Stockham Valves and Fittings, Inc. v. Howard Brief in Opposition

    IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1977 
No. 77-670

STOCKHAM VALVES AND FITTINGS, INC.,

Petitioner,

v.

PATRICK JAMES, et al.

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

for the Fifth Circuit

BRIEF IN OPPOSITION

JACK GREENBERG 
JAMES M. NABRIT, III 
PATRICK 0. PATTERSON 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

BARRY L. GOLDSTEIN 
Suite 940
806 15th Street, N.W. 
Washington, D.C. 20006

DEMETRIUS C. NEWTON 
Suite 1722
2121 8th Avenue North 
Birmingham, Alabama 35203

Counsel for Respondents 
Patrick James, et al.



INDEX

Page

Statement of the Case ..................... 1

Reasons for Denying the Writ ............... 4

1. The Fifth Circuit's decision 
is consistent with Supreme 
Court decisions, and there is
no conflict among the circuits ., 4

2. The Fifth Circuit's decision
is correct ....................   11

Conclusion ................................  15

TABLE OF AUTHORITIES
Cases :

Albemarle Paper Co. v. Moody, 422 U.S.
405 (1975) ...........................  2,3

Dothard v. Rawlinson, 53 L.Ed.2d 786
(1977) ...............................  3,9

Griggs v. Duke Power Co., 401 U.S.
424 (1971) ........................... 7

Hazelwood School District v. United
States, 53 L.Ed.2d 768 ( 1977) ........ 6,7,9

International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977) ... 3,7

Patterson v. American Tobacco Co., 535 
F.2d 257 (4th Cir.), cert, denied,
429 U.S. 920 ( 1976) .................. 10

Roman v. ESB, Inc., 550 F.2d 1343
(4th Cir. 1976)(en banc) ...........  10,11



11
Page

United Air Lines, Inc. v. Evans, 431
U.S. 553 (1977) ...................... 2

United States v. El Paso Natural Gas Co.,
376 U.S. 651 (1964) .................. 12

United States v. Hinds County School
Board, 417 F.2d 852 (5th Cir.1969),
cert.denied, 396 U.S. 1032 (1970) .... 9

United States v. United States Steel Corp.,
371 F.Supp. 1045 (N.D.Ala. 1973), 
rev'd in part, 520 F.2d 1043 (5th 
Cir. 1975), cert, denied, 429 U.S.
817 (1976)............................  14

Village of Arlington Heights v. Metropol­
itan Housing Development Corp,, 429 
U.S. 252 ( 1977) ...................... 8

Statutes:

Title VII of the Civil Rights Act of 1964, 
as amended by the Equal Employment 
Opportunity Act of 1972, 42 U.S.C.
§2000e et seq..................... 3,6,10,13



IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1977 

No. 77-670

STOCKHAM VALVES AND FITTINGS, INC.,

Petitioner,

v.

PATRICK JAMES, et al.

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

for the Fifth Circuit

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

The petition for certiorari inadequately 
describes the employment practices at the Birming­
ham plant of Stockham Valves and Fittings, Inc. 
by ignoring a consistent, overriding factor of 
employment at Stockham: segregation. Jobs, promo­
tions, training opportunities, and facilities were



2

all assigned by race. Overt segregation continued 
until the trial of this case in 1974.--^

At least until 1965, Stockham segregated all 
jobs by race (A 20-21, 26—27) : while there was 
some token integration after 1965, the historical 
practice of assigning employees by race and 
excluding black workers from the higher job 
classifications continued (A 23-25, 28-29, 33).
Since practically all skilled hourly and super­
visory positions were filled from the plant work­
force, the Company maintained extensive training 
programs in order to prepare hourly personnel for
these positions. Blacks were totally excluded

2/from the supervisory training program until 1970— 
and from the apprentice training programs until 
1971 (A 59-62). The Company maintained a segre­
gated work environment of separate bathrooms,

\J James, Winston, and Harville filed their 
charges with the EEOC in 1966 alleging segregated 
facilities and other discriminatory employment 
practices (A 3). Thus, the monetary liability of 
the Company extends to 1965. Albemarle Paper 
Company v. Moody, 422 U.S. 405, 410 n. 3 ( 1975); 
cf. United Air Lines, Inc. v. Evans, 431 U.S. 
553 (1977).

2/ There was not one black foreman until May 
1971, despite the fact that the Company selected 
the large majority of its over 100 supervisors 
from the hourly workforce which was over 60% black 
(A 69-72).



-  3 -

bath house, and cafeteria at least until trial in 
1974.-/

Moreover, since the passage of Title VII the
Company has substituted facially "neutral"
discriminatory practices for some of its previous- 

. . 4/ly overt discriminatory practices.—  For example, 
in August 1965, contemporaneously with the effec­
tive date of Title VII, the Company instituted an 
extensive testing program which effectively 
precluded black workers from advancing to higher 
job classifications (A 4 5 - 5 4 ) The Company for

3/ See generally A 15-19. Until 1969 the 
Company even assigned employees’ identification 
badges by race: blacks received badges with 
numbers below 3,000 and whites with numbers above 
3,000 (A 16). The record shows that, at the time 
of trial, racially segregated restrooms were still 
maintained in the dispensary (A 18 n.9).

4/ See the discussions comparing "neutral" and 
"intentional" practices in International Brother­
hood of Teamsters v. United States, 431 U.S. 324, 
335-36 n.15 (1977), and Dothard v. Rawlinson, 53 
L.Ed.2d 786, 797 (1977).

_5/ There was no testing of job incumbents but 
only of applicants or current employees who sought 
promotional or training opportunities. See 
Albemarle Paper Company v. Moody, 422 U.S. 405, 
434 (1975). The same test, the Wonderlic Person­
nel Test, was used by Stockham as was used by 
Albemarle Paper Company.



-  4 -

many of its other employment decisions relied on 
the subjective and unguided discretion of its 
virtually all-white supervisory staff which, as 
might be expected in a company where even the 
facilities were segregated, resulted in severely 
limited promotional and training oportunities for 
black workers (A 32-33, 68-70).— ^

REASONS FOR DENYING THE WRIT

1. The Fifth Circuit's Decision Is Consistent 
With Supreme Court Decisions, And There Is 
No Conflict Among the Circuits.

The analysis of the statistical evidence is 
not, as argued by Stockham, contrary to recent 
decisions of the Court. The statistical evidence 
presented by the plaintiffs showed an enormous 
disparity between the employment of blacks and

_6/ The most transparent of the Company's "neu­
tral" practices was the age requirement instituted 
in 1970. In order to enter the apprentice program 
an employee had to be no older than 30 (excluding 
time in the military service). Since the Company 
had excluded all blacks from the program until 
1971, any black worker who had reached the age of 
30 prior to 1971 was permanently barred from any 
opportunity to apply or qualify for apprentice 
training (A 65).



-  5 -

7/ 8/whites by job and job class,— by departmentby
„ . . 9/ . . • 10/training program,—  and by supervisory position.—

7/ As of September 1973, of the 366 white 
non-incentive workers, 274 or 75% were in job 
classes 9-13 (the five highest paid classes) 
compared to only 11 or 3% of the 371 black non­
incentive workers; 135 or 76% of the 178 white 
incentive workers were in the two highest-paid 
incentive job classes, 8-9, compared to 20 or 2% 
of the 872 black incentive workers (A 28-29).

8/ As of September 1973, 903 or 72% of all 
blacks in the hourly workforce worked in the 
foundry-related departments or shipping and 
dispatching departments, compared to only 75 
or 13% of all whites in the hourly workforce; 
208 or 36% of all whites in the hourly workforce 
were employed in the maintenance departments 
compared to 28 or 2% of all blacks.

Most importantly, of the 162 employees 
hired since 1965 to work in the historically white 
departments, 147 or 90% were white; whereas, of 
the 695 hired since 1965 to work in predominantly 
black departments, 624 or 89.8% were black (A 
25).

9/ In June 1973, there were 227 whites and 6 
blacks employed as craftsmen (A 59). Of the 101 
employees selected into the apprentice training 
program since 1965 only 6 were black even though 
the overwhelming majority were selected from an 
hourly workforce which was over 60% black(A 60).

10/ In 1973, of the 120 foremen only 5 were 
black; there was not one black among the 26 
superintendents and 6 general foremen. This

(c ontd.)



"Where gross statistical disparities can be shown, 
they alone may in a proper case constitute prima 
facie proof of a pattern of discrimination." 
Hazelwood School District v. United States, 
53 L.Ed.2d 768, 777 (1977).

Stockham contends that despite these dispari­
ties the plaintiffs did not prove a prima facie 
case under recent decisions of the Court because 
they failed to prove either that there was a 
disparity between the percentage of blacks in 
skilled jobs in the relevant labor market and the 
percentage of blacks in the skilled jobs at the 
plant, or that blacks in the plant had the qual­
ifications for training for or promotion to 
higher-paid, skilled jobs. Stockham errs both on 
the facts and on the law. The asserted issue 
concerning statistics simply is not presented by 
the facts of this case. Initially, Stockham 
ignores the fact that the plaintiffs' prima facie 
case was not based solely on statistics but was 
buttressed by substantial evidence of intentional

-  6 -

10/ contd.
disparity cannot be attributed to discrimination 
prior to 1965 since over 60% of the supervisory 
workforce had been selected after the effective 
date of Title VII (A 69-71).



7

discrimination,— ^by the Company's use of facial­
ly neutral practices which had an adverse impact

12/and were not job related,—  Griggs v. Duke Power 
Company, 401 U.S. 424 (1971), and by examples of 
discrimination against individual black em- 
ployees.—  Moreover, as the record makes clear, 
the appropriate standard for statistical compari­
son is between the percentage of blacks in the 
Company's historically black jobs — the lower 
paying, foundry jobs— and the percentage of blacks 
in the Company's historically white jobs— the 
higher paying, skilled jobs:——-̂ (1) the Company

11/ See, e.g.,A 33 (job assignment); A 15-19 
^segregated facilities); A 71-72 (recruitment).

12/ See, e.g.,A 45-54 (Wonderlic Personnel Test); 
A 63-65 (high school education); A 65-69 (age 
requirement).

13/ See, e.g.,A 62 n.50 (Louis Winston); A 61-62 
n.50 (Francis Smith); A 16-18 n.7-8 (Claude 
Chapman).

14/ The record demonstrates that there was sub­
stantial turnover in personnel and that the gross 
racial disparity in jobs at the plant was due to 
post-1965 practices. See, e.g., nn.8-10, supra. 
C f. Hazelwood School District v. United States, 
5 3 L.Ed.2d 768, 7 78-79 ( 1977); International
Brotherhood of Teamsters v. United States, 431 
U.S. 324, 341-42 (1977).



8 -

trained the overwhelming majority of its skilled 
workers by on-the-job training programs or appren­
tice programs; (2) there were few skilled workers, 
either black or white, available in the labor 
market (A 60 n.49)— ■ (3) there was no evidence
that a difference in job-relevant qualifications 
between white and black workers explained the 
gross disparity in racial job assignments (A 37- 
45); (4) the Company, as admitted by the plant
manager, vice president and other Company offi­
cials (A 20-21), did not consider blacks, whatever 
their qualifications, for training programs and 
other "white" jobs prior to 1965, and there is no 
evidence to rebut the presumption that the Com­
pany's continued post-1965 staffing of jobs 
consistent with the historical pattern has been 
due to anything other than intentional racial 
discrimination.—  ̂ See, Village of Arlington

15/ The Company recruited at predominantly 
white schools in the area but totally refused to 
recruit at the predominantly black schools (A 
71-72).

16/ The Company introduced evidence that there 
were jobs at the plant which required skill; but 
it introduced no evidence that the white workers 
who were selected to train for these jobs had 
necessary skills or qualifications which the 
black workers did not have.



9

Heights v. Metropolitan Housing Development Corp., 
429 U.S. 252, 266-67 (1977); Hazelwood School 
District v. United States, supra, 53 L.Ed.2d at
778-79 n.15.

A racial disparity in the selection of 
"actual applicants" has been recognized as a 
highly relevant statistical measure. Hazelwood 
School District v. United States, supra, 53 L.Ed. 
2d at 778 n.13. Here the plant workforce is ana­
logous to "actual applicants" since the Company, 
in the overwhelming majority of cases, selected 
for skilled, training, and supervisory jobs from 
among its present employees. In certain circum­
stances, as where actual pool or applicant data 
are inadequate or unavailable, unlike the present 
case, labor force or population statistics may 
be used  ̂Dothard v. Rawl inson , 53 L.Ed.2d

17/ Even assuming, arguendo, that at the time of 
trial there was parity between the percentage of 
blacks in skilled jobs at the Company and the 
percentage of blacks in the skilled work force, 
and that this was the proper standard for compari­
son, the statistical analysis would still show a 
significant disparity from 1965 to 1971. During 
this period there were zero blacks in skilled 
jobs at the Company: "Nothing is as emphatic as
zero." United States v. Hinds County School Board, 
417 F.2d 852, 858 (5th Cir. 1969), cert, denied, 
396 U.S. 1032 (1970).



10

786, 798 (1977). Contrary to Stockham's asser­
tions, the Fifth Circuit's reliance on the racial 
disparities within Stockham's work force not only 
is consistent with but is compelled by the recent 
decisions of this Court.

The Fifth Circuit's use of statistical
comparisons does not conflict with decisions of

18/the Fourth Circuit,— 'as the Company contends. In 
Patterson v. American Tobacco Co. , where the per­
tinent employment practice involved the hiring of 
supervisors and where the employer, unlike Stock- 
ham, hired its supervisors from outside the plant, 
the sole issue was whether the standard for com­
parison should be the proportion of blacks in the 
entire labor force or the proportion in the labor
force category which includes supervisory person-

19/nel. 535 F.2d at 274-75.— ' In Roman v. ESB, Inc. ,

18/ See, Patterson v. American Tobacco Co., 535 
F.2d 257 (4th Cir.), cert. denied, 429 U.S. 920 
( 1976); Roman v. ESB, Inc. , 550 F.2d 1343 (4th 
Cir. 1976)(en banc).

19/ Even though the employer in Patterson hired 
a percentage of black supervisors higher than that 
in the labor force, the Fourth Circuit held that, 
while no affirmative injunction was required, the 
Company had violated Title VII with respect to the 
selection of supervisors from its own work force. 
Patterson v. American Tobacco Co., supra at 275.



11

the plaintiffs failed to demonstrate whether 
craftsmen or supervisors were selected by initial 
hire or by promotion.—  ̂ Accordingly, a compari­
son with the labor force was relevant. Signifi­
cantly, the Fourth Circuit also reviewed the 
assignment of blacks within the plant's work force 
and determined that, unlike this case, there was 
no substantial statistical imbalance and no his­
tory of segregation. 550 F.2d at 1353-54.

2. The Fifth Circuit's Decision Is Correct.

Stockham's assertion that the Fifth Circuit 
incorrectly exercised its function of appellate 
review in reversing factual and legal conclu­
sions of the district court requires little 
comment since the Fifth Circuit's exhaustively 
documented unanimous opinion is, itself, the best 
response. However, it is significant that Stock- 
ham ignores the principal factual reversal made 
by the Fifth Circuit. The district court found 
that "at no time" did Stockham assign employees 
by race (A 129, A 209), despite the unrebutted 
statistical showing that not one hourly job at

20/ The Fourth Circuit went so far as to state 
that "[t]he representation in this action was 
inadequate as to the class." 550 F.2d at 1356.



12

Stockham was integrated in 1965 (A 21) and the 
direct admissions by the plant manager, vice 
president, and several supervisors that there was 
job segregation at the Company (A 20-21). More­
over, the district court after three days of 
testimony directed plaintiffs' counsel not to 
inquire further into job segregation because the 
testimony was "cumulative" and "[i]t [job segre­
gation] doesn't need to be hammered into my head" 
(A 21 n.10).—  This finding of the lower court, 
and other findings reversed by the Fifth Circuit, 
are practically inexplicable except for the dis­
trict court's unfortunate practice of adopting, 
virtually verbatim, over 100 pages of the Com­
pany's proposed findings of fact and conclusions 
of law (A. 4-5 n. 1) .A?/ Cf. United States v. El 
Paso Natural Gas Co., 376 U.S. 651, 657 (1964).

21/ The district court also stated in response to 
argument by counsel for Stockham, "I believe Mr. 
Sims [Plant Manager] testified already and he was 
an adverse witness and I believe the situation 
about jobs by race is already clear. This is 
accumulative (sic)"(Fifth Circuit Appendix at 717).

22/ The Fifth Circuit noted that "92 percent of 
the district court's factual findings are identi­
cally or substantially the same as those the

(c ontd.)



13

The far-fetched nature of Stockham's argu­
ment is best exemplified by its assertion that 
the Fifth Circuit "far departed" from proper 
appellate review when it reversed the legal 
conclusion of the district court that Stockham was 
in "good faith" in integrating its segregated 
facilities in 1974 and that Stockham's efforts 
to integrate its facilities were frustrated by 
the EEOC's failure to perform its role of con­
ciliation (Pet. 18). Stockham does not explain 
how the maintenance of segregated bathrooms, cafe­
terias, and bath houses until 1974 demonstrated 
"good faith," nor does Stockham explain how the 
EEOC's failure to conciliate (if in fact it did) 
could have frustrated for so many years the 
Company's efforts to tear down some walls in its 
plant.—

22/ contd.
defendant Stockham suggested; while, 98.2 percent 
of the district court's conclusions of law are 
identically or substantially the same as conclu­
sions proposed by Stockham" (A 4).

23/ Counsel for plaintiffs are unaware of any 
other Title VII case where a defendant maintained 
segregated facilities until 1974. For example, 
at the large plant of United States Steel Corpora­
tion in Birmingham the facilities were fully

(contd.)



14 -

Stockham's last argument for the issuance of 
a writ of certiorari —  that the Fifth Circuit 
erred in refusing to hold that an analysis of 
the educational attainments of black and white 
workers rebutted plaintiffs' prima facie case —  
is trivial (Pet. 25-29). The evidence of educa­
tional attainment is not responsive to plaintiffs'

24/proof of intentional discrimination—  and unlawful 
facially neutral practices. Education was simply 
one of eight "factors" which, when taken together, 
defendant's expert testified, "explained" the 
earnings disparity between blacks and whites. How­
ever, as the Fifth Circuit's persuasive review 
showed, these factors incorporate the discrimina­
tory practices of the Company in their definition

23/ (contd.)
integrated in the early 1960s. United States v . 
United States Steel Corporation, 371 F.Supp. 1045, 
1055 (N.D.Ala. 1973), rev'd in part, 520 F.2d 1043 
(5th Cir.1975), cert, denied, 419 U.S. 817 (1976).

24/ In fact, the evidence as to educational 
attainment serves to emphasize the intentional job 
segregation at Stockham. According to Stockham's 
own evidence there were, in 1972, 100 blacks (as 
compared to 90 whites) who had 13-15 years of 
education and 674 blacks (as compared to 358 
whites) who had a high school education; yet there 
was not one black apprentice at the Company until 
April 1971, and not one black foreman until May 
1971 (Defendant's Exhibit 4, Fifth Circuit 
Appendix at 3872).



15

and thus, if anything, confirm the plaintiffs' 
prima facie case (A 40-42).

CONCLUSION

For the foregoing reasons the petition for a 
writ of certiorari should be denied.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
PATRICK 0. PATTERSON 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

BARRY L. GOLDSTEIN 
Suite 940
806 15th Street, N.W. 
Washington, D.C. 20006

DEMETRIUS C. NEWTON 
Suite 1722
2121 8th Avenue North 
Birmingham, Alabama 35203

Counsel for Respondents 
Patrick James, et al.