Duhon v. Goodyear Tire and Rubber Company Brief for Plaintiffs-Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 73-1296

TOBE DUHON, Jr. and CHARLES L. WALKER, Jr., et al.,
Plaintiffs-Appellants, 

v .
THE GOODYEAR TIRE & RUBBER COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the 
Eastern District of Texas, Beaumont Division

BRIEF FOR PLAINTIFFS-APPELLANTS

GABRIELLE K. MCDONALD MARK T. MCDONALD 1834 Southmore Blvd., Suite 203 
Houston, Texas 77004
ELMO R. WILLARD III 2160 Washington Boulevard 
Beaumont, Texas 77705
JACK GREENBERG 
WILLIAM L. ROBINSON 
DEBORAH M. GREENBERG 10 Columbus Circle 
New York, New York 10019
ATTORNEYS FOR PLAINTIFFS-APPELLANTS



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 73-1296

TOBE DUHON, Jr. and CHARLES jL. WALKER, Jr., et al.,
Plaintiffs-Appellants, 

v .
THE GOODYEAR TIRE & RUBBER COMPANY,

Defendant-Appellee.

CERTIFICATE

The undersigned counsel for plaintiffs-appellants 
Tobe Duhon, Jr. and Charles L. Walker, Jr., et al. in 
conformance with Local Rule 13(a) certifies that the 
following listed parties have an interest in the outcome 
of this case. These representations are made in order 
that Judges of this Court may evaluate possible disqualifi­
cation or recusal:

1. Tobe Duhon, Jr. and Charles L. Walker, Jr., 
Plaintiffs.

2. Class of black employees and prospective employees 
of Goodyear Tire & Rubber Company whom plaintiffs represent.

3. Goodyear Tire & Rubber Company, defendant.

Attorney for Plaintiffs-Appellants



TABLE OF CONTENTS

TABLE OF CASES ....................................  ii
STATEMENT OF ISSUES PRESENTED FOR REVIEW.......... iv
STATEMENT OF THE CASE ............................  1
STATEMENT OF FACTS ...................  ..........  4

A. Background Information .............  4
B. An Overview of Defendants Discriminatory

Practices ............................. 6
1. Job Assignment and Promotion

Policies .......................  6
2 . Supervisory Positions ............ 8
3. Employment of Blacks in Craft Jobs .. 9
4. Exclusion of Blacks from Office

and Clerical Work ...............  10
5. Segregated Facilities .............  10

C. High School Education Requirement .......  11
D. Testing ..................................  12
E. Individual Plaintiffs ....................  14

1. Tobe Duhon, Jr...........  14
a. Charles L. Walker, Jr....  18

ARGUMENT
I. The District Court Erred in Failing To Find 

That Goodyear's High School Diploma Requirement Violates Title VII And In Not 
Enjoining The Use Of That Requirement .... 20

A. The District Court, Having Found That
Defendants 1 Education Requirement 
Was Discriminatory, Should Have Found 
That Such Requirement Was Unlawful... 20

i



21
B. The District Court Should HaveEnjoined Further Use of Defendant's 

High School Education Requirement....
II. The District Court's Ruling That Defendant 

Had Not Unlawfully Discriminated Against 
Plaintiffs Is Based Upon An Erroneous 
View Of The Applicable L a w ......  ........  21

III. The Court Below Erred In Failing To Grant
Any Relief To Blacks Whose Seniority Status 
Was Adversely Affected By Goodyear's 
Discrimination.............................  23

IV. The Court Below Failed To Apply The Proper 
Legal Standards In Determining Whether 
Goodyear Discriminated Against Blacks In 
Promotion To Supervisory Jobs And Assignment
To Craft Jobs .............................  26

V. The District Court's Denial Of Back Pay To
Plaintiffs And The Class They Represent Was 
Erroneous As A Matter Of L a w ...............  27

VI. The District Court Erred In Failing To
Award Counsel Fees to Plaintiffs ............  2 9

CONCLUSION ..........................................  30
CERTIFICATE OF SERVICE ...............................

TABLE OF CASES
Bing v. Roadway Express, Inc., 444 F.2d 687

(5th Cir. 1971) ..................................  10, 26
Clark v. American Marine Co., 320 F. Supp. 709 

(E.D. La. 1970), aff'd 437 F.2d 959 (5th Cir.
1971)   29

Culpepper v. Reynolds Metals Co., 421 F.2d 888,
(5th Cir. 1970)   21

Griggs v. Duke Power Company, 401U.S.424 (1971) ... 20,21,22, 24
Harkless v. Sweeny Independent School District,

427 F .2d 319 (5th Cir. 1971) ..................  28
Lea v. Cone Mills, 438 F.2d 86 (4th Cir. 1971) .....  29
Local 189, United Papermakers and Paperworkers v.

United States, 416 F.2d 980 (5th Cir. 1969),
cert denied, 397 U.S. 919 (1970).................  23, 25

IX



Moody v. Albermarle Paper Company, No. 72-1267(4th Cir., February 2 0, 19 73) ................  27, 2 8
Oatis v. Crown-Zellerbach Corp., 398 F.2d 496

(5th Cir. 1968) ..............................  2
Robinson v. Lorillard Corp., 444 F.2d 791

(4th Cir. 1971) ............................ 27, 28
United States v. Georgia Power Company, No. 71-3447 (5th Cir., Feb. 14, 1973) ...............  20, 25, 27, 28, 29
United States v. Hayes International Corp.,

415 F .2d 1038 (5th Cir. 1969) ................  10, 26, 27
United States v. Hayes International Corp.,456 F .2d 112, 120 (5th Cir. 1972) ............  14

STATUTES AND REGULATIONS
28 U.S.C. §1291 .................................  1
Civil Rights Act of 1964, Title VII
42 U.S.C. §§2000e et seq..........................  Passim
42 U.S.C. §2000e-5(f) ............................  28
42 U.S.C. §2 000e-5 (g) ............................  21
42 U.S.C. §2000e-6 (a) ............................  28
Federal Rules of Civil Procedures, Rule 23(b)(2) .. 2

iii



STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. A. Whether the District Court erred in failing 
to rule that defendant's use of a high school education 
requirement to screen persons for hiring# job assignment 
and promotion is unlawful, in light of its finding that
the requirement disproportionately excluded black applicants 
and the absence of any showing of relationship of the re­
quirement to successful job performance?

B. Whether the District Court erred in failing 
to enjoin defendant's use of a high school education re­
quirement?

2. Whether the District Court erred in ruling that 
defendants had not unlawfully discriminated aginst plain­
tiffs because of race and dismissing the action with costs 
taxed against plaintiffs, in the face of its finding of 
fact that defendant's use of a high school education re­
quirement and the Bennett and Wonderlic tests discriminated 
against blacks?

3. Whether the District Court erred in failing to 
order affirmative relief with respect to modifying defendant's 
discriminatory seniority system or the adjustment of black 
employees' seniority which is adversely affected by the 
education and testing requirements?

4. Whether the District Court failed to apply the proper 
legal standard in finding that Goodyear had not discriminated 
against blacks in promotion to supervisory jobs and assignment 
to craft jobs?

IV



5. Whether the District Court erroneously failed to 
award plaintiffs and the class of 32 blacks hired prior to 
September 13, 1965 back pay lost as a result of defendant's 
discrimination?

6. Whether the District Court erroneously failed to 
award plaintiffs attorneys' fees?

v



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 73-1296

TOBE DUHON, Jr. and CHARLES L. WALKER, Jr., 
et al.,

Plaintiffs-Appellants,
v . i

THE GOODYEAR TIRE & RUBBER COMPANY,
Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Texas, Beaumont Division

BRIEF FOR PLAINTIFFS-APPELLANTS

STATEMENT OF THE CASE

This case of racial discrimination in employment comes 
here on appeal from a final judgment of the United States District 
Court for the Eastern District of Texas, Beaumont Division, 
entered October 17, 1972. The appeal presents issues arising 
from the failure of the court below to follow the settled law 
of the Supreme Court of the United States and of this Circuit 
and to grant relief from the effects of a chemical company's 
racially discriminatory hiring, assignment, transfer, and promotion 
practices. This Court has jurisdiction of the appeal under 28 
U.S.C. § 1291.



On February 4, 1967 Stephen N. Shulman, then 
Chairman of the Equal Employment Opportunity Commission
(EEOC), having reasonable cause to believe that a violation
of Title VII had occurred, filed a written charge with the
EEOC alleging violation by Goodyear Tire & Rubber Co.
(Goodyear or Defendant), at its Beaumont Chemical Plant
(Plant) of rights guaranteed under Title VII of the Civil

1/Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (792a). On 
or about April 25, 1969 the EEOC rendered a decision finding 
reasonable cause to believe that the charge f led by the 
Chairman was true (794a). Plaintiff-Appellant Tobe Duhon, Jr., 
a member of the class aggreived by the practices and policies 
maintained by Goodyear which were alleged in the charge filed 
by the Chairman to be unlawful, subsequently received a letter 
dated May 28, 1970 from the EEOC authorizing him to institute 
a lawsuit against Goodyear within thirty (30) days of receipt 
thereof (798a).

2/Plaintiffs timely filed this suit as a Rule 23(b)(2) 
class action on behalf of all other similarly situated black 
persons under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§§ 2000 et seq. on June 30, 1970. The complaint alleges historic 
and continuing racial discrimination by Goodyear in hiring, job 
assignment, transfer, promotion, seniority, and other terms and 
conditions of employment (5a-lla). Goodyear answered this 
complaint on August 6, 1970, denying plaintiffs' allegations

1/ This form of citation is to pages of the Appendix.
2/ The other plaintiff-appellant, Charles L. Walker, Jr., 
is also a member of the class aggreived by the practices 
complained of in Chairman Shulman's charge. It is not, of course, necessary that he too have received a right-to-sue letter from the EEOC, under this Circuit's settled law. See Oatis v. Crown-Zellerbach Corp. 398 F.2d 496, 499 (1968).

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generally (12a - 17a). On November 18, 1971 plaintiffs filed 
an amended complaint to clarify and make more specific the 
allegations contained in their original complaint relating to 
proceedings before the EEOC and to invoke the jurisdiction of 
the Court pursuant to 42 U.S.C. §1981 (18a - 28a). Goodyear 
answered this amended complaint on December 1, 1971, denying 
plaintiff's allegations generally (29a - 34a).

After extensive discovery and a pre-trial conference, 
the action came on for a trial of four days, held March 15, 16,
17 and 20, 1972 before the Honorable Joe J. Fisher (52a -791a) . 
Following submission of post-trial pleadings, the District 
Court on September 15, 1972 handed down its memorandum opinion 
and findings of fact and conclusions of law (38a - 48a). The 
Court found that Goodyear's use of a high school education 
requirement and its use of the Wonderlic Personnel Test and 
Bennett Test of Mechanical Comprehension resulted in discrimi­
nation in the employment of black employees (40a). The Court 
enjoined the use of these tests (47a - 48a) which the Court 
found Goodyear already had stopped using (39a, 40a) but did 
not enjoin the use of the high school education requirement.
The Court also found that Goodyear's system of division seniority 
was not "designed, intended or used to discriminate against any 
employee" (41a) although it did find "that portion of the senior­
ity system which requires the same high school diploma and Wonder­
lic and Bennett test criteria as pre-employment is discriminatory 
and a violation of Title VII even though such criteria was con­
tinued by the Defendant in good faith and without any intent to 
discriminate against blacks" (41a - 42a). Apart from enjoining

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JL



the reinstitution of the Bennett and Wonderlic tests, the 
Court granted no relief to plaintiffs and ruled that plaintiffs 
had failed to prove that Goodyear unlawfully discriminated 
against them (48a). Judgment was entered October 17, 1972, 
enjoining reinstitution of the Bennett and Wonderlic tests 
and dismissing the action with costs taxed against plaintiffs 
(49a). Plaintiffs timely filed their Notice of Appeal on 
November 3, 1972 (51a).

STATEMENT OF FACTS

A . Background Information.
Goodyear hired the name plaintiffs, Tobe Duhon, Jr., 

and Charles L. Walker, Jr., black men, in the job classifica­
tion of laborer in 1961 and 1964, respectively. Each plaintiff 
sought promotion into a better and higher paying job than 
laborer, but until 1967 in the case of Mr. Duhon, and 1970 
in the case of Mr. Walker, they had been denied such advance­
ment pursuant to Goodyear's policies and practices.

The defendant, The Goodyear Tire & Rubber Co., Beaumont 
Chemical Plant, is engaged in the business of producing several 
types of synthetic rubber by chemical processes (65a). The 
plant is divided into nine seniority divisions —  Production- 
Rubber, Production-Wing Chemicals, Maintenance, Utility Opera­
tion, Warehousing-Shipping, Raw Materials, Transport Drivers, 
Transport Attendant and Labor Group (1021a) . As of June 14,
1971 it employed in these divisions a total of 367 whites 
(855a-887a) and 68 blacks (847a-853a).

Under Goodyear's seniority system an employee begins 
to accrue division seniority on his first day of employment in



a particular division (540a, 1021a). Promotions are made 
on the basis of division seniority (108a, 1022a). If an employee 
transfers from one division to another, his division seniority 
begins anew; he retains seniority in his former department for 
use in case of a reduction in force, but is not permitted to 
bring that seniority to the new department to which he trans­
ferred.

Prior to Title VII's effective date (July 2, 1965), 
blacks were hired only as laborers. The first time a black 
was hired directly into a non—laborer job was September 13,
1965 (889a). White employees hired contemporaneously with 
pre-September 13, 1965 blacks have had an opporutnity to ac­
crue all of their seniority in non-labor departments. No 
black hired prior to September 13, 1965 has had a like oppor­
tunity, for even if he has transferred out of the Labor Depart­
ment, he lacks some years of division seniority accrued by a 
white hired at the same time but directly into the non-labor 
department.

When the plant was first opened in 1961 there was 
no separate labor division. Laborers were assigned to the 
departments where they worked and carried their department 
seniority in that department. On July 21, 1964, 19 days 
after the passage of Title VII, Goodyear consolidated all of 
the laborers, all of whom were black, into one department 
and transferred their seniority to that Labor Department 
(538a, 895a). If an employee later transferred out of the 
Labor Department to one of the departments in which he had

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previously worked, he would start in that department with no 
division seniority even if he had worked in that division 
prior to July 21, 1964 (604a).

B. An Overview of Defendant's Discriminatory Practices.
1. Job Assignment and Promotion Policies.
When Goodyear first staffed the Beaumont Chemical/

Plant, it received approximately 5,000 applications for about 
100 jobs (73a, 525a, 532a). Prior to September 13, 1965, 32 
blacks were hired, all into the job classification of laborer 
(847a - 851a), the least skilled and lowest paid job in the 
plant (42a). During this same period 195 whites were hired, 
all but six into jobs higher than that of laborer (855a - 870a)
In order to be hired into a job other than that of laborer, an 
applicant was required to have a high school education (65a - 66a) 
and to attain a satisfactory score on the Bennett and Wonderlic 
tests (586a - 587a). 23 of the 32 blacks hired from the opening
of the plant until September 13, 1965, met the education require-

at the time of their hire (847a — 851a). Goodyear's assertion 
that none of the blacks attained satisfactory scores on the pre­
employment tests (586a - 587a) must be evaluated in the light 
of the personnel manager's testimony that there was no fixed 
cut-off score (73a, 75a) . The record indicates that a white,
L. Call, who had one year of college and received a score of 
26 on the Wonderlic and 38 on the Bennett test, was hired as 
an operator (855a) while a black, J. Parker, who had 2 years 
of college and received 29 on the Wonderlic and 36 on the 
Bennett, was hired as a laborer (850). The record further 
shows that four whites had scores of 18 or less on the Wonderlic 
and never took the Bennett, yet were hired in 1961 into non-labor

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jobs (855a-858a).
Industrial Employment Associates of Houston contracted 

with Goodyear to assist it in securing employees (100a). Indus­
trial Employment Associates tested employees initially and 
referred them to Goodyear for employment. Goodyear's personnel 
manager testified that if Industrial Employment Associates re­
ferred someone to Goodyear for a particular job Goodyear knew 
that the person met the minimum qualifications for that job 
(101a). Industrial Employment Associates referred plaintiff 
Walker for employment as a Helper after testing him (897a). 
However, Goodyear employed Mr. Walker as a laborer.

On April 16, 1962, three black laborers were for the 
first time allowed to transfer to other jobs (847a-848a).
From that date to July 2, 1965, only nine more black laborers

3/transferred to other jobs (847a-850a). Between July 2,
1965 and June,1971, an additional eighteen c£the 32 blacks 
hired into the Labor Department before September 13, 1965 were 
transferred out (847a-851a). Two of these, however, L. Lincoln 
and L. Raven, are in labor type jobs (847a). As of June, 1971, 
one of these 32 blacks remained in the Labor Department (R.Andrus) 
and one had quit (S. Aclese) (847a, 950a). All of the blacks 
transferred out of the Labor Department were performing their 
jobs satisfactorily (111a, 687a).

The transfer of each, with the exception of L. Lincoln 
and L. Raven, who hold the position of transportation attendant, 
was delayed until satisfactory performance on the Wonderlic 
and Bennett tests was achieved. Seven were required to secure

3/ One of these, C. Donatto, quit in 1967 (847a).
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their G.E.D. certificate ae a condition of oligibiiity for 
transfer (847a - 851a). Prior to July 2, 1965, there werei
a total of 236 transfers and promotions in non-labor department 
jobs and only 17 of those were received by black employees; 
this includes the transfers of the 12 blacks who transferred 
out of laborer jobs prior to July 2, 1965, and five additional 
promotions within non-labor departments. When these men were 
allowed to transfer, they of course carried with them none of 
their division seniority, for the reasons discussed above.

All of the 6 whites hired into labor jobs prior to 
September 13, 1965, transferred out of the Labor Department 
in less than four months. Only two of the 32 blacks hired 
before September 13, 1965 have transferred out in less than 
four months, while nine have remained in laborer jobs more than 
six years (847a - 850a). Goodyear did not hire a single white 
into the position of laborer until September 21, 1964 (79a,
868a).

2. Supervisory Positions.
As of the time of trial, the Company employed only 

one black supervisor who is in the Warehouse and Shipping 
Department (562a). There was testimony by blacks (S. Aclese 
and H. Cooper) that they trained white employees in the Ware­
house Shipping Department (432a - 433a, 454a - 455a) who were 
classified as warehousemen & shippers (431a, 453a), whereas 
the blacks were classified as laborers (429a - 430a, 452a - 453a). 
Additionally, one black testified that he trained a white employee 
who eventually became supervisor for the Warehouse and Shipping

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Department (435a). Goodyear's personnel manager testified 
that supervisors are selected by temporarily upgrading employees 
to the position in order to make the determination of whether 
they are qualified. The factors that the Company look to are 
demonstrated ability to handle the job, job experience, health, 
attendance and scores on the tests (559a - 560a). At all times 
the supervisor in the Labor Department, which has been either 
entirely or predominantly black, has been a white person who 
himself has never worked as a laborer (621a - 622a).

3. Employment of Blacks in Craft Jobs.
The Maintenance Department includes four craft 

categories—  mechanic, instrument-electrician technician, 
toolroom attendant and vehicle repairman, and materials salvage 
and repairman. These are among the highest paying jobs in the 
plant (939a).

Tobe Duhon became the first black ever to be employed 
in the Maintenance Department, when he was transferred to the 
job of mechanic third class on November 30, 1970 (197a, 199a, 
847a). As of June 14, 1971, he was still the only black in 
the Maintenance Department (847a - 853a). There were, as of 
June 14, 1971, 109 whites in the Maintenance Department (855a - 
887a).

As early as 1963, Mr. Duhon had attempted to present 
his qualifications to be considered for transfer to the Main­
tenance Department as a mechanic (914a). Vocational training, 
which Duhon had received in 1963 (287a - 288a), was sufficient 
background for that job (780a - 783a).

Duhon's qualifications were clearly superior to those 
of some of the whites who were considered to have had sufficient 
mechanical experience to be employed as mechanics and who had

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acquired their experience by working in rice fields or as 
deck hands. One of defendant's witnesses, a staff engineer 
who had been master mechanic when the plant opened, admitted 
that such experience as these whites had was not a sufficient 
qualification for that job (780a - 783a).

4. Exclusion of Blacks from Office and Clerical Work.
There was no testimony at trial with respect to the 

hiring and assignment of blacks to office and clerical jobs. 
However, the Plans for Progress and Equal Employment Opportunity 
Employer Information Reports for the years 1965 through 1971 
(803a - 814a) clearly show a policy and practice of excluding 
blacks from these jobs. The first and only black to be listed 
in the category "Office and clerical" appears in the 1971 
report. Goodyear, as of the time of that report, employed a 
total of 22 office and clerical workers (814a). In light of 
these statistics it is not surprising that the EEOC found,in 
a decision dated June 3, 1971 relating to a charge filed by 
Plaintiff Duhon, reasonable cause to believe that Defendant 
was discriminating against blacks with respect to office and 
clerical hiring policy (913a).

5. Segregated Facilities.
Defendant admits that it maintained racially 

segregated locker rooms (598a), had two lunch rooms, one 
used by blacks and one by whites (600a - 601a), and gave

4/ This finding is consistent with prior decisions that 
statistical evidence can be used to raise an inference of discrimination. See, Bing v. Roadway Express, Inc., 444 F. 2d 
687, 689 (5th Cir. 1971); United States v. Hayes International 
Corp., 415 F. 2d 1038, 1043 (5th Cir. 1969).

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one company picnic for whites and one for blacks (600a) 
because it was, at least as to the locker rooms, following 
the custom in the area (601a). It posted a notice on 
February 8, 1963, advising the employees of the requirements

! Vof the Executive Order to integrate (Def. Ex. 11). However, 
despite the fact that 13 blacks were hijred between February 8, 
1963 and December 31, 1965̂  the first black to be assigned to 
the white locker room was Plaintiff Duhon, who was assigned 
there only in 1966, after having testified about Goodyear's

i
segregated facilities at a United States Civil Rights Com­
mission hearing (207a). The Equal Employment Opportunity 
Commission found in its Decision relating to the Chairman's 
charge that the defendant unlawfully maintained segregated 
facilities (797a). The Equal Employment Opportunity Commis­
sion again found in its Decision dated June 3, 1971 that 
defendant was unlawfully maintaining segregated locker room 
facilities (911a, 913a).

C. High School Education Requirement
From the time it began operations in 1961, Goodyear 

has required that all persons hired into any of the hourly 
paid jobs except laborer have a high school diploma or GED 
certificate (65a - 66a, 87a). Since September, 1964, when the 
first white person was hired into the Labor Department (79a), 
the Company has imposed this educational requirement as a 
condition of employment in the Labor Department as well (606a- 
607a). In order for a person hired into the Labor Department 
to transfer out, he must possess a high school diploma or 
obtain a GED certificate (79a, 595a - 596a). The Company

5/ This form of citation, and "Pi. Ex. ____", are to exhibits
of the parties which were admitted into evidence at trial, but are not reproduced in the Appendix. •

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I

Never sought to learn whether there is a correlation between 
its education requirement and job performance (69a-70a, 81a).
To the contrary, Goodyear's personnel manager testified that 
two whites who did not possess high school diplomas and were 
hired into jobs as utilities operator and production operator 
performed their work satisfactorily (597a). It is undisputed, 
and the Court below found, that this requirement has a dis­
proportionate impact on blacks, inasmuch as non-whites complete 
fewer years of high school than whites in Texas (39a, 901a).

D . Testing
6/From 1961 until March or April, 1971 (87a) Goodyear 

required, in addition to a high school diploma or GED certifi­
cate, that a person seeking a non-laborer job attain satisfac-

Vtory scores on the Wonderlic Personnel Test, Form II and the
8/Bennett Test of Mechanical Comprehension, Form AA (72a) . This 

requirement applied to applicants for both hiring and transfer 
into non-laborer jobs (81a - 82a). Beginning in September 1964, 
this requirement was also made applicable to persons hired into 
the Labor Department (606a-607a). However, apart from certain 
job postings which set forth a cut-off score (82a) (and even in 
these cases it was admitted that deviations might be acceptable 
(83a)) there was no fixed cut-off score for hiring or transfer 
(73a, 75a-77a, 81a-84a). Black employees were simply advised

6/ The court below found that Goodyear discontinued use of 
the tests on March 1, 1971, (39a) but there is no evidence in
the record of the precise date.
7/ See 823a-825a.
8/ See 826a-842a.

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on different occasions that they had not done well enough on 
the Wonderlic and Bennett tests to transfer out of the Labor 
Department (191a, 326a, 349a, 362a - 363a, 379a, 394a - 395a).
Each black employee hired prior to September 13, 1965 (the 
date on which the Company first hired a black directly into 
a non-labor department job Tr. 26, (78a)), had to retake the
Wonderlic and Bennett tests at least once, to transfer out of 
the Labor Department.

At least until 1967, defendant permitted members of 
the class to retake these tests only one additional time (the 
first time having been prior to employment), and only after 
the lapse of six months and a showing that additonal knowledge 
or training had been acquired which might improve the prior 
test scores (615a, 888a). Thus, from September, 1962 until 
some time in 1967, black employees were prohibited from taking 
the Wonderlic and Bennett tests a third time and thereby from 
qualifying to transfer out of the Labor Department (363a, 394a).
In 1967 the defendant changed its policy and many were retested 
(847a - 851a). Some members of the class took the test as many 
as five times„ Some members of the class had to retake both 
tests even if they had previously received a satisfactory score 
on one. (847a - 851a). The average test scores of blacks were 
lower than the average test scores of whites on both tests (843a).

Despite the existence of this disparate scoring pat­
tern, at no time was Goodyear's use of the Wonderlic and Bennett 
tests for hiring and transfer purposes validated. Goodyear's 
first attempt to conduct a validation study of these tests 
occurred after it was advised by the Atomic Energy Commission 
that because of the requirement of the Executive Order governing

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non-discrimination by government contractors, it would be 
required to validate these tests or cease using them (87a).
At that time Goodyear retained the services of a psychologist 
to prepare a validation study. The study showed that there 
was no correlation between performance on the Wonderlic and 
Bennett tests and job performance (86a).

/
E. Individual Plaintiffs

1. Tobe Duhon, Jr. J
Plaintiff Tobe Duhon, Jr., a black male, was employed 

by the defendant on October 23, 1961 as a laborer in the main­
tenance department (906a). At the time he was hired, he had 
not completed high school, having been forced by the death of 
his mother to leave school and go to work (971a). However, he 
did carry certification as a mechanic, oiler and fireman in

9/the Merchant Marine (188a- 189a). Before Mr. Duhon was 
employed, he was given the Bennett and Wonderlic tests (184a, 
847a). Until September 27, 1964 he worked in the maintenance 
department (906a), Dept. Ill (1021a), and for at least part of 
that time he worked with the mechanics, and according to his 
testimony, did essentially the same work as the mechanics, 
who were all white (185a - 186, 190a - 191a, 285a - 287a).
Since he was not classified as a mechanic, he was not given a 
tool box, so Mr. Duhon had to work out of the other men's tool 
boxes. In late 1962 Mr. Duhon tried to bid on a mechanic's 
job, but was told that he was not qualified because he did not

9/ The only additional qualifications acquired by Mr. Duhon 
for the job of mechanic between 1961, when he was first employed, 
and 1970, when he finally entered the maintenance department, 
were the completion in 1963 of two semesters of mechanics' shop 
at a vocational school (287a - 288a).

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have a high school diploma (186a - 187a). In January, 1963I
Mr. Duhon wrote to the plant manager 'requesting an opportunity 
to present his qualifications as a mechanic (914a) and received 
a letter from the plant manager declining his request for a 
conference and telling him to talk with his supervisor and the 
personnel manager (982a). Mr. Duhon testified that he did not 
do so "because a lot of times there is some things involved in 
Civil Rights that the supervisors have no part of that you 
should talk with management" (315a).

On April 1, 1963 Mr. Duhon received his GED certi­
ficate (189a, 847a. ) He took the Wonderlic and Bennett tests 
for the second time on December 10, 1963 because he wanted 
to be upgraded to the job of mechanic (190a) and was told 
that he had failed (191a). He was not allowed to take the 
tests again until January 31, 1967, the same date on which 
several of the blacks hired in the Labor Department prior to 
September 13, 1965 took the test (847a - 851a). Having taken 
the tests three times, Duhon was finally told that he had passed 
the tests (193a). He transferred to the job of operator helper 
in the Utilities Department on February 20, 1967 and was promoted 
to the position of operator on August 21, 1967 (847a, 906a).
Although he wanted to work in the maintenance department, he 
accepted a vacancy in Utilities because he was convinced he

10 ,would never be permitted to transfer to maintenance (193a - 195a).
On December 1, 1970, Duhon was finally transferred back 

into the Maintenance Department, Dept. Ill, as a mechanic third 
class (847a, 906a), the job he had first bid on in 1962. He 
was the first black to hold that job (205a). On December 6,
10/ No black had ever held a job in the Maintenance Depart­
ment as Duhon knew (205a).

-15-



1.071, Duhon won promoted to inccliani c mocoik! class (000a).
Ills division seniority began on November 30, 1070, despite the 
fact that his service record shows that the Maintenance Depart­
ment is the same one in which he was originally employed as a 
laborer for almost three years, from his date of hire until 
July 27, 1964, six days after the Labor Department was created 
(906a). Division seniority is not used in the maintenance de­
partment for promotion, but it is used for shift preference 
(685a - 686a). Duhon was denied a shift preference in 
September of 1971 because he did not have sufficient division 
seniority. Had he been able to utilize his plant seniority 
to pick the shift he wanted, he would have bemable to continue 
his education (204a).

As early as 1962, Duhon began to complain about 
Goodyear's unequal treatment of black employees. On July 11,
1962 he filed a complaint with the President's Committee on 
Equal Employment Opportunity protesting the company's high 
school education and test requirements and stating that he felt 
his work experience qualified him for a mechanic's job (979a - 
980a). The case was closed for lack of cause (981a). On 
August 17, 1964 Duhon filed another complaint with the President's 
Committee complaining about Goodyear's job assignment, upgrading 
policies, harassment and segregated locker rooms (984a - 986a). 
Again the President's Committee found "no evidence to substan­
tiate the allegations of discrimination" (983a).

In 1965 Duhon testified against Goodyear at a hearing 
held by the United States Commission on Civil Rights (207a).
His first charge filed with the EEOC, on April 19, 1966 (987a - 
988a) was dismissed (997a). On March 12, 1968 Duhon filed

-16-



another charge with the EEOC (907a). With respect to this 
charge the Commission found, on June 3, 1971, probable cause 
to believe that Defendant had violated Title VII by engaging

lin racially discriminatory employment practices with respect 
to "locker room facilities, pre-employment tests, office and 
clerical hiring policy and working environment" (913a).

Fellow employees and supervisors began to harass 
Duhon after he filed charges. The first time he filed a 
charge he was called in by the master mechanic, Mr. Charles 
Gilmer, and asked who put him up to filing the charge (209a- 
210a). Mr. Gilmer, who was called by the defendant as a 
witness (771a), did not deny this. When Mr. Duhon was trans­
ferred into the white locker frrom in 1966, a strong chemical 
was thrown into his locker (213a). Mr. Barga, the personnel 
manager, admitted that a strong chemical odor was coming from 
the locker and that he told Duhon that if he didn't keep his 
locker closed he could expect further prombles (577a-578a).
The company took no further action with respect to the incident 
(215a, 630a).

On February 3, 1971, when Duhon was working with 
two white employees setting up an A-frame, part of it slipped, 
pinning Duhon against a deck railing. A wrench fell, hitting and 
breaking his safety helmet (219a-220a). One of the men with 
whom he was working and the shift foreman, who observed the 
incident, testified that it was an accident (719a, 759a). After 
Duhon reported the incident to Mr. Barga, Mr. Barga told him he 
was lying (220a).

On February 18, 1971 Duhon found a white cross painted 
on his tool box (221a). At first he tried to ignore it, but

-17-



when his L el low employees continued to taunt him about it lie 
complained to Mr. Barga and suggested that he should try to 
find out who did it. Mr. Barga told Duhon that he (Duhon) 
was "a Martin Luther King" and had to ignore things like 
that (222a). In addition, Mr. Duhon complained to Mr. Barga 
about his fellow workers putting "KKK" on their hats and 
drawing signs of a person hanging with Duhon's name on them 
(229a - 230a).

Mr. Barga admitted that he never issued a warning 
letter to any of the employees about whom Mr. Duhon has com­
plained, because he didn't find evidence of harassment (630a).

The Court below found that Duhon's career was "filled 
with unpleasant incidents" but that plaintiff failed to prove 
that Goodyear was responsible for or tolerated any known 
harassment. The court termed the incidents "meaningless, 
innocuous occurrences to which Mr. Duhon ascribed ulterior 
motivation," citing the "crane accident when Duhon's hat was 
knocked off" and the "stink bomb in his locker" (46a - 47a)

2. Charles L. Walker, Jr.
Goodyear hired plaintiff Charles L. Walker, a 

black man, on May 25, 1964 (850a). He had a high school 
diploma (850a). He was tested by Houston Industrial Employ­
ment Associates (320a) and was referred to Goodyear for a job 
as a helper, a non-labor job (897a). However he was employed 
as a laborer (850a). Although Walker bid on other jobs he 
was told he didn't qualify (324a) and he remained a laborer 
until May 18, 1970, when he was transferred to the Warehouse 
Shipping Department (850a). Walker retook the Bennett and 
Wonderlic tests on January 31, 1967 and on May 2, 1968.

-18-



Each time he was told that he hadn't passed (325a - 326a). 
However, in 1970 he was told he could move into the Warehouse 
and Shipping Department (328a). In June 1971 he transferred 
to the job of operator helper in the Wing Chemical Department 
(330a). His seniority for the purpose of promotion dates from 
his date of transfer into that department (331a).

I



ARGUMENT

I. THE DISTRICT COURT ERRED IN FAILING TO FIND THAT
GOODYEAR’S HIGH SCHOOL DIPLOMA REQUIREMENT VIOLATES 
TITLE VII AND IN NOT ENJOINING THE USE OF THAT 
REQUIREMENT.
A. The District Court, Having Found That 

Defendants * Education Requirement Was 
Discriminatory, Should Have Found That 
Such Requirement Was Unlawful.

The court below found that since the opening of
the Beaumont Chemical Plant in December 1961, Goodyear
has required completion of high school or attainment of
the GED certificate for employment in all positions above

11/that of laborer (39a). The court below also found that
the high school education requirement excluded a dispropor­
tionate number of black applicants from employment opportu­
nities (39a - 40a). No attempt was ever made to establish 
the relationship of the high school education requirement 
to job performance (69a - 70a, 81a), to say nothing of 
showing its business necessity. It is at this point in 
time a matter of hornbook law that such a requirement vio­
lates Title VII. See Griggs v. Duke Power Company, 401 
U.S. 424 (1971); United States v. Georgia Power Company,
No. 71-3447 (5th Cir., Feb. 14, 1973), slip op. at 21.

11/ it is undisputed that this requirement applied to both 
initial hire and transfer (65a - 66a, 79a). It is also un­
disputed that, commencing in September 1964, this requirement 
was extended to apply to hire into the Labor Department (606a- 
607a) and was still in use at the time of trial (87a).

-20-



Tho district court was patently in error jn failing to find 
that Goodyear's use of the high school education requirement 
constituted an unlawful employment practice.

B. The District Court Should Have Enjoined 
Further Use of Defendant's High School Education Requirement.
As of the time of trial, Goodyear still required 

the high school diploma or GED certificate as a condition 
of transfer from the Labor Department and as a condition 
of hire into any job (87a). As of June 14, 1971, there 
remained one black employee, R. Andrus (850a), who was still 
blocked from transfer out of the Labor Department because he 
lacked a high school education. In addition, all black 
applicants for employment were affected by the education 
requirement. While the district court in its decree enjoined 
the use of the Wonderlic and Bennett tests for pre-employment 
or transfer purposes, it inexplicably failed to enjoin use 
of the education requirement. Since the high school educa- 
tion requirement is plainly unlawful, this Court must reverse 
the district court's denial of relief with respect to said 
requirement. 42 U.S.C. §2000e-5(g); Griggs v. Duke Power 
Company, supra. Such injunctive relief is crucial to the 
effective implementation of Title VII as a public policy 
against discrimination. See Culpepper v. Reynolds Metals 
Co^, 421 F .2d 888, 891, 894 (5th Cir. 1970).

II. THE DISTRICT COURT'S RULING THAT DEFENDANT HAD NOT
UNLAWFULLY DISCRIMINATED AGAINST PLAINTIFFS IS BASED UPON AN ERRONEOUS VIEW OF THE APPLICABLE LAW.

The district court's finding that plaintiffs failed 
to prove that defendant unlawfully discriminated against them,

-21-



and its dismissal of the action with costs assessed against 
plaintiffs is apparently founded on the court's conclusion 
that plaintiffs failed to prove any malicious intent on the 
part of defendants. The court did find that defendant's edu­
cation and testing requirements resulted in discrimination 
against black employees (40a), and even though it erroneously 
failed to grant relief with respect to the education require­
ment it did enjoin reinstitution of the Bennett and Wonderlic 
tests. However, the court below stressed throughout its

that the tests, high school education requirement, 
seniority system, and promotional practices were imposed with— 
out respect to race, and without any intent to discriminate 
against blacks. Findings of Fact Nos. 4, 7, 8, 16 (40a-46a). 
Thus, it is clear that the court below erroneously believed 

intent to discriminate is a necessary pre—requisite to 
® finding that Title VII has been violated. This view was 
explicitly rejected by the Supreme Court of the United States 
in Griggs v . Duke Power Co., supra:

... [G]ood intent or absence of discrimina­
tory intent does not redeem employment pro­
cedures or testing mechanisms that operate 
as built-in headwinds" for minority groups 
and are unrelated to measuring job capability.
-- Congress directed the thrust of the Act
to the consequences of employment practices, not simply the motivation.

401 U.So at 432 (emphasis in original).
This Court had previously held that the granting

of injunctive, and, a fortiori, declaratory, relief, does
not depend upon the motivation underlying the adoption or
use of discriminatory practices;

-22-



Section 706(g) limits injunctive (as opposed to declaratory) relief to cases in which the em­
ployer or union has "intentionally engaged in" an 
unlawful employment practice. Again, the statute, 
read literally, requires only that the defendant 
meant to do what he did, that is his employment 
practice was not accidental.

Local 189, United Papermakers and Paperworkers v. United 
States, 416 F.2d 980, 996 (5th Cir. 1969), cert, denied,
397 U.S. 919 (1970)(emphasis in original).

The district court's dismissal of the action thus 
was based on a clearly erroneous application of the law to the 
facts as found by the court, and should be reversed.

III. THE COURT BELOW ERRED IN FAILING TO GRANT ANY 
RELIEF TO BLACKS WHOSE SENIORITY STATUS WAS 
ADVERSELY AFFECTED BY GOODYEAR'S DISCRIMINA­
TION.

All blacks hired by Goodyear prior to September 13, 
1965 were hired into the position of laborer (78a, 847a-851a). 
In order to transfer to a job other than that of laborer, 
these employees had to meet Goodyear's unlawful educational 
and testing requirements (79a, 81a-82a). Of the 32 blacks 
hired by Goodyear prior to September 13, 1965, 30 had trans­
ferred to non-laborer jobs by June 1971 (847a-851a). However, 
Goodyear's discriminatory education and testing policies kept 
them from transferring for as many as six years (847a-851a). 
Pursuant to Goodyear's seniority system, these employees' 
division seniority, which was used, inter alia, for promotion 
(108a) and shift selection (685a-686a) purposes, began on the 
day they transferred to non-laborer jobs, putting them at a 
considerable disadvantage vis a_ vis white employees who had 
always been hired directly into non-laborer jobs, and had 
never, until September 20, 1964, been hired into laborer

-23-



jobs. Thus black employees (class members) presently sufler 
adverse effects rooted in Goodyear's past hiring, transfer 
and seniority practices.

The Court below found that Goodyear's seniority 
system "was not designed, intended or used to discriminate 
against any employee because of race, color, religion, sex 
or national origin, but was designed for the purpose of 
giving promotional opportunities within a seniority division 
to those employees who had gained valuable experience in 
similar job groups in such seniority division" (41a). The 
significance of defendants "intent" is discussed above. The 
Court did not, and on the record could not, find any business 
necessity for the seniority system. Indeed, Goodyear's 
personnel manager and manager of engineering both testified 
that once an employee has achieved the required knowledge and 
qualifications for promotion, the use of plant seniority rather 
than division seniority would create no problem (110a, 691a- 
693a) .

As discussed above, it is apparent that the education
and testing requirements imposed by Goodyear are unlawful
under Griggs v. Duke Power Co., supra. While Goodyear's seniority
system may not, as the district court found, have been "designed,
intended or used to discriminate against any employee because
of race," it is beyond question that the Court below committed
error in granting no relief whatever with respect to the system.
This Court recently made a clear statement, which on the facts
of this case is controlling, as to the duty of the Court to
alter a seniority system which perpetuates the effects of
12/ it should be noted that even laborers who were transferred 
to non-laborer jobs prior to July 21, 1964, the date the Labor 
Department was established, carried no division seniority over 
to their new jobs (847a-850a). -24-

12/



pant d.i wcriminnLJon nntl Mm im lu rn  o f  UiaL remedy s

Pull enjoyment of Title VII rights sometimes 
requires that the court remedy the present effects 
of past discrimination. See Louisiana v. United 
States, 380 U.S. 145, 154 (1965). This includes 
both redressing the continuing effects of discri­
minatory seniority systems, Local 189, United 
Paperworkers v. United States, 416 F.2d 980 (5th 
Cir. 1969); United States v. Jacksonville Terminal 
Co., supra; United States v. Hayes International 
Corp., supra. and affirmative action to alter a 
seniority system which is not discriminatory on 
its face. If the present seniority system in fact 
operates to lock in the effects of past discrimi­
nation, it is subject to judicial alteration under 
Title VII. Local 53, International Association 
of Heat and Frost Insulators and Asbestos Workers 
v. Vogler, 497 F.2d 1047, 1052 (5th Cir. 1969);Local 153, supra at 991.

Most courts, in molding appropriate remedies, 
have adhered to the "rightful place" theory, ac­
cording to which blacks are assured the first oppor­
tunity to move into the next vacancies in positions which they would have occupied but for wrongful 
discrimination and which they are qualified to fill. 
Note, Title VII, Seniority Discrimination and the 
Incumbent Negro, 80 Harv. L. Rev. 1260, 1268 n. 2 
(1967). This is the theory which should be applied 
here.

United States v. Georgia Power Co., supra, slip op. at 44-45.
Every black employee hired before September 11, 1965 

has suffered from Goodyear's discriminatory education and test­
ing policies and its policies of not permitting black employees 
to carry to non-labor departments the seniority accrued in 
those departments as laborers prior to July 1964. Therefore, 
the only remedy that can possibly be adequate will be to allow 
these employees to use their plant seniority for all purposes 
for which division seniority is presently used. This Court 
should direct the district court on remand to enter a decree 
so providing.

-25-



IV. THE COURT BELOW FAILED TO APPLY THE PROPER LEGAL 
STANDARDS IN DETERMINING WHETHER GOODYEAR DISCRI­
MINATED AGAINST BLACKS IN PROMOTION TO SUPERVISORY 
JOBS AND ASSIGNMENT TO CRAFT JOBS.

As of June 14, 1971, there were 109 whites and 
one black, Tobe Duhon, in Goodyear's Maintenance Department 
(847a-853a, 855a-887a). As of March 31, 1971, Goodyear 
employed 21 whites and one black in office and clerical jobs (814a). 
Between September 24, 1965 and January 1, 1971 Goodyear pro­
moted 23 employees to supervisory jobs. One, L. Meredith, 
was black (943a-949a). While these ratios are not con­
clusive proof of past or present discrimination, they do 
present a prima facie case. See, United States v. Hayes 
International Corp., 456 F.2d 112. 120 (5th Cir. 1972);
Bing v. Roadway Express. Inc., 444 F.2d 687, 689 (5th Cir.
1971) .

As to jobs in the Maintenance Department, the court 
below found that " [t]o be employed as a third class mechanic 
any employee, regardless of race, must first have at least 
one year's relevant craft experience" (43a). There was no 
finding that such a requirement was founded on business 
necessity.

The court below made no finding with respect to the 
exclusion of blacks from office and clerical jobs.

As to supervisory positions, the District Court 
found that " [t]here is no evidence that racial considerations 
have ever been a factor in evaluating these characteristics" 
and that " [t]he evidence fails to establish that any qualified 
black has ever been intentionally overlooked for a supervisory 
position in favor of a less qualified white employee." (45a-46a).

-26-



On facts strikingly similar to those in the instant
case, this Court in United States v. Hayes International 
Corporation, supra, held that the statistical showing was 
sufficient in itself to raise the inference of racial dis­
crimination and that the burden was on the employer to show 
a lack of qualified blacks. This Court held that the District 
Court had failed to apply theproper legal standards and re­
manded the case for further hearing and determination. 456 F.2d 
at 120. The Court should do no less in this case.

V. THE DISTRICT COURT'S DENIAL OF BACK PAY TO 
PLAINTIFFS AND THE CLASS THEY REPRESENT WAS ERRONEOUS AS A MATTER OF LAW.

Based on its finding that plaintiffs had failed to 
prove that Goodyear unlawfully discriminated against them, 
the court below denied back pay to plaintiffs and to the class. 
If this Court reverses the district court’s finding of no 
unlawful discrimination, it should direct that the district 
court develop the facts relating to plaintiffs' and the class 
members' entitlement to wages lost as a result of defendant's 
education, testing and seniority practices. See United States 
v. Georgia Power Company, supra, slip op. at 31-32; United 
States v. Hayes International Corp., supra, at 121 (5th Cir. 
1972; Moody v. Albemarle Paper Company, No. 72-1267 (4th Cir., 
February 20, 1973), slip op. at 15-16; Robinson v. Lorillard 
Corp., 444 F.2d 791 (4th Cir. 1971).

Back pay is "an integral part of the whole of relief 
which seeks not to punish the respondent but to compensate the 
victim of discrimination," United States v. Georgia Power 
Company, supra, slip op. at 30. Accord, Harkless v. Sweeny

-27-



Independent School District, 427 F.2d 319,324 (5th cir. 1971);
Robinson v. Lorillard Corp., supra at 802. Indeed, in many 
cases like this one no relief other than back pay can even 
partially remedy the injuries suffered during long years of 
unlawful discrimination.

All members of the class have suffered economic loss
as a result of Goodyear's discriminatory practices and back
pay should be awarded on a class-wide basis. United States

13/
v. Georgia Power Company, supra, slip op. at 25-26; Moody 
v. Albemarle Paper Company, supra, slip op. at 15.

It should be noted that all of the 30 blacks hired 
before September 13, 1965 who have finally been allowed to 
transfer to non-laborer jobs are performing satisfactorily 
(111a, 687a). There is nothing on the record to indicate 
that these employees acquired, during the period they were 
confined to laborer jobs, any experience or training which 
would better qualify them for non-laborer jobs. The only 
difference between the situation of these blacks at the time 
they were hired into laborer jobs and at the time they were 
transferred to non-laborer jobs, in many cases more than 
six years later, was that they had met Goodyear's discrimi­
natory, non-job-related education and testing requirements.
Thus their entitlement to an award based upon the difference 
between the pay they would have received but for Goodyear's 
discriminatory practices and their actual earnings is clear.
13/ in the Georgia Power case, this Court held that class-wide 
back pay could be awarded in a pattern or practice suit brought 
by the Attorney General pursuant to 42 U.SoC. § 2000e-6(a), 
even though this section does not explicitly provide for back pay. 
A fortiori, back pay can be awarded to the class in an action 
brought under 42 U»S0C„ § 2000e-5(f).

-28-



VI. THE DISTRICT COURT ERRED IN FAILING TO AWARD 
COUNSEL FEES TO PLAINTIFFS.

Had the district court not erred by failing to grant 
injunctive relief as to the high school education requirement 
and the seniority system and had it not erred in finding that 
plaintiffs had failed to prove that defendant unlawfully 
discriminated against them, it would have been required, under 
the holding of this court in Clark v. American Marine Co.,
320 F. Supp. 709 (E.D. La. 1970), aff'd 437 F.2d 959 (5th Cir. 
1971), to award reasonable attorneys' fees. Accord, United 
States v. Georgia Power Company, supra, slip op. at 45; Lea 
v. Cone Mills. 438 F.2d 86, 88 (4th Cir. 1971). If the court 
agrees with our arguments with respect to the substantive 
issues of this case, it should direct the district court to 
award plaintiffs reasonable counsel fees in accordance with 
the standards set forth in Clark v. American Marine Co., supra.

-2 9-



I
i

CONCLUSION

We respectfully urge this Court to hold that the 
decision below was in error in each of the respects set forth 
herein, and in reversing to enter an appropriate order correct­
ing each of the district court's enumerated errors. This 
Court's order should hold that (1) Goodyear's use of its 
high school education requirement for transfer and hiring 
must be enjoined; and (2) Goodyear has discriminated against 
black employees in its hiring, assignment, transfer and 
seniority practices.

The Court should also remand with instructions to enter 
a decree providing full and effective relief for such dis­
crimination. Such relief should specifically include:
(1) the use of full plant seniority for all purposes by black 
employees hired prior to September 13, 1965; (2) an order 
that back pay may be granted to plaintiffs and class members, 
and proceedings to determine the amounts and distribution 
thereof; and (3) an award of reasonable counsel fees to 
plaintiffs.

This Court should further instruct the district court 
to hold further proceedings to determine (1) whether Goodyear 
discriminated against blacks in promotion to supervisory 
positions and assignment to craft jobs, and (2) the amounts

-30-



and distribution of back pay.

Respectfully submitted,

JACK GREENBERG 
WILLIAM L. ROBINSON DEBORAH M. GREENBERG

10 Columbus Circle 
Suite 2030
New York, New York 10019

GABRIELLE K. MCDONALD MARK T. MCDONALD
1834 Southmore Blvd. 
Suite 203
Houston, Texas 77004

ELMO R. WILLARD III
2160 Washington Boulevard 
Beaumont, Texas 77705

Attorneys for Plaintiffs-Appellants

-31-



CERTIFICATE OF SERVICE

The undersigned counsel for Plaintiffs-Appellants
Tobe Duhon, Jr., et al. hereby certifies that on the 12th 
day of March, 1973,she served copies of the foregoing 
brie'f for Plaintiff s-Appellants upon counsel of record 
for the other parties as listed below, by placing said 
copies in the United States mail, airmail postage prepaid.

John B. Abercrombie, Esq. 
Richard R. Brann, Esq. 
3000 Ore Shell Plaza 
Houston, Texas 77002.

Tobe Duhon, Jr., et al.

-32-