Logan v. The General Fireproofing Company Brief for Appellee

    IN THE

United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 15.272

NETTIE MAE LOGAN,
Appellant,

versus

THE GENERAL FIREPROOFING COMPANY, 
a corporation,

Appellee.

On Appeal From The United States District Court 
For The Western District of North Carolina 

Shelby Division

BRIEF FOR APPELLEE

J. TOLIVER DAVIS 
108 Florence Street 
Forest City, North Carolina

JESSE S. HOGG 
GREENE, HOGG &  ALLEN 
1201 Brickell Avenue 
Miami, Florida 33131

Attorneys For Appellee



INDEX
Page

COUNTERSTATEMENT OF THE CASE ...............  1
1. Manifest Errors in Appellant’s Statement . . 1
2. Additional Relevant Facts ..........................  8

ARGUMENT
1. The United States Supreme Court Has 

Not Established Extraordinary Stand­
ards For Summary Judgments In Title 
VII Cases, But Has Confirmed That 
Ordinary Standards Are To Apply, And 
Judicial Experience Has Confirmed That 
Relief By Way of Summary Judgment 
Is Peculiarly Appropriate To These 
Cases, Because A Standard Practice Has 
Arisen Whereby Individual Plaintiffs Al­
most Always Bring Broad Class Actions,
Even When They Are In Truth Aware 
Of No Class Discrimination; These Ac­
tions Should Not Be Allowed To Proceed 
If The Plaintiff, Given Ample Opportun­
ity Through Discovery And Independent 
Means, Cannot Show The Existence Of
A Real Issue ..................................................14

2. The Plaintiff And The E.E.O.C. Have
Resorted To Demonstrably Invalid Sta­
tistical Methods In Interpreting The Sta­
tistical Data In The Record, And The 
Correct Application Of Valid Methods 
Yields Conclusions Which Amply Sup­
port The Summary Judgment Under Re­
view ..................................................................20



INDEX (Continued)
II

Page

3. Where The Evidence Supports The Gen­
eral Proposition That An Employer’s 
Hiring and Internal Practices Are Non- 
Racial, The Absence Of Negroes, In Ex­
ecutive, Professional And Technical Po­
sitions In A Relatively Small Plant In 
Rural North Carolina Cannot Give Rise 
To An Inference Of Discrimination, Es­
pecially Where Such Absence Is Cogent­
ly Explained By Sworn And Undisputed 
Testimony......................................................... 27

4. Defendant Was Entitled To Summary
Judgment As To Individual Claim Of 
Discriminatory Refusal To Hire, Where 
Evidence Showed That Defendant’s Hir­
ing And Internal Practices Were Non- 
racial, Where Plaintiff Was Admittedly 
Grossly Overweight And Unskilled, 
Where Plaintiff Admitted Falsifying 
Her Application, Admitted She Had Err­
ed In Her Complaint Allegations, Adopt­
ed Factual Information Which Contro­
verted All But One Of Her Essential 
Allegations, And Where The Remaining 
Discrepancy Between Her Evidence And 
The Defendant’s Created An Issue Which 
Was Not Material ......................................... 38

5. Where There Was No Evidence That The 
Defendant Had At Any Time Engaged In 
R a c i a l l y  Discriminatory Practices, 
Plaintiff’s Invoking of 42 U.S.C. §1981 Did



Ill
INDEX (Continued)

Page

Not Render The Case Any Less Suitable
for Summary Judgment ................................ 46

CONCLUSION ............................................................... 46
CERTIFICATE OF SERVICE ................................... 47

AUTHORITIES
CASES:
Adickes v. S. H. Kress & Co., 1970, 398 U.S.

144, 90 S.Ct. 1598, 26 L.Ed. 2d 142 . . . .  14, 15, 16, 17

Clark v. American Marine Corporation, DC La
1969, 304 F. Supp. 603 2 FEP Oases 198 ........  33

Dobbins v. Local 212, I.B.E.W., SD Ohio 1968,
292 F. Supp. 413 ............................................... 29, 30

Johnson v. Louisiana State Employment Service,
Inc., DC La. 1968, 301 F. Supp. 675 ...............  31, 35

Labit v. Carey Salt Co., 5 Cir. 1970, 421 F.2d 1333 . . . .  44
Lea v. Gone Mills, DCNC 1969, 300 F. Supp. 97 . . . .  28, 32
Parham v. Southwestern Bell Telephone Service,

Inc., DC La 1968, 301 F. Supp. 675 ...............  21, 31
Phoenix Savings & Loan, Inc. v. Aetna Casualty

& Sur Co., 4 Cir. 1967, 381 F.2d 245 ...................  17
Sanders v. Dobbs Houses, Inc., 5 Cir. 1970, 431

r .2d 1094 ................................................................  46
Sexton v. Training Corp. of America, DC Mo.,

1970, ___F.Supp____ , 2 FEP Cases 682 ............  45



AUTHORITIES (Continued)

U.S. v. Dillon Supply Co., 4 Cir. 1970, 429 F.2d

IV

Page

800 ........................................................................... 30
U. S. v. Hayes International Corporation, 5 Cir.

1969, 415 E.2d 1038, 2 FEP Cases 67 ...................  33
U.S. v. Sheet Metal Workers International Assn.,

Local 36, 8 Cir. 1969, 416 F.2d 123 ...................  32
Waters v. Wisconsin Steel Works, 7 Cir. 1970,

301 F.Supp. 663 ......................................................  46
Williams v. Howard Johnson’s, Inc., 4 Cir. 1963,

323 F.2d 102, 105 ............................................... 18, 44

Miscellaneous:
1936 Literary Digest ...........................................  23, 24
6 Moore, Federal Practice 56.22 2, at 2824-2825

(2d. Ed. 1966) ...................................................... 16
Weinberg & Schumaker, Statistics: An Intuitive 

Approach, 2d Ed. (Belmont, Calif., Wads­
worth Publishing Co., Inc., 1969) .......... ...........  21



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 15,272

NETTIE MAE LOGAN,
Appellant,

versus

THE GENERAL FIREPROOFING COMPANY, 
a corporation,

Appellee.

On Appeal From The United States District Court For 
The Western District of North Carolina 

Shelby Division

BRIEF FOR APPELLEE

COUNTERSTATEMENT OF THE CASE

1. Manifest Errors In Appellant’s Statement

The Appellant’s Statement of the Case1 Contains 
numerous erroneous assertions of fact.

Hn this brief, the Appellant’s Brief will be desgnated “P.B.” ; the 
Appellant will be referred to as the Plaintiff, and the Appellee 
as the Defendant; the Appendix will be designated “A.” ; and 
the Plaintiffs’s Deposition will be designated “P.D.” The amicus 
curiae brief of the Equal Employment Opportunity Commission 
will be designated “ C.B.”



2

At page 15 of the Appellant’s Brief, it is asserted, 
without benefit of any citation, that 9% of the Defend­
ant’s employees are black, as contrasted with an 18% 
black population in Forest City. The City and County 
Data Book, United States Census of Population, De­
partment of Census, Table 22,2 gives the non-white fig­
ure for Forest City as being 16.9%. Moreover, Table 
28 shows that the black population percentage in the 
county (Rutherford) where the plant is located is only 
11.9%.3 We take it that no one will deny the proposition 
that, if any figure is relevant, it is the county figure 
and not the city figure. While the point is not expressly 
taken up in the Defendant’s affidavits, it is incidentally 
shown that the Defendant does not restrict employ­
ment to residents of the small town of Forest City. 
The description of the employment procedure, as given 
by the personnel clerk and by both present and form­
er personnel managers (A. 83, 87, 93), fully describes 
the procedure and there is no mention of such a strange 
limitation. On the contrary, these affidavits uniformly 
show that the procedure is to accept applications from 
all persons who appear and desire to apply, and the 
only general qualification is that the applicant be 18 
years of age and be able to read and write (A. 88). 
The Plaintiff herself resides in Bostic, North Carolina, 
5-1/2 to 6 miles from the plant (P.D. 51, A. 170), and 
her application was accepted (A. 2). The personnel

2We presume that this Court will take judicial notice of the figures 
appearing in the Census Report, as did the court in Parham
v. Southwestern Bell Telephone Co., 8 Cir. 1970, ______.
F .2d_____

sThe plant property lies partially within and partially outside the 
city limits.



3

manager lives at Spindale, North Carolina (A. 93), and 
the personnel clerk at a rural address out of Forest 
City (A. 83).

The Data Book, in Table 28, further shows that there 
were 39,691 whites and 5391 non-whites in the county 
as of the time of census, or a total of 45,082 persons. 
In order to obtain a figure that would be meaningful 
in terms of employment, it is further necessary to elim­
inate those persons who were under 18 years of age, 
or over 65. Table 27 shows that 14,094 whites were un­
der 18, and 3571 were over 65, and that 3570 non-whites 
were under 18, and 360 were over 65. Thus, there were 
20,595 unemployables in the total figure, and 24,487 em­
ployables. Dividing 24,487 into (5391-2930) it appears 
that the percentage of non-whites in the employable 
population of Rutherford County as of the time of cen­
sus was almost exactly 10%.

The sworn answers to interrogatories filed by the 
Defendant in this case show that the percentage of 
blacks in the production work force is about 9.6% (41 
out of 425)4 which is closer to 10% than to the 9% figure 
stated by the Plaintiff.

Also, at page 15, the Appellant’s Brief states that 
58% of black promotions and 31% of white promotions 
have occurred since suit was filed in March, 1968, al­
though it is plain in the record that suit was filed in 
March, 1969, and not in 1968 (A. 1).

^The figure of 524 referred to in the E.E.O.C.’s brief (C.B. 5) 
was a transpositional error.



4

The statistics that the Plaintiff cites, consisting of 
Defendant’s answers to interrogatories 8 and 9 (A. 60- 
80), actually reflect that the Defendant’s employees 
on hand as of the time of answering had received a 
total of 325 promotions. The 384 white employees had 
received a total of 292 promotions, or a statistical aver­
age of .76 per white employee. The 41 negro employ­
ees had received a total of 33 promotions, or a statis­
tical average of .89 per negro employee, demonstrat­
ing that the negro employees actually were promoted 
slightly more frequently than the whites.

The Plaintiff’s assertion (P.B. 15) that 58% of all 
black male promotions occurred after suit was filed, 
as compared with 31% of all white male promotions 
is, of course, erroneous. First, the actual number of 
black males listed in A. 60-80 who received promotions 
after the correct date of suit, March 18, 1969, is 10 
rather than 14, so that the percentage would be 41% 
rather than 58%. Second, the data at A. 60-80 speaks 
only with regard to employees on the payroll as of 
the time of answering (A. 33-44, Interrogatories 8 and 
9). There is no evidence whatever to show how promo­
tions were distributed among blacks, whites, males 
or females during 1963-1969. As of the time of answer­
ing, the Defendant had from time to time employed 
approximately 3000 persons other than those then on 
the payroll (A. 45, Answer to Interrogatory No. 10).

It is also shown that it is not possible to determine 
how promotions were actually distributed during the 
six years in question among the more than 3400 em­
ployees who are or have been in Defendant’s employ,



5

because the Defendant’s records do not identify ter­
minated employees by race, and it does not otherwise 
have this information (A. 45, last sentence, Answer 
No. 10).

The Plaintiff next asserts that the Defendant has 
two black supervisors whereas the information relied 
upon states clearly that there are three, who' are Hor­
ace Gerald Thompson, James Twitty and Richard Wil- 
kerson (A. 45-46, Answer No. 11). Having gotten the 
date of suit and the number of black supervisors 
wrong, the Plaintiff next combines these errors to pro­
duce a third erroneous assertion, that 100% of the De­
fendant’s black supervisors were made supervisors af­
ter suit was filed. The answers clearly show that two 
of the three were made supervisors before March 18, 

j(J 1969, and that Thompson has been a departmental fore­
man since 1966.

Continuing, the Plaintiff erroneously asserts that the 
blacks supervise a total of 12 men (P.B. 15). The an­
swers to interrogatories (Answer 11, A. 45-46) show 
clearly that Thompson supervises 12 men on the day 
shift and Twitty supervises 3 others on the second shift, 
Wilkerson being Thompson’s assistant foreman.

It is, of course, absurd to say, as the Plaintiff next 
does (P.B. 16), that the white supervisors supervise 
a total of 1692 men. The data cited shows clearly that 
each department has from one to five supervisors, and 
the Plaintiffs attorneys must surely realize that a de­
partmental foreman and his assistant or assistants us­
ually supervise the same people (A. 46-47, Answer No.



6

12). For instance, Billy Scruggs and his 16 employees 
in Department A constitute the 17 employees super­
vised by Fred McDowell in Department A. The em­
ployees are all named in Answers 8 and 9, and the 
total is 425.

/ 3 )/

Still further, the compilation does not, as the Plain­
tiff asserts (A.B. 16), show that the only men ever 
hired to fill janitorial positions were black. Again, the 
3000 terminated employees have not been taken into 
account. The compilation only shows, and can only 
show, that 4 of the 41 negroes working at the time 
of answering were originally hired as janitors, as well 
as one white woman (A. 61). The four negroes have 
all been promoted to other jobs, and the plant now 
has its janitorial work done by a contractor (A. 48, 
Answer No. 15). The elimination of the janitorial jobs 
occurred long before this suit was filed.

The Plaintiff next makes a number of comparisons 
between male and female employees (Second full para­
graph P.B. 16 through first full paragraph P.B. 17).

A  Defendant has not checked these comparisons for 
j }  j  accuracy because they are all irrelevant to this case. 

The Complaint sets forth no allegation of sex discrim­
ination, but limits itself to a claim of racial discrimina­
tion, both as to the Plaintiff and as to the class she 
represents. She asks that the Defendant be enjoined 
from “discriminating against Plaintiff and other Ne­
gro persons in this class because of race or color” 
(A. 2, 5). Indeed, the Plaintiff’s contention was that 
the Defendant hired a number of white women while 

/W  denying her employment (P.D. 16, lines 17-22, A. 135).



7

The Plaintiff next asserts that the Defendant em­
ploys 19 women who are “overweight”, weighing 150 
pounds or more. The arbitrary assumption that 150 
pounds is the dividing line for overweight women is 
not supported, and the correct figure appears to be 
18, both from the names in footnote 12 of the Plaintiff’s 
brief, and from the data (A. 60-64). None of the 18 
was as heavy as the 180 pounds that the Plaintiff listed 
on her employment application (A. 177) and the Plain­
tiff falsified the application, at least as to her height.3

While it may be true, as the Plaintiff states, that 
a substantial number of the female employees have 
more than 4 children, none has as many as the Plain­
tiff, except for D. R. Thompson, who is a negro and 
who was given special consideration because her hus­
band worked at the plant (A. 86). Since the female 
employee with the largest number of children, and oth­
ers with four or more (E. M. Washburn, S. C. Church) 
are negroes, the statistics will not support any claim 
that any principle concerning children is applied in 
a racially discriminatory manner. The ratio- of negro 
females with 4 or more children to white females with

sThe application (A. 177) gives her weight as 180 lbs and her 
height as 5’6” . She testified on deposition that she weighed 
205 lbs and stood approximately 5’4” . She pleaded lack of 
memory as to whether she had gained 25 lbs. or any weight at 
all, since applying for employment. While it may be possible 
that she gained the weight, it is certainly unbelievable that 
she gained the 25 lbs. without knowing that she has gained 
at all, and we may surely rest assured that she has not shrunk 
two inches in height. She obviously falsified her application be­
cause she knew that nobody would hire a 5’4” , 205 lb. woman 
to do factory work, and nobody did until Burlington Industries 
put her on the payroll rather than face litigation (A. 165, 172- 
174, 178).



8

4 or more children (3 or 12% to 22 or 88%) of course 
compares favorably with the ratio of employable ne­
groes to employable whites in the county (1 to 9) or 
even to the raw percentage of negroes in the county 
(11.9%).

It is not accurate to say that the Defendant conducts 
on the job training programs ait its plant (A.B. 18). 
On the contrary, the plant does not advertise for train­
ees or unskilled employees (A. 93), and the applicant 
must be qualified for the job available unless the job 
is that of unskilled laborer (A. 94). The company has 
occasionally permitted prospective employees to learn 
sewing on their own time, not on the job, with super­
visory assistance, and has taught some limited weld­
ing on a sporadic basis (A. 44, Answer 7). There was 
no opportunity for the Plaintiff to be advised of because 
she was otherwise disqualified, first on account of her 
obesity and secondly on account of her 9 children at 
home.

In summary, the Plaintiff’s Statement of the Case 
is grossly in error, and is so with regard to almost 
every significant point it mentions. The Defendant sub­
mits that the Statement is so inaccurate as to be vir­
tually worthless.

2» Additional Relevant Facts

The Plaintiff testified on deposition that she heard 
a radio announcement, definitely in December of 1965, 
that the Defendant wanted some trainees (A. 122). She 
also testified that she had at some time seen an ad 
in the Forest City Courier to the same effect, but that



9

she didn’t know when that was (A. 139). The Defend­
ant’s past and present personnel managers both testi­
fied that the Defendant did not, at any time, do any 
recruiting, or advertise in newspapers or by radio 
or television for any trainees or unskilled employ­
ees, because there had always been an abundance 
of walk-in applications (A. 87, 93). The same informa­
tion appears in the answers to interrogatories (A. 48, 
Answer 18). The present personnel manager further 
affirms from a record search that no such ads have 
been placed (A. 93). The plaintiff has failed to have 
the E.E.O.C. “Memorandum for the File” (A. 25) re­
produced in the Appendix, but it is a part of the Court’s 
record, the Plaintiff has adopted it as being correct 
(A. 25), and it contains the statement: “There was no 
evidence to show that the Respondent company placed 
an ad in the newspaper seeking employees.”6

6The E.E.O.C. nevertheless founded its “ reasonable cause”  deter­
mination as follows: “The Charging Party filed an application 
with Respondent Company on December 27, 1965, and was in­
formed by the personnel manager that there were no openings. 
Two days later Respondent Company placed an ad in the paper 
indicating that it was desirous of ’ hiring trainees for employ­
ment.”  (A. 103) The “Memorandum for the File” also takes pains 
to point out that “The documentation obtained in this investi­
gation shows that the Charging Party made application for em­
ployment with the Respondent on March 16, 1966, rather than 
December 27, 1965, as shown on the Commissioner’s Summary 
of Investigation.” The Commission’s decision further stated that 
“Respondent has assumed that Negro women have more chil­
dren than white women.”  (A. 103), and reasoned that this ad­
mission by Defendant would support an inference of discrimi­
natory intent. The “Memorandum for the File” says: “ In inter­
view with the Respondent, the assumption that Negro women 
had more children than white women was never discussed.” 
Since the E.E.O.C. has been granted leave to participate in oral 
argument, it will doubtless explain these matters to the Court 
at that time.



The Plaintiff claims that the Defendant was engag­
ing in discriminatory hiring practices as of the time 
when she applied for a job in March of 1966. It is im­
possible to determine exactly how many negroes or 
whites were hired during March, 1966, or during the 
entire year of 1966, since the Defendant has no records 
showing the applicants for that year by race (A. 49, 
Answer 28(a) ), showing terminated employees by 
race (A. 45, Answer 10, last sentence), or identifying 
employees referred by employment agencies and hired 
or not hired, by race (A. 49, Answers 21, 22).

However, the roster of employees on hand as of the 
time of answering interrogatories shows that none 
were hired during March, 1966; that 17.3% (9 of 52) 
of all current employees hired during the entire year 
of 1966 were black; that 8.7% (2 of 23) of the females 
were black; and that 22.6% (7 of 31) of the males were 
black (A. 60-80). These percentages, of course, com­
pare most favorably to the figure of 10%, representing 
negroes available for employment in Rutherford Coun­
ty-

The E.E.O.C..concedes that the Defendant pays ne­
groes and whites the same pay for the same work, 
and that negroes are not excluded from any jobs (C.B. 
7).

The Defendant’s past and present personnel man­
agers and its personnel clerk testified that no negro 
had ever applied for an executive position at the plant; 
that only a few had applied for clerical positions, and 
that a few had been hired in clerical positions and



11

others actively sought; that negroes with needed skills 
apparently did not exist in substantial numbers in the 
Rutherford County area, because few had applied; that 
no negro had ever applied for or claimed to have the 
skills used in the maintenance department; that the 
E.E.O.C. poster had been posted at all times, barring 
times when it was temporarily defaced or torn down 
by unknown persons; and, generally, that the plant 
had never taken any personnel action of any kind on 
account of racial considerations (A. 88, 89, 91, 94, 95, 
96, 98, 99). The present personnel manager testified 
that he had long made a special effort, at the Defend­
ant’s request, to get more negroes in clerical positions, 
but that negroes with such skills were scarce in the 
area, so that he had eventually initiated correspond­
ence with a negro girl from the area but working away, 
with no success (A. 96).

The Plaintiff, on the other hand, testified affirma- 
/). tively that she had no knowledge whatever concerning 

the Defendant’s internal employment practices, as to 
any of the matters mentioned in the Complaint (A. 
139-143). In opposition to the Defendant’s motion for 
summary judgment, the Plaintiff was unable to come 
forward with evidence of any specific fact, as required 

£}J°y  Rule 56(e), creating an issue as to any of the facts 
asserted and supported by Defendant. Aside from re­
iterating the facts shown in her employment applica­
tion, stating that her husband was retired and avail­
able to care for her 9 children, and saying that she 
has to stand on her feet in her job at Burlington, her 
opposing affidavit merely says that she gave her at­
torney, but not the trial court, the names of some ne*

zo



12

groes who, she “believed”, had sought employment 
and not been hired. The Plaintiff submitted no other 
evidence of any kind.

The Plaintiff herself is currently 67 to 97 pounds over­
weight according to tables prepared by the Metropoli­
tan Life Insurance Co. from data of the Build and Blood 
Pressure Study, 1959, Society of Actuaries, and she 
has no skills (A. 134).

Other pertinent aspects of the statistics are: The De­
fendant has employed negro females in a variety of 
clerical positions, including Traffic Clerk, Processing- 
Customer Service Clerk, Accounts Payable Clerk, and 
Key Punch Operator (A. 48, Answer 14). INTegroes have 
been employed in every production department except 
one, and, on the basis of the recollection of the per­
sonnel manager and clerk, in all of the classifications 
in those departments (A. 48, Answer 15).

Negro female J. G. Miller earns more than white 
female B. K. Roane, for the same job, and was promot­
ed much more quickly (A. 62-63). Miller is paid more 
than any of the white women except one, P. J. Upton 
(A. 63). Negro employee R. L. Miller, III, (A. 75) has 
had three promotions and now earns more than white 
employees J. A. Higgins and A. L. Rhodes, (A. 68) 
who are in the same classification and who were hired 
before Miller. Negro employee E. C. Ledbetter has 
been promoted twice in little over a year and now earns 
one of the better rates in the plant (A. 76). Negro disc 
grinder D. Toms (A. 77) has been promoted once and 
earns more than white disc grinder J. B. Beaver (A.



13

71), although he has less service. Negro disc grinder 
F. L. Thompson, Jr., and Beaver were hired and pro­
moted within 4 days of each other, and they earn the 
same (A. 71). Thompson only worked a month before 
being promoted. Negro employee H. Logan was pro­
moted in one step from helper to heat treat operator, 
and he earns within one cent of the top rate in the 
plant (A. 77). Negro employee J. E. Smith was promot­
ed after twio months, with a $.21 raise in apparent 
preference to white employee J. R. Shaw, hired at the 
same time and in a similar job (A. 72).

There are 17 negroes who have not been promoted. 
Eight of these and 86 white employees who have not 
been promoted either, are in the simple laboring class­
ifications (A. 60-64). The ratio of unpromoted negroes to 
unpromoted whites here is approximately 1 to 10, the 
same as the ratio of employable negroes to employ­
able whites in the county. Of the remaining 9 negroes 
who had not been promoted as of the date of the an­
swers, 3 were in a group of 36 employees hired since 
August 1, 1969, containing 4 negroes and 32 whites, 
from which 1 negro and 1 white had been promoted. 
The other 6 unpromoted negroes are assemblers or 
utility workers, and they compare to 63 unpromoted 
whites (not counting the laboring jobs in A. 60-64 or 
persons hired after August 1, 1969), Again, the approxi­
mate 1 to 10 ratio holds true. It would be a herculean 
task to compute the average waiting time between ap̂  
plication and employment, but negro waiting periods 
ranged from one day (G. W. Mills. A. 78) to a rare 
time of nine months (E. M. Washburn, A. 61), while



14

white waiting periods have run much longer, such as 
nineteen months in the case of M. J. Hamrick (A. 60).

ARGUMENT

1. The United States Supreme Court Has Not Estab­
lished Extraordinary Standards For Summary 
Judgments In Title VII Cases, But Has Confirmed 
That Ordinary Standards Are To Apply, And Judi­
cial Experience Has Confirmed That Relief By 
W ay of Summary Judgment Is Peculiarly Appro­
priate To These Cases, Because A  Standard Prac­
tice Has Arisen Whereby Individual Plaintiffs Al­
most Always Bring Broad Class Actions, Even 
When They Are In Truth Aware Of No Class Dis­
crimination; These Actions Should Not Be Allow­
ed To Proceed If The Plaintiff, Given Ample Op­
portunity Through Discovery And Independent 
Means, Cannot Show The Existence Of A  Real 
Issue.

><
The Plaintiff appears (P.B. 20) to concede that the 

summary judgment procedure is appropriate in Title 
VII cases, but the E.E.O.C. takes another stance, argu­
ing that the procedurejs inappropriate (C.B. 11). The 
cases cited do not so hold.

The E.E.O.C.’s statement (C.B. 8) that Adickes v. 
S. H. Kress & Co., 1970, 398 U.S. 144, 90 S.Ct. 1598, 
26 L. Ed. 2d 142, “established an extremely high stan­
dard, for the grant of summary judgment. . . .  in a 
civil rights case” is a gross misrepresentation, and 
it is wholly incompatible with the Commission’s sub-



15

sequent (C.B. 9) concession that Adickes merely re­
stated the general rule governing summary judg­
ments.

Adickes, which arose under a different statute, was 
a case in which the Supreme Court reversed the Second 
Circuit as to the propriety of a summary judgment 
disposing of a two-count complaint, the Supreme Court 
finding that the Second Circuit had erroneously inter­
preted the substantive law as to one count, and erred 
as to the nature of evidence necessary to support a 
conspiracy claim as to the other count.

Far from setting any new standards for summary 
judgment, the Supreme Court, in the majority opinion, 
merely stated that summary judgment “was improper 
here, for we think respondent failed to carry its burden 
-of showing the absence of any genuine issue of fact.”
(26 L.Ed. 2d at 152). The Court affirmatively stated 
that the movant’s burden is simply that of “showing 
the absence of a genuine issue as to any material fact” , 
as in the usual case (26 L.Ed. 2d at 154). The Court 
affirmed that Rule 56(e) means precisely what it says, . 
that one opposing summary judgment cannot rest on 
pleadings once the pleadings are controverted by af­
fidavits, but held merely, that.the.burden does not shift Yv
to the opponent until the movant does in fact submit 5 ’ 
some evidence to controvert the opponent’s pleadings)
(26 L. Ed. 2d 155-156). The Adickes defendant’s affi- 1̂1.. 
davits had not fairly met the substance of the com­
plaint. Considering the E.E.O.C.’s bland assertion as 
to an “extremely high standard”, we are pleased to 
note that the Supreme Court expressly .used the phrase



“ordinary standards applicable for summary judg­
ment” in referring to the status of summary judgment 
procedures, in civil rights cases or other cases, after 
the 1963 amendments to the rules of procedure (26 L. 
Ed. 2d at 155). The Court quoted the usual and ordinary 
rule, as set forth in 6 Moore, Federal Practice jj56.22 
[2], at 2824-2825 (2d. Ed. 1966), as being applicable 
to civil rights cases, and that rule merely states that 
the moving piarty is entitled to summary judgment if 
he shows entitlement “under established principles”.

Although the case contained three minority opinions, 
there is nothing in any of them to say, indicate or imply 
that civil rights cases are due any special considera­
tion in summary judgment proceedings. Mr. Justice 
Black, concurring, quoted Rule 56(c) verbatim and left 
it at that, although he said that a trial court ought 
to permit cases to go to a jury, in jury cases, where 
the facts will support different inferences. We take it 
that the converse is indicated where the court, as here, 
sits as finder of the facts.

Mr. Justice Douglas, dissenting in part, didn’t even 
mention any summary judgment standards, apparent­

l y  assuming that ordinary standards apply, and the 
same is true of Mr. Justice Brennan, who concurred 
in part and dissented in part.

In view of the Supreme Court’s clear and careful 
adherence to ordinary summary judgment concepts 
in Adickes, we think it offensive for the E.E.O.C. to 
otherwise represent that case to this Court.



17

Although the Adickes case, emanating from the Su­
preme Court, sufficiently disposes of the Commission’s 
contention, we note that none of the other cases cited 
by the Commission purports to establish any new sum­
mary judgment standards for civil rights cases.

Phoenix Savings & Loan, Inc. v. Aetna Casualty & 
Sur. Co., 4 Cir. 1967, 381 F.2d 245, when it says that 
the affidavits and other evidence must show that the 
adverse party cannot prevail “under any circum­
stances" quite obviously does not mean that the ad- | A 
verse party need not show the existence of a material * 
issue during summary judgment proceedings. This 
Court, rather, was referring to the question whether 
the facts could give rise to conflicting material infer­
ences, as demonstrated by its further statement that 
the issue was whether “there are ...  genuine1 issues 
°f or conflicting inferences deductible therefrom 
• • •”> or whether “reasonable men might reach dif­
ferent conclusions” from the facts (381 F.2d at 249).

It is clear that an adverse party cannot avoid sum­
mary judgment merely by asserting that she can later 
show circumstances supporting her claim:

• • • summary judgment cannot be prevented 
merely by the claimed existence of a genuine 
issue of material fact.” (L & E Co. v. U.S.A., 
Cal. Cir. 1965, 351 F.2d 880).

As another court has put it:

“The whole purpose of summary judgment

* 4

Of ^



18

procedures would be defeated if a case could 
be forced to trial by mere assertions that a 
genuine issue exists without any showing of 
evidence”. (Winton v. Tempus Corp., DC 
Tenn. 1968, 389 F. Supp. 863).

r

The fact that some circumstances justifying relief 
for the Plaintiff could possibly exist is of no moment 
in the absence of evidence:

“Intangible speculation does not raise an issue 
of material fact.” (U.S. v. Mt. Vernon Mill Co.,
Ind. Cir. 1965, 345 F.2d 404).

“A party is not entitled to denial of a motion for 
summary judgment on the basis of mere hope 
that evidence to support his claims will de­
velop at trial.” (Taylor v. Rederi A/S Volo, Pa.
Cir. 1967, 374 F.2d 545).

In consonance with this Court’s adjuration in Will­
iams v. Howard Johnson’s, Inc., 4 Cir. 1963, 323 F.2d 
102, 105, that summary judgment principles are to be 
applied in a realistic and common sense manner, it 
is also sound to say that an adverse party ought not 
be able to avoid summary judgment by averring that 
she has communicated some secret information to her 
lawyer:

“. . . if a motion for summary judgment is to 
have any office whatever, it is to put an end to 
such frivolous, possibilities when they are the



19

only answer,” (L. Hand, J., in Deluca v. Atlan­
tic Refining Co., 2 Cir. 1949, 176 F.2d 421).

As to the standard argument that civil rights cases i/f/ /
are important and that the courts ought to be careful 
in granting summary judgments, we would merely re- K  
ply that the courts are presumed to be careful in all i y  
cases. '

As to the Commission’s assertion that the summary 
judgment procedure is “inappropriate” in civil rights 
cases, the cases, including those from the Supreme 
Court, simply deny it, and experience teaches the con­
trary. It is a matter of common knowledge that indi­
vidual Title VII claims are consistently being used as 
vehicles for the broadest possible class action suits, 
and often in circumstances where the Plaintiff, as 
here, has no case and possesses no evidence whatever 
of class discrimination. If the E.E.O.C. has generally 
been as unprofessional in rendering “reasonable cause” 
decisions as it is shown to have been in this case,7 one 
is warranted in concluding that Title VII has given rise 
to a great deal of spurious litigation of a kind which is 
most onerous and time consuming for the courts as

7The most casual comparison between the E.E.O.C.’s Decision (A. 
102) and its Memorandum for the File (omitted from the Ap­
pendix by Plaintiff, but attached to the Plaintiff’s Statement 
of Sept. 24, 1969, in the record) shows glaring discrepancies 
between the facts found during the investigation and the facts 
recited in the Decision. The Decision states, and the Memoran­
dum denies, that Defendant told Plaintiff it had no openings 
at a time when it was advertising in the newspapers for 
trainees; and that the Defendant admitted to an assumption 
that negro women have more children than white women.



20

well as for defendants. When a plaintiff, as here, has 
been given the full benefit of discovery, has had nearly 
a year to scrape up independent evidence, and still can­
not produce a single witness to substantiate any of her 
charges, we submit that summary judgment is an 
eminently appropriate method of concluding the case.

2. The Plaintiff And The E.E.O.C. Have Resorted To
Demonstrably Invalid Statistical M ethods In In­
terpreting The Statistical Data In The Record, And 
The Correct Application O f Valid Methods Yields 
Conclusions Which Amply Support The Summary 
Judgment Under Review.

The Plaintiff and the E.E.O.C., in regard to the 
Plaintiffs class action, have almost completely aban­
doned any contention that the Defendant has unlaw­
fully discriminated against negroes except with regard 
to hiring. The E.E.O.C. candidly admits the absence 
of internal discrimination (C.B. 7) and only argues that 
a statistical imbalance in the work force justifies an 
inference that discrimination in hiring has occurred 
and been perpetuated by the Defendant’s practice of 
“walk-in” hiring. The Plaintiff makes the same argu­
ment as to a statistical imbalance and perpetuation, 
and she further contends that all black employees were 
in the lowest paying jobs prior to suit, and that the 
black supervisors were promoted, but only after suit 
was filed (P.B. 27).

Since the Plaintiff had the date of suit wrong, and 
since two of the three black supervisors were promoted



21

prior to suit, as shown in the Counterstatement, we 
take it that the Plaintiff’s contention as to the super­
visors may be dispensed with.

Since the data shows clearly that every one of the 
black women was hired at exactly the same wage paid 
to white women, and in the same jobs (A. 60-64), and H~r 
since the same is true of the black men (A. 65-80), 
the Defendant will rely upon the data as showing1 that 
blacks have not been confined to the lowest paid jobs.8

When the Plaintiff’s obvious mistakes are recognized 
and the assertions based upon them eliminated, then, 
the only viable issue is whether the statistical data 
contained in the record will support the inferences 
claimed by the Plaintiff and the E.E.O.C.

The Defendant agrees with the Eighth Circuit Court 
of Appeals, the Plaintiff and the E.E.O.C. that “statis- 
tics often tell much and courts (should) listen” (Par­
ham v. Southwestern Bell Telephone Co., 1970, 301 
F.Supp. 675, 2 FEP Cases 1017). However, if a litigant 
chooses to rely upon statistics, we suggest that that 
litigant ought to apply valid statistical methods.

In support of this thesis, we submit the following 
quotations from Weinberg & Schumaker, Statistics:
An Intuitive Approach, 2d Ed. (Belmont, Calif., Wads­
worth Publishing Co., Inc., 1969), a textbook in current 
use in colleges and universities across the country:

sThe E.E.O.C. concedes, that blacks are not excluded from any jobs 
and that they are paid the same as whites (C.B. 7)



22

“ . . .  distortions are . . .  often carried out with 
the aid of statistics, the fault is that of indi­
viduals using inappropriate methods . . (p.
7 ).

“The abuses of statistics are many; insight in­
to basic statistical concepts is the best defense 
against them. Abuses are frequently found in 
popular publications as well as in technical 
journals.” (p. 6)

“ . . .  like any powerful instrument, it may be 
abused through conscious distortion for ulter­
ior motive.” (p. 8).

“Thus one finds great distrust of statisti­
cal methods expressed by college students and 
by others, and no wonder.” (p. 8)

“ . . .  where there are abuses, the situation is 
not that figures lie but that liars are apt to 
figure. The solution is for the intelligent reader 
to be able to figure too.” (p. 8)

The Plaintiff and the E.E.O.C. have violated certain 
basic principles of the science of statistics and have 
therefore produced unreliable conclusions. The use of 
proper methods will produce conclusions which are 
valid and which are adversely decisive of their conten­
tions.



23

Returning to Weinberg & Schumaker:

“Statistical methods are essential whenever 
useful information is to be distilled from large 
masses of data.” (p. 2)

“ . . statistical methods may be described 
as an application of common-sense reasoning 
to the analysis of data.” (p. 1-2)

“Where one has both integrity and knowledge 
of correct procedures, the benefits are most 
apt to be great.” (p. 10)

A discussion of the appropriate statistical methods 
by which valid conclusions as to a given group of peo­
ple, such as the Defendant’s work force, may be ob­
tained is found at pages 2-8 of the quoted work.

The authors initially explain that the problem may 
be approached through the use of descriptive statistics 
or sampling statistics. Descriptive statistics utilizes 
raw data derived from the entire population as 
to which conclusions will be stated, whereas sampling 
statistics?utilizes raw data drawn from, a representa­
tive sample of that population. In either case, a “basic 
concept is that of randomness___If we are to gen­
eralize from a sample it must be representative...
(p.2).

As a famous illustration of fallacious sampling pro­
cedures, the authors describe the 1936 Literary Digest 
determination that a large majority of American vot­



24

ers were Landon supporters and the consequent pre­
diction that Landon would easily defeat Roosevelt for 
president. The Literary Digest suffered a great loss 
of status, and soon ceased to exist, after Roosevelt 
carried 46 out of 48 states. The “statistical sample” 
used by the Digest was taken from telephone listings 
and from its own list of subscribers. The sample was 
neither random nor representative because only those 
persons with a good income .could afford telephones 
or the Literary Digest in 1936.

The data from which the Plaintiff and the E.E.O.C. 
in the present case have sought to draw statistical con­
clusions consists solely of information as to those em­
ployees who were actively employed by the Defendant 
as of October 23, 1969, when the interrogatories were 
served. Quite obviously, and as to these employees, 
the data constitutes descriptive statistics, since it cov­
ers all of them. The data, properly analyzed, would 
support any number of conclusions, but only as to. em­
ployees on hand as of October 23, 1969.

However, the data cannot constitute a statistical 
sample of any group of Defendant’s employees for any 
purpose. With reference to the October, 1969, employ­
ees it is descriptive rather than a sample. With refer­
ence to employees on hand at any other time, the data 
cannot serve as a sample because it is not random 
but is selected as of one point in time, and it therefore 
cannot be assumed to be representative.

Moreover, it is shown that useful statistical data, 
either descriptive or sampling, is not available for any



25

period of time prior to October, 1969, because the De­
fendant’s closed personnel files do not identify termi­
nated employees by race and the Defendant does not 
otherwise have this information. In other words, if the 
Defendant should run a compilation similar to that ap­
pearing at A. 60-80 for all of the employees that it has 
ever had, but without the N and W column, the data 
would obviously be worthless.

The Defendant concludes and submits, then, that the 
science of statistics has a limited role to play in the 
particular circumstances of this case. And insofar as 
statistical methods may properly be applied to the da­
ta, the Counterstatement shows that they only support 
the following generalizations; stated as of October 23, 
1969:

1. The ja tio  of negroes to whites in the Defendant’s 
work force was approximately the same as the ratio 
of employable negroes to employable whites in the 
community (county) from which employees may rea­
sonably be assumed to be available.

2. The negro employees on hand as of October 23, 
1969, had been, promoted at a mean rate slightly higher 
than that applicable to the white employees on hand.

3. 66-2/3% of the Defendant’s negro supervisors 
were promoted before suit was filed.

4. The ratio of negro female employees with 4 or 
more children to white female employees with 4 or



26

more children was 3 to 22, or favorably comparable 
to community statistics.

5. None of the employees on hand had been hired 
during the month when the Plaintiff applied.

6. Of the employees on hand who had been hired 
during the year when Plaintiff applied 17.3% were 
black, 8.7% of females hired that year were black, 
and 22.6% of males hired that year were black, as 
compared to the 10% of employable blacks in the com­
munity.

7. As conceded by the E.E.O.C., the Defendant was 
paying blacks and whites the same pay for the same 
work.

8. As conceded by the E.E.O.C., the Defendant was 
not excluding negroes from any jobs.

9. Of the employees on hand, many negroes had 
been promoted more rapidly than similarly situated 
whites, and many negroes were earning more than 
whites employed in the same jobs.

10. Among the unpromoted employees on hand, the 
percentage of negroes was less than the percentage 
of employable negroes in the community or in the 
plant, and the unpromoted negroes are not segregated 
into deadend jobs but amount to less than 10% of the 
persons in their job and seniority groups.



27

11. Of the employees on hand, the average waiting 
time between application and employment for negroes 
was apparently shorter than the average waiting time 
for whites.

3. W here The Evidence Supports The General Prop­
osition That An Employer’s Hiring and Internal 
Practices Are Non-Racial, The Absence O f Ne­
groes, In Executive, Professional And Technical 
Positions In A  Relatively Small Plant In Rural 
North Carolina Cannot Give Rise To A n Inference 
Of Discrimination, Especially W here Such Absence 
Is Cogently Explained By Sworn And Undisputed 
Testimony.

The overall valid conclusion to be drawn from these 
•statistical generalizations is obviously that the Defend­
ant was not discriminating against negroes in its em­
ployment practices as of October 23, 1969, unless the 
absence of negroes in executive positions, in the main­
tenance department, or in certain departments requir­
ing a high degree of skill or training such as Purchas­
ing-Material Control, Industrial Engineering, Product 
Engineering, Accounting or Electronic Data Process­
ing justifies a contrary inference.

The absence of negroes, in a plant located in a .rural  ̂' 
area, from professional or technical positions cannot f J 
statistic ally,; Justify such an inference, since the infer­
ence would require an assumption that negroes quali­
fied for such positions are available in significant num­
bers and have applied.



28

A

We say that an orthodox statistical approach would 
require the presence of rejected applications because 
active discrimination cannot have occurred without op­
portunity. Although the absence of applications has 
been viewed as being without significance in cases 
such as Lea v. Cone Mills, DCNC 19__.__, ___ that con­
clusion has only been reached in cases where the em­
ployer’s general and prevailing discriminatory prac­
tices were held to have discouraged applications. That 
cannot be said in the present case, where the employ­
er’s general usage of negroes and practices with re­
gard to them is shown to be excellent.

We say that a sound statistical approach would re­
quire a showing, and would not permit a mere assump­
tion, that negroes with the necessary skills or profes­
sions exist in the community in significant numbers, 
because statistical assumptions, to be permissible, 
must coincide with common knowledge and human ex­
perience. That which is known to be generally untrue 
cannot be assumed.

In this connection, it is a fact of which judicial notice 
can be taken that negroes have historically been ex­
cluded from apprenticeship programs and member­
ship in labor unions, and have otherwise been relegated 
to menial employment, so that they have not had the 
opportunity to acquire, and have infrequently ac­
quired, trade skills. It is also common knowledge that 
the most casual review of education statistics would 
reveal that the percentage of negroes who have ac­
quired professional or technical education or training



29

is nowhere near the percentage of their prevalence 
in the population, albeit for unfortunate reasons.

It was manifestly upon this sound basis that the court 
in Dobbins v. Local 212, I.B.E.W., SD Ohio 1968, 292 
F. Supp. 413, cited with approval by the Plaintiff and 
the E.E.O.C., held as we contend; where skills were 
involved:

“It is one thing to presume or assume, prima 
facie-wise or otherwise, that a significant num­
ber of a group have the qualifications for 
schooling or voting, or jury service. It is an­
other thing to assume, prima facie-wise or 
otherwise, that because a certain number of 
people exist, be they white or negro, that any 
significant number of them are lawyers or doc­
tors, or merchants or chiefs — or to be con- /

\ Crete, are competent plumbers or electricians 
or carpenters.” (292 F. Supp at 445).,....

and

“To make a prima facie case for class pur­
poses .. . ., the p l a i n t i f f  has the burden 
of showing the existe_nce bf a significant numr 
her, of members of the group possessing the 
basic skill in the particular trade involved.”
(292 F. Supp. at 445-446).

Of course, the fact that the Defendant has not ac­
tively recruited for skilled negroes, or run a school 
to advance their skills, or offered to send negroes to

0-A



Sj
p

30

technical schools or universities, cannot support any- 
finding of a violation (Dobbins, supra, at 292 F. Supp. 
444-445).

In summary, the statistical data in the record cannot 
furnish a valid basis for any generalizations as to the 
Defendant’s employment practices prior to October of 
1969. However, the statistical data, when interpreted 
in accordance with valid statistical methods, does af- 

;\ firmatively support the inference that the Defendant 
J  was not engaging in discriminatory employment prac­

tices as of the time to which the data applies. Since
the statistics do not show any unexplained or.e-xtra-

' ordinary imbalance in the racial composition of the 
Defendant’s work force, there can be no argument that 
the Defendant perpetuates an imbalance by accepting 
walk-in applications or applications from persons re­
ferred by employees. Nor can the absence of negroes 
from certain professional and skilled jobs alone give 
rise to any inference of discrimination.

There is nothing in any of the cases cited by the 
Plaintiff or the E.E.O.C. to deny these conclusions, 
and the cases contain much in support of them.

In U.S. v. Dillon Supply Co., 4 Cir. 1970, 429 F.2d 
800, this Court merely held that unexplained s^atisticat 

< /  evidence “cpupled with? independent evidence was. 
sufficient to justify an inference of discrimination, 
where both indicated a gross racial imbalance and job 
segregation and this in a case where statistics as to 
the racial composition of the employer’s work force 
were available and in evidence for all relevant years.



31

Moreover, the statistics showed that negroes were not 
present in “white” departments, even in unskilled clas­
sifications. This case cannot stand as authority in re­
spect to the present case, where the available statistics 
militate against any inference of discrimination, where 
statistics for earlier years are not available, and where 
the only “imbalance” of negroes is in highly skilled 
or professional jobs.

Parham v. Southwestern Bell Telephone Co., 8 Cir. 
1970, 301 F.Supp. 675, 2 FEP Cases 1017, again involved 
a situation where the statistics were available for a 
number of years and where they consistently showed 
less than a 2% negro work force population, in un­
skilled jobs as well as others, as compared to a 24% 
figure for the community.

Johnson v. Louisiana State Employment Service, 
Inc., DC La 1968, 301 F. Supp 675, did not turn on staiis-- 
tical evidence at all. On the contrary, the trial court 
had granted a summary judgment in the face of direct 
testimony by the plaintiff and three other negroes that 
the employment service had for 6 years repeatedly 
refused to refer the plaintiff for any job except that 
of “yard cutter” although he lacked only 3 credits for 
a college degree, that the defendant’s representative 
had told him directly that the service could do nothing 
for him unless he wanted to be a yard cutter, and that 
the employment service would refer the three other 
negroes, two of whom were college graduates and one 
of whom had college training, to nothing but menial 
jobs such as porter, grocery store checker and domes­
tic. In addition, one testified that he had seen the serv-



32

ice interviewer tear up the plaintiff’s application. The 
defendant claimed that it would not consider the plain­
tiff for a clerical job with the service because he had 
not passed the civil service test, but the direct testi­
mony was that the plaintiff was never advised that 
he could take the testf The defendant suggests that 
there is no parallel between Johnson and the case at 
bar in any respect. .. —

In Lea v. Cone Mills Corporation, DC NC 1989, statis­
tical comparisons for the entire life of the company 
were available, since the company admitted that it 
had never hired a negro female prior to March 17, 
1966, that it had hired only 7 at any time thereafter, 
that it had 346 employees, including white females, in 
various jobs, and that it hired inexperienced employ­
ees both before and after the plaintiffs applied. There 
was further direct testimony that the defendant’s rep­
resentative had told the negro female plaintiffs direct­
ly that the plant did not hire negro females, and that 
the plaintiffs were not informed of a requirement that 
they renew their applications every two weeks to keep 
them alive. Thus, comprehensive statistics plus direct 
evidence were available, and they validly demonstrat- 

{ ed, rather than militated against, an inference of dis­
criminatory practices.

U.S. v. Sheet Metal Workers International Ass’n., 
Local 36, 8 Cir. 1969, 416 F.2d 123, obviously has no 
hearing whatever on the present case, since it deals 
only with the use of ostensibly neutral present prac­
tices which perpetuate the effects of past discrimina­
tion; the court found that it was unlawful for two labor



33

unions to give preference in job referrals to persons 
with pre-Civil Rights Act experience, regardless of 
present qualifications. Consistent with the Defendant’s 
contention that the de facto absence of negroes in high­
ly skilled or professional categories is not evidence 
of discrimination, the court only required the two un­
ions to commence referring applicants on the basis 
of qualifications.

Some of these are “pattern and practice” suits, and 
the Attorney General has not taken the position in any 
of them that an employer must have negroes in highly 
skilled or professional categories or face an inference 
of discrimination. In U.S. v. Hayes International Cor­
poration, 5 Cir. 1969, 415 F.2d 1038, 2 FEP Cases 67, 
the Attorney General was careful to allege discrimina­
tion as between “similarly qualified” employees. This 
was a case, as contrasted to ours, where present statis­
tics were meaningful since they showed that practical­
ly all of the unskilled negro hires were placed in men­
ial jobs from which they could not progress to good 
jobs under the collective bargaining agreement, unless 
management transferred them, and management did 
not transfer them, whereas unskilled white hires were 
consistently placed in jobs where they could learn 
skills and in seniority divisions in which they could 
progress to skilled jobs.

The case of Clark v. American Marine Corporation, 
DC La 1969, 304 F. Supp. 603, 2 FEP Cases 198, is simi­
lar to Hayes in that present statistics showed that all 
unskilled negro hires were classified as “laborers” and 
placed in a line of progression leading only to three



[ f  " *  J
menial jobs, and that all white unskilled hires were 
classified as “helpers” and placed in lines of progres­
sion where they assisted semi-skilled and skilled em­
ployees and could learn and progress into those jobs. 
This evidence was “coupled with” direct evidence to 
the same effect, since the company admitted that it 
held classes to teach semi-skilled operations to whites 
but not to blacks.

In summary, none of_the cases holds that statistics 
derived solely from present employees can support in­
ferences as to past discrimination; none of them holds 
that the absence of negroes in highly skilled or profes­
sional jobs justifies an inference of discrimination 
where negroes are. widely utilized in the work force 
generally; .and none of them holds that hiring by walk- 
in applications is discriminatory in the absence 
of proof of past discrimination resulting in an extreme- 
ly high percentage of white employees.^/

The Defendant submits that the statistical evidence 
in this case firmly supports an inference that the De­
fendant was not engaging in discriminatory practices 
as of the time when the data was collected; that all 
of the independent evidence, which consists of sworn 
affidavits of Defendant’s witnesses and the Plaintiffs 
deposition, corroborates that inference and is to the 
further effect that the Defendant had never engaged 
in discriminatory practices; and that the Defendant 
\yas therefore entitled to a summary judgment as to 

/the Plaintiff’s class action pursuant to the plain man­
date of Rule 56.



35

If this Court should disagree with the Dobbins opin­
ion, and should somehow conclude that the absence 
of negroes in executive, professional and highly skilled 
classifications demonstrates the kind of “extraordi­
nary’’ statistical imbalance referred to in its DiUon 
opinion, or in the Parham case, the Defendant would 
yet contend that this circumstance cannot give rise 
to an inference of discrimination, because (any imbal­
ance is explained and the explanation is not placed 
in issue. fait?-'

The E.E.O.C., in its brief (p. 12) recognizes that lack ,J 
of explanation for an imbalance is essential to an in­
ference of discrimination, but the Plaintiff would con­
tend that explanations are entitled to no considera­
tion, even if the explanation stands firm and unscathed 
by any evidence produced by her (P.B. 23).

The Plaintiff interprets Johnson v. Louisiana State 
Employment Service, supra, as requiring the conclu­
sion that the sworn testimony of the Defendant’s per­
sonnel managers past and present that negroes with 
the skills used at the plant simply are not extant in 
the Forest City area and that neither of these ever 
encountered such applicants, can simply be ignored, 
even though she was not able to come forward with
one negro person who would claim to have such skills 
or say that he had applied at the Defendant’s plant 
and been rejected.

Johnson does not so hold. It merely holds that the 
defendant there could not establish a basis for sum­
mary judgment by producing testimony that blacks



36

were not in certain jobs because none were qualified 
or had applied, in the face of direct testimony by four 
college-trained blacks that they had applied.

In the present case, by way of contrast, the Defend­
ant has produced much statistical and direct evidence9

sin addition to statistical data, the Defendant produced sworn an­
swers to interrogatories and affidavits showing that: Although 
it provides no pre-employment training courses, it has per­
mitted persons who so desired to use its machines and have 
help from supervisors in order to learn the skills required for 
employment (A. 44, Answer No. 7); this accommodation has 
been extended to negroes and whites alike (A. 92); two negro 
women, Edna Washburn and Elizabeth Thompson, are in­
cidentally shown to have acquired sewing skills and jobs in this 
manner (A. 86). The Defendant does not have any arbitrary 
and non-job related employment standards that could be used 
to winnow out negroes, as in many of the cases cited by Plain­
tiff, but merely requires that employees be 18 years old and 
able to read and write (A. 47). Whereas the Plaintiff (P.B. 19) 
and the E.E.O.C. (C.B. 6) imply that the Defendant’s individual 
supervisors are permitted to reject employees for any reason 
that appeals to them, the actual testimony is that the employee 
merely has to satisfy the supervisor of his department that he 
can actually perform the work that he has applied for or been 
assigned to (A. 88, lines 6-12); the employment interview refers 
to the ordinary considerations of ability to do the job (A. 88, last 
paragraph); and the employee is given a probationary period 
within which to show satisfactory work performance (A. 89, 
first full paragraph). The plant has employed negro females 
in clerical positions, including those of Traffic Clerk, Process­
ing-Customer Service Clerk, Accounts Payable Clerk, and Key 
Punch Operator (A. 48, Answer No. 14). While supporting docu­
mentation is not available, the Personnel Manager and Per­
sonnel Clerk state on the basis of their best recollection and 
belief that negroes have from time to time been employed in 
all production classifications outside of maintenance (A. 48, 
Answer 15). The plant accepts applications from all persons 
who wish to apply, at all times, whether jobs are available at 
the time or not (A. 49, Answer 24; A. 84). The Personnel Clerk 
has been told repeatedly that race is not to be a consideration in 
hiring, and that the company would in fact like to have more



37

showing that blacks are widely employed,'without any 
discrimination in hire or treatment, in every depart­
ment and job in the plant, including supervisory, cleri­
cal and some skilled jobs, except for a few calling 
for high qualifications. As to these exceptions, the De­
fendant has produced the only kind of evidence that 
it or anyone possibly could produce, i.e., the sworn 
testimony of its personnel agents that they simply have 
not had the opportunity to hire negroes in these jobs, 
and that, on the basis of their knowledge of the com­
munity and their personal experience, the negro popu- '/

I A \ |
lation in the Forest City area, simply does not contain w' « /  
persons with the necessary skills. “

This testimony is consistent with common knowl­
edge, since few rural communities of the size of Rush- 
erford County can boast of resident negro industrial 
engineers, product engineers, or data programmers, 
and the probability of its truth is greatly bolstered by 
the fact that tihe Plaintiff could come forward with 
nothing to dispute it. Why then can this testimony not 
be accepted as explaining why a small plant in Forest 
City, North Carolina, does not have any negro account-

negroes in clerical jobs; her best recollection is that very tew 
negroes have applied for clerical jobs, but that all who have 
applied have been offered such jobs (A. 85). A  special effort 
was made to recruit negro female Margaret Whiteside for a 
clerical job, but without success (A. 85, 96). The Personnel 
Clerk knows of no case in which race has been considered in 
any personnel action, and has seen no record reflecting such 
(A. 85). The plant maintains no segregated facilities (A. 98), 
and there have been no complaints of racial discrimination 
from negro employees (A. 95). No negroes have applied for 
skilled jobs in the maintenance department, or claimed to 
have those skills (A. 96, 89), and no negroes have applied for 
executive positions (A. 99).



38

ants, engineers or programmers? We submit that it 
obviously can be accepted, and that it would have been 
manifest error for the trial court to have done other­
wise.

In summary, the Defendant submits that the statis­
tical evidence as a whole established that the Defend­
ant was not engaging in any discriminatory practices 
as of the time when the data was collected: that no 
evidence was produced to show that the Defendant bad 
ever so discriminated; that any absences of negroes 
in particular job classifications is adequately ex­
plained by competent testimony; that the Plaintiff pro­
duced no evidence to dispute any of this; and that the 
Defendant was therefore clearly entitled to a sum­
mary judgment as to, the Plaintiff’s class action.

4. Defendant W as Entitled To Summary Judg­
ment As To Individual Claim Of Discriminatory 
Refusal To Hire, Where Evidence Showed That 
Defendant’s Hiring And Internal Practices Were 
Non-racial, Where Plaintiff Was Admittedly 
Grossly Overweight And Unskilled, Where Plain­
tiff Admitted Falsifying Her Application, Admit­
ted She Had Erred In Her Complaint Allegations, 
Adopted Factual Information Which Controvert­
ed All But One Of Her Essential Allegations, And 
Where The Remaining Discrepancy Between Her 
Evidence And The Defendant’s Created An Issue 
Which Was Not Material.

The Defendant submits that it has produced an abun­
dance of affirmative evidence showing that it has op­



39

erated as an equal opportunity employer, within the 
spirit and letter of Title VII, since the day it opened 
its plant. This being the case, the individual Plaintiff 
cannot have the benefit of any inference that a general 
policy of discrimination carried over and was applied 
to her, as the Plaintiffs could in Lea v. Cone Mills 
Corporation, supra.

Indeed, logic and reason suggest that the Defendant 
is entitled to the contrary inference, that it did not 
discriminatorily refuse to hire the Plaintiff individual­
ly, on the basis of its showing that it accords nan-dis­
criminatory treatment to negroes generally. As the 
Eighth Circuit noted in the Parham case, supra:

“The very nature of a Title VII violation rests 
upon discrimination against a class character­
istic .. .” .

The Plaintiff here does not claim unintentional “ef­
fect” discrimination arising out of some neutrally mo- 
tivated personnel policy;/she claims that, the Defend­
ant simply refused to hire her because she was a negro, 
which claim necessarily subsumes a premeditated ait-

The Defendant’s showing that such antagonism does 
not exist as to the race should give rise to a strong ' 
inference that its treatment of the Plaintiff’s individual 
application was not racially motivated.

It appears that the E.E.O.C. itself concurs with this 
general proposition. In case after case, where indivi-



40

dual claims of discrimination were denied, the Com­
mission has heavily relied upon evidence of the em­
ployer’s good faith compliance with the Act in general 
(E.E.O.C. Decisions Nos. 7099, YAU 9-026, 70214, 70448, 
70630, 70620, 70694, 70692).

Turning to the specific testimony concerning the 
Plaintiff’s individual application for employment, the 
record shows only one viable issue of fact between 
the Plaintiff and the Defendant, i.e., whether the De­
fendant’s personnel manager, when he talked to the 
Plaintiff, told the Plaintiff that he could not use her 
because he considered her too obese to stand up under 
laboring work day in and day out, and expressed con­
cern over the number of dependent children she had, 
or whether he merely said that he had no openings 
but would keep her in mind.

The Plaintiff’s deposition, standing alone, would in­
dicate other disputes, since she testified that she read 
newspaper ads and heard radio announcements for 
trainees at the Defendant’s plant in December of 1965 
(A. 122, 138), and since she claimed she made a third 
visit to the plant, at which time the Personnel Clerk 
said that there were no openings and that she didn’t 
care who had told the Plaintiff to apply (A. 167-168). 
However, any issue as to the existence of the advertise­
ments would clearly not be material, first because ads 
appearing in December of 1965 could have no bearing 
on the Plaintiff’s application made in March of 1966, 
and second, because the Defendant has made no claim 
that openings never existed after the Plaintiff applied, 
but has asserted that she was disqualified for employ-



41

ment on the independent grounds of obesity and an 
excessive number of dependent children. Nor can it 
be material whether the Plaintiff made a third unsuc­
cessful visit to the plant, again because the Defendant 
admits and insists that it would not have employed 
her if she had made a dozen visits.

And even if these disputes could have been deemed 
material, they were resolved prior to the Defendant’s 
application for summary judgment. The Defendant re­
peatedly stated that she had been “upset” and “con­
fused” during the time in question, and pleaded that 
her memory was unreliable as to the identity of com­
panies where she had applied for work (A. 126), as 
to whether the dates in her charge form were correct 
(A. 39-40), as to the sequence of her various applica­
tions (A. 123) and charges (A. 124-126), and, most sig­
nificantly, as to what she was told by another pros­
pective employer (A. 126-127). Finally, she filed
a Statement (A. 25) in which she simply stated that 0
her memory was “cloudy” and in which she formally 
adopted the information contained in the E.E.O.C.’s 
“Memorandum for the File” , which was attached to /& 
the Statement, and appears in the record although the 
Plaintiff, apparently through inadvertence, left it out- 
of the Appendix.)

By adopting the information in this Memorandum 
the Plaintiff agreed that there was no evidence of any 
newspaper ads; that she had in fact applied in March,
1966, and not in December, 1965, when she said she 
heard radio1 ads; and . that she only made two- visits 
to the plant, the second of which occurred on April



42

20, 1966, so that the claimed June visit and conversa­
tion with the personnel clerk did not occur.

Therefore, as of the time of the Defendant s applica­
tion for summary judgment, the only viable issue be­
tween the Plaintiff and the Defendant related to the 
substance of the Plaintiff’s conversation with the De­
fendant’s personnel manager on the occasion of her 
second visit to the plant.

The personnel manager, Fred A. Powers, did not 
see the Plaintiff when she first applied, because there 
were no openings at that time, and in accordance with 
the Defendant’s regular procedure, he did not conduct 
interviews when there were no openings. However, he 
saw the application, which did not show race (A. 177), 
and he immediately decided that he would not employ 
the person described there for either of two independ­
ent reasons: (1) he thought she was too heavy, in pro­
portion to her height, to stand up day in and day out 
under laboring work, and she claimed nô  skills, and 
(2) he was of the opinion that a woman with 9 depend­
ent children at home constituted a potential absentee­
ism problem. He therefore told the personnel clerk that 
they couldn’t use this woman (A. 90).

As to his subsequent conversation with the Plaintiff, 
Powers testified that he told her he could not use her, 
and had nothing for her at that time (A. 90). The Plain­
tiff agrees in substance with this much of Powers’ af­
fidavit, stating that Powers said that he had no open­
ings, but would keep her in mind (A. 13-14). However, 
she denies that Powers said anything more, while



43

Powers siays that he went on to express his opinion 
that the Plaintiff was too heavy for laboring work, and 
that he expressed concern about her large number oi 
dependent children.

The Plaintiff’s position is that this minor discrep­
ancy created a genuine issue as to a material fact, ^  
and that the trial court resolved the issue by crediting 
Powers, which would, of course, be improper, in a sum­
mary judgment proceeding, as we recognize.

However, examination of the trial court s decision 
(A. 114) shows that the court did not ma^eA^xgdifciMy 
resolution. On the contrary, the court accepted the 
Plaintiff’s testimony that she applied, that she was 
told merely that there were no openings, and that she 
was later told that there were openings for men but 
not for women. The trial court considered these as 
accepted facts together with the undisputed evidence 
that there were no openings when Plaintiff first ap­
plied, that the Plaintiff was very obese and did have 
nine dependent children at home1, that Powers con­
sidered that either of these facts rendered the Plaintiff 
undesirable as an employee, that negro men and wom­
en in appropriate numbers were hired both before and 
after the Plaintiff applied, and that the Defendant had 
shown that it generally followed non-racial employ­
ment practices (A. 114-115).

The trial court concluded that reasonable analysis 
permitted only one conclusion, that the Defendant was 
not in violation of the Civil Rights Act, i.e., that the



44

Plaintiffs rejection was based on considerations other 
than race or sex.

The Defendant submits that the trial court’s con­
clusion was eminently sound. This Court holds that 
the issue upon review of a summary judgment is:

“ . . .  whether the court below concluded cor­
rectly that there are no genuine issues of fact, 
or conflicting inferences deductible therefrom 
. . or w h e t h e r  “reasonable men might 
reach different conclusions.” (Phoenix Sav­
ings & Loan, Inc., 4 Cir. 1967, 381 F.2d 245, 
249).

Otherwise stated:

“Rule 58 authorizes summary judgment .. . 
where it is quite clear what the truth is . . .”. 
(Pierce v. Ford Motor Co., 4 Cir. 1951, 190 F.2d 
910, 916).

The Fifth Circuit puts it that summary judgment 
is proper when the facts, taken as the adverse party 
would have them, still afford no reasonable basis for 
a finding in his favor (Labit v. Carey Salt Co., 5 Cir. 
1970, 421 F.2d 1333).

These principles are to be applied in a realistic and 
“common sense manner” (Williams v. Howard John­
son’s, Inc., 4 Cir. 1963, 323 F.2d 102, 105), and it is 
therefore irrelevant that an issue exists unless that 
issue, in reason, is material to- the case.



45

The Defendant submits that the minor discrepancy 
between Powers and the Plaintiff as to the details of 
their conversation does not give rise to conflicting in­
ferences. Whether Powers merely said he had nothing 
for the Plaintiff, but would keep her in mind, or wheth­
er he told her he thought she was too heavy for the 
plant’s work, there is, in either case, no evidence that 
her rejection as an applicant turned upon any con­
sideration of race, and there is, in either case, abun­
dant independent evidence, in the form of Powers’ own 
testimony as to his reasons, in the form of physical 
evidence that his reasons were well founded, and in 
the form of concrete evidence of the Defendant’s ef­
fective policy of non-racial practices, that it did not.

Certainly, it would not be reasonable to conclude 
from Powers’ asserted statement that he had no open­
ings but would keep the Plaintiff in mind, and from;;

(that ‘alopviihat Powers did not want to employ.Plain­
tiff "simply because she was black. To do' so, in the 
words of another court, would be to assume a prima 
facie case whenever a black applicant is rejected for 
employment (Sexton v. Training Corp. of America, DC 
Mo., 1970,____F.Supp______, 2 FEP Cases 682).

j/L/$

3

We submit that a finding made upon such evidence 
would have to> be reversed on appeal, as being unrea­
sonable, and that such evidence therefore cannot be 
said to make out a prima facie case.



46

5. Where There Was No Evidence That The Defend­
ant Had At Any Time Engaged In Racially Dis­
criminatory Practices, Plaintiff’s Invoking of 42 
U.S.C, §1981 Did Not Render The Case Any Less 
Suitable for Summary Judgment.

The Plaintiff finally argues that the trial court erred 
in failing to consider the fact that the Plaintiff also 
grounded her claim on 42 U.S.C. §1981. In Sanders v. 
Dobbs Houses, Inc., 5 Cir. 1970, 431 F.2d 1094, and Wa­
ters v. Wisconsin Steel Works, 1 Cir. 1970, 301 F.Supp. 
663, it was held that a person alleging discrimination 
in employment practices might by-pass the E.E.O.C. 
and sue directly under 1981 upon a showing of reason­
able excuse for failure to exhaust the Commission pro­
cedure. Whatever may be said of that holding, 1981 
c,an have no effect in the case at bar except as to 
the limitations period. Since the issues are other­
wise the same, and since the Defendant has not 
pleaded limitations, the invoking of 42 U.S.C. §1981 
obviously adds nothing to the Plaintiff’s case.

CONCLUSION

The Defendant respectfully submits that the trial 
court’s summary judgment should be affirmed in its 
entirety.

J. Toliver Davis
108 Florence Street
Forest City, North Carolina



47

Jesse S. Hogg 
Greene, Hogg & Allen 
1201 Bricfcell Avenue 
Miami, Florida 33131 
ATTORNEYS FOR 
APPELLEE

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing brief 
have been mailed to each of the parties named below, 
at the addresses indicated, by placing the same in the 
United States Mails, first class postage prepaid, on 
this the____day of February, 1971.

J. LeVonne Chambers and Robert Belton, Esqs.
Chambers, Stein, Ferguson & Lanning 
216 W. Tenth Street 
Charlotte, North Carolina

Conrad O. Pearson, Esq.
203-1/2 East Chapel Hill Street 
Durham, North Carolina

Jack Greenberg, William L. Robinson and 
Sylvia Drew, Esqs.
10 Columbus Circle 
New York, New York



48

Marian Halley, Esq.
Equal Employment Opportunity Commission 
1800 G. Street, N.W.
Washington, D.C. 20506

ATTORNEY



Scofields3 Quality Printers, Inc. — New Orleans, La