intent that private 
suits be permitted to proceed on Commis­
sioner's charges. Pullman's interpreta­

122a



tion conflicts with that intent because it 
would essentially prohibit suits where a 
Commissioner acts on behalf of a class so 
large - such as "black employees of 
Pullman-Standard's Bessemer, Alabama 
plant" - that every member cannot be 
named. Finally, assuming without deciding 
that the statute required Swint to obtain 
a separate right-to-sue letter in connec­
tion with the Commissioner's charge - he 
did obtain one in connection with his own 
EEOC charge - any such defect was cured 
when the plaintiffs introduced the EEOC 
decision concerning the Commissioner's 
charge into evidence. See Pinkard v. 
Pullman-Standard. 678 F.2d 1211, 1219 
(11th Cir. 1982)("the receipt of a right- 
to-sue letter subsequent to the commence­
ment of a Title VII action, but while the 
action remains pending, satisfies the 
precondition that a plaintiff obtain

123a



statutory notice of the right to sue 
before filing a civil action"), cert, 
denied. 459 U.S. 1105, 103 S.Ct. 729, 74
L.Ed.2d 954 (1983). It is well-settled
that the requirement that a plaintiff 
receive a right-to-sue letter is subject 
to equitable modification. See id. at 
1218-19. It is also clear that the 
purpose of the requirement is to provide 
the employee with notice that his 
administrative remedies with the 
Commission have been exhausted, see 
Beverly v. Lone Star Lead Construction 
Corp., 437 F.2d 1136, 1140 (5th Cir.
1971) , and in turn ensure that the 
employee has given the EEOC time to take 
action on the case. The EEOC's written 
decision finding that there was reasonable 
cause to believe that Pullman had violated 
Title VII served this purpose as well as 
any right-to-sue letter would have.

124a



Pullman's potential liability on the 
plaintiffs' Title VII claims dates from 
September 28, 1966, 180 days prior to
Commissioner Shulman's charge. At the 
time the Commissioner's charge was filed 
the period within which a charge had to be 
filed - and thus the liability period- 
was 90 days, see 42 U.S.C. §2000e-5(e) 
(197 0) , but an amendment to Title VII in 
1972 increased the period to 180 days. 
The amending legislation stated that it 
was to apply to anyone whose charges were 
pending before the Commission when the 
legislation was passed. See Equal Employ­
ment Opportunity Act of 1972, Pub.L. No. 
92-261, §14, 86 Stat. 103, 113. The
amendment was enacted on March 24, 1972,
and the Commission's final decision on 
Commissioner Shulman's charge issued on 
April 26, 1972. Shulman's charge should

125a



thus be backdated 180, rather than 90, 
days.
B. Dating the Section 1981 Claims

Although section 1981 provides a 
federal cause of action, claims under it 
must be brought within the period set by 
the most appropriate statute of limita­
tions of the state in which the court 
sits. Johnson v. Railway Express Agency, 
Inc. . 421 U.S. 454, 462, 95 S.Ct. 1716, 
1721, 44 L.Ed.2d 295 (1975); Whatlev V.
Department of Education. 673 F.2d 873, 874 
(5th Cir.1982). The length of the statute 
of limitations will in turn establish how 
far back from the filing of the complaint 
the liability period will reach. See 
Bernard v. Gulf Oil Co. . 596 F.2d 1249,
1255 (5th Cir. 1979), aff'd on rehearing.. 
619 F. 2d 459, 463 (5th Cir. 1980), affjd
on other grounds. 452 U.S. 89, 101 S.Ct. 
2193, 68 L.Ed.2d 693 (1981). Since the

126a



racial discrimination section 1981 prohi­
bits is "a fundamental injury, to the 
individual rights of a person," the appli­
cable statute of limitations will be one 
governing personal injury as opposed to 
contract, actions. Goodman v. Lukens
Steel Co. . __  U.S. ____, ____, 107 S.Ct.
2617, 2621, 96 L.Ed.2d 572 (1987); see 
also Wilson v. Garcia. 471 U.S. 261, 275, 
105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 
(1985)(section 1983 actions should be 
treated as if for personal injury) . The 
problem here is that when Swint filed 
suit, Alabama had two statutes of limita­
tions that applied to personal injury 
actions. Section 6-2-34(1) provided that 
"[ajctions for any trespass to person or 
liberty" must be brought within six years. 
Ala.Code §6-2-34(1) (1977). Section 6-2- 
39(a)(5) provided that"[a]ctions for any 
injury to the person or rights of another

127a



not arising from contract" must be brought 
within one year. Id. §6-2-39(a)(5)(re­
pealed 1984) .

The plaintiffs argue that the six- 
year statute, section 6-2-34(1), applies. 
They cite this court's 1985 decision in 
Jones v. Preuit & Maudlin. 763 F.2d 1250, 
1256 (11th Cir. 1985) , that the six-year 
statute applies to section 1983 claims. 
They then rely on Goodman v. Lukens Steel. 
107 S.Ct. at 2621, for the proposition 
that the same statute of limitations 
should be applied to section 1981 actions 
as is applied to those under section 1983.

Pullman insists that the one-year 
statute, section 6-2-39(a)(5) applies. 
The company likens this employment 
discrimination case to a tort action for 
interference with contractual relations 
and cites Alabama cases holding that such 
actions are governed by section 6-2-39(a)

128a



Tena v. Saha. 477 So.2d(5) . See . e.g, ,
378, 379 (Ala. 1985). Pullman also con­
tends that even if we now deem the six- 
year statute applicable, presumably on the 
authority of recent cases, those cases 
should not be applied retroactively be­
cause the company has relied throughout 
the litigation on the one-year period.

We agree with the plaintiffs that the 
six-year statute should be applied. Good­
man directs us to adopt the same state 
statute of limitations for both section 
1983 and section 1981 actions, and the 
court has already adopted the six-year 
statute for section 1983 claims brought in 
Alabama. See Jones v. Preuit & Maudlin. 
763 F.2d at 1256. We also conclude that 
retroactive application of the six-year 
statute is appropriate on the facts of 
this case.

129a



Supreme Court held that the employees 
section 1981 action was subject to 
Pennsylvania's two year statute of 
limitations governing personal injury 
actions. The employees had argued that 
the six-year state statute of limitations 
applicable to interference with 
contractual relations was the most 
appropriate. See id. The employees 
recognized that, under Wilson v. Garcia. 
471 U.S. at 268, 105 S.Ct. at 1943,
section 1983 actions were to be treated as 
personal injury actions, but they argued 
that section 1981 actions should be 
characterized differently under federal 
law because the paradigmatic section 1981 
claim involved economic, rather than per­
sonal, rights. See Goodman. 107 S.Ct. at 
2621. The Court disagreed. Justice White 
writing for the Court, stated:

In Goodman. 107 S.Ct. at 2621, the

130a



Wilson's characterization of §1983 claims is ... equally appropriate 
here, particularly since §1983 would reach state action that encroaches on the rights protected by $1981. That 
§1981 has far-reaching economic consequences does not change this 
conclusion, since such impact flows 
from guaranteeing the personal right to engage in economically signifi­
cant activity free from racially discriminatory interference.

Id. (emphasis added). We are convinced 
from this language that the Court intended 
that the same statute of limitations be 
applied to all section 1983 and section 
1981 actions in a given state. The 
Court's reference to the overlap between 
the two civil rights statutes suggests 
that it would not approve a characteriza­
tion of section 1983 claims as one type of 
personal injury and a characterization of 
section 1981 claims as another type of 
personal injury.

We are additionally persuaded that 
this conclusion is correct by the history 
°f Goodman before it reached the Supreme

131a



Court. The Third Circuit had taken the
case under en banc consideration, and had 
concluded not only that the employees' 
claims were governed by Pennsylvania's 
general personal injury statute of limita­
tions, but that the federal interests in 
uniformity and certainty were "best served 
by applying the same statute of 
limitations to all of the Reconstruction 
Civil Rights Cases." Goodman v. Lukens
Steel_Corp. . 777 F.2d 113, 120 (3d Cir.
1985) . in affirming, the Supreme Court 
apparently was not troubled by the latter 
proposition. Justice White stated flatly" 
"The Court of Appeals properly rejected 
[the plaintiffs'] submission." Goodman v. 
Lukens Steel, 107 S.Ct. at 2621.

Even without the language in Goodman. 
we would consider this a sound result as a 
policy matter. In Wilson v. Garcia, the 
Court recognized that, although section

132a



1988 mandates reference to state law when 
choosing a statute of limitations in a 
civil rights action, "federal interests in 
uniformity, certainty, and the minimiza­
tion of unnecessary litigation" dictate 
that the same statute of limitations be 
applied to all section 1983 actions in a 
given state. 471 U.S. at 275, 105 S.Ct. at 
1947. These same interests are implicated 
when the choice is whether to apply one 
statute of limitation to a section 1983 
claim and another statute to a section 
1981 claim, particularly since both types 
of claims are often brought together in a 
single action. See Goodman v. Lukens 
Steel Coro. . 777 F.2d 113, 120 (3d Cir. 
1985)("Application of Pennsylvania's six 
year statute of limitations where the same 
claim [as it brought under section 1983] 
is brought under §1981 would lead to a 
bizarre result."), aff'd. __  U.S. ___ ,

133a



accord Friedlander v. Troutman, Sanders. 
Lockerman & Ashmore. 788 F.2d 1500, 1503
n.2 (11th Cir. 1986)(dictum)("The same
single limitations period should apply to 
§1981 claims [as applies to §1983 
claims]."). Applying a single limitations 
period to section 1981 and section 1983 
claims should make it easier for civil 
rights plaintiffs in Alabama to determine 
the dates by which they must assert their 
rights, and will prevent excessive litiga­
tion when both a private (section 1981) 
defendant and a government (section 1983) 
defendant are involved.

In view of our holding that the same 
state limitations period applies to both 
section 1981 and section 1983 claims, and 
in view of this court's earlier decision 
that section 1983 claims in Alabama are 
governed by the state's six-year personal

107 S.Ct. 2617, 96 L.Ed.2d 572 (1987);

134a



injury statute, see Jones v. Preuit__&
Mauldin. 763 F.2d at 1256, Pullman's 
liability on the plaintiffs' section 1981 
claims should be dated from October 19, 
1965, six years prior to the filing of 
Swint's complaint. We recognize that this 
decision conflicts with earlier circuit 
decisions in Dumas v. Town of Mount 
Vernon. 612 F.2d 974, 977 (5th Cir. 1980), 
Ingram v. Steven Robert Corn.. 547 F.2d
1260, 1263 (5th Cir. 1977), and Buckner v. 
Goodyear Tire & Rubber Co. , 3 39 F.Supp.
1108 (N.D.Ala. 1972), but it seems plain 
that the Supreme Court's decisions in 
Wilson and Goodman discussing the nature 
of section 1983 and section 1981 claims 
have rendered the analysis of those 
earlier cases obsolete. When the 
rationale of our earlier cases is 
substantially undercut, we are not only 
free but required to revisit the issue

135a



involved. See Leach v. Pan American World
Airways. 842 F.2d 285, 286, 288 (11th Cir. 
1988); Gresham Park Community Organization 
v. Howell. 652 F.2d 1227, 1234-35 (5th
Cir. Unit B Aug. 1981).

Pullman insists that, notwith­
standing our holding today that the six- 
year statute applies, our decision should 
not be applied retroactively. In Chevron 
Oil Co. v. Huson. 404 U.S. 97, 92 S.Ct.
349, 30 L.Ed.2d 296 (1971), the Supreme
Court held that although retroactive 
application of judicial decisions was the 
general rule, three factors must be con­
sidered in determining whether it is 
proper in a given case: (1) whether the
new limitations period has been occasioned 
by a change in the substantive law the 
purpose of which would not be served by 
retroactivity; (2) whether the decision 
overruled clear past precedent on which

136a



the complaining party was entitled to 
rely; and (3) whether retroactive appli­
cation would be equitable. Id. at 106-07, 
92 S.Ct. at 355. Pullman makes no
argument with respect to the first factor, 
and admits, with respect to the second 
factor, that there was no clear precedent 
establishing a one-year limitation period 
in Alabama until Buckner v. Goodyear Tire 
& Rubber Co. . 476 F.2d at 1287, came out
in 1973, over a year after the complaint 
was filed. The company argues, however, 
that the strength of the third Huson 
factor dictates that Wilson and Goodman 
not be applied retroactively. According 
to Pullman, it would be inequitable to 
apply the six-year statute given that the 
company has relied on the one-year statute 
for so long.

Under the circumstances, this argu­
ment is more than slightly ironic, and we

137a



reject it. First, it cannot be said that 
any aspect of the liability period- 
either the appropriate section 1981 sta­
tute of limitations or the relevant EEOC 
charge - was every clarified, in those 
terms. Indeed, if anything regarding the 
period was made clear, it was that liabi­
lity would be dated from sometime in 
1966,32 see infra part IIIB, only a few

Pullman makes a rather remark­
able argument that the six-year statute cannot be applied, because the final 
pretrial order of September 19, 1983 "defined the scope of the action and anterior cut-off date in such a way as to 
be clearly inconsistent with a six-year 
statute," and the company prepared for trial on that basis. Brief of Defendant- 
Appellee Pullman-Standard at 61 (Sept. 8, 1987). Apart from the fact that the pre­trial order to which Pullman refers did not address the section 1981, as opposed to the Title VII, statute of limitations, 
the order specifically instructed the 
company to prepare for a period dating from May 4, 1966, only six and one-half 
months short of the six years.

The court has not decided the issue 
of which EEOC charge will control. Plaintiffs indicated that a charge 
was filed against the Company by one

138a



months after the October 19, 1965 date the 
six-year statute would prescribe.

Second, assuming that the class 
definition was the district court's 
indication of the appropriate section 1981 
statute of limitations, it must be 
acknowledged that the definition read "all 
black persons who are now or have (within 
one year prior to the filing of any

Spurgeon Seals, a member of the plaintiff class, on October 30, 1966, and that this charge was still pend­ing on March 24, 1972. This court has not decided whether, absent 
amendment of the complaint to add Seals as a named plaintiff, his 
charge is fully transferable to the class. But for the purposes of trial 
preparation. counsel should assume 
that the anterior cutoff date is 180 days prior to October 30, 1966.

Record, Vol. II, Tab 96 at 1 (emphasis 
added). Perhaps this is why Pullman prepared exhibits relating not only to the 
1969-1974 period, as its brief to this court suggests, but also to the 1964-1969 
period, as the district court's order makes quite clear. See Swint IX. slip op. 
at 12. In any event, we find that Pullman 
did not meaningfully rely on any holding 
that the one-year statute was applicable.

139a



charges under Title VII) been employed by
defendant Company." Record, Vol. II, Tab 
18 at 1 (emphasis added). The emphasized 
language reflects the district court's 
reliance on then-prevailing law holding 
that an EEOC charge tolled the applicable 
section 1981 statute of limitations. See 
Johnson v. Goodyear Tire & Rubber Co., 491 
F. 2d 1364, 1378 (5th Cir. 1974) (decided 
March 27, 1974, two months before the 
district court's certification of the 
class); Boudreaux v. Baton Rouge Marine 
Contracting Co.. 437 F.2d 1011, 1017 n.16 
(5th Cir. 1971) . That principle stood 
until the Supreme Court overruled it in 
Johnson v. Railway Express. Inc., 421 U.S. 
454, 465, 95 S.Ct. 1716, 1722, 44 L.Ed.2d 
295 (1975). Thus by arguing that we 
should apply Alabama's one-year statute of 
limitations and run it backward from the 
date of the complaint (rather than any

140a



EEOC charge, as the class certification 
suggests),33 Pullman essentially urges us 
to apply only Johnson, the case in its 
favor, retroactively.

We decline to do so. Nothing 
definite was said about the liability 
period until the district court's 1986 
decisions in Swint IX and Swint X. and 
neither side has demonstrated that it 
adopted a prejudicial positions in re­
liance on the law prevailing prior to the 
Johnson, Wilson. and Goodman decisions. 
Indeed, when Pullman filed its original

It might be possible for the one-year statute to be applied but run 
backward from the Commissioner's EEOC charge, but Pullman appears to find any 
compromise on this score unacceptable. The discussion in its brief of the liability period is entitled, "The Court 
Below Correctly Held that All Liability for Periods Before July 17, 1969 Is
Barred," and the company makes no mention 
of the fact that such a finding would 
require us to apply Johnson v. Railway Express retroactively.

141a



answer, it pled the six-vear statute.34 
When the law was clarified in 1973, 
dictating that the one-year statute should 
be applied, Pullman did not move for leave 
to amend its answer, and we find nothing 
else in the record to support the district 
court's apparent shift to the one-year 
statute in the pretrial class certifica­
tion. Under most circumstances, this 
failure to replead would constitute a 
waiver of the shorter statute. See. e.a.. 
Paetz v.United States. 795 F.2d 1533, 1536 
(11th Cir. 1986); Johnson-Manville Sales 
Corp. v. Mitchell Enterprises. Inc., 417 
F.2d 129, 131 (5th Cir. 1969). We find it 
necessary, however, to go that far: suf­

Pullman's answer read: "Thisdefendant avers that the applicable 
statutes of limitations, Alabama Code, Title 7, Sections 21 and 22, bar all claims made in the complaint, based on 42 U.S.C.A., Section 1981, arising more thansix_years prior to the filing of thecomplaint.11 Record, Vol. I, Tab 5 at 11 (emphasis added).

142a



fice it to say that Pullman cannot claim 
for retroactivity purposes that it relied 
on the one-year statute.

In sum, the most equitable result is 
to apply retroactively all of the Supreme 
Court decisions pertaining to the liabi­
lity period. Cf. Zenith Radio Corp. v. 
Hazeltine Research. Inc.. 401 U.S. 321, 
335, 91 S.Ct. 795, 804, 28 L.Ed.2d 77 
(1971)(interests of justice required that 
if counter defendant's belated limitation 
defense was to be considered on its merits 
then counter-claimant's belated tolling 
argument must be dealt with as well) . 
Alabama's six-year statute of limitations 
should therefore be applied, and Pullman's 
potential liability should be dated from 
October 19, 1965, six years prior to the 
filing of Swint's complaint.35

35 As indicated earlier, this ruling will apply only to the plaintiffs' 
claim of discrimination in initial assign­

143a



IV. Departmental Assignments 
Both Pullman and the plaintiffs have 

appealed certain aspects of the district 
court's decision that Pullman's depart­
mental assignments of new hires were 
racially discriminatory. Pullman com­
plains that the departmental assignments 
of new hires were never in the case as an 
independent issue, and, relatedly, that 
Louis Swint has no standing to represent 
the class on the issue because he was 
hired prior to the effective date of Title 
VII. The plaintiffs contend that the 
district court's finding that all discri­
mination in assignments ended by February 
1969 was in error. We will address these 
arguments in turn.

ments, as section 1981 requires proof of 
intentional discrimination, and the plain­tiffs succeeded on their claim concerning the selection of supervisors only on a 
disparate impact, and thus Title VII, basis.

144a



A. Departmental Assignments as an
Independent Issue
Pullman argues that the evidence 

pertaining to the departmental assignments 
of new hires came into the case only as 
circumstantial evidence that the 
nontransferable seniority system was 
intended to lock blacks into the depart­
ments with consistently lower JC-level 
jobs. In Pullman's view, this means that 
the plaintiffs are not entitled to relief 
on the assignments as a separate claim. 
We disagree.

The plaintiffs here alleged that they 
had worked for the company for years 
without the upward mobility of younger, 
less senior whites in other departments. 
They attributed this disparity primarily 
to the seniority system, reasoning that 
the departmental-only seniority had the 
effect of locking blacks into the low- 
ceiling and often segregated departments

145a



to which they were assigned on a discrimi­
natory basis prior to the enactment of 
Title VII. When the suit was filed, the 
Supreme Court had not yet decided 
Teamsters. and the plaintiffs had to show 
only that a seniority system perpetuated 
past discrimination— here, the departmen­
tal assignments of new hires— to prove 
that it was not bona fide. In the course 
of trying to prove this, it became 
apparent that the discriminatory depart­
mental assignments did not end with the 
enactment of Title VII. Pullman would 
have us ignore this fact because, as the 
case was first conceived, discriminatory 
departmental assignments were merely an 
element of the larger claim that the non- 
transferable seniority system was discri­
minatory and were not cast as an indepen­
dent claim.

146a



For two reasons, we decline to 
construe the plaintiffs' case so narrowly. 
First, precisely because the issue of 
departmental assignments was at all points 
integral to the plaintiffs' attack on the 
seniority system, Pullman has had full 
opportunity throughout the proceeding to 
defend against the plaintiffs' claim that 
the assignments were discriminatory. The 
company does not claim otherwise. Second, 
a rule requiring plaintiffs to identify 
precisely what has caused the disparity in 
their treatment, and to suffer the loss of 
a claim should they be ignorant of hidden 
practices or mistaken in their emphasis, 
would lead us away from the truth, not 
toward it. In Griffin v. Carlin. 755 F.2d 
1516, 1525 (11th Cir. 1985), for example, 
the plaintiffs levied a general challenge 
to their employer's promotional practices. 
The employer responded by attacking the

147a



plaintiff's statistics, asserting that the 
statistical pool the plaintiffs used 
included employees that had not yet made 
it onto a supervisory register. The 
district court dismissed the case primar­
ily for this reason. Id. at 1521. On 
appeal, this court reversed, specifically 
holding that if the procedures used to 
qualify employees for the supervisory 
register were themselves discriminatory, 
those procedures could serve as the basis 
for relief. See id. at 1525. In discuss­
ing the way an employment discrimination 
action usually unfolds, the court found 
that it did not matter that the plaintiffs 
had not initially identified or challenged 
the procedures for reaching the register:

[T]he purpose of Title VII is the removal of artificial, arbitrary and 
unnecessary barriers to employment 
which operate invidiously to discri­minate on the basis of race or other 
impermissible classifications.... "This purpose is not well-served by a requirement that the plaintiff in

148a



every case pinpoint at the outset the employment practices that cause an observed disparity between those who appear to be comparably qualified.”
Id. at 1528 (quoting Seaar v. Smith, 738 
F. 2d 1249, 1271 (D.C. Cir. 1984), cert.
denied. 471 U.S. 1115, 105 S.Ct. 2357, 86
L.Ed.2d 258 (1985)). This case is analo­
gous, in that the plaintiffs challenged 
the promotional system generally, and 
eventually it appeared that the disparity 
could have resulted as much from post- 
Title VII discrimination in assignments as 
from such discrimination prior to Title 
VII.
B. Swint's Representation of the Class 

on the Issue of Discriminatory Assignments
Pullman makes a related claim that 

Louis Swint and Willie Johnson are without 
standing to represent the class on the 
issue of departmental assignments of new 
hires because they were hired —  and 
assigned to the Steel Erection Department

149a



—  prior to July 2, 1965, the effective 
date of Title VII.36 As in its argument 
concerning the dating of the liability 
period, Pullman relies on General_Tele­
phone Co. of the Southwest v. Falcon, 457 
U.S.at 147, 102 S.Ct. at 2364, 72 L.Ed.2d 
at 740, which requires that a named plain­
tiff have actually suffered a specific 
discriminatory practice if he is to 
represent the class in challenging that 
practice. The company defends its failure 
to challenge the named plaintiffs' stand- 
in earlier on the ground that Falcon 
constituted new law.

Pullman's argument that it had no 
basis on which to raise a standing claim 
earlier in the proceeding is persuasive. 
Falcon was new law; in fact, the decision 
reversed a ruling from this circuit. See

36 According to Pullman, Swint was hired on November 24, 1964, and Johnson was hired on January 12, 1956.
150a



General Telephone Co. of the Southwest v. 
Falcon. 626 F.2d 369, 375 (5th Cir. 1980). 
Until Falcon was handed down, this circuit 
required only that a named plaintiff have 
suffered some form of discrimination on 
the same general basis--race, sex, 
religion— as the members of his class. 
See, e.q., Payne v. Travenol Laboratories. 
Inc. . 565 F.2d 895, 900 (5th Cir.), cert. 
denied. 439 U.S. 835, 99 S.Ct. 118, 58 
L.Ed.2d 131 (1978); Johnson v. Georgia 
Highway Express. Inc.. 417 F.2d 1122 (5th 
Cir. 1969).

We are not persuaded, however, by 
Pullman's argument on the merits of its 
objection. As we noted earlier, Falcon 
was concerned with whether the commonality 
and typicality requirements of Fed.R. 
Civ.P. 23, governing class actions, were 
met. The case involved a named plaintiff 
complaining that he had been passed over

151a



for promotion and yet attempting to 
represent other Mexican-Americans who had 
not been hired. The Court found that Rule 
23 standing could not be based solely on 
the fact that the named plaintiff and the 
class members had both suffered 
discrimination based on their national 
origin. See Falcon. 457 U.S. at 158, 102 
S.Ct. at 2371.

The Court acknowledged, however, that 
provided he is attacking the same 
discriminatory practice, a named plaintiff 
may have standing even though he is 
challenging its effects on an aspect of 
his employment different from that of some 
of the class members: an employee denied 
promotions because of a discriminatory 
test may represent persons who were not 
hired because of the same test. See id. 
at 159 n. 15, 102 S.Ct. at 2371 n. 15. 
The Court also stated that "[s]ignificant

152a



proof that an employer operated under a 
general policy of discrimination con­
ceivably could justify a class of both 
applicants and employees if the discrimi­
nation manifested itself in hiring and 
promotion practices in the same general 
fashion." Id. This court has since 
recognized these "exceptions to the 
general rule" and emphasized that they are 
exceptions precisely because they are 
circumstances in which the commonality and 
typicality requirements of Rule 23 are 
satisfied. Griffin v. Dugger. 823 F.2d 
1476, 1487 (11th Cir. 1987).

We believe that the commonality and 
typicality requirements of Rule 23 are 
satisfied by Swint's and Johnson's 
representation of the class on the issue 
of discriminatory assignments of new hires 
even though, because of the date they were 
hired, they personally may not recover on

153a



the assignments as an independent claim. 
See East Texas Motor Freight System Inc, 
v. Rodriquez. 431 U.S. 395, 406 n. 12, 97 
S.Ct. 1891, 1898 n. 12, 52 L.Ed.2d 453
(1977) (where class claims have already 
been tried and initial certification was 
proper, class members' claims "[do] not 
need to be mooted or destroyed because 
subsequent events or the proof at trial 
had undermined the named plaintiffs' 
individual claims"). As we noted earlier, 
see supra part III. A, Rule 23 requires 
that there by "questions of law or fact 
common to the class, [and that] the claims 
or defenses of the representative parties 
[be] typical of the claims or defenses of 
the class." Fed. R. Civ. P. 23(a)(2),
(3) . From the start, the plaintiffs' 
basic complaint has been that Pullman 
prevented black employees from moving into 
its higher-level positions through a

154a



combination of discriminatory initial 
assignments and a departmental-only 
seniority system. At the time of 
certification, this claim was legally 
identical to that of every other member of 
the class.

The fact that the plaintiffs' claim 
was ultimately broken up into two 
components— the assignments of new hires 
and the seniority system itself— because 
the Teamsters decision changed the law to 
reguire that a seniority system be 
analyzed separately and invalidated only 
if maintained with discriminatory intent, 
does not retroactively dictate that the 
district court abused its discretion in 
initially determining that the named 
plaintiffs' claim was typical of and 
involved questions of law and fact common 
to the class members' claims. Cf. Cox v. 
American Cast Iron Pipe Co.. 784 F.2d

155a



1546, 1557 (11th Cir.) ("To determine [in 
evaluating commonality] what legal claims 
plaintiffs allege, a judge must look not 
to defendant's interrogatories but to 
plaintiffs' complaint."), cert. denied.
___ U.S. ____ , 107 S.ct. 274, 93 L.Ed.2d
250 (1986). Nor did this fact require the 
district court to decertify the class on 
Pullman's motion. See Cox v. American 
Cast Iron Pipe Co.. 784 F.2d at 1557 
("Rule 2 3 does not require that all the 
questions of law and fact raised by the 
dispute be common"); Applevard v. Wallace. 
754 F. 2d 955, 958 (11th Cir. 1985) ("The 
similarity of the legal theories shared by 
the plaintiffs and the class at large is 
so strong as to override whatever factual 
differences might exist"). The same 
injury being locked into Pullman's lower- 
paying jobs— was under attack by both the 
named plaintiffs and the class members,

156a



and the only real question was whether it 
was the discrimination in assignments or 
the nature of the seniority system, or 
both, that prevented blacks from moving up 
the job ladder. The identity of the named 
plaintiffs' and class members' injuries, 
especially in light of the way the 
practices challenged were interrelated, 
was enough to satisfy the second Falcon 
exception. It indicated that there was a 
"general policy of discrimination 
[that] manifested itself in hiring and 
promotion practices in the same general 
fashion." Falcon, 457 U.S. at 159 n. 15, 
102 S.Ct. at 2371 n. 15 (emphasis added).
C. The Date on Which DiscriminatoryAssignments Ceased

The plaintiffs argue that the 
district court erred in determining that 
Pullman no longer discriminated in 
assigning new hires after February 1969. 
The plaintiffs complain about what they

157a



deem the district court's vacillation on 
the issue: in Swint I, the court found
that blacks had been kept out of some 
departments and relegated to others until 
as late as 1972; in Swint III, the court 
found that all discrimination in assign­
ments ended by December 1966; and in Swint 
IX, the court found that the discrimina­
tion in assignments ended by February 
1969. In the plaintiffs' view, it is not 
possible to find that certain departments 
included no blacks or no whites through 
1971 and nonetheless conclude that 
discrimination ended in 1969. The
plaintiffs also complain that Pullman's
expert, on whom the district expressly
relied in Swint IX, used a cumulative
figure for the 1969-1974 period and 
consequently admitted that he could not 
pinpoint the date on which discrimination 
in assignments ended. Finally, the

158a



plaintiffs contend that the district court 
relied too heavily on the 1969 OFCC 
agreement and conspicuously changed its 
opinion of the agreement between its 
decisions in Swint I and Swint IX.

We do not find the plaintiffs' 
arguments sufficient to disturb the 
district court's finding of fact with 
respect to the date on which Pullman 
stopped discriminating in assignments. 
The plaintiffs' contention that the 
district court's Swint I decision that 
discrimination continued until 1972 should 
be regarded as the law of the case is 
incorrect. As this court pointed out in 
Robinson v. Parrish. 720 F.2d at 1548, a 
district court need not rigidly adhere to 
its own rulings in an earlier stage of the 
case. Id. at 1550. To require that the 
district courts do so "would actually 
thwart the purpose of the [law of the

159a



case] doctrine" because it would prevent 
them from correcting errors that would 
otherwise warrant reversal on appeal and 
necessitate an entirely new trial. Id.

Although finding it of considerable 
force, we must also reject the plaintiffs' 
argument that the district court was 
substantively in error. In Swint VII. the 
Supreme Court made quite clear that the 
issue of discriminatory intent is a pure 
question of fact, subject, under 
Fed.R.Civ.P. 52(a), to review only for 
clear error. Swint VII. 456 U.S. at 287- 
88, 102 S.Ct. at 1789. Although a
district court's finding of discrimination 
may be set aside if it rests on "an 
erroneous view of the law," id. at 287, 
102 S.Ct. at 1789, it may not be set aside 
simply because the appellate court would 
decide the case differently on the same 
set of facts. Id. at 292, 102 S.Ct. at

160a



1792 . Because there was some evidence to
support the district court's conclusion on 
the date discrimination in assignments 
ceased, and nothing in the opinion 
reflects an erroneous view of the law, the 
February 1969 date must stand.

It is true that five of Pullman's 
twenty-eight departments remained all 
white or all black after February 1969.37 
Were this the only evidence, the inference 
of discrimination would be very strong. 
We do not believe, however, that these 
numbers per se required the district court 
to find intentional discrimination. There 
was expert testimony that there was a 
significant difference between the

USW's Air Brake and Inspection Departments remained all white until approximately 1971 and IAM's Die & Tool and Maintenance Departments remained all white until 1970. See Swint I. 11 F.E.P. at 953; Swint VI. 624 F.2d at 529. 
Conversely, no whites were assigned to 
USW's Die & Tool Department until 1971. Swint I. 11 F.E.P. at 953.

161a



assignment patterns of the 1964-1969 and 
1969-1974 periods, and although segregated 
departments were not completely eliminated 
by February 1969, four of the original 
nine segregated departments were 
integrated between 1965 and 1969. There 
was also evidence pertaining to the 
changes instituted by the January 1969 
OFCC agreement: Pullman hired a black
equal employment officer and began to 
encourage black employees to take 
advantage of company-financed vocational 
training. The district court was entitled 
to evaluate all of this evidence and 
assign certain items more weight than 
others.

In this connection, it makes no 
difference that Pullman's expert used 
cumulative data and admitted that he could 
not determine from the data the date on 
which assignments were no longer

162a



f 1 aws m
statistical evidence are so egregious as 
to completely deprive the evidence of 
relevance, they go to the evidence's 
probative value, not to its admissibility. 
Bazemore v. Friday. 478 U.S. 385, 400, 106 
S.Ct. 3000, 3009, 92 L.Ed.2d 315 (1986).
The cumulative nature of the evidence here 
may have rendered it of less value, but it 
cannot be said to have deprived it of all 
value. The evidence still served to show 
the direction in which assignments at the 
Bessemer plant were moving, and it could 
not have misled the district court 
precisely because of the very admission 
about which the plaintiffs complain: 
Pullman's expert was candid enough to 
admit that a particular ending date could 
not be pinpointed. Finally, the
plaintiffs overstate the district court's 
reliance on the data. The court's opinion

discriminatory. Unless

163a



merely recites the conclusions of 
Pullman's expert, as well as the results 
of the court's own statistical model, and 
there is nothing to indicate that the 
court drew more than a generalized 
inference concerning the date from 
Pullman's data.38

The court wrote:
The statistical evidence was generally divided into two time periods— 1964 to 1969 and 1969 to 1974. As might be 

expected, the defendants' and 
plaintiffs' experts took 
different statistical approaches 
and arrived at somewhat conflicting conclusions. The 
court carefully studied the evidence presented by the parties and at trial presented to the parties for their comment 
another standard statistical model. Plaintiffs' expert 
acknowledged that a considerable 
change had taken place in the 
job class distribution by 1969. 
Defendants' expert found a 
statistical difference between the pre-1969 and post-1969 periods, with a rough parity 
between the races in terms of 
job class assignments from 1969

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Indeed, it seems rather clear to us—  
from its choice of February 1969— that the 
district court was most impressed with the 
January 1969 OFCC agreement and the 
testimony with regard to the changes the 
agreement wrought. We might not have been 
equally impressed, but we cannot say that 
the court was clearly erroneous for 
relying on the agreement. The plaintiffs' 
emphasis on the court's change in 
terminology respecting the agreement—  
stating in Swint I that the agreement 
"never became effective," 11 F.E.P. at 953 
n. 32, and in Swint IX that it "was never 
termed official," slip op. at 13 n. 35— is 
misplaced. Even assuming that there is a 
meaningful difference between the two 
phrases, which we very much doubt, both

forward. The alternative study 
prepared by the court indicated that post-1969 assignments were not racially tainted.

165a



descriptions are based on the idea that 
the union did not accept the agree-ment, 
and in measuring Pullman's intent, the 
union's position is essentially 
irrelevant. The court could have 
concluded, based on the evidence, that the 
agreement and the programs put in place 
after its adoption by the company 
signalled Pullman's intent to change its 
discriminatory ways.

As should be clear, we affirm the 
district court's holdings with respect to 
Pullman's liability for discriminatory 
departmental assignments. Louis Swint has 
Rule 23 standing to continue his represen­
tation of the class on the issue, and 
Pullman is liable for classwide discrimi­
nation in assignments dating from October 
19, 1965 through January 31, 1969.

V. The Nontransferable Seniority System

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The plaintiffs appeal from the 
district court's decision that the 
nontransferable seniority system under 
which Pullman and USW operated in awarding 
promotions was a bona fide seniority 
system protected by section 703(h) of 
Title VII, 42 U.S.C. § 2000e-2(h) (1982).
They argue that the district court erred 
in three respects: (1) in refusing to
consider whether IAM's arguably racist 
motives and membership practices so 
tainted the system that Pullman cannot 
claim it was bona fide, even if USW can, 
(2) in failing to consider evidence that 
in 1965, after it appeared that all jobs 
at the plant would have to be opened to 
persons of all races, Pullman abandoned 
its earlier practice of offering on-the- 
job training in welding,39 and (3) in

39 A Pullman official admitted that the practice changed because white welders at the Bessemer plant were unwilling to
167a



excluding the testimony of over twenty 
black employees that Pullman discriminated 
in its job assignments within departments. 
Although again, we might have weighed the 
evidence differently, we are unable to 
find that the district court's validation 
of the seniority system was clearly 
erroneous.40

In evaluating the seniority system, 
our primary guide is Internationa 1 
Brotherhood of Teamsters v. United States, 
431 U.S. at 324, 97 S.Ct. at 1843, 52 
L.Ed.2d at 396. In Teamsters, the Supreme 
Court held that, in light of section 703

train black employees.
In Pettway v. American Cast ron— 476 F.2d 1157, 1191 n. 37 (5th Cir. 1978), cert, denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979), 

this court held that the immunity created by section 703(h) extends not only to 
Title VII claims but to section 1981 claims as well. For that reason, the 
analysis that follows will not focus on 
the statute on which the plaintiffs base their challenge.

168a



(h),41 a seniority system of promotions
cannot be invalidated solely on the basis
that it perpetuates pre-Title VII
discrimination. See id. at 353-54, 97
S.Ct. at 18 64. The Teamsters Court also
indicated that a seniority system cannot
be invalidated solely because it
perpetuates post-Title VII discrimination.
Relying on the Court's concurrent decision
in United Air Lines v. Evans. 431 U.S.
553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977,
Justice Stewart wrote:

The legality of the seniority system insofar as it perpetuates post-Act 
discrimination nonetheless remains at issue in this case, in light of the

4± Section 703(h) provides, in relevant part, that "it shall not be an unlawful employment practice for an 
employer to apply different standards of 
compensation, or different terms, 
conditions, or privileges of employment 
pursuant to a bona fide seniority or merit system, ... provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin." 42 U.S.C. § 2 000e-2(h) (1982).

169a



injunction entered against the union.... Our decision today in United Air Lines v. Evans. ... is 
largely dispositive of this issue. Evans holds that the operation of a seniority system is not unlawful 
under Title VII even though it perpetuates post-Act discrimination that has not been the subject of a 
timely charge by the discriminatee. Here, of course, the Government has sued to remedy the post-Act discrimination directly, and there is no claim that any relief would be time-barred. But this is simply an additional reason not to hold the seniority system unlawful.42 since such a holding would in no way enlarge the relief to be awarded.

431 U.S. at 348 n. 30, 97 S.Ct. at 1861 n.
30 (footnote added) (emphasis added)
(citations omitted).

As this passage demonstrates, the 
Court has drawn a definite distinction

Because Evans dealt only with a situation where the employer's separate 
discriminatory acts in manipulation of the 
seniority system had not been the subject 
°f a timely EEOC charge, we might not have read the opinion as covering situations where separate discriminatory acts are independently and properly in a case. The Tgftflisters passage, however, appears to equate the two situations.

170a



between challenges to a seniority system 
and challenges to other discriminatory 
conduct that in turn manipulates the 
system to the detriment of black 
employees. See also Franks v. Bowman 
Transportation Co.. 424 U.S. 747, 758, 96
S.Ct. 1251, 1257, 47 L.Ed.2d 444 (1975)
("The underlying legal wrong affecting 
[the class] is not the alleged operation 
of a racially discriminatory seniority 
system but of a racially discriminatory 
hiring system."). For a plaintiff to 
prevail in a challenge to a seniority 
system, there must be a finding that the 
system itself was negotiated or maintained 
with an actual intent to discriminate.^^

Evidence that the seniority system has been manipulated can certainly 
be considered in evaluating an employer's 
intent with respect to the creation or 
maintenance of a seniority system, Evans. 431 U.S. at 558, 97 S.Ct. at 1889, but a 
system cannot be invalidated on such evidence standing alone. Id. at 560, 97 S.Ct. at 1890.

171a



See Teamsters, 431 U.S. at 356, 97 S.Ct.
at 1865; see also Swint VII, 456 U.S. at 
289, 102 S.Ct. at 1790. Just as in an
ordinary disparate treatment case, the 
burden of persuading the district court 
that a system is the product of an 
employer's discriminatory intent lies with 
the plaintiff. Cf. Trans World Airlines^ 
Inc, v. Hardison. 432 U.S. at 82, 97 S.Ct. 
at 2276 ("[section] 703(h) unequivocally 
mandates that there is no statutory 
violation in the absence of a showing a
discriminatory purpose") ; Harris--5U
Plastics Manufacturing Co., 617 F.2d 438,
440 (5th Cir. 1980) ("There was no 
testimony indicating that the seniority 
system was instituted or maintained for 
racially discriminatory reasons."); Fisher 
v. Proctor & Gamble Manufacturing Co.. 613 
F.2d at 542 ("there is no evidence in the 
record to show that the seniority system

172a



had 'its genesis in racial discrimination' 
or that it was negotiated and maintained 
for any 'illegal purpose'"). Insofar as 
the decision on the bona fides of a system 
turns on whether it was negotiated or 
maintained with discriminatory intent, it 
is a question of fact subject to review by 
this court only for clear error. Swint 
VII, 456 U.S. at 289-90, 102 S.Ct. at 
1790-91.

The district court's treatment of 
Pullman's relationship with I AM was not 
clear error. The plaintiffs appear to be 
arguing a syllogism of sorts: (1) no one 
can seriously question that IAM supported 
the concepts of departments in general and 
nontransferable seniority in order to keep 
its local all white; (2) Pullman entered 
into a collective bargaining agreement 
incorporating IAM's nontransferable 
seniority provisions; therefore, (3)

173a



Pullman adopted IAM's discriminatory
motive. The problem with this argument is
that the conclusion does not necessarily
follow from the minor premise. Without
independent evidence of Pullman's intent
with respect to the seniority system, the
plaintiffs are essentially urging us to
impute IAM's motive to Pullman. In Swint
VII. however, the Supreme Court expressly
prohibited us from doing so:

IAM's discriminatory motivation, if it existed, cannot be imputed to USW. It is relevant only to the extent that it may shed some light on the 
purpose of USW or the Company in creating and maintaining the separate seniority system at issue in these cases. A discriminatory intent on the part of IAM, therefore, does not control the outcome of these cases. Neither does the fact, if true, that USW acquiesced in racially 
discriminatory conduct on the part of IAM. Such acquiescence is not the 
equivalent of a discriminatory purpose on the part of USW.

456 U.S. at 292, 102 S.Ct. at 1792.
By recognizing that the plaintiffs'

argument is in essence one of presumption,
174a



we are not ignoring the plaintiffs' 
insistence that there was some independent 
e v i d e n c e  c o n f i r m i n g  Pullman's 
discriminatory intent. As noted above, 
the plaintiffs do cite evidence that 
Pullman did not assign any blacks to the 
I AM departments until 197 0 and 
discontinued its practice of on-the-job 
training once the courts began requiring 
that all jobs at the plant be made 
available to black employees. Still, none 
of this evidence goes directly to 
Pullman's intent regarding the system. It 
tends to prove instead that Pullman 
engaged in a number of other, separate 
discriminatory practices, and, as noted 
above, the Supreme Court has required us 
to keep such distinctions in mind.

In short, we cannot say that the 
district court attributed insufficient 
significance to the plaintiffs'

175a



circumstantial evidence in the face of
considerable direct evidence that the
system was not the product o f
discriminatory intent. The district court
carefully analyzed the evidence presented, 
paying special attention to the four 
factors this court emphasized in James v. 
Stockham Valves & Fittings Co. . 559 F.2d 
310, 352 (5th Cir. 1977) , cert, denied. 
434 U.S. 1034, 98 S. Ct. 767, 54 L.Ed.2d 
781 (1978) : whether the system operates 
in a neutral fashion, discouraging all 
employees equally from transferring 
between departments; whether the system of 
seniority units is rational and in accord 
with industry practice; whether the system 
had its genesis in racial discrimination; 
and whether the system was negotiated and 
maintained free from any illegal purpose. 
The evidence revealed that whites as well 
as blacks often desired to transfer but

176a



were disinclined to do so because they too 
would lose their seniority. The evidence 
also showed that systems including 
nontransferable seniority between given 
units are quite common not only with 
manufacturers generally but with 
manufacturers of railroad cars.44

44 The plaintiffs argue that the 
law of the case doctrine prevented the 
district court from deciding that the nontransferable seniority system was rational. They cite this court's holding in Swint VI. 624 F.2d at 531, that there 
was no explanation for the segregated dep ar tments other than racial 
discrimination. They then point out that the union asked the Supreme Court on 
review of Swint VI to hold expressly that 
the departmental seniority system was rational, but the Court declined to do so. This sequence of events, the plaintiffs argue, left in place Swint Vi's holding that the system was irrational.

The plaintiffs' argument is without 
merit. The Swint VI holding with respect to the rationality of the system was one 
of the two with which the Supreme Court 
most found fault. In discussing how this 
court had not properly applied Rule 52(a), Justice White wrote:

In particular, in regard to the
second J ames factor--whether the

177a



Finally, although there was considerable 
evidence that the system was adopted at a 
time when Pullman was openly 
discriminatory in other respects— i.e., 
the system did have its "genesis" in 
racial discrimination— there was nothing 
to suggest that Pullman acted with 
discriminatory intent in negotiating or 
maintaining nontransferable seniority.

departmental structure was rational or in line with industry practice—  the Court of Appeals did not focus on 
the evidentiary basis for any 
particular finding of the District Court. It appeared to make anindependent examination of the record and arrive at its own conclusion contrary to that of the District Court.

Swint VII. 456 U.S. at 291 n. 21, 102 S.Ct. at 1791 n. 21. This indicates 
rather clearly that the Swint VI holding 
with respect to the system's rationality did not survive Swint VII. and it makes no difference that the Court rejected the 
union's request to hold the system rational. Indeed, that it is not an 
appellate court's role to enter fact­
findings one way or the other was the Supreme Court's whole point.

178a



Indeed, there was evidence that Pullman 
would have preferred no seniority or the 
narrowest seniority possible so that it 
could have the greatest flexibility in 
filling vacant positions. There was also 
evidence that at a meeting of primarily 
black USW employees, a proposal to merge 
certain departments was voted down. Under 
these circumstances, the district court 
was entitled to accept Pullman's theory 
that the nontransferable seniority system 
was a compromise negotiated and maintained 
without discriminatory intent.45 Having 
thus found that three of the four James

We do not even touch upon much of the evidence USW cites with respect to the negotiation of the seniority system, 
such as the fact that blacks were 
represented on the negotiating committee and USW's history as a protector of civil rights, because the plaintiffs have 
recognized that the district court's finding with respect to USW's intent 
cannot be found clearly erroneous. See 
Brief for Plaintiffs-Appellants William B. Larkin, Louis Swint, et al.. at 57.

179a



factors went against a finding of 
discriminatory intent, the court was not 
clearly erroneous in concluding that the 
seniority system was bona fide.

The fact that the district court 
excluded the plaintiffs' evidence with 
respect to Pullman's allegedly 
discriminatory job assignments within 
departments does not change our 
conclusion. We agree with the plaintiffs 
that the proffered testimony would have 
served as circumstantial evidence that the 
system was maintained with discriminatory 
intent, but we cannot accept the 
plaintiffs' failure to introduce the 
evidence before the 1984 proceedings. The 
plaintiffs knew, as of 1977 and the 
Teamsters decision, that they would have 
to prove that the seniority system was 
intentionally discriminatory, and a post- 
Teamsters trial was held in early 1978

180a



precisely for that purpose. It cannot be 
said that the plaintiffs simply discovered 
late in the proceedings that many of their 
n u m b e r  had been subjected to 
intradepartmental discrimination: 
Spurgeon Seals' November 1966 EEOC charge 
specifically complained that he had been 
passed over within his department in spite 
of his seniority. Additionally, the case 
was returned to the district court under a 
limited remand. The district court was 
instructed "to determine what impact the 
'locking-in' of blacks to the least 
remunerative departments had on 
discouraging transfer between seniority 
units, and the significance of the 
discriminatory motivation of IAM with 
respect to the institution of USW's 
seniority system," and to hold any other 
proceedings that "may be deemed necessary 
in view of our prior opinion and that of

181a



the United States Supreme Court." Swint
VIII. 692 F.2d at 1031-32. Had it
permitted the plaintiffs to embark on a 
new line of proof, the district court 
might well have violated the mandate rule. 
See International Brotherhood of 
Boilermakers v. Barber. 841 F.2d 1067, 
1071 (11th Cir. 1988). For these reasons, 
the district court did not abuse its 
discretion in excluding the testimony of 
the plaintiffs complaining of 
intradepartmental discrimination.46

Nor did the district court err, as the plaintiffs urge in their brief, in 
failing to provide a remedy for Pullman's allegedly discriminatory intradepartmental 
assignments. The intradepartmental assignments were not a natural sub-issue 
of the plaintiffs' challenge to the seniority system, as were the initial 
departmental assignments we have recognized as a viable independent claim. 
$ee— supra part IVA. And we find no 
indication whatsoever in the record that the plaintiffs ever made clear that they 
were asserting intradepartmental assignments as an independent claim. For example, in their 1978 brief to this court, the plaintiffs voiced no complaint

182a



In concluding our discussion of the 
seniority system, one thing should be made 
clear. By affirming the district court's 
ruling, and finding it conceivable that 
there could have been discrimination in 
initial assignments but not in maintaining 
the seniority system, we are not denying 
that the two issues are interrelated. 
Indeed, it is readily apparent that the 
departmental discriminatory assignments 
may have caused the seniority system to 
have a discriminatory impact on black 
employees' ability to move up the job 
ladder. As a result, during the Phase II 
proceedings, any member of the plaintiff 
class who suffered actionable

that the district court overlooked their 
claim that intradepartmental assignments 
were discriminatory. In the face of this 
complete dearth of argument and evidence, the plaintiffs' claim that the references 
in pretrial orders and the like to "job" 
assignments prove that they were arguing this all along is simply not persuasive.

183a



discrimination in his initial assignment 
shall be entitled to a consideration of 
those jobs within the plant he might have 
gotten had he not been relegated to an 
all-black department or, in any event, 
kept out of the all-white departments. 
Once this determination has been made, 
corresponding "make-whole" relief should 
be awarded.

VI. The Selection of Supervisors 
Pullman appeals from the district 

court's ruling that our holding in Swint 
VI that the company had discriminated in 
its selection of supervisors is the law of 
the case. Pullman's overall objection 
consists of several interrelated 
arguments. First, in the company's view, 
the Swint VI holding does not constitute 
the required finding of intentional 
discrimination. Second, the holding must 
be reconsidered because a number of later

184a



cases have changed the applicable law:
(1) United States Postal Service Board of
Governors v. Aikens. 460 U.S. 711, 103
S.Ct. 1478, 75 L. Ed. 2d 403 (1983), makes
clear that Swint Vi's references to the 
plaintiffs' "prima facie case” and the 
defendant's "rebuttal" were inappropriate;
(2) Johnson v. Transportation Agency,
Santa Clara County. 480 U.S. 616, 107
S.Ct. 1442, 94 L.Ed.2 d 615 (1987), 
indicates that the plaintiffs' case was 
erroneously based on statistics that did 
not account for the qualifica-tions 
required of Pullman supervisors; and (3) 
Swint VII. although dealing exclusively 
with the seniority system, reflects the 
Supreme Court's view that Swint VI. as a 
whole, was an improper exercise of 
appellate fact-finding. Third, the Swint 
VI holding cannot be the law of the case 
because this court relied in part on its

185a



concurrent holding that the seniority 
system at Pullman was not bona fide but 
intentionally discriminatory, a holding 
the Supreme Court overturned. We reject 
these arguments and affirm the district 
court's ruling.

We must acknowledge from the outset 
that if they were substantively correct, 
Pullman's arguments might warrant a 
holding that the decision in Swint VI does 
not constitute the law of the case. 
Although the law of the case doctrine does 
dictate that a district court is bound by 
findings of fact and conclusions of law 
made by the court of appeals in a prior 
appeal of the same case, Robinson. 690 
F.2d at 872, the doctrine does not apply 
to issues that were not actually decided, 
either explicitly or implicitly. Wheeler 
v. City of Pleasant Grove. 746 F.2d 1437, 
1440 (11th Cir. 1984) ("the doctrine

186a



encompasses only those issues previously 
determined") ; Signal Oil & Gas Co. . 654 
F. 2d at 1169 ("law of the case does not 
operate to bar subsequent consideration of 
matters that could have been, but were 
not, raised and resolved in the earlier 
proceeding"). Pullman's first argument, 
that the Swint VI treatment of the 
supervisors issue was not the requisite 
finding of intentional discrimination, is 
in essence a contention that Swint VI did 
not actually decide the supervisors issue. 
Likewise, Pullman's second argument, that 
Supreme Court cases decided after Swint VI 
require that the decision be reconsidered, 
appears to invoke a well-established 
exception to the law of the case doctrine. 
The doctrine does not bar reconsideration 
of a legal conclusion when controlling 
authority has since made a contrary 
decision of applicable law. Wheeler. 746

187a



F. 2d at 14 40 ; EEOC v. International 
Longshoremen's Ass'n.. 623 F.2d 1054, 1058 
(5th Cir. 1980) , cert, denied. 451 U.S. 
917, 101 S.Ct. 1997, 68 L.Ed.2d 310(1981). 
Finally, Pullman's third argument, that 
Swint VI must be reconsidered because an 
aspect of the case on which this court 
relied was overturned by the Supreme 
Court, implicates yet another exception to 
the doctrine. A prior appellate decision 
may be disregarded if it was clearly
erroneous and would work a manifest
injustice. Wheeler. 746 F. 2d at 1440;
United States v. McClain. 593 F. 2d 658,
664 (5th Cir.), cert, denied. 444 U.S.
918, 100 S.Ct. 234, 62 L.Ed.2d 173 (1979). 
We are unable to conclude, however, that 
Pullman's arguments are meritorious in 
substance.

It is true, for example, that Swint 
VI does not include a finding that Pullman

188a



intentionally discriminated in its selec­
tion of supervisors. That observation, 
however, is irrelevant: the plaintiffs
here clearly proceeded on a disparate 
impact, rather than disparate treatment, 
theory and thus did not need to prove 
discriminatory intent. See Connecticut v. 
Teal. 457 U.S. 440, 446, 102 S.Ct. 2525,
2530, 73 L.Ed.2d 130 (1982); Griggs v.
Duke Power Co, . 401 U.S. 424, 430-32, 92
S.Ct. 849, 853-54, 28 L.Ed.2d 158 (1971);
see also Teamsters. 431 U.S. at 335 n. 15, 
97 S.Ct. at 1854 n. 15 (discussing the 
distinction between disparate treatment 
and disparate impact cases). They were 
required, as an initial matter, to show 
only that a facially neutral practice was 
operating to exclude blacks from the 
supervisory positions in a significantly 
disproportionate fashion. See Teal. 457 
U.S. at 446, 102 S.Ct. at 2530; Dothard v.

189a



Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 
2720, 2726-27, 53 L.Ed.2d 786 (1977). The 
burden— not just of production but of 
persuasion— was then on Pullman to show 
that the practice challenged arose from a 
non-discriminatory business necessity. 
See id. at 329, 97 S.Ct. at 2727; Griggs, 
401 U.S. at 432, 91 S.Ct. at 854. The 
Swint VI court found simply that while the 
plaintiffs had met their burden, Pullman 
had offered no legally acceptable evidence 
that is subjective selection procedure was 
a business necessity. The district 
court's decision that Pullman was liable 
was properly based on this conclusion of 
law.

Pullman similarly confuses disparate 
treatment and disparate impact cases by 
arguing that United Postal Service v. 
Aikens requires a reconsideration of the 
Swint VI holding. Aikens did hold, as

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Pullman notes, that once a case is fully- 
tried, the concepts of plaintiffs' "prima 
facie case" and "rebuttal" should be 
discarded and the case evaluated to 
determine solely whether plaintiffs proved
intentional discrimination, 460 U.S. at
711, 715, 103 S.Ct. at 1482 , and, as noted
above, the Swint VI court did use the
prima facie case and rebuttal terminology. 
Aikens, however, was a disparate treatment 
case requiring a showing of discriminatory 
intent, and its result was inextricably 
related to the Court's earlier attempts to 
make discriminatory intent susceptible of 
proof. The prima facie case-rebuttal- 
pretext framework for disparate treatment 
cases was developed in McDonnell Douglas 
Corp. v. Green. 411 U.S. 792, 93 S.Ct. 
1817, 36 L.Ed.2d 668 (1973), precisely 
because the Court realized that it would 
seldom be possible for plaintiffs to prove

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intentional discrimination directly and 
wanted to establish a series of shifting 
presumptions to ease that otherwise 
impossible burden. See Texas Department 
of Community Affairs v. Burdine. 450 U.S. 
248, 255 n. 8, 101 S.Ct. 1089, 1094 n. 8,
67 L.Ed.2d 207 (1981); see also Furnco
Construction Coro, v. Waters. 438 U.S. 
567, 577, 98 S.Ct. 2943, 2950, 57 L.Ed.2d
957 (1978). Aikens is thus wholly
inapplicable to this disparate impact 
case,47 where proof of discriminatory

4 ' Apparently anticipating that the plaintiffs, and perhaps this court, would distinguish Aikens as a disparate treatment case, Pullman argues that Bazemore v. Friday. 478 U.S. at 978, 106 S.Ct. at 3000, indicates that Aikens' holding is not limited to disparate 
treatment cases. Bazemore. however, was a 
"pattern and practice" case requiring the 
plaintiffs to "'establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure— the regular rather the unusual practice.'" Id. at 3008 
(quoting Teamsters. 431 U.S. at 336, 97 S.Ct. at 1855). Because this burden is so 
similar to that imposed on the plaintiffs-

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intent has never been necessary, and does 
not require that Swint VI be overturned 
simply because the opinion employed "prima 
facie case" and "rebuttal" terminology. 
Indeed, when one considers that a 
disparate-impact defendant actually 
carries a responsive burden of persuasion, 
unlike the rebuttal burden of production 
borne by the disparate-treatment defen­
dant, it seems clear that the Swint VI 
court's references were, in a sense, 
misnomers intended to represent the 
parties' respective burdens.

-and only on the plaintiffs— in disparate treatment case, we do not believe Bazemore sufficiently akin to a disparate impact case to warrant any further extension of Aikens. We are especially comfortable 
with this conclusion having noted now- Chief Justice Rehnquist's opening footnote 
in Aikens: "We have consistently distinguished disparate-treatment cases 
from cases involving facially neutral employment standards that have disparate 
impact on minority applicants." 460 U.S. at 713 n. 1, 103 S.Ct. at 1481 n. 1.

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We must also reject Pullman's 
argument that Johnson v. Transportation 
Agency reflects a change in the applicable 
law reguiring us to reconsider and 
presumably overturn Swint VI. Johnson 
addressed the proof necessary to establish 
that a "manifest imbalance" in an 
employer's previous hiring or promotional 
policies justified its giving preference 
to women or minorities. In the course of 
its discussion, the Court noted that any 
statistics offered to prove such an 
imbalance must compare those actually 
hired or promoted with "those in the labor 
force who possess the relevant qualifica-
tions." 480 U.S. at , 107 S.Ct. at
1452. The Court also indicated that a
plaintiff attempting to make out a prima 
facie case under Title VII is subject to 
the same requirement: "In order to make
out a prima facie case on [a Title VII]

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claim, a plaintiff would be required to 
compare the percentage of black skilled 
workers in the . . . work force with the 
percentage of black skilled craft workers 
in the area labor market." Johnson, 480
U.S. at ___  n. 10, 107 S.Ct. at 1452 n.
10 (employing the facts from United 
Steelworkers v. Weber, 443 U.S. 193, 99
S.Ct. 2721, 61 L. Ed. 2d 480 (1979), in a
hypothetical). Pullman argues from this 
observation that the plaintiffs here 
failed to show that there were any 
qualified blacks denied supervisory 
positions.

In our view, Pullman overstates the 
holding of J ohnson. Johnson, and 
Hazelwood School District v. United 
States. 433 U.S. 299, 97 S.Ct. 2736, 53
L.Ed.2d 768 (1977), upon which the Johnson 
Court relied, represent the Court's 
efforts to ensure that a Title VII

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plaintiff's statistical evidence is 
sufficiently narrow to raise a legitimate 
inference of discrimination. In other 
words, the cases set forth a relevance 
threshold that plaintiffs must satisfy if 
their case is to proceed further. Here, 
the plaintiffs compared the percentage of 
blacks in the Pullman workforce, all of 
whom were theoretically eligible for 
positions at least as temporary super­
visors, with the percentage of blacks who 
were actually selected. There was no 
application process for the supervisory 
positions, so it was not possible for the 
plaintiffs to compare the percentage 
actually selected with the percentage of 
applicants. Additionally, even when, in 
the early stages of the proceeding, 
Pullman was under what it would now deem 
the mistaken impression that it was the 
party responsible for identifying the

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qualifications necessary to become a 
supervisor, it put forth only generalized 
criteria 48— ability to get along with

48 In its Swint III ruling that 
Pullman had not discriminated in the selection of supervisors, its last 
discussion of this issue, the district court did not specify a single "skill" that was needed to perform as a 
supervisor, despite its conclusion that "[i]t is clear from the evidence, if not from common sense, that special skills are 
needed by supervisors." 15 F.E.P. at 150. The court did fault the plaintiffs' statistics for failing to account for the higher rate of black illiteracy and for the time blacks would need, due to previous discrimination, to develop "skills useful to supervisors," id. at 150 
n. 15, whatever those were. Both of these observations, however, were in direct contravention of this court's holding in 
Swint II;

Since no minimum educational 
requirement was proven legal under this strict guidelines of Title VII, 
the 'requirement' may not be used as 
a generalized inference to explain 
why blacks were not potential supervisors.

... The [district court in Swint II concluded that due to pre-'65 
segregation of jobs, it has taken 
blacks some time to learn the range of job skills necessary to perform

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other employees, knowledge of particular 
departments, and experience as a temporary 
foreman— that either would be impossible 
to incorporate into statistical proof or 
were themselves the result of discrimi­
nation.

Put simply, the plaintiffs used the 
narrowest statistics available, and we 
will not fault them for failing to account 
for "qualifications" that Pullman has, to 
this day, been unable to definitively 
articulate. To hold otherwise would be to 
read J ohnson and Hazelwood as requiring 
plaintiffs to identify at the outset every 
criterion employed in a subi ective selec­
tion process, a virtually impossible feat 
and one this court rejected in Griffin v.

s u p e r v i s o r y  duties. This
justification for not promoting blacks has been uniformly rejected by this court.

539 F.2d at 104.
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We do notCarlin. 755 F.2d at 1528.49 
believe that the Supreme Court intended 
such a radical result even in disparate 
treatment cases, much less in disparate 
impact cases. We are convinced that if 
the Court had intended to reassign the 
burden of production to Title VII plain­
tiffs, it would have said so. Pullman's 
final two contentions are based on the 
Supreme Court's holding in Swint VII. The 
company first argues that even if the 
Court did not directly review the Swint VI

49 We must emphasize that our holding is one of degree. We recognize fully that Johnson and Hazelwood require plaintiffs to recognize the basic qualifications for a position and exclude 
from their statistical pools persons who are obviously unqualified. We simply do not believe that plaintiffs are responsible for reading their employers' 
minds and culling out those persons who do not meet narrow, employer-specific "qualifications." Indeed, it is often those very qualifications that are causing a discriminatory impact; they should be 
subjected to the light of day and evaluated to see if they are truly 
necessary to the employer's business.

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holding on the selection of supervisors, 
its opinion makes clear that all of Swint 
VI should be disregarded as improper fact­
finding. For two reasons, we find this 
contention insufficient to require that 
the supervisors issue be reopened.

First, we are not free to reexamine 
an issue that has been finally decided and 
as to which certiorari has been denied 
unless there has been a clear change in 
the applicable law or our prior decision 
is found "manifestly erroneous." The 
holding in Swint VII presents neither of 
these situations. Swint VII did not 
change the law; it held simply that this 
court had not properly applied the clear 
error standard of Rule 52(a) to the 
seniority system issue. There was no 
suggestion in Swint VII that this court's 
treatment of the supervisors issue 
suffered from the same infirmity.

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Second, even if it were appropriate 
to take a second look at Swint Vi's treat­
ment of the issue, we would hold that Rule 
52(a) was properly applied. Rule 52(a) 
requires us to refrain from reweighing 
evidence, but it does not prohibit us from 
correcting a district court's legal 
errors. See Swint VII, 456 U.S. At 291- 
92, 102 S.Ct. at 1791-92. Swint Vi's 
reversal of the district court on the 
supervisors issue more readily falls into 
this latter category. The court held that 
the district court had erred because (10 
Pullman had not put forth "any evidence 
sufficient to show that the limitation 
upon which the defendant's business 
necessity defense rests is essential to 
the safety and efficiency of [its] 
operations," and (2) Pullman's rebuttal 
evidence— the slightly higher rate at 
which blacks refused promotions to

201a



supervisor and the pressure from other 
black employees that black supervisors 
suffered— could not be relied upon because 
the circumstances cited themselves 
resulted from the history of discrimi­
natory practices at the Bessemer plant.50 
Swint VI. 624 F.2d at 536.

Both of these grounds reflect legal 
principles well established in this 
circuit. See, e.q., Giles v. Ireland. 742

In some circumstances, this might be considered a fact-finding in itself, but the district court essentially acknowledged that the black rejection rate was connected to the racial atmosphere at the plant. When the court decided to focus in Swint III on the rejection rate 
of 1971-1973, the court wrote: "Prior to 1971 the turndown rate by blacks was 
higher, and subsequent to 1972 the rate was probably lower. The 1971-73 figures 
should be [sic] reasonable approximation 
for the period as a whole." 15 F.E.P. at 
152 n. 21. It is hard to imagine why the 
district court would be willing to speculate that blacks became more and more likely to accept foreman positions unless it had concluded that the rejection rate 
and the discriminatory practices at Pullman were related.

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F.2d 1366, 1381 (11th Cir. 1984) (judgment 
for defendant vacated where there was no 
showing that challenged policy was related 
to job performance)? Watkins v. Scott 
Paper Co.. 530 F.2d 1159, 1192-93 (5th
Cir.) (experience requirement could not 
justify disparate impact where "[p]ast 
discriminatory practices have either 
prevented or discouraged many of 
[defendant's] employees from transferring 
to many lines of progression and from 
gaining the experience [the defendant] 
deems necessary in a supervisor"), cert. 
denied. 429 U.S. 861, 97 S.Ct. 163, 50
L.Ed.2d 139 (1976); Stevenson v.
International Paper Co.. 516 F.2d 103, 117 
(5th Cir. 1975) (lack of experience in a 
particular r line of progression does not 
justify disparity in appointments to 
supervisor where blacks were excluded from 
those lines of progression) . Once the

203a



court addressed these legal errors, it was 
left only with the plaintiffs' showing 
that a remarkable disparity existed in the 
selection of supervisors.51 Because this 
in turn left only one resolution of the 
issue, the court reversed. See Swint VII. 
456 U.S. at 292, 102 S.Ct. at 1792 ("where 
findings are infirm because of an 
erroneous view of the law, a remand is the 
proper course unless the record permits 
only one resolution of the factual 
issue"). We are thus unable to conclude 
that Swint VI was manifestly erroneous,

DJ- The court noted that in a workforce ranging from 45% to 50% black, and out of 143 salaried foremen positions, there was not a single black salaried foreman until 1966. In 1970, out of 160 salaried positions, blacks held nine. 
Through the time of trial in 1974, there 
had never been a black foreman, temporary 
or salaried, in thirteen of Pullman's twenty-eight departments. From 1966 through the time of trial, only twelve blacks were selected to fill fifty-nine 
salaried foreman vacancies. Swint VI. 624 F.2d at 527-28.

204a



and the district court properly regarded 
its holding on the supervisor issue as the 
law of the case.

That Swint VII reversed the court's 
holding on the seniority system does not 
change this conclusion. It is true that 
the court in Swint VI referred to the fact 
that "black employees were locked in the 
lower paying jobs and departments." 624 
F. 2d at 53 6. The context in which this 
reference was made, however, was in 
explaining why blacks had become 
sufficiently demoralized that they might 
refuse to serve as supervisors. The lock- 
in effect was not cited as affirmative 
evidence that Pullman's entirely subjec­
tive selection procedure had a disparate 
impact on black employees. Moreover, 
Swint VII did not reject the idea that 
blacks were locked into the lower paying 
jobs. It merely held, as we do today,

205a



that the seniority system itself was not 
intentionally discriminatory. Under these 
circumstances, we do not believe the 
reference to the lock-in effect— which, 
due to the discriminatory post-Act 
departmental assignments, was no doubt a 
reality at Pullman— renders the Swint VI 
holding on the selection of supervisors 
manifestly erroneous.

We affirm the district court's 
decision that Pullman's subjective 
procedures for selecting supervisors 
violated Title VII.

VII. The Larkin Appeal
The Larkin plaintiffs appeal from the 

district court's denial of their motion 
under Fed.R.Civ.P. 60(b)(6) to transform 
its dismissal with prejudice to a 
dismissal without prejudice. The 
plaintiffs argue that the Larkin court 
should have essentially reopened their

206a



case once it became apparent that the 
Swint court would not hold Pullman liable 
for any discrimination prior to July 17, 
1969 and would not hear any evidence 
concerning discriminatory intradepart- 
mental assignments. These rulings by the 
Swint court, the plaintiffs contend, 
render erroneous the Larkin court's 1976 
decision that the Larkin plaintiffs were 
barred by res judicata.

We affirm the Larkin court's denial 
of the Rule 60(b)(6) motion. With respect 
to the liability period, our decision that 
Pullman should be held liable from October 
19, 1965 for its discriminatory assign­
ments of new hire, see supra part III.B, 
eliminates the Larkin plaintiffs' concern 
that two years of discrimination against 
them will not be addressed. With respect 
to the issue of intradepartmental assign­
ments, our ruling that the district court

207a



did not abuse its discretion in excluding 
that evidence, see supra part V, must be 
applied to the Larkin plaintiffs just as 
it is those in Swint. The Larkin court 
dismissed the Larkin plaintiffs' case in 
1976. From then until 1984, when they 
moved the court to reconsider their case, 
the Larkin plaintiffs were operating on 
the assumption that they were members of 
the Swint class. Yet at no time during 
that seven-year period did the Swint 
plaintiffs ever attempt to put on 
evidence, which presumably could have come 
straight from the Larkin plaintiffs, that 
Pullman was continuing its pre-1965, 
"white j ob"-"black job" practice of 
discriminatory intradepartmental assign­
ments. No meaningful explanation has ever 
been offered to explain this omission. 
Under these circumstances, the Larkin 
plaintiffs cannot be heard to complain

208a



that their claim concerning intradepart- 
mental promotions was unjustly eliminated. 
In short, it was not the court in Larkin 
that was under a mistaken impression? it 
was the plaintiffs, to the extent that 
they believed that the Swint plaintiffs 
would properly raise their claim.

VIII. Conclusion
The district court's judgment in 

Larkin v. Pullman-Standard. No. 84-7319, 
is affirmed. The court properly denied 
the Larkin plaintiffs' motion to amend or 
alter the judgment.

The district court's judgment in the 
appeal by Pullman Standard, Swint v. 
Pullman-Standard. No. 87-7057, is 
affirmed. The plaintiffs proved that the 
subjective procedures for selecting 
supervisory personnel had a discriminatory 
impact on Pullman's black employees, and 
the district court did not abuse its

209a



discretion in ruling that Louis Swint and 
Willie Johnson had Rule 23 standing to 
represent the class on the departmental 
assignments claim.

The district court's judgment in the 
appeal on behalf of the Swint plaintiffs, 
Swint v. Pullman-Standard. No. 86-7886, is 
affirmed in part and reversed in part. 
The district court did not err in finding 
that the seniority system was not created 
or maintained with discriminatory intent 
or in finding that any discrimination in 
departmental assignments ended by February 
1969. The district court did err, 
however, in determining that Pullman could 
not be liable for any discrimination 
occurring before July 17, 1969. Pullman 
should be held liable for any discrimi­
nation in departmental assignments, the 
plaintiffs' section 1981 claim, from 
October 19, 1965 until January 31, 1969,

210a



and for the discriminatory impact of the 
supervisory selection procedures, the 
plaintiffs7 Title VII claim, from 
September 28, 1966 until August 16, 1974.

Accordingly, we remand No. 86-7886 to 
the district court for further proceedings 
consistent with this opinion. Phase II 
proceedings should be held to determine 
the relief due the plaintiffs on their 
departmental assignment and selection of 
supervisors claims.

AFFIRMED in part, REVERSED in part 
and REMANDED.

211a



IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

NO. 84-7319

WILLIAM B. LARKIN; LOUISE SEALS, 
as personal representative of SPURGEON SEALS, deceased;
LITTLE LOFTON, as personal representative of EDWARD LOFTON, 
deceased; JESSE B. TERRY, on behalf of himself and others similarly situated,

Plaintiff-Appellants,
versus

PULLMAN-STANDARD DIVISION, PULLMAN,INC., a corporation,
Defendant-Appellee.

No. 86-7886

LOUIS SWINT and WILLIE JAMES JOHNSON, on behalf of themselves and others similarly situated; CLYDE HUMPHREY,
Plaintiffs-Appellants,

versus

212a



PULLMAN-STANDARD, Bessemer, Alabama; UNITED STEELWORKERS OF AMERICA LOCAL 
1466; and UNITED STEELWORKERS OF AMERICA, AFL-CIO, INTERNATIONAL 
ASSOCIATION OF MACHINISTS,

Defendants-Appellees

No. 87-7057

LOUIS SWINT, and WILLIE JAMES 
JOHNSON, on behalf of themselves and others similarly situated; 
CLYDE HUMPHREY,

Plaintiffs-Appellees 
versus

PULLMAN-STANDARD, Bessemer, Alabama,
Defendant-Appellant,

UNITED STEELWORKERS OF AMERICA LOCAL 1466; and UNITED STEELWORKERS OF 
AMERICA, AFL-CIO, INTERNATIONAL ASSOCIATION OF MACHINISTS,

Defendants.

Appeal from the United States District Court for the Northern District of Alabama

ON PETITION(S) FOR REHEARING AND SUGGESTION(S) OF REHEARING IN BANC

213a



(Opinion SEPTEMBER 21, 1988, 11 Cir. ,198_, ___ F. 2d___ .
JANUARY 3, 1989

Before JOHNSON and CLARK, Circuit Judges, and DUMBAULD*, Senior District Judge
PER CURIAM:
(X) The Petition(s) for Rehearing are 
DENIED and no members of this panel nor 
other Judge in regular active service on 
the Court having requested that the Court 
be polled on rehearing in banc (Rule 35, 
Federal Rules of Appellate Procedure; 
Eleventh Circuit Rule 35-5), the 
Suggestion(s) of Rehearing In Banc are 
DENIED.
( ) The Petition (s) for Rehearing are
DENIED and the Court having been polled at 
the request of one of the members of the 
Court and a majority of the Circuit Judges 
who are in regular active service not 
having voted in favor of it (Rule 35, 
Federal Rules of Appellate Procedure; 
Eleventh Circuit Rule 35-5), the

214a



Suggestion(s) of Rehearing In Banc are 
also DENIED.
( ) A member of the Court in active 
service having requested a poll on the 
reconsideration of this cause in banc, and 
a majority of the judges inactive service 
not having voted in favor of it, Rehearing 
In Banc is DENIED.
ENTERED FOR THE COURT;

(Sgd.) Thomas A. Clarke * *
United States Circuit Judge

ORD-42
*Honorable Edward Dumbauld, Senior U.S. District Judge for the Western District of Pennsylvania, sitting by designation.

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