Pullman-Standard, Inc. v. Swint Petition for a Writ of Certiorari

    In the

(tart nf tire United States
October Term , 1988

Pullman-Standard , Inc ., A Subsidiary of The Pullman Company,
Petitioner,

—v.—

Louis Swint, and Willie James Johnson, on behalf of 
themselves and others similarly situated,

Respondents.

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

FOR THE ELEVENTH CIRCUIT

O f Counsel:
C.V. Stelzenmuller 
Burr & Forman 
3000 SouthTrust Tower 
Birmingham, Alabama 35203 
(205) 251-3000

* Floyd Abrams 
Thomas J. Kavaler 
Samuel Estreicher 
Taryn V. Shelton 
Peter Phillips
Cahill Gordon & Reindel 
(a partnership including 
professional corporations)
80 Pine Street
New York, New York 10005 
(212) 701-3000

* Counsel o f Record fo r
Petitioner



QUESTIONS PRESENTED

1. In light of Watson v. Fort Worth Bank & Trust, 108 S. Ct. 
2777 (1988), did the Court of Appeals err in (a) allowing plain­
tiffs to establish a disparate impact challenge to a subjective, 
multicriteria selection system for supervisor promotions 
through a gross, “ bottom line” comparison between the per­
centage of black supervisors and the percentage of blacks in the 
workforce, rather than a comparison to the subgroup of 
promotion-eligible black workers; (b) shifting to the employer 
the burden of persuasion to prove the necessity of its require­
ments for such promotions; and (c) improperly commingling 
disparate treatment and disparate impact theories?

2. Did the Court of Appeals violate the strictures of General 
Telephone Co. v. Falcon, 457 U.S. 147 (1982), as well as the 
requirements of Article III of the Constitution, in allowing 
employees who were hired before the effective date of Title VII 
of the Civil Rights Act of 1964, and who never asserted individ­
ual claims of discriminatory denial of a supervisor promotion, 
to serve as representatives of a class challenging allegedly dis­
criminatory post-Title VII initial assignments and promotion 
practices?

3. Did the Court of Appeals ignore this Court’s ruling in 
Pulhnan-Standarcl v. Swint, 456 U.S. 273 (1982), by reaffirm­
ing its 1980 decision (a) overturning the District Court’s find­
ings on the absence of discriminatory intent in the Company’s 
initial departmental assignments and on the business necessity 
of the.Company’s requirements for supervisor promotions, and 
(b) substituting its own independent determination on these 
issues rather than remanding to the District Court for appropri­
ate findings?

4. In light of Owens v. Okure, 109 S. Ct. 573 (1989), did the 
Court of Appeals err in measuring the liability period for the 42 
U.S.C. § 1981 claim by reference to Alabama’s six-year “ non­
residual” statute for personal injury actions?



LIST OF PARTIES

Petitioner Pullman-Standard, Inc. (“ Pullman” or “ the 
Company” ) is a subsidiary of The Pullman Company. Respon- 
dentsar/Louis Swim and Willie James Johnson as rep-e ema- 
lives of a certified class of “ all black persons who at any time 
subsequent to one year prior to the filing of any charges with 
the [Equal Employment Opportunity Commission] ha een 
employed by Pullman (at its Bessemer[, Alabama] plant) 
production and maintenance workers in positions represente
by the United Steelworkers.” *

Pursuant to Rule 28.1, petitioner informs the C°urt that 
Pullman Company is wholly owned by Pu11̂ ^  
poration, which is in turn wholly owned by Affiliates of Fors 
mann Little & Company, a limited partnership.

ii

W jTv Pullman-Standard (Swint 0, H FEP Cas. (BNA) 943 948 
n 20 (N D Ala 1974) (App. 94a). The decision sought to be reviewed co 
^ «  ^ a l S (N0SP87.™57. ^ 8 8 6  »  pe„„on seeks

S H S S S H S S
or court papers since that date, Ampri..a AFL-CIO, and
n o  I ncil 1466 of the United Steelworkers of America, At l c ' u  CIO, Local it o  oi me were defendants-
lnternational Association of Machinists, AFL-CIO Larkin,

appeal No. 84-7319.

Ill

t a b l e  of  c o n t e n t s

PAGE

vi
Table of Authorities..........................................................

.......................  1
Opinions B elow ..................................................

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

Applicable Constitutional Provisions and Statutes........

.................  2
Statement of the Case..........................................

. . 3A. Class Certification..........................................

B. 1974 Trial and Appeal........................................
C. Post-Teamsters Proceedings and 1980 Appeal..

D. This Court’s Ruling............................................
E. Proceedings on Remand from the Supreme

Court.........................................................................

REASONS FOR g r a n t in g  THE W R IT ...................
I This Case Raises Significant Questions as to the 
' Appropriate Framework, after Watson v. For, 

Worth Bank & Trust, for Disparate Impact 
Challenges to Subjective, Multicritena Selection 
Systems for Supervisory Personnel...................

A. The Eleventh Circuit’s Refusal to Require 
Plaintiffs to Demonstrate Disparate Impact 
with Respect to the Group of Promotion- 
Eligible Blacks Conflicts with Several Deci­
sions of this Court and Presents a Division 
Among the Circuits......................................

14

\i



IV

PAGE

B. The Court of Appeals’’ Allocation of the
Burden of Persuasion to the Employer to 
Prove the Necessity of its Business Require­
ments for Supervisor Promotions was 
Improper Under Watson..............................

C. The Court of Appeals Improperly Commin­
gled Disparate Treatment and Disparate 
Impact Theories............................................

II The Eleventh Circuit’s Holding that Individuals
' Hired Outside the Liability Period and Who 

Never Asserted Individual Claims of Discrimi­
natory Denial of a Supervisor Promotion Are 
Proper Class Representatives to Assert Initial 
Assignment and Promotion Claims Conflicts 
with Decisions of this Court and Other Courts ^
of Appeals...........................................................
A This Court Should Grant Review to Clarify 

the Proper Reach of General Telephone Co. 
v. Falcon, an Issue of Recurring Importance 
in the Administration of Title VII, and to 
Resolve the Division Among the Circuits ..

B. The Eleventh Circuit’s Holding that the 
Named Plaintiffs are Adequate Class Repre­
sentatives Violates Article 111 Limitations on 
Class Action Standing..................................

HI. The Eleventh Circuit’s Refusal to Reconsider its 
1980 De Novo Factfinding in Light of this 
Court’s Swint Opinion Warrants Review as an 
Exercise of Supervisory Authority.....................

IV The Holding below that Alabama’s Six-Year 
“ Non-Residual” Statute Applies to & 19»i 
Claims Warrants Review in Light of Owens v.

v

CONCLUSION
30

PAGE

a p p e n d ix
Separately Provided



VI

TABLE OF AUTHORITIES

PAGE
Cases
Atonio v. Wards Cove Packing Co 827 ^ 2d 439 (9th , 4 

Cir. 1987), cert, granted, 108 S. Ct. 2896 (1988)........

Berger v. Iron Workers Reinforced Rodmen Local 201,
843 F.2d 1395 (D.C. Cir. 1988), pet. for cert, filed, 57 
U S.L.W. 3334 (U.S. Nov. 8, 1988) (No. 88-699)----

Blum v. Yaretsky, 457 U.S. 991 (1982)...........................

City o f Richmond v. V.A. Croson Co., 109 S. Ct. 706 ^
(1989) ..............................................................................

Connecticut v. Teal, 457 U.S. 440 (1982).......................  16

Cox v. City o f Chicago, Nos. 88-2598, 88-2599 (7th ■ C,rj ^
Jari. 27, 1989) .................................. .............’ ’

East Texas Motor Freight System, Inc. v. Rodriguez, 431
U.S. 395 (197.7).......................................................U ”  ’

General Telephone Co. v. EEOC, 446 U.S. 318 (1980) . 22

General Telephone Co. v. Falcon,
457 U.S. 147 (1982)................................ . 13n, 21-25, 26n

Goodman v. Lukens Steel Co., 777 F.2d 113 (3d> C,r- ^  
1985), a ff’d on other grounds, 482 U.S. 656 (

Griffin v. Carlin, 755 F.2d 1516 (11th Cir. 1985) 15n-16n, 17n

Griffin v. Dugger, 823 F.2d 1476 (11th Cir. 1987), cert.
denied, 108 S. Ct. 1729 (1988)......................................

Griggs v. Duke Power Co., 401 U.S. 424 (1971)..........M, 16n

Hazelwood School District v. United States, 433 U.S. 299 ^  ^  
(1977)....................................................................................

vn

x rn  743 F 2d 199 (4th Cir. 1984), Holseyy. Armour & Co.,743 t . n  ...................  24n
cert, denied, 470 U.S. 1028 (19 )

International Brotherhood o f  v. ^
States, 431 U.S. 324 (1977)..........................................  ’

International Woodworkers v. Chesapeake Bay Ply wo ^
Corp., 659 F.2d 1259 (4th Cu. 1981).........................

Johnson v. Transportation Agency, 480 U.S. 616 (1987) 16

Larkinv. Pullman-Standard ISw XI). 854 F .M H 49 ^  
(11th Cir. 1988)............................................

Lilly v. H a r r i s - T e e , ter ^ 24n
Cir. 1983), cert, denied, 466 U.S. 951 U* >

Linda R S.v. RichardD.. 410 U.S. 614 (1973)............. 25

Moore v. Hughes Helicopters. Inc.. 70S F.2d 475 (9th

PAGE

17
Cir. 1983).............................................................

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).... 26

New York City Transit Authority v. Beazer, 440 U.S. 568 ^
(1979) ..............................................................................

O ’Shea v. Littleton, 414 U.S. 488 (1974).....................

Owens v. Okure, 109 S. Ct. 573 (1989)........................... 28' 29

Parson v. Kaiser Aluminum &Che™c°l 19n
1374 (5th Cir. 1978), cert, denied, 441 U.S. 9b» O*

Patterson v. McLean <«* 29n
Cir. 1986), cert, granted, 108 S. Ct. to t

Payne v. Travenol Laboratories. 565 F.2d 895 (5th Cir.),
cert, denied. 439 U.S. 835 (1978).................................

Powersv. Alabama Department 854 F ^d  ^
1285 (11 th Cir. 1988)..................................



-

>;•-,±.. i  i#-*s .H'/J'—

viii

PAGE

Pullman-Standard v. M M  (M M  WO. « | ^  2?
(1982)..........................................A ’ ’

Robv v. St. Louis Southwestern Ry., 775 F.2d 959 (8th ^  ^
Cir. 1985)........................................................................

tfoss/m v. Ogihy & Mather, Inc., 798 F.2d 590 (2d Cir. ^
1986)................................................................................

Schlesinger v. Keserviste Committee to Stop the War, 418 ^
U.S. 208 .........................................................................

Segar v. Sm/rt, 738 F.2d 1249 (D.C. Cir. 1984). cert, 
denied, 471 U.S. 1115 ...................................................

Shldaker ». W ,  83! F.2d 627 (7.h Cir. 1986), ^
denied, 108 S. Ct. 2900 (1988)......................................

Sosna v. Iowa, 419 U.S. 393 (1975).............................
Swint v. Pullman-Standard (Swint I), 11 FEP Cas^

(BNA) 943 (N.D. Ala. 1974).......................2-6. 7n, 8n.

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

Swint v. Pullman-Standard (Swint 19 28
(BNA) 144 (N.D. Ala. 1977)............... 8-10, 15, 17n, 19,

Swint v. Pullman-Standard (Swint IV), 15 FEP Cas^ ^  
(BNA) 1638 (N.D. Ala. 1977)..................................

Swint v. Pullman-Standard (Swint V), 15 FEP Cas. ^  
(BNA) 730 (N.D. Ala. 1978)........................................

Swint v. Pullman-Standard (Swint VI), 624 F.2d 525 (5th
Cir. ,980, ,re v U  456 U.S.273 (,982,3..2n, .Oon .7n n ; a

Swint v. Pullman-Standard (Swint VIII), 692 F.2d 1031^ ^
■ 1 0 9 - »  .................................................................................  ’

IX

Swint v. Pullman-Standard (Swint IX), No. CV 71-P- ^  ^
0955-5 (N.D. Ala. Sept. 8, 1986)...................

Swint v. Pullman-Standard (Swint X), No. CV 71-P-^ ^
0955-5 (N.D. Ala. Nov. 26, ....................................

Vuyanich v. Republic National Bank 723 F.2d 1195 (5th 
Cir ), cert, denied. 469 U.S. 1073 (1984).............

Wagner v. Taylor, 836 F.2d 578 (D.C. Cir.

Watsonv. For, Worth Bank <6 , 108 S. C1.OT7 ^
(1988).....................................................

Constitutional Provision ^  ^  ^

U.S. Const. Art. Ill ................................................

Rules
Federal Rules of Civil Procedure

. .2, 22-25, 26n
Rule 23................................................

2, 1 In, 12, 27-28
Rule 52(a)..........................................

........ 4n
Rule 60(b)(6).....................................................

Statutes 29n
Ala. Code § 6-2-34(1)......................................  ^

Ala. Code § 6-2-38..........................................
...........  28n

Ala. Code § ..................................................

PAGE



X

Civil Rights Act of 1964 PAGE

Title VII, 42 U.S.C. §§ 2000e e, * * ........................passim

§ 703(h), 42 U.S.C. § 2000e-2(h)..............................  4 8

§ 7030), 42 U.S.C. § 2000e-2(j)............................... I4

Civil Rights Law

42 U'S'C  5 1981........................................2. 3, 28-29, 29„
42 U.S.C. § 1983 ..........................................

Judicial Code

28 U.S.C. § 1254(1)....................................

In the

Supreme (£autt nf tlje United States
October Term, 1988 

No. 88-____

Pullman-Standard, Inc., a  Subsidiary of 
The Pullman Company,

Petitioner,
—v.—

Louis Swint, and Willie James Johnson, on behalf of 
themselves and others similarly situated,

Respondents.

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

FOR THE ELEVENTH CIRCUIT

Petitioner respectfully prays that a writ of certiorari issue to 
review the opinion and judgment of the United States Court of 
Appeals for the Eleventh Circuit entered in this action in appeal 
Nos. 87-7057 and 86-7886.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 854 F.2d 
1549, and is reprinted in the Appendix (“ App.” ) hereto at p. 
la. The unreported memorandum opinions of the District 
Court (N.D. Ala.) dated September 8, 1986 and November 26, 
1986 are reprinted at App. 262a-285a. Prior rulings in this liti­
gation relevant to this petition are described below and 
reprinted in the Appendix.



2

JURISDICTION

The decision of the Court of Appeals (App. la-6 la) was 
entered on September 21, 1988 and a timely petition for rehear­
ing was denied on January 3, 1989 (App. 289a-291a). The juris­
diction of this Court is invoked under 28 U.S.C. § 1254(1).

APPLICABLE CONSTITUTIONAL PROVISIONS 
AND STATUTES

The pertinent text of Article III of the United States Consti­
tution, Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§ 1981, and Rules 23(a) and 52(a) of the Federal Rules of Civil 
Procedure is set out at App. 292a-298a.

STATEMENT OF THE CASE

This litigation was previously before this Court in Pullman- 
Standard v. Swint, 456 U.S. 273 (1982) (App. 231a-258a), 
which held that a 1980 ruling of the then Fifth Circuit,3 revers­
ing a determination of the trial court, had transgressed the lim­
its ot proper appellate review by substituting its own findings 
on the question of the legality of the seniority system main­
tained at Pullman’s Bessemer, Alabama plant.4 The instant 
petition seeks review of the now Eleventh Circuit’s decision 
reversing, once again, the trial court by ruling that Pullman’s 
supervisor promotions from 1966 to 1974 worked an unjustified 
disparate impact under Title VII of the Civil Rights Act of 1964 
( Title VII” ), 42 U.S.C. §§ 2000e et seq., and that its depart­
mental assignments of new hires from 1965 to 1969 were 

infected by intentional racial discrimination in violation of 
Title VII and 42 U.S.C. § 1981 (“ § 1981” ). That decision 
imposes liability on Pullman on the basis of the very de novo 
appellate factfinding this Court rejected in Swint by means of

3 Swint v. Pullman-Standard (Swint VI), 624 F.2d 525 (5th Cir 1980) 
rev’d’ 456 U.S. 273 (1982) (App. 207a-230a).

4 Until it closed in 1980-81, Pullman’s plant in Bessemer, Alabama 
manufactured special order railway freight cars and parts.

3

an analysis that fails even to take account of, let alone apply, 
this Court’s intervening decision in Watson v. Fort Worth Bank 
& Trust, 108 S. Ct. 2777 (1988).

A. Class Certification

In December 1971, Louis Swint and Willie James Johnson 
filed a class action alleging that Pullman and the United Steel­
workers of America, AFL-CIO and its Local 1466 (collectively 
“ USW”) had engaged in racially discriminatory employment 

. practices in violation of Title VII and § 1981. Plaintiffs focused 
their challenge on the departmental seniority system maintained 
under Pullman’s collective bargaining agreements with the 
USW (covering 26 departments) and with the International 
Association of Machinists, AFL-CIO (“ IAM” ) (covering 2 
departments), claiming it unlawfully perpetuated the effects of 
pre-Title VII discrimination.

Under the Fifth Circuit’s then prevailing “ across-the-board” 
approach to Title VII class actions, the District Court certified, 
without a hearing, Swint and Johnson as representatives of a 
class5 with respect to four “ class issues” : (1) whether the 
departmental seniority system perpetuated the effects of past 
discrimination in the assignment of black employees among the 
various departments; (2) whether there had been discrimination 
in the assignment of work to persons within the same depart­
ment; (3) whether there had been discrimination in promotions 
to supervisory positions; and (4) whether there had been dis- . 
crimination in the failure to post changes in assignments.6 The 
District Court’s determination that there was no discrimination

5 The class was defined as “ all black persons who at any time subse­
quent to one year prior to the filing of any charges with the EEOC had been 
employed by Pullman (at its Bessemer plant) as production and maintenance 
workers in positions represented by the United Steelworkers.” Swint v. 
Pullman-Standard (Swint /), 11 FEP Cas. (BNA) 943, 948 n.20 (N.D. Ala. 
1974) (App. 94a).

6 In the same action, Swint and Clyde Humphrey as intervenor- 
plaintiff asserted individual claims challenging their discharges. The District 
Court found that there was no racial discrimination or unlawful retaliation in 
connection with their discharges, and this determination was affirmed on 
appeal. Swint v. Pullman-Standard (Swint //), 539 F.2d 77, 105 (5th Cir. 
1976) (App. 139a).



4

on issues (2) and (4) was sustained on appeal. With respect to 
issue (1), following this Court’s Swint decision, the District 
Court upheld the seniority system under Section 703(h) of Title 
VII, 42 U.S.C. § 2000e-2(h), and was affirmed by the Eleventh 
Circuit.

As the litigation evolved, however, an independent issue 
emerged concerning whether Pullman had engaged in inten­
tional post-Act discrimination in its departmental assignments 
of new hires (“ initial assignments’’), which, along with the 
supervisor promotions issue, are the subject of this petition. 
However, since both of the named plaintiffs were hired before 
the effective date of Title VII,7 neither had a personal stake, at 
the time of certification, in the challenge to post-Act initial 
assignments. Moreover, neither of the named plaintiffs had 
ever alleged an individual claim of discriminatory denial of a 
supervisory position8 and hence lacked a personal stake in the 
promotions challenge as well.9 *

7 Title VII became effective on July 2, 1965. Swint was hired on 
November 24, 1964; Johnson was hired on January 12, 1956 (1974 Tr. 884, 
1054; App. 298a-299a, 300a).

8 Indeed, while an employee, Swint actively encouraged other black 
employees to reject offers of promotion to supervisor (1974 Tr. 1775-76, 
2505-07, 2550-53; App. 300a-305a), was known to regard those blacks who 
were supervisors as “ Uncle Toms” (id. 2505-07, 2550-53; App. 302a-305a), 
pressured black supervisors to resign their positions (id. 3206-8; App. 305a- 
306a), and, as the trial court found, was discharged because of “ insubordi­
nation . . . directed toward a black foreman,” Swint v. Pullman-Standard 
(Swim l ), 11 FEP Cas. (BNA) 943, 960 (N.D. Ala. 1974) (App. 88a); John­
son was made a temporary foreman at one point and was oflered a foreman 
position in 1974 which he declined because of poor health (1974 Tr. 899, 938; 
App. 299a-300a).

9 In 1975, four other black employees (William Larkin, Spurgeon 
Seals, Edward Lofton and Jesse Terry) filed a race discrimination suit 
against Pullman. Their appeal (No. 84-7319) from the District Court’s denial 
of their motion under Fed. R. Civ. P. 60(b)(6) to translorm a 1976 dismissal 
with prejudice into a dismissal without prejudice was affirmed by the Elev­
enth Circuit below. The Court of Appeals reasoned that there was no justili- 
cation for reopening their case, that the interests ol the “ Larkin plaintiffs”
were amply represented in the Swint class, and that any additional evidence

5

B. 1974 Trial and Appeal
After sixteen days of testimony and submission of numerous 

exhibits, the District Court in 1974 concluded, inter alia, that 
plaintiffs had not proven that the seniority system was unlawful 
or that the selection of supervisors was discriminatory. Swint v. 
Pullman-Standard (Swint I), 11 FEP Cas. (BNA) 943, 961 
(N.D. Ala. 1974) (App. 90a). Concerning departmental assign­
ments, the District Court found that because of a 1965 arbitra­
tion award opening up previously all-white jobs to blacks, the 
company began implementing a program to eliminate barriers 
to advancement by blacks. . . .” Id. at 947 (App. 65a). This 
"effort included an agreement with the Department of Labor, 
establishing procedures for integrating previously segregated 
departments, and providing seniority carryover rights for black 
employees hired prior to 1965 who transferred to formerly all- 
white departments as well as preferential promotion rights in 
certain departments. The court further determined that the 
company’s assignments from 1965 to 1974 discloses an obvious 
effort . . .  to ‘correct’ the racial imbalances in the depart­
ments. Those departments which in 1965 had been predomi­
nantly of one race are, without exception, closer in 1973 to the 
racial ratio for the plant as a whole; and those departments 
which had been exclusively of one race are, with one exception, 
no longer ‘segregated.’” Id. at 951 (App. 71a). The court 
found, however, that Pullman had violated Title VII insofar as

■of discrimination could have been readily presented through the Swint litiga­
tion. Larkin v. Pullman-Standard (Swint XI), 854 F.2d 1549, 1583-84 (11th 
Cir. 1988) (App. 59a-60a). The same counsel represented both the Larkin 
plaintiffs and the Swim class. See Swint v. Pullman-Standard (Swim IX), 
No. CV 71-P-0955-S, slip op. at 3 n.6 (N.D. Ala. Sept. 8, 1986) (App. 264a- 
265a).

10 The court here referred to the Janitors department where two whites 
had been assigned during the 1965-73 period but subsequently quit. Swint I, 
11 FEP Cas. at 951 (App. 71a).



6

six departments remained of single-race composition up until 
June 1971. Id. at 953-54 (App. 77a).11

With respect to supervisor promotions, the District Court 
found that salaried foremen—positions outside of the bargain­
ing unit—were chosen from the ranks of successful hourly (or 
temporary) foremen, and that “ approximately 20% of [salaried 
foremen] promotions since mid-1965 have been of blacks, a 
percentage that is not really disproportionate to the composi­
tion of the source group when one takes into account the pre- 
1965 hourly foremen (all-white) and the necessity of some lag 
time for demonstration of satisfactory performance as an 
hourly foreman.” Id. at 958 (App. 84a).'2 Reviewing individual 
instances of failure to promote blacks, the court found that 
“ [t]he evidence has not shown a single example of a black indi­
cating an interest in a foreman’s job being passed over in favor 
of a white with less qualifications.” Id. at 958 n.50 (App. 102a). 
The court concluded that Pullman’s use of subjective judgment 
in selecting supervisors was not discriminatory.

On appeal, the Fifth Circuit reversed many of the District 
Court’s findings. Swint v. Pullman-Standard (Swint II), 539
F.2d 77 (5th Cir. 1976) (App. 104a). Without deciding whether 
plaintiffs had established a prima facie case on departmental 
assignments, the panel held that the trial court had unduly nar­
rowed its inquiry, and directed it to consider on remand evi­
dence of discrimination in mixed-race departments, the racial 
composition of the two IAM departments, whether past dis­

11 The District Court’s determination here was derived entirely from 
the absence of employees of the opposite race in those departments. In its 
1977 ruling on remand, the court concluded that as to these departments, its 
previous determination had been incorrect. See note 15, infra.

12 The district judge found that any difference between the selection 
rate for black hourly foremen and the percentage of blacks in the work force 
was fully explained by the fact that a greater proportion of black employees 
were functionally illiterate or minimally literate, had declined opportunities 
to become hourly foremen, and, due to pre-Act segregation, needed some
time to learn the range of skills necessary to perform supervisory duties. 
Swint /, 11 FEP Cas. at 957-58 (App. 83a-84a).

7

crimination in the departments covered by the Labor Depart­
ment agreement was probative of a plant-wide discriminatory 
policy, and whether the special skills that the District Court 
found were required for assignment to two departments (Weld­
ing and Maintenance) were justified by “ business necessity. 
Id. at 94-98 (App. 123a-128a).13

On the promotions issue, the Fifth Circuit apparently agreed 
with the trial court’s general approach of determining whether 
the black selection rate for salaried foremen could be explained 
by reference to the racial composition of the source group— 
i.e., hourly foremen. The court held, however, that two of the 
factors cited by the trial judge in explaining the relative short­
fall in black hourly foremen—functional illiteracy and the time 
lag (due to pre-Act discrimination) in acquiring supervisory 
skills—could not be considered in the absence of a showing of 
business necessity. The Fifth Circuit did agree, however, that 
evidence of a disproportionate number of refusals of offers of 
promotion by black employees and “ the recent dramatic 
improvement in black promotions to salaried supervisor . . . 
clearly indicative of the lack of discrimination in promotion” 
could be treated as “ counterbalancing evidence” in rebuttal of 
the plaintiffs’ statistical showing. Id. at 104 (App. 138a). Here, 

‘too, the Court of Appeals expressly declined to decide whether 
plaintiffs had made out a prima facie showing of discrimina­
tion. Id. at 104-05 (App. 138a).

13 The District Court had found that because a high proportion of jobs 
in the Welding and Maintenance departments required special skills and 
“ typically have been filled by ‘off-the-street’ employment of persons already 
possessing requisite qualifications,” “ [bfare statistics showing only the racial 
composition of the employees in those departments do not—absent a study 
of the qualifications of the applicants or at least a showing of examples in 
which qualified blacks were not assigned to such departments—evidence dis­
criminatory assignments thereto.” Swim /, 11 FEP Cas. at 950 (App. 70a). 
The Court of Appeals, however, was of the view that “ (t]he question of 
absence of qualifications is relevant, but only after the determination that a 
pattern of discrimination has been shown; and then, the burden is on the 
defendant to show the absence of qualifications.” Swint II, 539 F.2d at 89 
(App. 113a) (emphasis in original).



8

C. Post-Teamsters Proceedings and 1980 Appeal

While the case was on remand in the trial court, this Court 
rendered its decision in International Brotherhood o f  Teamsters 
v. United States, 431 U.S. 324 (1977). Relying on Teamsters, 
the District Court upheld Pullman’s seniority system as bona 
fide within the meaning of § 703(h) of Title VII. Swint v. 
Pullman-Standard (Swint III), 15 FEP Cas. (BNA) 144 (N.D. 
Ala. 1977) (App. 156a). The trial court then turned to the ques­
tion of discrimination in initial assignments after December 27, 
1966.14 15 The trial judge concluded, in the most unequivocal 
terms, that the statistics on post-1966 assignments could

“ give rise to no inference that assignments were being 
made to further a policy of segregated or racially- 
imbalanced departments. Indeed, if anything the reverse is 
true: the post-1966 assignments indicate that the company 
was engaged in efforts to move whites into formerly all­
black or predominantly-black departments and blacks into 
formerly all-white and predominantly-white ones.” Swint 
III, 15 FEP Cas. at 148 (App. 160a).

The court also addressed the pointed inquiries of the Swint II 
panel, and found that segregation had been totally abandoned 
after 1965 and “ with the demise of the segregated job practice, 
so also went the ancillary practice of making departmental 
assignments based on race.” Id. at 149 (App. 162a). The court 
concluded that the plaintiffs “ have therefore failed to establish 
an essential element of their claim.” Id.'s

14 This date was considered the “ earliest possible” anterior date on the 
basis of a March 27, 1967 EEOC Commissioner’s charge, even though the 
court had substantial reservations about using a Commissioner’s charge to 
date liability when the instant private lawsuit grew out of later filed individ­
ual charges. Swint III, 15 FEP Cas. at 146 n.5 (App. 173a-174a). The date 
was later changed to September 28, 1966 in Larkin v. Pullman-Standard 
(Swim XI), 854 F.2d 1549, 1567 ( 11th Cir. 1988) (App. 28a).

15 Acknowledging that this finding was inconsistent with its determina­
tion in Swint /  concerning the six single-race departments, the District Court

Turning to the supervisor promotions question, the District 
Court held that whatever prima facie showing plaintiffs had 
made “ has been rebutted and that Pullman did not discriminate 
against blacks in such promotions in the time frame covered 
by the EEOC charges.” Id. at 151 (App. 166a). The court 
explained that gross comparisons of the percentage of black 
supervisors with the percentage of blacks in the labor market or 
with the percentage of blacks in the work force were inappro­
priate. Rather, “ [i]t is clear from the evidence, if not from com­
mon sense, that special skills are needed by supervisors and that 

.all workers are not ‘fungible’ when it comes to selection of 
supervisors.” Id. at 150 (App. 165a). Relying on Hazelwood 
School District v. United States, 433 U.S. 299 (1977), the Dis­
trict Court determined that the appropriate source group for 
salaried foremen was the ranks of hourly foremen, and when a 
comparison is made between these two groups, “ it is found that 
the number of blacks appointed to salaried supervisory posi­
tions is less than two standard deviations from the number 
expected from the composition of temporary foremen for the 
period.” Swint III, 15 FEP Cas. at 151 (App. 166a).

The District Court proceeded to examine whether there had 
been post-1966 discrimination in the selection of hourly fore­
men. The trial judge found that “ [pjromotions of temporary 
foremen are departmental in all aspects,” and that [t]he

determined that “ its original decision, based largely upon a mechanical 
application of statistical data respecting a few departments, was incorrect,” 
since “ there was not a policy of discriminatory assignments respecting these 
six departments after 1966 anymore than there was respecting the other 
departments.” Swint III, 15 FEP Cas. at 149 (App. 162a). As for the two 
1AM departments, the trial court concluded that “ with respect to these 
departments, as with the other twenty-six departments, there was no policy 
or practice of discriminatory assignments after December 1966.” Id. at 150 
(App. 163a).

16 The trial judge explicitly found that “ [o]f the 415 monthly promo­
tions reported from January 1969 through May 1974, 403 or 97% were



10

restriction of such temporary promotions to persons working in 
the department is a bona fide occupational qualification, justi­
fied by business necessity, under the evidence in this case.” Id. 
at 151 (App. 167a). Here, any short-fall in the number of black 
hourly foremen* 17 was due to the disproportionately higher rate 
of black refusals of hourly foreman promotions. Id. at 152 
(App. 170a).

On appeal,18 the Court of Appeals once again reversed. Swint 
v. Pullman-Standard (Swint VI), 624 F.2d 525 (5th Cir. 1980), 
rev’d, 456 U.S. 273 (1982) (App. 207a). While this Court subse­
quently overturned the Fifth Circuit’s reliance on its “ ultimate 
fact” doctrine with respect to the seniority system issue, de 
novo appellate factfinding pervades all of Swint VI. Thus, with 
respect to initial assignments, the Court of Appeals was of the 
view that the trial judge had made some erroneous calculations 
with respect to the two 1AM departments. It then summarily 
concluded that all of the District Court’s findings were “ factu­
ally unsubstantiated” and that although “ the company made 
significant advancements in the elimination of previous all­
black and all-white departments subsequent to 1966, the total 
employment picture indicates that departmental assignments

appointments of a person then in the department. Of the 13 ‘inter­
departmental’ temporary promotions, virtually all involved an assignment to 
closely related work, e.g., an Inspector to the department in which he per­
formed his duties or an Assembler from one department being assigned as 
foreman for assembly work in another department.” Swint III, 15 FEP Cas. 
at 151 n.18 (App. 176a). For promotions in two departments, however, the 
court found “ that only Welders would be qualified to act as temporary fore­
men in the Welding Department and only persons with experience as a Riv­
eter, Assembler or Heater would be qualified to act as temporary foremen in 
the Steel Erection Department.” Id. at 152 (App. 169a).

17 The court found that 149 black hourly foremen were appointed from 
1967 through May 1974, as contrasted with an expected figure of 175. Swint 
111, 15 FEP Cas. at 151 (App. 168a).

18 After Swint 111 issued, the District Court granted plaintiffs’ motion
for a third trial to put in evidence on the seniority system in light of Team­
sters. Swint v. Pullman-Standard (Swint IV), 15 FEP Cas. (BNA) 1638 (N.D.
Ala. 1977) (App. 178a). The court thereafter issued an opinion reaffirming 
its Swint III ruling. Swint v. Pullman-Standard (Swint V), 15 FEP Cas.
(BNA) 730 (N.D. Ala. 1978) (App. 182a).

11

continued to be infected with racial considerations, albeit to a 
lesser degree than during the pre-Act period.” Id. at 529 (App. 
214a).

On the promotions issue, the Court of Appeals characterized 
the District'Court’s discussion of the importance of departmen­
tal experience to the selection of hourly supervisors19 as a “ limi­
tation” on black promotional opportunities that had to be 
justified by business necessity. The Court of Appeals then dis­
agreed with the District Court that Pullman’s business needs 
were “ sufficiently compelling,” and further dismissed the evi­
dence of a disproportionate rate of black refusal of promotions 
as “ undeniably emanat[ing] from the very discrimination which 
the class members seek to eliminate.” Id. at 536 (App. 226a- 
227a).20 *

D. This Court’s Ruling
In Pullman-Standard v. Swint (Swint VII), 456 U:S. 273 

(1982) (App. 231a), this Court held that the Court of Appeals in

19 Without squarely rejecting the District Court’s precise findmgs on 
this point as “ clearly erroneous,” the Court of Appeals obliquely observed 
that “ a substantial number of salaried and temporary foremen supervise 
departments in which they have never worked.” Swint VI, 624 F.2d at 535 
(App 226a). This observation, unaccompanied by record citation, reveals the 
pitfalls inherent in Swint VTs de novo reappraisal of the evidence. For exam­
ple the Court of Appeals did not explain whether the foremen in question 
had acquired relevant experience from work in related departments a ladtor 
the District Court rightly considered highly material (see note 16, supra). 
Moreover, the Fifth Circuit’s observation did not join issue with the District 
Court’s opinion: the trial court’s findings were that departmental experience 
was required for promotion to hourly foremari positions and that success!u 
performance as an hourly foreman made one eligible for a salaried position, 
typically (but not necessarily) in the same department. As we develop in our 
third point, the then Fifth Circuit’s proper course under Fed. R. Civ. P. Rule 
52(a) if it suspected some factual error-and  surely the Eleventh Circuit s 
unmistakable obligation after this Court’s Swint ruhng-was to remand to 
the District Court rather than to substitute its own lindings.

20 The Court of Appeals in Swint VI here flatly contradicted its earlier 
approval, in Swint II, 539 F.2d at 104 (App. 137a), of consideration of the 
higher rate of refusal among black employees of foreman promotions.



12

Swint VI had exceeded the proper scope of review in its treat­
ment of the trial court’s findings on the validity of the seniority 
system. The Fifth Circuit was held to have proceeded in an 
“ incredible” manner, explicable only in terms of that Circuit’s 
position that “ its own well-established Circuit rule with respect 
to its authority to arrive at independent findings on ultimate 
facts free of the strictures of Rule 52(a) also . . . permit[s] it to 
examine the record and make its own independent findings with 
respect to those issues on which the district court’s findings are 
set aside for an error of law.” Id. at 293 (App. 248a). Whether

ultimate facts or not, this Court insisted, all factual issues 
are subject to Rule 52(a)’s clearly erroneous standard; the 
Court of Appeals’ proper role is limited to identifying legal 
error and “ remanding for further proceedings to the tribunal 
charged with the task of factfinding in the first instance.” Id.

E. Proceedings on Remand from the Supreme Court
On remand, the Fifth Circuit returned the case to the trial 

court for further findings on the “ locking-in” effect of the 
seniority system; it did not, however, reconsider its determina­
tion as to the initial assignments and promotions issues. Swint 
v. Pullman-Standard (Swint VIII), 692 F.2d 1031 (5th Cir. 
1982) (App. 259a). Confined by this “ limited remand,” 21 the 
District Court held that Swint VI was “ law of the case” and 
that it was bound to find Pullman liable on those issues.

On cross-appeals, the Eleventh Circuit (which inherited this 
litigation) reached several conclusions warranting this Court’s 
review. Larkin v. Pullman-Standard (Swint XI), 854 F.2d 1549 
(11th Cir. 1988) (App. la). First, in complete disregard of this 
Court’s intervening decision in Watson v. Fort Worth Bank & 
Trust, 108 S.Ct. 2777 (1988), the Court of Appeals reaffirmed 
Swint VTs finding of liability on the promotions issue. Plain- 
tilts were held to have made out a prima facie case under the

21 Although Swim Vlll contains language suggesting a broader 
remand, the ruling ol the Eleventh Circuit below makes clear that “ the case 
was returned to the district court under a limited remand,” 854 F.2d at 1578 
(App. 50a), and that this Court’s Swim ruling “ did not change the law”- and 
was limited to the seniority system issue, id. at 1582 (App. 57a) (emphasis in 
original).

13

disparate impact theory despite the absence of any showing of 
disparity with respect to the promotion-eligible group, on the 
premise that all of Pullman’s black employees were “ theoreti­
cally eligible for positions at least as temporary 
supervisors. . . Swint XI, 854 F.2d at 1581 (App. 55a). The 
burden of persuasion was therefore placed on Pullman to dem­
onstrate the business necessity of its supervisory requirements. 
In the Eleventh Circuit’s view, this Court’s Swint ruling con­
tained “ no suggestion” that Swint VTs liability finding on pro­
motions was infirm, and hence required no reconsideration of 
that determination. Rather, Swint VI was viewed as holding 
that neither prior experience in the particular or related depart­
ment nor the greater incidence of refusals by black employees to 
become hourly foremen could be relied upon because of Pull­
man’s.past initial assignment discrimination. Id. at 1582 (App 
57a).

Second, the court ruled that Swint and Johnson were appro­
priate class representatives even though they were both hired 
before the effective date of Title VII and hence had no personal 
stake with respect to the post-Act initial assignments claim. The 
court reasoned that since plaintiffs were challenging a “general 
policy of discrimination,” they were adequate representatives 
within an exception to this Court’s holding in General Tele­
phone Co. v. Falcon, 457 U.S. 147, 159 n. 15 (1982). Swint XI, 
854 F.2d at 1564, 1572-73 (App. 24a, 38a-40a).22 Third, the 
court held that the initial assignments issue was properly treated 
as an independent claim, id. at 1571 (App. 36a-37a), without 
explaining why this Court’s Swint opinion did not require 
reconsideration of that question as well.

22 The court acknowledged that “ Pullman’s argument that it had no 
basis on which to raise a standing claim earlier in the proceeding is persua­
sive. Falcon was new law; in fact, the decision reversed a ruling from this cir­
cuit.” Swim XI, 854 F.2d at 1572 (App. 38a).



14

REASONS FOR GRANTING THE WRIT

I. This Case Raises Significant Questions as to the Appropriate 
Framework, after Watson v. Fort Worth Bank & Trust, for 
Disparate Impact Challenges to Subjective, Multicriteria 
Selection Systems for Supervisory Personnel.
Responding to the need to provide some method of challeng­

ing subjective selection systems which may be used as a covert 
means for accomplishing intentional discrimination, this Court 
in Watson v. Fort Worth Bank & Trust, 108 S.Ct. 2777 (1988), 
upheld the use of the disparate impact theory to challenge such 
systems. Justice O’Connor’s plurality opinion recognizes, how­
ever, the peculiar dangers of this theory when it is applied not to 
scored tests and other proxies for individualized consideration 
initially envisioned in Griggs v. Duke Power Co., 401 U.S. 424 
(1971), but to subjective, multicriteria selection systems. So 
applied, it has the potential to subject every facet of an employ­
er’s decision-making process to burdensome, difficult-to- 
achieve validation requirements, thus creating virtually 
irresistible pressure to engage in quota practices in order to 
avoid those requirements. Such a result, the Watson plurality 
cautioned, would be contrary to at least the spirit, if not the let­
ter, of Congress’ judgment in Section 703(j) of Title VII, 42 
U.S.C § 2000e-2(j), that this statute does not compel racially- 
balanced hiring and promotions.

As the Court of Appeals applied the Griggs approach to Pull­
man’s promotion practices—and as it rejected out-of-hand the 
District Court’s careful attempt to identify the appropriate 
group of promotion-eligible black workers and to take into con­
sideration Pullman’s aggressive post-Act measures to place its 
black workers on an equal footing—the message to employers 
to hire and promote on a quota basis is unmistakably clear. The 
Court has heard argument this Term in Atonio v. Wards Cove 
Packing Co., 827 F.2d 439 (9th Cir. 1987), cert, granted, 108 S. 
Ct. 2896 (1988) (No. 87-1387), to consider post -Watson issues 
with respect to the hiring of entry-level workers. This case 
presents an opportunity for establishing the appropriate 
ground-rules for the very different context of promotion of 
supervisory personnel.

15

A. The Eleventh Circuit’s Refusal to Require Plaintiffs to 
Demonstrate Disparate Impact with Respect to the Group 
of Promotion-Eligible Blacks Conflicts with Several Deci­
sions of this Court and Presents a Division Among the 
Circuits.

The Eleventh Circuit held that plaintiffs were not required to 
demonstrate disparate impact with respect to the promotion- 
eligible group. Although acknowledging the need in theory to 
establish some level of a “ relevance threshold” concerning eli­
gibility, the Court of Appeals deemed that threshold met here 
simply by comparing “ the percentage of blacks in the Pullman 
workforce, all of whom were theoretically eligible for positions 
at least as temporary supervisors, with the percentage of blacks 
who were actually selected.” Swint XI, 854 F.2d at 1581 (App. 
55). The court thus swept aside the District Court s contrary 
factual finding that all Pullman workers, black or white, were 
not “ theoretically eligible” for all temporary foreman posi­
tions, but rather that experience in the particular or related 
department was normally required. See Swint III, 15 FEP Cas. 
at 151 & n.18 (App. 167a, 176a). Moreover, the Eleventh Cir­
cuit blanketly rejected Pullman’s stated promotional criteria 
for salaried foreman positions, which included knowledge ot 
particular departments and successful experience as a tempo­
rary foreman, as either “ impossible to incorporate into statisti­
cal proof or . . . themselves the result of discrimination.”
Swint XI, 854 F.2d at 1581 (App. 56a).

In effect, then, the Eleventh Circuit permitted plaintiffs to 
put Pullman to the burden of proving business necessity 
through a gross, “ bottom line” comparison of the percentage 
of black workers to the percentage of black supervisors—a 
comparison which wholly fails to take into account minimal 
threshold qualifications. This approach, longstanding with the 
Eleventh Circuit,23 reflects a form of “ bottom line” reasoning

23 In Powers v. Alabama Department o f Education, 854 F.2d 1285 
(11th Cir. 1988), the Eleventh Circuit insisted that Watson required no 
change in its well-established position, reflected in Swint XI as well.as Griffin



16

repudiated in Connecticut v. Teal, 457 U.S. 440 (1982). More­
over, it contradicts the Watson plurality’s insistence that plain­
tiffs are “ responsible for isolating and identifying the specific 
employment practices” causing the alleged adverse impact, and 
for demonstrating that those practices in fact caused the 
minority group exclusion. See Watson, 108 S.Ct. 2788-89.

This Court has made clear that statistical analysis of discrimi­
nation must reflect an assessment of the eligible applicant or 
employee pool. Thus, in Hazelwood School District v. United 
States, 433 U.S. 299, 308 n.13 (1977), a disparate treatment 
case, this Court cautioned that “ [w]hen special qualifications 
are required to fill particular jobs, comparisons to the general 
population (rather than to the smaller group of individuals who 
possess the necessary qualifications) may have little probative 
value.” Even in the context of voluntary affirmative action pro­
grams, the type of “ imbalance” that may legitimately provide a 
basis for such preferences requires a comparison of those actu­
ally hired or promoted with “ those in the labor force who pos­
sess the relevant qualifications.” Johnson v. Transportation 
Agency, 480 U.S. 616, 632 & 633 n.10 (1987) (defining the Title 
VII prima facie case). This principle was most recently reaf­
firmed in City o f Richmond v. V.A. Croson Co., 109 S. Ct. 
706, 725 (1989): “ where special qualifications are necessary, the 
relevant statistical pool for purposes of demonstrating discrimi­
natory exclusion must be the number of minorities qualified to 
undertake the particular task.” '4

v. Carlin, 755 F.2d 1516 (11th Cir. 1985). In the Court of Appeals’ view, 
“ plaintiffs alleging class-wide discrimination In promotions are not required 
to isolate the particular aspect of the promotional process that is responsible 
for the discriminatory impact,” and a prima facie case may be established 
without accounting for the absence of relevant experience in a supervisory 
line of progression. See Powers, 854 F.2d at 1293-94. 24 *

24 It offers little comfort to suggest, as the Court of Appeals did, that 
plaintiffs should be free to mount Griggs suits without regard to “ employer- 
specific qualifications” because such qualifications “ should be subjected to
the light of day and evaluated to see if they are truly necessary to the employ-

17

The holding of the Elevenlh Circuit below squarely conflicts 
with the position of the Ninth Circuit and, in all Probability, the 
Seventh Circuit as well. Applying Hazelwood, the Ninth Circuit 
would insist on a qualified labor pool comparison in the case of 
a disparate impact challenge to the promotion policies of an 
omnlnver like Pullman, who promotes from within. Thus, in

1983) the court held that in “ promotion cases, it will be neces 
sary for the plaintiff to show that the pool of eligible employees 
is qualified for promotion to a position for which it is mam e 
that special skills are required.” Moore specifically applied this 
principle to first-line supervisory positions: As the ‘dentifica- 
don of a job position as ‘supervisor’ implies at least a modicum 
o f  job-re ated experience,” it was plaintiff’s responsibility to 
identify a pool of employees eligible for supervisory positions 
who possessed the requisite experience. Id. at 485.

More recently, the Seventh Circuit has recognized, m Cox v. 
City o f Chicago, Nos. 88-2598, 88-2599 (7th Cir. Jan. 27, 
1989) that Watson’s identification and causation requirements 
preclude plaintiffs from establishing a prima facie impact case 
through “ underrepresentation statistics,” even when challeng

. . .  n o  v i  8S4 F 2d at 1582 n.50 (App. 56a). Statistics based 
on ^ “employee population “ containing individuals lackinf , " ^  ^ ‘‘ 5

m s s w s : r ; Pow r .
d n i l ™  lidaTon lenviremenis on ample,ers. In an, even,, the DisI.k 
Com, expressly toond ih .i the dep.r,mental experience reqmrement 
hourly foremen was “ justified by business necessity. Swim III.
Cas. at 151 (App. 167a).

25 Several pre- Watson rulings are consistent with the Eleventh Circuit. 
See, , g „  Shidaker v. Tisch, 833 F.2d.627 (7th

T  T a t ' l 'u  s' i m ^ r K o w e ”  . u» ike ,he Com, of Appeals below, 
" h e  i e n *  Cileuh in S t i L e r  and the D C . Circni, in Seguewould a, 
Lrsi permit a defendam to defeat a prima facie case b , showing that pla,

on an “ underrepresentation statistics" approach that may no ^

s,-. t j % . -  < **-
V. Carlin, supra).



18

ing subjective promotion systems. As the Seventh Circuit now 
acknowledges, plaintiffs must prove adverse impact through 
“ eligibility rate statistics” that focus on the pool of blacks qual­
ified for the higher-level position: “ Eligibility rate statistics, not 
underrepresentation statistics, encompass this causation re­
quirement.” Cox, slip op. at 11. By contrast, the Eleventh Cir­
cuit’s view is that Watson requires no change at all in what is in 
essence its longstanding underrepresentation-statistics 
approach. See Powers v. Alabama Department o f  Education, 
854 F.2d 1285, 1293-94 (11th Cir. 1988); note 23, supra.

This Court should grant certiorari both to resolve this con­
flict and to clarify the plaintiff’s burdens in a disparate impact 
challenge to subjective multicriteria selection systems for super­
visory personnel.

B. The Court of Appeals’ Allocation of the Burden of Persua­
sion to the Employer to Prove the Necessity of its Business 
Requirements for Supervisor Promotions was Improper 
Under Watson.

The rationale for allowing a disparate impact challenge to 
subjective systems is that it serves as a useful adjunct to an 
intentional discrimination case—to capture situations where 
“ the problem of subconscious stereotypes and prejudices would 
remain.” Watson, 108 S. Ct. at 2786. The Watson plurality 
urged, however, that the “ business necessity” or “ job­
relatedness” doctrine, as applied to subjective systems, should 
not be interpreted as shifting the ultimate burden of proof to 
the defendant:

“ On the contrary, the ultimate burden of proving that 
discrimination against a protected group has been caused 
by a specific employment practice remains with the plain­
tiff at all times. Thus, when a plaintiff has made out a 
prima facie case of disparate impact, and when the defen­
dant has met its burden of producing evidence that its 
employment practices are based on legitimate reasons, the 
plaintiff must ‘show that other tests or selection devices, 
without a similar undesirable racial effect, would also 
serve the employer’s legitimate interest in efficient and 
trustworthy workmanship.’ Factors such as the cost or

19

other burdens of proposed alternative selection devices are 
relevant in determining whether they would be equally as 
effective as the challenged practice in serving the employ­
er’s legitimate business goals.” Watson, 108 S, Ct. at 279 
(citation omitted).

In this case, the Court of Appeals misconceived the proper 
allocation of burdens in a Watson-type challenge. The court 
held that “ ftlhe burden—not just of production but ot 
persuasion-was then on Pullman to show that the practice 
challenged arose from a non-discriminatory business neces­
sity ” and that “ Pullman had offered no legally acceptable evi­
dence that its subjective selection procedure was a business 
necessity.” Swint XI, 854 F.2d at 1580 (App. 53a) Even on the 
assumption arguendo that a prima facie case had been estab 
lished, the burden-allocation below was improper on two 
counts. First, Pullman’s burden should have been one of pro­
duction only, of producing evidence of legitimate business rea­
sons bearing “ ‘a manifest relationship to the employment in 
question’ ’’—similar to that which sufficed in New York City 
Transit Authority v. Beazer, 440 U.S. 568, 587 n.31_(
Watson 108 S. Ct. at 2790-91 (plurality opinion). The District 
Court’s'findings in Swint III make clear that Pullman success­
fully carried such a burden, thus removing any basis for a rea­
sonable inference that its departmental experience requirement 
for hourly foremen or its use of subjective criteria was a pretext 
for intentional discrimination. Second, the appeals court erred 
in relieving plaintiffs of their ultimate burden to. show reason­
able alternative selection criteria,26 27 for in the absence of such 
proof the inference of pretextual discrimination-which is the

26 hTtowers, supra, the Eleventh Circuit held despite Watson that the 
burden of persuasion remains with the defendant. See 854 at

27 The Court of Appeals clearly placed this burden on Pullman, requir­
ing that its supervisory requirements “ must ‘not only loster sal^  a|ld el”n 
ciency but must be essential to that goal . . .  and there must not be an 
acceptable alternative that will accomplish that goal equally well with a les c 
differential racial impact.’ ” Swint VI, 624 F.2d at 536 (App, 26a,
Parson v. Kaiser Aluminum & Chemical Carp., 575 F.2d 1374 (5th Ur. 
1978), cert, denied, 441 U.S. 968 (1979).



20

principal focus of a Watson-lypc challenge—cannot be sus­
tained.28 *

C. The Court of Appeals Improperly Commingled Disparate 
Treatment and Disparate Impact Theories.

Since Title VII plaintiffs may be expected, after Watson, to 
utilize both disparate treatment and disparate impact theories in 
the same challenge to a subjective system, this Court should 
grant review to clarify the extent to which findings in the treat­
ment phase of a case can be used to impeach or undermine the 
employer’s rebuttal case in the impact phase. A recurring theme 
of both the Eleventh Circuit opinion, and the Swint VI ruling it 
reaffirms, is that Pullman could not properly rely on a depart­
mental experience requirement or evidence of a disproportion­
ate refusal of black workers to accept hourly foreman positions 
because it had been found to have engaged in discriminatory 
initial assignments. See Swint XI, 854 F.2d at 1582-83 (App. 
57a-58a); Swint VI, 624 F.2d at 536 (App. 227a).

In so ruling, the Court of Appeals impermissibly blurred the 
critical distinction between treatment and impact theories, dis­
regarding the central limitations of each theory. Liability for 
disparate treatment requires a finding of discriminatory moti­
vation. This was found (by the Court of Appeals) to exist for a 
particular period (October 1965-January 1969) and only with 
respect to one aspect of the employer’s operations (departmen­
tal assignment of new hires). That finding was then used by the 
court to nullify, as a practical matter, the employer’s ability to 
maintain an otherwise legitimate supervisor selection system, 
but without any proof of intentional discrimination affecting 
such selections. In the absence of a finding of plant-wide inten­
tional discrimination infecting all of Pullman’s selection 
processes—a finding never made in this case and one which 
could not be made on this record—the Eleventh Circuit effected 
the functional equivalent of such a finding by disallowing Pull-

28 Indeed, the District Court found that “ (t]he only suggested alterna­
tive in the evidence, that by one of plaintiffs’ witnesses, was that [plant-w ide) 
seniority should be followed in making appointments of foremen. An objec­
tive standard to be sure, but hardly an apt one.” Swint I, 11 FEP Cas. at 958
n.54 (App. 102a).

21

man’s business-necessity rebuttal case. As this part of the case 
was predicated on an impact rather than intentional bias 
theory, Pullman was entitled to a fair hearing on the business 
justification for its supervisory requirements.

II The Eleventh Circuit’s Holding that Individuals Hired Out­
side the Liability Period and Who Never Asserted Individ­
ual Claims of Discriminatory Denial of a Supervisor 
Promotion Are Proper Class Representatives to Assert Ini­
tial Assignment and Promotions Claims Conflicts with the 
Decisions of This Court and Other Courts of Appeals.

The Eleventh Circuit held that respondents Swint and John­
son were proper representatives to assert class claims regarding 
initial assignments and supervisor promotions even though, at 
the outset of the suit as well as at the time of certification, they 
had not the slightest personal stake in either claim.' Acknowl­
edging that General Telephone Co. v. Falcon, 457 U.S. 147 
(1982), had rejected the Fifth Circuit’s previous “ across-the- 
board’’ approach to Title VII class actions, the Court of 
Appeals reasoned that this case came within the “ general policy 
of discrimination” exception identified in footnote 15 of Fal­
con. See Swint XI, 854 F.2d at 1573 (App. 40a). The Court of 
Appeals’ sweepingly broad interpretation of Falcon effectively 
permits the exception to swallow the rule, placing in the hands 
of any artful pleader the means to accomplish “ across-the- 
board” certification in virtually every Title VII case. Moreover, 
the ruling below directly conflicts with decisions of other cir­
cuits and disregards Article III limitations on class representa­
tive standing. This case thus'presents a well-defined conflict 
requiring this Court’s resolution, as well as the opportunity to 
clarify the reach of Falcon and to reaffirm the standing require­
ments imposed by Article 111.

29 Both named plaintiffs were hired and initially assigned well before 
ihe effective date of Title VII and commencement of the liability period. 
Moreover, neither could have been injured by Pullman’s promotion prac­
tices- indeed, Swint was a vocal, militant opponent of black employees who 
agreed to serve as supervisors, and Johnson had himself rejected an offer ol 
promotion. (See notes 7 & 8, supra).



22

A. This Court Should Grant Review to Clarify the Proper 
Reach of Falcon, an Issue of Recurring Importance in the 
Administration of Title VII, and to Resolve the Division 
Among the Circuits.

The central teaching of both Falcon, and its predecessor East 
Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395 
(1977), is clear: careful attention to the typicality and common­
ality requirements of Rule 23 “ remains indispensable” even in 
Title VII suits. Falcon, 457 U.S. at 157; Rodriguez, 431 U.S. at 
405. Falcon expressly rejected the “ across-the-board” doctrine 
as undermining Rule 23’s insistence on an essential identity of 
interest between the class and its representatives. Falcon, 457 
U.S. at 157-59. Thus, this Court demands that a class represent­
ative “ be part of the class and ‘possess the same interest and 
suffer the same injury’ as the class members,” Rodriguez, 431 
U.S. at 403, quoting Schlesinger v. Reservists Committee to 
Stop the War, 418 U.S. 208, 216 (1974); and that the class 
claims be limited “ to those fairly encompassed by the named 
plaintiff’s claims,” Falcon, 457 U.S. at 156, citing General Tel­
ephone Co. v. EEOC, 446 U.S. 318 (1980).

Here, the Eleventh Circuit has resurrected precisely what 
Rodriguez and Falcon sought to put to rest. The named plain­
tiffs were held to be proper Rule 23 representatives because 
“ [fjrom the start, the plaintiffs’ basic complaint has been that 
Pullman prevented black employees from moving into its 
higher-level positions.” Swint XI, 854 F.2d at 1573 (App. 39a). 
Characterizing the injuries suffered by the named plaintiffs and 
the class as “ [t]he same injury” —that is, “ being locked into 
. . . lower-paying jobs” —the Eleventh Circuit determined that 
the only real question was through which employment practice 
this result ultimately came about—“ whether it was the discrimi­
nation in assignments or the nature of the seniority system, or 
both, that prevented blacks from moving up the job ladder.” 
Id. (App. 40a) Yet, the Court of Appeals failed to require, as 
mandated by Rodriguez and Falcon, that at least one of the two 
named plaintiffs be injured by each—not to say any—of these 
practices.

The Eleventh Circuit attempted to fit the facts of this case 
into one of two exceptional situations recognized in footnote 15

2?

of Falcon. Specifically, the court invoked the so-called second 
exception as authority for its conclusion that Pullman “ oper­
ated under a general policy of discrimination” that manifested 
itself in the challenged practices “ in the same general fashion.” 
See Falcon, 457 U.S. at 159 n.15. In this case, however, there 
was neither a single employment practice nor a subjective 
decision-making process identified as common to both assign­
ments and supervisor promotions. Although the named plain­
tiffs may have been able to claim injury from the seniority 
system insofar as it allegedly perpetuated pre-Act discrimina­
tion, they “ could have suffered no injury as a result o f” post- 
Act discrimination in departmental assignments of new hires, 
“ and they [are] therefore, simply not eligible to represent a 
class of persons who did allegedly suffer [such] injury. Rodri­
guez, 431 U.S. at 403-404. The same applies to their claimed 
status as class representatives on the supervisor promotions 
issue. To hold, as the Court of Appeals did, that a policy of 
such amorphous scope as keeping blacks “ locked into . . . 
lower-paying jobs” or preventing them “ from moving up the 
job ladder” satisfies the “ general policy” exception is to accord 
footnote 15 an unwarranted breadth that threatens to swallow 
the very rule announced in the body of the Falcon opinion.

The reservation in footnote 15 has generated inconsistent 
applications of Falcon in the various circuits, leading some 
courts to believe that the Falcon holding, as qualified by foot­
note 15, does not completely foreclose across-the-board 
actions.30 31 Other courts have construed Falcon more strictly, 
undertaking exacting reviews of class certification and rejecting 
expansive applications of footnote^ 15 that would essentially 
revive “ across-the-board” attacks.

30 See, e.g., Rossini v. Oglivy & Mather, Inc., 798 F.2d 590, 598 (2d 
Cir. 1986) (standing affirmed where named plaintiff “ attempted to prove 
that [the employer] had denied women opportunities to advance themselves, 
either as she sought to do, by transfer, or as other class members sought, by 
training or promotion,” through various employment practices including the 
use of a subjective evaluation system).

31 See eg  Wagner v. Taylor, 836 F.2d 578, 593 (D.C. Cir. 1987) 
(employee denied promotion could not represent a class consisting of disap-



24

Moreover, the ruling below directly conflicts with decisions 
of the Third and District of Columbia Circuits over whether 
employees, like named plaintiffs here, hired outside the liability 
period are proper class representatives to challenge discrimina­
tion in initial assignments occurring during the liability period. 
See Goodman v. Lukens Steel Co., I l l  F.2d 113, 124 (3d Cir. 
1985), a ff’d on other grounds, 482 U.S. 656 (1987) (“ All of the 
named plaintiffs, however, were originally hired outside the 
limitations period, and therefore, none have a viable complaint 
about discrimination in initial assignment. Thus, no representa­
tive adequately represents the class on this particular claim.” ); 
Berger v. Iron Workers Reinforced Rodmen Local 201, 843
F.2d 1395, 1409-10 (D.C. Cir. 1988), pet. fo r  cert, filed, 57 
U.S.L.W. 3334 (U.S. Nov. 8, 1988) (No. 88-699) (named plain­
tiffs could not represent class challenge to high school diploma 
requirement of apprenticeship program because they “ were too 
old to challenge the . . . requirement within the statutory limi­
tations periods, or were not injured by it because they had no 
interest in enrolling in the [program] during those periods” ).32

The class representative holding below also conflicts with the 
Eighth Circuit over whether employees, like named plaintiffs 
here, who never alleged individual claims of discriminatory 
denial of a supervisory position may represent a class challenge 
to allegedly discriminatory promotion practices. See Roby v. 
St. Louis Southwestern Ry., 775 F.2d 959, 962 (8th Cir. 1985) 
(“ [bjecause [named plaintiffs] were not affected by the Rail­

pointed applicants and of employees who were fired, denied promotions, or 
discriminated against in the terms and conditions of employment); Holsey v. 
Armour & Co., 743 F.2d 199, 216 (4th Cir. 1984), cert, denied, 470 U.S. 
1028 (1985) (same application procedure and entirely subjective criteria appli­
cable to both employees and outside applicants for same jobs does not con­
stitute significant proof warranting single class treatment within meaning of 
footnote 15); Lilly v. Harris-Teeter Supermarket, 720 F.2d 326, 333-34 (4th 
Cir. 1983), cert, denied, 466 U.S. 951 (1984) (named plaintiff’s claim, 
although overlapping on several important pieces of proof with class claims, 
nonetheless failed to justify single class treatment for more than one employ­
ment practice as provided in footnote 15).

32 See also International Woodworkers v. Chesapeake Bay Plywood 
Corp., 659 F.2d 1259, 1270 (4th Cir. 1981) (pre-Falcon decision consistent 
with Eleventh Circuit below).

25

road’s promotion policies, they were not proper class represent­
atives for those employees who are affected by these 
policies.” ).

This Court is thus presented with a conflict in the circuits 
over whether a named plaintiff may represent a class claim of 
discriminatory initial assignments when that plaintiff’s initial 
assignment occurred outside the liability period, or a class claim 
of discriminatory denials of promotion even though that plain­
tiff lacked an individual promotion claim. Inasmuch as these 
are issues that arise frequently in Title VII cases, this Court 
should grant certiorari in order to resolve the conflict and clar­
ify the scope of the purported “ general policy of discrimina­
tion” exception reserved in footnote 15 of Falcon.

B. The Eleventh Circuit’s Holding that the Named Plaintiffs 
are Adequate Class Representatives Violates Article III 
Limitations on Class Action Standing.

A private Title VII suit brought on behalf of a class depends 
not only on the satisfaction of Rule 23 but also upon a repre­
sentative plaintiff who has constitutional standing to raise the 
class claims. To meet the threshold requirement imposed by 
Article III, a named plaintiff must satisfy two prerequisites. 
First, he “ ‘must allege some threatened or actual injury result­
ing from the putatively illegal action before a federal court may 
assume jurisdiction.’ ” O ’Shea v. Littleton, 414 U.S. 488, 493 
(1974), quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 
(1973). Second, a named plaintiff must have suffered an injury 
in the same manner as have the members of the class he seeks to 
represent. See O’Shea, 414 U.S. at 495; Sosna v. Iowa, 419 U.S. 
393, 402-03 (1975). Indeed, this Court has repeatedly cau­
tioned:

“ It is not enough that the conduct of which the plaintiff 
complains will injure someone. The complaining party 
must also show that he is within the class of persons who 
will be concretely affected. Nor does a plaintiff who has 
been subject to injurious conduct o f one kind possess by 
virtue of that injury the necessary stake in litigating con­
duct o f another kind, although similar, to which he has 
not been subject.”



26

Blum v. Yaretsky, 457 U.S. 991, 999 (1982) (emphasis sup­
plied); see Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-167 
(1972).

The Court of Appeals below has departed inexplicably from 
the longstanding requirements of Article III and the decisions 
of this Court in neglecting to address whether the named plain­
tiffs had constitutional standing to adjudicate each of the 
claims they now seek to raise on behalf of the class.33 The 
named plaintiffs never had a constitutionally cognizable initial 
assignments claim. Furthermore, insofar as they were never 
injured individually by the denial of a promotion, they do not 
now and never did have constitutional standing to assert a chal­
lenge to Pullman’s promotion practices and hence lacked stand­
ing to litigate that claim on behalf of a class.

The Eleventh Circuit’s summary disregard of the Article III 
dimension of plaintiffs’ class representative status presents a 
conflict with rulings of this Court and the Fifth Circuit, see 
e.g., Payne v. Traveno! Laboratories, Inc., 565 F.2d 895, 898 
(5th Cir.), cert, denied, 439 U.S. 835 (1978); Vuyanich v. 
Republic National Bank, 723 F.2d 1195, 1200 (5th Cir.), cert, 
denied, 469 U.S. 1073 (1984),34 * warranting a grant of certiorari.

III. The Eleventh Circuit’s Refusal to Reconsider its 1980 De 
Novo Factfinding in Light of this Court’s Swint Opinion 
Warrants Review as an Exercise of Supervisory Authority.

The Eleventh Circuit took the view that this Court’s opinion 
in “ Swint VII did not change the law” —that it had not engaged 
in improper factfinding except as to the seniority system. Swint 
XI, 854 F.2d at 1582 (App. 57a) (emphasis in original). There 
is, however, no way to make sense of much of the Fifth Cir­
cuit’s 1980 ruling as to issues other than the seniority system as

33 Although a Rule 23 case, Falcon implicitly recognizes the mandate 
of Article 111 underlying the requirements of Rule 23. “The mere fact,” the 
Court stated, “ that an aggrieved private plaintiff is a member of an identifi­
able class of persons of the same race or national origin is insufficient to 
establish his standing to litigate on their behalf all possible claims of discrimi­
nation against a common employer.” Falcon, 457 U.S. at 159 n. 15.

34 Swint X I also conflicts in this regard with an earlier Eleventh Circuit
ruling in Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987), cert, 
denied, 108 S. Ct. 1729 (1988).

27

anything but de novo appellate factfinding. Although sanc­
tioned at the time under the Fifth Circuit’s “ ultimate fact doc­
trine, that judicial approach is squarely at odds with this 
Court’s Swint opinion.

Thus, for example, on the initial assignments issue, there had 
been no prior finding by either the District Court or the Court 
of Appeals that a prima facie “ pattern or practice” case of 
intentional discrimination had been made out. Yet, in Swint VI, 
after finding some errors in the trial judge’s calculations with 
respect to the two IAM departments, the Court of Appeals 
baldly announced that it had “ carefully reviewed the post-Act 
assignment statistics” and that “ they clearly” support the 
plaintiffs’ contention on the existence of a discriminatory post- 
Act initial assignments policy. Swint VI, 624 F.2d at 529-30 
(App. 214a). But here, as on the seniority issue, “ the District 
Court was not faulted for misunderstanding or applying an 
erroneous definition of intentional discrimination,” Swint VII, 
456 U.S. at 287 (App. 243a). Moreover, even if, for the sake of 
argument, the District Court had made an error of law or the 
appeals court had some doubts about the trial court s statistical 
analysis, this Court’s Swint ruling teaches that a remand for 
new factfinding was the only proper course consistent, with Rule 
52(a). The existence of discriminatory intent with respect to the 
post-Act initial assignments,

“whether an ultimate fact or not . . . is a factual matter 
subject to the clearly-erroneous standard of Rule 52(a). It' 
follows that when a district court’s finding on such an ulti­
mate fact is set aside for an error of law, the court of 
appeals is not relieved of the usual requirement of remand­
ing for further proceedings to the tribunal charged with 
the task of factfinding in the first instance.” Id. qt 293 
(App. 248a).

On the promotion issue, the Eleventh Circuit attempted to 
characterize its earlier ruling as based on the District Court s 
misapplication of the legal standard. Even if true, this called, at 
most, for a remand as opposed to appellate factfinding. But 
such a characterization of Swint VI does not, in any event, 
withstand analysis. The District Court found that Pullman’s



28

limitation of hourly foreman promotions to employees with 
experience in a particular or closely-related department was 
“ justified by business necessity under the evidence in this 
case.” Swint III, 15 FEPCas. at 151 (App. 167a). The Swint VI 
court simply disagreed “ that the business need advanced by the 
defendants for the limitation which restricts the promotion of 
blacks to supervisory positions is sufficiently compelling to 
override the significant racial impact.” Swint VI, 624 F.2d at 
535-36 (App. 226a).35 This was appellate factfinding, pure and 
simple, which the Eleventh Circuit has chosen to reaffirm in the 
face of this Court’s contrary instructions on the proper role of 
appellate review.

The Court is understandably reluctant to review opinions for 
compliance with Rule 52(a), but here the Eleventh Circuit’s fail­
ure to conform to its strictures in the very case in which this 
Court insisted on such compliance warrants a grant of certiorari 
in the exercise of the Court’s supervisory authority.

IV. The Holding Below that Alabama’s Six-Year “ Non- 
Residual” Statute Applies to § 1981 Claims Warrants 
Review in Light of Owens v. Okure.

The District Court held that Alabama’s residual statute of 
limitations for personal injury actions36 should apply to date

35 The appeals court may also have been unduly influenced by its now 
rejected perpetuation-of-pre-Act-discrimination ruling on the seniority sys­
tem issue, finding that “ these variables relied upon by the district court do 
not weigh heavily enough to lessen the appellants’ empirical conclusions that 
black employees were locked in the lower paying jobs and departments.” 
Swim VI, 624 F.2d at 536 (App. 227a). Despite the Eleventh Circuit's effort 
at minimizing this language, 854 F.2d at 1583 (App. 59a), the so-called 
“ locking-in effect” was clearly (and improperly) used to discredit Pullman’s 
business-necessity rebuttal case.

36 Swim v. Pullman-Standard (Swim X), No. CV71-P-0955-S (N.D.
Ala. Nov. 26, 1986) (App. 278a). That statute, currently codified at Section
6-2-38 of the Alabama Code, now provides for a two-year statute of limita­
tions. However, prior to 1985, the statute, then codified as Section 6-2- 
39(a)(5) of the state code, provided for a one-year period.

29

recovery for plaintiffs’ § 1981 claims.37 The Court of Appeals 
reversed, opting for the six-year Alabama statute for actions 
alleging “ trespass to person or liberty.” 38 Subsequent to the 
Eleventh Circuit’s pronouncement, however, this Court issued 
its decision in Owens v. Okure, 109 S. Ct. 573 (1989), holding 
that where state law provides more than one statute of limita­
tions for personal injury actions, courts considering § 1983 
claims should borrow the limitations period from that state’s 
general or residual statute. Moreover, this Court specifically 
referred to the statute selected by the District Court below as 
the one applicable to § 1983 claims in Alabama. Owens v. 
Okure, 109 S. Ct. at 580 n.9. Insofar as the statute of limita­
tions that applies to claims under § 1983 should apply equally 
to those brought under § 1981, see Goodman v. Lukens Steel 
Corp., supra, 111 F.2d at 120, it is clear that the limitations 
period applicable to the instant case is not the one imposed by 
the Court of Appeals but the one-year provision contained in 
Alabama’s residual statute.

37 i This point assumes, for the sake of discussion, that § 1981 reaches 
private discrimination—an issue currently under reconsideration in this 
Court in Patterson v. McLean Credit Union, 805 F.2d 1143 (4th Cir. 1986), 
cert, granted, 108 S. Ct. 65 (1987).

38 Swim XI, 854 F.2d at 1567-70 (App. 29a-35a). Ala. Code § 6-2- 
34(1) (1977).



>

CONCLUSION

For all these reasons, Petitioner requests that its Petition for 
a Writ of Certiorari be granted.

30

O f Counsel:
C.V. Stelzenmuller 
Burr & Forman 
3000 SouthTrust Tower 
Birmingham, Alabama 35203 
(205) 251-3000

Respectfully submitted,

*Floyd Abrams 
Thomas J. Kavaler 
Samuel Estreicher 
Taryn V. Shelton 
Peter Phillips
Cahill Gordon & Reindel 
(a partnership including 
professional corporations)
80 Pine Street
New York, New York 10005 
(212) 701-3000

* Counsel o f Record for  
Petitioner