Equal Employment Opportunity Commission v. Nemours Brief for Appellant Equal Employment Opportunity Commission

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

Nos. 80-3176, 80-3177

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant, 

v . -
e . i. dupont de Nemo urs, et ai.,

Defendants-Appellees. 
JOHN R. WILLIAMS, et al.,

Plaintiffs-Appellants,
v .

e . i. dupont de Nemo urs, et ai.,
Defendants-Appellees.

On Appeal from the United States District'Court 
for the Western District of Kentucky

BRIEF FOR APPELLANT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

LEROY D. CLARK General Counsel
JOSEPH T. EDDINS 
Associate General Counsel
LUTZ ALEXANDER PRAGER 
PHILIP B. SKLOVER 
Attorneys
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 
2401 E Street, N.W. Washington, D.C. 20506 
(202) 634-6230



TABLE OF CONTENTS
Page

ISSUES PRESENTED....................................  1
STATEMENT...........................................  2

1. Proceedings Below........................  3
2. Record On Motion For Summary Judgment.....  6
3. The District Court Decision..............  9

SUMMARY OF ARGUMENT.............    10
ARGUMENT............................................  13

I. DEFENDANTS' INTENT IN ADOPTING AND 
MAINTAINING THE SENIORITY SYSTEM CANNOT BE RESOLVED ON SUMMARY JUDGMENT 
IN THIS CASE...........................  13

II. THE DECISION IN UNITED AIR LINES v.
EVANS, 431 U.S. 553 (1977), DOES
NOT SUPPORT SUMMARY JUDGMENT...........  2 0

III. THE ALLEGATIONS IN THE EEOC COMPLAINT
ARE PROPERLY BEFORE THE COURT..........  2 2

CONCLUSION..........................................  24

l



TABLE OF AUTHORITIES

Acha v. Beame, 570 F. 2d 57 (2nd Cir. 1978)..........  15, 19, 21
CASES PAGE(S )

Adickes v. S.H. Kress & Co., 398 U.S. 144
(1970) ...............................................  14' 17
Bohn Aluminum & Brass Corp. v . Storm King
Corp., 303 F. 2d 425 (6th Cir. 1962).................  15
California Brewers Association v .
Bryant, U.S. , 63 L.Ed 2d 55
100 S.Ct. 814 (1980).........  20
Cedillo v. Ironworkers Local 1, 603 F.2d 7
(7th Cir. 1979).....................................  16
Chrapliwy v. Uniroyal, F.Supp.___, 15 FEP
Cases 822 (N.D.Ind. 1977)............................. 18
Croker v. Boeing Co. Vertol Div., 437 F. Supp.
1138 (E.D.Pa. 1977).................................  19
EEOC v. Bailey Co., 563 F.2d 439 (6th Cir. 1977).... 10, 12, 23,---- ---------  2 4
EEOC v. General Electric Corp., 532 F.2d 359
(4th Cir. 1976).............   23
EEOC v. Huttig Sash & Door, 511 F.2d 453
(5th Cir. 1975)....................................  23
EEOC v. Kimberly Clark Corp., 511 F.2d 1352
(6th Cir.), cert. denied, 423 U.S. 994 (1975).......  11, 23, 24
EEOC v. Local 189, United Association of 
Journeymen and Apprentices of Plumbing a~nd 
Pipe Fitting Industry, 427 F.2d 1091 (6th Cir.
1970)...............................................  34
EEOC v. Occidental Life Insurance Co., 535 
F.2d 533 (9th Cir. 1976), aff'd on other grounds,
432 U.S . 355 (1977).................................  23
Evans v. Delta Air Lin_es, 551 F. 2d 113
(6th Cir. 1977).....................................  23
Fisher v. Proctor & Gamble Mfq. Co. ,

613 F.2d 527 (5th Cir. 1980).....................  13 , 19
ii



TABLE OF AUTHORITIES (cont'd)
CASES PAGE(S )

Fitzsimmons v. Best, 528 F.2d 692
(7th Cir . 1976)......................................  15
Franks v. Bowman Transportation Co., 424
U.S. 747 (1976)......................................  11/ 19 , 20
General Tel. Co. v. EEOC, 48 U.S.L.W. 4513
(May 12, 1980).......................................  11/ 23
Hart v. Johnston, 389 F.2d 239 (6th Cir. 1968).......  15
Hospital Bldq. Co. v. Rex Hospital Trustees,
425 U.S. 738 (1976).......... ........................  16
International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977)...................  9, 10, 11,13, 18, 19

20, 21
James v. Stockham Valves and Fittings Co.,

559 F.2d 310 (5th Cir. 1977), cert, denied
434 U.S. 1034 (1978)..............................  13 , 18 , 19

Jenkins v. Blue Cross Mutual Hospital, 538
F. 2d 164 (7th Cir. ,1976), cert. denied, 429
U.S. 986 (1976).....................................  23
Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir.
1978)........................  22
Patterson v. American Tobacco Co., 586 F.2d 300
(4th Cir. 1978).................................... . . 18, 19, 20
Rogers v. Peabody Coal Co., 342 F.2d 749
(6th Cir. 1965)......................................  15
Sanchez v. Standard Brands, 431 F.2d 455
(5th Cir. 1970)......................................  23
Sears v. Atchison, Topeka & Santa Fe Railroad
Co. , 454 F. Supp. 158 (D.Kan. 1978).................  18
S.J. Groves & Sons, Co. v . Ohio Turnpike
Commission, 315 F.2d 235 (6th Cir. 1963), cert.
denied, 375 U.S. 824 (1963)..........................  15
Smith v. Hudson, 600 F.2d 60 (6th Cir. 1979),cert. dismissed, ___ U.S. ___, 100 S.Ct. 495 (1979)... 15
Tipler v. E.I. DuPont de Nemours & Co.,
443 F. 2d 125 (6th Cir. 1971).........................  23 , 24

iii



TABLE OF AUTHORITIES (cont'd)

Toebelman v. Missouri Kansas Pipe Line Co.,
130 F. 2d 1016 (3d Cir. 1942)........................  16
United Air Lines v. Evans, 431 U.S. 553 (1977)...... 2, 9, 10,
--------------------  11, 20, 21,

22
United States v. Diebold, 369 U.S. 654 (1962).......  14

STATUTES AND RULE
28 U.S.C. §1291.....................................  2
Age Discrimination in Employment Act, 29 U.S.C.
§621, e_t seq........................................  22
§1, Civil Rights Act of 1866, 42 U.S.C. §1981.......  2
Title VII, Civil Rights Act of 1964, as amended,
42 U.S.C. §2000e et seq (1976)......................  passim

§703 (h) , 42 U.S.C. 2G00e-2(h)....................  1, 2, 13
Rule 56, Fed.R.Civ.P................................  14

OTHER AUTHORITY
Executive Order 11246 (Sept. 24, 1965)...............  9

CASES PAGE(S )

iv



IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

Nos. 80-3176, 80-3177

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant, 

v .
e . i. Dupont de Ne m o urs, et ai.,

Defendants-Appellees.
JOHN R. WILLIAMS, et al.,

Plaintiffs-Appellants, 
v .
e . i. Dupont de Nemo urs, et. ai.,

Defendants-Appellees.

On Appeal from the United States District Court 
for the Western District of Kentucky

BRIEF FOR APPELLANT
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ISSUES PRESENTED

1. Whether in an employment discrimination suit, the 
trial court correctly considered all of the facts of record 
when it held, on motion for summary judgment, that the 
seniority system was bona fide within the meaning of §703(h) 
of Title VII, Civil Rights Act of 1964, as amended, 42 U.S.C.
§2000e-2(h)?



2. Whether United Air Lines v. Evans, 431 U.S. 553 (1977)
bars the Commission and private plaintiffs from challenging 
discriminatory testing practices, established prior to the 
effective date of Title VII but still in effect?

3. Whether the trial court erred, as a matter of law and 
fact, in dismissing allegations in the government's complaint 
pertaining to discriminatory hiring, job assignments, and 
testing, on the grounds that they were beyond the scope of the 
underlying administrative charges?

STATEMENT

These are consolidated appeals from summary judgment in favor 
of E. I. DuPont de Nemours and the Neoprene Craftsmen Union in 
consolidated actions, one brought as a private class action under 
Title VII, Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and 
§1, Civil Rights Act of 1866, ~42 U.S.C. §1981, and the other brought 
under Title VII by the Equal Employment Opportunity Commission.
This Court has jurisdiction under 28 U.S.C. §1291.

In granting summary judgment, the district court held that 
as a matter of law (1) the seniority provisions of the collective 
bargaining agreement were "bona fide" within the meaning of §703(h) 
of Title VII, 42 U.S.C. §2000e-2(h), and thus could produce no un­
lawful consequences; (2) Williams' allegation that DuPont uses 
unlawful testing procedures was not timely filed with the EEOC; 
and (3) the EEOC's allegations of racial discrimination in 
hiring, job assignments, and other terms and conditions of 
employment, including testing, were unrelated to the allegations

2



in the administrative charges on which the Commission's suit was
1/based. [Memorandum Opinion].

1. Proceedings below
In January 1971, John R. Williams filed a charge of racial 

discrimination against DuPont and the union with the EEOC; in 
the next six months, seventeen other black employees at the 
Louisville plant filed similar charges. [EEOC charge of discri­
mination]. The eighteen charges were consolidated by the Commission 
for investigation, decision making, and conciliation. These 
charges contained broad allegations that blacks were denied job 
opportunities due to past discriminatory policies. Several of 
the charges contained specific allegations of discriminatory 
hiring policies, the maintenance of segregated seniority lists 
and jobs, the use of tests and educational standards which 
denied transfer opportunities -to blacks, the maintenance of 
seniority provisions which resulted in the loss of job 2/
seniority upon transfer, and the payment of discriminatory wages. 
[See EEOC charges of W. Green, J. Williams and I. Arnold].

1/ The Court has granted permission to use a deferred appendix. The bracketed material refers to documents in the record which 
will become part of the deferred appendix.
2/ As to the issue of discriminatory testing and other selection 
standards, Mr. Williams alleged:

I am certain that whites hired before me and after me have transferred to both the Operations and Engineering 
Divisions even though they scored less than I on one or 
both tests and did not possess a high school diploma. 
Furthermore, I do not believe it fair or lawful that 
(footnote continued)

3



In its administrative determination on the eighteen charges, 
the EEOC found that DuPont had discriminated against incumbent 
black employees in a number of ways. The Commission found that 
DuPont had hired blacks exclusively into the "classification" 
seniority division until November, 1971. [EEOC Determination 
at 1-2]. While job segregation had been total as to blacks 
throughout the company's history, DuPont had allowed whites after 
1956 to be hired into "black" seniority divisions. [Id.]. The 
Commission's determination substantiated allegations that, 
contemporaneous with DuPont's allowance O'f transfers between 
seniority divisions, it had imposed new testing and educational

2/(footnote continued)
the company would seek to apply higher standards for 
transfer from the classification division after they 
ceased an overt policy of racial separation in 1956 than 
they applied to whites at the time I was first employed.
I believe the company did,,in 1956 create new standards 
for entrance into the Operations and Engineering 
divisions. The purpose and effect of these standards 
of a high school diploma and a test score of 160 on the 
Operators test or a score of 48 on the Mechanicals aptitude test was to prevent Negroes hired prior to 1956 from being 
able to transfer into the better paying white jobs. These 
standards have kept me and a class of Negroes from obtain­
ing these previously all white jobs. These few Negroes who met the standards have continued to suffer the effects 
of past discrimination by virtue of losing accrued seniority. These high standards and the requirement to 
forfeit seniority constitutes present acts of discrimi­
nation against me and other Negro employees. . . .

Similarly, on the issue of discriminatory hiring, Mr. I. Arnold in his EEOC charge alleged that "as a class, blacks were not hired 
into higher paying jobs." [Charge of I. Arnold].

4



attainment standards. [Id. at 2]. The EEOC found that the tests
given black employees "were not the same and were not of equal 
difficulty", as those given to whites. [Id.] . The Commission 
also found that white incumbents— the beneficiaries of DuPont's 
prior racial hiring policies— were exempt from this testing 
requirement. [ Id.] . Finally, the Commission found that the 
seniority system, by providing for forfeiture of previously 
accrued unit and division seniority, adversely affected transfer 
opportunities for blacks who had been assigned to the classifi­
cation seniority division on the basis of race. [Id. at 2-3].

After the Commission issued its reasonable cause 
determination, Mr. Williams filed a private Title VII and 
§1981 action on behalf of a class of 134 black incumbent 
employees hired prior to July, 1965. [Williams complaint at 
\\ 2 ] . The Williams suit alleged that DuPont's seniority 
system and its high school diploma and testing requirements 
discriminated against blacks by locking them into 
segregated and less desirable job classifications.

After unsuccessful attempts to eliminate the unlawful 
practices it had found in its determination, the Commission 
brought suit under Title VII alleging that DuPont and the 
union unlawfully discriminated on the basis of race at the 
Louisville facility. The complaint alleged that DuPont 
maintains racially segregated departments and jobs, imposes 
other barriers to blacks because of their race, and fails 
to hire blacks on the same basis as whites. [EEOC complaint

5



1110] . The complaint alleged that the union violated Title 
VII by entering into successive collective bargaining 
agreements containing provisions governing seniority, layoff 
and recall,and wage rates, all of which perpetuated past 
discrimination against blacks. [Id. 1(11].

In 1975, the Williams and EEOC actions were consoli­
dated. DuPont and the union resisted discovery into the 
establishment of their seniority system or its operation 
prior to July 1965. For example, they refused to provide 
copies of the early collective bargaining agreements or 
documents concerning negotiations of the agreement. [DuPont 
answers to EEOC first interrogatories; union response to EEOC 
request for production of documents; DuPont answers to EEOC 
second interrogatories; DuPont answers to Williams 1976 inter­
rogatories; and 1979 interrogatories]. The EEOC in July 1978 
moved to compel. [Motion of EEOC for Order Compelling Discovery].

While the EEOC's discovery motion was pending, DuPont and 
the union moved for summary judgment. Without ruling on the 
EEOC's motion, the court entered summary judgment. None of the 
parties filed affidavits in support of or in opposition to the 
motions for summary judgment.

2. Record On Motion For Summary Judgment
In addition to the eighteen charges of discrimination and 

the Commission's determination, the following facts appear in the 
record:

DuPont's Louisville plant began operations in 1942. [Response 
to request for admissions, no. 14]. Since 1954, DuPont and the

6



Neoprene Craftsmen Union have entered into collective 
bargaining agreements which have affected the seniority 
rights of employees. [Response to request for admissions, 
no . 7 ] .

Between 1954 and the present time, the Louisville
plant had four "master" seniority divisions: engineering,

3/
operations, utility and classified; prior to April 1956, 
the collective bargaining agreement prohibited all transfer 
between seniority divisions. [Response to EEOC request for 
admissions, no.22].

Blacks have been historically hired into and assigned 
to the classified seniority division. [McConnell dep. 60-61;
Cressey Dep. at 30; EEOC Determination at 1-2; Appendix A to response 
to EEOC's second interrogatories]. As of December 31, 1973, the 
engineering seniority division was composed of 306 employees, 
none of whom were black (0%); the operations seniority division 
was composed of 307 employees,_11 of whom were black (2.8%); 
the utility seniority division contained 49 employees, 14 of 
whom were black (28.6%); and the classified seniority division 
was composed of 166 employees, 123 of whom were black (74%).
[Response to EEOC request for admissions, nos. 33-36]. Prior 
to 1972, only one black employee had transferred into the engi­
neering seniority division and no black employee had been hired into

3/ [Response to EEOC request for admissions]. Defendants 
in the early 1970's established the seniority division of 
"firemen." This seniority division, as of December 31, 1975, 
had only 6 employees. [Answer to EEOC's first interrogatories, 
no. 25] .

7



that division. [Response to EEOC request for admissions, 
nos . 31-32] .

Contemporaneous with the 1956 collective bargaining 
agreement, which for the first time allowed for transfers 
between master seniority divisions, the company established 
a high school diploma requirement and the achievement of 
a passing score on a written test as preconditions for 
transferring to the engineering seniority division.
[Response to EEOC request for admissions, no. 25]. Several 
of the white persons employed in the engineering seniority 
division prior to 1956 and who were still employed as of 
the time of suit did not have a high school education or 
its equivalent. [Responses to EEOC request for admissions, 
nos. 6, 28]. Many of the white employees employed in 
the engineering seniority division in 1956, and some of 
the white employees employed i-n that division in 1972, 
had not been given a written test. [Response to EEOC 
request for admissions, nos. 27, 29]. There are several 
white employees in the engineering division who have less 
than a seventh grade education. [Response to request for 
admissions, no. 33].

After May 1956 the collective bargaining agreement allowed 
employees to transfer between the other three master seniority 
divisions, except that any employee so transferring would forfeit 
his prior unit and division seniority. [Response to request for 
admissions, no. 24]. Unit and division seniority provided pro­
tection against layoffs and "bumping," and gave priority rights 
for recall. [Id., nos. 43, 50].

-8-



In 1973, as a result of a compliance review by the 
Atomic Energy Commission, which found that DuPont had 
violated Executive Order 11246, DuPont and the union altered 
the seniority provisions of the collective bargaining 
agreement to provide "master division seniority and 
unit seniority and unit seniority equal to plant seniority 
for 134 black employees hired prior to August 27, 1962 for 
purposes of promotion to, demotion from, and layoff from jobs 
in Wage Grades 9 and 10 (but not for other purposes)." [Response 
to request for admission, no. 50]. This provision was incor­
porated into the 1974 and subsequent collective bargaining 
agreements. [ Id . ] .

3. The District Court Decision
The district court made no findings of fact as to the 

seniority system. It simply concluded after quoting copiously 
from Teamsters v. United States, 431 U.S. 324 (1977), that

In the case at bar there has been no 
showing that the seniority system 
set up in the collective bargaining 
agreement which was reached after 
adoption of Title VII was drafted 
with an intent to discriminate and 
the Court agrees with defendants that the holding in Teamsters, supra 
dictates their motion for summary 
judgment be granted.

[Memorandum at 5].
As to Williams' claim that Dupont's current testing program 

unlawfully discriminates against blacks, the court quoted from 
United Air Lines v. Evans, supra, and without further analysis

- 9-



stated that "the only conclusion which the Court can draw 
from this language is that Evans dealt a fatal blow to the 
concept of 'continuing violation.'" [Id. at 7].

Finally, concerning the scope of the EEOC suit, the court 
said that "all claims against defendant [sic] by the individual 
employees attacked only the seniority system and its appli­
cation." [Id. at 7]. After quoting EEOC v. Bailey Co., 563 F.2d 
439, 448 (6th Cir. 1977), the court, without additional analysis, 
concluded that "[t]he language compels the conclusion that 
the only matter over which this court has jurisdiction is the 
complaint dealing with the seniority system." [Id. at 8].

SUMMARY OF ARGUMENT
1. The trial court did not correctly apply long-estab­

lished standards for granting summary judgment under Rule 
56, Fed.R.Civ.P., and misconceived the decision of the Supreme 
Court in Teamsters v. United Spates, supra, 431 U.S. at 356.
The court acted without giving the parties opposing the motion 
the opportunity to conduct relevant discovery and ignored the 
facts on the record. Those facts imply that the seniority system 
is not "bona fide" because it is irrational and therefore not 
"neutral"; "had its genesis in racial discrimination"; and has 
not been "negotiated [or] maintained free from illegal purpose." 
[Id. at 356]. Insofar as the suit challenges instances of racial 
discrimination occurring after the effective date of Title VII

- 10-



which has denied blacks "rightful place" seniority, Teamsters re­
inforces rather than undermines the holding in Franks v. Bowman 
Transportation Co., 424 U.S. 747 (1976).

2. The trial court misread the holding in United Air Lines 
v. Evans, supra, 431 U.S. at 558, in dismissing the allegations 
pertaining to defendants' discriminatory testing procedures.
Evans only dealt with situations, not present in this appeal, 
where an instance of unlawful conduct, which was not the sub­
ject of a timely EEOC charge of discrimination, is alleged to
be illegal merely because a neutral and otherwise lawful sen­
iority system gives present effect to that prior conduct. Here, 
both the EEOC and private plaintiffs are challenging the main­
tenance of an on-going discriminatory practice of using written 
tests. This is a continuing and recurring policy, having an 
adverse effect on the employment rights of blacks each time 
an employment decision is made on the basis of these invalid 
and discriminatory selection procedures.

3. The lower court did not apply the correct legal prin­
ciple in denying the Commission the right to litigate claims 
aside from the bona fides of the seniority system. The correct 
rule, adopted by this Court and approved by the Supreme Court 
in General Telephone Co. v. EEOC, 48 U.S.L.W. 4513, 4516 (May 
12, 1980), is that the Commission and private litigants may seek 
relief for any conduct which was the subject of reasonable 
Commission investigation. EEOC v. Kimberly Clark Corp., 511

- 11-



F.2d 1352(6th Cir. 1975); EEOC v. Bailey Company, 563 F .2d 439
(6th Cir. 1977). Allegations concerning discriminatory hiring, 
job assignments, and testing, had all been addressed in the EEOC 
determination. The Commission investigation which led to that 
determination was reasonable because several of the charges 
alleged discriminatory hiring, job assignments, and testing 
policies.

- 12-



ARGUMENT
I. DEFENDANTS' INTENT IN ADOPTING 
AND MAINTAINING THE SENIORITY SYSTEM 
CANNOT BE RESOLVED ON SUMMARY JUDGMENT 
IN THIS CASE.

In Teamsters v. United States, supra, 431 U.S. at 356, the 
Supreme Court held that a seniority system, adopted prior to 
Title VII, is bona fide within the meaning of §703(n) if it is 
neutral on its face, did not have its "genesis" in racial discrimi 
nation, and "was negotiated and has been maintained free from any 
illegal purpose." As an affirmative defense to a Title VII action 
the burden of proof as to the bona fide nature of the seniority 
system rests on the parties asserting the defense.

Whether a seniority system is truly neutral requires more 
than an examination of the collective bargaining agreement; it 
requires, at the very least, an examination into whether the 
seniority system is rational, conforming in some rational manner 
to the structure of the plant in which it operates or to industry 
practices. See James v. Stockham Valves & Fittings Co., 559 F.2d 
310, 352 ( 5th Cir. 1977),- cert, denied, 434 U.S. 1034 ( 1978).

Whether the system had its genesis in racial discrimination 
or was negotiated and maintained free of discriminatory purpose 
requires examination of the origins of the system and the 
motivations of the parties to the agreement as reflected in 
their actual negotiations and in the surrounding circumstances. 
Teamsters v. U.S., supra, 431 U.S. at 356; Fisher v. Proctor 
& Gamble Mfg. Co., 613 F.2d 527, 542 (5th Cir. 1980).

- 13-



The district court conducted no such inquiries; worse, it 
prevented the plaintiffs from engaging in the discovery 
necessary to make them. Even so, the sparse record before the 
court demonstrates that the relevant facts and inferences to 
be drawn from them are in dispute and that summary judgment 
is inappropriate.

(a). The Supreme Court in Adickes v. S ■ H. Kress & Co. ,
398 U.S. 144, 157 (1970), stated the governing principle for 
summary judgment:

[T]he moving party. . .ha[s] the burden of 
showing the absence of a genuine issue 
as to any material fact, and for [the purposes of summary judgment,] the 
material. . .must be viewed in the light 
most favorable to the opposing party.

In applying this standard, the Court noted that it is the burden
of the party seeking summary judgment to show "conclusively that
a fact alleged. . .was not susceptible of an interpretation that
might give rise to an inference" that a violation cognizable by
the court existed. Id. at 160, n.22. Accord: United States v.
Diebold, 369 U.S. 654, 655 (1962); EEOC v. Local 189, United
Association of Journeymen and Apprentices of Plumbing and Pipe
Fitting Industry, 427 F.2d 1091, 1093 (6th Cir. 1970) ; S.J .

4/ In applying Rule 56, Fed. R. Civ. P., to proceedings under 
Title VII, this Court in EEOC v. Local 189, Plumbers and 
Pipefitters, supra, 427 F.2d at 1093 noted:

We have disapproved the use of summary 
judgment where, although the basic facts were not in dispute, the parties neverthe­
less in good faith disagreed concerning the 
inferences to be drawn therefrom.

- 14-



Groves & Sons, Co. v. Ohio Turnpike Commission/ 315 F.2d 235, 237
233 (6 th Cir. 1963), cert. denied, 375 U.S. 824 (1963); Hart v. 
Johnston, 389 F.2d 239 (6th Cir. 1968); 3ohn Aluminum and Brass 
Corp♦ v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962); Rogers 
v. Peabody Coal Co., 342 F.2d 749, 751 (6th Cir. 1965).

It is self-evident that employers' and unions' motivations 
behind the adoption of one seniority system rather than another 
cannot be determined by summary judgment: "Questions of intent 
are particularly inappropriate for summary judgment." Fitz­
simmons v. Best, 528 F.2d 692, 694 (7th Cir. 1976); Accord,
Smith v. Hudson, 600 F.2d 60, 66 (6th Cir. 1979), cert, dismissed
___ U.S.___, 100 S.Ct. 495 (1979). For that reason, in Acha v.
Beame, 570 F.2d 57, 63 (2nd Cir. 1978), the court of appeals, 
in a post-Teamsters seniority system case, vacated a partial 
summary judgment, noting that there necessarily existed important 
issues of fact concerning the post-Title VII occurrence of 
discriminatory behavior, the bona fides of the seniority system, 
and the existence of discriminatory intent at the adoption of 
the seniority system.

Summary judgment is particularly inappropriate when, 
as here, the court had been made aware that DuPont and the 
union were impeding discovery covering anything that went 
on at the Louisville plant prior to the effective date of 
Title VII: "where the need for discovery in order to. . .
substantiate the claims asserted is clear, and where 
plaintiff was effectively denied the opportunity to engage 
in that discovery," summary judgment must be denied.

- 15-



Cedillo v. Ironworkers Local 1, 603 F.2d 7, 12 (7th Cir.
1979), citing Toebelman v. Missouri Kansas Pipe Line Co.,
130 F . 2d 1016 (3rd Cir. 1942). Cf_. Hospital Bldg. Co. 
v. Rex Hospital Trustees, 425 U.S. 738, 746 (1976)
(dismissals prior to "ample opportunity for discovery" are 
disfavored.)

(b). Although the evidence in the record is incomplete 
because of DuPont's resistance to relevant discovery, the 
inference is strong that its seniority system had its genesis 
in racial discrimination; had been adopted and maintained for 
discriminatory purposes; and is not "neutral" on its face, in the 
sense that it is irrational and has a harsher impact on blacks 
than whites.

When the seniority system was adopted all blacks were segre­
gated into the classification master seniority division and all 
whites were in the other threê 'd ivisions. Such racial segregation 
is inherently suspect. DuPont and the union did not seek to rebut 
the inference of prior job segregation during the formulation of 
the seniority system, as by a demonstration that few or no blacks 
possessed the skill or educational levels necessary to perform 
the work in the other three divisions. In fact, an inference 
can be justifiably made that many of the white jobs were un­
skilled based on DuPont's admission that whites with minimal 
education (less than 7th grade) had been hired into jobs from 
which blacks had historically been excluded. Moreover, the 1956 
system was irrational, being unrelated to the plant's functional 
divisions. See Williams' brief at 32-33. In fact, the sole 
justification for the classification division, it seems, was to

- 16-



ensure that in an area where racial segregation was common, blacks 
would not be able to move into white jobs.

That an avowed purpose of the original seniority system 
was to "keep blacks in their place" may also be inferred from the 
subsequent acts of DuPont and the union. When blacks were 
finally permitted to seek transfer to jobs in other seniority • 
divisions as a result of the 1956 agreement, DuPont con­
temporaneously imposed the requirements that to be eligible 
for transfer applicants must have a high school education and 
must achieve specified score levels on written tests. White em­
ployees already in these jobs were exempted from the requirement 
that they demonstrate their "ability" and were excluded from 
the requirement that they possess a minimum educational attain­
ment level. The obvious and foreseeable effect of these policies 
was the continued segregation of blacks.

When a seniority system which is irrational is superimposed 
on racially segregated jobs and serves to ensure continued segre­
gation, the inference that the system is not truly neutral, that 
it had its genesis in racial discrimination, and that it has been 
maintained with an illegal purpose becomes inescapable. When viewed 
under the standards of Adickes v. S.H♦ Kress & Co., supra, 398 
U.S. at 157, the undisputed facts in the record and necessary 
inferences which they evoke leave no doubt that summary judgment 
was inappropriate, and that the EEOC and private plaintiffs must 
be permitted a trial on their claims that the seniority system 
is not bona fide and the use of that system is unlawful.

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(c) . The trial court was also incorrect when, applying
Teamsters, it exclusively referred to the collective bargaining--------- _ 5/
agreements effective after the enactment of Title VII.

By its very terms Teamsters requires inquiry into the 
genesis of the system, not its most recent readoption.
Thus, every court to have considered whether a seniority system 
was "bona fide" under Teamsters looked into the facts and cir­
cumstances surrounding the adoption of the system. For example, 
the Fourth and Fifth Circuits in Patterson v. American Tobacco 
Co. , 586 F.2d 300 , 304 ( 4th Cir. 1978 ), and James v. Stockham 
Valves, supra, 559 F.2d at 353, directed their respective 
district courts in applying Teamsters to inquire into the 
circumstances surrounding the pre-Act adoption of the 
seniority system. See also Sears v. Atchison, Topeka & Sante 
Fe Railroad Co., 454 F.Supp. 158,174 (D.Kan. 1978) (creation 
of seniority system in 1890's); Chrapliwy v. Uniroyal,

5/ In its memorandum opinion, the trial court stated:
In the case at bar, there has been no 
showing that the seniority system set 
up in the collective bargaining agree­
ment, which was reached after the adoption 
of Title VII, was drafted with an intent 
to discriminate and the court agrees with 
the defendants that the holding in Teamsters 
supra, dictates their motion for summary 
judgment be granted.

[Memorandum Opinion, at 5].

- 18-



___F.Supp.___, 15 FEP Cases 822, 826 (N.D.Ind. 1977) (seniority
system developed in 1950's); Croker v. Boeing Co. Vertol Div.,
437 F.Supp. 1138, 1187 (E.D. Pa. 1977) (development of seniority 
system in 1950's). By not looking to collective bargaining 
agreements which predated the adoption of Title VII, the trial 
court clearly misapplied Teamsters.

(d). Finally, the trial court's grant of summary judgment 
cannot be sustained on the basis of Teamsters with regard to 
the allegations of discriminatory hiring, job assignments, trans­
fer policies, and other discriminatory terms and conditions of 
employment, occurring after the effective date of Title VII.
In fact, the Teamsters decision mandates a reversal on these 
aspects. In Teamsters, supra, 431 U.S. at 347, the Court noted:

Post-Act discriminatees, however, may 
obtain full 'make whole' relief, including 
retroactive seniority under Franks v .
Bowman, supra, [424 U.S. 747 (1976)] 
without attacking the legality of the 
seniority system as applied to them.
Franks made clear. . .that retroactive 
seniority may be awarded as relief from an employer's discriminatory hiring and 
assignment policies even if the seniority 
system agreement itself makes no pro­
vision for such relief.

See Acha v. Beame, supra, 570 F.2d at 64; Patterson v. American 
Tobacco Co., supra, 586 F.2d at 303; James v. Stockham Valves, 
supra, 559 F.2d at 351; Fisher v. Proctor & Gamble Mfg. Co., 
supra, 613 F.2d at 542-43.

In the present case, the Commission is clearly challenging 
DuPont's post-Act discriminatory hiring policies, its job 
assignment policies, and its testing and other qualification

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standards, which have continuously restricted blacks to their 
jobs in the classification seniority division. Failure to 
give post-Act rightful place seniority is a violation of 
Title VII, whether or not the seniority system is bona fide. 
Franks v. Bowman Transportation Co., supra, 424 U.S. at 757-762. 
As the Supreme Court has recently made clear, discriminatory 
testing and other job qualification standards as those here at 
issue are not part of a seniority system within the meaning
of Teamsters. California Brewers Association v . 3ryant, ___U .S.
___, 63 L.Ed. 2d 55, 65-66 , 100 S.Ct. 814, 825 (1980). See also,
Patterson v. American Tobacco Co., supra, 586 F.2d at 303.

II. THE DECISION IN UNITED AIR LINES
v. EVANS, 431 U.S. 553 (1977), DOES 
NOT SUPPORT SUMMARY JUDGMENT.

On the basis of the Supreme Court's decision in United 
Air Lines v. Evans, supra, the trial court also held that 
plaintiff Williams, and presumably the EEOC, could not 
challenge DuPont's testing requirements and other qualification 
standards for transfer and promotion. [Memorandum Opinion at 6].

Evans has no bearing on this case. The allegedly illegal
testing is a present violation of Title VII. As the court of
appeals stated in Patterson v. American Tobacco Co., supra,
586 F.2d at 304, in Evans,

[the Supreme Court] did not deal with a 
continuing violation such as a dis­
criminatory promotional system where 
the discrimination continues from day 
to day and a specific violation occurs 
whenever a promotion is made.

- 20-



See Acha v. rieame, supra, 570 F.2d at 65.
The record reveals that DuPont, from 1956 to the present, 

administered tests as a condition for hire and for transfer into 
jobs outside the classification seniority division. Maintenance 
of a discriminatory testing policy, unlike the discharge in 
Evans, continues to affect adversely the promotional and hiring 
opportunities of blacks who have either applied for employ­
ment or transfer or who have been deterred from doing so by 
reason of this policy. International Brotherhood of Teamsters 
v. United States, supra, 431 U.S. at 356.

We submit that the trial court did not properly examine the 
nature of the allegation that blacks are subjected to a discrimi­
natory testing policy. Such a policy, still in effect, has a
continuing and recurring adverse impact on the employment rights

6/of blacks.
This Court has recognized the concept that certain employment 

policies are continuing violations and may be challenged at any 
time when the policy adversely affects employment rights. In

6/ The continuing nature of the policy was perceived by 
Mr. Williams in his EEOC charge.

I am certain that whites hired before me and after me have transferred to both the Engineering 
and Operations Divisions even though they scored 
less than I on one or both tests and did not 
possess a high school diploma. (Emphasis supplied). 
[Charge of J. Williams].

- 21-



Morelock v. dCR Corp., 536 F.2d 1096, 1103 (6th Cir. 1978), a case 
arising under the Age Discrimination in Employment Act, 29 U.S.C. 
S621, et sea-, this Court held that discrimination resulting from 
the application o£ seniority provisions constituted a continuous 
violation of the statute "as long as that system is maintained 
by the employer." DuPont's testing policies are clearly of the 
same nature and, as in dorelock, are subject to challenge as 
long as they exist.

Evans dealt with a completed act of discrimination several 
years in the past; that decision manifestly does not affect 
the ability of EEOC or private plaintiffs to challenge the 
maintenance of a continuing, recurring policy which, by its own 
terms, currently affects present employment and promotional
opportunities .

III. THE ALLEGATIONS IN THE EEOCCOMPLAINT ARE PROPERLY BEFORE 
THE COURTT

in granting summary judgment on the "non-seniority" allegations 
of discriminatory hiring and transfer policies, the trial court held 
that the Commission incorrectly expanded the scope of the claims.
The court felt that all claims against the defendant by the in­
dividual employees attacked only the seniority system and its 
application. [Memorandum Opinion at 7]. We submit tnat tne trial 
court misread the nature of the applicable EEOC administrative 
charges and did not apply the proper legal standard governing 
litigation under Title VII.

The district court's approach that litigation under Title VII,

- 22-



whether by the Commission or a private party, is tied to the 
precise allegations in the EEOC administrative charge of dis­
crimination has been universally rejected. Rather, this and other 
courts have adopted the principle that a suit under Title VII 
is limited to the scope of the EEOC investigation which would 
reasonably be expected to grow out of the charge of discrimi­
nation; the Supreme Court has approved that principle. See 
General Tel. Co. v. EEOC, 48 U.S.L.W. 4513 , 4515. (May 12, 1980); 
EEOC v. Kimberly Clark Corp., 511 F.2d 1352, 1353 (6th Cir.), 
cert. denied, 423 U.S. 994 (1975); EEOC v . Bailey Co., 
supra; Tipler v. E.I. DuPont, 443 F.2d 125, 131 (6th Cir.
1971); Evans v. Delta Air Lines, 551 F.2d 113, 115 (6th Cir.
1977) . Accord: EEOC v. Occidental Life Insurance Co., 535 
F.2d 533, 541 (9th Cir. 1976), aff'd on other grounds, 432 U.S.
355 (1977); Jenkins v. Blue Cross Mutual Hospital, 538 F.2d 
164, 167 (7 th Cir. 1976), cert. denied, 429 U.S. 986 (1976);
EEOC v. riuttig Sash & Door, 511 F.2d 453, 455 (5th Cir.
1975); Sanchez v. Standard Brands, 431 F.2d 455, 466 (5th 
Cir. 1970); EEOC v. General Electric Corp., 532 F.2d 359, 364 
(4th Cir." 1976) .

In applying this principle to this appeal, there can be no 
doubt that all of the allegations of the complaint were the subject 
of an EEOC investigation. In its determination, the Commission 
specifically found that DuPont discriminatorily hires blacks by 
assigning them to positions in the classification seniority 
division, and that discriminatory testing restricts the transfer 
opportunities of blacks. The Commission found that these policies, 
although imposed prior to the effective date of Title VII, are

- 23-



presently used to deny employment opportunities to blacks.
[EEOC Determination at 2-3].

The trial court was factually incorrect in finding that 
the EEOC investigation was based on administrative charges which 
related solely to seniority issues. Rather, the EEOC deter­
mination was based on charges which explicitly alleged the 
existence of a prior practice of hiring discrimination and the 
imposition of employment testing and education standards which 
adversely affected the transfer opportunities of blacks. [See 
charges of J. Williams and I. Arnold]. It is certainly rea­
sonable for the Commission to have investigated whether such 
allegations of unlawful policies were currently extant. Upon 
such a finding it is certainly within the scope of this Court's 
decisions in Kimberly Clark, Bailey, and DuPont, that the 
Commission be entitled to bring suit to end such practices.

The lower court's reliance on EEOC v. Bailey Co., supra,
563 F.2d at 446, is misplaced. In Bailey, this Court reaffirmed 
its rule that the scope of a Commission law suit relates, not to 
the allegations of the charge, but to the issues which were 
the subject of a reasonable investigation of the charge. On 
the specific facts present in Bailey, the Court held that a 
"reasonable investigation" of a charge, alleging sex discrimination, 
would not reasonably encompass a finding of discrimination based 
on religion against Seventh Day Adventists. Clearly, this is 
not the situation here, where all of the findings by the 
Commission in its determination have direct antecedents in 
the allegations of the administrative charges.

- 24-



CONCLUSION
Summary judgment should be vacated.

Respectfully submitted,
LEROY D. CLARK 
General Counsel
JOSEPH T. EDDINS 
Associate General Counsel
LUTZ ALEXANDER PRAGER

Attorneys
EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 
2401 E Street, N.W. Washington, D.C. 20506 
(202) 634-6150

May 22, 1980

- 25-



CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing brief 

have today been mailed postage prepaid, to the following 
counsel of record.

Edgar A. Zingman Esq.Sheryl G. Snyder, Esq.
Robert B. Vice, Esq.Wyatt, Grafton & Sloss 
2800 Citizens Plaza Louisville, Kentucky 40202
Charles W. Brooks, Jr.,
Borowitz & Goldsmith 
310 West Liberty Louisville, Kentucky 40202
Patrick O. Patterson 
10 Columbus Circle 
Suite 2030New York, New York 10019 
Daniel HallJones, Rawlings, Keith & Northern 
504 Portland Federal Building 
Louisville, Kentucky 40202
James C. HickeyEwen, Mackenzie & Peden, P.S.C. 
2100 Commonwealth Building 
Louisville, Kentucky 40202

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION 

2401 E Street, N.W. 
Washington, D.C. 20506

May 22, 1980



11 >. . WL ■ »•». ’ % a-'..