Lea v. Cone Mills Corporation Joint Appendix

    No. 89-387

3 n  tt)e Supreme Court of tfjc Uniteb s ta te d
October Term, 1989

Robert Poss, et al., petitioners

v .

Michael Howard, et al.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STA TES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS 
IN OPPOSITION

Kenneth W. Starr 
Solicitor General 

Stuart M. Gerson 
Assistant Attorney General

Robert S. Greenspan 
Peter R. Maier 

Attorneys
Department o f Justice 
Washington, D.C. 20530 
(202) 633-2217



QUESTION PRESENTED

Whether the court of appeals erred in rejecting petitioners’ 
challenge to a consent decree that was based upon a find­
ing that the plaintiffs had established a prima facie case of 
racial discrimination and that provided relief, insofar as 
possible, only to identified victims of racial discrimination.

(I)





TABLE OF CONTENTS

Page
Opinions below ...........................................................  1

Jurisdiction..................................................................  1

Statement ....................................................................  2
Argument ....................................................•...............  5
Conclusion ..................................................................  9

TABLE OF AUTHORITIES
Cases:

City o f  R ichmond  v. J.A . Croson Co., 109 S. Ct.
706 (1989).........................................................  5

Franks v. Bowman Transp. Co., 424 U.S. 747
(1976) ............................................................... 5

Holmes v. Continental Can Co., 706 F.2d 1144 (11 th
Cir. 1983) .........................................................  7

Howard  v. McLucas, 597 F. Supp. 1504 (M.D. Ga.
1984) ................................................................  2, 4

International Bhd. o f  Teamsters v. United States, 431
U.S. 324 (1977) ................................................  5, 8

Johnson  v. Transportation Agency, 480 U.S. 616
(1987) ...............................................................  6-7

Kirkland  v. New York State D ep’t o f  Corrections,
711 F.2d 1117 (1983), cert, denied, 465 U.S. 1005
(1984) ...............................................................  6

Local 28, Sheet Metal Workers v. EEOC, 478 U.S.
421 (1986).........................................................  7

Vanguards o f  Cleveland v. City o f  Cleveland, 753 
F.2d 479 (6th Cir. 1985), affd sub nom. Local 
Num ber 93, In t’l A ss’n o f  Firefighters v. City o f
Cleveland, 478 U.S. 501 (1986) ......................  7

Wygant v. Jackson Bd. o f  Educ., 476 U.S. 267 
(1986) ...............................................................  7

( H I )



IV

Constitution, statute, and rule: Page
U.S. Const. Amend. V ......................................  5
Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

et seq..................................................................  2
Fed. R. Civ. P. 23 ..............................................  2

1



3in tt)E Supreme Court of tfje Hmteb States*
October Term, 1989

No. 89-387

Robert Poss, et al., petitioners

v.

Michael Howard, et al.

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

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS 
IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-21a) 
is reported at 871 F.2d 1000. The opinion of the district 
court (Pet. App. 23a-41a) is reported at 671 F. Supp. 756. 
An earlier opinion of the court of appeals is reported at 782 
F.2d 956. Earlier opinions of the district court are reported 
at 597 F. Supp. 1501 and 1504.

JURISDICTION

The judgment of the court of appeals (Pet. App. 43a-44a) 
was entered on April 27, 1989. A petition for rehearing was 
denied on June 2, 1989. Pet. App. 45a-46a. The petition 
for a writ of certiorari was filed on August 31, 1989. The 
jurisdiction of this Court is invoked under 28 U.S.C. 
1254(1).

(1)



2

STATEMENT

1. Plaintiffs, a class of black employees employed at 
Warner Robins Air Logistics Center (Warner Robins), 
located near Macon, Georgia, filed this action on October 
31, 1975, seeking injunctive and monetary relief to remedy 
alleged discriminatory promotion practices, in violation of 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e 
et seq. In 1976, the district court certified the lawsuit as a 
class action on behalf of approximately 3,200 black 
employees.

In 1984, after substantial pre-trial proceedings and ex­
tensive discovery, the parties submitted to the district court 
a proposed consent decree terminating the action. At a 
fairness hearing held pursuant to Fed. R. Civ. P. 23, the 
district court received extensive evidence of past discrimina­
tion and concluded that plaintiffs had shown a prima facie 
case of employment discrimination through the use of 
statistical evidence of disproportionate racial impact. 
Howard v. McLucas, 597 F. Supp. 1504, 1513 (M.D. Ga. 
1984). According to that evidence, while blacks comprised 
14% of the workforce at Warner Robins in 1973, they then 
held only 3.3% of supervisory positions there. Pet. App. 
13a. The record also showed that black employees were 
employed disproportionately in low level positions and that 
they remained in those positions longer than white 
employees. Ibid. The evidence-showed that black employees 
were promoted in proportions less than their representation 
in the workforce or in lower grades of employment at 
Warner Robins. Id. at 4a.

Because candidates for competitive positions at Warner 
Robins during the period of alleged discrimination 
(1971-1979) were identified through a skills locator system, 
candidates were not required to apply for promotions. Pet. 
App. 3a. A computer automatically considered all minimally



3

qualified candidates for each vacancy and selected the top 
candidates based upon various criteria. Ibid. Ordinarily, 
employees were not notified when vacancies occurred or if 
they were considered but not selected to fill a vacancy. This 
system made identification of the specific victims of 
discrimination impossible. Ibid.

2. In an effort to settle this lawsuit, which had been in 
litigation for nine years at that time, the parties fashioned 
a victim-specific remedy for the alleged discrimination in 
promotions, and included it in a proposed consent decree. 
The proposed consent decree provided $3.75 million in 
backpay to a class consisting of qualified blacks employed 
at Warner Robins during the 1971-1983 period. Pet. App. 
5a. The proposed decree also established a system in which 
a limited number of anticipated promotions would be filled 
over a two-year period from a list of qualified black 
employees who had been employed at Warner Robins and 
were the most likely victims of discrimination during the 
1971-1979 period. Id. at 5a-6a & n.5.

Based upon a conservative promotional analysis prepared 
by plaintiffs, the parties identified 240 promotions most like­
ly to have been lost to class members and identified 38 
specific source grades in which discrimination had most like­
ly occurred. Pet. App. 5a.1 To ensure that this portion of 
the decree benefited actual victims of discrimination, the 
parties restricted those persons eligible to receive one of the 
240 promotions to employees who began employment at 
Warner Robins before January 1, 1980. Id. at 34a. To fur­
ther lessen the impact of this aspect of the decree on third

1 The 240 promotional opportunities affected by the proposed con­
sent decree constituted a small fraction of the total of 3,600 anticipated 
vacancies overall and 1,600 projected vacancies in the job classifica­
tions from which the 240 promotional opportunities were drawn. Pet. 
App. 40a.



4

parties, the proposed consent decree stipulated that the pro­
motions to class members would be made for every other 
next available vacancy in the specified positions until all the 
promotional relief had been completed. Id. at 5a-6a. Thus, 
every second vacancy arising in the specified positions would 
remain available to any qualified candidate. Furthermore, 
class members promoted under the decree were required to 
satisfy applicable standards for the position under Federal 
Civil Service rules, regulations, and qualifications standards. 
Id. at 5a.

3. Petitioners are 137 white employees at Warner Robins 
who objected to the proposed consent decree and presented 
their objections at the fairness hearing. Howard v. McLucas, 
597 F. Supp. 1501, 1504 (M.D. Ga. 1984). The district court 
allowed petitioners’ counsel to participate fully at that hear­
ing by presenting evidence and argument and examining 
witnesses, but the district court denied petitioners’ motion 
to participate as intervenorS. Pet. App. 6a. Rejecting peti­
tioners’ objections that the relief was overbroad, as well as 
objections by some class members that the relief did not 
go far enough, the district court approved the consent decree 
and entered a final judgment. Ibid.

Petitioners appealed from the district court’s denial of 
their motion to intervene, and the court of appeals reversed, 
ruling that petitioners had a limited right to intervene. 
Howard v. McLucas, 782 F.2d 956 (11th Cir. 1986). The 
court vacated those portions of the consent decree that had 
not yet been implemented, and remanded the case for fur­
ther proceedings. Ibid.1 After allowing the petitioners to 
intervene on a limited basis and permitting further discovery, 2

2 At the time the Eleventh Circuit issued its mandate in Howard I, 
the Air Force had already made 169 of the 240 promotions to class 
members under the consent decree. Pet. App. 21a.



5

the district court considered and rejected petitioners’ mo­
tion to set aside the promotional components of the pro­
posed consent decree, adopted the decree, and entered final 
judgment. Pet. App. 7a-8a. On appeal, the court of appeals 
affirmed, upholding the decree against petitioners’ claims 
that it violated their right to equal protection under the Fifth 
Amendment and exceeded the relief available under Title 
VII. Pet. App. 10a-20a.3

ARGUMENT

1. Petitioners urge this Court to review the question 
“[wjhether a consent decree which sets aside promotional 
positions solely for blacks based upon a predicate of a 
statistically significant underutilization of blacks violates 
Title VII and the Constitution.” Pet. i, 11. This case, 
however, is not an appropriate vehicle to address that ques­
tion, for several reasons.

To begin with, the predicate for the entry of the consent 
decree was not, as petitioners state, simply evidence of “a 
statistically significant underutilization of blacks.” Rather, 
both the district court and the court cf appeals found that 
the statistical evidence in this record showed that the plain­
tiffs had established a prima facie case of discrimination, 
Pet. App. 13a-14a, 27a-29a, of the type that this Court had 
previously found adequate to support a race-conscious 
remedy. See International Bhd. o f  Teamsters v. United 
States, 431 U.S. 324, 359 (1977); Franksw. Bowman Transp. 
Co., 424 U.S. 747, 772 (1976).4 Second, there is no con-

J The court subsequently denied a petition for rehearing and a sug­
gestion for rehearing en banc. No member of the court asked for a poll 
on the question whether en banc rehearing was appropriate. Pet. App. 
45a.

4 In City o f Richmond v. J.A. Croson Co., 109 S. Ct. 706 (1989), 
upon which petitioners rely, the Court found that the record did not



6

flict among the circuits on the question addressed by the 
lower courts. The decision below is consistent with the Sec­
ond Circuit’s decision in Kirkland v. New York State Dep't 
o f  Corrections, 711 F.2d 1117, 1130-1131 (1983), cert, 
denied, 465 U.S. 1005 (1984), and petitioners have cited no 
court of appeals’ decision to the contrary.

Moreover, petitioners mistakenly suggest that the con­
sent decree set aside promotional positions solely on the 
basis of race. Under that decree, only certain members of 
the class are eligible to receive affected promotions. While 
only black employees are eligible for the promotions under 
the decree, the decree requires that the promotee have been 
employed at Warner Robins between 1971 and 1979 in a 
position that was likely to have been affected by 
discriminatory promotional practices alleged by plaintiffs, 
and that he is fully qualified for appointment to the posi­
tion at the time of his promotion. Pet. App. 34a-35a. Thus, 
while the remedy petitioners challenge was race-conscious, 
it was not a remedy that made promotions available to per­
sons on the basis of race alone.5

establish a prima facie case of discrimination by the private construc­
tion industry in Richmond, much less any discrimination by the city 
itself. Id. at 724. Here, the lower courts found a prima facie record 
of discrimination by the Air Force. In addition, the lower courts’ deci­
sions were handed down in an unusual factual context. Warner Robins’s 
promotional scheme used a skills locator system, in which every 
employee was automatically considered for every vacancy, rather than 
an announcement system, under which employees must apply for a pro­
motion. Accordingly, there were no applicants for promotions, and 
employees were not notified that vacancies existed or that they had been 
passed over for promotion. There were also no records kept showing 
the employees who were considered for a specific job promotion. 597 
F. Supp. at 1509, 1514.

s Thus, this case resembles the relief stage of a case involving a 
Teamsters-style relief hearing, where one must be a member of the af­
fected class to be eligible. See also Johnson v. Transportation



7

In suggesting that this Court review the constitutionality 
of the consent decree as an affirmative action plan, peti­
tioners overlook the fact that the consent decree was not 
an affirmative action plan but was instead an effort to craft 
a victim-specific remedy for past discrimination at Warner 
Robins. Pet. App. 19a. Set Local 28, Sheet Metal Workers 
v. EEOC, 478 U.S. 421,474 (1986). In this case, as the court 
of appeals noted, “the district court first held that the pro­
motional relief was not unlawful because it provided a 
remedy to actual victims of discrimination.” Pet. App. 7a.

2. Alternatively, petitioners urge this Court to grant re­
view to consider whether the consent decree was narrowly 
tailored so as to comport with Title VII and the Constitu­
tion. Pet. 21. The record here shows that this contention 
lacks merit and therefore does not warrant review.

Petitioners assert that the promotional relief in the con­
sent decree was not narrowly tailored because it was not 
confined to the actual victims of discrimination.6 Both 
courts below explained, however, that, given the nature of 
the Warner Robins promotion system, the decree was 
designed to afford relief only to actual victims of past 
discrimination insofar as that was possible under the cir

Agency, 480 U.S. 616 (1987) (membership in the disadvantaged class 
of women was only one of several factors upon which employment deci­
sions would rest under an affirmative action plan).

6 Although petitioners claim that the court of appeals should have 
reviewed this question de novo, it properly reviewed the decree for abuse 
of discretion. See Vanguards o f Cleveland v. City o f Cleveland, 753 
F.2d 479, 481 (6th Cir. 1985), a ffd  sub nom. Local Number 93, Int’l 
Ass’n o f Firefighters v. City o f Cleveland, 478 U.S. 501 (1986); Holmes 
v. Continental Can Co., 706 F.2d 1144, 1147 (11th Cir. 1983). In addi­
tion, once the prima facie case of discrimination was established, peti­
tioners had the burden of proof to show that the remedy proposed was 
unconstitutional. See tVygant v. Jackson Bd. o f  Educ., 476 U.S. 267, 
277-278 (1986) (plurality opinion).



8

cumstances, a finding petitioners were unable to challenge 
as to a single class member. Pet. App. 19a, 38a. The fact 
that in these unusual circumstances there necessarily re­
mained some degree of uncertainty as to the identity of the 
actual victims of past discrimination does not invalidate the 
decree. See International Bhd. o f  Teamsters, 431 U.S. at 
372. The district court was entitled to broad discretion in 
approving the decree because of its first-hand experience 
with the parties and its familiarity with the voluminous 
record upon which they based this settlement.

Petitioners’ specific charges against the approval of this 
consent decree by the courts below also lack merit. Peti­
tioners claim that the district court did not consider race- 
neutral remedial action as an alternative to the promotional 
relief adopted. Pet. 22-24. But petitioners did not urge the 
district court to adopt specific race-neutral alternatives in 
lieu of the provisions in the consent decree. The district court 
therefore did not abuse its discretion on this count. 
Moreover, petitioners overlook the fact that the Air Force 
used a variety of race-neutral measures at Warner Robins 
to combat discrimination from 1971 to 1979. The prima 
facie showing that those race-neutral measures did not pre­
vent discrimination in promotions from occurring suggests 
that such measures were not a wholly satisfactory remedy 
for past discrimination. Both courts below rejected the pro­
posals that petitioners urged as a substitute for the promo­
tional portion of the decree on the ground that less intrusive 
approaches were not workable or would not provide the 
plaintiffs with full relief within a reasonable time. Pet. App. 
16a, 40a-41a. The courts below found that the decree pro­
vided a flexible plan of short duration that would have only 
a relatively diffuse impact on third parties, including peti­
tioners. Id. at 18a, 39a-41a.7 Those fact-bound determina-

7 For example, the decree set aside only 240 promotions for members 
of the plaintiff class, which constitutes only a small percentage



9

tions do not warrant further review. Under these cir­
cumstances, this case is an inappropriate vehicle to resolve 
the broad remedial issues that petitioners raise.8

CONCLUSION

The petition for a writ of certiorari should be denied. 
Respectfully submitted.

Kenneth W. Starr 
Solicitor General 

Stuart M. Gerson 
Assistant Attorney General 

Robert S. Greenspan 
Peter R. Maier 

Attorneys

November 1989

of the total number of Warner Robins promotions. Pet. App. 7a, 23a. 
Once those promotions are made, no others are required. Id. at 39a. 
In the ten months that the decree was in effect, 169 of the 240 promo­
tions were made, and the district court expected that the remaining 71 
positions would be filled in much less than one year. Id. at 39a & n.2. 
And of the 137 named intervenors, 43 had been promoted and 56 were 
not eligible for promotions to the target positions for one reason or 
another. Id. at 8a n.6.

8 The court of appeals concluded its analysis by acknowledging that 
the legal grounds on which it based its opinion “may be considered dicta” 
because its prior decision “arguably foreclosed” petitioners’ contention 
that the plaintiffs had made an inadequate showing of past discrimina­
tion. Pet App. 20a.

☆  U S. GOVERNMENT PRINTING OFFICE: 1989 -  262-203/00601