Bazemore v. Friday Respondents' Brief in Opposition

    No. 85-93

In T he

j îtjjrrmr ( ta rt of tip Imtrb Stairs
October Term, 1984

P. E. Bazemore, et al,
Petitioners

v.

W illiam C. F riday, et al,
Respondents

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

RESPONDENTS’ BRIEF IN OPPOSITION

Howard E. Ma n n in g  *
H oward E. Ma n n in g , Jr.* 

Ma n n in g , F ulton & Skinner 
801 Wachovia Bank Building- 
Post Office Box 1150 
Raleigh, N orth Carolina 27602 
(919) 828-8295

Millard R. Rich
Deputy A ttorney General 
Post Office Box 629 
Raleigh, N orth Carolina 27602 

Counsel for Respondents
* Counsel of Record

W i l s o n  - E p e s  P r i n t i n g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n . D . C .  2 0 0 0 1



QUESTIONS PRESENTED

1. Should this Court grant certiorari to review the 
fourth circuit’s decision that there was no pattern or 
practice of intentional discrimination in the salary claims 
of Petitioners when

a) The salary claims were correctly decided and no 
pattern or practice of intentional discrimination 
was found by the district court, and

b) The statistical regression and data presented was 
properly rejected by the district court and fourth 
circuit as being inaccurate and based on inap­
propriate data?

2. Should this Court- grant certiorari to review the 
fourth circuit’s decision that there was no pattern or 
practice of intentional or individual discrimination in 
connection with the selection of county extension chair­
men when

a) The district court correctly applied the disparate 
treatment analysis requiring proof of intentional 
discrimination in connection with its decision on 
the claims of discrimination in selection of county 
extension chairmen, and

b) The selection process for county extension chair­
men was not in violation of Arizona Governing 
Committee v. Norris, 73 L.Ed. 2d 1236 (1983).

3. Should this Court grant certio7'ari to review the 
fourth circuit’s decision that there was no violation of 
Title VI in connection with the North Carolina Agricul­
tural Extension Service’s administration of the 4-H and 
Extension Homemaker Programs when there was no evi­
dence presented that any black recipient or participant 
was discriminated against in connection with the 4-H 
or Extension Homemaker programs?

(i)



11

4. Should this Court grant certiorari to review the 
fourth circuit’s decision that the district court properly 
denied certification of this as a class action pursuant to 
Rule 23, Federal Rules of Civil Procedure when the facts 
showed that certification was inappropriate here and the 
case was tried as a pattern or practice disparate treat­
ment case?



TABLE OF CONTENTS
Page

QUESTIONS PRESEN TED  ........  i

TABLE OF A U TH O R ITIES...........................................   iv

STATEM ENT OF THE CASE ...........................................  1

SUMMARY OF ARGUMENT ........... ...... ................ . 4

ARGUM ENT:

I. The Salary Claims Were Correctly Decided and 
C ertiorari Should Not Be Granted to Review 
Them ...........................     8

II. The County Extension Chairmen Claims Were
Correctly Decided and the  Decision Does Not 
Extend General Building Contractors v. Penn­
sylvania, 458 U.S. 375 (1982) Nor Violate
Arizona Governing Committee v. Norris, 73 
L.Ed. 2d 1236 (1983) ..................................................  21

III. The Decision of the Court of Appeals is Not in
Conflict W ith Green v. School Board of New 
Kent County, 391 U.S. 430 (1968) ........................  23

IV. The Decision of the Court of Appeals is Not in 
Conflict W ith Eisen v. Carlisle & Jacquelin, 417
U.S. 156 (1974) .............     26

CONCLUSION...............................................      30

A PPEN D IX  ..................................................................   la

(iii)



IV

Cases:
TABLE OF AUTHORITIES

Page
Arizona Governing Committee v. Norris, 77 L Ed

2d 1236 (1983)................................................... i, 6, 21
Cooper v. Federal Reserve Bank of Richmond, 467

U.S.----- , 81 L.Ed.2d 718 (1984) .................... 7, 19, 29
Dothard v. Rawlinson, 433 U.S. 312 (1977) ...........  5, 19
EEOC v. Federal Reserve Bank of Richmond, 698

F.2d 633 (4th Cir. 1983) _________ ________ 19
EEOC v. Korn Industries, Inc., 682 F.2d 256 (4th

Cir. 1981) ................... ..... ..................... ..........  17
Eisen v. Carlisle & Jacquelin, 417 U.S. 156

<1974) .....-......-......... ------ ----- ----------- ---- 7,26,27
General Building Contractors v. Pennsylvania, 458

U.S. 375 (1982)............................... ......... 6,17, 21
General Telephone Company of the Northwest,

Inc. v. EEOC, 446 U.S. 318 (1980)..... ............ 7, 29
General Telephone Company of Southwest v.

Falcon, 457 U.S. 147 (1982).................. ..........  28
Green v. School Board of New Kent County, 391 

U.S. 430 (1968) ..... .......................................... 23
Hazelwood School D istrict v. United States, 433

U.S. 299 (1977) .............. ....... ....... ...... ................... 4> 10, 17
International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977 )........... ................. ........passim
McDonnell-Douglas v. Green, 411 U.S. 792 (1973).. 4, 16,

21
Paxman v. Campbell, 612 F.2d 848 (en banc) (4th

Cir. 1980) .... ........ ....................... ................. ..... ........ 28
Pullman Standard v. Sw int, 456 U.S. 273 (1982)..4, 17, 21 
Texas Department of Community A ffairs v. Bur-

dine, 450 U.S. 248 (1981) .... ............. ...............6, ig ; 21
United A irlines v. Evans, 431 U.S. 533 (1977)..4, 17' 18

Constitution, Statutes and Regulations:
28 U.S.C. § 1291_______  7 26
42 U.S.C. § 1981....................................... ............  4’17
42 U.S.C. § 2000d.......................... ............  ’ 1
42 U.S.C. § 2000H-2............... .................... '' ,
42 U.S.C. § 2000d-l__________ _____________ ’ 1
42 U.S.C. § 2000e, et seq......... ................ ..........  4
Rule 23, Federal Rules of Civil Procedures .........ii, 7, 27, 29



RESPO N D EN TS’ B R IE F IN  OPPOSITION

STATEM ENT OF TH E CASE
This action was instituted in the U.S. District Court 

for the Eastern District of North Carolina on November 
18, 1971, by more than fifty employees of the North Caro­
lina Agricultural Extension Service (NCAES) alleging 
racial discrimination in employment and the provision 
of services by NCAES on behalf of 5 purported classes 
of blacks and indians. The United States intervened in 
the action on April 7, 1972, under Section 902 of Title 
IX and Sections 601 and 602 of Title VI of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000h-2, 2000d and 
2000d-l.

The United States was permitted to amend its com­
plaint in intervention by Order of the Court on October 
9, 1979, to include allegations of a pattern and practice 
of racial discrimination in alleged violation of Sections 
703 and 706 of Title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. § 2000e, et seq. Class action cer­
tification was denied by the Court on October 9, 1979, 
after discovery closed.

On November 23, 1981, plaintiffs amended their com­
plaint to allege violations of Title VII. The defendants 
denied all allegations of discrimination. The nonbifur- 
cated trial of this action began on December 7, 1981, 
and ended on February 12, 1982. Counsel for the United 
States and plaintiffs, acknowledged this was a disparate 
treatment case and that they had the burden of proving 
a policy, pattern and practice of intentional discrimina­
tion. (Tr. 10, 13, 16). The plaintiffs and the United 
States called over 46 witnesses to testify and introduced 
a multitude of exhibits in support of their pattern and 
practice and individual claims,

The defendants’ case began on December 31, 1981 and 
the defendants called over 15 witnesses and introduced 
over 250 exhibits in support of their contention that no 
pattern or practice of discrimination existed and that the 
individual plaintiffs were not entitled to relief.



2

Both the United States and the private plaintiffs called 
rebuttal witnesses, (Tr. 6411-6616). The transcript con­
sisted of 32 volumes and 6818 pages. Although there was 
some overlap of exhibits, the defendants introduced 274 
exhibits, the plaintiffs 262 and the United States 274.

On August 20, 1982 and September 17, 1982, the Court 
entered Judgments and Orders dismissing all claims of 
both the United States and the individual plaintiffs.

In its decision of August 20, 1982, with respect to 
the pattern and practice claims, the Court found as 
follows:

(a) That this was not a proper action to be certified 
as a class action pursuant to Rule 23, Federal Rules 
of Civil Procedure. (49a) This Finding was appealed.
(b) That blacks are not discriminated against in 
geographical employment assignments in NCAES. 
(53a) This Finding was not appealed.
(c) That NCAES does not discriminate in recruit­
ment of black professional employees (55a) This 
Finding was not appealed.
(d) That NCAES does not discriminate in hiring 
black professionals at the county and state levels and 
NCAES’s selection procedures are non-discriminatory. 
(62a) This Findings was not appealed.
(e) That NCAES does not discriminate in assign­
ments of professional personnel to areas of responsi­
bility (i.e. crops, livestock). (64a). This Finding was 
appealed.
(f) That NCAES does not discriminate in title pro­
motions of county level professional employees (from 
assistant to associate to full agent) and the perform­
ance evaluation system used in connection with pro­
motions of county level professionals was valid, and 
non-discriminatory. (74a) This Finding was not ap­
pealed.
(g) That NCAES does not discriminate in the selec­
tion of county extension chairmen. (101a) This Find­
ing was appealed.



3
(h) That NCAES does not discriminate in the selec­
tion of state level positions such as director, pro­
gram leaders, specialists, and district chairmen. 
(106a) This Finding was not appealed.
(i) That NCAES does not discriminate with respect 
to terms, conditions and privileges of employment. 
(72a) This Finding was not appealed.
(j) That NCAES does not discriminate in connec­
tion with salaries. (150a) This Finding was not ap­
pealed.
(k) That NCAES does not discriminate in work as­
signments. (152a). This Finding was not appealed.
(l) That NCAES has established valid, nondiscrimi- 
natory qualifications, tests, selection standards and 
procedures in hiring and promotion. (158a) This 
Finding was not appealed.
(m) That NCAES has taken appropriate action to 
correct the present effects of past racially discrimi­
natory policies and practices. (163a). This Finding 
was not appealed.
(n) That NCAES provides equal services to minori­
ties (164a). This Finding was not appealed.
(o) That NCAES’ services to farmers and other per­
sons are provided on non-racially segregated basis. 
(164a). This Finding was not appealed.
(p) That NCAES is not in violation of Title VI in 
the delivery of services to 4-H and Extension Home- 
maker Clubs. (185a). This Finding was appealed by 
Petitioners but not by the United States.
(q) That the case was a disparate treatment case, 
and NCAES did not engage in a pattern or practice 
of racial discrimination. (205a)

In its decision of September 17, 1982, the Court analyzed 
the individual claims of 42 plaintiffs and determined that 
none were entitled to relief.

The United States and Petitioners appealed to the 
fourth circuit. The United States appealed from only 3 
of the 16 adverse rulings on their claims of alleged pat­
tern or practice of discrimination. The private plaintiffs



4
appealed from only J of the foregoing adverse rulings; 
salaries, county extension chairmen, 4-H and Home Eco­
nomics and class action denial.

Decision was rendered by the court of appeals on De­
cember 10, 1984 affirming the district court’s two judg­
ments in all respects. Judge Phillips dissented on three 
claims, to wit: the 4-H Club claims; class action and sal­
aries. He affirmed in all other respects. Petitions for 
Rehearing and rehearing en banc were denied by an 
evenly divided court on April 15, 1985.

SUMMARY OF ARGUMENT
A. The court of appeals correctly decided the salary 

claims of petitioners in this disparate treatment case. 
The district court properly analyzed all petitioners claims, 
including salary, by the allocation of proof set for pat­
tern or practice and individual claims of racial discrim­
ination through disparate treatment, which claims re­
quire proof of intentional discrimination, be they Title 
VII or 42 U.S.C. § 1981. The district court and court of 
appeals correctly followed McDonnell-Douglas v. Green, 
411 U.S. 792 (1973) ; Teamsters v. United States, 431 
U.S. 234 (1977); Hazelwood School District v. United 
States, 433 U.S. 299 (1977) and United Airlines v. 
Evans, 431 U.S. 533 (1977) in requiring petitioners to 
prove their assertions of intentional discrimination. In 
each instance, petitioners failed to do so. The existence 
of intentional discrimination is for the trial court to 
decide. Pullman Standard v. Swint, 456 U.S. 273 (1982). 
The district court’s two decisions clearly show this was 
carefully decided on the facts and the facts showed no 
discriminatory intent.

Petitioners petition this Court with sweeping asser­
tions bearing faint resemblance to the facts. Petitioners 
have nothing new or important to bring before this 
Court in connection with any issues, including the salary 
claims. Petitioners tried this disparate treatment pat­
tern or practice and individual claim case without re­
gard to the particular facts surrounding NCAES, its



5
special requirements for hiring, staffing and without 
regard to the real non-discriminatory factors which 
clearly affect salary differences between all agents irre­
spective of race. Extension service employees in each 
of the 100 counties of North Carolina have factors af­
fecting salary that are different from county to county 
and have nothing to do with race. Petitioners come here 
asserting the same old arguments which have failed them 
in the past. There are no “wage scales” involved and 
petitioners failed to prove intentional discrimination in 
both pattern or practice and individual salary claims.

NCAES employees are professionals with college de­
grees required. Each of 100 counties has needs for 
different training and educational skills for NCAES 
agents and each county contributes different percentages 
of each agent’s salary and percentages vary annually. 
NCAES pays the remaining percentage of an agent’s 
salary. Salaries are not now, nor have they ever been, 
the same except for the minimum starting salary. From 
initial employment on, salaries of agents vary from 
county to county depending on performance, percentage 
of state versus county contribution and many other fac­
tors, none of which are racial. App, Exhibit A shows how 
much salaries vary between agents, with similar salary 
ranges, in just two years. Race has nothing to do with 
it. Petitioners submitted inaccurate comparisons and 
statistics which failed to utilize the proper factors affect­
ing all agents salaries. NCAES refuted and rebutted such 
evidence and showed it to be inaccurate and lacking in 
probative weight, which is permissible under standards 
set by this Court in Dothard v. Rawlinson, 433 U.S. 331 
(1977) and Teamsters, supra. The district court and 
court of appeals properly rejected such evidence and im­
proper statistics.

B. The district court and the court of appeals cor­
rectly rejected claims that the selection of county exten­
sion chairmen was discriminatory. Petitioners, utilizing 
inappropriate comparisons with respect to the selection 
process of the county extension chairman, the highest



6
county level position in NCAES, failed to prove their 
case. The district court, applying allocation of proof 
set out in Teamsters and Texas Department of Com­
munity Affairs v. Burdine, 450 U.S. 248 (1981), ana­
lyzed the statistical cases and individual claims against 
the evidence. Petitioners failed to prove a discriminatory 
pattern or practice and each individual claim was free 
from intentional discrimination. Petitioners now assert 
the decision extends General Building Contractors v. 
Pennsylvania, 458 U.S. 375 (1980) and violates Arizona 
Governing Board v. Norris, 73 L.Ed. 2d 1236 (1983). 
Once again, Petitioners avoid the facts in making their 
assertions here.

NCAES and each of North Carolina’s 100 counties 
sign an agreement in which both entities become co- 
employees and both pay a percentage of each county em­
ployee’s salary. (23a). NCAES recommends prospective 
employees to the County Commissioners. The decision 
must be one of joint acceptance. No responsibility is del­
egated to a third party. (77a). Norris is not applicable 
to this case. Petitioners next misdirected claim is that 
the circuit court extended General Building Contractors, 
supra, requiring proof of intentional discrimination in 
section 1981 claims, to Title VII claims. A Title VII dis­
parate treatment case requires proof of intentional dis­
crimination to succeed. Teamsters, supra.

C. The district court and the fourth circuit correctly 
denied Petitioners claims that the NCAES 4-H and 
Homemaker Extension Club programs were operated in 
violation of Title VI and on a racially discriminatory 
basis. Out of over 30,000 voluntary black participants 
in the 4-H programs in 1980 in North Carolina, not one 
black person came forward to testify that he or she had 
ever been subjected to racial discrimination. The same 
was true for the thousands of black females who were 
members of Homemaker clubs supported by NCAES. 
Petitioners attack the decisions by trying to assert that 
segregation has never been cured. The facts show no 
“freedom of choice” plan exists here. Both programs are



7
voluntary and not mandatory public school attendance 
situations. NCAES affirmatively took action which erad­
icated pre-1965 segregation in 4-H and Extension Home­
maker programs and the proof of the pudding is that 
out of the thousands of participants in those two pro­
grams none came forward to complain or assert any 
racial discrimination. The United States, understand­
ably, did not appeal these claims.

D. The district court and the fourth circuit properly 
denied class certification in this case. Petitioners assert 
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) was 
violated by both courts. Eisen, supra, dealt with two 
issues. The first was whether a class action determina­
tion was appealable under 28 U.S.C. § 1291 and the sec­
ond was whether a district court, upon a preliminary hear­
ing on the merits, can require defendants to pay a part 
of the class notification costs. Neither issue is present 
in this case and the district court’s denial of class certi­
fication came before trial on the merits and again, after a 
ten week trial. The record clearly shows that class ac­
tion was improper under Rule 23, Federal Rules of Civil 
Procedure and the district court’s decision explains why. 
The case was tried as a pattern or practice case in which 
the relief, had Petitioners won, would have been the same 
as if they had a proper class action, which they did not. 
Petitioners have pointed to no prejudice to their case 
by trying them as pattern or practice claims. The same 
relief is available either way. General Telephone Com­
pany v. EEOC, 446 U.S. 318 (1980). Even the elements 
of proving a prima facie case are the same in a pattern 
or practice case. Cooper v. Federal Reserve Bank of 
Richmond, 81 L.Ed.2d 718 (1984). The facts show that 
a class action is not appropriate here.

NCAES met the claims of petitioners and the United 
States head on in the trial of this case, responded to 
each claim, and showed an organization free from racial 
discrimination. Certiorari should be denied.



8
ARGUMENT

I. TH E SALARY CLAIMS W ERE CORRECTLY DE­
CIDED AND CERTIORARI SHOULD NOT BE 
GRANTED TO REVIEW  THEM,

Petitioners’ devote over 53% of the Petition alleging 
errors by the district court and fourth circuit in con­
nection with denial of their salary claims. Petitioners 
claim that the decisions (1) allow the use of “racially 
motivated wage scales” and (2 ) disregarded the statis­
tical regressions and data submitted by Petitioners in 
support of their claims of intentional wage discrimina­
tion. Petitioners have made blatant assertions as to what 
the district court and fourth circuit held without provid­
ing the Court with the facts surrounding NCAES, its 
organization, structure, salary process and promotion 
practices. Knowledge of the NCAES, its organization, 
structure and salarly process is essential to an analysis 
here. The district court’s opinion is respectfully referred 
to for a detailed summary of NCAES, its function, salary 
process, programs, and employment processes. (6a-207a)

It is essential to understand from the outset that 
NCAES is not a factory assembly line endeavor, nor a 
corporation whose work force engages in similar tasks 
in similar work environments at plants and offices located 
within each of North Carolina’s 100 Counties. Petition­
ers refer to the NCAES salary process as “wage scales” 
as if this case were a plant setting. Such is not the case.

The district court and the panel majority recognized 
that no “wage scale” situation exists and no meaningful 
conclusions as to salaries can be drawn by petitioners’ 
comparing agents’ salaries by title, race and tenure 
across county lines. Both courts correctly understood 
that such a comparison led to no valid conclusions at 
all under the facts of this case. North Carolina is divided 
geographically into 100 counties. Each county is a sep­
arate governmental agency with its own elected Board 
of Commissioners. NCAES and each county enter into 
a “Memorandum of Understanding” which is a separate



9

written agreement and which, inter alia, governs the 
hiring of NCAES professional employees within the 
county and the amount of financial support that particu­
lar county will contribute towards the NCAES profes­
sional employees’ salaries on a percentage basis. NCAES 
county level professional employees, i.e., agents, receive 
two checks each month. One is from the NCAES, 
funded by state and federal funds, and the other from 
the County. NCAES agents cannot be hired to fill a 
county agent position without County approval. The 
salary claims of petitioners focus on county level em­
ployees of NCAES. (20a-24a).

The specific needs of each of North Carolina’s 100 
counties determine the educational background and skills 
needed in the agents it employs. The minimum educa­
tional requirement is a bachelor’s degree and skills 
within subject matter areas such as are needed by a 
particular county’s extension program, to wit: Agri­
culture, 4-H, Home Economics or CRD. For instance, 
if a particular county has a large dairy farm popula­
tion, its agricultural program needs would require an 
agent with a dairy or animal husbandry educational 
background or training skills. Thus each county has 
special needs. (58a-60a)

Why is this so? The answer is simple. North Carolina 
counties vary greatly in population, rural/urban popula­
tion, size, racial makeup, topography, agrarian needs 
and resources. The climate and adaptability of the land 
for crops, trees, poultry and livestock vary tremendously 
between counties located within the coastal plain, pied­
mont and mountain regions of the State. Black agents 
prior to the 1965 merger only functioned in 51 out of 
100 counties and there are counties which have never 
had black extension agents due to the fact that few 
blacks reside there and blacks did not apply for extension 
positions there. (28a-29a, 48a, 192a-193a) No discrim­
ination was found in NCAES assignment, recruitment or 
promotion of black NCAES employees.



10
Thus, the qualifications (educational background and 

skills) of the individual agents required to serve the 
needs of each county must differ and are in fact differ­
ent as the record here reveals. (58a-59a) It is undis­
puted in this case that because of the wide variance 
among North Carolina’s counties, the requirements for 
extension staff vary greatly from county to county and 
the needs of a particular county dictate the areas of 
subject matter responsibility, i.e., livestock, soybeans, 
etc., extension agents must possess within the particular 
county. Once an agent is hired to fill a county level pro­
fessional position, he or she cannot be required to move 
or transfer by NCAES from one county to the other nor 
fill a position opening for which that agent is not qual­
ified by education, training or interest to fill. (59a-61a) 
Each position carries its own special needs depending on 
the needs of the particular county. Where special quali­
fications are required to fill particular jobs, comparisons 
to groups who do not possess such special qualifications 
are of little probative value. Hazelwood School District v. 
United States, sw/pra, 307-308. Just as the varying needs 
of each county governs its NCAES professional staff, the 
variance between each 100 counties in size, population, 
agriculture and wealth, governs each county’s particular 
ability to financially support its Extension program with­
in the county, including contributions to county agents’ 
salaries. This has always been the case.

Because of this fact, some counties have an ability to 
pay more of an agent’s salary than others out of their 
own funds and to pay their agents higher salaries, The 
remainder of each agent’s salary comes from state and 
federal funds. The federal government allocates a sum 
of money to NCAES each fiscal year. Federal funds are 
combined with funds from the North Carolina general 
Assembly for NCAES to support salaries for county ex­
tension employees. The NCAES in consultation with the 
Board of County Commissioners determines what the state 
share of the agent’s salary will be from the federal and 
state funds and what the county will pay that agent as



11
its contribution. (20a) The percentage of salary paid by 
the county and NCAES varies greatly from county to 
county. These percentages change each year depending 
on the county’s individual ability to pay and interest in 
the NCAES program within the county. In 1981 the 
percentage of salaries of local extension staffs that were 
paid by county funds ranged from a high of 57% in 
Forsyth County to a low of 18% in Camden County. 
(110a-113a).

Each county’s extension staff is not staffed at the level 
of others. Each county staff is headed by the County 
Extension Chairman (“CEC” ) who is the highest paid 
NCAES county staff member in the county. The salary 
received by CEC’s varied greatly between counties de­
pending on the county’s support. (DX 67-1-67-100) The 
minimum county staff is 2 and several counties have 
staffs exceeding ten agents in number. The agent deter­
mines whether or not to apply for each vacancy and 
applicants who do not have the skills and educational 
background required for the county vacancy are not 
considered. The district court found that the recruit­
ment and hiring practices of the NCAES were valid and 
non-discriminatory. (58a-62a)

NCAES sets a minimum entry salary level for all new 
employees at the Assistant Agent Level with a bachelor’s 
degree and no prior experience. A salary differential is 
offered to those holding master’s degrees. On occasions, 
due to “market demand” an agent has been employed 
above the entry level in order to obtain the skills in short 
supply. There have also been times when prior and rele­
vant experience justified a salary above minimum entry 
level. (109a) Since 1965, NCAES has set the minimum 
starting salary for all new county agents uniformly. 
(883a)

After initial employment, the agent or a County Chair­
man’s salary may be affected at any given time by a 
great number of factors such as tenure, additional de­
gress, subject matter area of specialty, area of responsi-



12
bility, job performance and promotion from assistant 
agent to associate agent to full agent, ability of county 
to pay, state and county across the board raises, state and 
county merit increases, market competition for holders of 
certain educational degrees, and competition between 
counties for a certain agent’s skills. (109a-116a, 133a- 
136a, 383a-385a) Contrary to petitioner’s assertions, these 
variable factors are real, not imaginary and are sup­
ported by the record. (362a)

The position of County Extension Chairman was es­
tablished in 1962 prior to the enactment of Title VI. 
(82a-83a) The County Extension Chairman is the top 
administrative position in each county. (74a, 82a) Peti­
tioners tried to lump CEC salaries in their statistical 
salary comparisons of other agent’s salaries. (136a-138a)

The panel majority noted the difference of the County 
Extension Chairman in salary and stated:

“The district court correctly declined to compare 
or include the salaries of County Chairmen with those 
of agents. There is about a $4,000.00 average salary 
difference between chairmen and agent to begin with. 
The chairman is the head of the county based em­
ployees of the Extension Service. He is not routinely 
promoted from agent; the method of his selection is 
entirely different, and counting the salaries of the 
County Chairman together with those of the agents 
for purposes of analysis could only distort the result. 
(382a-383a)

The salary paid the chairman sets the maximum exten­
sion salary pay of any agent for that county. (DX 67- 
1-67-100, A. 632-633, 2210) Regardless of the starting 
salary, level, skill, performance or tenure, an agent’s 
maximum will be capped by the salary paid to the chair­
man. There was one exception found in 1981, in Alamance 
County, where the salary of Ozetta Guye, a black HEA, 
exceeded that of the Chairman. (DX 67-86) As between 
County chairmen the salary ranges have always varied 
thereby directly impacting on the maximum amount of 
the agents’ salaries within the counties. This accounts



13
for differences among county agents’ salaries and has 
nothing to do with race. Petitioners attempt to direct at­
tention from this. The reason why can be plainly seen 
from the following facts.

In 1971, chairmen’s salaries ranged from lows of 
$11,601 (Dare) and $11,621 (Avery) to highs of $16,588 
(Wake) and $16,646 (Rockingham). In 1976 the range 
was from low of $16,028 (Dare) to high of $23,931 
(Wayne). In 1981, CEC salaries ranged from lows of 
$20,000 (Stokes, Clay) to highs of $34,577 (Sampson) 
and $34,588 (Lenoir). (DX-196) As no one under the 
chairman receives a higher salary on the county level, 
this is proof positive that salaries vary from county to 
county because of this factor. It further proves that 
there are no uniform “wage scales”.

App. Exhibit A is a comparison of agents randomly 
picked within similar salary ranges for 1979 showing 
state and county contributions and comparing those same 
persons’ salaries the following year. This exhibit clearly 
shows the variances caused by county/state contributions 
in a one year period. Race has nothing to do with it.

The salary process is non-discriminatory

The salary process of NCAES conducted annually in­
volves pay raises of only three kinds. The panel majority 
grasped this fact and stated:

“At the outset of this part of the discussion, cer­
tain matters admitted or found by the district court 
and not appealed are important to remember. There 
is no discrimination in hiring. There has been no 
discrimination in promotion from assistant to asso­
ciate to full agent. Pay raises of three kinds from 
whatever source, percentage raises, across the board 
raises, and merit raises. There is no discrimination 
in across the board and percentage raises. Everyone 
gets them . . . .” Id. p. 25, 26) The merit salary 
process was determined to be nondiscriminatory.
(383a)

Another factor which explains differences in salaries 
is that the percentage of total salary paid by each county



14
varies from county to county. Percentages ranged from 
18% to 57;% in 1981. This factor alone causes differ­
ences from entry level on with respect to across the board 
and percentage raises, from state/federal and county 
funds, regardless of source and from year to year. Race 
has nothing to do with percentage contributions. (383a)

For example. Two agents both started at $15,000.00 
entry level in 1981, and both agents were employed as 
agricultural agents with agronomy backgrounds. Each 
was employed to fill a vacancy in a different county. In 
1982, the State of North Carolina provided a 5% cost of 
living increase. The effect would be as follows:

1. Agent A was employed by a county paying 30% of 
his salary. Thus Agent A’s salary was 70% state/federal 
funds and thus 70% was subject to the 5% cost of living- 
increase. Agent A would receive 5% of 10,500 (70% of
15.000) as an across the board raise. Thus if A received 
no other raise, A’s raise would be $525.00 (5% of 10,500).

2. Agent B was employed by a county paying 57% of 
his salary. Thus Agent B’s salary was 43% state/federal 
funds and thus 43% was subject to the 5% cost of living 
increase. Agent B would receive 5% of $6,450 (43% of
15.000) as an across the board raise. Thus if B received 
no other raise, B’s raise would be $322.50 (5% of 6,456), 
a difference in across the board raise in annual salary for 
1982. No other raises considered, A would receive in ex­
cess of over $200.00 per year simply as a result of the 
county percentage factor.

The record shows that every year some counties grant 
across the board increases in salary and some do not. 
NCAES does not utilize the funds allocated by the state/ 
federal increases and take state salary money from those 
counties who support the program to fund county por­
tions of raises in those counties who do not support the 
program with across the board raises. This factor causes 
a variance each year. (llO a-llla , 135a, 383a) All one 
has to do is apply a county percentage across the board 
raise to A and B of different percentages and the margin



15
in salary could be reduced or widened considerably. Such 
a factor is not created by imagination or ingenuity of 
counsel.
_ Tenure, educational level (i.e., masters or doctorate), 

size of program and area of skill are factors in an agent’s 
salary, including having a skill which is particularly 
needed. (109a) Also inflation is a factor which cannot 
be overlooked in salary analysis. The cost of entrance 
level hiring has gone up and salaries have to be adjusted 
upward to keep abreast of starting salaries for assistant, 
associate and full agent, none of which have anything 
to do with race and are uniformly set. (115a)

Petitioners criticize these factors as being products of 
imagination or argument of counsel. These factors are 
real and non-discriminatory.

Since the merit salary process involves the one area of 
NCAES pay increases (excluding county merit which is 
within the county control) which is not across the Board, 
the process will be addressed briefly in this Response. A 
discussion of the merit process is contained in the district 
court’s opinion. (113a-116a).

The linchpin of merit salary process is the NCAES 
Performance Review Guide and Personnel evaluation sys­
tem conducted annually. The district court found that the 
NCAES Performance Review Guide was valid and non- 
discriminatory and that the personnel performance evalu­
ation system within NCAES was valid and non-discrim­
inatory. (154a-158a) The NCAES utilizes the Perform­
ance Review Guide and performance evaluation system 
in determining merit pay increases. Petitioners did not 
challange the district court’s determination that the per­
formance evaluation system was valid and nondiscrim- 
inatory. Merit increases are based upon job performance 
measured by the valid non-discriminatory job perform­
ance evaluation system. The amount of merit pay is 
determined by “quartiling.” A discussion of quartiling is 
contained in the district court’s opinion. (112a-114a)



16
Quartiling is a reflection of an agent’s job performance 

which has been evaluated in a non-discriminatory manner. 
Both the district court and the panel majority so found 
from the evidence in this case. (150a, 400a)

In the face of the foregoing, Petitioners seek certiorari 
on two grounds relating to the salary claims. The first 
ground is that the decision is in conflict with decisions of 
this Court and other circuits because NCAES maintained 
and continued intentionally discriminatory “wage scales.” 
The second is that the district court and panel majority 
rejected the Petitioners and United States’ statisical re­
gression analysis and data in denying salary claims in 
conflict with decisions of this Court and other circuits. 
Petitioners assertions are incorrect.

The Intentionally Discriminatory “wage scale” argument
is specious

Petitioners argue that the decision holds that Title VII 
permits an employer to continue to pay blacks less than 
whites pursuant to intentionally discriminatory “wage 
scales” established prior to 1965 and that alleged result­
ing disparities constitute continuing violations of Title 
VII in conflict with other decisions of the fourth circuit. 
The opinion does not hold that at all and there is no evi­
dence that NCAES ever established “intentionally dis­
criminatory wage scales” prior to 1965 or at any other 
time.

This is a disparate treatment case. The district court 
determined the case to be one of disparate treatment un­
der McDonnell-Douglas v. Green, 411 U.S. 792 (1973) 
requiring proof of intentional discrimination in Title 
VII claims of disparate treatment. In a disparate treat­
ment case proof of discriminatory motive is critical. 
Teamsters v. United States, supra, 335.

The allocation and burden of proof in a Title VII dis­
parate treatment pattern or practice case is governed 
by Teamsters, supra. It is important to note the dis­
trict court’s discussion of the pattern or practice claim:



17
“A careful weighing and assessing of the plaintiffs’ 
statistical and non-statistical evidence led the court 
to conclude that the plaintiffs had probably made out 
a prima facie case with respect to defendants’ promo­
tion and salary practices, and the analysis proceeded 
on this assumption. While not conceding that plain­
tiffs had made a prima facie case, the defendant Ex­
tension Service assumed the burden of articulating 
plausible reasons for its actions, and its evidence, 
which the court found convincing, has been set forth 
herein. When the plaintiffs failed to produce evidence 
to establish that defendant’s reasons were pretextual 
plaintiff’s case failed. EEOC v. Korn Industries, 
Inc., 682 F.2d 256, 262 (4th Cir. 1981). (190a-191a)

It is clear Title VII disparate treatment and 42 U.S.C. 
1981 claims both require proof of intentional discrimina­
tion. General Building Contractors v. Pennsylvania, su­
pra. The district court found there was no intentional 
discrimination and that the reasons offered by NCAES 
were valid and plausible and not rebutted. (104a) 
The existence of intentional discrimination is for the 
trial court to decide. Pullman v. Swint, supra. The dis­
trict court made no finding that NCAES established or 
maintained intentionally discriminatory wage scales.

Title VII became applicable to public employers in 
1972. Hazlewood School District v. United States, supra, 
decided after United Airlines v. Evans, clearly held that 
a public employer (NCAES) who from that date forward 
(March, 1972) made all its employment decisions in a 
wholly non-discrimdnatory way did not violate Title VII 
even (if it had maintained an all-white work force by pur­
posefully excluding Negroes. Petitioners argument is 
fraught with misleading statements. Assertions that 
the majority opinion holds that “North Carolina is free 
to pay blacks hired prior to 1965 less than whites for 
the rest of their lives” and to pay blacks based on 
“racially motivated pay schedues established in the past” 
are evidence of such distortions. The district court 
stated:



18
“The court has been impressed by the absence in this 
case of so many of the usual badges of discrimina­
tion. For instance there was no evidence—that there 
is any difference in the entry level salaries of blacks 
and whites,” (199a-200a)

Applying the Teamsters and Burdine standards of proof, 
the district court analyzed individual plaintiffs’ salary 
and promotion claims and considered them in determining 
the pattern or practice case. Hazelwood marked the point 
in time in which analysis of employment decisions by a 
public employer for purposes of violations of Title VII 
would start. An analysis by both the district court and 
the panel majority, as set forth in their opinions, clearly 
showed NCAE’s employment decisions, including ad­
ministration of salary, to be made in a wholly non- 
discriminatory way. The lack of proof of intentional wage 
discrimination coupled with the non-discriminatory salary 
process supports the decision that NCAES did not violate 
and was not violating Title VII in 1972 or to the present. 
Couple this with the findings, not appealed, that there 
was no discrimination in hiring, promotion, assignments, 
education opportunities, training or services and it is 
clear that the plaintiffs’ distortion of the facts to attempt 
to lead the Court to believe that the NCAES salary 
process involved standardized “wage scales” at any time 
is specious. Hazelwood and Evans were properly followed 
here.

Plaintiff’s attack on d istric t court and panel m ajority’s 
sta tistical regression analysis rejection is invalid

Petitioners’ attack the rejection of their statistical re­
gression in the salary dispute. They claim that the 
district court “theorized” that there were nine possible 
explanations other than simply those factors of race, 
education and job tenure utilized as the basis for their 
statistical regression. The panel majority agreed that the 
plaintiffs’ statistical proof was “unacceptable”. (391a.) 
Petitioners assert the ruling is in conflict with opinions of 
this Court. NCAES respectfully refers the Court to the 
factual discussion on salary claims contained in this



19
Response for a discussion of the “factors” which plain­
tiffs claim are “theoretical”. Petitioners do not take 
issue with the fact that there was only one area of 
salary in which the NCAES had any discretion, to wit: 
Merit pay increases and that across the board, state/ 
county percentages, county merit pay, promotion based 
pay and so forth were uniformly applied.

Disregarding the facts, Petitioners assert their own 
interpretation of what data is important. The district 
court and the panel majority reviewed the entire NCAES 
salary structure and based upon the evidence, concluded 
that there were factors of importance not included in 
plaintiff’s statistical evidence which skewed and flawed 
its effect.

Petitioners erroneously contend that in order to rebut 
such flawed analysis the defendant must offer its own 
statistics in return. This argument flies directly in the 
face of the decisions of this Court as discussed in EEOC 
v. Federal Reserve Bank of Richmond, 698 F.2d 633 
(4th Cir. 1983) ; reversed on other grounds; Cooper v. 
Federal Reserve Bank of Richmond, supra.

In EEOC v. Federal Reserve Bank of Richmond, 
supra, Judge Russell wrote that:

“Of course, statistical evidence, like any other evi­
dence, is always subject to rebuttal and this rebuttal 
may assume a number of forms. In Dothard v. 
Rawlinson, Justice Rehnquist, concurring, said that 
the defendants in a discrimination case may endeavor 
(in rebuttal) to impeach the reliability of the statis­
tical evidence, they may offer rebutting evidence, or 
they may disparage in arguments or in their briefs 
the probative weight which the plaintiffs’ evidence 
must be accorded. 433 U.S. 338-39 And in Team­
sters, the Supreme Court declared that statistical 
evidence may be rebutted by “demonstrating that the 
plaintiff’s proof is either inaccurate or insignificant.’ 
431 U.S. at 360.

Neither Dothard v. Rawlinson, supra, 331; nor Team­
sters v. United States, supra, require the employer to



20
defeat plaintiff’s proof by statistics alone, but by dem­
onstrating that proof is inaccurate or insignfieant. The 
method is not by statistics alone as petitioners would 
have the Court believe. The regression which formed 
the linchpin of the plaintiffs’ and United States’ joint 
case omitted proven factors which impact on salary, such 
as across the board increases, county/state percentage 
increases, other merit increases, county contributions to 
salary or the county variances themselves. The district 
court properly rejected the regression analysis as proof 
of discrimination because the court understood there ex­
isted other relevant factors which had an impact on 
salaries. The panel majority stated:

“The district court refused to accept the plaintiff’s 
expert testimony as proof of discrimination by a 
preponderance of the evidence because the plaintiff’s 
expert had not included a number of variable factors 
the court considered relevant, among them being the 
across the board and percentage pay increases which 
varied from county to county. It defies logic to com­
pare the salary of an agent in a county which has 
granted many or large increases or pays high sal­
aries with one in a county which has granted few or 
small increases or pays lower salaries . . . .

Most of plaintiffs’ salary case is built upon the 
multiple regression analysis of their expert and we 
think that the district court was not required to ac­
cept that testimony as proof by a preponderance of 
the evidence . . . .  (387a-388a)

The facts clearly prove that each NCAES professional 
employee in 100 different counties is subject to different 
factors that impact on his or her salary level and have 
nothing to do with race.

NCAES produced countervailing and convincing evi­
dence to show petitioners’ statistical case as inaccurate 
and insufficient. Teamsters, supra, permits this to be 
done by substantive evidence not simply by counter sta­
tistics. The panel opinion is not in conflict with Team­
sters or the other decisions cited by petitioners.



21
II. TH E COUNTY EX TENSIO N CHAIRM EN CLAIMS 

W ERE CORRECTLY DECIDED AND TH E DECI­
SION DOES NOT EXTEND GENERAL BUILDING  
CONTRACTORS v. PENNSYLVANIA, 458 U.S. 375 
(1982) NOR VIOLATE ARIZONA GOVERNING COM­
M ITTEE v. NORRIS, 77 L.Ecl. 2d 1236 (1983)

Petitioners assert that the district court and Panel 
decision was incorrect in connection with the claims sur­
rounding the position of County Extension Chairman. 
This part of the decision was not dissented from by 
Judge Phillips. At the outset, it should be noted that 
the petitioners attack the decision on a narrow ground 
asserting that the panel failed to recognize the NCAES 
responsibility and liability for final selection of county 
extension chairmen. That is not the case at all.

Petitioners assert that the decision extends the hold­
ing in General Building Contractors to Title VII,

"despite the fact that Title VII, unlike section 1981, 
contains no such intent requirement.” (Pet. p. 50)

This assertion is simply incorrect. Title VII disparate 
treatment cases require proof of discriminatory intent 
on the part of the employer. Teamsters, supra, McDon- 
nell-Douglas, supra, Pullman Standard v. Swint, supra.

The Petitioners had to prove intentional discrimination 
in connection with the county extension chairmanship 
claims. This they failed to do. The district court ana­
lyzed the individual claims of those plaintiffs who be­
lieved they had been discriminated against in connection 
with selection for county extension chairman. The dis­
trict court utilized the allocation of proof set out in 
Texas Department of Community Affairs v. Burdine, a 
Title VII disparate treatment case, in analyzing every 
individual claim for intentional discrimination. (222a- 
227a) In its analysis of each claim, the district court 
found no intentional discrimination. This further but­
tresses the determination that there was no pattern or 
practice of discrimination, as both claims require inten­
tional discrimination. Teamsters, supra. (203a-345a)



22

Nor is this case similar to Norris. NCAES did not 
delegate its employment decisions to the Board of County 
Commissioners. The record is completely clear that both 
NCAES and the County Commissioners employ the 
county level employees, including CEC. (23a,-24a)

It is the responsibility of NCAES to recommend qual­
ified CEC candidates. The Board may either accept or 
reject the recommendations of NCAES. This is not dele­
gation of authority. (23a-24a).

Second, the plaintiffs and the United States to utilize 
“discrimination” to describe the hiring decisions made 
in connection with the County Extension Chairman. They 
overlook the fact that the district court examined each 
individual CEC applicant’s claim and found no discrim­
ination in any of the decisions. (227a-319a) Petitioners’ 
assertions that “the record in this case made clear that 
county officials invariably exercised any such delegated 
authority in a racial manner” are specious and without 
merit.

Third, the petitioners purported statistical case in­
volving county chairman was analyzed by the district 
court and panel and found to be inadequate to support 
a finding of discrimination. The district court stated:

“Plaintiff’s statistics are flawed in a further re­
spect in that they include the assumption that every 
black full agent at the county level was qualified to 
fill the position of county chairman. There was an 
utter lack of any proof to substantiate such a claim, 
and the persistent efforts of defendants through dis­
covery and all the way through trial to require plain­
tiffs to identify the qualified labor pool from which 
this position should be filled met with no success. 
While it is true that most vacancies have been filled 
from within the ranks of county professionals, it is 
equally true that the position of county chairman re­
quires special administrative leadership skills not 
shared generally by all employees.” (87a-89a)

The fourth point is that despite the different analysis 
of the statistical evidence of comparing applications and



23
recommendations, by the panel and the district court, 
such analysis did not probe any deeper than race, appli­
cation and recommendation. The analysis was insuffi­
cient to give rise to a prima facie case and considering 
all of the evidence presented, was found to be unpersua­
sive. (100a) The panel stated:

“If we assume that a prima facie case was made by 
the naked statistics consisting of vacancies and suc­
cessful applicant from 1968 through 1981, it has been 
completely refuted by consideration of all of the ap­
plications and even if the burden was upon the Ex­
tension Service to prove that its employment decisions 
were free from racial discrimination it has done so.” 
(423a)

Petitioners and the United States were permitted at trial 
to put on rebuttal evidence to refute or show pretext in 
any explanations provided by the defense. This they 
failed to do.

III . THE DECISION OF TH E COURT OF A PPEALS IS 
NOT IN  CONFLICT W ITH GREEN v, SCHOOL 
BOARD OF NEW  K E N T COUNTY, 391 U.S. 430 
(1968)

NCAES, as do all other Extension Services, sponsors 
two voluntary participation community programs, 4-H 
and Extension Homemaker Clubs. Petitioners assert that 
the district court and panel majority incorrectly denied 
petitioners’ claims with respect to an alleged affirmative 
duty on the part of NCAES to force integrated member­
ship in local Extension Homemaker Clubs and 4^H Clubs 
existing in racially mixed communities. Petitioners com­
pare this to is a school case and utilize the catch phrase 
of “freedom of choice” plan to fit these voluntary pro­
grams into Green v. School Board of New Kent County, 
supra, and to divert attention from the facts. It is sig­
nificant that the United States pursued this claim at 
trial but did not appeal this issue. Here is what the rec­
ord shows.



24
Extension Homemaker Clubs

Extension Homemaker Clubs are voluntary, volunteer 
groups formed in communities by adults and receive 
home economic and other advice and support from 
NCAES. It has been the policy that all extension home­
maker clubs are to be organized without regard to race 
and for each club to certify that its membership will 
be open to all persons without regard to race. NCAES 
home economics agents are instructed to encourage the 
formation of new clubs within their respective communi­
ties without regard to race. Announcements of club 
formation and this policy are published in the media. 
Despite this, clubs of one race exist and so do many 
clubs of both races. (165a)

There has been no evidence presented that since the 
adoption of this policy for extension homemaker clubs 
that one single black or white person has sought and 
been denied membership on the basis of race in an ex­
tension homemaker club in North Carolina. (166a-172a)

NCAES has created an integrated environment and 
the district court found:

“the evidence shows, and plaintiffs do not question 
that for all phases of club activity above the com­
munity club level, all extension staff and volunteer 
leaders, all county wide, district and state meeting 
and training sessions are fully integrated.” (168a- 
169a; FN 53)

4-H and Youth Program. The 4-H and Youth Pro­
gram conducted by NCAES is designed to develop good 
citizenship, character and to teach youth useful and prac­
tical skills. North Carolina ranks 7th in the United 
States in terms of black youth participation in 4-H. 
(Tr. 5107). 4-H is a voluntary program not a manda­
tory public school system. It is significant that in 1972 
black youth participation in 4-H programs was 22,174. 
From 1972 to 1980 participation by black youth rose to 
30,243, while black volunteer leadership increased from 
2,665 in 1972 to 4,022 in 1980. (DX 227) Membership



25

in 4-H is not static. It is open to youth 9 to 19 and 
membership is constantly changing. About 1/3 of the 
units are reorganized each year and consequently, the 
clubs are not static. A 9 year old in 1965 would be in 
his or her early 20’s now. (Tr. 5107) Out of the 30,243 
black youths and 4,022 black volunteer leaders who vol­
untarily participated in 4-H in 1980, or any other of the 
thousands of persons, black or white, who participated in 
4-H from 1965 to time of trial, none came forward to 
testify that he or she had been discriminated against in 
connection with the 4-H program.

Except for the one incident in Wake County involving 
a 4-H youth and volunteer leader, there has been no 
evidence presented of any person, black or white, being 
excluded from, denied participation in or subjected to 
discrimination with respect to participation in the com­
munity club 4-H program in North Carolina. (167a) 
The evidence presented in this case is that NCAES’s 
4-H and youth program is completely integrated in all 
activities beyond the community 4-H club level and has 
been for many years. (168a-169a).

The 4-H program has grown to 34,000 black partici­
pants in 1980 and black participation in 4-H has risen 
and not declined. This is conclusive proof that blacks 
participating in the 4-H programs in North Carolina do 
not consider their membership in the 4-H clubs “a badge 
of slavery” as petitioners previously argued.

Petitioners assert that NCAES failed to follow ad­
ministrative “affirmative action” regulations of the 
U.S.D.A. interpreting Title VI. At trial Petitioners took 
the position that affirmative action required all clubs of 
one race in a mixed community to merge with clubs of 
another race and if not the Extension Service would be 
required to withdraw services and support. In short, to 
shut off the program. (166a-167a)

The district court found that the 4-H and extension 
homemaker programs met the requirements of Title VI



26
and were operated without discriminatory intent or pur­
pose. (170a-183a).

The district court also recognized that this was not the 
same situation as “freedom of choice” school cases such 
as Green and that this is not a “freedom of choice” case. 
(174a) Petitioners’ assertions to the contrary should be 
disregarded.

The fact that not one black parent, leader or child 
came forward to testify that he or she had ever been 
denied membership, subjected to unfair or unequal treat­
ment or subjected to racial discrimination in the 4-H 
program in North Carolina is overwhelming proof that 
NCAES has taken affirmative action with respect to 4-H 
in North Carolina. The district court and panel major­
ity’s decisions are correct.

IV. TH E DECISION OF TH E COURT OF A PPEA LS IS 
NOT IN  CONFLICT W ITH EISEN v. CARLISLE & 
JACQUELIN, 417 U.S. 156 (1974)

Petitioners’ contend that- the decision of the court of 
appeals is in conflict with Eisen v. Carlisle & Jacquelin, 
supra. Petitioners assert that this Court, in Eisen de­
termined that the propriety of a class action does not 
rest on whether or not the plaintiff will prevail but 
rather whether or not the requirements of Rule 23 are 
met and that the district court and court of appeals 
failed to follow that directive in this case. Eisen in­
volved two issues. The first was whether or not the 
determination of a class certification and requirements 
that defendants pay a part of the statutory notice re­
quirement were appealable as a “final order” under 28 
U.S.C. 1291 and the second was whether the district 
court’s order directing the defendants to pay part of the 
cost of notice after a preliminary hearing on the merits 
was in violation of Rule 23. This Court held that the 
orders were appealable within 28 U.S.C. § 1291 and that 
the order requiring the defendant to pay the cost of 
notice after preliminary inquiry into the merits was 
error. Eisen, supra, 178.



27
It is important to note that class action certification 

was denied by the district court in 1979, following com­
pletion of discovery and that both petitioners and the 
United States had filed motions for class certification. 
The case proceeded as a pattern or practice action on be­
half of the same persons seeking to be certified as a class 
and seeking the same relief. The district court properly 
determined the class issues by following the requirements 
of Rule 23. (33a-49a)

The petitioners continue to press issue of the denial 
by the district court of class certification for 3 purported 
classes: (1) All black employees of NCAES on or about 
November 18, 1971; (2) All black members and poten­
tial members of NCAES 4-H and Extension Homemaker 
Clubs on or after November 18, 1971; and (3) A de­
fendant class of all county commissioners within the 
State of North Carolina on or after November 18, 1971. 
It is hard to imagine why this issue continues to be 
brought forward in view of the fact that this action was 
tried in common cause and on a theory of pattern or 
practice on all issues. The petitioners’ Post Trial Sub­
mittal of Proposed Findings of Fact and Conclusions of 
Law, incorporated the suggested relief contained in the 
United States Post Trial Submittals. The relief consisted 
of a proposed decree and order granting all the relief 
plaintiffs wanted If they won. (Plaintiffs Memorandum 
and Proposed Conclusions of Law and Fact filed Feb­
ruary 8, 1982)

NCAES respectfully directs the Court’s attention to 
the district court’s decision and the salary claim discus­
sions contained in this Response for a statement of the 
facts as to why the employee class was correctly not cer­
tified. NCAES professional county personnel are not sit­
uated in like employment situations “across the board” be 
they black or white. Each county agent within NCAES 
is employed to fill a vacancy within a particular county 
and to fill the special requirements and need of that 
county. Each county’s contribution in salary percentage



28
and salary offered differ from other counties. The claims 
of one plaintiff against a county for salary will not be 
typical with those of another. Likewise, the actions of 
each of the 100 Boards of County Commissioners with 
respect to hiring, selection of county chairmen and salary 
are autonomous within themselves. In short, the black 
plaintiffs are scattered over the state, each holding dif­
ferent jobs and performing different responsibilities 
within particular counties within 30 or so of the 100 
separate counties. In no sense are they workers within 
the same facility or do they have commonality with blacks 
employed in other counties. The only commonality is race 
and that factor, is insufficient for class certification. Gen­
eral Telephone Co. of Southwest v. Falcon, 457 U.S. 147 
(1982).

Likewise, the decision to deny class certification to the 
alleged class of County Commissioners is correct. Each 
of the 100 Boards of County Commissioners is autono­
mous. Each makes decisions only with respect to NCAES 
employees which it agrees to employ. Black professionals 
are not employed in all 100 counties. The actions of one 
Board of Commissioners are not binding on another. 
Class certification for the Boards of County Commission­
ers within North Carolina’s 100 counties was appropri­
ately denied. See Paxman v. Campbell, 612 F.2d 848 (en 
banc) (4th Cir. 1980) holding class certification of 130 
Virginia school boards inappropriate. There was no evi­
dence of intentional discrimination or a statewide course 
of action by any or all of 100 Boards of County Commis­
sioners with respect to the petitioners. Each Board main­
tained complete autonomy over its employment decisions. 
Class certification was properly denied.

The district court did not refuse to certify classes by 
virtue of conducting a preliminary inquiry on the merits 
as prohibited by Eisen. Petitioners try to distort the dis­
trict court’s refusal to certify a class of black 4-H and 
Extension Homemakers so as to make it appear the dis­
trict court refused upon some preliminary showing on



29
the merits rather than by applying the test of Rule 23. 
Nothing could be farther from the facts. The district 
court refused to certify the class before trial and again 
after trial on the merits. The panel majority stated:

“The court found that there was no evidence what­
ever that any other black child was ever denied mem­
bership in a 4-H Club or denied 4-H Club services, 
or provided inferior services by the Extension Serv­
ice. It thus denied certification of the class. The 
plaintiffs do not take exception either to the findings 
of fact of the district court or to its conclusion that 
the class should not have been certified on the basis 
relied upon by that court.” 370a-371a (emphasis 
added).

Suffice it to say that Petitioners failed to produce a sin­
gle alleged class member to testify. Since there was no 
evidence of discrimination in the first instance, class cer­
tification was appropriately denied as no class ever 
existed.

The United States and petitioners tried this case hand 
in glove and proceeded in common cause. The relief 
sought by pattern or practice claims was as broad as 
any class claims and permissible without regard to the 
requirements of meeting Rule 23. The pattern or prac­
tice claims provided the individual plaintiffs and prospec­
tive class members with an avenue of relief without re­
gard to Rule 23. General Telephone Company v. EEOC, 
supra, provides that pattern or practice relief would be 
the same as if class certification occurred. Cooper v. 
Federal Reserve Bank of Richmond, held that the ele­
ments of a prima facie pattern or practice case are the 
same in a private class action. Petitioners have yet to 
point out a single prejudice or disadvantage to them at 
trial by not receiving class certification. Had they won 
they would have been entitled to the same relief.

It is clear that Rule 23 was properly applied and 
Eisen was not disregarded by either court. 365a-378a.



30

CONCLUSION
For the foregoing reasons the petition for a writ of 

certiorari should be denied.
Respectfully submitted, this 16th day of August, 1985.

Howard E. Manning *
Howard E. Manning, Jr.* 

Manning, Fulton & Skinner 
Post Office Box 1150 
801 Wachovia Bank Building 
Raleigh, N orth Carolina 27602 
(919) 828-8295

Millard R. Rich
Deputy A ttorney General 
Post Office Box 629 
Raleigh, N orth Carolina 27602 

Counsel for Respondents
* Counsel of Record



la
APPENDIX

EXHIBIT A
VARIATIONS IN SALARIES OF COUNTY EXTENSION AGENTS 

BETW EEN JULY 1, 1979 AND JULY 1, 1980
Source and Amount Source and Amount

of Salary 7 /1 /79  of Salary 7 /1 /80
Name o f A gent County State
Pam Bagwell Macon 8,237
Wallace Stephens Bladen 6,000
Fletcher Barber, Jr. Chatham 7,788
Bobby Edwards Alleghany 8,600
Anne Edge Hyde 9,651
Gerda DeJong Washington 9,863
Sylvia Siler Beaufort 8,593
Doug Lee Davie 8,557
Jessica Tice Currituck 9,569
Lee Matthews Bladen 8,830
David Goff Cabarrus 7,412
Theresa Ford Chowan 9,189
John Deweese Hyde 10,369
Robert Lopp Davidson 7,335
James Williams Caswell 9,978
Wanda Wilkins Greene 9,591
Connie Greene Avery 10,519
Jerry Simpson Cabarrus 8,291
Jerry W ashington Alleghany 11,761
Pat Sheppard Pasquotank 11,004
Ronnie Thompson Davie 10,413
Nancy Hartman Davie 10,551
Lynn Qualls Randolph 9,363
Rebecca Beets Watauga 10,848
William Ruark Forsyth 8,000
Robert Breland Ashe 13,522
Jo Ann Falls Forsyth 9,240
George Koonce Warren 12,098
Sandra Brown McDowell 9,722
Franklin Shaw Onslow 10,573
Ostine West Davie 11,468
R.D. Hodges Henderson 11,519
Jean Rawls Bladen 11,809
Earline Walker Wake 9,572
Earline Waddell Richmond 13,061
Nancy Lilly Onslow 11,657
Jean Hubbard Moore 10,429
William Fowler Wilkes 11,125
Pam Outen Cabarrus 10,193
V irginia Credle Beaufort 13,381
Rebecca Gaddy Stanley 11,104
Ken Patterson Alexander 11,971
Doris Rogers Cabarrus 10,914
Tommy Glover Sampson 12,881
C.D. Bunn Swain 13,672
Doug Young Randolph 12,348
Jane Ross Bladen 14,556
Sara Casper Wake 10,890
Robert Swain Duplin 13,476
Ozetta Guye Alamance 11,804
Dorothy Greene Guilford 11,923
Sam Tuten Forsyth 9,618
Carol Baker Union 13,516
Phil Bazemore Union 13,857
John Waddell Surry 11,519
Eugenia Ware Rutherford 12,683
F.G. Johnson Pasquotank 16,052
Source o f Data: U.S. Exh. #5 8

County Total State County Total
3,763 12,000 9,061 3,998 13,059
6,000 12,000 6,600 6,480 13,080
4,212 12,000 9,767 4,507 14,274
3,900 12,500 10,060 4,095 14,155
2,892 12,543 12,116 3,448 15,564
2,764 12,627 11,549 2,985 14,534
4,044 12,637 10,352 4,452 14,804
4,120 12,677 10,213 4,500 14,713
3,180 12,749 11,826 3,502 15,329
4,070 12,900 10,213 4,396 14,609
5,998 13,410 9,053 6,469 15,552
4,485 13,674 11,558 4,889 16,447
3,425 13,794 13,146 3,728 16,874
7,116 14,451 8,969 8,316 17,285
4,522 14,500 11,476 4,894 16,360
4,988 14,579 11,150 5,680 16,830
4,376 14,895 12,711 4,814 17,525
6,709 15,000 9,120 7,380 16,500
3,314 15,075 14,077 3,480 17,557
4,215 15,219 12,104 4,635 16,739
5,100 15,513 13,015 5,640 18,655
5,061 15,612 12,606 5,520 18,126
6,343 15,706 11,690 6,827 18,517
5,152 16,000 13,133 5,736 18,869
8,070 16,070 8,800 8,881 17,681
2,736 16,258 15,274 2,964 18,238
7,030 16,270 10,764 8,881 19,645
4,368 16,466 14,308 4,718 19,026
6,770 16,492 11,094 7,312 18,406
5,927 16,500 12,030 6,372 18,402
5,522 16,990 13,615 6,024 19,639
6,552 18,071 12,671 7,076 19,747
6,297 18,106 12,500 8,787 21,287
8,544 18,116 11,329 10,818 22,141
5,112 18,173 15,607 5,623 21,230
6,534 18,191 13,623 7,020 20,643
7,827 18,256 12,472 8,375 20,847
7,284 18,409 12,678 8,280 20,958
8,250 18,443 11,912 9,075 20,987
5,076 18,457 15,919 5,580 21,499
7,690 18,794 13,214 8,267 21,481
6,864 18,835 13,868 7,344 21,212
8,832 19,746 13,005 9,165 22,170
7,008 19,889 16,009 7,536 23,545
6,367 20,039 15,040 6,367 21,407
7,741 20,089 14,183 8,515 22,698
5,603 20,159 16,876 7,009 23,885
9,324 20,214 13,179 11,376 24,555
6,846 20,322 15,524 7,325 22,849
8,725 20,529 14,284 9,597 23,881
8,784 20,707 13,815 9,624 23,439

11,295 20,913 11,180 12,417 23,597
7,826 21,342 15,868 9,048 24,916
7,748 21,605 16,243 8,580 24,823
9,808 21,327 13,911 10,655 24,566
9,296 21,979 15,766 9,761 24,812
6,146 22,198 18,857 6,760 25,617