Littles v. Jefferson Smurfit Corporation (US) Petition for Writ of Certiorari

    No. 95-

I n  T h e

Supreme Court of tfjc fHntteb S ta tes
O cto ber  T e r m , 1995

Herbert Littles ,
Petitioner,

v.

J efferson  Smurfit Corporation (U.S.),
Respondent.

On Petition fo r  Writ o f Certiorari to the 
United States Court o f Appeals 

fo r  the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street, 16t.h fl. 
New York. NY 10013 
(212)219-1900

Reo Kirkland, Jr.
P.O. Box 646 
307 Evergreen Avenue 
Brewton, AL 36427 
(334) 867-5711

* James IJ. Blacksher 
Leslie M. Proll 
710 Title Building 
300 North 21st Street 
Birmingham, AL 35203
(205) 322-1100

*Counsel o f Record

Gregory B. Stein 
Stein & Brewster 
P.O. Box 1051 
Mobile, AL 36633 
(334) 433-2002

Eric Schnapper 
University of Washington 

School of Law 
1100 N.E. Campus Way 
Seattle, WA 98195
(206) 616-3167

Counsel for Petitioner

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208



Questions Presented

(1) Do sections 1981 and 1982 of 42 U.S.C. forbid the 
knowing use of practices which, by perpetuating past 
intentional discrimination, completely preclude all African- 
American entrepreneurs and black-owned firms from selling 
timber to scores of southern pulp and paper mills?

(2) Where a defendant is alleged to maintain, for 
discriminatory purposes, practices which perpetuate past 
intentional discrimination, may a plaintiff be precluded from 
offering evidence that such earlier intentional discrimination 
ever occurred?

l



Parties

The parties are the petitioner, Herbert Littles, and 
the respondent, Jefferson Smurfit Corporation (U.S.). 
Subsequent to the initiation of this action, the original 
defendant, Container Corporation of America, merged with 
another firm and changed its corporate name to Jefferson 
Smurfit Corporation (U.S.). Jefferson Smurfit Corporation 
(U.S.) is a wholly owned subsidiary of the Jefferson Smurfit 
Group, PLC.

li



Table of Contents
Page

Questions Presented......................................   i

P a rtie s ....................................................................... .. . . . ii

Table of Authorities............................................................ iv

Opinions Below ....................................................................1

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

Statutes Involved...............    2

Statement of the Case ........................................................ 3

REASONS FOR GRANTING THE W R IT .....................9

I. This Case Raises Important Issues Regarding 
Industry-Wide Segregation In A Vital Area
Of The South’s Economy.........................................9

II. The Decisions Below Are In Conflict With
Decisions Of This Court And Of Other 
C ircuits.................................................................  16

Conclusion..........................................  22

Appendix (opinions and orders below) ......................... la

in



Cases:

Adarand Constructors, Inc. v. Pena,
U.S.__ , 115 S. Ct. 2097 (1995).........................  22

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . .  13

Associated General Contractors v. City of
Jacksonville,__ U.S.___ , 113 S. Ct. 2297
(1993)..................... ................ ............................. 22

Bazemore v. Friday, 478 U.S. 385 (1986) . . . .  8, 16, 17, 18

Brinkley-Obu v. Hughes Training, Inc., 36 F.2d 336
(4th Cir. 1994)...............................................  18, 19

City of Richmond v. J.A. Croson Co., 488 U.S. 469
(1989)........................... ............................  9, 19, 22

Columbus Board of Educ. v. Penick, 443 U.S. 449
(1979)...............................................   19

Dixon v. Anderson, 928 F.2d 212 (6th Cir. 1991) ......... 18

EEOC v Penton Industrial Publishing Co., Inc., 851
F.2d 835 (6th Cir. 1988)........................................ 18

EEOC v. Container Corporation of America, 352 F.
Supp. 262 (M.D. Fla. 1972) ..........................   13

Florida v. Long, 487 U.S. 223 (1988) .............................. 17

Fullilove v. Klutznick, 448 U.S. 448 (1980)....................  22

Table of Authorities
Page

tv



Cases (continued):

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) . . .  19

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ...........  17

Guinn v. United States, 238 U.S. 347 (1915)...........  20, 21

Harrington v. Aetna-Bearing Co., 921 F.2d 717
(7th Cir. 1991)......................   18

Local 189, United Papermakers and Paperworkers v.
United States, 416 F.2d 980 (5th Cir. 1969),
cert, denied, 397 U.S. 919 (1970).........................  13

Louisiana v. United States, 380 U.S. 145 (1965)...........  19

Myers v. Anderson, 238 U.S. 368 (1915)......................... 21

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992) .............. 18

Oatis v. Crown Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968)...................................................... 13

Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir.
1991)............................................................... 18, 19

Rogers v. International Paper Co., 510 F.2d 1340
(8th Cir. 1975)...................................................... 13

Sigurdson v. Isanti County, 448 N.W.2d 62
(Minn. 1989)................................................. 18, 19

Table of Authorities (continued)
Page

v



Table of Authorities (continued)
Page

Cases (continued):

Stevenson v. International Paper Co., 516 F.2d
103 (5th Cir. 1975) .............................................  13

Suggs v. Container Corporation, Civ. No. 7058-72-P
(S.D. Ala. 1974) .................................................. 13

Swann v. Charlotte-Mecklenburg Bd. ofEduc.,
402 U.S. 1 (1974).................................................  19

United States v. Fordice, 505 U .S.__ , 112 S. Ct.
2727 (1992)........................................................... 20

Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir.
1976)...........   13

Webb v. Indiana National Bank, 931 F.2d 434
(7th Cir. 1991)......................................................  18

West Virginia Institute of Technology v. West
Virginia Human Rights Commission, 383
S.E.2d 490 (W. Va. 1989).............................  18, 19

Statutes:

42 U.S.C. § 1981 ............................................................. 14

42 U.S.C. §§ 1981, 1982 . . ................  i, 2, 3, 5, 7, 16, 17

42 U.S.C. §1982 . . . . .  2, 7, 14



Other Authorities:

Alabama Forestry Commission, Alabama’s World 
Class Forest Resource Fact Book 1995 
(1995) .................................................................... 10

Alabama Forestry Commission, Forests of
Alabama (1992).................................................... 11

The Brewton Standard, July 31, 1994 ...........................  11

The Brewton Standard, June 30, 1993 ...........................  11

Federal Reserve Bank of Atlanta, Economic
Review, Jan./Feb. 1988 ................................ 10, 11

Edward McPherson, The Political History of the 
United States During the Period of 
Reconstruction (1875)........................................... 14

U.S. Department of Agriculture, Agricultural
Statistics 1993 (1993) .................................   10

U.S. Department of Commerce, State and
Metropolitan Area Data Book 1991 (1991).........  10

Laurence C. Walker, The Southern Forest: A  Chronicle
(1991)..............................................................  9, 10

Table of Authorities (continued)
Page



In the
Supreme Court of ti)e Mmteb States?

October Term, 1995 
No. 95-

H e r b e r t  Lit t l e s ,
Petitioner,

v.
Je f f e r s o n  Sm u r f it  C o r p o r a t io n  (U .S .),

Respondent.

On Petition for Writ of Certiorari to the 
United States Court of Appeals 

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner Herbert Littles respectfully prays that this 
Court grant a writ of certiorari to review the judgment and 
opinion of the United States Court of Appeals for the 
Eleventh Circuit entered on March 28, 1995. The Court of 
Appeals denied a timely petition for rehearing on June 13, 
1995.

Opinions Below

The opinion of the Eleventh Circuit, which is not 
officially reported, is set out at pp. la-2a of the Appendix 
hereto ("App."). The order of the Court of Appeals denying 
petitioner’s petition for rehearing and suggestion for 
rehearing en banc is unreported, and is set out in App. 48a- 
49a.

The order of the district court of April 30, 1992, 
denying class certification, is set out at App. 3a-lla. The 
opinion and order of the district court of March 3, 1992, 
denying cross motions for summary judgment, are set out at 
App. 12a-27a. The two district court orders regarding



motions in limine, both dated August 23, 1993, are set out 
at App. 28a-33a and 34a-36a. The district court’s oral 
rulings on the admissibility of certain evidence are set out at 
App. 37a-41a. The jury verdict is set out at App. 42a-43a. 
The district court’s order of December 1, 1993, denying 
petitioner’s motion for equitable relief, is set out at App. 
44a-45a. The district court order of February 10, 1994, 
denying petitioner’s motion for judgment as a matter of law, 
is set out at App. 47a. None of the district court orders is 
officially reported.

Jurisdiction

The decision of the Eleventh Circuit was entered on 
March 28, 1995. Petitioner’s timely petition for rehearing 
and suggestion for rehearing en banc was denied on June 13, 
1995. On September 9, 1995, Justice Kennedy granted an 
order extending the time for filing a petition for a writ of 
certiorari until September 21, 1995.

Statutes Involved

Section 1981(a) of 42 U.S.C. provides in pertinent
part:

All persons within the jurisdiction of the United 
States shall have the same right in every state and 
territory to make and enforce contracts . . .  as is 
enjoyed by white citizens. . . .

Section 1981(c) of 42 U.S.C., provides:
The rights protected by this section are protected 
against impairment by nongovernmental  
discrimination and impairment under color of State 
law.

Section 1982 of 42 U.S.C. provides:

All citizens of the United States shall have the same 
right, in every State and Territory, as is enjoyed by

2



white citizens thereof to inherit, purchase, lease, sell, 
hold, and convey real and personal property.

Statement of the Case

This case concerns a practice peculiar to the southern 
forest products industry pursuant to which scores of pulp 
and paper mills will buy timber only from whites. The 
courts below held that this practice, despite its enormous 
economic impact, does not violate 42 U.S.C. §§ 1981 and 
1982, even where a mill operator knows the practice 
perpetuates its own intentional discrimination.

Most southern pulp and paper mills purchase their 
timber supplies, known as "pulpwood," as does respondent, 
through a system of exclusive "dealers." Under this 
dealership system a mill designates a pre-selected group of 
firms as its "dealers" and refuses to buy lumber from anyone 
else. The dealers themselves may not necessarily cut, deliver 
or own all or even any of the timber they "sell" to the mill. 
Rather, because the dealers enjoy this exclusive right, any 
firm which wants to supply wood to the mill must do so 
under the auspices of a dealer and must pay the dealer for 
permission to deliver wood to the mill. Firms which cut and 
haul timber to these mills, but which have not been 
designated as dealers, are known in the industry as 
"producers."

It is undisputed that today literally all of the dealers 
throughout the South are white. In the proceedings below 
respondent so stipulated:

[Counsel for Petitioners]: We are . . . going i . . to 
show that there are no black dealers anywhere . . . 
The fact is that nobody has found, either on our side 
or the defendant’s side, throughout the case a single 
black wood dealer anywhere in the south.

3



THE COURT: [I]f it’s relevant that there are no 
black wood dealers anybody knows of in any industry, 
you don’t need a witness to prove i t . . . .  You can ask 
any Container witnesses on the stand on cross
[Counsel for Respondent]: It is a stipulated fact, 
Judge.

THE COURT: Okay. Then that eliminates that.
(Tr. 41). A succession of white wood dealers and others 
testified that there are in fact no black wood dealers.1 
Respondent’s forestry expert acknowledged that use of this 
"dealer" system is widespread in the South.* 2

Respondent operates in Brewton, Alabama, one of 
the mills utilizing this dealer system. It buys pulpwood 
exclusively from a group of approximately forty "dealers," all 
of whom are white (App. 5a). Petitioner is one of the 
African-American producers with whom respondent refuses 
to contract. Although petitioner has been supplying

xTr. 365-66, 578, 673, 689, 705, 840. An expert on the lumber 
industry called by respondent could identify in the entire history of 
the South only one black businessman who had ever been a dealer. 
The expert explained that this had occurred in the "[l]ate sixties, early 
seventies . . . under the pressure of the Federal Government" and 
that the black logger in question had actually functioned as a dealer 
for only "about six or seven weeks" (Tr. 782). The expert conceded 
he knew of no black dealers "in Alabama today" (Tr. 780). After 
initially suggesting there might be a black dealer in South Carolina, 
the expert conceded that the individual in question might merely have 
been hired to cut timber on land owned by the mill for which he 
worked (Tr. 780-81); such an arrangement would not constitute a 
dealership (Tr. 780).

2Tr. 763 ("[t]he vast majority of the industry procures their wood 
through . . .  the dealer systems"), 771 ("[t]he vast majority . . .  of all 
the wood that’s produced in the south is through the dealer . . . 
system").

4



pulpwood regularly to respondent’s Brewton mill since 1962, 
petitioner himself never has been permitted to sell the mill 
so much as a single log. Instead, petitioner has been forced 
to market his wood to respondent by going through a white 
dealer willing to lend his name to the transaction.3 The 
economic role of the white dealer, in petitioner’s case, is 
nominal. Petitioner himself buys the standing timber, 
employs his own crew to cut the trees, and transports the 
logs to the mill on his own trucks (Tr. 192). The white 
dealer never has possession of or title to the wood, never 
actually sees it, and has no reason to know where or when 
it was harvested (Tr. 151-52). Petitioner is required to pay 
white dealers tens of thousands of dollars a year for 
permission to sell wood under their auspices.4

Petitioner filed suit in the district court for the 
Southern District of Alabama, seeking an injunction 
requiring that he be designated as a dealer, as well as 
damages. Petitioner asserted, inter alia, that by utilizing its 
particular dealer system, respondent was knowingly 
perpetuating prior intentional racial discrimination. His 
complaint asserted that such perpetuation violates sections 
1981 and 1982 of 42 U.S.C.5

Petitioner alleged that respondent’s practices 
perpetuated prior intentional discrimination in two distinct 
ways. First, at some point prior to 1979 respondent 
concededly froze the list of dealers with whom it would

3As one of respondent’s supervisors pointedly observed, "[h]e has 
to sell it to a white man who sells it to Container" (Tr. 111).

“Petitioner pays a dealer a commission of $2.00 to $6.50 per cord 
of wood delivered to the mill, or as much as $60.00 for each truck 
load (Tr. 200-01).

5Amended Complaint, $1! 22A, 22B.

5



thereafter do business (Tr. 442, 464, 578). As of 1979, of 
course, all of respondent’s dealers were white. Petitioner 
alleged that prior to 1979 respondent had an intentionally 
discriminatory policy of selecting only whites as dealers. The 
courts below never addressed that contention, which for the 
purposes of this appeal must be assumed to be true.6 
Because of this freeze, many of the firms today permitted to 
sell wood to respondent are the very firms which were 
designated as dealers prior to 1979.7 Increasingly, the 
individuals who own and operate respondent’s dealerships 
are the sons of the white men who were designated dealers 
during the period of alleged avowed intentional 
discrimination.8 This system thus perpetuates into the 
indefinite future decisions originally made prior to 1979, 
allegedly on the basis of race, limiting the firms from which 
respondent will buy wood.9

Petitioner asserted, second, that on those occasions 
since 1978 when respondent had made an exception to the 
freeze and contracted with a new dealer, respondent would 
consider only firms which had already been designated as 
dealers by some other mill, a restriction respondent admitted 
(Tr. 284, 442, 548). All of the firms able to meet this

Respondent’s Answer did not deny it had once practiced racial 
segregation at its Brewton mill; it only denied racial discrimination 
"during any time period relevant to this lawsuit." Answer 1! 3.

7Tr. 445, 446-47, 560, 598, 599.

8Tr. 548 (ownership of current dealerships often comes "[fjhrough 
inheritance. Many times a son will come into an operation that his 
father had previously been operating [as] a dealership and his son will 
take over the business"), 848.

’Although the firms that held these dealerships were occasionally 
sold privately, none was ever sold to a black person.

6



requirement, of course, are -- and always have been — white 
(see App. 5a); five new dealers added since 1979 were white. 
Petitioner alleged that respondent knew that the other mills 
in question engaged in intentional discrimination in 
designating these dealers; here too the courts below did not 
address or resolve this factual allegation. Firms thus 
occasionally added to respondent’s list of dealers were 
usually owned by whites who had been doing business as 
dealers for decades,10 * or by their children.11

The district court repeatedly held that these claims of 
knowing perpetuation of prior intentional discrimination 
were not actionable under either section 1981 or section 
1982. First, in response to motions for summary judgment, 
the district court ruled that the perpetuation allegations 
failed to state a claim upon which relief could be granted.

[T]he legal claims raised are not relevant in the 
instant action. . . . [Pjlaintiff . . . may not proceed on 
the theory that the adoption of policies that 
unintentionally "lock in" past discrimination are 
sufficient to prove his cause of action under either § 
1981 or § 1982.

(App. 26a n.5). Second, after a juiy trial on other issues, 
petitioner filed a motion for equitable relief on his 
perpetuation claims. The district court denied these claims 
as a matter of law, reasoning that "the legal arguments 
raised by plaintiff in support of the claims have been 
previously rejected by this Court" (App. 44a). Third, the 
district court denied petitioner’s post-trial motion for

10Tr. 663 (firm had held dealership with another mill since 1968), 
710-11 (firm had held dealership with another mill since 1964), 684 
(firm had held dealership with another mill since 1950).

uTr. 685.

7



judgment as a matter of law on the perpetuation claims 
(App. 47a).

Petitioner was permitted to proceed to trial only on 
the narrow issue of whether after October, 1989, 
respondent’s officials had made a specific race-based 
decision to deny petitioner a dealership. The district court 
granted two motions in limine precluding respondent from 
offering evidence of historic discrimination in the selection 
of dealers (App. 28a-36a). The court below continued to 
preclude such evidence even after, as a supposedly benign 
explanation for its actions, respondent relied on the fact 
that there were no black wood dealers (Tr. 279-289; App. 
37a-41a). The district court rejected instructions proffered 
by petitioner which would have permitted the jury to 
consider the perpetuation claims.

Petitioner argued below that the decisions of this 
Court have repeatedly held unlawful the knowing use of 
practices which perpetuate prior intentional discrimination. 
Acknowledging that the Court had so held in Bazemore v. 
Friday, 478 U.S. 385 (1986), the district court insisted that 
Bazemore applied only to disparate impact claims: 
"Bazemore . . . addressed the use of prior act evidence to 
prove disparate impact under Title VII. Intent was not an 
issue" (App. 30a). Because sections 1981 and 1982 require 
proof of discriminatory intent, the court below reasoned, 
Bazemore was irrelevant.

On appeal petitioner argued that sections 1981 and 
1982 forbid utilization of practices known to perpetuate 
prior intentional discrimination. The court of appeals, in a 
summary opinion devoid of explanation, affirmed the 
dismissal of the perpetuation claims (App. la-2a, 48a-49a).

8



REASONS FOR GRANTING THE WRIT

I. This Case Raises Important Issues Regarding
Industry-Wide Segregation In A Vital Area Of The
South’s Economy

Six years ago this Court observed that "the sorry 
history of both private and public discrimination in this 
country has contributed to a lack of opportunities for black 
entrepreneurs," City of Richmond v. J.A. Croson Co., 488 
U.S. 469, 499 (1989). The Court noted as well the existence 
of "abundant historical evidence" that facially neutral 
practices "when applied to minority businesses, could 
perpetuate the effects of prior discrimination." 488 U.S. at 
488, quoting Fullilove v. Klutznick, 448 U.S. 448, 478 (1980). 
The legal question presented by this case is whether firms 
which long engaged in intentional discrimination against 
black entrepreneurs may continue to contract only with 
whites by adopting practices which perpetuate that past 
intentional discrimination.

The practical question presented is whether a key 
portion of the most important industry in the economy of 
the South will continue for the indefinite future to be 
literally all white. The wood products industry is today the 
backbone of the economies of the southern states. What 
was once the land of cotton is now the land of timber. The 
value of southern timber harvested each year long ago 
exceeded the value of any other agricultural crop. In 
Alabama the value of the timber harvest equals the 
combined value of all other crops grown in the state.12 
Southern states account for 58% of all the timber produced 
each year in the United States, more than twice the

12Laurence C. Walker, The Southern Forest: A  
CHRONrcLE 251-52 (1991).

9



production of the Pacific Coast states.13 Among the states 
with the highest percentage of jobs in the wood products 
industry, half are in southern states, including Alabama.14 
Sixty-six percent of all Alabama land is devoted to forests 
with 15 billion trees, compared with only 29% for the 
country as a whole.15

The pivotal role of the southern timber industry is 
certain to increase in the years ahead. Sixty-six percent of 
all new seedlings planted in the United States each year are 
in the South; Alabama, with 10% of the total new acreage, 
is second in the country.16 Southern states enjoy a natural 
advantage in timber production, because "the southern 
climate promotes faster tree growth and thus a better per- 
acre return over time."17 The percentage of wood 
production coming from the South is expected to rise as the 
supplies of virgin timber are exhausted in northern 
California and the Pacific Northwest.18

The timber industry is particularly important in 
Alabama. The state is the second largest pulpwood

13U.S. Department of Agriculture, Agricultural 
Statistics 1993 445 (1993).

14U.S. Department of Commerce, State and Metropolitan 
Area Data Book 1991 267 (1991).

15Federal Reserve Bank of Atlanta, Economic Review, 
Jan./Feb. 1988, at 9; Alabama Forestry Commission, Alabama’s 
World Class Forest Resource Fact Book 1995 3 (1995).

^Agricultural Statistics 1993, supra note 13, at 443.

17Economic Review, supra note 15, at 12.

18The Southern Forest: A Chronicle, at 232.

10



producer in the U.S., behind only Georgia.19 The state’s 22 
million acres of commercial forest are third in the 
countiy.20 The $9.1 billion21 wood products industry 
accounts for 18% of manufacturing payrolls in Alabama, 
more than any other segment of the state’s economy.22 
The state’s 250 mills and 800 secondary wood product 
manufacturers23 support, directly or indirectly, more than 
150,000 jobs with a related income of approximately $3 
billion.24

But, three decades after Congress restated a national 
policy of racial non-discrimination, an entire segment of this 
industry — wood dealers -- remains all white. The sheer 
number of businesses involved, and thus the magnitude of 
the economic opportunities foreclosed to blacks, makes this 
continuing segregation palpably important. Systemic 
exclusion of blacks from the dealership business is all the 
more significant because the harvesting of timber is one of 
the few areas of the industry available for new small 
entrepreneurs. The lumber and paper mills themselves are 
generally multi-million dollar facilities, often, as in this case, 
owned by large multinational corporations. Because of the 
time required for trees to reach maturity, ownership of 
timber land is a capital-intensive, long-term investment. But

19Economic Review, supra note 15, at 8.

2(T he Brewton Standard, July 31, 1994, at 10.

21 Alabama Forestry Commission, Forests of Alabama 14 
(1992).

22The Brewton Standard, June 30, 1993, at 11.

“Forests of Alabama, at 14.

24Id.

11



a black entrepreneur, whatever his or her expertise, 
experience or determination, has virtually no chance to 
reach the coveted status of wood dealer. The white 
monopoly of economic power in the dealer business 
manifestly has broader racial and economic ramifications; 
petitioner asserted in the court below, for example, that the 
number of black producers in Brewton has declined because 
the white dealers, who alone determine who can sell to 
respondent and at what price, have intentionally squeezed 
black loggers out of business.

The allegations in this case describe a system at the 
mill in question which assures with almost mathematical 
precision that the mill’s dealers will remain all white in 
perpetuity. Respondent’s annually renewed dealer contracts 
have long been limited to the dealers designated in years 
before, a scheme which reaches back through a chain of 
annual dealership contracts to an era prior to 1979, when 
respondent allegedly pursued an explicitly discriminatory 
policy. If an additional dealer is needed, respondent will 
consider only those firms -  all white-owned ~ that have 
previously been designated as dealers by some other mill. 
Ownership of the firms holding these prized dealerships is 
increasingly being passed on by inheritance to the children 
of the men who decades ago were the beneficiaries of 
alleged systemic segregation.

Petitioner asserts that respondent’s practices 
perpetuate not some amorphous societal discrimination but 
specific acts of discrimination by respondent and other 
southern mills taken, as respondent well knew, to assure that 
all wood dealers were white. This dealer selection scheme 
is the economic equivalent of the infamous grandfather 
clause.

That this systemic exclusion of black-owned firms has 
occurred in the timber industry is not surprising. Paper 
mills, the single largest purchaser of southern timber, were

12



among the most recalcitrant practitioners of racial 
segregation. Successful employment discrimination cases 
against the pulp and paper segment of the industry are 
legion.25 Challenges to racially segregated jobs at 
respondent’s own mills in Brewton and Femandina Beach, 
Florida, were resolved by settlements which fundamentally 
restructured their promotion processes.26 The complete 
exclusion of blacks from the role of wood dealer in the 
South reflects as well the structure of the industry. In other 
areas of economic activity, such as retail sales, there are 
numerous potential buyers, many of them black, a 
circumstance which prevents total exclusion of black 
entrepreneurs. But in the wood products industry, the 
pulpwood harvested by tens of thousands of loggers working 
for numerous producers can be sold only to a limited 
number of mills. Equally important, because transporting 
raw timber more than 50 miles is often economically 
unfeasible, a single mill may dominate timber production in 
a given area. Respondent’s Brewton mill, for example, is the 
only paper mill in Escambia County, Alabama, where 
petitioner harvests timber.

These circumstances in the southern timber industry 
are expressly prohibited by the language of sections 1981 and 
1982. In that industry, all persons do not "have the same

^E.g., Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); Watkins 
v. Scott Paper Co., 530 F.2d 1159 (5th Cir. 1976); Stevenson v. 
International Paper Co., 516 F.2d 103 (5th Cir. 1975); Rogers v. 
International Paper Co., 510 F,2d 1340 (8th Cir. 1975); Local 189, 
United Papermakers and Paperworkers v. United States, 416 F.2d 980 
(5th Cir. 1969), cert, denied, 397 U.S. 919 (1970); Oatis v. Crown 
Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968).

26Suggs v. Container Corporation, Civ. No. 7058-72-P (S.D. Ala. 
1974). See EEOC v. Container Corporation o f America, 352 F. Supp. 
262 (M.D. Fla. 1972).

13



right . . .  to make and enforce contracts . . .  as is enjoyed by 
white citizens." 42 U.S.C. § 1981. On the contrary, the only 
persons who can make contracts to sell wood to the mills in 
question are whites. Similarly, "[a]ll citizens" do not "have 
the same right . . .  as is enjoyed by white citizens . . . to . . . 
sell . . . and convey . . . personal property." 42 U.S.C. § 
1982. Only white persons have the right to sell timber to the 
southern mills using the dealer system. The problem here 
is not that petitioner’s request for a dealership is being 
considered and rejected on the merits; rather, respondent’s 
system assures that petitioner will never even be considered 
for one of its dealer contracts.

The racial structure of this industry is a pristine 
illustration of the very abuse sections 1981 and 1982 were 
created to end. The 1866 Civil Rights Act was adopted to 
make good the promise of the Thirteenth Amendment by 
removing obstacles which prevented the newly freed slaves 
from escaping a role of economic subservience to whites. 
The infamous Black Codes included provisions, calculated to 
perpetuate that subservience, which precluded blacks from 
selling the goods they had produced on the open market.27

27For example, South Carolina law provided that any "person of 
color" employed on a farm "shall not have the right to sell any corn, 
rice, peas, wheat, or other grain, any flour, cotton, fodder, hay, bacon, 
fresh meat of any kind, [or] poultry of any kind" without written 
permission of his "master" or a state judge. Edward McPherson, 
The Political History of the United States During the 
Period of Reconstruction 35 (1875). Another law in that state 
provided that "no person of color shall pursue or practice the art, 
trade, or business of an artisan, mechanic, or shopkeeper, or any 
other trade, employment or business (besides that of husbandry, or 
that of a servant under a contract for service or labor)," unless he or 
she obtained a license from a state judge and paid in advance a 
prohibitive annual fee of $100. id. at 36. North Carolina law 
invalidated any contract by a person of color for the sale "of any 
horse, mule, ass, jennet, neat cattle, hog, sheep or goat," or of any

14



The guarantee now contained in section 1982 of the right to 
"purchase, lease, hold, and convey real and personal 
property" was framed above all to enable African Americans 
to participate in the free enterprise economy in their own 
right, rather than merely as employees of or under the 
auspices of whites.

Thus the issue presented by this case is of decisive 
importance for the economic and racial structure of the 
southern timber industry. The circumstances of this case 
present a particularly compelling claim. Petitioner has been 
supplying timber to respondent’s mill for more than three 
decades without ever being permitted to sell his goods 
directly to the mill, even though petitioner buys all his wood 
from landowners and performs all the functions of a dealer. 
The dealer selection policy respondent now has in place 
guarantees that this situation is unlikely ever to change. 
Because wood dealers are independent contractors, not 
employees, Title VII is inapplicable. Sections 1981 and 1982 
are the only federal laws that could be invoked to end the 
total exclusion of blacks from this pivotal role in the 
industry. If, as the courts below held, allegations of such 
knowing perpetuation of intentional discrimination are never 
actionable under sections 1981 and 1982, the exclusionary 
dealer system will be immune from judicial scrutiny, and the 
wood dealers in Brewton and throughout the South are 
likely to remain all white for generations to come.

articles worth more than $10, "unless . . . witnessed by a white 
person." Id. at 29. Several Louisiana parishes adopted ordinances 
simply directing, "Every negro is required to be in the regular service 
of some white person." WALTER FLEMING, 1 DOCUMENTARY 
History of Reconstruction 280 (1966 ed.) (1906).

15



II. The Decisions Below Are In Conflict With Decisions 
Of This Court And Of Other Circuits

The courts below held that an allegation of knowing 
perpetuation of past intentional discrimination does not state 
a claim under sections 1981 and 1982. The decisions below 
are flatly inconsistent with reported decisions of this Court 
and of the other courts of appeals

(1) The lower court acknowledged that the 
allegations in the instant case would state a "compelling" 
claim if Bazemore v. Friday, 478 U.S. 385 (1986) applied to 
claims under sections 1981 and 1982 (App. 26a). In 
Bazemore black workers hired prior to 1972 continued to be 
paid less then white contemporaries because salary levels 
two decades later were still based in part on pre-1972 
salaries. 478 U.S. at 394. In the instant case, a white firm 
designated as a dealer prior to the pre-1979 freeze is paid 
$54.00 if it cuts and delivers a cord of pine pulpwood; a 
black owned firm, unable because of race to obtain that 
designation prior to 1979, receives only $47.50 to $52.00 for 
logging and delivering the identical cord of wood.

Bazemore held that Title VII was violated by
salary disparities created prior to 1972 and 
perpetuated thereafter. . . . That the Extension 
Service discriminated with respect to salaries prior to 
the time it was covered by Title VII does not excuse 
perpetuating that discrimination . . . .  [T]o the extent 
that the discrimination was perpetuated after 1972, 
liability may be imposed.

478 U.S. at 395 (emphasis added). In this case, however, the 
court below insisted that the Bazemore anti-perpetuation rule 
was inapplicable to claims of intentional discrimination. 
"Bazemore . . . addressed the use of prior act evidence to 
prove disparate impact under Title VII. Intent was not an

16



issue" (App 30a). Thus, the district court reasoned, 
Bazemore was irrelevant to a claim of intentional 
discrimination under 42 U.S.C.§§ 1981 and 1982 (App. 30a).

This decision is flatly inconsistent with this Court’s 
actual opinion in Bazemore itself. Although Title VII applies 
both to intentional discrimination and to certain instances of 
disparate impact, the salary claim in Bazemore was an intent 
claim. Had Bazemore involved a disparate impact claim, a 
judicial determination of the legality of existing wage 
disparities would have required consideration, inter alia, of 
whether locking in pre-Act disparities might have been 
justified by "business necessity". But the Court’s opinion in 
Bazemore refers neither to the essential disparate impact 
standards nor to any of the Court’s numerous disparate 
impact decisions. E.g., Griggs v. Duke Power Co., 401 U.S. 
424 (1971). Rather, this Court held simply that "the present 
salary structure . . .  is illegal if it is a mere continuation of 
the pre-1965 discriminatory pay structure", 478 U.S. at 397 
n.6, a holding that made sense only if the Court regarded 
such perpetuation as a species of intentional discrimination. 
Subsequent decisions of this Court have recognized that the 
perpetuation in Bazemore violated Title VII because it 
amounted to a continuation of intentional pre-1972 
discrimination. Thus in Florida v. Long, 487 U.S. 223, 239 
(1988), the Court explained that "Bazemore concerned the 
continuing payment of discriminatory wages based on 
employer practices prior to Title VII."

The lower court’s decision limiting Bazemore to Title 
VII effect claims conflicts as well with decisions in three 
other circuits and with decisions by two state supreme 
courts. These other jurisdictions uniformly agree that the 
circumstances in Bazemore were unlawful because they 
constituted a continuance of the original pre-1972 
intentional discrimination. This contrary rule prevails in the

17



Fourth,28 Sixth,29 and Seventh Circuits,30 as well as in the 
states of Minnesota31 and West Virginia32. Far from 
limiting Bazemore to Title VII disparate impact claims, as 
did the courts below, these other jurisdictions treat Bazemore 
as equally applicable to claims under section 1981,33 the 
Equal Pay Act,34 the Age Discrimination in Employment 
Act,35 ERISA,36 the Pregnancy Discrimination Act37 and

28 Brinkley-Obu v. Hughes Training, Inc., 36 F.2d 336, 347 (4th 
Cir. 1994) (Bazemore a "‘continuing’ violation"); Nealon v. Stone, 958 
F.2d 584, 592 (4th Cir. 1992) (continuing violation principle applies 
under Bazemore).

29 Dvcon v. Anderson, 928 F.2d 212, 216 (6th Cir. 1991) 
{Bazemore example of "continuing violation"); EEOC v Penton 
Industrial Publishing Co., Inc., 851 F.2d 835, 838 (6th Cir. 1988) ("The 
Supreme Court has recognized the existence of a ‘continuing 
violation’ so long as disparities continue").

30 Webb v. Indiana National Bank, 931 F.2d 434, 437 (7th Cir. 
1991) (Bazemore a "continuing violation" so long as "[t]he disparity in 
pay persisted").

31 Sigurdson v. Isanti County, 448 N.W.2d 62, 67-68 (Minn. 1989) 
(Bazemore recognizes "the continuing violation doctrine").

32 West Virginia Institute o f Technology v. West Virginia Human 
Rights Commission, 383 S.E.2d 490, 499 (W. Va. 1989) (Bazemore a 
"disparate treatment" claim involving a "continuing violation").

33 Webb v. Indiana National Bank, 931 F.2d at 437.

34 Brinkley-Obu v. Hughes Training, Inc., 36 F.3d at 345-50; 
Nealon v. Stone, 958 F.2d at 590 n.4; EEOC  v. Penton Industrial 
Publishing Company, Inc., 851 F.2d at 838.

35 Harrington v. Aetna-Bearing Co., 921 F.2d 717, 721 (7th Cir. 
1991).

18



a variety of state anti-discrimination laws.36 37 38 None of these 
decisions concerned, or suggested these other statutes even 
encompassed, disparate impact claims.39

(2) The decision below is inconsistent as well with 
half a century of decisions of this Court interpreting the 
Fourteenth and Fifteenth Amendments, which like sections 
1981 and 1982 prohibit intentional racial discrimination. 
Goodman v. Lukens Steel Co., 482 U.S. 656 (1987).

This Court has repeatedly struck down facially 
neutral state practices where they perpetuated prior 
discrimination. Thus the Court has held that states cannot 
continue to use voter registration lists constructed in a 
discriminatory manner even if subsequent registration is to 
be conducted in a non-discriminatory manner, Louisiana v. 
United States, 380 U.S. 145, 154-56 (1965). In Swann v. 
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 21 (1974), 
the Court forbade former de jure segregated school systems 
from utilizing facially neutral practices which "perpetuate 
. . . the dual system." See Richmond v. J.A. Croson Co., 488 
U.S. 469, 524 (1989) (Scalia, J., concurring) (Fourteenth 
Amendment requires modification of student assignment 
practices which "perpetuate a ‘dual system’"); Columbus 
Board of Educ. v. Penick, 443 U.S. 449, 460 (1979) (school 
officials must assure that even facially neutral practices "do

36 Pallas V. Pacific Bell, 940 F.2d 1324, 1327 (9th Cir. 1991).

37 Pallas v. Pacific Bell, 940 F.2d at 1326-27.

38 Id. (California Fair Employment and Housing Act); Sigurdson 
v. Isanti County, 448 N.W. 2d 62, 67, 68 (Minn. 1989) (Minnesota 
Human Rights Act); West Virginia Institute of Technology, 383 S.E. 2d 
at 499 (West Virginia Human Rights Act).

39 See, e.g., Brinkley-Obu v. Hughes Training, Inc., 36 F.3d at 334- 
51 (applying Bazemore to a Title VII intent claim).

19



not serve to perpetuate . . . the dual school system"). In the 
context of higher education the Court has held that a state 
remains in violation of the Fourteenth Amendment if it "has 
perpetuated its formerly de jure segregation in any facet of 
its institutional system," United States v. Fordice, 505 U.S.
__ , 112 S. Ct. 2727, 2735 (1992); see also id. at 2742
(facially neutral college mission designations adopted for 
non-discriminatory purpose nonetheless unconstitutional 
absent special justification if they "tend to perpetuate the 
segregated system"), 2743 (state has not met its 
constitutional obligations "when it perpetuates a separate but 
‘more equal’" segregated system).

The circumstances of this case bear an uncanny 
resemblance to the infamous "grandfather clause" found 
unconstitutional in Guinn v. United States, 238 U.S. 347 
(1915). The statute in Guinn exempted from certain 
onerous voter registration requirements any person "who 
was, on January 1, 1866, . . . entitled to vote . . .  [or any] 
lineal descendant of such person." 238 U.S. at 357. In the 
instant case, the exclusive right to do business with 
respondent, like the right to vote in Guinn, is increasingly 
exercised by the descendants of the original white 
beneficiaries of discrimination. Like the pre-1979 freeze in 
the instant case, the grandfather clause perpetuated 
indefinitely the favored treatment of whites that had 
occurred in the past. The grandfather clause, like 
respondent’s policy freezing the pre-1979 dealer list, 
contained on its face no express racial distinction,

but the standard itself inherently brings that result 
into existence since it is based purely upon a period 
of time [of avowed discrimination] and makes that 
period the controlling and dominant test of the right 
of suffrage.

238 U.S. at 364-65. The freeze at issue in the instant case 
establishes as "the controlling and dominant test" of

20



qualification for a current dealership whether a firm had 
been able to obtain a dealership prior to 1979, an era, 
petitioner alleges, when it was respondent’s avowed policy to 
designate only whites as dealers.

(3) The decision below also departed from the 
teachings of this Court in holding that sections 1981 and 
1982 permitted respondent to limit any new post-1979 
dealers to firms already designated as dealers by other mills, 
where petitioner alleged that respondent well knew that 
those other mills had discriminated and continued to 
discriminate on the basis of race in selecting dealers.

In Guinn, for example, the Oklahoma grandfather 
clause conferred special status on persons who were "on 
January 1, 1866, or at any time prior thereto, entitled to vote 
under any form of government." 238 U.S. at 384. The 
discriminatory status quo ante thus incorporated into. 
Oklahoma law was primarily the discriminatory voter 
registration requirements imposed by jurisdictions other than 
Oklahoma. In 1866 most of what is now Oklahoma was 
Indian territory, and virtually all of the whites who in 1910 
received favorable treatment under the Oklahoma law did so 
because they were descendants of white residents of other 
states. If it was intentional discrimination for Oklahoma 
thus to perpetuate discrimination by Texas and other 
southern states, surely the same is true where respondent 
bases its contracting practices on other mills’ intentional 
discrimination, of which petitioner alleged that respondent 
was aware.40

40 In a decision handed down the same day as Guinn, the Court 
struck down an Annapolis ordinance which exempted from certain 
restrictive registration requirements "descendants of any person who 
prior to January 1, 1888, was entitled to vote in this State or in any 
other State of the United States." Myers v. Anderson, 238 U.S. 368, 377 
(1915) (emphasis added). This standard effectively perpetuated pre-

21



(4) The evidentiary issues presented by this case are 
inextricably intertwined with the question presented 
regarding the scope of sections 1981 and 1982. In barring 
evidence of the historic exclusion of blacks from wood 
dealerships, the district court avowedly relied on its view that 
those sections simply did not forbid the knowing 
perpetuation of past intentional discrimination. The 
exclusion of that evidence thus rested on a mistaken 
interpretation of the substantive statutes at issue, not on any 
exercise of discretion.

Conclusion

The Court has dealt repeatedly and forcefully in the 
past with the problem of remedying discrimination against 
black citizens seeking to be hired and fairly treated by 
employers. It has had fewer opportunities to exercise its 
discretionary jurisdiction to grapple with the equally severe, 
widespread and persistent problems faced by black-owned 
firms or contractors and African-American entrepreneurs 
who seek to enter and to compete effectively in our nation’s 
market economy. The Court has, rather, heard and decided 
principally reverse-discrimination claims by white-owned
businesses. See Adarand Constructors, Inc. v. Pena,__ U.S.
__ , 115 S. Ct. 2097 (1995); Associated General Contractors
v. City o f Jacksonville,__ U .S.___ , 113 S. Ct. 2297 (1993);
City o f Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); 
Fullilove v. Klutznick, 448 U.S. 448 (1980).

The constitutional issues raised by these cases were 
of considerable moment. But surely the availability or non­
applicability of federal statutory remedies to eradicate actual 
discrimination against black entrepreneurs is as important an 
issue for review as was ensuring, in those earlier cases, that

1868 discrimination in all of the states from which Annapolis 
residents might have migrated by the early twentieth century.

22



voluntary remedial measures do not exceed permissible 
limits. For that reason, as well as for those given above, a 
writ of certiorari should issue to review the judgment and 
opinion of the Court of Appeals for the Eleventh Circuit in 
this matter.

Respectfully submitted,

E l a in e  R . Jo n e s , 
Director-Counsel

T h e o d o r e  M . Sh a w  
N o r m a n  J. Ch a c h k in  
C h a r l e s  St e p h e n  R a l s t o n  
NAACP L e g a l  D e f e n s e  a n d  
E d u c a t io n a l  F u n d , In c .

99 Hudson Street, 16th fl.
New York, NY 10013 
(212) 219-1900

R eo  Kir k l a n d , Jr .
P.O. Box 646 
307 Evergreen Avenue 
Brewton, AL 36427 
(334) 867-5711

*Ja m e s  U . B l a c k sh e r  
L e sl ie  M . Pr o l l  
710 Title Building 
300 North 21st Street 
Birmingham, AL 35203

* Counsel o f Record

G r e g o r y  B . St e in  
St e in  & B r e w s t e r  
P. O. Box 1051 
Mobile, AL 36633 
(334) 433-2002

E r ic  Sc h n a p p e r  
U n iv e r s it y  o f  
W a sh in g t o n  Sc h o o l  
o f  L a w

1100 N.E. Campus Way 
Seattle, WA 98195 
(206) 616-3167

Counsel for Petitioner

23



APPENDIX



March 28, 1995

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 94-6205
Non-Argument Calendar 

D.C. Docket No. VC-91-0851-CB-S

HERBERT LITTLES,

Plaintiff-Counter-Defendant-Appellant,

versus

CONTAINER CORPORATION OF AMERICA,

Defendant-Counter-Claimant-Appellees. 

CLAUDE ALFORD,

Movant.

Appeal from the United States District Court 
For the Southern District of Alabama

(March 28, 1995)

Before TJOFLAT, Chief Judge, DUBINA and 
BARKETT, Circuit Judges.

PER CURIAM:

Appellant is a producer of pulp wood. He sells the 
pulp wood he cuts to pulp wood dealers; the dealers, in turn, 
sell the wood to, among others, appellee’s paper mill in



2a

Brewton, Alabama.
In the district court, appellant contended that 

appellee had discriminated against him on account of his 
race, in violation of 42 U.S.C. §§ 1981 and 1982, by refusing 
to enter into a dealership contract with appellant. Appellant 
sought money damages and injunctive relief (requiring 
appellee to make him on of appellee’s dealers). A jury 
found that appellee had not discriminated against appellant 
as alleged; accordingly, the district court gave appellee 
judgment on appellant’s damages claim. Relying on the 
jury’s finding of no discrimination, the court also denied 
appellant the injunction he sought.

Following the entry of final judgment for appellees, 
appellant moved the district court (1) for judgment as a 
matter of law, (2) to amend the court’s findings of fact, (3) 
to alter or amend the judgment, and, alternatively, (4) for a 
new trial. The court denied appellant’s motions.

Appealing, appellant contends:
First, that the district court erred in refusing to grant 

appellant judgment as a matter of law "on his claim that 
[appellee] refused to give him a wood dealer contract 
because of his race,"

Second, that the district court should have granted 
him a new trial "because the district court abused its 
discretion by excluding crucial evidence of [appellee’s] racial 
motives, and

Third, that the district court abuse[d] its discretion by 
refusing to certify this desegregation case as a Rule 23(b)(2) 
class action."

None of appellant’s contentions has merit. Given the 
evidentiary record in this case, appellant’s first contention is 
frivolous. As for his second and third contentions, appellant 
fails to demonstrate an abuse of discretion.

The judgment of the district court is, accordingly,
AFFIRMED.



3a

April 30th, 1992

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ALABAMA 

SOUTHERN DIVISION

HERBERT LITTLES,
Plaintiff,

CIVIL ACTION NO. 
91-0851-B-S

v.

CONTAINER CORPORATION OF 
AMERICA,

Defendant.

ORDER

This matter came before the Court on March 4,1992 
for a hearing to determine plaintiffs right to bring his action 
as a class action pursuant to Rule 23(a), (b)(1), and (b)(2) 
of the Federal Rules of Civil Procedure on behalf of "all 
black persons residing in the Brewton, Alabama area who 
may now or in the future wish to enter into wood supplier 
or wood dealer contracts with defendant, or who may wish 
to be employed by such suppliers ..." (See Plaintiffs 
Amended Complaint).

Findings of Fact

Herbert Littles, by his testimony, is a logging 
contractor with some 30 years experience who basically "cuts 
and hauls" longwood timber. He has asked Container 
Corporation of America (herein CCA) for a dealership so he 
can make more money, and be more in control by knowing 
what his workload would be and having the assurance that 
by converting his equipment to shortwood capacity to meet 
CCA’s needs, he would be able to absorb the cost. He has



4a

been a logging contractor, producing wood for the last six to 
eight years for Tri-State Timber Company which is a CCA 
dealer. Tri-State is owned by Claude Alford, whose 
deposition testimony largely reveals the source of Littles’ 
complaint. Alford himself was a logger before he bought it. 
It appears he may well have been less experienced and stable 
in the logging industry than Littles was, (Alford’s deposition, 
pages 24-30) at the time Littles applied for a dealership with 
CCA. This issue will be left to be developed at the trial of 
Littles’ underlying complaint which challenges CCA’s refusal 
to enter into a dealership agreement with Littles "on account 
of his race and color and pursuant to its purposefully 
discriminatory policy . . .  of excluding black persons . . ." 
(Plaintiffs Complaint, para. 23).

Without, however, addressing the merits of plaintiffs 
personal cause of action, the issue before the Court on 
plaintiffs request to represent a class of similarly situated 
blacks rises and falls, (and in this case falls), on one of the 
prongs of the four part test of Rule 23(a), specifically 
23(a)(1): "The class is so numerous that joinder of all
members is impracticable." The analysis of this aspect 
obviates the need to address any of the other prerequisites 
of 23(a) or of (b)(1) and (b)(2).

Littles was able to "identify" only four to fix other 
black logging contractors in the Brewton area who hauled 
wood, presumably for other dealers, to CCA’s Brewton mill. 
There used to be a lot more in the past, he testified, but not 
now as this has constantly changed over the years. When 
asked by his own counsel whether the number of black 
logging contractor in the area who would "constitute the 
class" would be more or less than 50 he answered "yes." 
Needing clarification, he was asked "more or less?" His 
answer (and here the Court is quoting from its bench notes, 
which if they are not one hundred percent accurate, clearly 
reflect the substance of Littles’ answer): "I don’t know the 
interest of the people. I have that gut feeling that if I am 
given this chance, the number could exceed more than 50, 
but I can’t give you a number." His cross-examination



5a

testimony was more specific, that he didn’t know of one 
black logging contractor that had gone to CCA to ask for 
dealership, nor did he know if any of those were qualified to 
be CCA dealers.

Littles did produce several witnesses, including 
Tommy Odom, a black logging contractor (apparently one 
of the four to six) who testified he would like to be a dealer 
with CCA. Thomas Watson, another black logger testified 
he had never asked for a dealership because, as he put it, "it 
just came to my mind" that if he applied, the dealer he 
worked for, (not CCA) might terminate him.

Finally, CCA’s procurement manager, Don Heath, 
testified that for reasons of economy CCA had reduced its 
number of authorized dealers from sixty-six in 1984 to thirty- 
eight as of 1991. During this period about fifty people had 
applied for new dealerships, and all but five were turned 
down. Of the fifty, two were black, Littles and Thomas 
Moore.

Conclusions of Law

Plaintiffs underlying claim is that CCA refused to 
enter into a dealership contract to purchase wood from him 
because he is black, in violation of 42 U.S.C. §§ 1981 and 
1982. Plaintiff asserts that CCA’s refusal to contract with or 
purchase directly from him is part of an intentional policy of 
discrimination which affects all blacks in the logging industry 
in the Brewton area. Hence, plaintiff seeks to maintain this 
action as a class action on behalf of himself and all other 
blacks who now, or in the future, wish to be wood dealers, 
wood suppliers or who wish to be employed by wood dealers 
or suppliers.

The class action was developed in equity and refined 
by the drafters of the Federal Rules of Civil Procedure to 
promote the efficient resolution of multiple claims or 
liabilities in a single action, to eliminate repetitious litigation 
and inconsistent adjudications involving common questions 
of law or fact, and to establish an effective procedure for 
those who might otherwise be economically unable to resort



6a

to litigation. C. Wright, A, Miller and M. Kane, Federal 
Practice and Procedure § 1754 (1986). "[T]he class action 
device saves the resources of both the courts and the parties 
by permitting an issue potentially affecting every [class 
member] to be litigated in an economical fashion under 
Rule 23." Califano v. Yamasaki, 442 U.S. 682, 701 (1979).

In light of these objectives, Rule 23 sets forth 
requirements that must be satisfied before an action may be 
maintained as a class action. The plaintiff bears the burden 
of persuading the Court that all of the prerequisites of Rule 
23(a) and at least one of the prerequisites of Rule 23(b) are 
satisfied if a class is to be certified. See Exell v. Mobile 
Hous. Bd., 709 F.2d 1376, 1380 (11th Cir. 1983). Rule 23(a) 
sets out the following prerequisites:

(1) the class is so numerous that joinder of all 
members is impracticable, (2) there are questions of 
law or fact common to the black, (3) the claims or 
defenses of the representative parties will fairly and 
adequately protect the interests of the class.

Plaintiff purports to maintain this action under subdivisions 
(b)(1) and (b)(2). Because the plaintiff has clearly failed to 
satisfy the first requirement of subdivision (a), commonly 
referred to as numerosity, there is no need to address the 
remaining prerequisites.

In order to determine whether the number of 
potential plaintiffs is no numerous as to make joinder 
impracticable, the Court must first define the scope of the 
class. Dudo v. Schaffer, 82 F.R.D. 695, 699 (E.D. Pa. 1979). 
It is axiomatic that plaintiff cannot represent a group of 
which he is not a member. See East Texas Motor Freight Sys. 
v. Rodriguez, 431 U.S. 395 (1977) (holding that plaintiffs who 
were not qualified to be line-drivers could not represent 
class of persons who were denied line-driver positions); 
Wright, Miller & Kane, supra., § 1761. If plaintiff is to be 
considered a member of a class, there must be some nexus 
between him and the group he seeks to represent. Walker



7a

v. Jim Dandy, Co., 747 F.2d 1360, 1364 (11th Cir. 1984). In 
addition, plaintiff cannot represent a class of persons whose 
interests conflict with his own. Scott v. University of 
Delaware, 601 F.2d 76, 85-86 (3d Cir.), cert, denied. 444 U.S. 
931 (1979).

Plaintiff purports to represent "all black persons 
residing in the Brewton, alabama, area who may now or in 
the future wish to enter into wood supplier or wood dealer 
contracts with defendant or who may wish to be employed 
by such suppliers or contractors." The class, as defined by 
plaintiff, can be divided into three subgroups: (1) those who 
may now or in the future wish to enter wood dealer 
contracts, (2) those who may now or in the future wish to 
enter wood supplier contracts, and (3) those who may now 
or in the future wish to be employed by wood dealers or 
suppliers.

Plaintiff is a member of and can represent only the 
first subgroup. Littles is now a wood supplier who would 
like to enter a wood dealership contract with the defendant. 
Not only is Littles not a member of the latter subgroups, he 
would appear to have a conflict with those groups. Id. He 
cannot represent those who wish to become wood suppliers 
because he already is one. Since only a limited amount of 
wood is needed by dealers who supply CCA, Littles would 
be competing with those who wish to become suppliers. 
Likewise, he cannot represent those who may wish to be 
employed by wood dealers or suppliers. He cannot 
represent those who wish to be employed by a dealer 
because he is already employed by a dealer. He cannot 
represent those who wish to be employed by a supplier 
because he is a supplier.

Moreover, plaintiffs cause of action based on 
defendant’s alleged discriminatory refusal to contract is 
inapplicable to the latter subgroups. It is undisputed that 
CCA procures lumber only through dealers and does not 
contract with or purchase directly from any wood supplier. 
Nor does it contract with or purchase from anyone who is 
employed by a wood dealer or supplier. Thus CCA cannot



8a

be said to have discriminated by refusing to contract in areas 
where it does not contract in the first place or by refusing to 
purchase from certain members of a group from which it 
does not purchase in the first place. The proper scope of 
the class, therefore, if all blacks in the Brewton, Alabama, 
area who may now or in the future wish to enter wood 
dealership contracts with CC^A. Plaintiff could identify 
only four to six logging contractors currently in the Brewton 
area but contends that he nevertheless has satisfied the 
numerosity requirement because the class includes future 
members who by their very definition make joinder 
impracticable.1

There is disagreement among courts as to the impact 
of future class members on the numerosity requirement in 
a (b)(2) class action where the plaintiff seeks injunctive relief 
which may have an impact on future class members. Some 
seem to suggest that the inclusion or future members per se 
satisfies the numerosity requirement. Se.g., Phillips v. Joint 
Legislative Comm, on Performance & Expenditure Review, 637 
F.2d 1014 (5th Cir. Unit A Feb. 1981), cert, denied, 456 U.S. 
960 (1982). Such an approach, however, is contrary to the 
Supreme Court’s admonition in General Tel. Co. of the 
Southwest v. Falcon, 457 U.S. 147, 161 (1‘982), that a class 
action should be certified only "if the trial court is satisfied, 
after a rigorous analysis, that the prerequisites of Rule 23(a) 
have been satisfied." At the other end of the spectrum, 
some courts refuse to consider future members of all. See, 
e.g., Selzer v. Board of Educ.. 1112 F.R.—. 176 (S.D.N.Y. 
1986) (excluding future members from class definition).

The more reasoned approach, however, considers the 
existence of future members in light of all of the

1 The Court understood Littles’ testimony that he had a "gut 
feeling" that the number of black logging contractors who would be 
interested in contracts with CCA if he were successful would be 
greater than fifty to be an estimate of future class member. This 
estimate is pure speculation and has no basis in fact.



9a

surrounding circumstances. See, e.g., Scott, 601 F.2d at 88 
("[Ojbjectives [of Rule 23] are undermined... by the facile 
conclusion that the numerosity requirement may always be 
satisfied in antidiscrimination class actions because there 
exist unidentified future class members who may suffer 
discrimination.'1). One commentator has identified several 
factors to be considered when the class is small:

Apart from class size, factors relevant to the joinder 
impracticability issue include judicial economy arising 
from avoidance of a multiplicity of actions, 
geographic dispersement of class members, size of 
individual claims, financial resources of class 
members, the ability of claimants to institute 
individual suits, and requests for prospective 
injunctive relief which would involve future class 
members.

Newberg on Class Actions § 3.06 (1985).
In an action such as this there is no need for class 

treatment. There is no reason to believe that the number of 
persons who may be harmed in the future by defendant’s 
allegedly discriminatory conduct is so great that judicial 
economy or the interests of the parties would favor 
resolution in a single action. Cf Rodriguez v Department of 
Treasury, 108 F.R.D. 360, 363 (D.D.C. 1985) (Inappropriate 
to allow a purely speculative class to be the sole basis for the 
satisfaction of the numerosity requirement); Durden v. R.H. 
Bouligny, 22 Fair Empl. Prac. Cas. 1455 (N.D. Fla. 1979 
(Plaintiff must prove that class of future members would be 
of sufficient size as to make joinder impracticable).

The potential class is limited by definition to a 
sparsely populated rural area. It is further limited to 
persons in the logging industry who wish to become wood 
dealers with CCA. CCA has drastically reduced the number 
of its wood dealers in recent years and has entered into only 
five new dealership contracts since 1984. Although he 
resources of potential litigants are likely to be small and the 
size of the claims are unknown at this point, future members



10a

would have both incentive and resources to pursue their 
claims since both punitive damages and attorneys’ fees are 
available under Section 1981 and 1982. Claiborne v. Illinois 
Cent. R. R., 583 F.2d 143 (5th Cir. 1978) (punitive damages 
available under § 1981), cert, denied, 442 U.S. 934 (1979); 
Gore v. Turner, 563 F.2d 159 (5th Cir. 1977) (punitive 
damages available under § 1982); 42 U.S.C. § 1988 (Supp. 
1986) (attorneys’ fees available under both sections).

It is also important to consider the effect of this 
action on the rights of these future class members. Scott, 
601 F.2d at 88. Future members would be bound by the 
outcome of this action, whether favorable or unfavorable to 
them. Since they are as yet unknown, future members, 
unlike class members now in existence, cannot opt out and 
have no way to protect their interests. The likely deterrent 
effect of a possible favorable outcome to the plaintiff in this 
cas lessens the need to certify the class. Furthermore, the 
injunctive relief requested by plaintiff, if given, could benefit 
all future plaintiffs.2

The Court’s conclusion that future class members do 
not satisfy the numerosity/impracticability of joinder 
requirement in this case is not in conflict with he circuit 
precedents upon which plaintiff relies. In Kilgo v. Bowman 
Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986), the Court 
held:

[Tjhe district court did not abuse its discretion in 
finding that the numerosity requirement had been 
met. Plaintiffs have identified at least thirty-one 
individual class members, and the class incudes 
future and deterred job applicants, which of necessity 
cannot be identified. The certified class also includes 
applicants from a wide geographical area.

2 The scope of the injunctive relief depends, of course, upon 
the nature of the wrong. The Court cannot say at this point whether 
injunctive relief would have a direct effect on future class members.



11a

In reaching the conclusion that the requirements of 23(a)(1) 
had been met, the appellate court noted that "[practicability 
of joinder depends on many factors, inclusion, for example, 
the size of the class, ease of identifying its numbers and 
determining their addresses, facility of making service on 
them if joined and their geographic dispersion." Id.

Nor do Phillips v. Joint Legislative Comm, on 
Performance Evaluation & Expenditure Review, 637 F.2d 1014 
(5th Cir. Unit A feb. 1981), and Jack v. American Linen 
Supply Co„ 498 F.2d 122 (5th Cir. 1974), compel the 
certification of a class based solely on the existence of future 
members. In Phillips, the court, relying on Jack, held that 
noted that [tjhe alleged class contains future and deterred 
applicants, necessarily unidentifiable. In such a case the 
requirement of Rule 23(a)(1) is clearly met, for ’joinder of 
unknown individuals is certainly impracticable.’" Phillips, 637 
F.2d at 1024 (quoting Jack, 498 F.2d at 124). However, in 
both Phillips and Jack, plaintiffs had identified thirty-three 
and fifty-one members, respectively, already in existence, 
numbers which would probably be sufficient, without the 
presence of future members, to meet the numerosity 
requirement. See Cox v. American Cast Iron Pipe Co., 784 
F.2d 1546 (11th Cir.), cert, denied, 479 U.S. 883 (1986). 
Consequently, the presence of future members seems to 
have been only one factor in the numerosity/practicability of 
joinder consideration.

In sum, the Court finds that in this instance a class 
action is unnecessary. Plaintiff has failed to persuade the 
Court that the number of present or potential future 
members of the class are sufficiently numerous to satisfy the 
numerosity requirement of Rule 23(a)(1). It is, therefore, 
ORDERED that plaintiffs request for class certification be 
and hereby is DENIED.

DONE this the 30th day of April, 1992.

UNITED STATES DISTRICT JUDGE



12a

March 3, 1993

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ALABAMA 

SOUTHERN DIVISION

HERBERT LITTLES,
Plaintiff,

CIVIL ACTION NO. 
91-0851-B-S 

v.

CONTAINER CORPORATION OF 
AMERICA,

Defendant.

OPINION AND ORDER

This matter is before the Court on cross motions for 
summary judgment. Defendant Container Corporation of 
America seeks dismissal of the plaintiffs claim in its entirety. 
Plaintiff Herbert Littles seeks partial summary judgment on 
certain issues related to alleged past discrimination by the 
defendant. After careful consideration of the motions, the 
supporting briefs and evidence submitted by the parties and 
the relevant law, the Court finds that both motions are due 
to be denied.

FINDINGS OF FACT

Plaintiff Herbert Littles, who is black, is a wood 
producer or supplier who operates in the Brewton, Alabama 
area. Littles contends that defendant Container Corporation 
of America ("CCA") has discriminatorily denied him a wood 
dealership contract on account of his race in violation of 42 
U.S.C. §§ 1981 and 1982. CCA operates a paper mill in 
Brewton that requires a continuous supply of various types 
of timber for its operation. CCA has developed contracts



13a

with wood dealers to supply a certain amount of timber on 
a weekly basis. Those dealers, in turn, contract with wood 
suppliers, such as Littles, to deliver the wood to CCA.

For several years Littles has been interested in 
becoming a wood dealer, and has expressed his interest in 
CCA on several occasions. According to Littles, the last 
time he approached CCA about a wood dealership was in 
June of 1989 when he spoke with Don Heath, CCA’s 
procurement manager. Although it is disputed whether or 
not CCA has directly rejected Littles’ offer, it is CCA’s 
position that Littles is not qualified to be a wood dealer. In 
October 1989, Littles filed the instant action alleging that 
CCA refused to contract with him because of his race.

CONCLUSIONS OF LAW

CCA contends that it is entitled to summary 
judgment for two reasons: (1) plaintiffs class is barred by 
the statute of limitations and (2) plaintiff cannot prove, by 
either direct or circumstantial evidence, that CCA 
intentionally discriminated against him. In response, 
plaintiff denies that his claim is barred by the statute of 
limitations and argues that he can prove discrimination not 
only by direct and circumstantial evidence, but also by 
proving that the defendant’s current practices perpetuate 
past discrimination and by proving that the defendant’s 
current selection criteria "lock in" past discriminatory 
practices. Moreover, plaintiff seeks partial summary 
judgment with respect to the last two issues because he 
contends that there can be no dispute that defendant has 
perpetuated past discrimination or that defendant’s 
subjective hiring criteria lock in past discrimination.

Statute of Limitations

CCA contends that this action is due to be dismissed 
because plaintiff failed to file suit within the applicable 
limitations period. The statute of limitations governing suits



14a

under § 1981 is the same as that governing suits under 42 
U.S.C 1983. Goodman v. Lukens Steel Co., 482 U.S. 656, 
659 (1987). In Alabama that limitations period is two years. 
See Owens v. Okure, 435 U.S. 235 (1989((holding that where 
state has more than one personal injury statute of 
limitations, the residual personal injury statute applies to § 
1983 actions); Lufkin v. McCallum, (11th Cir. 1992) 
(Alabama’s two-year statute of limitations for personal injury 
actions governs § 1983 suite); accord Jones v. Preuit & 
Mauldin, 876, 1480 (11th Cir. 1989((en banc). Likewise, the 
same statute of limitations governs suits under § 1982. 
Scheerer v.Rose State College, 950 F.2d 661, 664-65 (10th Cir. 
1991); Allen v. Gifford, 462 F.2d 615, 615 (4th Cir.), cert, 
denied, 409 U.S. 876 (1972); Waters v. Wisconsin Steel Works 
of Int’l Harvester Co., 427 F.2d 476, 488 (7th Cir.), cert, 
denied, 400 U.S. 911 (1971).

For purposes of § 1981, the statute of limitations 
generally begins to run when the plaintiff knows or 
reasonably should know that the discriminatory act has 
occurredf.]" Stafford v. Muscogee County Bd. of Education, 
688 F.2d 1383, 1390 (11th Cir. 1982). Defendant contends 
that Littles knew or should have known that CCA had 
refused to contract with him in June 1989, more than two 
years prior to the filing of this lawsuit, when Littles last 
discussed a dealership with Don Heath, defendant’s 
procurement manager.

In support of its contention CCA cites deposition 
testimony in which Littles stated the following regarding his 
June 1989 meeting with Heath:

Q What was [Heath’s] response to your request
[for dealership]?

A I really don’t remember. I don’t remember.

Q Was it your understanding that his response
was negative?



15a

A Yes, sir.

Littles dept, of Dec. 18, 1991 at 103. However, in a later 
deposition, Littles clarified what he meant by a "negative 
response.

Q ... What else in the deposition were you 
referring to earlier this morning as wishing to 
change?

A It’s on page 103. I thought that it needed 
clearing up because according to my understanding, 
it’s seemly [sic] that it’s led to believe that when I 
talked with Mr. Heath about a dealership, that that 
was the closing of my approach for a dealership, but 
it was not.

A ... In another portion [of the first deposition] 
I was asked was it your understanding that his 
response was negative. Well, that’s clear- negative, 
but it weren’t a matter of closing the situation.

I was, as I aforestated, I was under the impression 
that that definitely was the end of that conversation 
until we later communicated about this dealership.

Littles Dept, of April 30, 1992 at pp. 59-60.
Plaintiff contends that, at the least, the foregoing 

testimony illustrates a genuine issue of material fact as to 
whether Littles knew or should have known that his offer to 
contract had been rejected. In addition, plaintiff argues that 
his action is not barred because the alleged discrimination by 
CCA was a part of a continuing course of conduct. In 
Beavers v. American Cast Iron Pipe Co., 975 F.2d 792 (11th 
Cir. 1992), the Eleventh Circuit set forth the standard for 
determining whether a continuing violation has occurred:

In determining whether [a] policy constitutes a



16a

continuing violation, therefore, we must distinguish 
between the ‘present consequence of a one-time 
violation,’ which does not extend the limitations 
period, and the ‘continuation of the violation into the 
present,’ which does.

Id. at 795 (quoting Webb v. Indiana National Bank, 931 F.2d 
at 438).

To illustrate the difference between a continuing 
violation and a one-time violation, the court in Beavers 
compared two Supreme Court cases, Bazemore v. Friday, 478 
U.S. 385 91976) and Delaware State College v. Ricks, 449 U.S. 
250 (1980):

[In Bazemore] the black employees filed suit against 
the Extension Service, claiming, inter alia that the 
salary disparities [between black employees and white 
employees] violated Title VII. The Extension Service 
maintained that, because the disparities were solely 
the result of discrimination which occurred prior to 
Title VU’s effective date, it should not be required to 
affirmatively eliminate them. The Supreme Court 
squarely rejected this argument, holding that the 
Extension Service’s perpetuation of the salary 
disparities constituted a continuing violation of Title 
VII. "Each week’s paycheck that delivers less to a 
black than to a similarly situated white is a wrong 
actionable under Title VII..."

Beavers, 975 F.2d at 796 (quoting Bazemore, 478 U.S. at 395- 
96).

The Supreme Court reached the opposite conclusion 
in Ricks. Ricks was a black professor who was denied tenure 
and given a one-year terminal contract. Ricks filed his 
EEOC claim within 180 days of signing his terminal contract, 
but not within 180 days of notification that he had been 
denied tenure. The plaintiff argued that the violation was a 
continuing one and, therefore, the limitations period should



17a

not begin to run until the end of his final contract. In 
rejecting plaintiffs continuing violation theory, the Supreme 
Court, held:

It appears that termination of employment at 
Delaware State is a delayed, but inevitable, 
consequence of the denial of tenure. In order for 
the limitations period to commence with the date of 
discharge, Ricks would have had to allege and prove 
that the manner in which he employment was 
terminated differed discriminatorily from the manner 
in which the College terminated other professors who 
also had been denied tenure.

449 U.S. at 257-58.
Defendant argues that this case is like Ricks because 

Littles knew or should have known he was not going to 
receive a contract at the June 1989 meeting. However, the 
facts presented by plaintiff tend to prove that there was not 
a one-time action, such as the denial of tenure in Ricks. 
Indeed, according to plaintiffs evidence, CCA has never 
denied him a contract but has craftily dodges the statute of 
limitations issue by never saying yea or nay. Consequently, 
CCA can simultaneously argue (1) that the statute of 
limitations ran on the last occasion when Littles asked for 
but did not receive a dealership and (2) Littles has no cause 
of action because he has never been denied a dealership.

In Abrams v. Baylor College of Medicine, 805 F.2d 528 
(5th Cir. 1986), the Fifth Circuit addressed the issue of a 
continuing violation in a factual situation analogous to the 
case at hand. In Abrams plaintiffs were medical doctors who 
contended that the defendant, their employer, had 
discriminated against them because they were Jewish. 
Plaintiffs applied for a rotation in a program operated by the 
defendant in Saudi Arabia, but were turned down because, 
according to the defendant, they would not be able to secure 
visas to enter Saudi Arabia because they were Jewish. In 
truth, Baylor had never checked with the Saudis to



18a

determine if this was true. Moreover, there was evidence at 
trial that Jewish members of the Baylor staff had entered 
Saudi Arabia to treat special patients.

Although plaintiffs did not file their Title VII action 
within 180 days after being denied a rotation in the Saudi 
program, the Court held that the suit was nonetheless timely 
under a continuing violation theory. The Abrams court 
recognized that a violation may not become apparent to a 
reasonable person based on a single act.

Where the unlawful employment practice manifests 
itself over time, rather than as a series of discrete 
acts, the violation may be found to be a continuing 
one that ‘relieves a plaintiff who makes a such a 
claim from the burden of proving that the entire 
violation occurred within the actionable period.’

Id. at 532 (quoting Berry v. Board of Supervisors, 715 F.2d 
971, 080 (5th Cir. 1983)). Consequently, the court had "no 
difficulty in upholding a finding of continuing violation 
when, as here, the employer’s ambiguous acts serve to 
obscure the existence of an unlawful policy and fail to alert 
‘the average lay person to act to protect his rights.’" Id. at 
533 (quoting Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 
1561 (5th Cir. 1985)).

Viewing the evidence in the light most favorable to 
the plaintiff, there is certainly a factual basis for plaintiffs 
contention that CCA engaged in a continuing violation. 
Plaintiff has offered evidence of a discriminatory policy 
which, as in Abrams, may only have become apparent after 
a period of time. First, there is evidence that CCA never 
denied plaintiff a dealership outright. The only evidence 
offered by defendant that it did deny plaintiffs request for 
a dealership was Littles’ deposition testimony, quoted above, 
in which he stated that the result of the meeting with Heath 
was "negative". However, Littles points out that he simply 
meant that he did not get a dealership as the result of that 
meeting but left with the understanding that he was still



19a

under consideration.
Second, the manner in which CCA awards its 

dealerships could easily serve to obscure any discriminatory 
policy.1 Contract openings are not advertised and there is 
no formal application process. Instead, when CCA has a 
desire to add new dealers, it simply contracts the person or 
company with which it desires to do business. Littles made 
his desire to be a dealer known to CCA on several occasions 
in hopes that he would be chosen. According to Littles, 
each time he talked with CCA’s procurement manager about 
a dealership, he was led to believe that he would be 
considered for a dealership in the future.

In Abrams the Fifth Circuit held that in order to 
establish a continuing violation, the plaintiff must prove 
more than the existence of a discriminatory policy. Abrams, 
805 F.2d at 533. He must also prove that the discriminatory 
policy was applied to him within the statutory period. Id. 
In this case it is undisputed that the CCA has awarded five 
dealership contracts to white wood producers or dealers 
within the two years prior to the date plaintiff filed suit.

In sum, there is a genuine issue of material fact as to 
when, or if, plaintiff knew of should have known he was not 
going to receive a dealership contract from CCA. At best, 
defendant has presented evidence that might lead a 
reasonable jury to conclude that Littles should have known 
he had been rejected for a dealership in June of 1989. On 
the other hand, the evidence presented by plaintiff supports 
his position that defendant led him to believe that he 
remained under consideration for a dealership and, 
therefore, each tine the defendant awarded a dealership to 
another wood supplier or producer within the statutory

1 See the discussion of the McDonnell Douglas analysis and 
plaintiffs prima facie case, supra.



20a

period constituted an actionable wrong.2

Proof of Discrimination

Plaintiff claims that defendant’s decision not to award 
him a dealership contract violated both 42 U.S.C. § 1981, 
which prohibits racial discrimination in the making and 
enforcement of contracts,3 and 42 U.S.C. § 1982 which 
prohibits racial discrimination with respect to the exercise

2 The Court rejects plaintiffs alternative argument that a 
request for a dealership contract made in the context of a settlement 
offer made on his behalf by his attorney in a previous action against 
CCA constituted an offer and rejection within the statutory period. 
Although it is true that unless a rejection makes clear that a plaintiff 
will not receive further consideration that the limitations period may 
begin running anew with each time a plaintiff makes an application, 
Webb v. Indiana National Bank, 931 F.2d 434, 437 (7th Cir. 991), the 
problem with a plaintiffs argument is that the more recent offer and 
refusal was not the same offer and refusal that forms the basis of the 
instant complaint. Since the defendant’s refusal to enter a settlement 
contract is not the subject of the instant action, the Court fails to see 
how defendant’s refusal of that contract could serve as the basis for 
a suit for refusal to enter a dealership contract.

3 42 U.S.C. § 1981 states:
All persons within the jurisdiction of the United 
States shall have the same right in ever}' State and 
Territory to make and enforce contracts, to sue, be 
parties, given evidence, and to the full and equal 
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.



21a

of property rights.4 In order to prevail under § 1982 
plaintiff must prove that the defendant intentionally 
discriminated against him. General Building Contractors 
Assoc, v. Pennsylvania, 458 U.S. 375 (1982).

Neither the Supreme Court nor the Eleventh Circuit 
has stated definitively whether proof of intentional 
discrimination is required under § 1982, see Memphis v. 
Greene, 451 U.S. 100, 119 (1981); Terry Properties, Inc. v. 
Standard Oil Co., 799 F.2d 1523, 1534 (11th Cir. 1986). 
However, other courts that have addressed the issue have 
found that proof of intent to discriminate is necessary. 
Hamilton v. Svatik, 779 F.2d 383, 387 (7th Cir. 1985); Denny 
v. Hutchinson Salem Corp., 649 F.2d 816, 822 (10th Cir. 
1981). In Denny the Tenth Circuit held that [bjecause 
section 1982 is phrased in a manner similar to section 1981 
and both statutes are of a common genesis, Congress must 
have intended each to incorporate the same standard." 
Denny, 649 F.2d at 822. See also Runyon v. McCrary, 427 
U.S. 160, 190 (1976)(Stevens, j., concurring) ("it would be 
most incongruous to give § 1981 and § 1982] a 
fundamentally different construction"). Accordingly, this 
Court presumes that § 1982 also requires proof of 
discriminatory intent.

When proof of intentional discrimination is required, 
it is not sufficient to show that the defendant’s practices had 
a discriminatory impact as is permitted in Title VII cases 
where intent is not an element. See, e.g., Brown v.American 
Honda Motor Co. Inc., 939 F.2d 946 (11th Cir. 1991), cert, 
denied, _  U.S. _ ,  112 S.Ct. 935, 117 L.Ed.2d 106 (1992). 
Instead, plaintiff must offer either direct or circumstantial 
evidence of defendant’s discriminatory intent. Although

4 42 U.S.C. § 1982 states:
All citizens of the United States shall have the same 
right, in every State and Territory, as is enjoyed by 
white citizens thereof to inherit, purchase, lease, sell, 
hold, and convey real and personal property.



22a

plaintiff has stated his intention to offer direct evidence of 
defendant’s discriminatory intent, he has pointed out only 
circumstantial evidence of intent. The question is whether 
that evidence is sufficient to withstand defendant’s motion 
for summary judgment.

The first and foremost difficulty in this case is that 
neither party can agree upon the model the Court should 
use to analyze the evidence. To assist trial courts in 
analyzing circumstantial evidence in employment 
discrimination cases under Title VII, the Supreme Court 
developed a model commonly referred to as the McDonnell 
Douglas, or shifting burdens, analysis. Recognizing that 
discriminatory intent is often a difficult thing to prove, the 
Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 
(1973) and Texas Dept, of Community Affairs v. Burdine, 
constructed the following method of proof:

The complainant ... must carry the initial burden 
under the statute of establishing a prima facie case of 
racial discrimination. This may be done by showing 
(i) that he belongs to a racial minority; (ii) that he 
applied and was qualified for a job for which the 
employer was seeking applicants; (iii) that, despite 
his qualifications, he was rejected; and (iv) that, after 
his rejection, the position remained open and the 
employer continued to seek applicants from persons 
of complainant’s qualifications ... The burden then 
must shift to the employer to articulate some 
legitimate nondiscriminatory reason for the 
employer’s rejection.

McDonnell Douglas, 411 U.S. at 802-803. Once a defendant 
articulates a legitimate nondiscriminatory reason for its 
decision, the plaintiff bears the burden of proving that the 
defendant’s "proffered reason was not the true reason" for 
its decision.

As both the Supreme Court and the Eleventh Circuit 
have recognized, the McDonnell Douglas analysis was never



23a

intended to be rigid or mechanized test for proving 
intentional discrimination. See Fumco Construction v. 
Waters, 438 U.S. 567, 577 (1978); McDonnell Douglas, 411 
U.S. at 802, n.13; Harris v. Birmingham Board of Education, 
712 F.2d 1377, 1382 (11th Cir. 1983). As this case 
demonstrates, it simply does not work in every instance. 
Defendant contends that plaintiff cannot prove a prima facie 
case because defendant was not seeking dealers at the time 
plaintiff applied and because plaintiff was not qualified to be 
a dealer.

These elements, however, would be difficult, if not 
impossible, for any plaintiff to prove under the 
circumstances. As plaintiff points out, because this is not an 
employment discrimination case, there are not "openings" as 
there would be in a typical Title VII case. According to 
plaintiff, CCA metes out dealership contracts on an ad hoc 
basis by contacting wood dealers with whom it wishes to do 
business. Thus, plaintiff has an almost insurmountable 
burden in proving that an "opening" existed at any particular 
time.

Of course, having rejected the defendant’s suggested 
method of analysis, the question still remains whether 
plaintiff has presented a prima facie case that CCA 
intentionally discriminated against him. Having reviewed the 
evidence in the light most favorable to the plaintiff, the 
court finds that Littles has come forth with sufficient 
evidence to establish a prima facie case of discrimination, 
the eleventh Circuit has held that subjective criteria applied 
by white decisionmakers may give rise to an inference of 
discrimination. Harris v. Birmingham Board of Education, 
712 F.2d 1377, 1383 (11th Cir. 1983). In this case, plaintiffs 
criteria for awarding dealerships are arguably subjective. 
According to CCA, a prospective dealer must have access to 
an adequate supply of timber, a demonstrated ability to 
consistently produce and deliver wood in the desired form of 
species at the desired location, adequate working capital, 
vehicles and equipment, a good reputation for honesty and 
business skills, established reliability in the industry and



24a

proven access to timber resources over a foreseeable period 
of time. None of these requirements is completely capable 
of measurement and the interpretation of each, therefore, is 
somewhat dependent upon the person or persons applying 
the criteria. In this case, the ultimate decisionmaker is 
CCA’s procurement manager, Don Heath, who is white.

Other factors also contribute to plaintiffs prima facie 
case. An immediate past history of racial discrimination 
alone may support a prima facie case of intentional 
discrimination. Id. Plaintiff has presented evidence that 
CCA’s Brewton mill has a history of racial discrimination in 
its employment practices. Finally, plaintiff has presented 
evidence that he was treated differently from a similarly 
situated white person. Plaintiff has presented evidence from 
which a jury could infer that he was at least as qualified as, 
if not more qualified than, Claude Alford, a white logger 
who was awarded a dealership contract by CCA.

Although CCA might otherwise prevail on summary 
judgment by proffering legitimate nondiscriminatory reasons 
for its decision, the Court finds that the evidence presented 
by plaintiff raises a question of fact as to whether those 
proffered reasons are pretextual. CCA contends that it 
refused to contract with Littles not because of his race but 
because he was not qualified to be a dealer. As noted 
above, Littles has presented evidence from which a jury 
could reasonably find that he was as qualified as at least one 
other CCA dealer.

While the Court finds that thee is a genuine issue of 
material fact with respect to plaintiffs circumstantial 
evidence of discrimination, the Court rejects plaintiffs 
additional proposed methods of proving discrimination set 
forth in his motion for partial summary judgment. In 
addition, to using the disparate treatment evidence outlined 
above in proving defendant’s discriminatory intent, plaintiff 
also proposes two theories to prove, intent by showing: (1) 
that CCA’s current practices perpetuate past and present 
intentional segregation of CCA’s business environment and 
(2) that CCA’s criteria for awarding dealerships "lock in" the



25a

effects of CCA’s historical discrimination.
Plaintiff contends that the Court should grant partial 

summary judgment because there is no dispute of material 
fact as to these issues; however, plaintiff concedes that he 
must prove at trial that he has been injured by these 
practices. Defendant disputes not only the factual basis for 
these claims, but also their relevance in this case.

The Court need not even determine whether there 
are any material disputed factual issues with respect to 
plaintiffs motion for partial summary judgment since the 
legal claims raised are not relevant in the instant action. As 
discussed above, if he is to prevail int his case plaintiff must 
prove that the defendant intentionally discriminated against 
him. Plaintiff cannot prove intentional discrimination by 
either theory of proof proposed in his motion for partial 
summary judgment. If these theories tend to prove 
anything, they prove discriminatory impact, which is not 
actionable under either § 1981 or § 1982.

Plaintiffs first argument, in a nutshell, is that because 
CCA was guilty of segregation in the part, it has an 
affirmative actionable under §§ 1981 and 1982. Or as 
plaintiff states, "until container does business with at least 
one black wood dealer, its historical segregation is actually 
present, unlawful segregation." Plaintiff cites a number of 
cases in support of the many loosely stated propositions that 
make up its argument. These cases, however, are cited out 
of context and none can be found to stand for the ultimate 
proposition plaintiff advances, i.e., that failure to desegregate 
absent some prior court order requiring desegregation can 
give rise to a cause of action for intentional discrimination.

For example, plaintiff cites Brown v. Dade Christian 
Schools, 556 F.2d 310 (5th Cir. 1977), for the proposition 
that desegregation principles apply to private discrimination. 
However, in that case there was no question that the school 
currently intentionally maintained a discriminatory 
admissions policy. Plaintiffs theory in the instant case is 
somewhat akin to revisiting the Dade Christian Schools 
twenty years later and finding them guilty of intentional



26a

discrimination because there is not a black student in every 
classroom. Plaintiff also cites public school desegregation 
cases and voting rights cases decided under the fourteenth 
Amendment which have little relevance in the context of this 
case. E.g., Hunter v. Underwood, 471 U.S. 222 (1985); Swann 
v. Charlotte-Mecklenburg Board of Education, 402 US. 1 
(1971); Gilmore v. City of Montgomery, 417 U.S. 556 (1974).

Plaintiffs second argument is that CCA’s 
employment criteria systematically discriminate against 
blacks by locking in prior discrimination. In other words, 
certain requirements cannot be met by any black person in 
the Brewton area simply because blacks in that area 
historically have been kept out of positions of power and 
authority due, in part, to CCA’s practice or relegating blacks 
to low-paying jobs. If this were a disparate impact case, 
plaintiff would have a compelling argument. However, in 
this case plaintiff must prove not just that the selection 
criteria had a disparate impact on blacks, but that CCA 
selected the criteria for that reason. Brown v. American 
Honda Motor Co, Inc., 939 F.2d at 953. Since the Court has 
concluded that both § 1981 and § 1982 require proof of 
discriminatoiy intent, plaintiffs evidence of disparate impact 
has no relevance in this case.5

Conclusion

Plaintiff has presented sufficient circumstantial 
evidence to raise a genuine issue of material fact as to the 
whether CCA intentionally discriminated against him on the

5 However, as noted in the discussion of plaintiffs prima facie 
case, infra, evidence of historical discrimination is relevant to prove 
intent. In other words, although plaintiff may offer evidence at trial 
of CCA’s immediate past history of discrimination as evidence of 
current discriminatory intent against plaintiff, he may not proceed on 
the theory that adoption of policies that unintentionally "lock in" past 
discrimination are sufficient to prove his cause of action under either 
§ 1981 or § 1982.



27a

basis of race. In addition, whether this suit is barred by the 
statute of limitations depends upon the resolution of 
disputed facts. For these reasons, the Court finds that CCA 
is not entitled to summary judgment. Because the issues 
raised by plaintiff in his motion for partial summary 
judgment are only relevant to show proof of intentional 
discrimination, and that will require the resolution of 
disputed facts, plaintiffs motion for summaiy judgment is 
also due to be denied.

Accordingly, it is ORDERED that the motion for 
.summary judgment filed by defendant Container 
Corporation of America is due to be and thereby is DENIED 
It is FURTHER ORDERED that the motion for partial 
summary judgment filed by plaintiff Herbert Littles 
likewise is due to be and hereby is DENIED.

DONE this the 3d day of March, 1993.

U N IT E D  STA TES D IST R IC T  J U D G E



28a

August 23, 1993

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

HERBERT LITTLES,
Plaintiff,

CIVIL ACTION NO. 
91-0851-B-S

CONTAINER CORPORATION OF 
AMERICA,

Defendant.

ORDER

This matter is before the Court on a motion in limine 
filed by defendant Container Corporation of America 
("CCA") objecting to, inter alia, the introduction at trial of 
historical evidence of discrimination and segregation. For 
reasons set forth more fully below, the Court finds the 
motion is due to be granted, in part.

Plaintiff intends to introduce both historical evidence 
of past discrimination by CCA and historical evidence of 
segregation in the Southern timber industry and in Southern 
society as proof that CCA intended to discriminate in this 
instance.1 CCA contends that such evidence is irrelevant 
and, even if relevant, is unfairly prejudicial, a waste of time 
and misleading. Plaintiff argues that the evidence is 
admissible to prove defendant’s discriminatory intent or 
motive in denying plaintiff a contract.

Before addressing the specific types of evidence

1 These issues are covered in the Revised Pretrial Order by 
Disputed Facts 7, 11 and 13.



29a

plaintiff seeks to introduce, it is important to review the 
fundamental rules governing the admissibility of evidence, in 
general, and character evidence, in particular. Evidence is 
admissible only if relevant. Fed. R. Evid. 402. Relevant 
evidence is "evidence having any tendency to make the 
existence of any fact that is of consequence to the 
determination of the action more probable or less probable 
that it would be without the evidence." Fed. R. Evid. 401. 
It is an elemental rule of evidence that character evidence, 
including evidence of specific acts, is not admissible to prove 
that a person or corporation acted in conformity therewith 
on a particular occasion. F.R.E. 404(a); J. Strong, 
McCormick on Evidence § 188 (4th ed. 1992). However, 
other act evidence is admissible "for other purposes, such as 
proof of motive, opportunity, intent, preparation, plan, 
knowledge, identify or absence of mistake or accident." Fed. 
R. Evid. 404(b).

Several courts have recognized that evidence of other 
acts of discriminatory conduct by a defendant may be 
admissible to prove discriminatory intent. See, e.g, Allen v. 
County of Montgomery, 788 F.2d 1485, 1488 (11th Cir. 1986); 
Brown v. Trustees of Boston Univ., 891 F.2d 337, 349-350 (1st 
Cir. 1989); Stair v. Lehigh Valley Carpenters Local 600, 813 F. 
Supp. 1116, 1119 (E.D. Pa. 1993) (and cases cited therein). 
As the Stair court noted, however, "[tjhere are ... limitations 
to the admissibility of such evidence. Incidents that are too 
remote in time or too dissimilar from a plaintiffs situation 
are not relevant." Stair, 813 F. Supp. at 1119. Moreover, 
evidence otherwise admissible may nonetheless be excluded 
if "its probative value is substantially outweighed by the 
danger of unfair prejudice, confusion of the issues, or 
misleading the jury." Fed. R. Evid. 403

Plaintiffs prior act evidence can be placed into three 
broad categories. First, plaintiff seeks to introduce evidence 
that CCA discriminated against blacks seeking management 
positions in CCA’s Brewton mill during the 1980’s. This 
alleged discrimination was the subject of a suit against CCA, 
Harrison v. Container Corporation of America, filed in the



30a

United States District Court for the Middle District of 
Alabama, which was subsequently settled by consent decree. 
Second,plaintiff seeks to introduce evidence of 
discrimination against blacks in lower-level mill jobs during 
the 1960’s and early 1970’s, which was the subject of a suit 
filed against CCA in this district, Suggs v. Container 
Corporation of America. The parties entered a consent 
decree in Suggs in 1974. Finally, plaintiff seeks to introduce 
evidence of segregation in the timber industry to place the 
defendant’s alleged continuing practice of segregation in 
context.

The first issue for the Court is whether, as plaintiff 
suggests, there is a general rule allowing the admission of 
historical evidence of discrimination to prove intent. After 
examining the cases cited by plaintiff, the Court has 

determined that there is such general rule and, therefore 
each type of evidence must be examined for relevance and 
the possibility of prejudice and confusion of the issues.

The plaintiff cites Sims v. Montgomery County 
Commission, 766 F. Supp. 1052 (M.D. Ala. 1990), in support 
of its contention that all evidence of CCA’s past 
discrimination is relevant and admissible. The Sims court 
held that evidence of discrimination that occurred twenty 
years earlier was admissible because the evidence was 
"relevant to viable claims." Id. at 1085. The Court did not 
weigh the prejudice of considering such evidence, although 
presumably the possibility of prejudice was lessened because 
the case was tried to a judge and not to a jury.

In considering such evidence relevant to prove intent, 
the Sims court cited two United States supreme Court cases, 
Bazemore v. Friday, 478 U.S. 385 (1986) and United Airlines 
y. Evans, 431 U.S. 553 (1977), neither of which stand for the 
proposition plaintiff would have the Court adopt, i.e., that 
historical evidence is per se relevant to prove intent to 
discriminate. Both of those cases addressed the use of prior 
act evidence to prove disparate impact under Title VII. 
Intent was not an issue.

In Evans the plaintiff argued that the seniority system



31a

she challenged gave "present effect to past discrimination." 
The Court held that evidence of discrimination that was not 
made the basis of a timely EEOC charge could be 
considered as "relevant background evidence in a proceeding 
in which the status of a current practice is at issue." For 
example, if a plaintiff in a disparate impact case challenges 
facially neutral employment practices that lock in prior 
discriminatory practices, historical evidence of those prior 
practices is obviously relevant. Walker v. Jefferson County 
Home, 726 F.2d 1554, 1557 (11th Cir. 1984).

Similarly in Bazemore the question was whether the 
district court should have considered evidence of salary 
disparities which occurred before the effective date of Title 
VII which continued past the effective data. In holding such 
evidence was admissible, the Supreme Court stated:

As we made clear in Hazelwood School District v. 
United States, 433 U.S. at 309-310, n.15, 53 L.Ed.2d 
768, 97 S.Ct. 2736 ‘[pjroof that an employer engaged 
in racial discrimination prior to the effective date of 
Title VII might in some circumstances support the 
inference that such discrimination continued 
particularly where relevant aspects of the 
decisionmaking process had undergone little change.’

Bazemore, 478 at 402. In the context of Bazemore it is clear 
that the evidence of pre-Act discrimination was relevant to 
show that it continued, not to show that the continuation of 
that discrimination was intentional.

Having determined that there is no per se rule of 
admissibility of evidence of historical evidence of 
discrimination, the Court must now examine each category 
of evidence plaintiff seeks to introduce for relevance as well 
as the possibility of prejudice and confusion. The first 
category of evidence is testimony by plaintiffs in the Harrison 
case regarding CCA’s alleged discrimination against blacks 
who sought management positions, the Court finds this 
evidence probative of intent in this case since it appears to



32a

be contemporaneous with the alleged discrimination in this 
case. Moreover, both cases involve defendant’s alleged 
refusal to place blacks in positions of authority. Although 
defendant contends that it will be prejudiced by having to 
litigate the issue of discrimination as to each of these 
witnesses, the Court finds that they are highly probative of 
intent, especially, as plaintiff points out, in light of the 
limitations of St. Mary’s Honor Center v. Hicks, 61 U.S.L.W. 
4782, 1993 WL 220265 (June 25, 1993). The possibility of 
prejudice and confusion caused by this type of evidence can 
be minimized by limiting the number of witnesses who will 
testify as to this issue and by giving an appropriate 
instruction to the jury as to the purpose of which it may 
consider such evidence.

Plaintiffs second category of prior act evidence, 
alleged discrimination in the mill against the Suggs plaintiffs 
during the early 1970’s, is too remote to be use to prove that 
CCA intentionally discriminated against Littles fifteen to 
twenty years later. Although one can infer present intent to 
discriminate from prior acts of discrimination, at some point 
the probative value of those prior acts diminishes to a point 
that their relevance, if any, is outweighed by the likelihood 
of prejudice. To require the defendant to defend against 
employment decisions made more than twenty years ago 
would be extremely prejudicial, especially in light of the 
diminishing probative value of acts made by other 
decisionmakers during a different ear. Cf, Stair, 813 F. 
Supp. at 1120 (holding evidence of prior acts of 
discrimination occurring six to eight years earlier too 
remote).

Finally, plaintiffs evidence of discrimination in the 
timber industry is not relevant in this case. Such evidence 
goes a step beyond Fed. R. Evid. 404(b) which does not 
allow evidence of the evidence of prior acts of others to 
prove the defendant’s intent. Plaintiffs case law does not 
support his assertion that the historical segregation of the 
timber industry and of Alabama society, in general, is 
relevant to prove defendant’s intent. In the case cited by



33a

plaintiff, Ammons v. Dade City, 594 F. Supp. 1274 (M.D. Fla. 
1984), a group of blacks challenged the city’s discriminatory 
refusal to grant city services to blacks, the court held that 
it was proper to consider the city’s past history of 
inadequately funding those services for black communities as 
evidence of intentional discrimination. The evidence 
considered by the Ammons court was, in essence, evidence 
of prior acts by the defendant which the court concluded was 
probative of the defendant’s intent.

In sum, the Court holds that plaintiff may introduce 
evidence of prior acts of discrimination which were the 
subject of the Harrison case. Prior act evidence from the 
Suggs case is excluded on the grounds that it is too remote 
and too prejudicial. Finally, evidence of segregation of the 
timber industry is not relevant to the issues in this case and 
will, therefore, be excluded.

Accordingly, it is ORDERED that the motion in 
limine be GRANTED, in part. Plaintiff will not be allowed 
to introduce evidence of prior acts of alleged discrimination 
against the Suggs plaintiffs, nor will plaintiff be allowed to 
introduce evidence of historical segregation in the timber 
industry or in Alabama society.

DONE this the 23d day of August, 1993.

' S/S___________
UNITED STATES DISTRICT JUDGE



34a

Filed August 23, 1993

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

HERBERT LITTLES,
Plaintiff,

CIVIL ACTION NO. 
91-0851-B-S 

v.

CONTAINER CORPORATION 
OF AMERICA,

Defendant.

ORDER

Before the Court is defendant’s revised motion in 
limine which seeks to excluded several types of evidence 
referred to in the revised pretrial order. The Court has 
entered a separate order addressing the admissibility of 
historical evidence of discrimination, the first type of 
evidence challenged by defendant. As to the other issues 
raised in the motion in limine, the Court enters the 
following orders:

1. Equal Opportunity Evidence
Defendant objects to introduction of evidence 

concerning whether blacks have an equal opportunity with 
whites to satisfy Container’s selection criteria for wood 
dealers. For the reasons discussed in the Court’s order on 
summary judgment, this is "disparate impact" evidence which 
is not admissible in this case. Accordingly, the motion in 
limine is GRANTED as to such evidence.



35a

2. The Racial Characteristics of the Defendant’s 
Employees
Defendant objects to introduction of evidence 

as to whether there have ever been black employees in 
managerial positions which have a say in awarding 
dealership contracts. The Court finds that such evidence is 
relevant. Accordingly, the motion in limine is DENIED

3. Container’s Business Transactions with Other 
Dealers
Defendant objects to any evidence regarding 

its practice of financing interest-free timber loans to wood 
dealers or regarding its practice of financing equipment sales 
to existing dealers. According to defendant, this evidence is 
irrelevant because plaintiff is not a wood dealer. The Court 
finds, however, that the evidence is relevant to impeach 
defendant’s proffered reasons for denying a dealership 
contract to plaintiff. Therefore, the motion in limine is 
DENIED as to this evidence.

4. Comparative Evidence Regarding Plaintiff 
and CCA Wood Dealers
Defendant objects to the introduction of the 

plaintiffs gross receipts for the period 1987 to 1992 and the 
gross receipts from Claude Alford, a CCA wood dealer, 
for the period 1982 to 1986, for the purposes of making a 
comparison between the two. Defendant’s objection is 
twofold. First, CCA argues that the comparison is one of 
"apples and oranges" because of the two different time 
periods. Plaintiffs purpose in submitting evidence from two 
different time periods is to compare plaintiffs’ gross receipts 
for the give-year period leading up to his most recent 
application for a contract with Alford’s gross receipts for the 
five years before he was awarded a dealership. For this 
purpose, the Court finds a comparison is relevant. The 
Court disagrees with CCA’s second argument that gross 
receipts tend to prove nothing. As plaintiffs points out, they 
are indicative of volume. The amount of weight to give this



36a

evidence is for the jury to decide. Therefore, the motion in 
limine is DENIED

5. CCA’s Reasons for Not Contracting with
Littles
CCA objects to evidence as to whether it 

would, in fact, experience adverse effects if it gave Littles a 
wood dealership to produce directly the wood he is currently 
producing through a dealer. According to CCA, the only 
relevant evidence is whether it reasonably believed it would 
suffer adverse effects. Whether it would, in fact, suffer 
adverse consequences certainly has a bearing on whether 
CCA could reasonably believe it would suffer adverse 
consequences. Accordingly, the motion in limine in 
DENIED AS TO THIS EVIDENCE.

6. Additional Objections to Exhibits
Any rulings necessary on these exhibits are 

hereby reserved for trial.

DONE this the 23d day of August, 1993.

________S/S _________
UNITED STATES DISTRICT JUDGE



37a

[279]

Transcript of Trial, August 24th, 1993

THE COURT: All right, sir. Go ahead. The 
jury is out.

MR. BLACKSHER: Mr. McRight, in his
cross-examination of Mr. Littles, suggested by his 
question and elicited information that there has been 
no black dealers since 1980 in the Brewton area in 
south Alabama and Florida, nor has there been any 
black companies or persons that might have the 
minimum qualifications to be dealers since 1980.

And he has read an extensive allegation from 
the complaint of the Plaintiff that there are no blacks 
in the Brewton area with financial resources, the 
equipment or other sources of requirement, and I 
don’t remember the exact language of the allegation, 
to allow blacks to get started in this business. And 
he has done it in a way that suggests that that 
explains why Container Corporation has not entered 
into a contract with the black dealers, because none 
is available.

Well, the reason none is available, as my 
[280] complaint alleges, when you read the parts 
before and after what Mr. McRight said, is because 
segregation put black people in Brewton and in the 
south in that position.

If we are not allowed to demonstrate to the 
jury what the reason for this defense is, it is the same 
as Container saying that blacks dropped drown into 
this situation out of Mars or more to the point, it’s 
an argument that we always suspected blacks really 
are inferior, really are incompetent as a people, they 
are not up to conducting business with us. That is 
the impression that he hopes to leave with this jury, 
either consciously or subconsciously.

In any event, not only does it get into the 
proof that we offered to show, that Container is very



38a

conscious of the necessary consequences of its 
present policies but it actually turns that around and 
uses the necessary consequences as a defense for why 
it has not hired black dealers without us having the 
opportunity to show that that reason is racially 
discriminatory and they know it. And intentionally 
racially discriminatory.

MR. MCRIGHT: Mr. Kirkland, I think, went 
to some lengths to explain that there are no black 
dealers at Container.

*  $  5jC $  5jC

[802] August 26th, 1993. 
Nine o’clock a.m.

(In Chambers)

THE COURT: All right. Let’s go on the 
record for the Court’s ruling on the matter that Mr. 
Blacksher brought up during the testimony of Mr. 
Harper yesterday regarding his desire to cross- 
examine Mr. Harper regarding the Harrison litigation 
as it related to Mr. Harper’s testimony regarding the 
exhibit, Defendant’s Exhibit 64 and the promotions 
to managerial position within the mill.

The Court’s order dealing with that issue, 
which was entered on the -  actually I don’t think I 
signed it until the day this case started on August 
23rd, but counsel has been made aware of it the 
Thursday before that. That order clearly allowed 
evidence of apparent race discrimination of 
promotions to managerial positions within the mill as 
being closely analogous to the wood yard situation 
regarding the lack of any black dealers there.

It did so, however, without reference to there 
having been the Harrison suit to resolve those issues



39a

[803]

because that was a consent decree without any 
admission of liability by Container. So the Court’s 
judgment is that the decree was therefore irrelevant.

To leave the Plaintiff with the uncontroverted 
evidence of Jimmy Watson and Theodore Dean 
regarding discrimination of managerial positions 
within the mill would be unfairly prejudicial to 
Container if the only way Container could offer 
evidence in contradiction of that was that Container 
made certain black managerial promotions during 
and after the Harrison suit was filed and settled.

So the Court will allow the Exhibit 64 in 
evidence and Mr. Harper’s testimony regarding it 
without reference to the Harrison suit, just as it did 
with the Plaintiffs offer of Watson’s and Dean’s 
testimony. So that what the jury has before it is 
evidence of container’s possible discrimination in mill 
management positions at the time Littles was 
negotiating with Don Heath in ’88 or ’89 followed by 
Container’s post ’88 and ’89 promotion of Harrison 
on May 21st of ’90 and Dean on January 6th of ’92 
to managerial positions.

At best, even if the Harrison decree were 
relevant under Rule 403, the Court finds that it 
would unduly confuse the issue to allow it to be 
admitted at this time.

Okay. Are we ready to go? Do you want to 
add something to that, Jim?

MR. BLACKSHER: We at this time and
probably [804] perhaps even later, depending on 
what additional evidence the defendant presents, will 
want to ask the Court to reconsider its earlier rulings 
disallowing us from calling our historian and seeking 
mill witnesses about earlier segregation on the 
theory, that I will not repeat at this time but was 
discussed yesterday, that witnesses proffered by the 
defendant have opened the door to that evidence.



40a

THE COURT: All right, sir.

MR. BLACKSHER: And the reason I am 
saying that now is because if you decide to let me do 
that I have to have some notice to get them here.

THE COURT: I have not seen the door
opened that far yet without repeating the reasons 
that I have stated earlier. Do you want the Norrell 
affidavit to become a part of the trial record as a 
proffer?

MR. BLACKSHER: Yes, Your Honor, as a 
proffer.

THE COURT: William, even though it’s in 
the file, let’s simplify it. It is the document filed on 
August the 23rd in open Court, the plaintiffs offer of 
prove. Let’s make it a Court’s exhibit.

THE CLERK: It will be Court’s Exhibit 1.

THE COURT: Which is the affidavit of
Robert J. Norrell.

THE CLERK: Is that just the affidavit or the 
[805] entire proffer?

THE COURT: Do you want just the affidavit 
as the exhibit?

MR. BLACKSHER: I want the whole thing. 
It’s not going to be shown to the jury so I want the 
whole thing in there.

THE COURT: Are we complicating the
record? Because the pleading is part of the record.



41a

THE CLERK: Yes, sir, it will be
documented.

THE COURT: It is incorporated for the
purposes of this hearing so that the Appellate Court 
in reviewing the trial record will understand that this 
document that we are now referring to is the proffer 
by Mr. Blacksher at this time of what he would 
expect the evidence to be if I were to allow him to 
testify.

$ jje * * *



42a

August 27, 1993

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF ALABAMA

HERBERT LITTLES,
Plaintiff,

CIVIL ACTION NO.
91-0851-B-S

v.

CONTAINER CORPORATION 
OF AMERICA,

Defendant.

The above styled case came on for trail by jury on 
August 23, 24, 25, 26 & 27, 1993 with the Honorable Charles 
R. Butler, Jr., United States District Judge, presiding. The 
jury was selected, but not sworn, on August 3, 1993. The 
jury was sworn and trial begun on August 23, 1993.

Now on this 27th day of August, 1993 comes the jury 
who having heard the evidence, the arguments of counsel, 
the charge of the Court and having considered the same 
upon their oaths return the following verdict into open 
court, to-wit:

"1. Do you find by a preponderance of the evidence 
that the plaintiff Herbert Littles knew or should have known 
on or before October 17, 1989, that Container had denied 
him a wood dealership?

YES___
NO X

If "yes", sign and return the verdict form.

2. Do you find by a preponderance of the 
evidence that the defendant Container Corporation of



43a

America intentionally discriminated against the plaintiff, 
Herbert Littles on the basis of race in refusing to award him 
a wood dealership contract?":

YES 
NO X

IF "No", sign and return the verdict form.

3. If "Yes," to question 2, what amounts do you 
award to plaintiff:

(1) As compensatory damages?__ $___

(2) As punitive damages? (Permitted only if 
you find that Container acted with malice, willfulness or 
reckless indifference to plaintiffs federally protected rights)

$______________

Joel Altherr____
FOREPERSON."

The Court will by separate document enter judgment 
in accordance with the verdict of the jury.

________S/S________________
UNITED STATES DISTRICT JUDGE



44a

December 1, 1993

HERBERT LITTLES,
Plaintiff,

CIVIL ACTION NO. 
91-0851-B-S

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

v.

CONTAINER CORPORATION OF 
AMERICA,

Defendant.

ORDER

The first matter before the Court is "Plaintiffs Post- 
Verdict Motion for Judicial Findings of Fact and Equitable 
Relief'. (Doc. #  107) In considering plaintiffs claim for 
equitable relief, the Court is bound by the jury’s 
determination of factual issues. Lincoln v. Board of Regents, 
697 F.2d 928, 935 (11th Cir.), cert, denied, 464 U.S. 826 
(1983). Plaintiff contends that the Court should grant the 
equitable relief prayed for in the complaint even though the 
jury found against plaintiff as to his legal claims. According 
to plaintiff, the issues upon which he bases his equitable 
claims were not addressed by the jury. Rather than 
summarize the entire course of this litigation, suffice it to 
say that the legal arguments raised by plaintiff in support of 
these claims have been previously rejected by this Court. 
Accordingly, plaintiffs motion for equitable relief is hereby 
DENIED. Judgment shall be entered by separate order.

Also before the Court is defendant’s motion for Fed. 
R. Civ. P. 11 sanctions which is contained in defendant’s 
response to plaintiffs motion for equitable relief. (Doc. #  
108) Defendant argues that the Court should sanction



45a

plaintiff for his "persistent pattern of misrepresenting facts, 
testimony and evidence" and for his "mischaracterization of 
legal precedent". -

Whether to impose sanctions under Rule 11 is within 
the discretion of the trial court. See Donaldson v. Clark, 819 
F.2d 1551 (11th Cir. 1987) (en banc). The Court does not 
find the imposition of sanctions to be warranted in this 
instance. Accordingly, defendant’s motion for Rule 11 
sanctions is hereby DENIED.

Finally, defendant alternatively contends that as the 
prevailing party it is entitled to attorney’s fees pursuant to 42 
U.S.C. § 1988. Attorney’s fees may be awarded to a 
prevailing defendant under Section 1988 if the Court finds 
that the action was "frivolous, unreasonable, or without 
foundation." Christiansburg Garment Co, v. E.E.O.C., 434 
u.s. 412, 421; Hughes v. Rowe, 449 u.s. 5, 14-15 (1980).

In determining whether a suit is frivolous, ‘a district 
court must focus on the question whether the case is 
so lacking in arguable merit as to be groundless or 
without foundation rather than whether the claim 
was ultimately successful.’

Sullivan v. School Bd. of Pinellas County, 773 F.2d 1182,1189 
(11th Cir. 1985) (quoting Jones v. Texas Tech University, 656 
F.2d 1137, 1145 (5th Cir. 1981)). The Court, having 
previously found that plaintiff had presented issues that 
could only be resolved by the trier of fact, cannot now say 
that the action was frivolous. Accordingly, the motion for 
attorney’s fees pursuant to 42 U.S.C. § 1988 is DENIED.

DONE this the 1st day of December, 1993.

________S/S________________
UNITED STATES DISTRICT JUDGE



46a

December 1, 1993

HERBERT LITTLES,
Plaintiff,

CIVIL ACTION NO. 
91-0851-B-S

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CONTAINER CORPORATION OF 
AMERICA,

Defendant.

FINAL JUDGMENT

Pursuant to the jury verdict of August 23, 1993, and 
pursuant to separate order entered this date addressing 
plaintiffs claims for equitable relief, it is hereby

ORDERED, ADJUDGED and DECREED that 
judgment be and hereby is entered in favor of the defendant, 
Container Corporation of America, and that the plaintiff 
recover nothing. Costs shall be taxed in accordance with 28 
U.S.C. § 1920 and Local Rule 13.

DONE this the 1st day of December, 1993.

____________ S/S____________
UNITED STATES DISTRICT JUDGE



47a

February 10, 1994

HERBERT LITTLES,
Plaintiff,

CIVIL ACTION NO. 
91-0851-B-S

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

v.

CONTAINER CORPORATION OF 
AMERICA,

Defendant.

ORDER

This matter is before the Court on plaintiffs motion 
for judgment as a matter of law (doc. #s 111 and 112), 
plaintiffs motion for amendment to the Court’s findings 
(doc. #  111), and plaintiffs motion to alter or amend the 
judgment, or alternatively, for a new trial (doc. #  111). 
After review and consideration these motions, it is hereby 
ORDERED THAT EACH OF THESE MOTIONS BE 
AND HEREBY IS denied.

DONE this the 1st day of December, 1993.

___________ S/S____________
UNITED STATES DISTRICT JUDGE



48a

June 13, 1995 

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

HERBERT LITTLES,

Plaintiff-Counter-Defendant-Appellant, 

Versus

CONTAINER CORPORATION OF AMERICA, 

Defendant-Counter-Claimant-Appellee. 

CLAUDE ALFORD,

Movant.

On Appeal from the United States District Court 
For the Southern District of Alabama

ON PETITION(S) FOR REHEARING AND 
SUGGESTIONS OF REHEARING EN BANC

Before: TJOFLAT, Chief Judge, DUBINA and 
BARKETT, Circuit Judges.

PER CURIAM:

( X ) The Petition(s) for Rehearing are DENIED and no 
member of this panel nor other Judge in regular active 
service on the Court having requested that the Court be 
polled on rehearing en banc (Rule 35, Federal Rules of



49a

Appellate Procedure; Eleventh Circuit Rule 35-5), the 
Suggestion(s) of Rehearing En 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 Suggestion(s) of Rehearing 
En Bank are also DENIED.

( ) A member of the Court in active service having
requested a poll on the reconsideration of this cause en 
banc, and a majority of the judges in active service not 
having voted in favor of it, Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

S/S

UNITED STATES CIRCUIT JUDGE