Holsey v. Armour & Company Judgment

    V

No. 83-1428

Curtis Holsey, Jackie L. Drakeford,
Julius Frazier, Mynell Bennett,
Linwood Edwards, Laura Karvey,
Janie Hill, Appellees,

- v-
Armour & Company, Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. District Judge. (C/A C-C-77-0057-M) James B. McMillan,

Argued October 3, 1983 Decided August 20, 1984

Before ERVIN and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

W. R. Loftis, Jr. (W. F. Maready, Petree, Stockton, Robinson, 
Vaughn, Glaze & Maready on brief) for appellant; John T. 
Nockleby (J . LeVonne Chambers, Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, P.A., on brief) for appellees.



BUTZNER, Senior Circuit Judge:

Armour & Company appeals from a judgment of the district 
court entered upon findings that the company had discriminated 
against black persons in violation of 42 U.S.C. § 1981 and 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e 
et seq.

Armour's 20 assignments of error encompass virtually 
every provision of the court's judgment, which afforded both 
individual and class relief.

This case is before us for the second time, and we now 
decide:

1) The district court complied with our mandate on re­
mand.

2) The district court did not err in allowing certain 
class members to intervene and in adjudicating their 
claims in the first stage of the bifurcated trial.

3) The provisions of the judgment pertaining to dis­
crimination and retaliation in violation of 
§§ 703(a) and 704(a) of Title VII, 42 U.S.C. 
§ 2000e-2(a) and § 2000e-3(a) against the individ­
ual complainants are affirmed with the exception of 
those concerning Laura E. Harvey's claims about 
overtime work and switchboard training.

4) The class certification is vacated to the extent 
that it includes applicants affected by Armour's 
hiring practices and employees who sought promotion 
to office and management positions other than sales 
representatives and supervisors. In all other re­
spects, the class certification is affirmed.

5) The findings of a pattern and practice of discrimi­nation because of race with regard to promotions 
into sales and supervisory positions, and of retali­
ation in violation of § 704(a) are not clearly erro­
neous .

2



)

6) Relief granted Curtis Holsey and Julius Frazier must 
be modified to allow them retroactive departmental 
seniority based on their transfer date and not their 
date of hire. Injunctive relief granted incumbent 
employees who applied for positions other than sales 
or supervisory jobs is vacated. Relief granted job 
applicants is vacated. All other relief granted in­
dividual complainants and the class is affirmed.

7) The award of attorneys' fees is vacated and remanded 
to the district court for reconsideration.

I
Curtis Holsey, Jackie L. Drakeford, and Julius Frazier 

filed charges with the Equal Employment Opportunity Commis­
sion, received right-to-sue letters, and timely commenced this 
class action against Armour, the Meat Cutters Union, and its 
Local 525. They alleged that the defendants' policies and 
practices had discriminated against them and the class members 
in hiring, promotions, layoffs, recalls, and other terms of 
employment because of their race.

The district court allowed Mynell Bennett to intervene as 
a plaintiff before trial. Bennett had filed a charge with the 
commission alleging discriminatory discharge and maintenance 
of racially separate jobs. She received a right-to-sue letter 
and timely moved for leave to intervene.

The district court certified a class. It held that 
Armour had discriminated against the complainants and the 
class because of their race in violation of § 703(a) and that 
it had retaliated against them in violation of § 704(a). It 
granted individual and class relief and awarded counsel fees. 
The court dismissed the claims against the union. Before

3



entry of judgment, three class members who had presented 
claims at the trial moved to intervene as plaintiffs, and 
their motions were granted.

Armour appealed. We vacated the judgment with instruc­
tions to reconsider the findings of fact and conclusions of 
law and to clarify the allocation of evidentiary burdens in 
light of the Supreme Court's intervening decision in Texas De­
partment of Community Affairs v. Burdine, 450 U.S. 248 
(1981). Holsey v. Armour & Co., 683 F.2d 864 (4th Cir. 1982). 
After conducting proceedings on remand, the district court 
entered an amended judgment from which Armour now appeals.

II
Before turning to the merits of this appeal, we address 

Armour's contention that the district court did not follow our 
mandate.

On remand, the district court conducted a hearing at 
which the plaintiffs proposed changes and responded to factual 
contentions that Armour had made on appeal. Armour had no 
specific proposals at the time, except a request that all ad­
verse findings be reversed as error. The district court then 
directed both parties to file specific proposals for changes 
in the findings of fact, conclusions of law, and the judgment. 
The parties submitted lengthy responses which the court con­
sidered before it entered its amended judgment. After re-ex­
amining its findings of fact and conclusions of law, the court 
adopted suggestions from both parties where it found the

4



changes were consistent with its opinion and accurate with 
respect to the evidence.

We conclude that the district court has complied with our 
mandate and its findings are demonstratively the result of the 
court's independent judgment. Also, the record establishes 
that the district court placed the burden of proof on the com­
plainants in accordance with United States Postal Service v. 
Aikens, 103 S. Ct. 1478 (1983), and Texas Department of Commu­
nity Affairs v. Burdine, 450 U.S. 248 (1981).

H I

The district court found the following background facts 
about the company's business. Armour has operated a meat 
processing facility in Charlotte, North Carolina, since 1958. 
There are four production departments at the plant: a beef
department, responsible for fabrication of beef; a sausage de­
partment, responsible for production of processed meats; a 
maintenance department, responsible for vehicle repairs and 
maintenance of equipment; and, an operations department, 
responsible for the distribution of products. In addition, 
the facility has office employees, including sales representa­
tives.

Employees in the four production departments are repre­
sented by a union, which entered into collective bargaining 
agreements that establish seniority rights. Seniority governs

5



job progression, daily replacement work, temporary and perma­
nent layoff, and recall rights.1

Armour increased its production work force between 1969 
and 1973 from approximately 90 to over 200 employees. Since 
1974, however, sales have declined and the production work 
force has been cut back. In March 1980, when this case was 
tried, there were 133 production workers, of whom 50 worked 
regularly.

Armour filled sales and supervisory positions by trans­
ferring or promoting incumbent employees or by hiring new em­
ployees. Armour does not post vacancies or publish selection 
criteria for these jobs. The personnel are selected by a 
white managerial staff, applying subjective standards. Al­
though a number of experienced black employees sought sales or 
supervisory positions, Armour managers had never compared the 
qualifications of these black employees with the white employ­
ees who were hired.

No black employee worked as a supervisor before Holsey, 
Frazier, and Drakeford filed charges with the commission in 
1974. No black employee worked as a sales representative 
until August 1977, more than three years after plaintiffs 
filed charges with the commission. A company official ex­
plained to an employee that Armour did not hire black persons 
in the sales department because customers would not buy from 
them.

1. The agreements do not cover office employees (in­
cluding sales), supervisors, or probationary employees.

6



IV
Contrary to Armour's contention, we conclude that the 

district court did not abuse its discretion in allowing class 
members Janie Hill, Linwood L. Edwards, and Laura E. Harvey to 
intervene after trial and before the entry of judgment. 
Because Federal Rule of Civil Procedure 24 is silent as to 
what constitutes a timely application for intervention, the 
determination is left to the court's discretion. The court 
must consider all the circumstances in each case, not just to 
what point the suit has progressed. NAACP v. New York, 413 
U.S. 345, 364-69 (1973). The most important consideration in 
reviewing the decision is whether the delay prejudiced the 
parties. See Hill v. Western Electric Co., 672 F.2d 381, 385- 
87 (4th Cir. 1982).

Intervenors Hill, Edwards, and Harvey were witnesses at 
trial as well as class members. They suffered from the same 
practices challenged by the plaintiffs. Armour has not demon­
strated any prejudice resulting from the intervenors' metamor­
phosis from class member witnesses into plaintiffs. See Brown 
v. Eckerd Drugs, Inc., 663 F.2d 1268, 1278 (4th Cir. 1981), 
vacated on other grounds, 457 U.S. 1128 (1982). Whether they 
were allowed or denied intervention, their testimony was rele­
vant and the court would be justified in making factual find­
ings and stating conclusions pertaining to the discrimination 
they depicted.

Armour's second contention regarding the intervenors is
that the district court erred in ajudicating their individual
<

7



claims at the liability stage of the bifurcated trial. The 
company claims it should be allowed to rebut the individual 
claims at the second stage of the proceedings, relying on this 
court's decision in Sledge v. J.P. Stevens & Co., Inc., 585 
F.2d 625 (4th Cir. 1978) .

Armour had a full opportunity to defend against the in­
terveners' claims, and it introduced evidence in opposition to 
them. Moreover, at the first stage of the trial, the inter- 
venors met a more rigorous burden of proof than would have 
been required had they waited until the second stage when they 
would receive the benefit of a finding of class-wide discrimi­
nation. See Sledge, 585 F.2d at 637.

Adjudicating the intervenors' claims at the first stage 
of the proceedings is not forbidden by Sledge. On the 
contrary, that case deals with the consequences of class 
members who did not litigate their individual claims at the 
first stage. In Sledge, we held that class members cannot be 
dismissed for omitting to prove their individual claims at the 
first stage when they had been led to believe that this would 
be the subject of the second stage. 585 F.2d at 637-38 . 
Moreover, in Cooper v. Federal Reserve Bank, 52 U.S.L.W. 4853, 
4857 (U.S. June 25, 1984), the Supreme Court held that 
"[w]hether the issues framed by the named plaintiffs before 
the court should be expanded to encompass the individual 
claims of additional class members is a matter of judicial 
administration that should be decided in the first instance by 
the district court."

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V
Seven employees allege disparate treatment. Their claims 

are discussed separately.

Curtis Holsey
The district court found that because of Holsey's race 

and his efforts to challenge Armour's racial practices, Armour 
denied him the opportunity to exercise his bumping privileges 
in the sausage department to avoid lay-offs in the beef 
department.

The court found the following facts. Holsey was hired by 
Armour on December 1, 1969, and assigned to the operations de­
partment. At the time, black employees were concentrated in 
operations, and there were no black males in sausage and but 
one or two black employees in beef. After three weeks, Holsey 
was transferred to a clean-up job in beef, and subsequently he 
bid on better jobs in beef. His supervisor discouraged him 
from bidding on these promotions, but he was awarded the jobs 
because of his seniority. He was harassed in his new posi­
tions by being assigned duties that were not part of his job, 
was denied assistance in training and in the performance of 
his job, and was improperly disciplined. Holsey filed numer­
ous grievances about the harassment, some of which were ad­
justed by Armour. In 1974, after Armour refused to let him 
grieve discrimination because of his race, Holsey filed a 
charge with the commission.

Permanent layoffs occurred in the beef department on 
three occasions: September 2, 1974; February 26, 1975; and

9



February 24, 1976. The collective bargaining contract allowed 
employees who were permanently laid off and had five years' 
company seniority to bump junior employees permanently as­
signed to other departments, but they could not bump temporary 
employees. The bumping employee would then have recall rights 
established in the new department. Holsey had established 
five years' seniority on December 1, 1974, and he attempted to 
bump into the sausage department, establish recall rights 
there, and avoid further layoff. Armour officials told Holsey 
that no junior employees were working full time in sausage and 
that he could bump only junior employees in operations.

There was conflicting evidence as to whether three white 
and one black employee in sausage, all junior to Holsey, con­
tinued to work during the 219 days Holsey was on layoff. The 
court determined that Armour's explanation was unreliable and 
inconsistent with the documentary evidence. It found that the 
four junior employees were not working as "temporary replace­
ments" in sausage. They had, in fact, worked during much of 
their "layoff." Even if they had been working on a day-to-day 
basis, Appendix I of the collective bargaining agreement pro­
vides that they are to be "laid off in preference to employees 
who have bumped into this department when the need for tempo­
rary replacement no longer exists." The black employee in 
sausage who continued to work while Holsey was laid off was 
not active in challenging Armour's discriminatory practices. 
This is consistent with Armour's pattern of retaliation 
against Holsey for his efforts. The court found Armour's

10



explanation for denying Holsey's request to bump into sausage 
to be pretextual.

Armour contends that a comparison of Holsey's timecards 
and those of the junior sausage employees dispute Holsey's 
testimony that these employees worked while he was laid off. 
The company also offered evidence that he had refused work on 
occasions and was under medical disability during layoff peri­
ods .

The timecards introduced by Armour indicate some of the 
junior white employees were not working when Holsey was laid 
off, but these timecards did not cover the entire period 
Holsey was on layoff. The district court noted in its find­
ings that Holsey was out 219 days during layoffs in 1974, 
1975, and 1976, while the four junior employees were laid off 
from 82 to 132 days. The district court could infer that at 
least some junior employees were working part of the time 
Holsey was on layoff. Similarly, the 53 days Holsey was out 
on medical disability between July 1975 and January 1976 do 
not explain why he was disqualified from bumping into sausage 
when he was available for work. Armour's testimony that 
Holsey refused work during this period was in dispute. Holsey 
denied that he had refused. The court weighed the credibility 
of the witnesses and believed Holsey.

The district court properly considered evidence of 
Armour's harassment of Holsey before he filed his charge with 
the commission as probative of the company's racial attitudes. 
In United Airlines v. Evans, 431 U.S. 553 , 558 (1977), the

11



Supreme Court stated that such time-barred acts "may consti­
tute relevant background evidence in a proceeding in which the 
status of a current practice is at issue . . .

Also, the district court correctly treated Holsey's claim 
that he was denied the opportunity to bump junior employees in 
sausage as disparate treatment. The court's decision does not 
rest on disparagement of the seniority system. Holsey proved 
by a preponderance of the evidence that Armour manipulated 
bumping to deny him and other black employees the privileges 
accorded by the seniority system in retaliation for their com­
plaints about the company's discriminatory practices.

Julius Frazier
Frazier was hired by Armour on July 21, 1969, and as­

signed to the operations department. He soon signed a job 
posting and was transferred to the beef department, where he 
worked continuously until the 1973 and 1974 layoffs. In 
August 1973, he was denied the opportunity to avoid layoff by 
bumping into sausage. In March 1974, he filed a charge with 
the commission complaining that he was discriminatorily denied 
his bumping rights. Frazier was laid off again for two weeks 
in December 1974 because he was not allowed to bump into sau­
sage, although junior white employees in sausage continued to 
work. The district court found that Frazier was denied his 
contractual right to bump into sausage during the two-week

12



period in 1974 because of his race and his efforts to exercise
2rights under Title VII.

Frazier testified that two junior white employees, main­
tenance employee Kyle and sausage employee Newman, were 
allowed to work while he was on layoff. In rebuttal, an 
Armour official offered the same explanation that was given 
for denying Holsey an opportunity to bump into sausage— there 
were no vacancies.

The district court, noting numerous inconsistencies and 
conflicting documentary evidence, found Armour's explanations 
unreliable. Additionally, the district court properly con­
sidered evidence that Armour had historically limited opportu­
nities for black males to work in sausage and that it harassed 
black employees who challenged the company's racial practices. 
Evidence of a general atmosphere of discrimination may be con­
sidered with other evidence bearing on motive in deciding 
whether the plaintiff has met his burden of showing the de­
fendant's articulated reasons are pretexts. Sweeney v. Bd. 
of Trustees of Keene State College, 604 F.2d 106, 112-13 (1st 
Cir. 1979). See Furnco Construction Corp. v. Waters, 438 
U.S. 567, 580 (1978) .

2. The district court ruled that Frazier was not dis­
criminator ily denied bumping rights in 1973 because he 
had not yet established sufficient seniority. Frazier 
also failed to prove his claim that Armour discriminator- ily denied him a promotion into sales.

13



Jackie L. Drakeford
The district court found that Armour denied Drakeford 

supervisory and sales positions because of his race. The 
court also found that after Drakeford was promoted to super­
visor, the company denied him equal status with white super­
visors and harassed him in other ways, forcing him to termi­
nate his employment in violation of § 704(a) of Title VII.

The court found that Drakeford was hired by Armour on 
June 17, 1969. Although he told his supervisor and department 
manager that he was interested in a foreman position in 1973, 
he was passed over on more than eight occasions between July 
1973 and February 28, 1977, by junior white employees. The 
court noted that Armour had no black supervisor during this 
period. Indeed, no black had been made a supervisor until 
Drakeford's promotion in 1977. The court found that Drakeford 
was more qualified than the junior white employees because of
his seniority, past work performance, and overall experience 
with Armour.

Armour officials testified that no production employees, 
black or white, were considered for foreman positions after 
1971 when the company instituted a trainee program limited to 
college graduates. This program was instituted in order to 
bring in persons who would stay with the company. Of the 
eight trainees hired between 1971 and 1974, all but two left 
the company after a short time, including four who were

3. The parties and the court used the terms 
and supervisor" interchangeably. "foreman"

14



discharged. The remaining two transferred to other jobs at 
Armour. None of the trainees selected was black.

The court found that the company never validated the cri­
teria for selecting program candidates and terminated the pro­
gram in 1975 when it became clear that the criteria and pro­
gram didn't produce the desired results. Moreover, the record 
discloses that Armour in 1972 hired a white foreman who was 
not in the program. Between 1975, when the program was termi­
nated, and 1977, when Drakeford was appointed, there was a 
foreman vacancy which Armour filled with a white appointee.

The district court also found that Drakeford was denied a 
sales position in 1975 and thereafter because of his race. 
The court found that Drakeford had expressed his interest in a 
sales position to the sales manager in 1975 and was told he 
would be considered for the next vacancy. Sales jobs are not 
posted, and an Armour official testified that one way a labor­
er could move into a salaried job was to talk to a supervisor. 
Drakeford was never asked to complete an application and did 
not do so.

Armour had no written standards for hiring sales repre­
sentatives. An all-white staff selected new sales representa­
tives, applying subjective standards. The district court 
found that Drakeford was available and qualified for a sales 
position, but sales vacancies were filled with white employees 
with no greater qualifications than Drakeford. Furthermore, 
no black employee or applicant had been hired as a sales rep­
resentative until after this action was filed.

15



Armour s contention that Drakeford's testimony is insuf­
ficient to establish a prima facie case because he made only a 
casual inquiry" regarding a sales position is refuted by 

Teamsters v. United States, 431 U.S. 324, 365-67 (1977).
There the Supreme Court held that a person who is interested 
in seeking a position but has not formally applied may be en­
titled to relief under Title VII. The Court reasoned that an 
employer's policy of discrimination "can be communicated to 
potential applicants more subtly but just as clearly by an em­
ployer's actual practices— by his consistent discriminatory 
treatment of actual applicants, by the manner in which he pub­
licizes vacancies, his recruitment techniques, his response to 
casual or tentative inquiries, and even by the racial or eth­
nic composition of that part of his work force from which he 
has discriminatorily excluded members of minority groups." 
431 U.S. at 365.

In view of the district court's findings that Armour had 
no black employees in sales at the time of Drakeford's inquiry 
and had actively discouraged them from applying for sales 
jobs, Drakeford's claim is clearly within the Teamsters' 
standard for nonapplicants.

The district court made the following findings in support 
of its conclusion that Drakeford was constructively discharged 
by Armour in violation of § 704(a). Drakeford was promoted to 
supervisor on February 22, 1977, after filing a charge with 
the commission and several days before this action was filed. 
He was put on a night shift so that a white supervisor could

16



get the day shift, although Drakeford was hired to replace a 
day-shift supervisor. The shift was adjusted a second time to 
accommodate another white supervisor. The general foreman at 
Armour granted leave to employees supervised by Drakeford 
without advising him. Despite complaints to his superiors, 
the problem continued. His request for a transfer was re­
jected by the company. As a result of the degrading treat­
ment, he left Armour on November 28, 1978. The district court 
found that the company knew Drakeford was denied equal status 
as a supervisor and was subjected to harassment but failed to 
correct these practices. It held that "the employment condi­
tions imposed by the company forced Drakeford to terminate his
employment in violation of section 704(a)."

Armour argues that it must be shown that the employer
acted with the intent to force the employee to resign in order 
to establish constructive discharge. The company claims that 
there is no evidence that it sought to make Drakeford quit his 
job.

The elements of a constructive discharge are stated in 
J.P. Stevens & Co., Inc. v. NLRB, 461 F.2d 490, 494 (4th Cir. 
1972), as follows: "Where an employer deliberately makes an
employee's working conditions intolerable and thereby forces 
him to quit his job . . . the employer has constructively dis­
charged the employee . . . ." A constructive discharge vio­
lates § 704(a) when the record discloses that it was in retal­
iation for the employee's exercise of rights protected by the 
Act.

17



To act deliberately, of course, requires intent. But 
direct evidence of intent is unnecessary. Circumstantial 
proof suffices. United States Postal Service v. Aikens, 103 
S. Ct. 1478, 1481 n.3 (1983). The fact that higher officials 
knew of Drakeford's untenable position and took no action to 
correct it supports the district court's finding that the em­
ployment conditions were "imposed by the company." This find­
ing satisfies the requirement of deliberateness.

The district court's findings also satisfy the other re­
quirements of a constructive discharge in violation of 
§ 704(a). The company refused to appoint Drakeford a super­
visor until after he filed a charge with the commission. He 
was then systematically harassed and denied equal status with 
white supervisors. The court's finding that these conditions 
forced him to resign is not clearly erroneous.

Linwood L. Edwards
The district court held that Linwood Edwards was denied a 

supervisory position because of his race.
The court made the following findings. Edwards was hired 

by Armour in 1949 at its Asheville facility and subsequently 
promoted to supervisor. When the plant closed in 1969, 
Edwards was transferred to the Charlotte plant and assigned as 
a laborer. Armour's practice had been, and continued to be 
throughout this litigation, to transfer employees from closed 
facilities to other facilities in basically the same job posi­
tion. For example, three white supervisors from closed plants

18



transferred into the Charlotte facility and were brought in as 
supervisors. Edwards requested a supervisory assignment after 
his transfer but was passed over for junior white employees 
who were hired as, or promoted to, supervisors. Armour had no 
black supervisor until 1977, when Drakeford was promoted after 
filing his charge with the commission. Edwards had the exper­
ience and knowledge of Armour's operation to qualify him for a 
supervisory position at the time he was transferred to 
Charlotte and when job vacancies occurred between 1971 and the
trial.

Armour contends that the court ignored the legitimate 
nondiscriminatory reasons it offered and that the finding of
pretext is clearly erroneous.

On the contrary, the court's findings of fact specifical­
ly addressed the testimony of Armour officials and found that 
the explanations were not credible. One reason offered by an 
official for not promoting Edwards was that his supervisory 
experience in Asheville occurred in a nonunion plant and the 
Charlotte plant was unionized. The company, however, con­
tinued to bypass him in favor of junior white employees with 
little or no union experience even after Edwards had accumu­
lated several years union experience at Charlotte. The offi­
cial also testified that Edwards wasn't offered a supervisory 
position because he didn't think he would have taken it. 
Finally, he testified that Edwards was not selected because of 
his "interaction within the plant, his ability to communicate, 
take instructions," and because he lacked aggressiveness. The

19



district court found that Edward's satisfactory performance as 
a supervisor in Asheville showed that this "after-the-fact" 
explanation was false.

Mynell Bennett
The district court found that Armour prevented Bennett 

from acquiring seniority because of her race and that Armour 
discharged her in violation of § 704 (a). Armour contends that 
these conclusions are clearly erroneous and that Bennett's 
claim is barred by laches.

The court made the following findings of fact. According 
to the collective bargaining agreement in effect in 1971, a 
new employee was classified as a probationary employee until 
he or she worked 30 days during a consecutive 60-day period. 
At that time the employee acquired a permanent status, with 
seniority and its concomitant rights. Probationary employees 
were called in to work on a daily or weekly basis when needed 
by a supervisor. Although no standards governed the super­
visors' discretion in calling probationers to work, the prac­
tice was to call in the most senior employee.

Bennett started working in Armour's sausage department as 
a probationary employee in July 1971. In August, Armour hired 
three white women from the closed Swift & Company plant. 
These women, although junior to Bennett, were called in over 
her. Armour also employed white students to work during the 
summer, at the same time Bennett was trying to establish sen­
iority. As a result, Bennett was unable to acquire permanent 
status after six months of probationary employment.

20



In January 1972, Bennett asked her supervisor if the com­
pany had refused to call her to work because of her race or her 
performance. The supervisor assured her that her performance 
was acceptable, but after the conversation she was not called 
to work. Two weeks later, upon inquiry, she was told she had 
been discharged.

The court found that Bennett was qualified to perform the 
work and that the junior white employees were called in over 
her because of her race. It also found that she was dis­
charged in retaliation for complaining about Armour's discrim­
inatory refusal to call her to work and because of her race.

Armour claims that the probationary employees from Swift 
were called in over Bennett because their experience at Swift 
and their familiarity with the machines in the sausage depart­
ment was of value to the company. The court specifically 
found this explanation not credible. According to an Armour 
official, an employee hired into the company from Swift would 
not be given any preference over employees already working at 
Armour. The official also testified that probationary employ­
ees were evaluated during the probationary period by a subjec­
tive determination on the part of their supervisor. No writ­
ten or objective comparison between the Swift employees and 
incumbent Armour employees was made.

The court's finding that Armour discharged Bennett in re­
taliation for her inquiry as to whether she was not called to 
work because of her race is supported by testimony and docu­
mentary evidence. When Bennett made the inquiry in January

21



1972, she was assured by her supervisor that her work was 
satisfactory. Documents in her personnel file support this 
evaluation. After Bennett made her complaint, she was never 
called in again and was fired with no explanation. In a North 
Carolina Employment Security Commission form completed by 
Armour, the company indicated that she was discharged in 
January 1972 for unsatisfactory performance. The court cor­
rectly concluded that the discharge was a violation of the 
§ 704(a) "opposition clause." Bennett's inquiry as to whether 
she had been prevented from acquiring seniority because of her 
race constitutes opposition under the statute. See Berg v. 
La Crosse Cooler Co., 612 F.2d 1041 (7th Cir. 1980).

Finally, Armour contends that Bennett's claims are barred 
by laches because she waited four and a half years before 
bringing suit, and the company was prejudiced because 
Bennett's supervisor had died before trial. Bennett filed a 
charge with the commission on January 27, 1972. The 
commission investigated the charge and on August 25, 1976, 
issued a determination of reasonable cause. When conciliation 
efforts failed, Bennett received a right-to-sue letter on 
May 17, 1977. Bennett then moved to intervene in this 
proceeding on June 2, 1977.

In order to apply laches, there must be a finding that 
the plaintiff delayed inexcusably in filing suit and that the 
delay resulted in undue prejudice to the defendants. We hold 
that Bennett's decision to rely on the commission's adminis­
trative process before initiating a private suit is not

22



inexcusable delay. See Bernard v. Gulf Oil Co. , 596 F . 2d
1249 , 1256-58 (1979) , adopted, 619 F.2d 459, 463 (5th Cir.
1980) (en banc).

Janie Hill
The district court found that Hill was denied the oppor­

tunity to establish seniority because of race.
In addition to the findings described under Bennett's 

claims, the court made the following findings of fact. Hill 
was hired by Armour in 1971 as a probationary employee in the 
sausage department. She was passed over for work in favor of 
junior white employees, including the three women who had been 
hired from Swift. As a result, Hill was unable to acquire 
permanent status and seniority until March 1972, after the 
junior white employees from Swift had established seniority. 
Armour's assertion that the Swift employees were more effi­
cient than Hill was not credible, given the company's lack of 
objective measures of efficiency, its official's testimony 
that the Swift employees wouldn't be given preference over in­
cumbent employees, and Hill's satisfactory performance at 
Armour. The district court credited Hill's testimony and 
found that the company intentionally discriminated against her 
because of her race.

Armour contends that the court's conclusion is clearly 
erroneous because the evidence demonstrates that no racial mo­
tive was involved in its decision to call certain junior white 
employees over Hill. The existence of discriminatory intent,

23



\

according to Armour, is belied by the fact that black employ­
ees sometimes acquired seniority immediately and white employ­
ees sometimes took a year to acquire seniority.

Armour's argument does not expose any error in the dis­
trict court's judgment. The district court's findings of in­
tentional discrimination were not based on a comparison of the 
length of time black and white employees remained probation­
ers. The findings were based on the fact that the probation- 
ary periods of Bennett and Hill were unlawfully extended be­
cause when Armour assigned work, it favored junior white em­
ployees with no superior qualifications.

Laura E. Harvey
The district court held that Armour discriminated against 

Harvey in violation of § 703 (a) by depriving her of equal 
status in her supervisory position. The company also denied 
her a sales position because of her race, and, when she com­
plained about Armour's racial practices, she was harassed in 
violation of § 704(a).

The court made the following findings of fact. Harvey 
was hired by Armour as a keypunch operator in January 1973. 
She was the first black employee in data processing and only 
the second ever employed in the administrative office. In 
1979, she was promoted to a supervisory position, replacing a 
white employee as lead key operator. Despite the fact that 
her predecessor had supervised both black and white employees, 
Harvey was told that the white employees would be supervised

24



by the data processing manager because they would not take
instructions from her. In March 1979, Harvey resigned because
this arrangement created problems with work assignments among
the employees. In May 1979, she returned to work as lead key
punch operator but without supervisory duties.

*The district court properly concluded that Armour vio­
lated Title VII by preventing Harvey from supervising white 
employees because they did not wish to take orders from a 
black person. Section 703(a)(2) provides that it shall be an 
unlawful employment practice for an employer "to limit, segre­
gate, or classify his employees . . .  in any way which would 
deprive or tend to deprive any individual of employment oppor­
tunities or otherwise adversely affect his status as an em­
ployee, because of such individual's race . . . ." Racial 
segregation of the employees Harvey supervised because of her 
race limited her employment opportunities as a supervisor and 
adversely affected her status. Cf. Rogers v. EEOC, 454 F.2d 
234, 237-38 (5th Cir. 1971); Allen v. City of Mobile, 331 F. 
Supp. 1134, 1144 (S.D. Ala. 1971).

In regard to the claim pertaining to a sales position, 
the district court found that Harvey applied for sales jobs in 
1976, 1977, and 1978. The court found that Harvey was quali­
fied to work in sales. She was highly recommended by her 
supervisor for her attitude, motivation, and performance. In 
a 1977 performance evaluation, her supervisor noted that her 
sales knowledge was underutilized. The court found that 
Armour had rejected Harvey for sales because of her race.

25



Despite Armour's explanation that there were few sales open­
ings from 1976 to 1978 and, in most cases, jobs were awarded 
to persons with significant prior sales experience, the court 
found convincing Harvey's evidence that the company had a 
practice of excluding blacks from sales jobs. Harvey's super­
visor told her the company didn't hire black salespersons be­
cause the customers wouldn't buy from them. An Armour offi­
cial who participated in hiring sales employees between 1975 
and 1978 testified that a high school education was the only 
established criterion for hiring sales persons. Harvey had a 
high school diploma as well as the sales knowledge and other 
attributes noted in her performance evaluation. In the face 
of evidence that the company did not hire black sales repre­
sentatives, Armour's rebuttal on the basis of relative quali­
fications does not demonstrate that the district court's find­
ings are clearly erroneous. See EEOC v. Ford Motor Co., 645 
F. 2d 183 , 188 n.3 (4th Cir. 1981), rev' d in par t on other 
grounds, 458 U.S. 219 (1982).

There is one aspect of Harvey's claim that is not sup­
ported by the record. The evidence does not disclose that 
Armour violated § 704(a) by retaliating against her because of 
any complaint. She was not assigned overtime work or denied 
switchboard training in retaliation or because of her race. 
There is no evidence that any white employee requested the 
switchboard training and received it. There was only one 
switchboard position at Armour, and it was occupied by a white 
woman who was hired the same year as Harvey and remained in 
the position at the time of trial.

26



Consequently, we vacate that portion of the district 
court's judgment dealing with Harvey's complaint about over­
time work and switchboard training. Because the findings 
about these claims were not necessary to the findings that 
Armour discriminatorily denied Harvey equal supervisory 
status and a sales position because of her race, affirmance of 
those claims is not affected.

Summary
With respect to a disparate treatment claim, United 

States Postal Service v. Aikens, 103 S. Ct. 1478, 1482 (1983), 
reiterates:

The "factual inquiry" in a Title VII case is 
"whether the defendant intentionally discriminated against the plaintiff." . . .  In other words, is 
"the employer . . . treating 'some people less fa­
vorably than others because of their race, color, religion, sex, or national origin.'"

Thus, when the evidence introduced by both the employee and
the employer has been admitted, the ultimate question is
"whether the [employer] intentionally discriminated against
the [employee]." 103 S. Ct. at 1482. The burden of proving
intentional discrimination is on the employee. As in any
other case, intent, a state of mind, is a fact that can be
proved by indirect or circumstantial evidence. 103 S. Ct. at
1482-83. A distric£_caurt's finding of intentional discrimi- 
nation on account of rj :his discrimination, is 
encompassed by Federal Rule of Civil Procedure 52(a). A court
of appeals is obliged to accept the finding unless it is 
clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273,

27



287 (1982). "A finding is 'clearly erroneous' when although 
there is evidence to support it, the reviewing court on the 
entire evidence is left with the definite and firm conviction 
that a mistake has been committed.'' United States v. United 
States Gypsum Co., 333 U.S. 364, 395 (1948).

These precepts have governed our review of the district 
court's findings about the seven individual claimants. With 
the exception of Harvey's overtime and switchboard claims, we 
conclude that the district court's findings that Armour inten­
tionally discriminated against the complainants because of 
their race are not clearly erroneous. We also conclude that 
the court's findings of retaliation in violation of § 704(a) 
are not clearly erroneous. The provisions of the judgment 
pertaining to the individual claims, except as noted above,
are affirmed. VI

VI
Armour assigns error to the district court's judgment 

pertaining to the class on both substantive and procedural
grounds.

As amended on remand, the court's certification of the 
class included:

All black applicants for employment and black 
employees of the Company's Mecklenburg County,
North Carolina facility who have been adversely af­
fected, at any time since July 27, 1971 (six months 
prior to Bennett's charge filed with the EEOC), by the Company's racially discriminatory employment 
practices involving promotions or hiring into Of­
fice and management positions, including Sales and 
foreman positions, and retaliation for having op­
posed discriminatory practices or having exercised 
rights protected under Title VII.

28



The district court found a pattern and practice of retal­
iation in violation of § 704 (a) . It also found that the com­
plainants had demonstrated a pattern and practice of limiting 
black candidates to certain jobs, totally excluding them from 
supervisory and sales jobs, and treating them differently from 
white applicants and employees because of their race. It 
found that although black candidates were available and quali­
fied for sales and supervisory positions, and vacancies ex­
isted, Armour did not select them because of their race.

The findings with respect to class discrimination wer,e 
based on evidence of specific instances of intentional dis­
crimination and statistical evidence. The district court ac­
cepted plaintiffs' expert testimony that between 1965 and 
Drakeford's promotion in 1977 Armour brought in 37 supervi­
sors. Twenty-seven were promoted from within and ten were new 
hires. Black persons constituted 25.11% of the outside avail­
able workforce, yet none was hired. As for sales, between 
1965 and Ennis Graves's employment in August 1977, Armour pro­
moted or hired 64 sales representatives. Plaintiffs' expert 
used the data on these employees to determine the qualifica­
tions expected of sales representatives. Between 1971 and the 
trial date, qualified black persons constituted 8.69% of the 
external and 20.71% of the internal available workforce. Only

29



one black person was hired as a sales representative despite 
23 sales vacancies between 1971 and trial.^

Armour offered several explanations for these hiring pat­
terns through one of its witnesses. The district court, how­
ever, refused to credit his testimony, finding that his ad­
mitted misrepresentations, decorum, and the conflicting docu­
mentary evidence made his testimony unreliable. The court 
also noted nine instances in the record where Armour officials 
admitted the company had no explanation for its actions. Con­
sequently, the district court held that plaintiffs had estab­
lished a pattern and practice of discriminatory treatment 
towards members of the class.

Armour claims that the finding of classwide discrimina­
tion was unsupported. It asserts that the plaintiffs' statis­
tical evidence was flawed and, without any statistical showing 
of underutilization, there remained only "evidence of isolated 
instances" of discrimination.

First, we note that the complainants' testimony as to in­
stances of discrimination establish more than isolated or "ac­
cidental" discriminatory acts. See Teamsters, 431 U.S. at 
336. The testimony of both employees and company officials 
that the district court relied upon in concluding classwide

The district court rejected Armour's contention 
that Virginia Davis, a black female employee who worked 
in the sales office as a telephone clerk between December 
1976 and February 1977, was the first black employee with 
sales duties. Relying on the testimony of an Armour of­
ficial that the first black sales representative was 
hired in August 1977, the district court found that Davis had only clerical duties.

30



and individual liability clearly established a pattern of in­
tentional discrimination. For example, Harvey testified, 
without rebuttal from Armour, that she was informed by her 
manager that black people were not hired in sales because cus­
tomers wouldn't buy from them. Also, Armour's practice of not 
posting sales or supervisory vacancies, and its practice of 
using a white managerial staff who relied on unwritten sub­
jective criteria for making promotion decisions, support a 
finding of a pattern and practice of classwide discrimination. 
Such evidence provides a substantial basis upon which a dis­
trict court may infer that discrimination was the regular 
practice.

The district court rejected Armour's expert testimony 
that the sample of supervisors and sales representatives be­
tween 1971 and 1977 indicates no discrimination in the promot­
ing or hiring of black employees.^ It found that (1) the 
sample for the period was too small to establish a reliable 
statistical pattern; (2) Armour's availability data was based 
on a static work force of employees as of December 31, 1977, 
with no consideration of the qualifications or work experience

Armour's expert testified that the underrepresenta­
tion of black employees in sales and supervisory posi­
tions came within one standard deviation, an acceptable 
margin of disparity. This is only true, however, if pro­
motions and hires made after commencement of this action 
are included. We find no error in the fact that the dis­
trict court minimized the significance of evidence of Armour's postcomplaint hiring and promotion of black em­
ployees. See EEOC v. Ford Motor Co., 645 F.2d 183, 197 
(4th Cir. 1981) , rev1d in par t on other grounds, 458 U.S. 
219 (1982); Rich v. Martin Marietta Corp., 522 F.2d 333, 
346 (10th Cir. 1975).

31



of employees actually hired; and, (3) after evaluating the 
manner and decorum of both parties' expert witnesses, the 
plaintiffs' availability and utilization data was more 
reliable.

We find no error in the district court's decision to re­
ject Armour's statistical analysis and accept plaintiffs' ex­
pert testimony. Armour's argument that the district court im­
properly considered hiring data between 1965 and 1977— well 
before June 27, 1971, when the - company's potential liability 
began to run--might be persuasive if the company had virtually 
no vacancies in sales or supervisory positions between 
June 27, 1971, and March 4 , 1977, when this suit was filed. 
It might then be argued that low turnover and a decrease in 
hiring account for the statistical disparities after 1971, 
rather than post-charge discrimination. The record shows, 
however, that there were 15 new vacancies in sales and 18 in 
supervisory positions during this period. The practices ap­
parent before 1971 are consistent with the pattern during the 
relevant period.^ No black persons were hired to fill these 
positions except for Drakeford, who was promoted four days be­
fore the suit was filed and one month after the commission 
issued him his right to sue letter. Job offers made after 
learning of a charge "are entitled to little weight." EEOC v.

6. Moreover, because the evidence shows there waslittle change in Armour's employment practices being 
challenged, the precharge statistical evidence is rele­
vant. See Hazelwood School Dist. v. United States, 433 
U.S. 299 , 309 n . 15 (1977) .

32



Ford Motor Co 1981) , rev1d in645 F.2d 183, 197 (4th Cir. 
part on other grounds, 458 U.S. 219 (1982)P

Statistical proof in Title VII cases must be evaluated in 
light of "the surrounding facts and circumstances." Teamsters 
v. United States, 431 U.S. 324, 340 (1977). As Justice
Rehnquist made clear in a separate concurring opinion in 
Dothard v. Rawlinson, 433 U.S. 321, 338 (1977): "It is for 
the District Court, in the first instance, to determine 
whether these statistics appear sufficiently probative of the 
ultimate fact in issue . . . .  In making this determination, 
such statistics are to be considered in light of all other 
relevant facts and circumstances." In view of Armour's method 
of making promotion decisions during the relevant period and 
the evidence of specific discriminatory acts, we cannot say 
that the district court was clearly erroneous in finding a 
pattern and practice of intentional discrimination against the 
class.

Similarly, because of Armour's pervasive harassment and 
retaliation against black employees who sought or achieved ad­
vancement or exercised rights protected by Title VII, we con­
clude that the district court's finding of a pattern and prac­
tice of retaliation is not clearly erroneous.

VII
In order to maintain a class action, the requirements of

Federal Rule of Civil Procedure 23 must be met. General

7. After this action was filed, Armour promoted a black
employee to supervisor and hired a black person as a 
salesman.

33



Telephone Co. v. Falcon, 457 U.S. 147, 156 (1982); Stastny v. 
Southern Bell Tel. & Tel. Co., 628 F. 2d 267 , 273 (4th Cir. 
1980). In reviewing the final class certification, the appel­
late court views the entire record to determine if the trial 
court erred in its certification. Stastny, 628 F.2d at 276.

Armour claims that the class as certified fails to meet 
the prerequisites of commonality, typicality, numerosity, and 
adequacy of representation. The company further contends that 
the district court erred in including victims of retaliation 
and applicants, because they are inappropriate for class 
treatment.

Preliminarily, we note that inclusion of "office and man­
agement positions" in the certification comprises more jobs 
than are justified by the evidence. While it is true that 
sales jobs are included in office positions and supervisory 
jobs may be considered management positions, the broad refer­
ence to office and management positions encompasses jobs for 
which no plaintiff or intervenor presented evidence of racial­
ly discriminatory practices. To clarify the certification, it 
must be amended to include only promotions into sales and su­
pervisory positions.

Armour's contention that the district court erred in 
certifying outside applicants for sales and supervisory posi­
tions when the class representatives were employees who sought 
promotions into these jobs presents a more difficult question. 
In General Telephone Co. v. Falcon, 457 U.S. 147 , 157-58 
(1982), the Supreme Court rejected the practice of across the

34



claims must beboard certification and held that the class 
fairly encompassed within the representatives' claims. Falcon 
noted that the commonality and typicality requirements of rule 
23(a) might be satisfied if there were "[s]ignificant proof 
that an employer operated under a general policy of discrimi­
nation" and "the discrimination manifested itself in hiring 
and promotion in the same general fashion, such as through en­
tirely subjective decisionmaking processes." 457 U.S. at 159 
n. 15.

Applying Falcon, the district court found that the stand­
ards for selection to these positions are the same for incum­
bent employees and outside applicants. At trial, Armour offi­
cials testified that employees and outside applicants were re­
quired to complete an application for employment and that em­
ployees were given no preference over others. Also, entirely 
subjective criteria were applied to employees and outside ap­
plicants seeking sales or supervisory jobs.

The plaintiffs' claims regarding the promotion of black 
employees into sales and supervisory jobs and class claims re­
garding the hiring of black applicants into these jobs overlap 
on many important issues of proof. We believe, however, that 
there is a significant omission in the district court's find­
ings. Applying Falcon, we are unable to affirm single class 
treatment for both promotions and hiring claims because the 
district court made no finding that the supervisors who made 
the challenged promotions decisions were the same persons who 
made hiring decisions. Consequently, there is no evidence

35



that the officials who selected outside applicants for the 
sale and supervisory jobs were motivated by racial prejudice. 
See Falcon, 457 U.S. 147 , 162 (Burger, C.J., concurring in
part, dissenting in part).  ̂ Although the certification ques­
tion is a close one, we conclude that the significant proof 
for single class treatment required by Falcon is lacking in 
this case, and thus the plaintiffs cannot adequately represent 
the outside applicants for sales and supervisory positions. 
Additionally, we note that the lack of identity of officials 
who were responsible for hiring undercuts a finding that the 
company engaged in a pattern and practice of racial discrimi­
nation against outside applicants. See Lilly v. Harris-Teeter 
Supermarket, 720 F.2d 326, 338 (4th Cir. 1983). This observa­
tion, however, in no way affects the proof of a pattern and 
practice of discrimination against incumbent employees who 
sought a promotion into sales and supervisory positions.

In all other respects, we conclude that the record sup­
ports the district court's determination of class action 
status. The plaintiffs' pleadings and evidence are consistent 
with a finding of commonality. Both class claims and individ­
ual claims were established by a showing of intentional dis­
crimination in promotions, bolstered by statistical evidence.

We cannot accept Armour's contention that harassment and 
retaliation claims are not susceptible of class treatment be­
cause they are too individualized. The plaintiffs established 
a general practice of retaliation against employees who op­
posed discriminatory practices or exercised rights protected

36



under Title VII, in violation of § 704(a). Despite the pres­
ence of individual factual questions, the commonality criteri­
on of rule 23 (a) is satisfied by the common questions of law 
presented. In this case, the utility of the class action de­
vice would be destroyed by requiring the plaintiffs to bring 
separate claims of retaliation. See Int'l Woodworkers v. 
Chesapeake Bay Plywood, 659 F.2d 1259, 1269-70 (4th Cir. 
1981); 7 Wright and Miller, Federal Practice and Procedure 
§ 1763 (1972 and Supp. 1983).

The complainants' claims are typical of the plant-wide 
discriminatory practices they challenge. Drakeford and Harvey 
were discriminatorily denied sales positions. Drakeford and 
Edwards were discriminatorily denied supervisory positions.

gFinally, Holsey, Frazier, Drakeford, and Bennett were found 
to have been victims of retaliation for exercising their 
rights under Title VII. Thus, at least one representative is 
a qualified member of the class of employees denied promotions 
in sales and supervisory positions and subjected to 
retaliation. See 7 Wright and. Miller, Federal 
Practice and Procedure § 1761 at 586-87 (1972) . The 
complainants alleged and established that they personally were

8. Armour asserts that. .Bennetts is not an adequate rep­
resentative of the class because she had limited exposure 
to Armour as a probationary employee for six months and 
then was discharged. This reasoning would create the 
anomalous result that an employer could eliminate a po 
tential representative of employees merely by discharg 
ing a complaining employee. We therefore reject this ar gument.

37



harmed by these practices. They meet the typicality criterion
of rule 23 (a) and the requirement for fair and adequate

9representation.
The final requirement for certification, numerosity, was 

satisfied by the plaintiffs. The district court found that 
Armour employed between 46 and 60 black employees annually 
since 1971, and this large number of employees potentially af­
fected by Armour's challenged practices made joinder imprac­
ticable. Armour contests the figures used by the district 
court, claiming that the relevant number is the total of all 
supervisory and sales vacancies during the time period, which 
is 34. Armour further contends that the more realistic figure 
is 6 or 7, because of the 34 vacancies only 6 or 7 positions 
might have been awarded to blacks if the availability data 
used at trial applied.

We cannot accept this method of estimating the size of a 
class for purposes of rule 23(a) (1). Contrary to Armour's as­
sertion, this court's opinion in Kelley v. Norfolk & Western 
Ry. , 584 F. 2d 34 (4th Cir. 1978), does not mandate Armour's 
computation. Kelley involved complaints of a promotion system 
at a facility where there were 67 black employees, all lived 
in the same area, and the plaintiffs identified only 8 black 
employees who qualified for promotion. In the instant case, 
there were considerably more black employees who could have 
been injured by the challenged practices, and their identity

9. Armour does not contend that plaintiffs' counsel
were inadequate representatives. Thus, this aspect of 
rule 23(a)(4) is not at issue.

38



could not be established at the liability stage. Moreover, 
Kelley establishes that there is no mechanical test for numer- 
osity and the determination "turns on the nature of the claim 
of discrimination asserted by the plaintiffs and the number of 
persons who could have been injured by such discrimination." 
584 F. 2d at 35. See generally 7 Wright & Miller, Federal 
Practice and Procedure § 1762 at 602-03 (1972). The determi­
nation of numerosity is a discretionary matter, and, finding 
no abuse, we affirm the district court's decision. See 
Cypress v. Newport News General & “Nonsectarian Hosp. Ass'n, 
375 F.2d 648, 653 (4th Cir. 1967).

VIII
Armour objects to allowing Holsey and Frazier to estab­

lish permanent seniority in the sausage department, and using 
their date of hire as their departmental seniority date. It 
also protests that the judgment contains unreasonably vague 
injunctive relief, contrary to the requirements of Federal 
Rule of Civil Procedure 65(a).

We conclude that retroactive seniority is the appropriate 
remedy to be awarded to Holsey and Frazier. See Franks v. 
Bowman Transp. Co., Inc., 424 U.S. 747, 762-70 (1976). The 
record, however, does not support using their date of hire as 
their departmental seniority date. Under the terms of the 
collective bargaining contract, if Armour had allowed them to 
bump into sausage, they would have had departmental seniority 
dating from their transfer. The relief accorded Holsey and 
Frazier should be modified to this extent.

39



The court has the duty to render a decree which will 
eliminate racially discriminatory effects of the past and bar 
such discrimination in the future. Albemarle Paper Co. v. 
Moody, 422 U.S. 405, 418 (1975); Sledge v. J.P. Stevens & Co., 
Inc., 585 F. 2d 625, 643-44 (4tn Cir. 1978). The district 
court properly fashioned injunctive relief to protect the 
plaintiffs and class members from future discriminatory and 
retaliatory acts like those established at trial. It drafted 
the decree with sufficient specificity to give Armour fair 
notice of the conduct that is being prohibited. We note, how­
ever, that because the court's finding of classwide discrimi­
nation against outside applicants lacks evidentiary support, 
that portion of the judgment enjoining Armour from discrimi­
nating in hiring is vacated.

IX
Because we have vacated part of the judgment, the dis­

trict court must reconsider the award of attorneys' fees. We 
therefore vacate the award and remand this issue for a deter­
mination of the proper amount in accordance with Hensley v. 
Eckerhart, 103 S. Ct. 1933 (1983), and Blum v. Stenson, 104
S. Ct. 1541 (1984) . The award should include a reasonable fee 
for the appellants' attorneys on appeal with respect to those 
issues on which the judgment has been affirmed. Because ap­
pellants have substantially prevailed on appeal, they shall 
recover their costs.

40