Johnson v. The Goodyear Tire & Rubber Company Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT
"73.- L 7 12-NO. ft-K>2V7 -60 -11-899-

R. L. JOHNSON, et al.,
Plaintiffs-Appellants,

v.
THE GOODYEAR TIRE & RUBBER COMPANY, 
and INTERNATIONAL UNION OF 
OPERATING ENGINEERS, AFL-CIO, LOCAL UNION NO. 347,

Defendants-Appellees.

Appeal from The United States District court for The 
Southern District of Texas, Houston Division

BRIEF FOR PLAINTIFFS-APPELLANTS

GABRIELLE K. MCDONALD 
MARK T. MCDONALD

1834 Southmore Blvd. Suite 203
Houston, Texas 77004

JACK GREENBERG 
WILLIAM La ROBINSON 
Ca VERNON MASON 
MORRIS J. BALLER

10 Columbus Circle 
Suite 2030
New York, N.Y. 10019

ATTORNEYS FOR PLAINTIFFS- 
APPELLANTS

f



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 73-1712

R. L. JOHNSON, et al.,
plaintiffs-Appellants, 
v.

THE GOODYEAR TIRE & RUBBER COMPANY, 
and INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, LOCAL
UNION NO. 347,

Defendants-Appellees.

CERTIFICATE
The undersigned counsel for plaintiffs-appellants 

R. L. Johnson, et al. in conformance with Local Rule 13 (a) 
certifies that the following listed parties have an 
interest in the outcome of this case. These representations 
are made in order that judges of this Court may evaluate 
possible disqualification or recusal:.

1. R. L. Johnson, Appellant.
2. Class of black employees and prospective em­

ployees of Goodyear Tire & Rubber Company whom appellant
represents.

3. Goodyear Tire & Rubber Company, appellee.
4. international Union of Operating Engineers, 

AFL-CIO, Local Union No. 347, appellee.



TABLE OF AUTHORITIES ................................... iv
STATEMENT OF ISSUES PRESENTED FOR REVIEW ...............  1
STATEMENT OF THE CASE ..................................  2
STATEMENT OF THE FACTS .................................  5

A. Background Information ........... ........... 5
B. The Defendants' Discriminatory Practice .......  6

1. Hiring and Job Assignment Policies ......  6
2. Educational and Testing Requirements ....  8
3. Seniority and Transfer ..................  12

C. Plaintiff's Individual Claim ...................  13
ARGUMENT

I. THE DISTRICT COURT ERRED IN FINDING THAT THE
DEFENDANT COMPANY'S TESTING REQUIREMENTS DID
NOT DISCRIMINATE AGAINST BLACK EMPLOYEESHIRED AFTER 1957 ..............................  14
A. Plaintiff's Statistical Evidence Over­

whelmingly Indicates That The Defendant 
Company's Testing Requirements Had a 
Severely Disproportionate Impact On
Blacks Hired After 1957 ................. 15

B. Since The Defendant Company's TestingRequirements Were Not Validated, The 
District Court Erred In Finding That These 
Requirements Did Not Discriminate Against 
Blacks Hired After 1957 ................. 16

C. The District Court Applied ImproperStandards of Law In Reaching Its Erroneous Conclusion ..............................  17
D. This Court Should Direct The Entry Of

Appropriate Relief From The Effects Of The 
Defendant Company's Unlawful Testing And 
Educational Requirements ................  19

TABLE OF CONTENTS
Page



Page
II. THE DISTRICT COURT ERRED IN FINDING THAT THE 

DEFENDANT COMPANY'S DISCRIMINATORY HIRING 
PRACTICES DID NOT EXTEND BEYOND JULY 2, 1965 ___ 21
A. The District Court Erred In Finding 

That The Plaintiff's Statistics Did 
Not Make Out A Prima Facie Case Of 
Hiring Discrimination Subsequent ToJuly 2, 1965 .............................  21

B. The District Court Erred In Finding 
That The Defendant Company's Statistics Constituted A Defense To Plaintiff's 
Claim of Discrimination In HiringBeyond July 2, 1965 .... .................. 26

C. The District Court Erred In Finding That 
The Defendant Company Had Not Discriminated 
In Hiring Subsequent To July 2, 1965 In 
Light Of Its Own Findings That The Defendant 
Company Maintained Until April 22, 1971,Unvalidated Educational And Testing 
Requirements That Excluded Blacks ........  28

III. THE DISTRICT COURT ERRED IN FAILING TO AWARD
CLASS-WIDE BACK PAY ............................  30
A. Since The District Court Found That Members Of The Class Suffered And Are 

Continually Suffering An Economic Loss 
As A Result Of The Defendant Company's 
Discriminatory Employment Practices, It 
Erred In Failing To Award Class-Wide
Back P a y .................................  30

B. The District Court Failed To Enunciate Any
Reason Why It Awarded The Named Plaintiff 
Back Pay, And Refused To Award Back Pay To 
Fourteen Other Black Labor Department 
Employees Hired Prior To 1957 .............  32

IV. THE DISTRICT COURT ERRED IN LIMITING THE PERIOD 
FOR WHICH THE NAMED PLAINTIFF'S BACK PAY CAN BE 
AWARDED TO NINETY DAYS PRIOR TO THE FILING OF 
THE EEOC CHARGE ............................... 33
A. The Statute Of Limitations For Plaintiff's

§1981 Action .............................  34
B. The 90 Day Filing Requirement Of 42 U.S.C. 

2000e-5(d) Is Not A Limitation On The 
Appropriate Relief 35



Page

CONCLUSION..............................................  36
CERTIFICATE OF SERVICE ..................................  38

iii



TABLE OF AUTHORITIES

Page

Bing v. Roadway Express, Inc., 444 F.2d 687
(5th Cir. 1971).................................. . 25

Boudreaux v. Baton Rouge Marine Contracting Co.,
437 F.2d 1011 (5th Cir. 1971).................... . 34

Brown v. Gaston Dyeing Machine Co., 457 F.2d
1377 (4th Cir. 1972) cert, denied 41 U.S.
Law Week 32 53 ( 1 9 7 2 ) ............................ . 28,34

Culpepper v. Reynolds Metal, 421 F.2d 888
(5th Cir. 1970) ............................ . 34

Griggs v. Duke Power Company, 401 U.S. 424 (1971) . . . .. 15,17,29
Harkless v. Sweeny, 427 F.2d 319 (5th Cir. 1971) . . . . .. 31
Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir.

1968)............................................ .. 33
Johnson v. Goodyear Tire & Rubber Company, 349

F. Supp. 3 (S.D. Texas 1972) .................... . 4
Jones v. Lee Way Motor Freight Co., 431 F.2d 245

(10th Cir. 1970), cert, denied 401 U.S. 954 (1971). . 28
Local 53, Int'l. Ass'n of Heat & Frost Insulators and 

Asbestos Workers v. Vogler, 407 F.2d 1047 (5th 
Cir. 1969) ...................................... . 21

Moody v. Albermarle Paper Company, F.2d___(4th Cir.
No. 72-1267, Feb. 20, 1973) ...................... . 15,17

Parham v. Southwestern Bell Telephone Co., 433
F.2d 421 (8th Cir. 1970) ........................ . 28

Rowe v. General Motors, 457 F.2d 348 (5th Cir. 1972) . . . 18
United States v. Dillon Supply Co., 429 F.2d 800

(4th Cir. 1970) .................................. . 25
united States v. Georgia Power Company, ___F.2d___ (5th Cir

No• 71-3447, Feb. 14* 1972) « • • • • • • • • • • • . 9,17,19,20,25,29,31,34,35

IV



TABLE OF AUTHORITIES (Contd.) Page

United States v. Hayes International Corp., 456
F. 2d 112 (5th Cir. 1972) ....................  25,27

United States v. Jacksonville Terminal Co.,
451 F .2d 418 (5th Cir. 1972) cert, denied 
4 EPD f7774 .................................  9,17,25

Statutes and Regulations
28 U.S.C. §1291 ..................................  2
Civil Rights Act of 1866, 42 U.S.C. §1981 ........  3
Civil Rights Act of 1964, Title VII ..............  3
42 U.S.C. §§2000e et seq........................... 3
42 U.S.C. §2000e-5(d)   34,35
42 U.S.C. §2000e-5(g) ............................  31
42 U.S.C. §2000e-6(a) ............................  31
29 C.F.R. §§1607.3 - 1607.14 .....................  9,18

v



STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Whether the District Court erred in ruling that 
the defendant Company's testing requirements did 
not discriminate against black employees hired 
after 1957?

2. Whether the District Court erred in ruling that 
the defendant Company's discriminatory hiring 
practices did not extend beyond July 2, 1965?

3. Whether the District Court erred in failing to 
award class-wide back pay?

4. Whether the District Court erred in limiting back 
pay to a period of ninety days prior to the filing 
of the charge with the Equal Employment Opportunity
Commission?



STATEMENT OF THE CASE

This case of racial discrimination in employment comes
here on appeal from a final judgment of the United States District
Court for the Southern District of Texas, Houston Division entered

1/November 10, 1972.(70a) This appeal presents issues arising 
from the failure of the Court below to follow the settled law of 
the Supreme Court and of this Circuit and from its failure to grant 
relief from the effects of defendant's racially discriminatory 
hiring, placement transfer and promotion policies. This Court 
has jurisdiction of the appeal under 28 U.S.C. §1291.

On May 4, 1967, plaintiff-appellant (hereinafter plaintiff 
or R.L. Johnson) filed a charge of employment discrimination against 
the defendant-appellee Good year Tire & Rubber Co. (hereinafter the 
"Company" or "Goodyear") and against defendant-appellee Local 347 
of the International Union of Operating Engineers (hereinafter 
"Local 347") with the Equal Employment Opportunity Commission 
pursuant to §706(a) of Title VII of the 1964 Civil Rights Act. 
(51a-52a). On October 23, 1968 the Commission found reasonable 
cause to believe that Goodyear's testing requirements discriminated 
against blacks and therefore violated the Act. (51a). After con­
ciliation efforts had failed, plaintiff received his right to sue
letter on August 8 1969.(723a)

1/ This form of citation is to pages of the Appendix.

2



Plaintiff timely filed this suit as a 23(b)(2) class
action on behalf of himself and all other similarly situated black 
employees under the 1866 Civil Rights Act, 42 U.S.C. §1981, and 
Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et seg. 
on September 17, 1969. (44a). Plaintiff sought injunctive relief
and back pay due to the Company's discriminatory employment 
practices. (Ibid) In June 1971 present counsel filed a motion
to be substituted for prior counsel retained by the plaintiff.
(14a-15a). This motion was granted in an order of July 1971.
On September 15, 1971 plaintiff moved to amend his complaint and 
join as defendant, Local 347 of the International Union of Operating 
Engineers. (18a-22a). This motion was granted in October 1971 (26a), 
and subsequently plaintiff filed his first amended complaint.(27a-33a).

In October 1971 defendant Local 347 filed a complaint and 
sought to enjoin defendant Goodyear from amending the seniority 
provision in the collective bargaining agreement by instituting a 
policy that would have allowed black employees to transfer out of 
the labor department and retain whatever seniority they had previously 
acquired.(46a-47a). The actions were consolidated and on November 
19, 1971 the District Court preliminarily enjoined the Company's 
proposed changes in the seniority system pending trial on the merits 
of the two causes of action. (47a).

Trial was held before the Honorable Carl 0. Bue, Jr. on 
December 15, 16, 17 and 20, 1971. (82a-716a). Following submission
of post-trial pleadings, the District Court on August 10, 1972

3



handed down its memorandum opinion and findings of fact and con-27
elusions of law. (43a-69a). The Court found that black employees 
hired before 1957 were the victims of discrimination in that they 
were discriminatorily assigned to the labor department, and then 
kept there by the Company's testing and educational requirements. 
(51a). The Court also found that as to the pre-1957 black employees, 
the seniority policies discriminated against them by "locking them" 
into the labor department since to transfer would have resulted in 
a forfeit of accrued seniority. (Ibid.) The Court permanently 
enjoined the use of any testing or educational requirements as to 
the pre-1957 black employees; granted them remedial seniority equal 
to their plant seniority through their first transfer; and granted 
back pay to R.L. Johnson - the named plaintiff - from ninety days 
prior to the filing of his complaint with the EEOC until the entry 
of judgment. (66a-68a).

The Court also found that black employees hired into the 
labor department from 1957 up to July 2, 1955 were victims of hiring 
discrimination and that the educational requirement for transfer to 
or initial employment in the previously all-white departments dis­
criminated against blacks. (62a). The Court granted these employees 
remedial seniority and permanently enjoined any educational require­
ments as to any blacks unless such requirements had received EEOC 
validation. (66a-68a).

2/ The opinion is reported as Johnson v. Goodyear Tire & Rubber 
Company, 349 F.Supp.3 (S.D. Texas 1972).

4



The Court found that hiring discrimination did not extend 
beyond July 2, 1965 and that Goodyear's testing requirements did 
not discriminate against blacks hired after 1957. (59a). The Court 
also found that the statute of limitations had expired for any dis­
criminatory hiring practice occuring prior to July 2, 1965.(Ibid.) 
Judgment was entered November 10, 1972 and the plaintiff filed his 
Notice of Appeal the same day. (70a-76a).

STATEMENT OF FACTS

A . Background Information
The District Court found that Goodyear hired the named 

plaintiff, R.L. Johnson, a black man, in the job classification 
of laborer on September 18, 1944.(51a). For his entire employment 
he has worked in the Labor Department, has never transferred to a 
department other than Labor, and has never taken any of the dis­
criminatory tests utilized by the defendant Company. Plaintiff 
has completed 11 years of school, and has a diploma of completion 
that is accepted by the defendant Company to be the equivalent of 
a high school degree. (515a).

Goodyear's Houston plant is devoted exclusively to the 
production of synthetic rubber. (48a). The plant is divided into 
eight divisions or departments: Production, Utilities, Shipping and 
Traffic, Receiving and Stores, the Laboratory or Process Control 
Chemists, Oiler Group, Fire Department, and the Labor Department.(Ibid.)

_ 5 _



I

The defendant Company as of the trial date employed 405
whites and 124 blacks. Twelve of the white employees worked in
the Labor Department whereas thirty-two of the black employees

XOSworked in Labor. -(822*-; 8I-9a)-> The District Court found and it was 
undisputed, that the employment positions in the Labor Department 
were composed of the least skilled and lowest paid positions in 
this plant. (48a). The average wage for white employees is $4.68 
an hour, and $4.32 an hour for blacks, resulting in an annual 
average pay difference between white and black employees of $748.80. 
(805a-806a) .

B . The Defendants' Discriminatory Practices.
1. Hiring and Job Assignment Policies

Prior to 1962 it was the admitted practice of the defendant 
to hire only black employees for the Labor Department and to hire 
only white employees for any non-Labor Department positions. (48a; 
599a; 639a). The first black was hired into a non-Labor Department 
job in 1962 and the first white was hired into a Labor Department 
job in 1965. (514a; 515a; 540a); 549a). The defendant Company did
not place more than six whites into the Labor Department until 1971. 
(514a).

This policy of placing blacks into the Labor Department 
and whites into the other departments has continued. Of the 109 
blacks employed from 1957 through December 10, 1971, 53 were initially 
placed in the Labor Department whereas of the 274 whites hired during 
the same period only 19 were assigned to the Labor Department. (84r9«; 
832*) . In 1971 the defendant Company instituted a policy of

- 6 -



placing all new employees in the Labor Department. (92a).

From 1965 through 1̂ 7|>, 42% or (5̂ ) of all the new black 
employees were assigned to Labor, whereas for the same six year 
period only 19 or 4% of all the new white employees were placed in 
Labor. (817a-818a; 821a-822a). The following chart illustrates 
that from the period 1965 through 1970, 35 or 84% of the new 
employees hired into the Labor Department were black:

Employees Hired Into Labor Initially
Year 1965 1966 1967 1968 1969 1970 Total %
Whites 0 .0 0, 1 4 1 6 16
Blacks 9 2 5 4 & 9 35 84
(819a; 822a)

Mr. F.L. Vanosdall, personnel manager for the defendant 
Company, testified that prior to April 1971, new employees were 
assigned to departments in the following percentages:

Production ...................  75%
Shipping and Traffic .........  10%
Laboratory ...................  8%
Labor ........................  5%
Receiving and Stores .........  1 - 5 %
Oiler ........................  less than 3%
Utilities ....................  less than 1% (89a-91a)

This chart indicates that prior to April 1971 only 5% of all new 
employees were initially placed in Labor, but as illustrated above 
over 40% of the new black employees were assigned to the Labor 
Department.

7



Black people constitute 24% of the total Houston Labor 
Force (402a) and from 1966 through 1970 blacks constituted res­
pectively 8%, 11%, 12%, 14%, and 13% of the defendants' total work 
force. (817a-819a; 821a-841a).

At all times relevant to this lawsuit the defendant Company 
has been a government contractor subject to Executive Order 11246 
which mandates an affirmative action program to recruit minorities. 
Nevertheless, the defendant Company never contacted an agency 
designed to refer minority applicants until it contacted the Urban 
League in July, 1971. (511a; 494a-495a).

The District Court found that the defendant Company dis­
criminated in hiring prior to 1965 but found that it did not dis­
criminate in hiring after July 2, 1965. (58a; 60a-61a). The Court 
made this finding in total disregard of testimony from Mr. Vanosdall, 
that it was the Company's practice not to employ whites in the Labor 
Department until September 7, 1965.(539a).

2. Educational and Testing Requirements
The District Court found that in 1957 the defendant imposed 

a high school degree requirement as a prerequisite to initial 
employment or transfer into all non-Labor Department positions.
(61a). The Court also found that this educational requirement 
has never been validated according to the requirements of the EEOC

8



guidelines set forth in 29 C.P.R. §§1607.3-1607.14. (Ibid.)

This high school degree requirement remained in effect 
until April 22, 1971, when it was deleted at the insistence of the 
Atomic Energy Commission and the Office of Federal Contract Compliance. 
(92a; 444a). On two earlier occasions, the requirement was relaxed 
at the insistence of the AEC and OFCC. (106a). First, in 1968 all 
employees hired in the Labor Department prior to 1957 were given the 
opportunity to transfer to other departments if they had a seventh 
grade education and could pass the defendant Company's discrimina­
tory tests. (48a). The Court found that this was a useless gesture 
since no minority group employee could pass the tests. (Ibid.) Then 
in 1969 the defendant Company dropped the testing requirement for 
employees hired prior to 1957. (48a-49a). Finally, in 1971
following the repeated demands of the OFCC and AEC that the de­
fendant change its discriminatory educational and testing policies, 
the Company abolished the educational and testing requirements, 
and permitted labor department employees hired prior to September 
7, 1965, to transfer and retain their Labor Department seniority.
(49a) .

3/ These requirements of course were adopted as the legalstandards in this Circuit in United States v. Georgia Power,
___F.2d____, (No. 71-3447, Feb. 14, 1973); United States v.
Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1972), 
cert, denied 4 EPD f7774, and therefore the non-validation 
of this requirement means ipso facto that the requirement 
was unlawful, in light of the requirement’s disproportionate 
impact on blacks.

3/

9



The adverse impact of the defendant Company's educational 
requirements is clearly illustrated by a comparison of educational 
attainments of black and white Texas residents. In 1960 the median 
number of years of school completed by whites, 14 years of age or 
over, was 10.7 years and for non-whites, 8.7 years. (757a-759a).
And in 1966, 49% of the black males in Texas between the ages of 
25 to 29 years old had completed 4 years of high school as compared 
with 73% of the whites (760a-761a).

Trial testimony indicated that not only did the educational 
requirements have a disproportionate impact on blacks, but also 
those requirements were applied unevenly and irregularly. (243a; 
249a-250a; 366a-367a; 394a-395a). The District Court found that 
the educational requirement precluded black employees from ever 
attaining the equivalent seniority status and commensurate employ­
ment advantages that white employees who were hired at the same 
time could attain. (60a). Accordingly, the court permanently 
enjoined the use of educational requirements as a condition of ; 
transfer to non-labor jobs. (66a-67a).

Along with the requirement of a high school degree, the 
District Court found that in 1957 the defendant Company adopted 
the requirement of achieving satisfactory test scores.(47a). This 
requirement applied to any applicant for employment to any non­
labor (i.e. white) department and to any employee seeking a transfer 
to any non-labor department. (Ibid.) The defendant Company 
stipulated in a pre-trial order, and the District Court also found,

- 10 -



that this testing requirement has never been validated within the 
terms of the EEOC guidelines. (60a; 522a). One of the principal 
tests employed by the defendant Company was the Wonderlic personnel 
test, which as will be discussed infra (p.15),is patently dis­
criminatory against blacks. As with the educational requirement, 
the District Court found that the testing requirement was applied 
to pre-1957 Black Labor Department employees seeking to transfer, 
but has never been applied to white employees hired prior to 1957. 
(60a).

The adverse impact of the defendant Company's discrimina­
tory tests is vividly illustrated by the comparative failure rates 
of blacks and whites. 52% (132 of 274) of the blacks failed the 
tests but only 15% (126 of the 848) whites failed. (807a-816a). 
Moreover, whereas only 25% of the whites not hired during this 
period were rejected for failing the test requirements, 62% of the 
blacks not hired were rejected for failing the tests. (Ibid.) As 
with the educational requirement, testimony at trial indicated that 
the test requirements were applied irregularly to the detriment of 
black applicants and employees. (534a-536a).

The District Court found that the effect of the defendant 
Company's use of these discriminatory testing and educational re­
quirements was to lock into the Labor Department those black 
employees who were segregated initially into that department as 
a result of the defendant Company's racially discriminatory hiring 
practices. (60a) .

11



3. Seniority and Transfer.
The defendant Company employed a divisional seniority 

system at its Houston Plant. Mr. F.L. Vanosdall, the defendant 
Company's personnel manager testified at the trial that the 
employees' seniority within a division determines promotions, 
layoffs, rate of pay, and vacation time. (96a). Mr. Vanosdall 
also testified that prior to the July 24, 1970 Labor Agreement 
there was no contract provision to encourage Labour Department 
employees to transfer to a more skilled, better paying job in 
another department. (97a) .

The District Court found that the transfer system employed 
by the defendant Company and acquiesced in by the defendant Local 
347 had the effect of locking into the Labor Department the black 
employees initially segregated on a racially discriminatory basis, 
and that to transfer to a non-Labor Department job, a black employee 
had to forfeit his previously earned seniority rights in the Labor 
Department. (62a). The Court also found that the defendant Company 
offered no proof of a substantial business necessity for this system. 
(Ibid.) As a result of this discriminatory seniority system, white 
applicants hired in non-Labor Department positions at the same time 
black applicants were segregated into the Labor Department maintained 
a distinct advantage over fellow black employees, an advantage 
predicated solely on past racial discrimination.

The District Court fashioned a decree granting remedial 
seniority to all Labor Department employees hired prior to

12



September 7, 1965. The decree gives these employees plant wide 
seniority equivalent to their Labor Department seniority through 
their first transfer, but only through their first transfer (64a-67a).

It is clear that the defendant Company's seniority system 
had a deterrent effect on the plaintiff and the class he represents, 
as evidenced by the District Court's holding and also by the fact 
that the first member of the "affected class" (pre-1957 Labor 
Department employees) to transfer out of the Labor Department did 
so on July 21, 1969 (529a-530a).

The cost of defendant's discriminatory seniority and 
transfer system to black employees was considerable. As the 
District Court found, the jobs in the Labor Department are the 
least skilled and lowest paying jobs in the defendant Company’s 
plant. (48a). Black employees, the majority of whom are employed 
in the Labor Department, earn an average of $700 less than white 
employees (805a-806a). The earning disparity between blacks hired 
prior to 1957 and whites hired prior to 1957 is even greater; and 
as the District Court found, white employees who were hired at 
about the same time as Plaintiff and the class of black employees 
he represents have earned more money since the effective date of 
Title VII simply because the whites were placed inititally in the 
departments containing the higher paying jobs. (60a).

C. Plaintiffs Individual Claim
Plaintiff R.L. Johnson, a black employee of the defendant

13



Company seeks on behalf of himself and other black employees 
similarly situated injunctive relief and back pay as a result 
of the discriminatory employment practices of the defendant 
Company and Local 347. (44a). Plaintiff's claim is that as a 
consequence of the employment practices and collective bargaining 
agreement entered into by the defendants, black employees have 
been in the past and continue to be segregated by assignment to 
the Labor Department. (Ibid.) As a lifelong employee in the 
Labor Department, he fully typifies this claim. Finally, plaintiff 
contends that the defendant Company's testing and high school educa­
tional requirements as well as the seniority provision in the appli­
cable collective bargaining agreement serve to perpetuate this 
hiring discrimination. (Ibid.)

ARGUMENT
I. THE DISTRICT COURT ERRED IN FINDING 

THAT THE DEFENDANT COMPANY'S TESTING 
REQUIREMENTS DID NOT DISCRIMINATE 
AGAINST BLACK EMPLOYEES HIRED AFTER 1957

A. Plaintiff's Statistical Evidence Overwhelmingly 
Indicates That The Defendant Company's Testing Re­
quirement Had A Severely Disproportionate Impact On 
Blacks Hired After 1957.

The District Court found that plaintiff's evidence failed 
to indicate that the testing requirement disqualified black employees 
hired after 1957 at a substantially higher rate than whites. (60a).

14



This finding is plainly incorrect. The only data available on 
the defendant Company's tests shows that from January 1, 1969, 
through October 30, 1971 of the 274 blacks taking the tests,
132(49%) failed; whereas during this same period of the 848 whites 
taking the tests only 126 (15%) failed. (807a-816a). This showing 
of discriminatory impact is supported by the fact that whites 
failing the test constituted 25% of the whites rejected for em­
ployment, whereas blacks failing the test constituted 62% of the 
blacks rejected for employment. (805a-816a).

One of the principal tests employed by the defendant was 
the Wonderlie test, a test that has been found to be patently dis­
criminatory against blacks. (See Griggs v. Duke Power Company,
401 U.S. 424 (1971); Moody v. Albermarle Paper Company, ___F.2d___
(4th Cir. No. 72-1267, Feb. 20, 1973)).

It is critical to note at this juncture that, as the 
District Court found, in the Defendant Company's plant a success­
ful score on the tests was an abosolute prerequisite to entry into 
the formerly white lines of progression. (47a). This require­
ment was instituted in 1957 and until 1969 any black employee who 
sought to transfer out of Labor or sought initial employment in a 
non-Labor Division had to pass these tests. (47a-49a).

The District Court found that the Defendant Company's 
"first offer" to the members of the "affected class" (pre-1957 
Labor Department hirees), allowing them to transfer to other

15



departments if they had a seventh grade education and passed the 
tests, produced no affirmative results since no member of the 
"affected class" could pass the tests. (48a). The District Court 
further found that the "second offer" in 1969 that allowed the same 
group to transfer without taking the tests attained little success 
since the transferring employee would have forfeited his Labor 
Department seniority. (49a). Not until April 22, 1971 after 
repeated demands by the OFCC and the AEC did the defendant Company 
abolish its discriminatory educational and testing requirements
and allow members of the "affected class" to transfer and retain1/their Labor Department seniority. (Ibid.)

B. Since the Defendant Company's Testing Require­
ments Were Not Validated, The District Court Erred 
In Finding That These Requirements Did Not Discri­
minate Against Blacks Hired After 1957.

There was no evidence adduced at the trial that the tests 
were job related and the District Court ;found as a matter of law 
that the defendant Company did not show a legitimate business 
necessity for the tests. (51a). The Court also found that testing 
requirements were never validated. (61a). Notwithstanding its own 
findings the District Court concluded that the defendant Company's 
testing requirements did not discriminate against blacks hired

4/ It should be reiterated at this point that the District Court 
found that on three different occasions the Office of Federal 
Contract Compliance required the defendant Company to relax 
its testing requirements. (48a). Defendant's three "offers' 
were therefore anything but voluntary.

16



after 1957. We submit that contrary to the ruling of the District
Court, facts like these enumerated in part I.A of this brief and 
the lack of proper validation of the tests, proves conclusively 
that the tests were unlawful as to blacks hired prior to and after 
1957 and the District Court should have so held. Griggs v. Duke 
Power Company, 401 U.S. 424 (1971); United States v. Georgia Power
Company, ____F.2d____(5th Cir. No.71-3447, Feb. 14, 1973) ; Moody
v. Albermarle Paper Company,____F.2d____(4th Cir. No.72-1267,
Feb. 20, 1973); United States v. Jacksonville Terminal Co., 451 
F.2d 418 (5th Cir. 1971), cert, denied 4 EPD f7774.

C. The District Court Applied Improper Standards
Of Law In Reaching Its Erroneous Conclusion.

The District Court's analysis of the evidence relating to 
the tests ignores the applicable principles of law.

The District Court concluded that the defendant Company's 
tests did not discriminate against blacks hired after 1957 because 
132 blacks failed the tests compared to 126 whites - a difference 
of less than 6% (51a; 69a). This methodology is totally inapposite 
and does not take into account the fact that the rate of failure 
for blacks was approximately 50% (132 of 274) compared to a less 
than 15% failure rate for whites (126 of 848). These grossly 
disproportinate failure rates clearly indicate that the District 
Court applied an erroneous standard of law in interpreting plain­
tiff's data.

17



The District Court also applied an erroneous standard of 
law in holding that the defendant Company's testing requirement 
did not disqualify blacks at a "substantially" higher rate than 
whites. (51a; 61a). Plaintiff's data certainly shows a large 
statistical variance between white and black failure rates. More­
over, neither Title VII nor the EEOC guidelines use or employ the* 
term "substantial” in defining employment discrimination. The 
EEOC guidelines state in pertinent part:

. . . the use of any test which adversely affects 
hiring, promotion, transfer or any other employment 
or membership opportunity of classes protected by 
Title VII constitutes discrimination unless the 
test is validated and evidences a high degree of utility.
29 C.P.R. §1607.3

To attach a requirement of "substantiality" to prove dis­
crimination would allow employers to discriminate with impunity.
As Chief Judge Brown, writing for a unanimous Court, stated in 
Rowe v. General Motors, 457 F.2d 348 (5th Cir. 1972):

Title VII of the Civil Rights Act prohibits all 
forms of racial discrimination in all aspects of 
employment. Local 189, United Paper-makers and Paperworkers, A .F.L.-C.1.0.,C,L.C . v. United States 
5th Cir. 196$, 416 F.2d $80, 982, cert. denied,1$70 
397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2 100. The 
degree of discrimination practiced by an employer 
is unimportant under Title VII. Discrimination 
comes in all sizes and all such discriminations are prohibited by the Act (457 F. 2 at 354) .

Thus, it is clear that the District Court's analysis of the testing 
data was improper and ignores the applicable principles of law.

18



D. This Court Should Direct The Entry Of 
Appropriate Relief From The Effects Of The 
Defendant Company's Unlawful Testing and 
Educational Requirements.

Plaintiff urges this Court to issue a declaratory judgment 
that the defendant Company’s testing requirements discriminated

vagainst all black employees, including those hired after 1957.
This Court should require the defendant Company to submit an 
annual report to the Court to assure defendant's continued com­
pliance. Plaintiffs are not seeking an injunction in this case 
solely because these discriminatory tests have been discontinued 
for over two years at the insistence of the OFCC and AEC, and 
these agencies are not likely to allow these tests to be resumed.

This Court should also provide affirmative relief for 
members of the class from the continuing effects of the defendant 
Company's unlawful testing and educational requirements. The 
District Court enjoined the use of the testing requirements only 
as to blacks hired in the Labor Department prior to 1957, (67a).
This order would deny plaintiffs the full and adequate relief to 
which they are entitled. Plaintiffs and members of the class are 
suffering continuing injury due to the defendant Company's testing 
and educational requirements. The use of these unlawful screening

5/ There is no necessity to remand for a determination of
validity, cf. United States v. Georgia Power, supra? since as 
set forth above the District Court found that the defendant 
Company did not attempt to show or contend that the tests were 
valid (51a).

-19-



devices has precluded or retarded their advancement from the menial, 
traditionally black laboring-type jobs to the better and higher 
paying jobs held almost exclusively by whites. This Court should 
redress the District Court’s error in failing totally to provide 
relief from these continuing effects of past discrimination.

This Court recently adopted plaintiffs' position in its 
thoughtful decision in United States v. Georgia Power Company. 3Upra, 
where it noted with approval the District Court's extension of 
affirmative seniority relief to victims of a discriminatory high 
school education requirement. (Slip Op. at 43-44). At the same 
time, m  reversing the district court’s finding of no testing dis­
crimination, this Court held that, unless the tests could be shown 
lawful, test-discriminatees would also be entitled to affirmative 
relief, according to the "rightful place" theory (Id.). in that 
case the restriction of black employees to jobs of laborer, porter, 
janitor, or maid by testing and educational requirements is analagous 
to the class members' restriction to Labor Department jobs in this 
case. Thus, here as in Georgia Power.

Should company test invalidity be the trial 
court's ultimate conclusion, the seniority would thereby be extended to all blacks wrongfully de­
prived of the opportunity to advance beyond the 
[predominantly back] positions by either the 
testing or the educational requirements. (Slip Op. at 45). [Emphasis added]

Since this Court must on these facts, under established law 
render the "ultimate conclusion" that the defendant's testing was 
unlawful, this case now stands for entry of appropriate affirmative

20



relief "to eliminate the present effects of past discrimination" 
to the extent possible, Local 53, Int'l Ass'n of Heat & Frost 
Insulators and Asbestos Workers v. Vogler, 407 F.2 1047, 1052-1053 
(5th Cir. 1969). Since all victims must have their seniority 
remedy, the District Court's seniority relief must be extended 
to post-1965 hirees whose assignment or advancement to non-Labor 
Department jobs was precluded or retarded by the unlawful require­
ments. Such relief should include an affirmative provision for 
training and advancement as well as class-wide back pay (see part 
III, infra), for discrimatees whenever hired.

II. THE DISTRICT COURT ERRED IN FINDING THAT THE DEFENDANT COMPANY'S DIS­
CRIMINATORY HIRING PRACTICES DID 
NOT EXTEND BEYOND JULY 2, 1965.

A. The District Court Erred in Finding That
The Plaintiff's Statistics Did Not Make Out A
Prima Facie Case Of Hiring DiscriminationSubsequent To July 2, 1965.

The Court below found as an "undisputed fact" that black 
employees were segregated into the Labor Department until July 14, 
1962 and that white employees were channeled away from the Labor 
Department until September 7, 1965. (48a). The Court further 
found that the positions in the Labor Department were composed of 
the least skilled and lowest paid positions in the plant. (Ibid.)

The defendant Company maintained, and the District Court 
agreed, that with the hiring of a few blacks into non-Labor posi­
tions in 1962 and the hiring of one white into the Labor Department

21



in 1965, discrimination ended. (47a-48a). The District Court's 
conclusion that the defendant Company's hiring discrimination 
ended suddenly on July 1, 1965 (the effective date of Title VII) 
is at best anomalous in light of the fact that no white was ever 
employed in the Labor Department until September 7, 1965.(51a).

A cursory look at plaintiff's statistical data demonstrates 
unequivocally that the District Court erred. (734a; 817a-818a; 821a 
822a). Excluding the year 1971 (in which all new employees were 
placed in the Labor Department), from 1965 through 1970, 35 of 80 
(43%) new black employees were assigned to the Labor Department 
compared to 6 of 149 (4%) new white employees assigned to the 
Labor Department during the same period. (Ibid.)

The following chart illustrates that the defendant Company's 
discriminatory hiring practices continued unabated in the two years 
after July 2, 1965;

No. & % of New Total No. & % of New
Black Employees New White Employees

Total New Black Assigned White Assigned
Year Employees to Labor Employees to Labor
1965 13 9(69%) 17 1/(^6%)
1966-67 22 7 (32%) 28 0 (0%T
(Ibid.)
This chart clearly illustrates that while the defendant Company 
might have been hiring more black employees, the same old discri­
mination ruled: blacks went to the lowest paying jobs in the plant 
and whites to the higher paying jobs. The chart also indicates

22



that subsequent to the time when the District Court found hiring 
discrimination had ended, the defendant Company assigned 46% (16 of 35) 
of the new black employees to Labor whereas only 2.2% (1 of 45) 
of the new white employees were assigned to Labor.

Moreover, the defendant Company's discriminatory hiring 
practices did not cease in 19 fef. The following chart shows that
the defendant Company continued in the following three years to 
assign blacks to the lowest paying jobs where they were locked 
in as a consequence of the defendant company's discriminatory 
educational and testing requirements:

Year
Total New Black 

Employees

No.& % of New Black Employees Total New 
Assigned White 
To Labor Employees

No. & % of New White Employees 
Assigned 
To Labor

1968 14 4 (28%) 25 1 (4%)
1969 14 6 (42%) 48 4 (8%)
1970 17 9 (52%) 31 1 (3%)
(Ibid.)

The fact that the defendant Company continued its dis­
criminatory hiring practices well beyond July 2, 1965, by placing 
blacks only in Labor and placing whites in non-Labor jobs is most 
clearly shown when focusing on black employees as a percentage of 
Labor Department employees from September 7, 1965, through 1970:

23



% of Blacks In LaborYear Departme;
9/7/65 100.0
1966 96.5
1967 97.0
1968 94.5
1969 87.0
1970 88.0

(Ibid.) This chart shows that from total segregation in 1965, 
the Department had only moved by 1970 to token integration.

The data set forth above establish a strong presumption 
that the defendant Company continued its hiring discrimination 
beyond July 2, 1965. Plaintiffs, however, are not contending 
that the defendant Company should cease hiring blacks into the 
Labor Department, but rather that the defendant Company should 
begin to assign a substantial number of blacks to the higher 
paying non-Labor jobs.

Notwithstanding this data, the District Court found as a 
matter of law that the "plaintiff has failed to make out a prima 
facie case, since for all practical purposes there is not significant 
or persuasive evidence that the discriminatory hiring practice ex­
tended beyond July 2, 1965."(48a). This ruling was clearly in­
correct in that the District Court improperly analyzed plaintiff's 
data and failed to apply the proper standards of law as enunciated 
by this Court.

24



This Court has long held that statistical evidence can 
be used to substantiate claims of racial discrimination. Most 
recently, this Court stated, in language fully applicable to 
the case at bar:

These lopsided ratios are not conclusive proof 
of past or present discriminatory practices; 
however, they do present a prima facie case.
The onus of going forward with the evidence and
the burden of persuasion is thus on [the employer]. . .
. . . the inference arises from the statistics 
themselves and no other evidence is required to 
support the inference.
United States v. Hayes International Corp. 456 F.2 
112, 120 (5th Cir. 1972. Cf. Bing v. Roadway 
Express. Inc. 444 F.2 687, 689 (5th Cir. 1971);United States v. Georgia Power Company, supra.

This Court has also held that "there can be no reasonable justi­
fication for the absence of blacks from all but the most menial 
caraft and class seniority rosters." United States v. Jacksonville 
Terminal Co.. supra, at 449. Accord: United States v. Dillon 
Supply Co.. 429 F.2d 800 (4th Cir. 1970)

The statistics in this case clearly established that 
plaintiff and the class he represents were continuously and dis­
proportionately assigned to the lowest paying jobs in the plant 
and in failing to find that the plaintiffs had made out a prima facie 
case the District Court erred as a matter of law.

25



B. The District Court Erred In Finding That 
The Defendant Company's Statistics Constituted 
A Defense To Plaintiff's Claim Of Discrimination 
In Hiring Beyond July 2, 1965.

The defendant Company presented evidence to the District 
Court "that from January 1, 1962 to December 12, 1971, over 32 
percent of all employees transferred or hired into non-Labor 
department jobs have been black employees." (57a). Relying on 
this data the District Court found as a matter of law that such 
evidence "convincingly rebutted the statistical evidence" presented 
by the plaintiff. (58a). As outlined in part 11(A), supra, the 
District Court erred in failing to accord plaintiffs' statistics 
their proper weight. The District Court was also confused with 
respect to the factual record and as a result it committed errors 
of law.

The District Court specifically relied on the defendant
Company's transfer data for 1962, 1963 and 1964 in concluding that

6/there was no hiring discrimination after 1965. (1094a). In the
years 1962 through 1964 the defendant Company hired 24 new employees,
9 of whom were black, constituting 37.4% of total new employees. 
(803a-806a). To include these figures as the District Court did 
in deciding the issue of discrimination post-1964 not only camouflages 
the defendant Company's real figures but also inflates the post-1964

6/ It could not have been relying on the defendant Company's 
hiring data for Blacks into non-Libor jobs because as the 
District Court found prior to 19p5yno Black was ever hired 
into a non-Labor job. (48a) . vsf

Va.
- 26 -



figures. This type of misinterpretation of data would allow the 
defendant Company to discriminate with impunity in 1965-1970 and 
then by aggregating all of the figures from 1962 through 1970 
appear to be engaging in practices of equal employment opportunity.

This type of methodology employed by the District Court 
is totally unacceptable in Title VII suits. As shown in part 
11(A) of this brief the evidence is overwhelming that the defendant 
Company discriminated in the hiring and placement of blacks from 
1965 through 1970. To aggregate the figures as the District Court 
has done would mean that if no blacks were hired from 1965 through 
1970, and in 1971 as trial approached a defendant hired 100 blacks 
a court could conclude by averaging this figure that there had 
been no discrimination in hiring from 1965 through 1970. More­
over such an error of aggregation is exacerbated if, as the 
District Court concluded, that because of what a defendant did 
in 1962, 1963, 1964 or 1971, there was necessarily no discrimina­
tion in any particular intervening year. Plaintiff maintains 
that if the District Court had properly analyzed the annual figures 
from 1965 through 1970 it would have been compelled to conclude 
that the defendant Company has consistently maintained its policy 
of placing only blacks in Labor and only whites in non-Labor 
positions. Cf. United States v. Hayes International Corp., supra;

27



Brown v. Gaston County Dyeing Machine Co., 457 F.2 1377 (4th Cir. 
1971), cert, denied 41 U.S. Law Week 3253 (1972); Parham v. 
Southwestern Bell Telephone Co., 433, F.2d 421, 426 (8th Cir.
1970); Jones v. Lee Way Motor Freight Co., 431 F.2d 245, 247 
(10th Cir. 1970), cert, denied 401 U.S. 954 (1971).

One of numerous examples will illustrate that the plaintiffs 
in this case were continually disadvantaged by the defendant Com­
pany's discriminatory hiring practices far beyond July 2, 1965.
Mr. N. Bean was hired into the Labor Department under admittedly 
discriminatory placement and was subsequently locked into that 
department by the defendant Company's institution of degree and 
testing requirements. Nevertheless, since Mr. Bean transferred 
out of Labor in 1970 the defendant Company has attempted to use 
this figure to show that it did not discriminate in hiring after 
July 2, 1965. The District Court's faulty logic accepts the 
Company's contention.

C. The District Court Erred In Finding
That The Defendant Company Had Not Dis­
criminated In Hiring Subsequent To July 2, 
1965, In Light Of Its Own Findings That 
The Defendant Company Maintained Until 
April 22, 1971, Unvalidated Educational 
And Testing Requirements That Excluded Blacks.

Until April 22, 1971, the defendant Company required a

28



high school degree or its equivalent and satisfactory test scores 
as prerequisites to employment in non-Labor Department positions.
The District Court found as a matter of law that the defendant 
Company's educational requirement "disqualifies black applicants 
at a substantially higher rate than white applicants." (61a).
Thus, the District Court found the educational standard unlawful; 
and as we have argued in parts 1(A) & (B) of this brief the 
defendant Company's testing requirements is also unlawful. The 
Court found that these requirements were never validated within 
the guidelines of the EEOC and that the defendant Company had not 
shown any business necessity for the maintenance of the requirement. 
(61a-62a).

It is crystal clear that a non-validated requirement that 
is not job-related and that has a disproportionate impact on blacks 
is a violation of Title VII. Griggs v. Duke Power Company, supra; 
United States v. Georgia Power Company, supra; slip op. p.21.

Thus, confining itself solely to the findings enumerated 
above, the District Court was compelled to hold, as a matter of 
law, that the defendant Company had discriminated in hiring beyond 
July 2, 1965. Its failure to reach this conclusion was error.

29



III. THE DISTRICT COURT ERRED IN FAILING 
TO AWARD CLASS-WIDE BACK PAY.

A. Since The District Court Found That 
Members Of The Class Suffered And Are Con­tinuously Suffering An Economic Loss As A 
Result Of The Defendant Company's Discrimi­
natory Employment Practices It Erred In Fail­
ing To Award Classwide Back Pay.

As a direct consequence of the defendant's discriminatory 
employment practices, set forth in parts I and II of this brief 
plaintiff and members of the class he represents have suffered 
acute economic losses. This is most dramatically illustrated 
by the fact that the present average annual pay difference between 
white and black employees is $748.80 (805a - 806a).

Plaintiff R.L. Johnson sought in his prayer for relief 
back pay for himself and other black employees similarly situated. 
(27a - 33a). This issue was squarely presented to the Court 
below. (44a). However, the District Court apparently viewed an 
award of back pay as purely discretionary, (69a) and therefore 
without any discussion limited back pay to the named plaintiff. 
(67a - 68a). The District Court failed to award back pay to 
all class members notwithstanding its own finding that twenty-six 
class members hired from 1943 to 1965 suffered economic loss due 
to the defendant Company's discriminatory employment practices 
(47a - 48a), and notwithstanding its finding that from 1943 to

30



to 1962 blacks wee e hired only in the Labor Department which 
was composed of the lowest paid positions in the plant. (48a).

This Court has long held that the award of back pay in Title VII 
suits is not solely a matter of a district court's discretion but 
rather "is an inextricable part of the restoration to prior status." 
Harkless v. Sweeny, 427 F.2d 319, 324 (5th Cir. 1971); cf. United 
States v. Georgia Power, supra, where this Court said:

Back pay is viewed as an integral part 
of the whole of relief which seeks not 
to punish the respondent but to compensate 
the victims of discrimination. Slip Opinion at 30.2/ Accord: Moody v.Albermarle 
Paper Company, supra.

The District Court found that the defendant Company discrimi­
nated up to July 2, 1965 (58a). Confining ourselves solely to the 
District Court's findings and reasoning, the 10 persons hired from 
1957 through 1965 were discriminatorily assigned to the Labor 
Department. (803a) and as a result of the defendant Company's post 
- 1965 discrimination, to wit: educational and testing requirements
and divisional seniority system, these employees have been locked 
in the lowest paying least skilled jobs in the plant. Moreover, 
these same employees have labored under a disincentive to tramsfer 
since a transfer would have required them to forfeit their seniority.

7/ In Georgia Power, this Court held that on award of classwide 
back pay is proper in a pattern or practice suit brought by the 
Attorney General pursuant to 42 U.S.C. §2000e-6 (a) even though this section does not explicitly provide for back pay. A Fortiori, an 
award of back pay to the class is proper in am action brought by 
private plaintiffs, pursuamt to 42 U.S.C. §2000e - 5(g), which 
expressly privides for back pay.

31



(61a).

Therefore, for all of the reasons given in part III A. of 
this brief this subclass of plaintiffs is entitled to the remedy 
of back pay.

As clearly demonstrated in parts I, II, and IIIA. of this 
brief the defendant Company's discriminatory practices continued 
unabated after 1965 by its assignment of blacks into the Labor 
Department (48a); by imposing discriminatory, nonvalidated 
tests and educational requirements as prerequisites into the 
white lines of progression (47a) and by maintaining a discrimina­
tory seniority policy that "locked in" blacks (48a).

Accordingly this subclass of plaintiffs, 26 black employees, 
is also entitled to back pay for the economic losses they have 
suffered due to the defendant Company's discriminatory employ­
ment practices.

B. The District Court Did Not Enunciate 
Any Reason Why It Awarded The Named 
Plaintiff Back Pay, And Refused To 
Award Back Pay To Fourteen Other Black 
Labor Department Employees Hired Prior 
To 1957.

The named plaintiff, R.L. Johnson, and 14 other blacks 
were all hired into the Labor Department prior to 1957 (801a). 
Therefore, for the purposes of this class all 15 employees were 
identically situated. They were hired into what was intention­
ally and admittedly a segregated department (48a). They ware

32



then "locked in" this department by the defendant Company's 
discriminatory testing and educational requirements (60a).
They were all equally the victims of the defendant Company's 
discriminatory seniority system that deterred transfer even if 
they could satisfy the testing and educational requirements 
(62a). Finally, as a direct result of the defendant Company's 
discriminatory practices all 15 of these employees have been at 
a continuous wage disadvantage to white employees (805a-806a).

This Court has long held that Courts have:

"the duty and ample powers both in the 
conduct of the trial and the relief 
granted to treat common things in 
common . . . "

Jenkins v. United Gas Corp., 400 F.2d 28, 35 (5th Cir. 1968). 
The District Court clearly failed to treat common things in 
common or to state why it was treating identical situations 
differently. Finally, the District Court gave absolutely no 
reason to justify its denial of back pay.

IV. THE DISTRICT COURT ERRED IN LIMITING
THE PERIOD FOR WHICH THE NAMED PLAINTIFF'S 
BACK PAY CAN BE AWARDED TO NINETY DAYS 
PRIOR TO THE FILING OF THE EEOC CHARGE

The District Court limited plaintiff's recovery of back 
wages to the ninety days period prior to the filing of the EEOC 
charge until the date of judgment, February 4, 1967 to November 
10,1972 (68a-69a).

33



Plaintiff submits that the District Court committed 
two errors in computing back pay: (1) it incorrectly applied 
the applicable statute of limitations for plaintiff's §1981 
cause of action; (2) it erroneously applied 42 U.S.C. §2000e 
- 5  (d) , a statute on limitations on filing as a statute of 
limitations on relief.

A. The Statute of Limitations for
Plaintiff's § 1981 action.
The statute of limitations on a §1981 cause of action 

is the most closely analogous state statute of limitations. 
Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 
(5th Cir. 1971); United States v. Georgia Power, supra. It 
is settled law that the filing of a charge with the EEOC tolls 
the statute of limitations for the purposes of §1981.
Boudreaux v. Baton Rouge Marine Contracting Co., supra n.16; 
Culpepper v. Reynolds Metal Company, 421 F.2d 888, (5th Cir.1970) 
The District Court found that in this case the most closely 
analogous state statute is §5529 of the Tex Rev. Civ. Stat. Annot., 
with a limitations period of four years. Therefore under the 
1866 Civil Rights Act plaintiff is entitled to back pay measured 
from four years prior to the filing of their EEOC charge. 
Accordingly for §1981 the proper period of computing back pay 
is May 4, 1963 until the date of entry of judgment, November 10, 
1972. Compare Brown v. Gaston County Dyeing Co., supra, where 
back pay was allowed as far back as 1960.

34



B. The 90 Day Filing Requirement of 
42 U.S.C. §2000e - 5(d) Is Not A Limit­
ation On The Appropriate Relief.
In United States v. Georgia Power, supra, the defendant 

attempted to argue that back pay should be limited to the ninety 
day period prior to the filing of the EEOC charge through the 
date of judgment. This Court in no uncertain terms dismissed 
the argument, stating that 42 U.S.C. 2000e - 5(d) "is in no 
sense a limitation on the period for which one may receive back 
pay relief." United States v. Georgia Power, Slip op. p.33.
This Court went on to say that the "remedial purposes of the 
Act would be frustrated were financial redress to be always 
limited to the 90-day period preceding the filing of a complaint." 
(Ibid).

This Court then declared that the applicable state 
statute of limitations would govern the computation of class 
back pay. United States v. Georgia Power, slip op. p. 35.
The lower court, as previously noted, determined this to be 
the four-year Statute of limitations under §5529 of Tex. Rev. 
Civ. Stat. Annot; and plaintiff does not dispute that 
determination. Accordingly the computation period for back 
pay in this case is from May 4, 1963 through November 10, 1972. 
Moreover, plaintiff submits that even under the 1972 Amendment 
to Title VII (Section 706(g)) that establishes a two year 
limitation on relief, plaintiff would be entitled to recover 
back pay from July 2, 1965.

35



CONCLUSION

We respectfully urge this Court to hold that the decision 
below was in error in each of the respects set forth herein, and 
in reversing to enter am appropriate order correcting each of the 
District Court's enumerated errors. This Court's Order should 
hold that : (1) the defendamt Company's testing requirement dis­
criminated against all black employees including those hired after 
1957; and (2) the defendant Compamy discriminated in hiring in 
each and every year until April 22, 1971; (3) plaintiff and
members of the class he represents are entitled to back pay to 
compensate them for the losses they have suffered as a result of 
the defendant Company's discriminatory employment practices.

This Court should also remand with instructions to enter 
a decree providing full and effective relief for such discrimination. 
Such relief should specifically include (1) an order requiring the 
defendant Company to submit an annual Report to the Court to assure 
the defendant continued compliance; (2) the extension of plant­
wide seniority to all members of the class wrongfully deprived of 
the opportunity to advance beyond the Labor Department by either 
the defendant Company's discriminatory testing or educational 
requirements; (3) a provision for training and advancement, for all 
members of the class wrongfully deprived of the opportunity to 
advance beyond the Labor department by either the defendant 
Company's discriminatory testing or educational requirements;

36



(4) an award of back pay to all class members; (5) an 
award of back pay to the plaintiff from May 4, 1963, to 
November 10, 1972; (6) an award of counsel fees to
plaintiffs.

This Court should further instruct the District 
Court to hold further proceedings to determine the amounts 
and distribution of back pay.

Respectfully submitted,

C [y ______JACK GREENBERG WILLIAM L. ROBINSON
C. VERNON MASON 
MORRIS J. BALLER 

10 Columbus Circle Suite 2030New York, New York 10019
GABRIELLE K. MCDONALD 
MARK T. MCDONALD

1834 Southmore Blvd. 
Suite 203
Houston, Texas 77004

Attorneys for Plaintiffs- 
Appe Hants.

37



CERTIFICATE OF SERVICE

The undersigned counsel for Plaintiffs-Appellants 
R.L. Johnson, et al., hereby certifies that on the 30th day of 
April, 1973, he served copies of the foregoing brief for 
Plaintiffs-Appellants upon counsel of record for the other 
parties as listed below, by placing said copies in the United 
States Mail, airmail, postage prepaid:

V.A. Burch, Jr., Esq.
3000 One Shell Plaza
Houston, Texas 77002
William N. Wheat, Esq.
600 Cullen Center Bank BuildingHouston, Texas 77002

/

O'- O' / >  tod&r<____________
C. Vernon Mason
Attorney For Plaintif ̂-Appellants

38



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