Meredith v. Fair Brief for Appellant

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

NO. 15,272

NETTIE MAE LOGAN,
Appellant,

v.
THE GENERAL FIREPROOFING COMPANY, 
a corporation.

Appa11e e *
♦

On Appeal from the United States District Court for the 
k Western District of North Carolina

Shelby Division

BRIEF FOR APPELLANTS

ROBERT BELTON 
J. LeVONNE CHAMBERS 
ADAM STEIN

216 West Tenth Street 
Charlotte, North Carolina 28202

CONRAD O. PEARSON
203 1/2 East Chapel Hill Street 
Durham, North Carolina

Of Counsel:
Chambers, Stein, Ferguson 
and Lanning 
216 West Tenth Street. 
Charlotte, North Carolina

JACK GREENBERG 
WILLIAM L. ROBINSON 
SYLVIA DREW

10 Columbus Circle
New York, New York 100IS

Attorneys for Appellant



TABLE OF CONTENTS

Page

Issues Presented................ • . ............... 1
Statement of the Case..........  2

I. Proceedings Below .........................  2
II. Statement of Facts.......................... 10

Argument
I. The District Court Erred in Granting 

Defendant's Motion for Summary Judg­
ment Where the Defendant Failed to 
Carry its Burden of Showing the Ab- 
sence of any Genuine Issue Concerning 
any Material F a c t ......................... 20

II. The Court Below Failed to Accord to 
the Proper Weight to the Statistical 
Evidence in Evaluating Plaintiff's 
Individual Claim as Well as the
Claim for Class Relief.  ............ 25

III. In Granting the Motion for Summary 
Judgment the Court Below Failed to 
Consider Plaintiff's Claim Based on
42 U.S.C. Section 1981.....................28

Conclusion......................................... 30

\



Adickes v. S. H. Kress & Co. ,___ U. S.__,
26 L. Ed 2d 142 (1967) ................................ 21
Clark v. American Marine Corp., 304 F. Supp.
603 (E.D. La. 1969). ..................... .. 26
Dobbins v. Local 212, IBEW, .292 F. Supp.
413 (S.D. Ohio 1968)............ ............... 26,28,29
EEOC v. United Association of Journeymen 
and Apprentices of Plumbers and Pipe
Fitting Industry, 427 F. 2d 1091 (6th Cir. 1970) . . .  21
Hollidery v. Railway Express Co. ,_Inc. ,
306 F. Supp. 898 (N.D. Ga. 1969)..................... 21
International Harvester Co. v. Waters,
__U.S.__, 3 EPD, 5[8032 (1970). . . ................ . . 28
Jenkins v. United States Gas Corp.,
400 F. 2d 28 (5th Cir. 1968).............. ..........  26
Johnson v. Louisiana State Employment
Services, 301 F. -Supp. 675 (W.D. La. 1969)..........  21,22,

23,25
Jones v. Mayer, 392 U.S. 409 (1968).............. .. . 28

Table of Cases: Pages

Lea v. Cone Mills Corp., 300 F. Supp.
97 (M.D. N.C. 1969)...................................  23,24,

25,26
Parham v. Southwestern Bell Telephone
Co. , ■ F. 2d__, 3 EPD 8021 (8th Cir. 1970)..........  26,27
Sanders v. Dobbs Houses, Inc.,
431 F. 2d 1094 (5th Cir. 1970)....................... 28
Scott v. Young, 421 F. 2d 1434 (4th Cir. 1970) . . . .  28, 29
United States v. Pi]Ion Supply Co.,
'429 F. 2d 800 (4th Cir. 1970).........................  26
United States v. Hayes International
Corp. , 415 F. 2d 1038 (5th Cir. 1969) ................. 26, 27



Pages

.United States v. Medical Society of
South Carolina, 398 F. Supp. 145 (D.S.C. 1968). . . . 28,29 
United States v. Sheet Metal Workers,
Local 36, __ F. 2d ___, 123 (8th Cir. 1969)........... 26,

I
Waters v. Wisconsin Steel Workers,
__F • 2d__, 62 CCH Lab. Cas. 519V35 (7th Cir. 1970) . . 28,
cert denied, sub non,

Other Authorities:
6 Moore's Federal Practice,
Para. 56.11 (3) (1966 e d . ) ........................... 22,

Statutes and Rules:
Title VII Civil Rights Act of
1964, 42 U.S.C. Section 2000e , et seq............. 23,27
42 U.S.C. §1981 .'........
Rule 56 of the Federal Rules 
of Civil Procedure. . . . .

J

I 
I

\

i

I .

. 28,29,30 

. 20,



TABLE OF CONTENTS

Page

Issues Presented ................................... 1
Statement of the Case................................. 2

I. Proceedings Below.................... .. . 2
II. Statement of Facts.......................... 10

Argument
I. The District Court Erred in Granting 

Defendant's Motion for Summary Judg­
ment Where the Defendant Failed to 
Carry its Burden of Showing the Ab­
sence of any Genuine Issue Concerning 
any Material F a c t ................ .. 20

II. The Court Below Failed to Accord to 
the Proper Weight to the Statistical 
Evidence in Evaluating Plaintiff's 
Individual Claim as Well as the
Claim for Class Relief.................... 25

III. In Granting the Motion for Summary 
Judgment the Court Below Failed to 
Consider Plaintiff's Claim Based on
42 U.S.C. Section 1981.................... 28

Conclusion......................................... 30



Adickes v. S. H. Kress & Co., __U.S.__,
26 L. Ed 2d 142 (1967)............................... 21
Clark v. American Marine Corp., 304 F. Supp.
603 (E.D. La. 1969). .................................  26
Dobbins v. Local 212, IBEW, 292 F. Supp.
413 (S.D. Ohio 1968) ................................. 26,28,29
EEOC v. United Association of Journeymen 
and Apprentices of Plumbers and Pipe
Fitting Industry, 427 F. 2d 1091 (6th Cir. 1970) . . .  21
Holliday v. Railway Express Co., Inc.,
306 F. Supp. 898 (N.D. Ga. 1969)....................  21
International Harvester Co. v. Waters,
__U.S.__, 3 EPD, 5(8032 (1970).................. .. 28
Jenkins v. United States Gas Corp,,
400 F. 2d 28 (5th Cir. 1968)........................  26
Johnson v. Louisiana State Employment
Services, 301 F. Supp. 675 (W.D. La. 1969)..........  21,22,

23,25
Jones v. Fayer, 392 U.S. 409 (1968)..................  28

Table of Cases: Pages

Lea v. Cone Mills Corp., 300 F. Supp.
97 (M.D. N.C. 1969)................................... 23,24,

25,26
Parham v._Southwestern Bell Telephone
Co. , F. 2d__, 3 EPD 8021 (8th Cir. 1970)..........  26,27
Sanders v. Dobbs Houses, Inc.,
431 F. 2d 1094 (5th Cir. 1970)......................  28
Scott v. Young, 421 F. 2d 1434 (4th Cir. 1970) . . . .  28, 29
United States v. Dillon Supply Co.,
429 F. 2d 300 (4th Cir. 1970)........................  26
United States v. Hayes International 
Corp., 415 F. 2d 1038 (5th Cir. 1969) 26, 27



Pages •

United States v. Medical Society of
South Carolina, 398 F. Supp. 145 (D.S.C. 1968)- • • • 28,29
United States v. Sheet Metal workers,
Local 36, __ F. 2d __, 123 (8th Cir. 1969)..........  26,
Waters v. Wisconsin Steel Workers,
__F. 2d__, 62 CCH Lab. Cas. 5(9735 (7th Cir. 1970) . . 28,
cert denied, sub nom,

Other Authorities:
6 Moore's Federal Practice,
Para. 56.11 (3) (1966 e d . ) ...........................22,

Statutes and Rules:
Title VII Civil Rights Act of
1964, 42 U.S.C. Section 2000e , ef seg............. 23,27
42 U.S.C. §1981............ „ ......................  28,29,
Rule 56 of the Federal Rules
of Civil Procedure.............. ................... 20,



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

NO. 15,272

NETTIE MAE LOGAN,
Appellant,

v.
THE GENERAL FIREPROOFING COMPANY, 
a corporation,

Appellee.

On Appeal from the United States District Court for the 
Western District of North Carolina 

' Shelby Division

BRIEF FOR APPELLANT

ISSUES PRESENTED
1. Whether the District Court erred in granting

|
defendant's Motion for Summary Judgment where:

a. the defendant failed to carry its burden of 
showing no genuine issues of facts which should be resolved
at a trial on the merits;



b. the court decided the issue of the credibility 
on the basis of affidavits;

c. the court failed to accord the proper weight 
to the statistical evidence in this case which involves a 
claim of racial discrimination;

d. the court failed to consider plaintiff's class 
action claim of racial discrimination based on Section I
of the Civil Rights Act of 1866, 42 U.S.C. Section 1981?

2. Whether the District Court erred in finding an 
absence of employment discrimination based on race on the 
record below?

STATEMENT OF THE CASE 
I. Proceedings Below

This ?.s an appeal by Nettie Mae Logan, appellant herein 
and plaintiff below, from the Judgment of the District 
Court for the Western District of North Carolina, Shelby 
Division, entered on September 10, 1970, granting the Motion 
for Summary Judgment of General Fireproofing Company, appellee 
herein and defendant below.-1/

-i^The parties to this appeal will be referred to as 
"plaintiff or "defendant" as they appeared in the District 
Court.

-2-



On June 27, 1966, plaintiff filed a charge with the 
Equal Employment Opportunity Commission ("EEOC") alleging 
that she had made repeated applications for employment 
with the defendant and had not been hired because of her 
race. On June 27, 1967, EEOC found reasonable cause to 
believe that the defendant had denied plaintiff consideration 
for employment because of her race in violation of Title 
VII of the Civil Rights Act of 1964 (A.102-104). There­
after, by letter dated February 17, 1969, EEOC notified 
plaintiff of its inability to obtain voluntary compliance 
by the defendant with the Act and that plaintiff might then 
initiate proceedings in an appropriate Federal Court.

Plaintiff, a Black woman, initiated this action by 
filing a class action complaint on March 18, 1969.
Jurisdict.i on of the court below was invoked pursuant to 
Section 2000e-5(f) of Title VII of the Civil Rights Act of 
1964 and Section I of the Civil Rights Act of 1866, 42 U.S.C. 
Section 1981.

The Complaint alleged, inter alia, that plaintiff had 
been denied employment because of her race; that defendant 
employed n ■> black persons as professionals, technicians, 
sales workers, office or clerical v/orkers or craftsmen;

-3-



that black workers doing the same work as white employees 
were paid lower wages and that the defendant did not post 
EEOC posters as required by law. Plaintiff prayed for 
appropriate relief against these practices (A.1-5).

On April 10, 1969, the defendant filed a Motion to 
Dismiss challenging, among other things, plaintiff's 
standing to bring this action as a class action, and a 
Motion for a More Definite Statement (A.7-12). After a 
hearing (July 7, 1969)-^ the court below on September 8, 
1969, denied these motions, except that the court ordered 
plaintiff to file a statement or amendment of the Complaint 
setting forth the details relative to her application for 
employment with the defendant and the defendant's refusal 
to employ her (A.14-23). Plaintiff filed her Statement on 
September 25, 1969 (A.24-27).

After taking the deposition of the plaintiff on 
October 9, 1969, defendant, on October 14, 1969, filed its

2/By Order of the court of May 29, 1969, EEOC was 
granted leave to file a brief amicus curiae and to present 
oral argument on these motions over the objection of the 
defendant.



Answer to the Complaint denying the material allegations 
therein (A.28-30).

On October 23, 1969, plaintiffs served Interrogatories 
on the defendant (A.31-38). On November 26, 1969, the 
defendant answered some of the Interrogatories and filed 
objections to others (A.39-52). The court below heard 
defendant's objections to Interrogatories on December 1,
1969, and issued its ruling on January 19, 1970. The 
defendant was given a period of ninety (90) days in which 
to answer certain interrogatories (A.53-59).

On April 1, 1970, the defendant served answers to 
additional interrogatories pursuant to the Order of the court 
of January 19, 1970 (A.60-80). On the same day (April 1, 
1970) the defendant filed a Motion for Summary Judgment in 
its favor, jointly and severally, upon all claims in the 
Complaint pursuant to Rule. 56(b) and (c) of the Federal Rules 
of Civil Procedure (A.81). In support of the motion, the 
defendant filed various affidavits of persons responsible 
for personnel procurement at its plant (A.83-99) in question 
alleging that:

-5-



(1) Plaintiff had not been refused employment 
because of sex or race but because she was 
overweight, had a large number of children 
and had no skills (A.89); that she was unsuiL 
able for employment by the defendant because 
she would not be able to stand up day in and 
day out performing laboring work because of 
her weight; that she was a potential absen­
teeism problem because of the need to care 
for her children (A.90); and that both black 
males and females not having these problems 
were hired before and after plaintiff's 
application was filed (A.85).

(2) No openings existed on the day plaintiff 
applied (A.84-89).

(3) Blacks have been and continue to be employed 
in all departments throughout the plant with 
one or two exceptions; that Blacks receive

i the same pay for the same work as white 
employees and that Black employees are 
considered for promotions on the same basis 
as are white employees.

-6-



(4) The absence of Blacks in such categories 
as executive and clerical positions is due 
to the failure of Blacks to apply or qualify 
for such positions (A. 88, 98).

(5) Plaintiff admits to no personal knowledge of 
discrimination as to the class she purports 
to represent.

(6) EEOC posters have been posted at all times 
required except on such occasions when they 
had been torn down without the knowledge of 
the defendant (A.91,95).

On April 17, 1970 and Ax̂ ril 18, 1970, plaintiff and EEOC 
respectively, filed responses in opposition to the Motion 
for Summary Judgment alleging that the following genuine 
factual issues remained in dispute:

(1) Whether the testimony of the plaintiff was 
more credible than that of the defendant's
employment personnel regarding the cir-

I cumstances of plaintiff's rejection as a 
potential employee?

(2) Whether the limitation as to the number of 
children a woman may have to be considered 
for employment by the' defendant is a bona

-7-



fide occupational qualification within the 
meaning of Section 703(e) of Title VII, 42 
U.S.C. Section 2000e-2(e)?

(3) Whether a minimum weight standard for 
potential employees is mandated by business 
necessity for the efficient performance of
any job or categories of jobs at the defendant's 
plant?

(4) The justification, if any, of the absence 
of Blacks in certain job classifications?

(5) Whether the defendant applies different 
standards to applicants of different races 
and if different standards were so applied, 
whether plaintiff was rejected because of this 
unlawful standard.

In addition, plaintiff filed her affidavit stating that 
her husband was retired, and had she been hired by the
defendant, he would have been at home to care for the
|children. Plaintiff stated that no one had inquired of her 
as to what arrangements would be made for the care of her 
children during her hours of work if given employment. She.

-8-



stated further that subsequent to applying at the defendant's 
plant she had been employed by another company where she 
performed a job standing on her feet eight (8) hours a day, 
six days a week. Finally, she stated that she had given 
her attorney the names of other Black persons, males and 
females, she believed had been denied employment by the 
defendant because they were Black (A.100-101).

A hearing on the Motion for Summary Judgment was held 
before Judge Woodrow Wilson Jones on April 20, 1970, and 
on September 10, 1970, Judge Jones entered an Order granting 
the defendant's motion. As part of this Order, Judge Jones 
filed a Memorandum of Decision (A.105-117) making the 
following findings:

(1) The defendant's records showed that black 
and white males and females had been em­
ployed by the defendants since 1964, paid 
at the same rate of pay and promoted on the 
same basis as white employees (A.113).

,
(2) There had been no discrimination against the 

plaintiff because there were no openings at 
the time plaintiff applied and that she was 
later rejected because of her overweight 
problem and the fact that she had nine 
children all of whom were still at home (A.114-

-9-



115) .

(3) That plaintiff.had failed to meet her burden 
of demonstrating any genuine issues of fact' 
as to the class and that [i]t [was] apparent 
that she intended to rely upon discovery 
procedures to develop this phase of her 
case. In this connection the court assumed 
that all of the available evidence had been 
disclosed (A.112,115).

The court then concluded that there, were no genuine issues 
as to any material fact existing between the plaintiff and 
defendant and that the defendant was entitled to a judgment 
as a matter of law (A.115).

Plaintiff filed her Notice of Appeal from the granting 
of defendant's Motion for Summary Judgment on September 25, 
1970 (A.117).

II. Statement of Facts^/
General Fireproofing Company is an Ohio corporation

~ In granting defendant's motion for summary judgment 
the court held that a reasonable "analysis of all the evidence 
in this voluminous file leads to the conclusion that this 
■defendant is not in violation of the Civil Rights Act"
(A.115). The voluminous evidentiary file to which the court 
referred consists only of defendants answers to interroga­
tories, the deposition of plaintiff; the affidavits filed 
by the plaintiff and three of the employees of the defendant.

-10-



which manufactures and assembles office and business 
furniture and equipment. The defendant maintains a plant 
in Forest City, North Carolina and is the facility involved 
in the instant case. The Forest City plant is the sole 
manufacturer of chairs for the defendant (A.39).
A. Plaintiff's Individual Case;

There were two sets of facts presented to the court 
below concerning the application by the plaintiff for employ­
ment with the defendants-the facts as related by the' 
plaintiff in her deposition and the facts as related by 
employee procurement personnel of the defendant in their 
affidavits.

1. According to the plaintiff, a Black woman residing 
in Bostic, North Carolina the facts were as follows:

Prior to the time plaintiff applied she had heard over 
a local radio station in Forest City in December, 1965 that 
the defendant had openings for trainees at its plant (A.122). 
She also testified that a local newspaper had run an advertise­
ment for trainees at the plant although she could not

3/Continued. The conclusion by the court below that plaintiff 
"has conducted extensive discovery procedure" is without any 
basis in fact. The only discovery procedures conducted by 
the plaintiff consisted of the filing of interrogatories.
The defendant objected to those interrogatories from which 
the majority of statistical evidence in the case is 
compiled. There were no other "discovery proceedings."

-11-



remember the exact date (A.138). Plaintiff made two visits 
to the Forest City plant seeking employment.

On March 16, 1966 the plaintiff filed an application
4/m  person at the plant.--7 She described her first visit 

as follows: "Well, the secretary or whatever gave me an 
application to fill out and after I filled it out the 
personnel manager came out and said 'I don't have an 
opening for trainees,1 but he would keep me in mind."
(A.132). This conversation had taken place in the waiting 
room of the plant. On the second visit the plaintiff 
testified that she informed the secretary that the "Equal 
Opportunity" told her to come and ask for a job and the 
secretary said, "I don't care who sent you we have no 
openings."-1̂/ Following the second visit to the plant,

4/The Complaint erroneously stated m  Paragraph VI 
that the application was first made on December 27, 1965.
As indicated on the face of the application and later 
clarified in the deposition of the plaintiff it was 
established that the correct date of initial application was 
on March 16, 1966.

5/Between the first and the second visit to Forest 
City plant, plaintiff had had some communication with EEOC 
concerning her efforts to obtain employment with the defend­
ant.

-12-



plaintiff testified that she made a number of telephone 
calls to the plants inquiring about job openings and that 
on each occasion she gave her name.

Plaintiff testified that on each occasion she 
telephoned she would say essentially:

"This is Nettie Logan and I put my 
application in some time ago and I was just 
wondering if you had any openings this 
morning. [The secretary]wouId say "no 
nothing for women. I have some jobs for 
men but not for women." The last time I 
called, she said there wasn't any need for 
me to call bach because they had no openings 
for women, they had openings for men, so 
I did not call bach" (A.162).

At the time plaintiff filed her application in March, 
1966, she had nine (9) children, three of pre-school age and 
indicated on her application that she weighted 180 pounds.
(A.177). Her husband at that time had retired from his 
job with a railroad.

2. According to the affidavits of the defendant, the 
facts surrounding plaintiff's application were as follows:

The affidavit of the defendant's former personnel 
manager stated that he did not talh to plaintiff on her 
first visit to the plant in March, 1966. He did, however, 
see her application on that date. He stated that he

-13-



immediately saw from the application that the woman was 
greatly overweight, that she had no skills and that she 
had nine (9) children (A.90).

The personnel manager stated that he did talk to 
plaintiff about six weeks later as he was passing through 
the waiting room. The plaintiff stopped him and asked why 
he had not called her and hired her. He stated he told her 
he could not use her and that there was nothing for her at 
that time. He further stated that she had nine (9) 
children to take care of; that this would cause her to miss 
a lot of work; that she was very heavy and that he did 
not believe that she could stand up under laboring work 
day in and day out, and that she could not do any kind of 
skilled woik (A.90). He did not see the plaintiff any more 
after this occasion.

The personnel clerk handles initial inquiries for 
employment whether made by telephone or in person. She has 
held that position since 1963 and was employed in that 
capacity during the time plaintiff applied and made 
inquiries by telephone. The personnel clerk does not 
remember the plaintiff, nor does she remember the plaintiff 
telephoning to inquire of the availability of jobs (A.83-84).

-14-



The proportion of Black workers to white remains 9% 
of the total number of employees as contrasted with the 
18% Black population in Forest City. The defendant's records
reveal that while 24 Black men have received promotions
/

during the period 1963-1969, 14 or fifty-eight percent (58%) 
were effectuated after March 1968 when suit was filed;-^ by 
contrast only 53 men, thirty-one percent (31%) of all white 
men receiving promotions in the period covered received them 
after March 1968 (A.60-80).

Only two blacks occupy supervisory positions and both 
were promoted to such positions only after suit was filed. U  

There are by contrast 26 white supervisors (A.46). The 
Blacks superivse a total of 12 men (9 and 3 respectively)

r  /
—' These statistics are compiled from answers 8 and 9 

to interrogatories. One Black woman and 14 Black men 
received promotions after suit was filed:

J.S. Miller, 9/29/69; E.C. Ledbetter, 11/4/68;
D. Toms, 6/2/69; H. Logan 5/26/69; R.T. Withrow, 11/24/69;
E. C. Murray, 6/17/68; W.A. Miller, 11/11/68;
M.J. Freeman, 4/14/69; J.G. Littlejohn, 8/26/68;
II. Green, Jr., 9/29/69; A. Landrum Jr., 11/4/68;
P.R. Banton, 4/14/69; F.L. Thompson, 2/3/69;
J.E. Smith, 8/11/69; T. Kelly 2/16/70.
7/J. Twitty was promoted to Shipper Checker, 11/1/68,

W.R. Wilkerson, was promoted to Shipper Checker, 10/20/69.

-15-



(A.46). The whites supervise a total of 1692 men for an 
average of 68 men per supervisor.-^

The compilation further reveals that the only men ever 
hired to fill janitorial positions were black. ^

While the defendant asserts that no exclusively male 
or female positions exist (A.48), male employees outnumber 
females 3 to 1.^/ Forty percent (40%) of the women hired 
during the period covered (1963-1969) were assigned jobs as 
sewers and cutters, two of the lowest paid classifications; 
these positions are held only be female employees (A.60-80). 
The ratio of male to female in jobs performed by both sexes 
is equally disproportionate, e.g. spot welders 13 males to 
4 females; welders 23tl; sand and putty 19:6. No females 
are employed in the majority of jobs in the plant. Promotions

8 /The defendant's answers to interrogatories 8 and 9 
list only 400 employees. It is unclear what the actual 
number of employees is in light of the total number of men 
being supervised.

9/J.H. Toms, H. Green, D.W. Mills, W.L. Greene.
^ ^ 1 9 6 3 - 6 9 , 108 female employees and 317 male.

-16-



are granted far more frequently to males than females in 
the same job. Only 15 of the 108 females listed in answers 
to interrogatories 8 and 9 have received promoti ons as 
opposed to 204 of 309 men listed. The same is true in 
particular jobs. For example, only 6 of 42 female utility 
workers received promotions during the 1963-1969 period, 
whereas 13 of 23 males in the same category received better 
paying jobs (A.60-80).

No woman appears to hold a supervisory position and the 
overall starting wage for women is 20 cents less an hour 
than the overall starting wage for men.

The record reveals that overweight women and women 
with a large number of children have been hired by the 
defendant in sizable proportion during the period covered. 
Nearly one-fourth (1/4) of the female employees have 4 or 
more children. 1̂ Nineteen women weigh 150 pounds >for more.—

—— •J. Flack, E.H. Bradley, H.V. Silvers, R.M. Silvers, 
M.H. Harris, M.R, King, M.R. Jones, E.L. Melton, C.L. Bridges, 
G.C. Greene, B.E. Rhymer, D.R. Thompson, F.E. Nanny, S.T.
Pate, E.M. Price, D.H. Hudson, S.C. Church, U.N. Head, H.B. 
Smith, E.M. Washburn, L.E. Powell, M.M. Ramsey, B.K. Roane, 
M.M. Bradley, G.B. Mode.

12/
— ' G . Henson, R.D. Metcalf, O.M. Murray, L.M. Greene,

L. E. Hutchins, I.H. Millwood, W.E. Harrill, E.M. Price, M.L. 
Byrd, D.H. Hudson, G.T. Philbeck, L.E. Powell, B.K. Roane,
M. G. Flack, M.J. Hunsinger, P.A. Logan, S.P. Freeman, E.H. 
Bradley.

-17-



Three of the 15 women receiving promotions during the 
period covered weighed more than 150 p o u n d s . - F o u r  
of the women promoted have 4 or more children.-iii/ Two
of the 15 women promoted have 4 or more children and weigh 
150 or more pounds.

Although written job descriptions exist, many of these 
job descriptions are out-of-date and the defendant was unable 
on the record as it now stands to state which of these job
descriptions are utilized in the employment or promotion of 
employees.

It appears from the record that the defendant does not 
have any formalized training program and that training for 
inexperienced personnel consists of on the job training.
The defendant has permitted persons who wanted to learn the 
particular kind of sewing required at the Forest City Plant * I

13/G. Henson, D.H. Hudson, B.K. Roane.
14/

M.R. Jones, D.H. Hudson, M.M. Ramsey, B.K. Roane.
I 15/D.H. Hudson, B.K. Roane.

-18-



to come in on their own time and use the defendant's sewing 
machines and Supervisors have helped such persons on these 
occasions. The plaintiff was not advised of this opportunity 
on either of the two visits she made to the plant.

The minimum qualification an applicant for employment 
must possess is that he must be 18 years of age and be able 
to read and write. Beyond this the personnel manager and/ 
or the Supervisor immediately concerned determine whether 
an applicant is suitable for employment or for a particular 
job.

As to recruitment of new personnel, the defendant states 
that it does not advertise for new employees in local or 
other media. The plant does, however, request referrals 
from time to time from the North Carolina Employment Security 
Commission. The source from which the defendant obtains its 
greatest number of new employees is from walk-in applicants.

-19-



ARGUMENT
I

The District Court Erred in Granting 
Defendant's Motion for Summary Judg­
ment Where the Defendant Failed to 
Carry its Burden of Showing the Ab­
sence of any Genuine Issue Concerning 
any Material Fact.

On April 1, 1970, the defendant moved the court, pursuant 
to Rule 56(b)(c) of the Federal Rules of Civil Procedure for 
summary judgment in its favor jointly and severally upon all 
claims set forth in the complaint. Plaintiff submits that the 
court below erred in granting the defendant's Rule 56 Motion 
because the defendant failed to carry its burden of proving 
the absence of a genuine issue concerning any material fact 
in this case.

Rule 56(c) of the Federal Rulei of Civil Procedure provides 
in pertinent part:

"The judgment sought shall be rendered 
forthwith if the pleadings, depositions, 
answers to interrogatories;, and admissions 
on file, together with the; affidavits, if 
any, show that there is no genuine issue as 
to any material fact and that the moving 
party is entitled to a judgment as a matter 
of law."

It is almost axiomatic that on motion for summary judgment, 
the moving party has the burden of proving that no genuine issues 
of fact exist and that he is entitled to judgment as a matter 
law, even though his opponent may have the burden of proving

-20-



these facts at a trial. This is so even if the court casts doubt
that the opposing party will be able to prevail on the disputed
issues of fact. Adickes v. S. II. Kress & Co., . U.S. __, 26
L. Ed 2d 142, 151-152 (1970); Johnson v, Louisiana State
Employment Service, 301 F. Supp. 675, 677-678 (W.D. La. 1969);
EEOC, v. United Ass'n of Journeymen and Apprentices of the Plumbers 
and Pipe Fitting Industry, 427 F. 2d 1091, 1093 (6th Cir. 1970); 
Holliday v. Railway Express Co., Inc., 306 F. Supp. 898, 903 (N.D. 
Ga. 1969).

The defendant's motion for summary judgment was addressed 
to the plaintiff's individual claim of employment discrimination 
as well as her claim of discrimination against the class. The 
defendant, we submit, failed to meet its burden under Rule 56 
as to either claim.

With respect to plaintiff's individual claim of discrimination 
the court below was presented with two (2) sets of facts. The 
plaintiff testified in her deposition that after she had filled 
out an application for employment, she had a conversation with 
the defendant's personnel manager on that occasion or on a 
subsequent visit to the plant. .Apparently in reliance on this 
hope for future employment plaintiff made periodic calls to the 
plant until finally told that her expectations of employment 
were futile.

-21-



The personnel manager, by way of affidavit in support of the
motion for summary judgment, gave a different version. He
stated that on the occasion that he spoke with the plaintiff,
he told her that he could not use her, that she had 9 children
to take care of and this would cause her to miss a lot of work,
that she was very heavy and he did not believe that she could
stand up under laboring work day in and day out. The plaintiff
testified that the personnel manager never discussed any of
these things with her. It is apparent from the several versions
indicated in the record concerning plaintiff's application for
employment that it was necessary for the court below to make a

16/finding as to which of these versions was more credible.
The law is clear that the credibility of witnesses is not an 

issue of fact which a court can decide based on a cold record 
consisting of depositions and affidavits. Johnson v. Louisiana 
State Employment Service, supra; 6 Moore's Federal Practice, 
Para. 56.11(3), p. 2170 (1966 ed.). As the court said in Johnson 
v. Louisiana State Employment, supra at 678:

" . . .  The credibility of the persons who here 
made the affidavits is to be tested when they testify 
at a trial. Particularly where, as peculiarly in 
the knowledge of defendants or their witnesses, 
should the plaintiff have the opportunity to impeach 
them at trial; and therefore, their demeanor may

16/ Neither of the other two affiants on behalf of the defendant 
had any personal knowledge about plaintiff's application.

-22-



be the most effective impeachment. Indeed, 
it has been said that a witness's demeanor 
is a kind of 'real evidence.' Obviously, 
such 'real evidence' cannot be included 
in affidavits . . . "

Johnson v. Louisiana State Employment. Service, supra, was 
a case brought under Title VII of the Civil Rights Act of 1964. 
The defendant in that case had moved for summary judgment. The 
defendant therein alleged as grounds therefor many of the 
grounds that the defendant in the instant case alleged, ep cp 
Johnson was not qualified; the only reason that Blacks were not 
in certain job classifications was the failure of qualified 
Blacks to apply for these positions and that the defendant had 
faithfully followed the letter and the spirit of Title VII. The 
court in Johnson denied the motion holding that:

"Far from erasing the issues presented 
by the plaintiff, the affidavits by defendant's 
employees, wherein they deny or attempt to 
explain the alleged racial discrimination, only 
indicates that many issues of fact still exist."

301 F. Supp. at 678. Of particular importance to the court in
Johnson in denying defendant's motion for summary judgment was
the issue of credibility; this issue could only be resolved at
trial where the judge would have the opportunity to observe the
demeanor of the witnesses.

The importance of credibility issue is demonstrated by the 
recent Title VII case of Lea v. Cone Mills Corp., 300 F. Supp.
97 (M.D.. N. C. 1969), appeal pending, 4th Cir. Nos. 14,068,

-23-



14,069, which involved facts similar to the instant case.
In Lea, there had never been a Black woman in the defendant's 

work force prior to March, 1966. The plaintiffs had applied in 
September, 1966, and testified at. trial that the personnel 
manager had told them in response to a specific question that 
the plant did not hire Black females. The personnel manager did 
not remember the question being asked, but testified at trial 
that it was a fact that no Black females had ever been employed 
at the plant. From the conflicting testimony and evidence the 
court concluded that for all practical purposes, Black women were 
not considered for employment at the plant. In so finding the 
court concluded:

"The fact that no Negro females applied 
for employment before the spring of 1965, does 
not contrary to the argument of the defendant, 
show either a lack of interest or disprove dis-' 
crimination. The more plausible explanation of 
this inaction is that, because of defendant's 
hiring practices over a long period of years,
Negro females felt their efforts would be 
futile. Cypress v. Newport News General and 
Nonsectarian Hospital, 4th Cir. 375 F. 2d 648 
(1967) . "

i d  F. Supp, 102.I
The danger in deciding the issue of credibility on the basis 

of a cold record, ep cp affidavits, depositions, where that issue 
may be determinative of the merits of the case is demonstrated 
in the instant case. Here, there was a conflict in the testimony

-24-



of the plaintiff and the personnel manager. Had the court below 
denied the defendant's motion for summary judgment the case might 
then have proceeded to trial where‘the credibility of plaintiff's 
and the defendant's testimony could have been tested in the 
crucible of cross examination; and the court could have observed 
the demeanor of the witnesses. See Johnson v. Louisiana State 
Employment Service, supra. The court then may have been 
persuaded by the plaintiff's testimony as the court was persuaded 
in Lea v. Cone Mills, supra.

For these reasons, we submit, the court committed error in 
deciding the credibility issue based on affidavits and the 
deposition of the plaintiff and must, therefore, be reversed.

II
The Court Below Failed to* Accord 
to the Proper Weight to the Statis­
tical Evidence in Evaluating Plain­
tiff's Individual Claim as Well as 
the Claim for Class Relief.

The court below, in considering plaintiff's claim of class 
discrimination stated, "Plaintiff contends that the defendant not 
only discriminated against Negroes in hiring, but limits them to 
lower paying jobs, and pays Negroes lower wages than whites for the 
same work . . . .  Plaintiff's affidavit contains nothing more than 
general allegations as to these contentions. It is apparent that 
she intended to rely on discovery procedures to develop this phase

1Z/of her case." The court then went on to examine the evidence

JLZ/ The fact that plaintiff intended to rely on discovery proceed­
ings to develop the class action claim for relief as well as to ob­
tain the necessary background fact on which her individual claim 
should be decided is not novel. Several courts have recognised



in the record, the heart of which consisted of statistical 
computations. Even a cursory reading of the decision below shows 
that the district court not only failed to thoroughly evaluate 
the statistical evidence in the record but the court also failed 
to accord the proper weight to this evidence.

It seems well established that in cases concerning racial 
discrimination "statistics often tell much and courts listen." In
Parham v. Southwestern Bell Telephone Co., __ F. 2d__, 3 EPD 8021
the Eighth Circuit Court of Appeals held as a matter of law that 
statistics which revealed an extraordinarily small number of 
Black employees, except for the most part as menial laborers 
establishes a violation of Title VII. This court and other courts 
both district and appellates, are in accord.' United States v. 
Dillon Supply Co'. , 429 F. 2d 800 (4th Cir. 1970) ; Unit ed States v 
Sheet Metal Workers, Local 36,416 F. 2d 123 (8th Cir. 1969); Uni ted 
States v. Hayes International Corp., 415 F. 2d 1038, 1043 (5th
Cir. 1969) ; Clark v . Americani Marine Corp., 304 F. Supp. 603
(E.D. La. 1969); Lea v. Cone Mills, supra, at 102; Dobbins v. Local
212, IBEW, 292 F. Supp. 413, 442 (S.D. Ohio 1968).

Even if statistics in a given case are insufficient to 
establish a violation of Title VII as a matter of law, they may be

17/ (cont'd) that a single charge of employment discrimination 
under Title VII found by EEOC to rest upon reasonable grounds may 
serve to launch a full scale inquiry into alleged unlawful motivation 
in employment practices. Jenkins v . United Gas Corp.,400 F. 2d 28,
33 (5th Cir. 1968); Parham v. Southwestern Bell Telephone Co., F.
2d__, 3 EPD 8021, pp. 6049-50 (8th Cir. 1970) .

-26-



sufficient alone to make out a prima facie case of a violation.
See United States v. Hayes International Corp., supra, and this, we 
submit, is enough to raise a material issue of fact to be resolved 
by a trial.

The statistical evidence in the record in this case compares 
favorably with the statistics in the cases cited above where the 
courts either found the statistical evidence sufficient as a 
matter of law to establish a violation of Title VII or sufficient 
to create a prima facie violation. First, the percentage of Black 
workers in the defendant's work force was only 9% as compared to 
an 18% Black population in Forest City; prior to the time plaintiff 
filed her complaint there were only 3 Black women in defendant's 
work force; There were only 9 Black men; all of the Black workers, 
both male and female, were in jobs paying the lowest hourly wages 
prior to the time this action was commenced and the Black super­
visors the defendant now has were promoted to such positions only 
after suit was filed.

Moreover, in examining the claim for relief under Title VII a 
court must focus upon the practices which give rise to the particularI
complaint. The critical issue in a lawsuit of this kind is whether 
the plaintiff establishes hiring and promotion bias at the time of 
his rejection and subsequent complaint to EEOC, not the employment 
practices utilized, some years later. Parham v. Southwestern Bell 
Telephone Co., supra.

-27-



Ill
In Granting the Motion for 
Summary Judgment the Court 
Below Failed to Consider 
Plaintiff's Claim Based on 
42 U.S.C. Section 1981

42 U.S.C. Section 1981 provides that:
"All persons within the jurisdiction 

of the United States shall have the same 
right in every state and territory to make 
and enforce contracts, to sue, he parties, 
give evidence, and to have full and equal 
benefit of all laws and proceedings for the 
securities of persons and property as is 
enjoyed by white citizens . . . ."

In light of the decision of the Supreme Court in Jones v. Mayer,
392 U.S. 409 (1968) it is now clear that Black citizens aggrieved
by discriminatory employment practices based on race may seek
redress from these practices under 42 U.S.C. Section 1981.
Sanders v. Dobbs Houses, Inc.,431 F. 2d 1094 (5th Cir. 1970),
rehearing denied, 431 F. 2d 1101 (1970); Waters v. Wisconsin
Steel Works, __F. 2d__, 62 CCH Lab. Cas. 5(9735 (7th Cir. 1970),
cert, denied sub noiti, International Harvester Co. v. Waters
__U.S.__, 3 EPD 5[8032 (1970); United States v. Medical Society
of South Carolina, 398 F. Supp. 145, 152 (D.S.C. 1969); Pol:bins 
v. Local 212, IBEW, 292 F. Supp. 413, 442 (S.D. Ohio 1968).
While it appears that this court has not passed directly on the 
question of whether an individual may seek redress for employment 
discrimination based on race under'42 U.S.C. Section 1981 we 
submit that this Court has,sub silentio, given approval to such 

a claim in the case of Scott v. Young, 421 F. 2d 143, 145 (4th Cir

-28-



I!j
i

1970). Scott v. Young was a case involving discrimination in 
a place of public accommodations. This Court in the Scott case 
dealt with the applicability of 42 U.S.C. Section 1981 to a 
situation involving the right of a black citizen to contract 
for the use of a private swimming pool. The court in upholding 
this right cited with approval the cases of Medical Society, 
supra, and Dobbins v. Local 212, supra. Medical Society and 
Dobbins were cases involving claims of employment discrimination 
based on race.

The court below in granting the defendant's motion for 
summary judgment dealt only with her claim based on Title VII 
of the Civil Rights Act of 1964 and in no manner dealt with 
plaintiff's claim under 1981. While it may be true that the 
same fact? in the instant case may be dispositive of plaintiff's 
claim bo^h under Title VII and 1981, the claims under these two 
statutes are by no means identical. First, in the claim under 
Title VII, the court must be aware of the fact that the critical 
date is July 2, 1965. Completed acts of discrimination _e.g., 
discharge, refusal to hire, claims of back wages are not redress- 
able under Title VII if they occurred prior to July 2, 1965. A 
party seeking to redress employment discrimination based on 1981 
is not necessarily limited by the July 2, 1965 date. Although 
claims under 1981 may be subject to a state statute limitation 
involving contractual situations they need not necessarily be

-29-



limited by the July 2, 1965 date applicable to Title VII claims.
The facts in this case indicate that plaintiff applied for 

employment with the defendant in March, 1966 and in her affidavit 
in opposition to the motion for summary judgment, the plaintiff 
stated that she had given her attorney the name of other Black 
persons she believed to have been denied employment by the 
defendant because of their race. Further discovery might have 
disclosed that these persons did in fact apply for employment 
and were denied. If they had applied prior to July 2, 1965, 
their testimony may have been relevant to plaintiff's Title VII 
claim but they would not have been entitled to relief under Title 
VII because of the July 2, 1965 date. On the other hand, under 
1981 it could be that they may have been entitled to relief under 
the 1981 claim notwithstanding the application of the North 
Carolina three year statute limitation.

While the questions concerning plaintiff's claim, under 1981 
may be referred to as mixed questions of law and fact, we submit 
that it was reversible error for the court to grant defendant's 
motion for summary judgment without passing on her claim under 
1981.

CONCLUSION
WHEREFORE, for the reasons stated above plaintiff respectfully 

prays the court to reverse the decision of the court below and

-30-



and to remand the case to the District Court for further

proceedings.
Respe'ctfully Submitted,

E
M k u ,
ROBERT BELTON 
J. LeVONNE CHAMBERS 
 DAM STEIN

216 West Tenth Street 
Charlotte, North Carolina

CONRAD 0. PEARSON
203 1/2 E. Chapel Hill Street 
Durham, North Carolina

JACK GREENBERG 
WILLIAM L. ROBINSON 
SYLVIA DREW

10 Columbus Circle 
New York, New York

Attorneys for Appellant



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