Soutwest Workers Federation v Missouri Pacific Railroad Company Brief Plaintiff Appellees
Public Court Documents
January 1, 1995
146 pages
Cite this item
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Brief Collection, LDF Court Filings. Soutwest Workers Federation v Missouri Pacific Railroad Company Brief Plaintiff Appellees, 1995. f07a36e0-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f9a41416-0136-422a-b28d-bf3973647173/soutwest-workers-federation-v-missouri-pacific-railroad-company-brief-plaintiff-appellees. Accessed May 23, 2025.
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In the
U n it e d Sta te s Co u r t o f Appea ls
f o r t h e E ig h t h C ir c u it
No. 94-2305
Southw est Workers Fed era tio n ,
Earnest Franklin , and
Sidney W illiams, et al.,
Plaintiffs-Appellees,
v.
M issouri Pacific Railroad Company ,
Defendant-Appellant.
On Appeal from the United States District Court
for the Eastern District of Arkansas
BRIEF FOR PLAINTIFFS-APPELLEES
Elaine R. Jones
Director-Counsel
Charles Stephen Ralston
Norman J. Chachkin
Catherine Powell
Paul K. Sonn
NAACP Legal Defense &
Educational Fund. Inc.
99 Hudson Street, 16th fl.
New York. New York 10013
(212) 219-1900
John W. Walker
Ralph Washington
John W. Walker, P.A.
1723 Broadway
Little Rock. Arkansas 72206
(501) 374-3758
Horace Walker
Jones, Tiller & Walker
Suite 518, Pyramid Place
211 West Second Street
Little Rock, Arkansas 72201
(501) 375-1135
Attorneys for Plaintiffs-Appellees
(Additional counsel listed on Inside Cover)
Table of Contents
Table of Authorities ......................................................................................................................
Note on Record Citation Form .............................................................................................xvii
Statement of the Is su e s ..........................................................................................................xviii
Statement of the C a se ..................................................................................................................1
Summary of the Argument ......................................................................................................1
ARGUMENT -
In troduction ................................................................................................................................ 4
I THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
CERTIFYING THE SUBCLASSES AND IN REFUSING TO
DECERTIFY T H E M ..................................................................................................... 6
A. Standard of Review ............................................................................................7
B. The Claims Asserted in this Lawsuit Fall Comfortably within the
Ambit of the EEOC Charge and Defendant Had Full Notice from the
Outset that the Complaint Was a Class Claim Alleging Specific Types
of Discrimination and Was Not Limited to Any One of the Railroad’s
D epartm ents.......................................................................................................... 8
1. Legal S tan d ard ....................................................................................... 8
2. The Southwest Workers Federation’s EEOC Charge Gave
Defendant Full, Fair, and Detailed Notice of the Claims
Raised in this Law suit........................................................................... 10
C. The Timing of the Class Certification Motion was Reasonable and
Did Not Prejudice the Class or D e fen d a n t..................................................... 16
L The Timing of the Class Certification Motion Was
Reasonable ............................................................................................ 19
2. The Timing Did Not Prejudice Either the Class or
Defendant ...............................................................................................20
Page
- i -
Table of Contents (continued)
Page
3. Plaintiffs Were Represented at the First Class
Hearing ........................................ 22
4. Plaintiffs Cannot be Faulted for Failure to Conduct
D iscovery................................................................................................. 22
D. The District Court Did Not Abuse Its Discretion in Refusing to
Decertify the Subclasses Because Plaintiffs’ Class Counsel Were
Inadequate ......................................... 23
1. Defendant Misrepresents the District Court’s
Findings................................................................................................... 24
2. The District Court Did Not Err in Finding that Neither Party
Was Solely Responsible for Delays in the C a s e r ...............................25
3. The District Court Did Not Err in Finding Plaintiffs’ Statistical
and Anecdotal Evidence Adequate to Survive Defendant’s
Decertification Motion .........................................................................27
E. The Class Representatives Were Fully Adequate to Represent Their
Respective Subclasses....................................................................................... 28
1. The Maintenance of Way D ep artm en t.............................................. 29
Terms and Conditions of Employment (Racially Hostile Work
E nvironm ent)..........................................................................................32
Prom otions.............................................................................................. 32
Discipline................................................................................................. 34
2. Transportation D epartm en t..................................................................35
Sidney Williams .....................................................................................36
Individual plaintiffs added as representatives
post-judgment..........................................................................................40
3. The Southwest Workers F ed e ra tio n ................................................... 46
Table of Contents (continued)
II THE DISTRICT COURT’S RULINGS THAT PLAINTIFFS HAVE PROVEN A
PATTERN AND PRACTICE OF DISCRIMINATION BY DEFENDANT ARE
NOT CLEARLY ERRONEOUS AND ARE SUPPORTED BY SUBSTANTIAL
RECORD EVIDENCE .............................................................................................. 49
A. Standard of Review ..........................................................................................49
B. Discriminatory Assignment of Black Workers to Trackman Jobs in the
Maintenance of Way Department ..................................................................50
C. Discrimination Against Black Workers in Promotions within the
Maintenance of Way Department ..................................................................52
1. The District Court’s finding — That the Statistical Evidence
Showing Substantial Racial Disparities in MOW Promotions,
Taken Together with the Anecdotal and Other Evidence,
Supports an Inference of a Pattern and Practice of
Discrimination — Is Not Clearly E rroneous.......................................53
a. Plaintiffs’ evidence and the District Court’s
findings .................................. 53
b. The District Court correctly ruled that plaintiffs’
statistical and other evidence supported an inference of
a pattern and practice of discrimination ............ .............. 55
c. The District Court’s reliance on the available statistical
data, which was "snapshot" data, was appropriate ............ 60
d. Even if reliance on snapshot data were not generally
appropriate, it would still be appropriate on the facts of
this c a s e ....................................................................................... 65
2. The District Court’s Finding that Defendant Did Not Rebut
the Inference of Discrimination Created by Plaintiffs’ Statistical
and Other Evidence Was Not Clearly Erroneous .......................... 70
a. Legal standard .........................................................................70
Page
- iii -
Table of Contents (continued)
b. Defendant failed to rebut the inference of
discrimination created by plaintiffs’ evidence ......................73
i. Defendant’s expert’s testim ony..................................74
ii. Promotions allegedly based upon seniority and
qualifications ..................................................................76
3. The District Court’s Ruling Satisfied the Requirements of Rule
52(a) ................................................................................................... 83
D. Discriminatory Terms and Conditions of Em ploym ent............................. 84
1. The District Court Properly Considered the Totality of the
Circumstances as a Basis for Finding that Defendant Subjected
its African-American Employees to Discriminatory Terms and
Conditions of Employment ....................................................................84
2. Defendant Company Was Properly Held Liable for the Hostile
Work Environment to Which Its African-American Employees
Were Subjected Because the Evidence Showed Both Actual
and Constructive Knowledge of these Conditions on the Part
of its Management ................................................................................ 89
3. Defendant Was Liable for the Discriminatory Work
Environment Because It Failed to Take Effective Action
Against Objectionable Racial Harassment and Similar Conduct
Despite Its Actual and Constructive Knowledge of the
Situation ................................................................................................. 94
4. The District Court’s Findings Are Supported by the Record . . . 95
a. Testimony from members of the plaintiff subclasses . . . . 97
b. Testimony of employees other than members of the
plaintiff subclasses ............................................................... 104
c. No negative inference from fact that some of plaintiffs’
witnesses did not give testimony regarding certain forms
of harassm ent......................................................................... 108
Page
- iv -
Table of Contents (continued)
Page
d. Management testimony as to notice and failure to take
remedial ac tio n ................ 109
5. Taking All of the Evidence into Account and Considering the
Totality of the Circumstances, the District Court’s Finding of
Racially Discriminatory Terms and Conditions of Employment
Must Be U p h e ld ................................................................................ m
6. The Injunctive Relief Fashioned By the District Court Was
Appropriate ....................................................................................... 112
E. The District Court Did Not Err in Finding a Pattern and Practice of
Racial Discrimination in Discipline of Employees within the
Maintenance of Way Department ............................................................. 113
Conclusion.............................................................................................................................. 121
Table of Authorities
Cases:
AFSCME v. County of Nassau,
664 F. Supp. 64 (E.D.N.Y. 1987) ......................................................................... 48
Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ........................................................................ 9, 12, 15, 40, 113
Alexander v. Louisiana,
405 U.S. 625 (1972) ................................................................................................. 58
Allen v. Amalgamated Transit Union Local 788,
554 F.2d 876 (8th Cir.), cert, denied,
434 U.S. 891 (1977)............................................................... 9, 10, 12, 15, 44, 45, 47
Allied Van Lines, Inc. v. Small Bus. Admin.,
667 F.2d 751 (8th Cir. 1982) .................................................................................. 83
- v -
Table of Authorities (continued)
Alvarado v. Carnation Co., CV94-0248-S-EJL,
1995 U.S. Dist. LEXIS 10084 (D. Idaho
June 26, 1995) ...........................................
Anderson v. City of Bessemer City,
470 U.S. 564 (1985) ..................................
Anderson v. Douglas & Lomason Co.,
26 F.3d 1277 (5th Cir. 1994), cert, denied,
115 S. Ct. 1099 (1995)...............................
Babrocky v. Jewel Food Co.,
773 F.2d 857 (7th Cir. 1985) ...................
Ball v. Paramount Pictures, Inc.,
67 F. Supp. 1 (W.D. Pa. 1946).................
Bazemore v. Friday,
478 U.S. 385 (1986) ..................................
Bosley v. Kearney R-l School Dist.,
904. F. Supp. 1006 (W.D. Mo. 1995) . . .
Bremiller v. Cleveland Psychiatric Inst.,
879 F. Supp. 782 (N.D. Ohio 1995) . . . .
Bressman v. Farrier,
900 F.2d 1305 (8th Cir. 1990) .................
Cases (continued):
Pane
32
49
............................. 62, 67
......................................... 12
.................................. 69
56, 57, 71, 72, 73, 76, 80
.................................. 85
.................................. 32
................................ 65
Brickman v. Tyco Toys, Inc.,
722 F. Supp. 1054 (S.D.N.Y. 1989) ...................................................................... 18
Briggs v. Anderson,
796 F.2d 1009 (8th Cir. 1986) .................................................................... 39, 40, 45
Broadnax v. Missouri P.R. Co.,
27 Fair Empl. Prac. Cas. (BNA) 669
(E.D. Ark. 1978) ...................................................................................................... 20
- vi -
Brown v. First National Bank in Lenox,
844 F.2d 580 (8th Cir. 1988) ............................................................................. 45, 65
Burkhalter v. Montgomery Ward and Co.,
676 F.2d 291 (8th Cir. 1982) .................................................................................. 19
Burns v. McGregor Elec. Indus., Inc.,
955 F.2d 559 (8th Cir. 1992) ..................................................................................... 4
Capaci v. Katz & Besthoff, Inc.,
711 F.2d 647 (5th Cir. 1983) .................................................................................. 58
Carroll v. Sears, Roebuck & Co.,
708 F.2d 183 (5th Cir. 1983) .................................................................................. 58
Castaneda v. Partida,
430 U.S. 482 (1977) .......................................................................................... 51, 59
Catlett v. Missouri Highway & Transp. Comm’n,
828 F.2d 1260 (8th Cir. 1987), cert, denied,
485 U.S. 1021 (1988)................. ........................................................................ passim
Chambers v. McLean Trucking Co.,
550 F. Supp. 1335 (M.D.N.C. 1982) .................................................................... 18
Cobb v. Stringer,
850 F.2d 356 (8th Cir. 1988) ......................................................................... 9, 12, 13
Coble v. Hot Springs School Dist. No. 6,
682 F.2d 721 (8th Cir. 1982) ............................................................................. 71, 76
Craik v. Minnesota State Univ. Bd.,
731 F.2d 465 (8th Cir. 1984) ........................................................................... passim
Crawford v. U.S. Steel Corp.,
660 F.2d 663 (5th Cir. 1981) .................................................................................. 14
Crown, Cork & Seal Co. v. Parker,
462 U.S. 345 (1983) ................................................................................................... 6
Table of Authorities (continued)
Page
Cases (continued):
- vii -
Table of Authorities (continued)
Davis v. Bethlehem Steel Corp.,
769 F.2d 210 (4th Cir.), cert, denied,
474 U.S. 1021 (1985) ......................
Davis v. Monsanto Chemical Co.,
858 F.2d 345 (6th Cir. 1988) ..........
Donaldson v. Pillsbury,
554 F.2d 825 (8th Cir.), cert, denied,
434 U.S. 856 (1977)...........................
Dothard v. Rawlinson,
433 U.S. 321 (1977) ........................
Dura-Bilt Corp. v. Chase Manhattan Corp.,
89 F.R.D. 87 (S.D.N.Y. 1981) . . . .
EEOC v. Contour Chair Lounge Co.,
596 F.2d 809 (8th Cir. 1979) ..........
EEOC v. Delight Wholesale Co.,
973 F.2d 664 (8th Cir. 1992) ..........
EEOC v. Keco Industries, Inc.,
748 F.2d 1097 (6th Cir. 1984) .........
EEOC v. Shell Oil Co.,
466 U.S. 54 (1984) .............................
EEOC v. Western Pub. Co.,
502 F.2d 599 (8th Cir. 1974) ............
East Texas Motor Freight v. Rodriguez,
431 U.S. 395 (1977) .........................
Eirhart v. Libby-Owens-Ford Co.,
89 F.R.D. 424 (N.D. 111. 1981)..........
Cases (continued):
Page
14
89
----- 37, 38, 39
...................... 62, 64
....................... 17, 18
....................... 37, 39
....................... 12
................. 113
....................... 66, 67
....................... 12
17, 37, 38, 39, 42
. 18, 21, 22, 26
- viii -
Table of Authorities (continued)
Cases (continued):
Evans v. U.S. Pipe & Foundry Co.,
696 F.2d 925 (11th Cir. 1983)
Page
34
Falcon v. General Telephone Co.,
611 F. Supp. 707 (N.D. Tex. 1985), affd,
815 F.2d 317 (5th Cir. 1987) ..........................
Falcon v. General Telephone Co.,
626 F.2d 369 (5th Cir. 1980), vacated on other
grounds, 457 U.S. 147 (1982)...........................
First Nat’l Bank in Brookings v. United States,
829 F.2d 697 (8th Cir. 1987) .................
In re Fleet,
76 B.R. 1001 (Bankr. E.D. Pa. 1987)
Foster v. Wyrick,
823 F.2d 218 (8th Cir. 1987) ..........
Franks v. Bowman Transp. Co.,
424 U.S. 747 (1976) ........................
Frazier v. Consolidated Rail Corp.,
851 F.2d 1447 (D.C. Cir. 1988) . . .
Fred v. Wackenhut Corp.,
860 F. Supp. 1401 (D. Neb. 1994) .
General Telephone Co. v. Falcon,
457 U.S. 147 (1982) ........................
Goodman v. Lukens Steel Co.,
777 F.2d 113 (3d Cir. 1985), affd,
482 U.S. 656 (1987)......................
42
........................... 43
........................... 82
...................... 18, 26
................................... 8
........................... 37
........................... 47
................................ 88
31, 36, 37, 38, 39, 41
47, 49
Griffin v. Carlin,
755 F.2d 1516 (11th Cir. 1985)
- rx -
9, 24, 44, 72
Table of Authorities (continued)
Griggs v. Duke Power Co.,
401 U.S. 424 (1971) ................................................................................................. 64
Hall v. Bio-Medical Application,
671 F.2d 300 (8th Cir. 1984) .................................................................................. 18
Page
Cases (continued):
Hall v. Gus Constr. Co.,
842 F.2d 1010 (8th Cir. 1988) .................................... . . 86, 87, 89, 92, 93, 94, 96
Hameed v. Ironworkers Local 396,
637 F.2d 506 (8th Cir. 1980) .......................................
Harris v. Forklift Systems,
510 U.S. , 114 S. Ct. 367 H9931 ........................... ........................ 84-85, 86, 88
Hartman v. Duffey,
19 F.3d 1459 (D.C. Cir. 1994) .................................... ............................. 41, 42, 49
Hartman v. Duffy,
158 F.R.D. 525 (D.D.C. 1994).................................... ............................. 41, 42, 43
Hazelwood School District v. United States,
433 U.S. 299 (1977) ................................................
Hebert v. Monsanto Co.,
682 F.2d 1111 (5th Cir. 1982) ....................................
Hervey v. City of Little Rock,
787 F.2d 1223 (8th Cir. 1986) .............................
Hill v. Western Elec. Co., Inc.,
672 F.2d 381 (4th Cir. 1982) .......................................
Hirase-Doi v. U.S. West Communications, 61 F.3d 777,
782 (10th Cir. 1995) ...................................................
Huey v. Sullivan,
971 F.2d 1362 (8th Cir. 1992) ....................................
- x -
Pape
Ingram v. Missouri P.R. Co.,
897 F.2d 1450 (8th Cir. 1990) ..................................................... 54, 69, 70, 83, 113
Jackson v. Harvard Univ.,
721 F. Supp. 1397 (D. Mass. 1989) ...................................................................... 67
Jackson v. Missouri P.R. Co.,
803 F.2d 401 (8th Cir. 1986) .................................................................................. 83
Jas. E. Matthews & Co. v. NLRB.
354 F.2d 432 (8th Cir. 1966) .................................................................................. 91
Johnson v. Morial,
843 F.2d 846 (5th Cir. 1988) .................................................................................. 65
Johnson v. Railway Express Agency, Inc.,
421 U.S. 454 (1975) ................................................................................................. 16
Keyes v. School District No. 1, Denver,
413 U.S. 189 (1973) ................................................................................................. 86
Kloos v. Carter-Day Co.,
799 F.2d 397 (8th Cir. 1986) .................................................................................. 40
Kopp v. Samaritan Health System,
13 F.3d 264 (8th Cir. 1993) .......................................................... 84, 88, 94. 96, 102
Lilly v. Harris-Teeter Supermarket,
720 F.2d 326 (4th Cir. 1983) .................................................................................. 45
Livesay v. Punta Gorda Isles, Inc.,
550 F.2d 1106 (8th Cir. 1977), rev’d on other
grounds sub nom. Coopers & Lybrand v. Livesay,
437 U.S. 463 (1978) ....................................................................................... 7, 18, 23
Local 179, United Textile Workers v. Federal Paper
Stock Co., 461 F.2d 849 (8th Cir. 1972) ............................................ 10, 44, 45, 46
Table of Authorities (continued)
Cases (continued):
- xi -
Pape
Marquart v. McDonnell Douglas Corp.,
859 F. Supp. 366 (E.D. Mo. 1994) ......................................................................... 85
Marshall v. Georgia Pacific Corp.,
484 F. Supp. 629 (E.D. Ark. 1980) ...................................................................... 17
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) ................................................................................................... 8
McGowan v. Faulkner Concrete Pipe Co.,
659 F.2d 554 (5th Cir. 1981) ..................................................................................... 7
McIntosh v. Weinberger,
810 F.2d 1411 (8th Cir. 1987) .................................................................... 63, 64, 65
McKinnon v. Talladega County,
745 F.2d 1360 (11th Cir. 1984)........................................................................... 7, 18
Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986) ............................................................................................ passim
Montana v. United States,
440 U.S. 147 (1979) ................................................................................................. 70
Movement for Opportunity & Equality v. General
Motors, 622 F.2d 1235 (7th Cir. 1980) ............................................................. 62, 72
Muth v. Dechert, Price & Rhoades,
70 F.R.D. 602 (E.D. Pa. 1976) ............................................................................. 21
NLRB v. Broyhill Co.,
514 F.2d 655 (8th Cir. 1975) .................................................................................. 91
Oatis v. Crown Zellerbach Corp.,
398 F.2d 496 (5th Cir. 1968) ............................................................................. 9, 14
Palmer v. Schultz,
815 F.2d 84 (D.C. Cir. 1 9 8 7 ).................................................................................. 57
Table of Authorities (continued)
Cases (continued):
- xii -
Table of Authorities (continued)
Parham v. Southwestern Bell Tel. Co.,
433 F.2d 421 (8th Cir. 1970) ...........................
Parklane Hosiery Co. v. Shore,
439 U.S. 322 (1979) .........................................
Paroline v. Unisys Corp.,
879 F.2d 100 (4th Cir. 1989) ...........................
Patterson v. Youngstown Sheet & Tube Co.,
659 F.2d 736 (7th Cir.), cert, denied, 451 U.S.
914 (1981) ..........................................................
Paxton v. Union Nat’l Bank,
688 F.2d 552 (8th Cir. 1982), cert, denied, 460
U.S. 1083 (1983)................................................
Pegues v. Mississippi State Employment Serv.,
699 F.2d 760 (5th Cir. 1983) ...........................
Philips v. Joint Legislative Comm.,
637 F.2d 1014 (5th Cir. 1981), cert, denied,
456 U.S. 960 (1982)...........................................
Powell v. Missouri State Highway Dep’t,
822 F.2d 798 (8th Cir. 1987) ..........................
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) .........................................
Pullman-Standard v. Swint,
456 U.S. 273 (1982) .........................................
Robinson v. Union Carbide Corp.,
538 F.2d 652 (5th Cir. 1976), modified
in part on other grounds, 544 F.2d
1258 (5th Cir. 1977) ...........................................
Cases (continued):
Pane
37, 39,112
. . . . 70
___ 93
14
20, 35, 60, 73, 118
........................ 4
. . . 62
. 96, 97
111
49
- xiii -
62
Roby v. St. Louis S.W. Ry.,
775 F.2d 959 (8th Cir. 1985) .......................... .................................................. 39, 40
Sanders v. Lum’s,
76 F.R.D. 1 (S.D.N.Y. 1976) ................................................................................ 21
Saracini v. Missouri P.R. Co.,
431 F. Supp. 389 (E.D. Ark. 1977) ...................................................................... 26
Satz v. ITT Financial Corp.,
619 F.2d 738 (8th Cir. 1980) ............................................................................. 9, 12
Segar v. Smith,
738 F.2d 1249 (D.C. Cir. 1984) ............................................................................. 72
Sosna v. Iowa,
419 U.S. 393 (1975) ................................................................................................. 37
Stacks v. Southwestern Bell Yellow Pages,
27 F.3d 1316 (8th Cir. 1994) ................................................................. 4, 85, 88, 94
St Mary's Honor Center v. Hicks,
509 U .S .___, 113 S. Ct. 2742 (1993) ...................................................................... 4
Tart v. Hill Behan Lumber Company,
31 F.3d 668 (8th Cir. 1994) ......................................................................... 85, 92, 94
Taylor v. Jones,
653 F.2d 1193 (8th Cir. 1981) ........................................................................... 87, 93
Taylor v. Teletype Corp.,
648 F.2d 1129 (8th Cir. 1981) ........................................................ 51, 58, 60, 72, 78
Teamsters v. United States,
431 U.S. 324 (1977) ...................................................................... 56, 57, 58, 75, 116
Texas Dept, of Community Affairs v. Burdine,
450 U.S. 248 (1981) ................................................................................................. 80
Table of Authorities (continued)
Page
Cases (continued):
- xiv -
Thomure v. Phillips Furn. Co.,
30 F.3d 1020 (8th Cir.), cert, denied,___U.S.
__ , 115 S. Ct. 1255 (1994) ..................................................................................... 45
Table of Authorities (continued)
Page
Cases (continued):
Trout v. Lehman,
702 F.2d 1094 (D.C. Cir. 1983) ................................................................................ 4
UAW v. LTV Aerospace & Defense Co.,
136 F.R.D. 113 (N.D. Tex. 1991) .................................................................... 46, 48
Ulvin v. Northwestern Life Ins. Co.,
943 F.2d 862 (8th Cir. 1991) .................................................................................. 15
United Airlines v. McDonald,
432 U.S. 385 (1977) ............................................................................................... 41
United States v. California Dep’t of Corrections,
62 Fair Empl. Prac. Cas. (BNA) 1865 (E.D. Cal.
1990) 67
United States v. Mendoza,
464 U.S. 154 (1984) ................................................................................................. 70
United States v. O’Neal,
17 F.3d 239 (8th Cir. 1994) ..................................................................................... 52
United States Parole Comm’n v. Geraghty,
445 U.S. 388 (1980) ................................................................................................. 37
United States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711 (1983) ..................................................................................... 4
Walker v. Jim-Dandy Co.,
747 F.2d 1360 (11th Cir. 1984)............................................................................... 44
Webb v. Missouri P.R. Co.,
826 F. Supp. 1192 (E.D. Ark. 1 9 9 3 )............................................................... passim
- xv -
Webb v. Missouri P.R. Co.,
95 F.R.D. 357 (E.D. Ark. 1982)......................................................................... 20, 23
Wheeler v. City of Columbus,
686 F.2d 1144 (5th Cir. 1982) .................................................................................. 4
White v. National Football League,
41 F.3d 402 (8th Cir. 1994) ....................................................................................... 7
White Industries, Inc. v. Cessna Aircraft Co.,
845 F.2d 1497 (8th Cir. 1988) ........................................................................... 83, 84
Whitus v. Georgia,
385 U.S. 545 (1967) ................................................................................................. 58
Winbush v. State of Iowa,
66 F.3d 1471, 1478 (8th Cir. 1 9 9 5 )........................................................ 9, 12, 44, 68
Statutes and Regulations:
42 U.S.C. § 1981 ............................................................................................................. 7, 16
42 U.S.C. § 2000e(a)............................................................................................................. 46
42 U.S.C. § 2000e-2(a)(l) ................................................................................................... 84
42 U.S.C. § 2000e-2(h) ........................................................................................................ 77
42 U.S.C. § 2000e-5(b) ................................................................................................... 10, 46
42 U.S.C. § 2000e-8(c) ........................................................................................................ 66
Section 703(h), Civil Rights Act of 1964 .................................................................... 77, 78
29 C.F.R. § 1602.14 (1995) ............................................................................................ 66, 67
Table of Authorities (continued)
Page
Cases (continued):
- xv i -
Rules:
Fed. R. Civ. P. 23 ........................................................................................................ passim
Fed. R. Civ. P. 23(c)(1) (emphasis added) ................................................................. 16. 17
Fed. R. Civ. P. 52(a) .............................................................................................. 49, 83, 84
Fed. R. Evid. 201(b)(2)........................................................................................................ 69
Local Rule C-9(3), United States District Court
for the Eastern and Western Districts of Arkansas ............................................ 18
Miscellaneous:
Herbert Newberg & Alba Conte, Newberg on Class Actions (3d ed.
1992) .................................................................................................................... 17, 19
Restatement (Second) of Agency § 27 (1958) ............................................................... 91
Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure
(2d ed. 1994) ........................................................................................................ 69, 83
NOTE ON RECORD CITATIONS
Portions of the multi-volume Appendix prepared by Appellant are cited in the same
fashion as in Appellant’s Brief: "T___" for trial transcript volumes, "A___" for pleading and
hearing transcript volumes, and "E___" for Exhibit volumes.
The single-volume Plaintiffs-Appellees’ Appendix contains only transcripts and
excerpts from one pleading. Transcript pages contained therein are cited in this brief as
"P-T " and other material as "P-A ."
Table of Authorities (continued)
Page
- xvii -
STATEMENT OF ISSUES
Class Certification Issues
Scope o f Subclasses and EEOC Charge
(1) Whether the scope of the subclasses certified by the district court was proper where
the Southwest Workers Federation EEOC charge had given defendant notice that
this lawsuit was a class claim alleging specific types of discrimination and was not
limited to any one of the railroad’s departments.
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)
Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876 (8th Cir.), cert, denied,
434 U.S. 891 (1977)
Local 179, United Textile Workers v. Federal Paper Stock Co., 461 F.2d 849 (8th Cir.
1972)
Cobb v. Stringer, 850 F.2d 356 (8th Cir. 1988)
Timing, of Class Certification Motion
(2) Whether the district court abused its discretion in certifying this class action where
the timing of the class certification motion was reasonable and did not prejudice the
class or defendant.
Fed R. Civ . P. 23(a)
Livesay v. Punta Gorda Isles, Inc., 550 F.2d 1106 (8th Cir. 1977), rev’d on other
grounds sub nom Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)
McKinnon v. Talladega County, 745 F.2d 1360 (11th Cir. 1984)
Eirhart v. Libby-Owens-Ford Co., 89 F.R.D. 424 (N.D. 111. 1981)
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Adequacy’ of Class Counsel
(3) Whether the district court abused its discretion in finding plaintiffs’ counsel
adequate to represent the class.
Fed R. Civ. P. 23(a)
Livesay v. Piinta Gorda Isles, Inc., 550 F.2d 1106 (8th Cir. 1977), rev’d on other
grounds sub nom Coopers & Lvbrand v. Livesay, 437 U.S. 463 (1978)
Griffin v. Carlin, 755 F.2d 1516 (11th Cir. 1985)
Eirhart v. Libby-Owens-Ford Co., 89 F.R.D. 424 (N.D. 111. 1981)
Adequacy of Class Representatives: Maintenance of Wav (MOW) Department
(4) Whether the district court abused its discretion in finding that Ernest Franklin
would adequately represent the MOW department subclass.
Fed R. Civ . P. 23(a)
General Telephone Co. v. Falcon, 457 U.S. 147 (1982)
Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925 (11th Cir. 1983)
Adequacy of Class Representatives: Transportation Department
(5) Whether the district court abused its discretion in finding that Sidney Williams
would adequately represent the Transportation department subclass.
Fed R. Civ . P. 23(a)
General Telephone Co. v. Falcon, 457 U.S. 147 (1982)
Parham v. Southwestern Bell Telephone, 433 F.2d 421 (8th Cir. 1970)
EEOC v. Contour Chair Lounge Co., 596 F.2d 809 (8th Cir. 1979)
Craik v. Minn. State Univ. Bd., 731 F.2d 465 (8th Cir. 1984)
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(6) Whether the district court abused its discretion in taking the precautionary measure
of certifying additional representatives for the Transportation department subclass
following judgment.
Fed R. Civ . P. 23(a)
Hartman v. Duffey, 19 F.3d 1459 (D.C. Cir. 1994)
Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876 (8th Cir.), cert, denied,
434 U.S. 891 (1977)
Local 179, United Textile Workers v. Federal Paper Stock Co., 461 F.2d 849 (8th Cir.
1972)
Griffin v. Carlin, 755 F.2d 1516 (11th Cir. 1985)
Adequacy of Class Representatives: MOW and Transportation Departments
(7) Whether the district court abused its discretion in certifying the Southwest Workers
Federation as an additional representative of the MOW and Transportation
department subclasses.
Fed R. Civ . P. 23(a)
Title VII, 42 U.S.C. § 2000e et seq.
Int’l Union, UAW v. LTV Aerospace & Defense Co., 136 F.R.D. 113 (N.D. Tex. 1991)
Local 179, United Textile Workers v. Federal Paper Stock Co., 461 F.2d 849 (8th Cir
1972)
AFSCME v. County of Nassau, 664 F. Supp. 64 (E.D.N.Y. 1987)
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Merits Issues
Discrimination in Promotions
(8) Whether the district court’s finding - that the statistical evidence showing
substantial racial disparities in MOW department promotions, taken together with
the anecdotal and other evidence, supports an inference of a pattern and practice
of discrimination — is clearly erroneous.
Title VII, 42 U.S.C. § 2000e et seq.
Hazelwood School District v. United States, 433 U.S. 299 (1977)
Craik v. Minn. State Univ. Bd., 731 F.2d 465 (8th Cir. 1984)
Catlett v. Missouri Highway & Transp. Comm’n , 828 F.2d 1260 (8th Cir. 1987), cert,
denied, 485 U.S. 1021 (1988)
Anderson v. City o f Bessemer City, 470 U.S. 564 (1985)
(9) Whether the district court’s finding that defendant did not rebut the inference of
discrimination created by the statistical and other evidence is clearly erroneous.
Title VII, 42 U.S.C. § 2000e et seq.
Bazemore v. Friday, 478 U.S. 385 (1986)
Craik v. Minn. State Univ. Bd., 731 F.2d 465 (8th Cir. 1984)
Catlett v. Missouri Highway & Transp. Comm’n, 828 F.2d 1260 (8th Cir. 1987), cert,
denied, 485 U.S. 1021 (1988)
Anderson v. City o f Bessemer City, 470 U.S. 564 (1985)
(10) Whether the district court’s rulings satisfy the requirements of Rule 52(a).
FEd R. Civ. P. 52(a)
White Industries, Inc. v. Cessna Aircraft Co., 845 F.2d 1497 (8th Cir. 1988)
Allied Van Lines, Inc. v. Small Bus. Admin., 667 F.2d 751 (8th Cir. 1982)
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Discrimination in Terms and Conditions of Employment
(11) Whether the district court was correct in considering the totality of the
circumstances as a basis for finding that defendant subjected its African-American
employees to discriminatory terms and conditions of employment in the form of a
racially hostile work environment.
Harris v. Forklift Systems, 510 U .S .__ , 114 S. Ct. 367 (1993)
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
Kopp v. Samaritan Health System, 13 F.3d 264 (8th Cir. 1993)
Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir. 1988)
(12) Whether the district court was correct in holding defendant liable for the hostile
work environment to which its African-American employees were subjected where
the evidence showed both actual and constructive knowledge of these conditions on
the part of its management.
Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir. 1988)
Taylor v. Jones, 653 F.2d 1193 (8th Cir. 1981)
Hirase-Doi v. U.S. West Communications, 61 F.3d 111 (10th Cir. 1995)
(13) Whether the district court was correct in holding defendant liable for the hostile
work environment to which its African-American employees were subjected where
defendant failed to take effective remedial action in spite of its actual and
constructive knowledge of these conditions.
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
Stacks v. Southwestern Bell Yellow Pages, 27 F.3d 1316 (8th Cir. 1994)
Kopp v. Samaritan Health System, 13 F.3d 264 (8th Cir. 1993)
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(14) Whether the district court’s finding that defendant tolerated a prolonged and
continuous pattern and practice of objectionable racial harassment and similar
conduct by its white employees and supervisors toward its African-American
employees is supported by the record and supports an inference of racial animus.
Hall v. Gus Constr. Co.. 842 F.2d 1010 (8th Cir. 1988)
Kopp v. Samaritan Health System, 13 F.3d 264 (8th Cir. 1993)
Powell v. Missouri State Highway Dep’t, 822 F.2d 798 (8th Cir. 1987)
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
(16) Whether the injunctive relief fashioned by the district court to redress defendant’s
racially hostile work environment was appropriate.
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)
Meritor Savings Bank v. Vinson, A ll U.S. 57 (1986)
Ingram v. Missouri P.R. Co., 897 F.2d 1450 (8th Cir. 1990)
EEOC v. Keco Industries, Inc., 748 F.2d 1097 (6th Cir. 1984)
Discrimination in Discipline
(17) Whether the district court was correct in finding a pattern and practice of racial
discrimination in discipline of employees within the MOW department.
Teamsters v. United States, 431 U.S. 324 (1977)
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BRIEF FOR PLAINTIFFS-APPELLEES
Statement of the Case
The history of the events in this litigation contained in defendant’s Statement of the
Case gives the relevant dates and significant court activity in this litigation. Plaintiffs do
not agree, however, with many of defendant’s characterizations of plaintiffs’ actions and
positions in the case. To the extent these disagreements are relevant to the merits of the
issues before this Court, they are covered, along with the important facts, in the Argument
section of this brief.
Summary of the Argument
When the evidence before the District Court is viewed in its totality, instead of the
fragments that defendant presents, it is clear that the Court’s findings of racial
discrimination in job assignments, promotions, terms and conditions of employment, and
discipline by the Missouri Pacific Railroad Company ("MOPAC") are fully supported by the
record.
I.
The district court did not abuse its discretion in certifying and refusing to decertify
this case as a class action. The charge filed with the Equal Employment Opportunity
Commission contained clear allegations of class-wide discrimination on the basis of race by
the Missouri Pacific Railroad. The defendant was on notice that the charge raised class
claims, and it could be reasonably expected that an investigation by the EEOC would
include class issues.
There was no basis for the district court either to deny class certification or to
decertify the class based on any purported dilatoriness on the part of plaintiffs in seeking
certification. Any delays in reaching the class certification question were occasioned by the
transfer of the case to four different judges, the backlog of cases in the Eastern District of
Arkansas, and by actions of both the plaintiffs and the defendants. The defendant has
failed to demonstrate that it was prejudiced in any way by the timing of certification.
Plaintiffs and their counsel were more than adequate representatives of the class, as
demonstrated by their success with regard to a number of the claims they raised. It is
beyond dispute that counsel is highly experienced in bringing class action employment
discrimination cases, and this case was diligently pursued and competently litigated.
II.
The findings of racial discrimination in job assignment, promotions, racial
harassment, and discipline are fully supported by the record and are not clearly erroneous.
The care with which the district court assessed the evidence is demonstrated by the fact
that he held against plaintiffs on a number of their claims, including racial discrimination
in hiring.
Defendant-appellant does not dispute the district court’s finding of racial
discrimination in job assignments in the face of the highly significant over-representation
of African Americans in the Maintenance of Way department and their
underrepresentation in the Transportation Department.
Plaintiffs established a clear case of discrimination in promotions within the
Maintenance of Way Department through statistics and expert testimony demonstrating a
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consistent underrepresentation of African Americans in the positions of Foremen and
Roadmaster in the Maintenance of Way Department. Plaintiffs’ reliance on "snapshot"
statistics was proper under established law governing disparate treatment cases and in light
of the absence of any applicant flow data. Defendant failed to meet its burden of showing
that other factors could explain the underrepresentation, but instead sought to rely on
speculation as to those purported factors.
The record taken as a whole fully supports the district court’s findings of racial
harassment against African Americans as a class in the Maintenance of Way and
Transportation Departments. The district court properly viewed the totality of the
evidence, rather than treating each incident as isolated and apart. The record is replete
with incidents of racial slurs and other conduct of harassment and mistreatment directed
at African-American employees.
The district court’s findings of discrimination against African Americans as a class
in the imposition of discipline are not clearly erroneous. The court’s findings were made
in light of the entire record, including the evidence of discriminatory assignment of African
Americans to the least desirable jobs, the exclusion of African Americans from supervisory
positions, and the subjection of black employees to racial harassment and other
discriminatory terms and conditions of employment. The subjective nature of the
disciplinary process also supports the finding of discrimination in its application.
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ARGUMENT
Introduction
Defendant-appellant has seized on a tactic commonly used by defendants in
employment discrimination cases: the fragmentation of evidence so as to minimize each
instance of discrimination and to obscure the overall pattern of illegal conduct. The courts
have consistently rejected this tactic, and have held in both individual1 and class action
cases,2 that it is essential to view the evidence as a whole. This Court has specifically
rejected an approach that views individual acts as disconnected, isolated incidents when a
pattern exists, embracing instead a totality of the circumstances approach:
Under the totality of the circumstances analysis, the district court should not
carve the work environment into a series of discrete incidents and then
measure the harm occuring in each episode. Instead, the trier of fact must
keep in mind that each successive episode has its predecessors, that the
impact of the separate incidents may accumulate, and that the work
environment created may exceed the sum of the individual episodes.
Bums v. McGregor Elec. Indus., Inc., 955 F.2d 559 (8th Cir. 1992) (Burns I) (hostile work
environment case). See also Stacks v. Southwestern Bell Yellow Pages, 27 F.3d 1316, 1327
(8th Cir. 1994).
lSt Mary’s Honor Center v. Hicks, 509 U .S .___, ___, 113 S. Ct. 2742, 2753-54 (1993);
Meritor Savings Bank v. Vinson, 477 U.S. 57, 69 (1986); United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
'Craik v. Minnesota State Univ. Bd., 731 F.2d 465, 471-72 (8th Cir. 1984); Trout v.
Lehman, 702 F.2d 1094, 1106 (D.C. Cir. 1983); Pegues v. Mississippi State Employment Serv.,
699 F.2d 760, 769 (5th Cir. 1983); Wheeler v. Citv o f Columbus, 686 F.2d 1144, 1151 (5th
Cir. 1982).
- 4 -
Thus, the question before this Court is whether the District Court was clearly
erroneous when it concluded that the evidence in its entirety supported the inference that
the Missouri Pacific Railroad had been guilty of racial discrimination in job assignments,
promotions, terms and conditions of employment, and discipline.
In this brief, plaintiffs-appellees will reassemble the evidence presented to the
District Court from the fragments the defendant has set out. The complete picture
presented when the pieces are fit back together supports fully the decision below. The
evidence demonstrates that African Americans were discriminatorily assigned to positions
in the Maintenance of Way ("MOW") Department, and concentrated there in the dirtiest
and least desirable jobs. At the same time, African Americans were discriminatorily not
assigned to the Transportation Department, which was, as a consequence, virtually all
white.
Even within MOW, African Americans were denied promotions to supervisory and
management positions at statistically significant levels. And, not suprisingly, it was within
the disproportionately black MOW Department, to which African Americans were
relegated, and within the disproprotionately white Transportation Department, from which
African Americans were excluded, that the district court found pervasive patterns of racial
harrassment. Finally, the court found that African Americans as a class had been subjected
to more onerous discipline than had white employees.
As plaintiffs-appellees will demonstrate in detail, the evidence in this case fully
supports the District Court’s findings of discrimination. That the Court’s conclusions were
based on a considered and thorough weighing of all the evidence before it is demonstrated
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by its rejection of a number of the claims of plaintiffs. In short, the decision of the court
below should be affirmed in all respects.
I THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN CERTIFYING
THE SUBCLASSES AND IN REFUSING TO DECERTIFY THEM
Defendant spends the first half of its lengthy brief arguing that it was error for the
District Court to certify this suit as a class action and that this Court should order it
decertified. The grounds urged for decertification are, first, that the class claims
impermissibly exceed the scope of the Equal Employment Opportunity Commission
(EEOC) charge on which the suit was predicated; second, that plaintiffs delayed
impermissibly long in seeking class certification; third, that the quality of representation
supplied by plaintiffs’ counsel was inadequate to represent the class fairly; and fourth, that
the class representatives were inadequate to represent the class (actually, subclasses) fairly.
The third and fourth arguments are bizarre on their face: that in a case where the plaintiff
class prevailed, the class should be decertified - thereby depriving the absent class members
of the benefits of that judgment — out of solicitude for the interests of the class. Indeed,
if there were any validity to defendant’s arguments, a far more plausible case could be
made for decertifying the subclasses for the claims on which plaintiffs lost.
Moreover, strategically speaking, it is baffling that defendant should seek
decertification at all. Decertification on any ground would open the door to relitigation
of some or all of the former class members’ claims, either through new individual suits or
in a newly filed class action. This result would follow because all of the class members’
claims have been tolled during the pendency of this action. See Crown, Cork & Seal Co.
- 6 -
v. Parker, 462 U.S. 345 (1983). Obviously, such relitigation, either piecemeal or wholesale
through a class action, would be a most inefficient and unfortunate use of the Eastern
District of Arkansas’s scarce judicial resources.3
In any event, there is no specter of such wasteful relitigation since defendant’s
arguments for decertification are without merit and need not detain this Court. However,
the fact that defendant’s brief leads with these issues is telling as to its apparent assessment
of the strength of its arguments on the merits.
A. Standard of review
"The district court has wide latitude in determining whether an action may be
maintained as a class action. If the court applies the proper criteria in making this
determination, its decision is reviewable only for an abuse of discretion." Livesay v. Punta
Gorda Isles, Inc., 550 F.2d 1106 (8th Cir. 1977), rev’d on other grounds sub nom. Coopers &
Lybrand v. Livesay, 437 U.S. 463 (1978). Accord e.g., White v. National Football League, 41
F.3d 402, 407 (8th Cir. 1994). Other Circuits take the same approach. See, e.g., McKinnon
v. Talladega County, 745 F.2d 1360, 1365 (11th Cir. 1984) ("The determination of the
adequacy of the class representative is properly governed by the sound discretion of the
trial court and by the factors in Fed. R. Civ. P. 23"); McGowan v. Faulkner Concrete Pipe
decertification on the first ground - that the classes exceeded the scope of the EEOC
charge - would effectively bar relitigation of class members’ Title VII claims found to fall
outside of the scope of the EEOC charge. However, as discussed below, in no event would
complete decertification occur, since plaintiffs’ claims concerning both the Maintenance of
Way and Transportation Departments are additionally supported by other EEOC charges.
In addition, decertification would not affect those class claims asserted under 42 U.S.C.
§ 1981, since there is no administrative exhaustion prerequisite for suing under that statute.
See infra note 7.
- 7 -
Co., 659 F.2d 554, 559 (5th Cir. 1981) ("The discretion afforded the district court, within
the criteria of Rule 23, is not to be disturbed on appeal absent an abuse thereof, at least
when based upon facts educed at an evidentiary hearing").
B. The Claims Asserted in this Lawsuit Fall Comfortably within the Ambit o f the
EEOC Charge and Defendant Had Full Notice from the Outset that the Complaint
Was a Class Claim Alleging Specific Types of Discrimination and Was Not
Limited to Any One of the Railroad's Departments
Defendant argues that the EEOC charge on which this case is predicated did not
give the company fair notice that the complaint would involve charges of several different
types of employment discrimination by Missouri Pacific against a class of black workers and
job applicants in more than one of the railroad’s departments. On that basis, defendant
charges that plaintiffs did not adequately exhaust their EEOC administrative remedy as to
the class claims and that the district court therefore erred in certifying some or all of the
subclasses in this case. Def. Br. at 18-22. This argument is wholly without basis, for
defendant was apprised from the outset - indeed, defendant was given far clearer notice
than is legally required — that this was a class complaint concerning a wide range of the
railroad's discriminatory practices and was not limited to any one of the railroad’s
departments.
1. Legal Standard
Before a Title VII claim can be brought in federal court, a timely administrative
charge must first be filed with the EEOC, and the Commission must notify the charging
party of her right to sue. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-99 (1973);
Foster v. Wyrick, 823 F.2d 218, 221-22 (8th Cir. 1987). The purpose of an EEOC charge
is to put the employer on notice as to the nature of the discrimination alleged and to give
- 8 -
the EEOC an opportunity to investigate and attempt to resolve the controversy through
conciliation before a lawsuit is filed. Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988).
In order to be raised in court, a Title VII claim must therefore first have been called to the
employer’s attention in the EEOC charge. See, e.g., Satz v. ITT Financial Carp., 619 F.2d
738, 741 (8th Cir. 1980) (charging party may raise in complaint claims "‘like or related’ to
the substance of the . . . charge before the EEOC").
In cases involving multiple plaintiffs, including class actions, it is well established
that, under the "single filing" rule, the EEOC exhaustion requirement can be satisfied so
long as just one class member files an EEOC charge. Albemarle Paper Co. v. Moody, 422
U.S. 405, 414 n.8 (\915f, Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 882-
83 & n.9 (8th Cir.), cert, denied, 434 U.S. 891 (1977); Winbush v. State o f Iowa, 66 F.3d
1471, 1478 (8th Cir. 1995). Moreover, that EEOC charge need not even allege class claims.
Rather, so long as the class action lawsuit asserts claims of discriminatory treatment that
are "similar" to those alleged in the individual class member’s EEOC charge, the exhaustion
requirement is satisfied. Winbush, 66 F.3d at 1478. Accord Oatis v. Crown Zellerbach Corp.,
398 F.2d 496, 499 (5th Cir. 1968), quoted in Allen, 554 F.2d at 883 n.9.
Further, the Title VII claims that may permissibly be asserted in a lawsuit are not
limited to those that were actually alleged in the EEOC charge. Instead, under the liberal
canon of construction applied to EEOC charges, "the sweep of any subsequent judicial
complaint may be as broad as the scope of the EEOC ‘investigation which could reasonably
be expected to grow out o f the charge of discrimination. ’" Cobb, 850 F.2d at 359 (quoting
Griffin v. Carlin, 755 F.2d 1516, 1522 (11th Cir. 1985)) (emphasis added). "Because persons
- 9 -
filing charges with the EEOC typically lack legal training, those charges must be interpreted
with the utmost liberality in order not to frustrate the remedial purposes of Title VII." Id.
Finally, Title VII provides that the EEOC charge need not even be filed by the
person(s) suffering discrimination but also may be filed "on behalf' of such person(s) by
another party. 42 U.S.C. § 2000e-5(b). This Circuit has held that class EEOC charges on
behalf of groups of workers suffering discrimination may be filed by organizations such as
trade unions that represent the interests of the aggrieved workers or are themselves
aggrieved. Local 179, United Textile Workers v. Federal Paper Stock Co., 461 F.2d 849, 851
(8th Cir. 1972). See also Allen, 554 F.2d at 883 (discussing Federal Paper Stock).
2. The Southwest Workers Federation’s EEOC Charge Gave Defendant
Full, Fair, and Detailed Notice of the Claims Raised in this Lawsuit
The principal EEOC charge giving rise to this action was filed on June 28, 1974, by
Charles McFadden, the Regional Director of the Southwest Workers Federation (SWF),
an organization formed for the purpose of advocating on behalf of black workers in the
fight against racial discrimination in employment [P-T8986-94], The SWF charge was filed
on behalf of a class of all of defendant’s black employees, all black persons who have
sought jobs with defendant, and five named individual black workers employed by
defendant. It stated:
I wish to file this charge on behalf of all Negro employees, past, present & future, of
the Mo. Pacific Railroad. As the Regional Director of the Southwest Workers
Association, I have personal knowledge of the discriminatory acts of this employer.
I have listed the specific complaints in the attachments to this charge of
discrimination form, as well as the identity of the aggrieved employees on whose
behalf I file this charge.
E1308 (emphasis added). The attachment referred to in the charge continued:
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The above-named employer has discriminated against me and other black
employees as well as applicants for employment and past employees because of race,
based upon the following acts and conducts among others.
1. The company does not hire blacks on the same basis as whites or in
proportion to their numbers in the population.
2. The company does not hire blacks for office clerical, professional or
managerial positions.
3. The company does not promote blacks on equal basis.
4. The company has historically, paid blacks less than whites for equal
or comparable work and responsibilities. Some of the effects of this
practice has caused present black employees to suffer economic
discrimination.
5. This company summarily suspends or terminates blacks for offenses
which are ignored when they are committed by white employees.
By these acts and the totality of their employment practices this company
discriminates against me and other blacks because of race on hire, tenure,
promotion and all other aspects o f the terms and conditions of employment.
E1310 (emphasis added).
This charge unambiguously alleged discrimination against the class of all present,
past, and future black employees and job applicants. The charge was in no way limited to
any single department but rather charged discrimination in all of defendant’s operations.
It was unmistakable from the charge that plaintiffs were alleging class-wide discrimination
of numerous sorts in all of defendant’s operations. No other interpretation of the charge
is remotely plausible.
Moreover, the charge clearly enumerated the specific types of discrimination
subsequently alleged in the complaint, including those claims at issue in this appeal:
discrimination in promotion, in terms and conditions of employment, and in suspension and
termination (i.e, discipline). Under the law of this Circuit, such clear enumeration is
unnecessary. EEOC charges listing only certain narrow claims can nonetheless support
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much broader lawsuits where the additional claims are found to be either implied or else
simply within "the scope of the EEOC ‘investigation which could reasonably be expected
to grow out of the charge of discrimination.’" Cobb, 850 F.2d at 359.4
Similarly, as explained above, the law governing EEOC charges does not even
require that a defendant receive notice that a claim will be a class action. Rather, a charge
filed by an individual that in no way alludes to the possibility of class claims is nonetheless
sufficient to satisfy the exhaustion requirements for a subsequent action on behalf of a
whole class of workers suffering similar discrimination. Albemarle, 422 U.S. at 414 n.8;
Allen, 554 F.2d at 882-83 & n.9; Winbush, 66 F.3d at 1478. Thus, the SWF EEOC charge,
with its explicit claims of class-wide discrimination in promotion, terms and conditions of
employment, and discipline went far beyond the minimum of what is legally required and
gave defendant full, fair, and detailed notice of the nature of the charges leveled against
it.
Defendant attempts to argue that because the five individual black railroad workers
named in the SWF EEOC charge all happened to be employed in defendant’s Mechanical
Department, the charge somehow led the railroad to believe that only discrimination
*See, e.g., EEOC v. Western Pub. Co., 502 F.2d 599, 603 (8th Cir. 1974) (EEOC charge
alleging discrimination in references found to imply broad claim "that the company has
been practicing and continued to practice discrimination with respect to every phase of
employment"); EEOC v. Delight Wholesale Co., 973 F.2d 664, 668-69 (8th Cir. 1992) (EEOC
charge of discriminatory demotion found to support lawsuit also alleging constructive
discharge and wage discrimination); Satz v. ITT Financial Corp., 619 F.2d at 741 (EEOC
charge of discrimination in pay and promotion found to support lawsuit also alleging
discrimination in training and job assignments); Babrocky v. Jewel Food Co., 773 F.2d 857,
865-66 (7th Cir. 1985) (EEOC charge alleging sex-segregated job classifications found to
support lawsuit also alleging discriminatory hiring, recruiting, transfer, and promotion
practices).
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against workers in that department was at issue. Def. Br. at 19-20. Defendant notes as
meaningful the fact that the SWF EEOC charge did not mention the MOW and
Transportation Departments by name.5 What defendant fails to mention, however, is that
the SWF EEOC charge does not specify any departments. Rather, the charge enumerates
specific types of discrimination that defendant has engaged in against black workers and
job applicants, and in no way limits itself to any one department.
The governing interpretive standard is "the scope of the EEOC investigation which
could reasonably be expected to grow out of the charge of discrimination," Cobb, 850 F.2d
at 359 (internal quotation marks omitted), construing the charge "with the utmost
liberality." Id. It is important to recall that the EEOC charge was filed by SWF, a group
committed to attacking employment discrimination institution-wide, and was directed
against the Missouri Pacific Railroad, Arkansas’s then-largest private employer and an
institution notorious for its treatment of black workers. Given that context, and the broadly
framed nature of the charge, it is inconceivable that a resulting EEOC investigation would
confine itself narrowly to just one department at the railroad and would arbitrarily ignore
discrimination of precisely the types enumerated in the complaint - in promotions, terms
'Defendant also makes reference to the first complaint, filed in 1975, which charged it
with various specific types of discrimination and which, like the EEOC charge, did not
confine itself to any one department [Al-5], The complaint and its actual content have no
legal or other relevance to the instant question of how broad a lawsuit the SWF EEOC
charge can support. Rather, as explained above, that scope is determined by the content
of the charge and "the scope of the EEOC investigation which could reasonably be
expected to grow out of the charge of discrimination." Cobb, 850 F.2d at 359 (internal
quotation marks omitted).
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and conditions of employment, and discipline — when it occurred in departments such as
Maintenance of Way or Transportation.
Indeed, even where an EEOC charge is filed on behalf of an individual, asserting
discrimination in a single department of an employer and making no mention whatsoever
of discrimination against other workers, that charge can support a lawsuit brought by
workers employed in other departments if they suffer from the same sorts of discrimination.
Crawford v. U.S. Steel Corp., 660 F.2d 663, 666 (5th Cir. 1981); Oatis, 398 F.2d at 499.
Accordingly, there can be no question that the SWF EEOC charge expressly alleging class
claims of enumerated types of discrimination can support a lawsuit challenging those same
enumerated forms of discrimination as they occur in any of the employer’s departments.
Defendant notes that plaintiffs acknowledged at the class certification hearing that
individual black Mechanical Department workers might not, under Rule 23, be able to
represent a class that included workers from other departments. Def. Br. at 20 (citing
A115). While true, this Rule 23 issue has absolutely no bearing on or relevance to the
question of how broad a lawsuit the SWF EEOC charge supports.
Similarly, Davis v. Bethlehem Steel Corp., 769 F.2d 210, 212 (4th Cir.), cert, denied,
474 U.S. 1021 (1985), cited by defendant, Def. Br. at 19, has no applicability to the instant
question. It did not involve interpretation of an EEOC charge, but rather of the allegations
in a federal court complaint, and did so not for purposes of evaluating a class certification,
but rather to address a tolling issue not raised in this case.6
°The other cases cited in defendant’s brief are equally irrelevant or misleading.
Patterson v. Youngstown Sheet & Tube Co., 659 F.2d 736, 739 (7th Cir.), cert, denied, 451
U.S. 914 (1981), simply holds that where, unlike here, an EEOC charge is expressly limited
- 14 -
In light of the above, there can be no doubt that the claims remaining at issue in this
lawsuit - discrimination in assignments in the MOW department, discrimination in
promotions in the MOW department, discrimination in terms and conditions of
employment in the MOW and Transportation departments, and discrimination in discipline
in the MOW department — fall comfortably within the ambit of the EEOC charge filed by
SWF. The district court’s certification of the classes was accordingly proper.7
to a single department of an employer and fails to name a particular union as a respondent,
that charge cannot support a suit against that union. Hebert v. Monsanto Co., 682 F.2d
1111, 1114-15 (5th Cir. 1982), similarly reiterates the uncontroversial proposition that a
lawsuit cannot extend beyond the scope of the EEOC investigation that would reasonably
be expected to grow out of the EEOC charge.
Defendant’s citation to Ulvin v. Northwestern Life Ins. Co., 943 F.2d 862 (8th Cir.
1991), is misleading because Ulvin is a case concerning the Age Discrimination in
Employment Act and accordingly contains holdings which have no applicability to Title VII
cases such as this one. See infra note 29 (discussion of Kloos case). The citation to
Schnellenbaecher v. Baskin Clothing Co., 943 F.2d 862 (8th Cir. 1991), is similarly
misleading. Schnellenbaecher holds that the absence of class-wide allegations in an EEOC
charge precludes, or at least weighs strongly against, construing the charge to support a
class-wide lawsuit. Id. at 127-28. As discussed above, this position is squarely contradicted
by well-established binding precedent of this Circuit and, indeed, of the Supreme Court,
which hold that an EEOC charge need not contain class allegations in order to support a
class action complaint. See e.g, Allen, 554 F.2d at 882-83; Albemarle, 422 U.S. at 414 n.8.
’There is no question that the SWF EEOC charge fully supported the range of claims
certified by the district court. However, we note that even if that were not true, all of the
claims concerning the MOW department — i.e, all of the remaining promotion claims, all
of the remaining discipline claims, and half of the remaining terms-and-conditions of
employment (racially hostile work environment) claims - would still be proper by virtue
of a second EEOC charge that named plaintiff and MOW class representative Ernest
Franklin filed on December 9, 1975 [E1040-43], Franklin’s charge includes allegations of
these same types of discrimination - in promotions, in terms and conditions of
employment, and in discharges (i.e., discipline) - and does so on behalf of himself "along
with other black persons" [E l042], Were it necessary to rely solely on Franklin’s charge
to support the MOW claims, the time period covered by the MOW Department claims
would be reduced by eighteen months, since Franklin’s charge was filed a year and one-
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C. The Timing of the Class Certification Motion was Reasonable and Did Not
Prejudice the Class or Defendant
Defendant misstates the law with regard to the timeliness of class certification. The
plain language of Rule 23(c)(1) of the Federal Rules of Civil Procedure places a duty on
the court (not plaintiffs, as defendant suggests) to determine, as soon as practicable,
whether a suit is to be maintained as a class action.* 8 Of course, "the named plaintiffs'
failure to protect the interests of class members by moving for certification surely bears
strongly on the adequacy of the representation that those class members might expect to
half later than the SWF charge. Because the SWF charge fully supports the claims
asserted in the lawsuit, it is unnecessary to rely on Franklin’s charge.
Similarly, even if the SWF charge were somehow deemed inadequate, the claims
of the Transportation Department subclass, which at this stage concern only
discrimination in terms and conditions of employment, would equally survive by virtue
of an additional EEOC charge filed by Transportation Department subclass
representative Sidney Williams [E233-34], Although Williams’ charge asserted
discrimination only in transfers into the Transportation Department, when it is read in
conjunction with the charge filed by SWF (of which Williams is a member), the two
jointly suffice to support the Transportation Department subclass’ claim concerning
terms and conditions of employment. P-T May 27, 1988 telephonic hearing [on
temporal scope of subclass] at 5, 9 (last item in Appellees’ Appendix).
We also note that, in any event, any problem with the EEOC charge would have
no effect whatsoever on plaintiffs’ claims under 42 U.S.C. § 1981 - chiefly concerning
promotion within the MOW department from union jobs such as Foreman to
management positions such as Roadmaster - for which no administrative EEOC
exhaustion requirement obtains. See Johnson v. Railway Express Agency, Inc., 421 U S
454, 460-61 (1975).
8Rule 23(c)(1) requires that "[a]s soon as practicable after the commencement of an
action brought as a class action, the court shall determine by order whether it is to be so
maintained." FED. R. Civ. P. 23(c)(1) (emphasis added). By contrast, defendant states,
"Rule 23(c)(1) requires that a person seeking to represent a class make a timely motion
seeking class certification as soon as practicable." Def. Br. at 22 (emphasis added). As
described below, a party’s obligation to make a timely motion stems from Rule 23(a)(4), not
Rule 23(c)(1) — a subtle but important distinction.
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receive." East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 405 (1977). In this sense,
Rule 23(c)(1) relates to Rule 23(a)(4), which requires that "the representative parties will
fairly and adequately protect the interests of the class." This determination, however, is
more than a mechanical exercise. In the present case, the timing of the class certification
motion did not undermine the plaintiffs’ compliance with their Rule 23(a)(4) duty fairly and
adequately to protect the interests of the class, nor did it run afoul of the court’s Rule
23(c)(1) obligation to make a determination as soon as practicable.9 "The timeliness of the
filing of a class motion may hinge on different benchmarks in different cases." Herbert
Newberg & Alba Conte, 1 Newberg on Class A ctions § 3.43, at 3-232 (3d ed. 1992)
[hereinafter "NEWBERG"].10 In discussing class certification, this Court has recognized that
9While it appears anomalous that defendant should concern itself with the adequacy of
plaintiffs' representation of the class, several courts have recognized that such "concern" is
a curious product of the adversary system:
It is in the nature of motion practice on class action determination issues that
defendants, who naturally have no interest in the successful prosecution of the class
suit against them, are called upon to interpose arguments in opposition to class
determination motions verbally grounded upon a concern for the "best"
representation for the class, while the implicit, but nonetheless real objective of their
vigorous legal assault is to insure "no" representation for the class.
Dura-Bilt Corp. v. Chase Manhattan Corp., 89 F.R.D. 87, 101 n.15 (S.D.N.Y. 1981) (citations
omitted).
10Some federal forums have adopted local court rules requiring plaintiff to file a class
certification motion within a designated time period following the filing of the complaint.
However, this requirement did not go into effect in the Eastern District of Arkansas until
July 1979. more than six months after plaintiffs filed a class certification motion in the
instant case on January 28, 1979. See Marshall v. Georgia Pacific Corp., 484 F. Supp. 629,
631 n.2 (E.D. Ark. 1980) ("General Order No. 6 governs procedure in class actions filed
in this district on or after July 1, 1979"). The requirement in General Order No. 6 that
a plaintiff move for class certification within 90 days of filing the complaint is currently
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"a late motion [for class certification] may be considered upon a finding of excusable
neglect or good cause for the delay." Hall v. Bio-Medical Application, 671 F.2d 300, 302
(8th Cir. 1984). Similarly, the Eleventh Circuit has found that "plaintiffs failure to request
certification does not automatically make him an inadequate representative of the class,
although it is one factor to consider." McKinnon v. Talladega County, 745 F.2d at 1365.“
This Court has held that "the general rule is that a delay prior to moving for class
action certification is not a basis for refusing certification absent some showing of
prejudice." Livesay v. Punta Gorda Isles, Inc., 550 F.2d at 1111 (no prejudice shown from
fourteen-month delay).11 12 The leading treatise in this area suggests that in determining the
timeliness of a class motion, the court is usually interested in two things: What was the
embodied in Local Rule C-9(3) of the U.S. District Court for the Eastern and Western
Districts of Arkansas.
11See also Eirhart v. Libby-Owens-Ford Co., 89 F.R.D. 424, 429 (N.D. 111. 1981) (rejecting
defendant’s "unpersuasive" argument that four-year delay in filing for class certification
indicates plaintiffs inability to represent class); In re Fleet, 76 B.R. 1001, 1010 (Bankr. E.D.
Pa. 1987) ("[W]e are certainly not prepared to say that [four-year delay] pronounces their
counsel as less than ‘generally able to conduct the litigation’").
12Accord e.g., Brickman v. Tyco Toys, Inc., 722 F. Supp. 1054, 1064 (S.D.N.Y. 1989)
(shareholders’s failure to seek class certification in federal securities fraud action in timely
manner in accord with local rule did not require that class action allegations be stricken,
where defendants did not assert that delay in filing for class certification had prejudiced
them in any way, and there was no apparent prejudice to putative class); Chambers v.
McLean Trucking Co., 550 F. Supp. 1335 (M.D.N.C. 1982) (class certification would not be
denied on grounds that the motion was untimely, absent a showing of prejudice); Eirhart
v. Libby-Owens-Ford Co., 89 F.R.D. at 429 n.5 ("[Defendant] has not supported its claim
by any showing of prejudice" from four-year delay); Dura-Bill Corp. v. Chase Manhattan
Corp., 89 F.R.D. at 101 (finding six-year delay not prejudicial; court stated that "[d]elay only
plays a decisive role if it results in prejudice").
- 18 -
reason for any delay in filing, and will it prejudice the class or the defendant? NEWBERG,
at 3-233. Accordingly:
The court is seeking to determine only if such a late filing of the class motion will
cast doubt on the plaintiffs adequacy to represent the class. Normally, a late filing
of a class motion will not automatically bar a class, and doubts about adequacy
arising from a belatedly filed class motion will be resolved in the plaintiffs favor,
provided the court is further satisfied that there is no material prejudice to the class
or to the defendant from such delay.
Id. at 3-235. In the instant case, the timetable for determination of the class certification
motion was reasonable and did not prejudice either the class or defendant.13
1. The Timing of the Class Certification Motion Was Reasonable
Plaintiff did not move earlier for class certification for several reasons. First, the
case was transferred to four different judges in four-and-a-half years and became part of
a backlog of cases due to vacancies on the bench. Judge Howard correctly recognized this
in finding that the lack of discovery and passage of time between commencement of the
action and the filing of the class certification motion did not render the representation
inadequate. He stated that:
The Court is of the view that much of the time that has elapsed since this action was
instituted is not chargeable to plaintiffs or their counsel. The record plainly
demonstrates that since the filing of this action, this case has been transferred to
four different courts before reaching this Court. Moreover, the Court is fully aware
that this case is one among many that has been listed, over the years, as a statistic
in the backlog of cases in this district because of the lack of judges to deal with the
civil and criminal dockets. Notwithstanding the long delay, plaintiffs have continued
to press their claims when the opportunity was afforded them.
13This Court should note that unlike in Burkhalter v. Montgomery Ward and Co., 676
F.2d 291, 294 (8th Cir. 1982) (cited in Def. Br. at 23 n.12), plaintiffs in this matter adhered
to the briefing schedule established by Judge Arnold’s January 22, 1980 order, which itself
was entered "[a]t the request of the plaintiffs, and for good cause shown." Order (Jan 22
1980) [A24],
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Webb v. Missouri P.R. Co., 95 F.R.D. 357, 367 (E.D. Ark. 1982), A319.14
Second, determination of the precise scope of the class was not possible until issues
in Broadnax v. Missouri P.R. Co., 27 Fair Empl. Prac. Cas. (BNA) 669 (E.D. Ark. 1978),
were resolved, as even one of the defendant unions in this litigation conceded: "It will be
difficult, if not impossible, to resolve those issues [related to class certification] until the
final resolution of the Broadnax litigation." Response to Motion for Class Certification (by
United Transportation Union) [A33],
2. The Timing Did Not Prejudice Either the Class or Defendant
In addition to being reasonable, the passage of time between the filing of the
complaint and the class certification motion did not prejudice the class or defendant. First,
the class was not prejudiced by the delay, as indicated by the fact that the class won on a
number of issues at trial.15 Second, by its own account, defendant was able to present
sufficient evidence. In fact, defendant goes into great detail discussing the breadth of
evidence it presented, in contending that the district court failed to give adequate weight
to evidence it offered. See, e.g., Def. Br. at 35, 58-59, 96-97, 107-12. Defendant cannot
have it both ways by arguing, on the one hand, that delay in the filing of the class
certification motion prejudiced its ability to gather and present evidence, while on the other
14See also Paxton v. Union Nat’l Bank, 688 F.2d 552, 558 (8th Cir. 1982) (highlighting
the backlog in Eastern District of Arkansas, this Court quoted from an opinion below, in
which the district court judge indicated: "We had a terrible experience in this court of
having a moratorium on civil cases for years. Class actions were filed and they sat here for
years"), cert, denied, 460 U.S. 1083 (1983).
15While plaintiffs did not win every single issue at trial, a rule requiring a finding of
inadequacy whenever one side lost an issue would obviously be unworkable.
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hand, contending that the District Court ignored mountains of evidence gathered and
presented by it.
Furthermore, it is clear that defendant was not prejudiced by any delay because
defendant knew from the start of this lawsuit that its nature was that of a class (not
individual) action. The class allegations contained in the EEOC complaint and district
court complaint put defendant on notice that the suit was a class action. In this sense, this
case is similar to Eirhart, in which the court rejected defendant’s argument that a four-year
delay indicated plaintiffs inadequacy, noting that "[i]n literal terms, however, Eirhart moved
for certification of the class simultaneously with filing the first pleading that contained class
allegations." Eirhart v. Libby-Owens-Ford Co., 89 F.R.D. at 429.16 In the instant case,
both the EEOC charge and the district court complaint contained clear indications that the
suit would be pursued as a class action.17
XbSee also Sanders v. Lum ’s, 76 F.R.D. 1, 3 (S.D.N.Y. 1976) (delay of over 6 years
excused despite local rule because no prejudice shown to defendants who "have been on
notice that plaintiff was bringing this action on behalf of himself and ‘others similarly
situated’ since the complaint was filed in 1970"); Muth v. Dechert, Price & Rhoades, 70
F.R.D. 602, 606 (E.D. Pa. 1976) (two-year delay excused in light of "absence of any showing
of prejudice to the defendants or to members of the class" and the "class action allegations
were clearly set forth in the original complaint" so that "[pjrior to the submission of this
motion, all parties, and the Court, were well aware of the class action nature of this suit").
l7The EEOC charge filed by the Southwest Workers Federation stated that it was filed
"on behalf of the Negro employees, past, present & future, of the Mo. Pacific Railroad."
SWF EEOC charge [E1307], See supra pp. 10-11. The complaint filed in the district court
is even more specific with regard the class nature of the suit Complaint, at 1 [A1J):
Plaintiffs bring this action on their own behalf and on behalf of others
similarly situated, pursuant to Rule 23 . . . . Plaintiffs represent the class of
black persons who are employed, have been employed, have sought
employment, and will in the future seek employment with the defendant
Missouri Pacific Railroad, at its facilities in North Little Rock, Arkansas, and
- 21 -
It is also clear that any delay did not prejudice defendant from the fact that the
company did not raise the issue of delay as an objection to the filing of plaintiffs’ initial
class certification motion. In fact, the company neither filed a written opposition to
plaintiffs' initial motion for class certification, see Docket Sheet (Appellant’s Appendix, Vol.
1 [unnumbered pages]), nor raised an objection based on timeliness at the first class
certification hearing. See A35-74. Thus, this objection is waived. See Eirhart, 89 F.R.D.
at 429 n.6 ("Any criticism based on the timing of [plaintiffs] class claims is really just such
an objection and should properly have been interposed at that time").
3. Plaintiffs Were Represented at the First Class Hearing
Defendants are incorrect in stating that plaintiffs’ counsel were absent from the first
class certification hearing and therefore provided inadequate class representation. In fact,
Mr. Quiggle, who then represented plaintiffs along with Mr. Walker’s firm, was present at
that hearing. See Hearing on Motion for Class Cert. [A36], While defendant contends that
plaintiffs’ counsel were unprepared, it was Mr. Smith, counsel for the defendant Railroad,
who stated, "I, frankly, thought perhaps the court might set an evidentiary hearing [for a
later date] on this issue; I didn’t really realize, and still don’t, really, that the Court might
be prepared to hear evidentiary material today" [A46-47],
4- Plaintiffs Cannot be Faulted for Failure to Conduct Discovery
Although plaintiffs had propounded some interrogatories, A60, defendants fault
them for failing to conduct more extensive pre-trial discovery. Judge Howard was correct
who have been, continue to be, and may in the future be adversely affected
by the practices complained of herein.
- 22 -
in observing that "meaningful and comprehensive discovery could not be initiated and
implemented until plaintiffs knew whether this action would ultimately proceed either as
a class or an individual action." Webb, 95 F.R.D. at 367 [A319-20]. This echoes then-
district court Judge Arnold’s earlier observation when he commented, "I can understand
why discovery might not have gone forward while the motion for class certification had not
been resolved" [A70]. Indeed, when plaintiffs counsel explained that the backlog of cases
discouraged counsel from conducting discovery until the case was active so as to avoid
having to update and duplicate discovery later, Judge Arnold said, "I can appreciate what
you say and I think I would have done the same thing in Mr. Walker’s place . . . ." [A70],
D. The District Court Did Not Abuse Its Discretion in Refusing to Decertify the
Subclasses Because Plaintiffs ’ Class Counsel Were Inadequate
A decision regarding decertification must be upheld unless it was "so erroneous as
to constitute an abuse of discretion". Livesay v. Punta Gorda Isles, Inc., 550 F.2d at 1110.
The District Court here did not abuse its discretion in rejecting defendant’s repeated
attacks on plaintiffs’ adequacy of representation. In its opinion certifying the class, the
District Court gave careful consideration to defendant’s arguments before finding,
"[plaintiffs’ attorneys have adequate experience and qualifications to assure the Court and
the subclasses that they can conduct this litigation in a competent manner." Webb, 95
F.R.D. at 366-67 [A320]. The District Court revisited this issue in its ruling rejecting
defendant’s motion to decertify, finding: "It is plain to the Court, and MOPAC does not
really deny this, that plaintiffs' attorneys are qualified, experienced and capable of
conducting this litigation." Order (March 30, 1988), at 8 (ruling on Rule 41(b) and class
decertification motions) [A555], These findings address the essence of the "adequacy of
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representation requirement." See, e.g., Griffin v. Carlin, 755 F.2d at 1533. While defendant
relies heavily on Hervey v. City o f Little Rock, 787 F.2d 1223 (8th Cir. 1986), in its brief, that
case is inapposite because the district court in Hervey decertified the subclasses - a decision
affirmed by this Court on the basis of the deferential "abuse of discretion" standard. By
contrast, in the instant case, the District Court rejected defendant’s motion to decertify the
subclasses - a decision which should also be affirmed under the abuse of discretion
standard.
1- Defendant Misrepresents the District Court’s Findings
Defendant’s misplaced reliance on inapposite cases appears to be rooted in its own
misconceptions about and mischaracterizations of the record. In its brief to this Court, for
instance, defendant incorrectly states in passing that "Judge Arnold had found plaintiffs’
counsel inadequate in 1980." Def. Br. at 26. This allegation, made by defendant carelessly
and casually, is not supported by the record. The alleged finding cannot be found in the
class certification hearing before Judge Arnold nor can it be deduced from his order
denying the first class certification motion.18
18However, in defendant’s Memorandum in Support of Oral Motions to Decertify or
Limit Subclasses, submitted to Judge Howard during the trial, defendant made a similar
error by asserting that "Judge Arnold therefore concluded ‘that these parties would not be
adequate representatives.’" Def. Memorandum in Support of Oral Motion to Decertify or
Limit Subclasses, at 39 [A475] (citing Hearing on Class Cert. Motion Transcript (Feb. 11,
1980), at 22-23). A review of the cited transcript pages of the hearing before Judge Arnold
reveals that the phrase, "would not be adequate" (emphasis added), nowhere appears. In
fact, rather than making such a finding, Judge Arnold stopped short of making any defin
itive determination, stating that "the Court does not on the present record conclude that these
parties would be adequate representatives." Hearing on Class Cert. Motion Transcript
(Feb. 11, 1980), at 23 [A57] (emphasis added). Defendant apparently equates the words,
"does not on the present record conclude," with "these parties would not be adequate."
Ironically, in its brief to this Court, defendant chides the reader that "Counsel, as officers
- 24 -
Defendant also contends that the district court mechanically incorporated into its
opinion "errors" contained in plaintiffs’ proposed findings, citing a list of findings with
which it disagrees (Def. Br. at 34) and referring to purportedly contrary evidence that it
proferred on these subjects. A careful comparison of plaintiffs’ proposed findings with the
District Court’s decision makes clear that the court below did not simply adopt either
party’s proposed findings wholesale. Further, to the extent the District Court chose
plaintiffs’ findings over defendant’s on any particular subject, that choice reflects the
Court’s determination that plaintiffs’ evidence and interpretation of the evidence was more
credible.
2. The District Court Did Not Err in Finding That Neither Party Was
Solely Responsible for Delays In the Case_______________________
Defendant has conceded that "plaintiffs’ counsel have not been responsible for all
of the delays that have occurred in this litigation"; that defendant was responsible for some
delay, such as "changes in counsel and management and trial of other discrimination suits";
and that the parties jointly caused delay with "the settlement of the Mechanical subclass,
which did lead to a jointly requested recess in the trial." Consolidated Reply Brief in
Support of Motions for Rule 41(b) Dismissal of Claims and Decertification or Limitation
of Subclasses, at 51 [A514].19 Indeed, plaintiffs’ delay in constructing their statistical case
of the court, have a duty to maintain ‘scrupulous accuracy in references to the record.’"
Def. Br. at 34 (citation omitted).
‘"See also the District Court’s finding that "MOPAC conceded in its brief that plaintiffs’
counsel ‘have not been responsible for all the delays that have occurred in this litigation’
and concedes further that the settlement of the Mechanical Class ‘led to a jointly reques-
- 25 -
was in no small part due to defendant’s refusal to provide statistical information, particularly
its litigation data base, when sought through discovery requests. See Hearing in Chambers
Transcript (Oct. 16, 1984), at 2-26 [A379-403], Judge Howard noted:
Defendant has seen fit to come forth and voluntarily submit the litigation data base.
It was at a belated time. It’s sort of conveying a benefit or gift without any
substance. Here it is, and [plaintiffs] are unable to use it because of the time factor.
Id. at 26 (emphasis added) [A403].* 20 Multiple reasons occasioned delay in the case,
including: changing counsel (the only attorney who remained with the case from its
inception was plaintiffs’ lead counsel); a change in management at MOPAC (now Union
Pacific) including new supervising counsel from Omaha; partial settlement of a major part
of the litigation; MOPAC’s need to attend to other discrimination suits, such as Broadnax
and Saracini v. Missouri P.R. Co., 431 F. Supp. 389 (E.D. Ark. 1977); and general judicial
delays in all civil actions in the entire federal judicial district. Assigning fault to one party
or the other is both impossible and unproductive.
ted recess in trial’ which has shortened the ‘ultimate resolution of this case.’" Order
(March 30, 1988), at 7 (ruling on Rule 41(b) and class decertification motions) [A554],
20See also Eirhart v. Libby-Owens-Ford Co., 89 F.R.D. at 429 (in certifying the class, the
court found defendant largely responsible for delay in class certification, noting: "Indeed
the principal delay in this action has been caused by [defendant’s] failure to tell Eirhart
openly that the rule she was complaining of applied to both men and women"); In re Fleet,
76 B.R. at 1006 (in rejecting defendants’ argument concerning timeliness in class
certification motion, the court agreed with the plaintiffs "that Defendants have been less
than reasonably cooperative, in discovery and in litigation tactics, and that this factor
justified some delay on their part").
- 26 -
3. The District Court Did Not Err in Finding Plaintiffs’ Statistical and
Anecdotal Evidence Adequate to Survive Defendant’s Decertification
Motion_______________________________________________ ______
Defendant misrepresents the district court's findings regarding plaintiffs’ promotions
statistics by suggesting that "the lower court held that plaintiff s promotions statistics had
‘little or no probative value’ and struck them because they had ‘not taken into account
nondiscriminatory reasons for the alleged disparity.’ [A561-62]" Def. Br. at 31-32. In fact,
a review of the cited pages of the district court’s Rule 41(b) order reveals that this
particular finding was limited to one statistical table that was stricken. Order (March 30.
1988), at 15 [A561-62]. Other statistical tables regarding promotions survived the court’s
ruling at that juncture and were ultimately relied on in the court’s liability opinion.
Plaintiffs presentation of these data, generated from a data base supplied bv defendant
reflecting payroll and work history records, was certainly adequate to survive defendant’s
decertification motion, and the District Court did not abuse its discretion in so finding.
Indeed, the court’s liability opinion reflects that "the parties stipulated that the Payroll file
was reasonably reliable and accurate." Webb v. Missouri P.R. Co., 826 F. Supp. 1192, 1204
(E D. Ark. 1993), A657.21 Moreover, the court noted that "Missouri Pacific concedes that
there is statistically significant underrepresentation of blacks in the management position
of roadmaster when compared to the Maintenance-of-Way Department workforce as a
whole." Id. at 1204 n.13, A658. Finally, it was not clearly erroneous for the court to find
plaintiffs’ statistical evidence adequate in light of the fact that at the same time defendant
21The court’s findings regarding statistical evidence concerning promotions are based
chiefly on the payroll file.
- 27 -
attacked the information from the data base system as unreliable, it "relied on and
submitted data generated from the system to the Equal Employment Opportunity
Commission." Id. at 1199, A644.22
It was also not clearly erroneous for the District Court to find plaintiffs' non-
statistical evidence (for promotions, terms and conditions, and discipline and discharge)
adequate to survive defendant’s decertification motion and to be credible as a basis upon
which the ultimate finding of liability could be predicated. Based on anecdotal and
statistical evidence, the court found that plaintiffs met the burden of establishing a prima
facie case of discrimination in promotions, terms and conditions, and discipline and
discharge. Moreover, in each instance in which plaintiffs ultimately prevailed, Judge
Howard found that defendant failed to demonstrate legitimate or nondiscriminatory reasons
for the disparate treatment or otherwise overcome the inference of discrimination that he
found warranted by plaintiffs’ prima facie and rebuttal presentations.
E. The Class Representatives Were Fully Adequate to Represent Their Respective
Subclasses
After a lengthy class certification hearing held over the course of three days, the
district court certified five plaintiff subclasses.23 Defendant contends that the two
“ "It must be remembered that under federal law all employers who employ fifteen or
more employees are covered by Title VII and possess a duty to maintain records regarding
employment decisions." Id., A644. "Indeed, Missouri Pacific knew or should have known
that the central purpose in structuring and maintaining the records in question is to assist
in the resolution of controversies involving employment decisions such as we have in the
current case." Id. at 1204, A656.
23The principal subclasses were defined as (1) black workers discriminated against in
the Transportation department; (2) black workers discriminated against in the MOW
department; (3) black workers discriminated against in the Mechanical department;
- 28 -
subclasses that prevailed at trial - those for the MOW and Transportation departments -
must be decertified on the ground that the designated class representatives do not satisfy
the requirements of FED. R. Civ. P. 23. These representatives are fully adequate to
represent their respective subclasses, and the District Court did not abuse its discretion in
so certifying them.
1. The Maintenance of Wav Department
The workers in defendant’s MOW department are responsible for building and
maintaining the railroad tracks and beds. The MOW department subclass was defined as
All black persons . . . discriminated against because of their race in seeking a
transfer into the transportation department, or who have been discriminated against
in the terms and conditions of their employment or who were discriminatorily
discharged.
[A316], The court certified plaintiffs Earnest Franklin and the Southwest Workers
Federation (SWF) as representatives of this subclass. Id. As both Franklin and SWF
qualify to serve as class representatives, there exist two independently adequate grounds on
the record for upholding the MOW certification.
Ernest Franklin worked first as a Trackman (an entry-level laborer) and then as a
Foreman (a first tier supervisor) within the MOW department. The dirty, physically
demanding work of maintaining the tracks makes MOW one of the least desirable places
to work in the railroad. Because of discriminatory steering of black workers, MOW has
also been the most predominantly black of defendant’s departments. See infra pp. 50-52it
has been there that racial harassment has been most pervasive.
(4) black job applicants seeking work in any of defendant’s departments. There were also
two subclasses concerning claims against union defendants. [A305-26.]
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The MOW subclass prevailed at trial on the following four claims: discrimination
in (1) initial job assignments; (2) promotions; (3) terms and conditions of employment
(hostile work environment); and (4) discipline. Rule 23(a) establishes the prerequisites for
certification of class representatives.24 Defendant challenges Franklin’s qualification to
serve in that capacity. First, the railroad charges that Franklin does not demonstrate "high
standards of honesty and integrity" and therefore cannot be relied on to "fairly and
adequately protect the interests of the class" as required by Rule 23(a)(4). Def. Br. at 43-
49. It is certainly true that the honesty and integrity of a proposed class representative are
relevant to a representative’s "adequacy" under Rule 23(a)(4). However, while there is
ample authority establishing that a district court may, if it deems appropriate, decline to
certify a proposed representative because of such concerns, defendant has cited no case and
research has revealed not a single reported decision in which a Court of Appeals has
vacated a district court’s class certification on this ground. In this case, after a three-day
hearing at which twenty-eight witnesses testified and Franklin was examined at length, the
District Court, in its sound discretion, found Franklin an adequate and appropriate class
representative. Ruling on one of defendant’s subsequent motions for reconsideration and
24Rule 23(a) provides:
Prerequisites to a Class Action.
One or more members of the class may sue or be sued as representative parties on
behalf of all only if (1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to the class, (3) the
claims or defenses of the representative parties are typical of the claims or defenses
of the class, and (4) the representative parties will fairly and adequately protect the
interests of the class.
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decertification, the Court appeared to be persuaded by plaintiffs' evidence that "Franklin
was one of the few black employees who possessed the courage to speak out against"
defendant’s system of pervasive discrimination [A567]. In large-scale discrimination cases
challenging a powerful defendant’s entrenched practices of discrimination, those willing to
brave the retaliation and harassment that all too often greet class representatives typically
are iconoclasts. If the idiosyncracies common in persons with such perseverance were to
render them inadequate representatives, these systems of discrimination would be rendered
immune from legal challenge. On these facts, the district court’s rulings finding Franklin
an adequate class representative were not an abuse of discretion.
Second, defendant maintains Franklin’s certification was error because his legal
claims are not "typical" of those of the MOW class members, as required by Rule 23(a)(3).
Def. Br. at 51-56. As the Supreme Court has explained, Rule 23(a)(3)’s typicality
requirement and Rule 23(a)(4)’s mandate that the representative "fairly and adequately
protect the interests of the class" tend to merge. General Telephone Co. v. Falcon, 457 U.S.
147, 157 n.13 (1982). In essence, they require that "a class representative must be part of
the class and possess the same interest and suffer the same injury as the class members."
Falcon, 457 U.S. at 156 (quoting East Texas Motor Freight v. Rodriguez) (internal quotes
omitted). In Title VII cases, in order to suffer the same injury, the class representative
must allege she was harmed by the same discriminatory employment practice that the class
alleges. Falcon, 457 U.S. at 158-59 & n.15. Assessed under this standard, it is evident that
Franklin’s claims parallel almost exactly the subclass’s three claims — discrimination in
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(1) terms and conditions of employment; (2) promotion; and (3) discipline - easily meeting
Rule 23’s typicality threshold.
Terms and Conditions of Employment (Racially Hostile Work Environment). The class
of MOW workers (together with the class of Transportation workers) charged that
defendant had tolerated the existence of a work environment in which black workers were
routinely subjected to threatening and demeaning racial slurs, to conditions and treatment
worse than that received by whites, and to numerous other daily indignities, small and large.
Plaintiffs proved the class claims at trial with extensive anecdotal evidence. See infra Part
II.D. Franklin’s own claims concerning hostile work environment were of precisely this
same sort, detailing numerous slurs and other indignities he suffered.
Franklin’s claim is as typical of the class claim as is likely to occur in a hostile
environment case. Both allege and tend to show a pervasive management tolerance for
such behavior, thus satisfying Falcon's requirement that both must challenge the same
practice. Defendant’s argument that his allegations are too "individualized" and "personal"
to be typical, Def. Br. at 56, amounts to a claim that hostile environment claims can never
receive class treatment. However, courts have routinely certified hostile environment class
actions, and Franklin’s representation in this case falls comfortably within the standard of
typicality demonstrated in this body of law. See, e.g., Bremiller v. Cleveland Psychiatric Inst.,
879 F. Supp. 782, 796-97 (N.D. Ohio 1995); Alvarado v. Carnation Co., CV94-0248-S-EJL,
1995 U.S. Dist. LEXIS 10084 (D. Idaho June 26, 1995).
Promotions. The MOW class charged that, throughout the department, defendant
maintained a pattern and practice of discriminating against those black workers seeking to
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be promoted up through the ranks. While blacks were concentrated in the entry-level
laborer position of Trackman, very few advanced to the first tier supervisory rank of
Foreman, to the desirable craft position of Machine Operator, or to the management rank
of Roadmaster. The class proved this claim through statistical, anecdotal, and other
evidence. See infra Part II.C.
Franklin himself charged he was discriminatorily rebuffed in his efforts to win
promotion to the supervisory position of Foreman [T53-54]. He further charged that after
he was eventually appointed Foreman, he was then discriminated against still more in
attempts to be promoted to the skilled craft position of Machine Operator [T183-85], and
to the management positions of Assistant Roadmaster and Roadmaster [T180-83], These
claims are identical to the three types of promotion claims asserted by the class:
discrimination in promotion from Trackman to Foreman; Trackman/Foreman to Machine
Operator; and Foreman to Roadmaster. See infra Part II.C.l. Franklin’s claims thus cover
each of the two overarching categories of promotion claims: (1) promotion to union jobs
within the MOW bargaining unit (i.e., Trackman to Foreman; and Trackman/Foreman to
Machine Operator); and (2) promotion from the bargaining unit to non-union, management
jobs (i.e., Foreman to Roadmaster).25
The fact that Franklin’s claims cover both of these categories makes him an ideal
class representative. Moreover, the claims of Franklin and the class were both predicated
25Those two groupings are deemed significant because they indicate two different sets
of promotional practices. First, within the bargaining unit, promotions were ostensibly
governed by a strict bidding system in which seniority weighed heavily. See infra pp. 77 -78.
By contrast, there was no formal job announcement, application, or selection process for
promotions to management jobs. Seniority was not considered either. See infra pp. 68-69.
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on the existence and operation of a department-wide pattern and practice of discrimination,
proven largely through statistical evidence, which was the mechanism by which this
promotion discrimination occurred, thereby satisfying Falcon. See infra Part II.C.
Defendant argues that because Franklin’s claimed instance of discriminatory denial
of promotion to Foreman may have occurred outside of the limitations period for this case,
he cannot represent the class as regards that type of claim. Def. Br. at 54. However, even
if it is true that his Foreman promotion claim is time-barred, Franklin may still represent
the class on such claims since he still asserts a timely promotion claim concerning a
bargaining unit position: Machine Operator. Since all of the bargaining unit positions
employ the same promotion system (see supra note 25), under Falcon, Franklin’s Machine
Operator promotion claim is enough to allow him to represent the class on Foreman
promotion claims as well. See Craik, 731 F.2d at 480 n.18 (where two claims involve same
employment mechanism or practice, plaintiff alleging one may represent the class on both);
Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983) (where same
evaluation process used for promotions to different positions within a collective bargaining
unit, plaintiff allegin discrimination as to one position may represent whole class).26
Discipline. As with promotions, the factual allegation undergirding the discipline
claims of both Franklin and the class is the existence of a department-wide pattern and
2l’Defendant also objects that, in light of Franklin’s admission that he did not know the
qualifications for promotion to Roadmaster, his management promotion claim is too
"amorphous" to be typical of the class’s claims. Def. Br. at 55. However, this quality of
Franklin’s claim is not at all atypical. The management promotion system was a
standardless "old boy’s network," from which blacks were excluded precisely because of such
lack of information. See infra pp. 68-69.
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practice of tolerating supervisors’ meting out far harsher punishment to black workers than
to whites. Both claims alleged that this pattern and practice operated through the
mechanism of supervisors’ discriminatorily exercising their discretion not to report or
punish whites for offenses for which blacks would be punished and, in the case of formal
discipline procedures, rubber-stamping punishments meted out to blacks while scrutinizing
those for whites. As such, Franklin’s claim was clearly typical of those of the class to a
degree that has been recognized to render class certification appropriate. See Paxton v.
Union Nat’l Bank, 688 F.2d at 566-67 (reversing district court’s denial of certification of
discharge class upon a comparable allegation).
2. Transportation Department
The Transportation department subclass was defined as
Ail black persons . . . discriminated against because of their race in seeking a
transfer into the transportation department, or who have been discriminated against
in the terms and conditions of their employment or who were discriminatorily
discharged.
[A317]. The court certified plaintiffs Sidney Williams and the Southwest Workers
Federation (SWF) (as well as another plaintiff who was later dismissed) as representatives
of this subclass. Id. Moreover, in an abundance of caution, following entry of judgment
on the merits, the court certified as additional representatives of the subclass three
individual Transportation department workers who had participated throughout the
litigation, two of whom had prevailed on individual claims at trial [A737]. As Williams, the
intervenors, and SWF all qualify as adequate class representatives, here there exist three
independently adequate grounds for the district court’s certification of this subclass.
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Sidney Williams. Sidney Williams worked as a laborer in the railroad’s Mechanical
department until 1979 when he transferred into the Transportation Department.
Transportation, whose workers operate the trains, has generally been considered the most
desirable of the departments. Historically, Transportation has had the lowest
representation of blacks workers and, as discussed below, has given rise to a racially hostile
work environment for blacks.
Williams charged that he had been discriminatorily treated less favorably than
similarly situated whites when, like many workers, he attempted to transfer into this
desirable department. 826 F. Supp. at 1217-18, A690-91. Williams also charged that once
he transferred into Transportation, he was subjected to a racially hostile work environment
in the department. 826 F. Supp. at 1218, A691-92. The District Court found Williams
failed to prove both claims. Specifically, the court rejected the hostile work environment
claim because Williams had testified to only one racial incident at trial. Id.
Defendant charges that Williams did not satisfy the Rule 23(a) requirements as
regards the Transportation subclass’s terms and conditions of employment (hostile work
environment) claims, thus rendering his certification erroneous. Def. Br. at 39-40.
(Defendant does not question Williams’ adequacy to represent the subclass regarding the
transfer claims.) Under Falcon, "a class representative must be part of the class and possess
the same interest and suffer the same injury as the class members." Falcon, 457 U.S. at
- 36 -
156. In addition, there can be no conflict of interest between the class representative and
the class.27
Falcon and Rodriguez made clear that the appropriateness of a class representative
must be determined based on the evidence at the time of the certification hearing.
Significantly, the Supreme Court held that the mere fact that the class representative
ultimately proves unable to prove her individual claim at trial in no way undermines her
adequacy and ability to serve as a class representative or the propriety of the initial
certification. Falcon, 457 U.S. at 156 (quoting Rodriguez, 431 U.S. at 406 n,12).“ This
ruling had been anticipated by this Circuit, which long ago adopted the same rule. See
Parham v. Southwestern Bell Tel. Co., 433 F.2d 421, 428 (8th Cir. 1970) ("[The named
plaintiff s] failure to establish his claim for individual damages will not bar relief for the
class he represents. . . . [T]he success or failure of the plaintiffs individual claim in this
litigation need not determine the availability of relief to rectify the employer’s class
discrimination"); see also EEOC v. Contour Chair Lounge Co., 596 F.2d 809, 813 (8th Cir.
1979); Donaldson v. Pillshury, 554 F.2d 825, 831-32 & n.5 (8th Cir.), cert, denied, 434 U.S.
27For example, where the representative is an incumbent worker wrongly denied
promotion, she sometimes cannot represent a class of rejected applicants, since she and the
class, if granted relief, might then have conflicting interests with respect to fringe benefits
or seniority. Falcon, 457 U.S. at 157 n.13 (citing General Telephone Co. v. EEOC 446 U S
318, 331 (1980)).
^Similarly, in a line of cases addressing the analytically distinct but very closely related
question of whether the failure or mooting of a class representative’s claim results in
destruction of Article III standing, the Supreme Court has repeatedly affirmed that once
certified, such developments do not affect the validity of the certification or the
representative’s ability to continue serving in that capacity. See United States Parole
Comm’n v. Geraghty, 445 U.S. 388 (1980); Franks v. Bowman Transp. Co., 424 U.S. 747
(1976); Sosna v. Iowa, 419 U.S. 393, 395-403 (1975).
- 37 -
856 (1977). Indeed, so strong is this rule that this Court has on occasion reversed lower
courts and ordered class certification even where the district court had already rejected the
class representative’s individual claim and the viability of that claim remained unclear on
remand. See Donaldson, 554 F.2d at 831-32 & n.5.
In this case, Williams’ inability at trial, perhaps due to the fading of memories, to
offer more than one example of racial harassment (leading the District Court to deny
Williams’ individual claim, 826 F. Supp. at 1218, A691-92), does not alter the fact that he
believed he had been subjected to a hostile work environment and asserted such a claim
at trial. Id. In asserting this claim, Williams was charging that he had "suffered the same
injury" regarding the racially hostile work environment as had the class members of the
Transportation subclass, thus rendering him an appropriate class representative under
Falcon. 457 U.S. at 156.
This case bears no resemblance to those where class representatives have been
deemed inadequate because they "did not suffer the same injury" as the class. For example,
in Rodriguez, the class representatives, who alleged discrimination in promotion, were found
inadequate to represent a class charging discrimination in initial hiring because the
representatives had formally stipulated that they had not suffered discrimination in hiring.
Rodriguez, 431 U.S. at 403-04. In addition, there was evidence of conflict of interest
between the representatives and the class, as the representatives were suing to obtain a
remedy that the class had already voted to reject. Id. at 405.
By contrast, here there is no imaginable conflict of interest between Williams and
the Transportation subclass concerning the hostile work environment claim. The court’s
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eventual rejection of Williams’ hostile work environment claim is a classic case example of
the sort of post-certification adverse outcome that, under Falcon, Parham, Contour Chair,
and Donaldson, does not undermine Williams’ status as class representative.
Moreover, Falcon held that even where the class representative suffered from a
different sort of discrimination from the class, certification may still be appropriate if the
two types of discrimination are linked by or result from the employer’s same "general policy
of discrimination." Falcon, 457 U.S. at 156. Applying Falcon, this Court has held that a
representative alleging promotion discrimination may represent a class alleging assignment
and pay discrimination, since both stem from the employer’s general policy of
discrimination concerning employee ranking issues. Craik, 731 F.2d at 480 n.18. Williams
not only asserted a hostile work environment claim, but he charged that defendant had a
policy and practice of discriminating against him and other black workers seeking to
transfer into Transportation. The hostile work environment, which pervaded the
Transportation department and the discrimination that met black workers seeking to
transfer in, were both manifestations of a pervasive system of discrimination in the
Transportation department. In light of this relationship, and the fact that Williams did, in
fact, assert a hostile environment claim, there can be no question that under Falcon,
Rodriguez, and Craik, he "suffered the same injury" as the class.29
29The cases cited by defendant, Def. Br. at 40, are not to the contrary. In Roby v. St.
Louis S. W. Ry., 775 F.2d 959, 961-62 (8th Cir. 1985), the court found that where one named
plaintiff admitted facts showing clearly that he had no promotion claim, and where other
named plaintiffs had discharge claims that arose in a significantly different context from
those of the putative class, the district court did not abuse its discretion in decertifying the
class. Similarly, in Briggs v. Anderson, 796 F.2d 1009, 1018 (8th Cir. 1986), a case arising
in a highly unusual circumstances, see infra note 31, the court found no abuse of discretion
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Individual plaintiffs added as representatives post-judgment. Following entry of
judgment on the merits, defendant moved (as it had done before) to decertify the
subclasses, asserting inadequate representation by the named plaintiffs. Although the
district court denied that motion [A720-27], in an abundance of caution, it granted plaintiffs
thirty days to move to add additional class representatives for the Transportation subclass
[A723], Plaintiffs promptly moved to add as representatives three additional individual
Transportation department class members - Lawrence Barbee, Barry Duran Stewart, and
Billy Joe Collins - the former two of whom had prevailed on individual claims at trial
when a district court decertified a termination class after it became clear that several
named plaintiffs had voluntarily resigned or else had time-barred claims. Williams’ case
is unlike those where the would-be class representatives could not satisfy the most basic
elements needed in order to assert the claim charged by the class. Even more important,
Briggs and Roby arose in an opposite posture from this case: in both the district court
decertified and this Court reviewed and affirmed under the deferential abuse of discretion
standard. By contrast, here it is defendant’s burden to show abuse of discretion.
Citing Kloos v. Carter-Day Co., 799 F.2d 397, 399-402 (8th Cir. 1986), defendant also
charges that Williams is an inadequate class representative because the EEOC charge that
he filed (in addition to the EEOC charge filed by SWF, see supra pp. 10-11) did not
mention class-based claims concerning terms and conditions of employment. Def. Br. at
40. Defendant’s citation of Kloos is highly misleading. That Age Discrimination in
Employment Act (ADEA) case held that in order to support a class action lawsuit, an
ADEA EEOC charge must expressly allege class claims. 799 F.2d at 401. This holding
rested on an interpretation of ADEA statutory provisions which have no counterparts in
Title VII. Acknowledging that the Supreme Court has already held that a Title VII EEOC
charge need not allude to class claims in order to support a subsequent class action lawsuit,
Albemarle, 422 U.S. at 414 n.8, see discussion supra p.9, the Kloos court thus expressly
limited its holding to the ADEA. See Kloos, 799 F.2d at 401 n.5.
The fact that Williams’ own additional EEOC charge did not specifically mention
a terms and conditions of employment claim is of no significance since, as explained above,
defendant received full notice of such claims in the class action EEOC charge filed by
SWF, which expressly alleged discrimination in terms and conditions of employment. See
supra p. 11.
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[A731]. See 826 F. Supp. at 1218-20, A692-98. The district court granted their motion,
certifying the three as representatives of the Transportation subclass, along with Sidney
Williams and SWF [A737].
District courts possess an inherent power — indeed, a duty — to reevaluate and, when
deemed necessary, "to modify [class certification decisions] in the light of subsequent
developments in the litigation." Falcon, 457 U.S. at 160. Although Rule 23(c)(1) empowers
district courts to do so at any time "before the decision on the merits," post-judgment
intervention is also permitted in appropriate circumstances. See,e.g., United Airlines v.
McDonald, 432 U.S. 385 (1977) (approving post-judgment intervention of new plaintiff class
member in order to appeal denial of class certification where named plaintiffs would not
do so).
In large-scale, long-pending Title VII cases, complying with Falcon’s mandate
concerning adequacy of class representation has proven a vexing task for courts. The D.C.
Circuit has recently addressed this problem in a case where a finding of liability had been
entered years before but where possible questions persisted concerning the adequacy under
Falcon of the class representatives. See Hartman v. Duffey, 19 F.3d 1459 (D.C. Cir. 1994).
The Hartman court expressly recommended that district courts consider adding additional
class representatives post-judgment in order to cure any possible adequacy problems. See
Hartman, 19 F.3d at 1474. Following the Court of Appeals’ recommendation, the Hartman
district court permitted post-judgment intervention and certified the intervenors as class
representatives. Hartman v. Duffy, 158 F.R.D. 525, 531-33, 546 (D.D.C. 1994).
- 41 -
Hartman is on all fours with this case, and confirms the appropriateness of the
District Court’s authorization of post-judgment intervention in order to remove any possible
doubt concerning the adequacy of the class representation for the Transportation subclass.
While such intervention was not necessary in light of Williams’ and SWF’s adequacy
(discussed below), the precautionary measure was proper and fully within the discretion of
the District Court.
Defendant raises a number of objections to the intervention, none of which have
merit. First, charging that neither of the original class representatives — Williams or SWF
- was ever adequate, defendant argues, citing language in Rodriguez, that if the initial class
representatives were inadequate, substitution may never suffice to cure that inadequacy.
Def. Br. at 41. This sweeping language, taken out of context from Rodriguez, cannot
possibly be taken literally, for if it were, it would bar even pre-trial substitution and would
doom all suits with class representation defects to wasteful relitigation, no matter how
readily curable they might be through substitution. The opposite reading is expressly
confirmed by Hartman.™ Indeed, in the Falcon case itself, the district court on remand,
finding the named plaintiff inadequate to represent the class, permitted intervention of new
representatives, conditioned only on there having been filed an EEOC charge broad
enough to encompass their claims. See Falcon v. General Telephone Co., 611 F. Supp. 707,
718-19 (N.D. Tex. 1985), ajf’d, 815 F.2d 317 (5th Cir. 1987).
™See Hartman, 19 F.3d at 1474 ("Of course, the district court should consider first
whether class certification back in 1978 was proper. However, even if class certification in
1978 was premature, it may nonetheless be proper now").
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Second, citing the fact that the court denied as untimely a motion filed by plaintiffs
during the trial seeking to intervene two of the same plaintiffs, Barbee and Stewart [A430-
32, A550 n.3], defendant charges that the post-judgment intervention was somehow
untimely. Def. Br. at 42. However, the operative event was the District Court’s
reconsideration of the issue, evidently in light of the evidence at trial and defendant’s post
trial renewal of its decertification motion. Exercising its inherent discretion to reconsider
certifications, the court invited the post-judgment intervention motion [A723], in response
to which plaintiffs filed their motion within thirty days as ordered [A731], On these facts,
the motion was timely. See Hartman, 158 F.R.D. at 531-32.
Third, defendant charges that there is reason to doubt the adequacy of the
intervenors to serve as class representatives and that, accordingly, it was error to certify
them without first holding a hearing. Def. Br. at 42. However, as the Fifth Circuit held
in a section of its first Falcon opinion that was not among those undermined by the
Supreme Court’s opinion, certification of a class without a hearing does not constitute
grounds for reversal unless the defendant comes forward with evidence "show[ing] that if
a hearing had been held, it could have affected his rights substantially." Falcon v. General
Telephone Co., 626 F.2d 369, 374 (5th Cir. 1980), vacated on other grounds, 457 U.S. 147
(1982). In this circumstance, such a showing requires evidence tending to cast doubt on
the propriety of the certification. While defendant raises (unconvincing) objections to the
adequacy of two of the intervenors - Collins and Stewart - defendant has not even alleged
Barbee’s inadequacy. Def. Br. at 42. Without such evidence, defendant has not carried its
burden of showing that it was prejudiced by the failure to hold a hearing on the
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intervention. Moreover, when intervention of Barbee and Stewart was first considered in
1986 on plaintiffs’ motion, defendant was afforded the opportunity to submit extensive
briefing on the issue [A433-38], On these facts, and in light of the District Court's deep
familiarity with the intervenors and their claims as a result of the trial, it was not reversible
error to intervene these plaintiffs without holding a hearing.
Finally, defendant suggests that Barbee, Collins, and Stewart cannot be adequate
class representatives if none has filed a valid EEOC charge asserting a terms and conditions
of employment (hostile work environment) claim. However, as discussed at length above,
in this case, SWF filed a comprehensive EEOC charge containing class claims and
specifically charging discrimination in terms and conditions of employment. See supra
pp.10-11. This Court held in Local 179, United Textile Workers, 461 F.2d at 850-51, that
where an EEOC charge is filed on behalf of a class of workers suffering discrimination, that
charge suffices to exhaust their administrative remedies such that any of them may be
joined in the action and may sue in their own name as full plaintiffs. The Court reaffirmed
and expanded on this principle in Allen, 554 F.2d at 882-83 & n.9, holding that where one
individual files a simple, non-class charge with the EEOC, that charge is sufficient to
exhaust administrative remedies as regards other individuals who are suffering the same
discrimination from the same employer, thus entitling them to sue in their own names.
This longstanding law of this Circuit was affirmed again recently in Winbush, 66 F.3d at
1478. It is well-established that where a plaintiffs administrative remedies are exhausted
in this fashion, she is available to be certified as a class representative so long as she
satisfies the requirements of Rule 23. See Griffin v. Carlin, 755 F.2d at 1532; Walker v. Jim-
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Dandy Co., 747 F.2d 1360, 1366 (11th Cir. 1984); Lilly v. Harris-Teeter Supermarket, 720
F.2d 326, 335 (4th Cir. 1983).31
Under this binding Circuit precedent, the intervenors’ terms and conditions claims
are deemed administratively exhausted by virtue of the SWF EEOC charge. Barbee,
Stewart, and Collins were thus properly intervened as plaintiffs. In order to be properly
certified as class representatives, the only additional requirement was that they meet the
^Defendant cites Briggs v. Anderson, 796 F.2d 1009, 1018-19 (8th Cir. 1986), and
Thomure v. Phillips Furn. Co., 30 F.3d 1020, 1027 (8th Cir.), cert, denied,___U .S .___ , 115
S. Ct. 1255 (1994), as contrary authority. Neither is. Thomure, a non-class suit by two
individuals under the ADEA and state law, holds simply that one plaintiffs EEOC charge
cannot exhaust administrative remedies for another plaintiff if the charge has already been
conclusively shown to be without merit. While attempting to distinguish Allen, Thomure
acknowledges that Allen, of course, remains the binding law of this Circuit.
Briggs is a highly unusual case in which a district court apparently permitted parties
to stipulate to a class certification without the parties’ ever so moving or the court’s
conducting any Rule 23 analysis. Briggs, 796 F.2d at 1017 & nn.2-3, 1019. The court
subsequently decertified the class after trial but before judgment. When the plaintiffs
appealed the decertification, this Court catalogued a variety of reasons why the
decertification was not an abuse of discretion. In the course of this discussion, the Court
stated: "[I]t is also true that the class representative must have filed an EEOC charge in
order to have standing to raise the appropriate issues for those class members who did not."
Briggs, 796 F.2d at 1018 (citing Allen, 554 F.2d at 882). From the context and the fact that
the Briggs court purported to be follow Allen, it seems fairly clear that the above-quoted
statement was predicated on a background assumption that no other EEOC charge had
been filed. Absent a charge filed by a third party complaining of the same discrimination
(as in Federal Paper Stock), it is indeed true that in order for a plaintiff to serve as a class
representative, she must have filed her own EEOC charge. Thus, it appears likely the
Briggs court did not mean to hold that when there is such a third-party EEOC charge
alleging the relevant claims, a plaintiff must still have filed a second, overlapping charge
in order to be eligible for certification as class representative. Given this plausible
explanation, the fact that this language is at most an alternative ground for the Briggs
decertification ruling, the case’s reliance on Allen, and its unusual facts, it seems clear that
Briggs does not purport to overrule Allen. Of course, if Briggs did intend such a break, it
would then cease to be valid Circuit precedent, for "one panel of this Court is not at liberty
to overrule an opinion filed by another panel. Only the Court en banc may take such a
step." Brown v. First National Bank in Lenox, 844 F.2d 580, 582 (8th Cir. 1988).
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requirements of Rule 23. The District Court, being familiar with Barbee, Stewart, and
Collins’ claims and those of the Transportation subclass as a result of the trial, evidently
assessed their qualifications and found them adequate. On these facts, that ruling was not
an abuse of discretion.
3. The Southwest Workers Federation
As explained above, the named individual representatives of the MOW and
Transportation subclasses were fully adequate class representatives. However, SWF, which
the court certified as an additional representative of both the MOW and Transportation
subclasses, also satisfied the requirements of Rule 23. As such, SWF provides an
additional, independently sufficient ground supporting the adequacy of representation for
the subclasses.
Title VII authorizes "persons aggrieved" by "unlawful employment practices" to sue
in court, after having exhausted administrative remedies with the EEOC. 42 U.S.C.
§§ 2000e-5(b), (f)(1). The statutory definition of "person" specifically includes "labor
unions," "associations," and "unincorporated organizations." 42 U.S.C. § 2000e(a).
Interpreting this language in cases involving unions, courts have held that "a union . . . may
also be a ‘person aggrieved’ or a ‘person claiming to be aggrieved’ who has standing to sue
under Title VII — that is, a member of an aggrieved class. To put the matter simply, a
union may be a representative plaintiff in a class action lawsuit brought pursuant to
Title VII." UAW v. LTV Aerospace & Defense Co., 136 F.R.D. 113, 124, 127 (N.D. Tex.
1991). This interpretation has long been the law of this Circuit, which in Federal Paper
Stock Co., 461 F.2d at 851, held that unions may sue under Title VII to secure redress for
- 46 -
a class of workers suffering employment discrimination. See also Allen, 554 F.2d at 883
(discussing Federal Paper Stock).
The language of Title VII accords unincorporated organizations such as SWF a
status equal to labor unions. Under the statute, discrimination against members of an
unincorporated association renders the association a "person aggrieved" within the meaning
of Title VII, thus entitling it to maintain a lawsuit - and to be certified as a class
representative - like any other Title VII litigant. See Goodman v. Lukens Steel Co., I l l
F.2d 113, 125 (3d Cir. 1985), aff’d, 482 U.S. 656 (1987) (considering substitution of an
unincorporated association as class representative in a Title VII class action, but ultimately
concluding record evidence was insufficient to demonstrate association’s eligibility under
Rule 23). Not only is there no statutory basis for treating unincorporated associations
differently from unions but where, as here, unions are unavailable to serve as class
representatives because they have been among those discriminating, it would be particularly
unfair to accord an organization such as SWF lesser representational rights.
Defendant argues that SWF does not satisfy the prerequisites for associational
standing. Def. Br. at 37. This objection misses the point, for SWF’s status in this litigation
is as a certified representative in a Rule 23 class action, not as an entity asserting
associational standing. "[AJssociational standing . . . [is] irrelevant to [the] analysis of the
propriety of class certification pursuant to Rule 23." Frazier v. Consolidated Rail Corp., 851
F.2d 1447, 1456 (D.C. Cir. 1988).
It is established that where a union or unincorporated association is a "person
aggrieved" under Title VII by virtue of discrimination against its members, it may properly
- 47 -
be certified as a class representative under Rule 23. See LTV, 136 F.R.D. at 124-26.
I
Accord AFSCME v. County of Nassau, 664 F. Supp. 64, 68-69 (E.D.N.Y. 1987). Like any
other Title VII class representative, the scope of the class the union or unincorporated
association may properly represent will depend on the scope of the controlling EEOC
charge and the applicable Falcon criteria such as the absence of any intra-class conflict of
interest. LTV, 136 F.R.D. at 124-25 & n.9.
Defendant charges that SWF cannot establish that its claims are "typical" of those
of the subclass, as required by Rule 23. However, as acknowledged by defendant, SWF’s
members aggrieved by defendant’s discrimination included Ernest Franklin of MOW and
Lawrence Barbee of Transportation. Def. Br. at 38 & n.25. SWF thus has members in
each of the departments. It has also filed the operative EEOC charge. Moreover, as a
public interest organization, its claims and interests are broad and comport more closely
with those of the subclasses than could those of most any individual. Under these
circumstances, SWF’s claims qualify as typical and its representation adequate for purposes
of Rule 23.
Though defendant invokes SWF’s financial status as rendering it inadequate, Def.
Br. at 37-38, the court’s judgment to the contrary, after review of all the evidence, is not
clearly erroneous. Finally, the fact that SWF was originally certified to represent the
Applicant subclass, as well as MOW and Transportation, is of no moment now. Def. Br.
at 39. Even if it were true that such joint duties posed a conflict at one time, in light of
- 48 -
the judgment for defendant on the Applicant claims, any such conflict is now moot and
would no longer constitute grounds for modifying SWF’s certification.32
II THE DISTRICT COURT’S RULINGS THAT PLAINTIFFS HAVE PROVEN A
PATTERN AND PRACTICE OF DISCRIMINATION BY DEFENDANT ARE NOT
CLEARLY ERRONEOUS AND ARE SUPPORTED BY SUBSTANTIAL RECORD
EVIDENCE
A. Standard of Review
The district court’s findings of fact, including its findings of discrimination and its
decisions to credit or discount the testimony of various witnesses for the parties, are subject
to review under the "clearly erroneous" standard and in considering the correctness of the
trial judge’s findings, this Court must take into account the opportunity that the lower court
had to observe the witnesses’ demeanor in weighing their credibility. FED. R. Civ. P. 52(a);
Anderson v. City o f Bessemer City, 470 U.S. 564 (1985); Pullman-Standard v. Swint, 456 U.S.
273 (1982).
,2For the above reasons, the District Court did not abuse its discretion in finding that
the named class representatives of the MOW and Transportation subclasses satisfy the
requirements of Rule 23. However, should this Court conclude otherwise, we urge that the
court follow the curative course taken by the D.C. Circuit in Hartman, 19 F.3d at 1474, and
remand to the District Court with instructions to intervene any additional class
representatives that may be needed. A related alternative endorsed by the Third and
Fourth Circuits in such cases has been to vacate the judgment but to remand with
instructions to "explore the possibility of intervention by qualified class representatives,
followed by a proceeding to determine if the findings previously reached may be reinstated."
Goodman, 111 F.2d at 124. See also Hill v. Western Elec. Co., Inc., 672 F.2d 381 (4th Cir.
1982). Otherwise, as noted earlier, relitigation of the tolled absent class members’ claims
in a new suit would be almost inevitable. "That result would yield no discernable benefit
to anyone but would generate substantial loss in time for court, counsel, and parties."
Goodman, 111 F.2d at 124.
- 49 -
B. Discriminatory Assignment of Black Workers to Trackman Jobs in the
Maintenance of Way Department
In its 125 pages of briefing trying to find fault with the thorough and balanced
opinion of the District Court, defendant curiously fails to mention that it has apparently
decided not to appeal a major claim on which plaintiffs prevailed: the court’s finding that
defendant had a pattern and practice of discriminating against black workers in initial job
assignments by concentrating them in Trackman jobs in the Maintenance of Way (MOW)
Department. This omission places the rest of defendant’s brief in perspective, exposing
defendant’s indignant protestations as a divide-and-conquer strategy by which the railroad
seeks to cut its losses by focusing atomistically on selected sub-issues, thereby hoping to
obscure the bigger picture and the substantial quantity of evidence of discrimination.
Defendant’s MOW Department is charged with building and maintaining the
railroad tracks and beds. This dirty and physically demanding work is among the least
desirable in the railroad. Predictably, the Trackman position, the lowest-level laborer
position within MOW, has historically been one of the most heavily black of defendant’s
job categories.
The District Court found that once black workers were accepted for employment at
the railroad, defendant made a practice of discriminatorily assigning or steering them to
work as Trackmen, rather than to other entry-level positions within MOW and in the
railroad’s other departments. Plaintiffs adduced statistical evidence in the form of a study
by their expert, Dr. Frank James, showing that over the period between 1972 and 1983, the
Trackman position was on average 47.5% black [E1343], By contrast, over the same
period. Blacks averaged 31.1% of the MOW department-wide work force [E1327], and just
- 50 -
16.3% of defendant’s overall work force in its Arkansas and North Little Rock divisions
[E1319] — the segments of the company at issue in this case. Plaintiffs’ expert analyzed the
likelihood that such disproportionate assignment of black entry-level workers into this one
position could have occurred by chance and concluded that that probability was extremely
low.33 Plaintiffs also adduced anecdotal evidence in the form of testimony from black
workers employed by defendant who confirmed that the Trackman position was radically
disproportionately black, and that black workers who applied expressing an interest in any
open entry-level position tended to be assigned to work as Trackmen.34
The District Court credited all of the above evidence and analysis, 826 F. Supp. at
1204-05, A657-59, and on that basis found plaintiffs’ statistical study supported an inference
that defendant had engaged in a pattern and practice of discriminating against black
workers by discriminatorily assigning them to work as Trackmen. 826 F. Supp. at 1206,
A661-62. The Court went on to find that defendant had not discredited plaintiffs’ evidence
33The expert employed standard deviation analysis, which the Supreme Court and this
Circuit have endorsed as one (but not the only) appropriate methodology for gauging
statistical significance. See Hazelwood School District v. United States, 433 U.S. 299, 311
n.17 (1977); Castaneda v. Partida, 430 U.S. 482, 496-97 n.17 (1977); Taylor v. Teletype Corp.,
648 F.2d 1129, 1133 n.9 (8th Cir. 1981). Plaintiffs’ expert calculated that the above
concentration of blacks in the Trackman position differed by 13.157 standard deviations
from what one would otherwise expect. E1343 (handwritten notation); T12554-55. Since
the Supreme Court has indicated that a standard deviation of more than two or three is
statistically significant, Hazelwood, 433 U.S. at 311 n.17; Castaneda, 430 U.S. at 497 n.17,
this disparity is highly probative.
MSee 826 F. Supp. at 1205, A658-59 (District Court’s summary of testimony of Eric
Hawkins, Walter Robert Washington, and William Baucum).
- 51 -
(by showing that plaintiffs’ statistical evidence was either unreliable or misleading),35 and
accordingly ruled for plaintiffs on this claim.
Defendant apparently contemplated appealing this ruling, since it listed several job
assignment issues on its Eighth Circuit Appellant’s Form A Appeal Information Form.
[A751], However, ultimately defendant elected not to appeal the ruling and has omitted
the issue from its appellate brief, evidently concluding that the weight of supporting
statistical evidence renders an appeal futile; under the law of this Circuit defendant has
now waived its right to do so. United States v. O ’Neal, 17 F.3d 239, 243 n.8 (8th Cir. 1994)
("Rule 28 of the Federal Rules of Appellate Procedure requires the inclusion of a
statement of issues in the appellate brief, and issues not raised are considered waived").
C. Discrimination Against Black Workers in Promotions within the Maintenance of
Way Department
The District Court found that through statistical, anecdotal, and other evidence,
plaintiffs proved that defendant engaged in a pattern and practice of disparate treatment
discrimination against black workers in awarding promotions within the MOW Department.
This ruling is supported by ample record evidence and certainly is not clearly erroneous.
35For a discussion of the type of evidence that must be adduced by a defendant in a
Title VII pattern-and-practice disparate treatment case in order to rebut an inference of
discrimination that has been established by the plaintiff using statistical evidence, see infra
Part II.C.2.a.
- 52 -
1. The District Court’s Finding — That the Statistical Evidence Showing
Substantial Racial Disparities in MOW Promotions, Taken Together
with the Anecdotal and Other Evidence, Supports an Inference of a
Pattern and Practice of Discrimination — Is Not Clearly Erroneous
a. Plaintiffs’ evidence and the District Court’s findings. As just noted,
plaintiffs adduced statistical evidence showed that between 1972 and 1983, the Trackman
position was on average 47.5% black [E1343], In sharp contrast, during this same period,
Blacks comprised only 29.7% of Assistant Foremen and Foremen, the first tier of MOW
supervisors who are promoted from the pool of Trackmen [E1341], The pattern repeated
itself at the next promotional level. During the same period, in the MOW management
ranks of Assistant Roadmaster and Roadmaster - management positions above Foreman
which most often were filled by promotions from the 29.7% black Foremen pool, often by
way of the intermediary management position of Track Inspector36 - the black
representation was a mere 10.2% [E1329], Finally, in the desirable MOW craft position
of Machine Operator (sometimes referred to as Equipment Operator37), openings in which
were filled from the Trackmen pool so long as no unassigned Machine Operator was
available to fill the position [T16641], Blacks held only 26.3% of jobs [E1337],
36The lowest-level management rank within the MOW department is the Track
Inspector position, which is filled by promotions from the Foreman pool [T19913-14, 19916,
19998-20000], Assistant Roadmaster (sometimes called Track Supervisor) and Roadmaster
are the next management ranks within MOW above Track Inspector and are filled largely
through promotions either from the Track Inspector pool [T20008], or directly from the
Foreman pool.
37See, e.g., Defendant’s Proposed Findings of Fact and Conclusions of Law at 90 (using
term Machine Operator in discussing job classification referred to as MOW Buildings &
Bridges Equipment Operator in Dr. James’ study).
- 53 -
In addition to their statistical evidence, plaintiffs came forward with anecdotal and
other evidence supporting the inference that defendant had a pattern and practice of racial
discrimination in MOW promotions. The anecdotal evidence consisted of testimony by
individual black railroad workers employed in the MOW department confirming that, in
their experience, after Blacks were disproportionately and discriminatorily assigned or
steered to work as Trackmen, very few were promoted into supervisory and management
posts or into desirable craft positions. See, e.g., P-T12125-26 (testimony of William
Baucum) (noted in the district court’s sampling of plaintiffs’ evidence, 826 F. Supp. at 1205,
A659). The other evidence introduced by plaintiffs consisted of evidence that promotions
- particularly with respect to management positions such as Roadmaster - were made
through an informal, highly subjective process that provided ample opportunity for
discrimination (discussed infra pp. 68-69) evidence of defendant’s long history of relegating
Blacks to only the dirtiest and least desirable jobs, and the anecdotal witness testimony
showing that defendant tolerated and maintained a racially hostile work environment
(discussed infra Part II.D). Plaintiffs also called to the court’s attention the case of Ingram
v. Missouri P.R. Co., 897 F.2d 1450 (8th Cir. 1990), a separate contemporaneous lawsuit in
which defendant Missouri Pacific was found to have discriminated against a black worker
regarding promotion.
The District Court credited plaintiffs’ statistical evidence, 826 F. Supp. at 1204,
A657-58, noting that the statistics were based chiefly on data drawn from defendant’s
Payroll Data Base, which "the parties stipulated . . . was reasonably reliable and accurate."
Id. The court also noted similar analyses by Dr. James showing that very few black workers
- 54 -
were employed in a range of other positions within the MOW department. See id. at 1203-
04, A658 (MOW Bridges and Buildings positions: Helper Apprentice 19%; Journeymen
7.6%; Inspector Gang Foremen 0.7%).
Reviewing these data, the District Court concluded that "[t]he comparisons proffered
by Dr. James disclose large disparities as opposed to dose or marginal differences." 826 F.
Supp. at 1204, A657 (emphasis added). (By contrast, earlier in the opinion the Court
concluded that separate statistical analyses submitted for plaintiffs’ hiring — as opposed to
promotion - claims did not "demonstrate^ [a] ‘long lasting and gross disparity’ between
those blacks actually hired by Missouri Pacific during the relevant time frame and those
pools resorted to in making the statistical comparisons." 826 F. Supp. at 1202, A652.)
After additionally noting the anecdotal and other evidence of discrimination summarized
above, and stressing that defendant "resorted to standardless policies and practices when
making meaningful employment decisions" such as promotions, the Court concluded that
plaintiffs’ evidence supported an inference "that Missouri Pacific maintains a policy, pattern
and practice of discriminating against the members of the (MOW] subclass in
promotionsf,] which action is based on race." 826 F. Supp. at 1206, A661.38
b. The District Court correctly ruled that plaintiffs' statistical and other
evidence supported an inference of a pattern and practice of discrimination. The District
3sAlthough the District Court occasionally characterized defendant’s proof as
inadequate to rebut plaintiffs’ prima facie case, these comments must be taken in the
context of the entire opinion, which makes clear that the Court weighed all of the evidence
without regard to any "presumption" created by the prima facie case - and found that
plaintiffs had proved some of their claims by a preponderance of the evidence and had
failed to prove others. See infra p. 115 n. 72 .
- 55 -
Court’s finding was fully in accordance with binding precedent governing consideration of
statistical proof in Title VII pattern-and-practice disparate treatment cases. The Supreme
Court held in Teamsters v. United States, 431 U.S. 324 (1977), and Hazelwood School District
v. United States, and reaffirmed in Bazemore v. Friday, 478 U.S. 385 (1986), that plaintiffs
in Title VII pattern-and-practice cases may prove disparate treatment employment
discrimination by means of statistical evidence. In Craik, now-Chief Judge Arnold
summarized this body of law governing class actions charging a pattern-and-practice of
disparate treatment discrimination:
Normally, the plaintiff will produce statistical evidence showing disparities between
similarly situated protected and unprotected employees with respect to hiring, job
assignments, promotions, and salary, supplemented with other evidence, such as
testimony about specific incidents of discrimination. The defendant, in rebuttal, will
attempt to show that the plaintiffs "proof is either inaccurate or insignificant."
[Teamsters, 431 U.S. at 360], If it fails, the "trial court may then conclude that a
violation has occurred and determine the appropriate remedy." Id. at 361.
Craik, 731 F.2d at 470. Accord Catlett v. Missouri Highway & Transp. Comm’n , 828 F.2d
1260, 1266 (8th Cir. 1987), cert, denied, 485 U.S. 1021 (1988).39
39Craik correctly anticipated Bazemore v. Friday, 478 U.S. 385 (1986), by treating the
plaintiff s statistical showing as sufficient not only to establish a prima facie case and to
require the defendant to go forward, Craik, 731 F.2d at 476, but also as evidence probative
on the ultimate question of discriminatory treatment, which the defendant can in turn
attempt to rebut "by showing that [the statistical evidence] was inaccurate or insignificant
or by providing a nondiscriminatory explanation for the apparently discriminatory result."
Id. See Bazemore, 478 U.S. at 398:
[I]f the defendants have not succeeded in having a case dismissed on the ground
that plaintiffs have failed to establish a prima facie case, and have responded to the
plaintiffs’ proof by offering evidence of their own, the factfinder must decide
whether the plaintiffs have demonstrated a pattern and practice of discrimination
by a preponderance of the evidence.
- 56 -
Statistical evidence showing a disparity between the representation of minorities in
a particular job category and their presence in the relevant labor pool from which hires or
promotions are drawn can — either taken alone or bolstered by other evidence — give rise
to an inference of discrimination so long as the disparity is of a greater scope than that
reasonably attributable to chance. See Teamsters, 431 U.S. at 339; Hazelwood, 433 U.S. at
310-11 & n.17; Craik, 731 F.2d at 475-76 & n.13. Moreover, even fairly crude statistical
analyses showing racial disparities between a particular job category and the general
population in that region can support an inference of discrimination when they reveal
"gross statistical disparities." See Hazelwood, 433 U.S. at 307-08 (citing Teamsters, 431 U.S.
at 339); Craik, 731 F.2d at 479.
In this case, the very low representation of Blacks (1) in the positions of Assistant
Foreman/Foreman (29.7%) and Machine Operator (26.3%), when contrasted with the
47.5% black Trackmen pool (the relevant labor pool for promotions to these positions),
and (2) in the positions of Assistant Roadmaster/Roadmaster (10.2%), when contrasted
with the 29.7% black Foreman pool (the relevant labor pool for promotions to these
positions), when considered together with plaintiffs’ anecdotal and other evidence,40 more * 4
This Court and the other courts of appeals have interpreted Bazemore as endorsing Craik’s
treatment of statistical evidence as creating an inference of discrimination on the ultimate
question of disparate treatment - an inference that the defendant bears the burden of
rebutting. See Catlett, 828 F.2d at 1266; Palmer v. Schultz, 815 F.2d 84, 101 & n.13 (D.C.
Cir. 1987). See also discussion infra Part II.C.2.a.
4l,Defendant charges that the fact that the anecdotal testimony of discrimination in
MOW promotions noted by the District Court chiefly concerned promotions to supervisory
positions (i.e, Assistant Foreman/Foreman), as opposed to management positions (i.e.,
Assistant Roadmaster/Roadmaster), should somehow count against plaintiffs. Defendant
contends that "if there was a routine, classwide practice of discrimination in promotions to
- 57 -
than sufficed to create an inference of racial discrimination under Hazelwood and
Teamsters, as the district court correctly concluded. By any measure, these degrees of
underrepresentation suffice to create an inference of discrimination. See, e.g., Teletype , 648
F.2d at 1134 (where Blacks were 20.4% of work force but 24.7% of workers laid off.
disparity supported inference of discrimination); Catlett, 828 F.2d at 1266 (where women
were up to 48% of the relevant work force but less than 10% of hires, disparity supported
inference of discrimination); Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 193 (5th Cir.
1983) (where Blacks were 26.8-34.3% of the work force, but only 14.5-18.7% of division
managers and 0-4% of other managers, disparities supported inference of discrimination);
Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 652, 662 (5th Cir. 1983) (where women were
19.2% of applicants for manager trainee positions but only 9.2% of those chosen, disparity
made "an overwhelmingly strong statistical case" supporting inference of discrimination).41 41
MOW management, plaintiffs should have been able to bolster their case with specific
instances of discrimination." Def. Br. at 94-95 (citing Eubanks v. Pickens-Bond Const. Co.,
635 F.2d 1341, 1351 (8th Cir. 1980)). Eubanks, however, in no way holds that a negative
inference should be drawn from an absence of anecdotal evidence on a given claim.
Rather, it simply notes the well-established rule that pattern-and-practice claims may be
proven using anecdotal evidence. It is the law of this Circuit that "[e]ither of these types
of proof [~ anecdotal or statistical evidence --] alone may be sufficient to establish a pattern
or practice of discrimination." Catlett, 828 F.2d at 1265 (emphasis added).
41The Supreme Court has expressly disavowed that "precise calculations of statistical
significance are necessary in employing statistical proof." Hazelwood, 433 U.S. at 311 n.17.
However, such calculations can assist a court in gauging the significance of an observed
disparity, and the Supreme Court has welcomed inclusion of such calculations in appellate
briefs as an aid to the reviewing court. See Alexander v. Louisiana, 405 U.S. 625, 630 n.2
(1972) (relying on analysis contained in petitioner’s brief in the Supreme Court); Whitus
v. Georgia, 385 U.S. 545, 552 n.2 (1967).
The disparity between the 47.5% eligible black workforce of Trackmen and the
29.7% black representation in the Foremen ranks reflects a standard deviation or "z value"
- 58 -
of -2.58, whether calculated using the formula employed by plaintiffs’ expert, see P-T125lb-
23 (plaintiffs’ expert applying the formula), or that recommended by the Supreme Court
in Hazelwood, 433 U.S. at 311 n.17, and Castaneda, 430 U.S. at 496-97 n.17. The fact that
the z value is negative indicates that Blacks are underrepresented among Foremen. A z
value of -2.58 means that the probability that this promotion pattern could have resulted
by chance is approximately 0.01 or 1%. See WILLIAM M. MEREDITH, BASIC
Mathematical and Statistical Tables for Psychology and Education , Table 5-1
(1967) (z value of ±2.58 means probability distribution occurred by chance is .0100);
T12520-23. Since the Supreme Court has indicated that a z value of more than two or
three is statistically significant, Hazelwood, 433 U.S. at 311 n.17; Castaneda, 430 U.S. at 497
n.17, this calculation confirms that the observed disparity is reliable to demonstrate a
pattern and practice of discrimination.
The formula used by plaintiffs’ expert, as applied to the Trackman pool / Foremen
comparison, would be as follows:
z=-
ob eb
N
EbxEB w
Ob = Observed Blacks, that is, the mean percentage of foremen who were black during
the time period covered.
EB = Expected Blacks, that is, the percentage of Blacks in the eligible workforce (the
Trackman pool).
Ew = Expected Whites, that is, the percentage of whites in the eligible workforce (the
Trackman pool).
T = Total number of Foremen, that is, mean number of foremen during the time period.
Based on plaintiffs’ statistical evidence, the relevant values for these variables are:
Ob = 29.7% = .297; EB = 47.5% = .475; Ew = 52.5% = .525; T = 52.5
See E1343, 1345.
Plugging these values for the variables into the formula yields the following
calculation:
z=- .297-.475 -.178 -.178
.475*.525 /0O475 <*»
N 52.5
= -2.58
- 59 -
Moreover, the Court’s noting of defendant’s informal and standardless promotion
policies as a fact bolstering this inference is fully supported by the law of this Circuit:
Promotional procedures wherein white supervisors make the promotional decisions
on the basis of largely subjective criteria must be closely scrutinized because of their
susceptibility to discriminatory abuse.
Paxton v. Union Nat’l Bank, 688 F.2d at 563-64 n.15 (gathering cases). While the fact that
defendant’s largely white supervisory force administered a subjective promotion system
"provides no direct proof [of discrimination], it bolsters the trial court’s conclusion of
discrimination." Teletype, 648 F.2d at 1135 (gathering cases). Similarly, this Court has held
that an employer’s history of employment discrimination can equally bolster the inference
of discrimination created by plaintiffs statistical evidence. Paxton, 688 F.2d at 564.
c. The District Court’s reliance on the available statistical data, which was
"snapshot" data, was appropriate. Plaintiffs’ statistical evidence concerning MOW
promotions consisted of what is known as "snapshot" data for each of the twelve years
The Castaneda/Hazelwood formula is:
s/TxEbxEw
In this formula, NB = the mean number of Blacks who were foremen, or 15.6, during
the time period, and PR = the mean number of Blacks that would be expected to be
foremen given their representation in the eligible Trackman pool workforce, or 24.9
(calculated by multiplying ER times T).
Plugging the values for the variables into this formula yields the following
calculation:
15.6-24.9 -9.3 _ -9.3
v/52.5x.475x.525 /I3 T 3-6
-2.58
- 60 -
between 1972 and 1983. These data showed the number of employees, broken down by
race, that worked for defendant in each of the various MOW job categories (e.g.,
Trackman; Assistant Foreman/Foreman; Assistant Roadmaster/Roadmaster; Machine
Operator) during each of the twelve years. See E1343, 1341, 1329, 1337. These snapshot
data differs from "applicant flow" data, which would show the racial composition of the
pool of workers who actually applied for available promotion positions, together with the
racial breakdown of the group of persons ultimately awarded the promotions. Defendant
charges that the district court erred as a matter of law in according any probative weight
to plaintiffs’ snapshot statistical evidence. Def. Br. at 82 (quoting McIntosh v. Weinberger,
810 F.2d 1411, 1428 (8th Cir. 1987)).
Defendant’s contention is flatly contradicted by longstanding Supreme Court
doctrine. In Hazelwood, the Court expressly held that
The [Eighth Circuit] was correct in the view that a proper comparison was between
the racial composition of Hazelwood’s teaching staff and the racial composition of
the qualified public school teacher population in the relevant labor market.
Hazelwood, 433 U.S. at 308. This analysis endorsed by the Supreme Court was a snapshot
analysis because it consisted of an aggregate comparison between the racial composition
of the incumbent employee pool and that of the relevant pool from which the employees
were hired. An applicant flow analysis would have required comparison of the racial
composition of (1) the group of persons that actually applied for jobs, and (2) the group
of persons ultimately hired during the relevant period. While acknowledging that, where
available, such applicant flow data is very helpful, the Hazelwood Court affirmed that
inferences of discrimination may nonetheless be drawn from aggregate snapshot statistics:
- 61 -
Although the petitioners concede as a general matter the probative force of the
comparative work-force statistics, they object to the Court of Appeals’ heavy reliance
on these data on the ground that applicant-flow data, showing the actual percentage
of white and Negro applicants for teaching positions at Hazelwood, would be firmer
proof. As we have noted, see n.5, supra, there was no clear evidence of such
statistics. We leave it to the District Court on remand to determine whether
competent proof of those data can be adduced. If so, it would, of course, be very
relevant. Cf. Dothard v. Rawlinson, [433 U.S. 321, 330 (1977)].
Hazelwood, 433 U.S. at 308 n.13.
The courts of appeals have unanimously and faithfully applied this rule:
[Wjhen applicant flow figures are flawed or otherwise unavailable, we have allowed
plaintiffs to use other statistical measures to establish a prim a facie case of
discrimination. See, e.g., [Philips v. Joint Legislative Comm., 637 F.2d 1014, 1025 (5th
Cir. 1981), cert, denied, 456 U.S. 960 (1982)] (noting that actual applicant flow
figures were unavailable because the employer did not identify applicants by race);
Robinson v. Union Carbide Corp., 538 F.2d 652, 657-58 (5th Cir. 1976) (upholding
the district court’s refusal to employ an applicant flow analysis), modified in part on
other grounds, 544 F.2d 1258 (5th Cir. 1977).
Anderson v. Douglas & Lomason Co., 26 F.3d 1277, 1287 (5th Cir. 1994), cert, denied, 115
S. Ct. 1099 (1995). Accord Movement for Opportunity & Equality v. General Motors, 622
F.2d 1235, 1244-45 (7th Cir. 1980).
In Craik, this Court followed Hazelwood and permitted use of snapshot statistics to
prove a Title VII pattern-and-practice claim, thus establishing the law of this Circuit on this
issue. In Craik, the plaintiffs adduced snapshot statistical evidence to demonstrate that the
defendant, a university, had discriminated in the ranks it assigned (through both initial job
assignments and promotions) to female professors. See Craik, 731 F.2d at 475-76
(describing snapshot analysis which compared representation of women at different ranks
without focusing on actual promotions or assignments made during the relevant period).
The Craik court held that plaintiffs’ snapshot evidence, together with other evidence,
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sufficed to create an inference of a pattern-and-practice of disparate treatment
discrimination. Id.
In an attempt to rebut plaintiffs’ statistical showing, the Craik defendant came
forward with a variety of evidence including applicant flow data. Id. at 477. The Craik
court recognized that "[ejvidence such as [applicant flow data] is quite probative because
it focuses precisely on the decisions made during the relevant time frame; it does not, like
‘snapshot’ statistics, incorporate ‘the residue of past discrimination.’" Id. at 478 (quoting
Movement for Opportunity & Equality, 622 F.2d at 1245). However, finding methodological
flaws in the defendant’s applicant flow analysis, the court rejected it and consequently
found that the plaintiffs had proven discrimination through their snapshot evidence. Id.
Defendant relies on this Circuit’s ruling in McIntosh v. Weinberger, 810 F.2d 1411,
1428 (8th Cir. 1987), in arguing that snapshot evidence cannot suffice to prove employment
discrimination. Def. Br. at 82. The relevant discussion in McIntosh concerns a Title VII
disparate impact claim (not a pattern-and-practice disparate treatment claim) charging that
the net effect of the various selection criteria used in a civil service promotion system had
a disparate impact on black workers. The McIntosh court held that, in that case, snapshot
evidence did not suffice to show that the challenged promotion system indeed had a
disparate racial impact. 810 F.2d at 1428.
It is quite clear that McIntosh has no applicability to this case. McIntosh does no
more than restate a well-established principle that applies only to disparate impact cases
and, even there, only to a certain subset of disparate impact cases: those charging that the
use of a test or other similar employee selection procedure serves disproportionately to
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exclude minority candidates. It is obvious that in order to assess whether a test or
promotion procedures like those at issue in McIntosh have a disparate racial impact, one
must have data showing the effects of the test or procedure on those who take it - that is,
on applicants for hire, transfer, promotion, etc. In such cases, analysis of racial impact is
simply impossible without such applicant flow data. (By contrast, however, where a
disparate impact challenge focuses on an employment criterion such as a minimum height
and weight requirement or a high school diploma requirement, the Supreme Court has
expressly held that snapshot data showing the distribution of these characteristics or
qualifications among men and women or Blacks and whites in the general population can
suffice to demonstrate disparate impact. See Dothard v. Rawlinson, 433 U.S. 321, 330
(1977); Griggs v. Duke Power Co., 401 U.S. 424, 430 & n.6 (1971)).
It is clear that the McIntosh court’s statements about snapshot data are limited to
the above species of disparate impact case, as confirmed by the court’s prefatory
observation that "the adverse-impact theory . . . imposfes] on the plaintiff a more exacting
duty of showing the actual effect of the challenged practice" than does the disparate
treatment theory. McIntosh, 810 F.2d at 1427. As discussed above, the Supreme Court in
Hazelwood has expressly sanctioned use of snapshot data to prove pattern-and-practice
disparate treatment cases, and McIntosh in no way purports to flout the teaching of this
binding precedent. As such, the McIntosh holding has no applicability in a disparate
treatment case such as this one.42
42Indeed, had the McIntosh court purported to bar consideration of snapshot evidence
in pattern-and-practice disparate treatment cases, such a ruling would have violated not
only the Supreme Court’s mandate in Hazelwood, but also the law of this Circuit. Craik,
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Under Hazelwood and Craik, the District Court was correct to permit plaintiffs to
rely on snapshot evidence to prove a pattern and practice of disparate treatment
discrimination. As defendant failed to come forward with applicant flow data or any other
statistical evidence explaining the disparities demonstrated by plaintiffs, the district court
properly found for plaintiffs on the promotion claim.
d. Even i f reliance on snapshot data were not generally appropriate, it
would still be appropriate on the facts of this case. Even if applicant flow data were instead
the only generally acceptable form of statistical evidence for proving pattern-and-practice
disparate treatment claims, an exception permitting the use of snapshot data would have
to apply on the facts of this case, for three reasons.
First, although applicant flow data concerning MOW promotions might have been
useful, they simply were not available in this case. While applicant flow data did exist for
entry-level hiring [T17351-52], defendant’s data base expert, Mr. Mark Flolid, testified that
defendant’s computerized Human Resources System data base (the company’s chief
which permitted use of snapshot data to prove a statistics-based pattern-and-practice
disparate treatment claim, was decided before McIntosh and thus constitutes the law of this
Circuit on this issue. "[OJne panel of this Court is not at liberty to overrule an opinion
filed by another panel. Only the Court en banc may take such a step." Brown v. First Nat’l
Bank in Lenox, 844 F.2d at 582. "A necessary corollary of that rule, and one equally as
firmly established, is that should a later panel render a decision conflicting with that of an
earlier one, it is the earlier decision which is to be followed and not the later." Johnson v.
Mortal, 843 F.2d 846, 847 (5th Cir. 1988). See Bressman v. Farrier, 900 F.2d 1305, 1318 (8th
Cir. 1990) (opinion of Heaney, J.). Accordingly, even if McIntosh purported to bar reliance
on snapshot data in disparate treatment cases, the "law of the Circuit" doctrine would
oblige this Court to disregard McIntosh and follow Craik. However, the fact that both
opinions were authored by now-Chief Judge Arnold strongly suggests that McIntosh did not
purport to overrule Craik and is instead limited to disparate impact cases challenging the
use of tests or other similar employee selection procedures.
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repository of information on defendant’s work force) did not accurately record information
indicating which workers had received what promotions. See T17092 ("Clearly the
promotion counts and transfer counts, that information was not there at all in terms of
accurate identification of that type of transaction"). Nor did it include the other essential
data component that would be needed in order to perform an applicant flow analysis: data
on workers who unsuccessfully sought promotions. Moreover, there is no record evidence
indicating that defendant collected and then preserved in paper form these applicant flow
data on promotions.
Under Hazelwood and Craik, it was proper for the district court to allow plaintiffs
to prove their case using snapshot evidence regardless what applicant flow data existed.
However, the complete unavailability of applicant flow data renders the court’s conclusion
doubly proper. Indeed, defendant’s failure to preserve applicant flow data for promotions
not only further validates reliance on the snapshot data, but it would actually entitle the
District Court to presume that flow data, had it been preserved, would have strengthened
plaintiffs’ (not defendant’s) case. Once an EEOC charge is filed in a Title VII case, an
employer has an obligation to preserve records relevant to that charge. 42 U.S.C.
§ 2000e-8(c); 29 C.F.R. § 1602.14 (1995)43; EEOC v. Shell Oil Co., 466 U.S. 54, 78 n.35
43The version of the present 29 C.F.R. § 1602.14 regulation which was in effect in 1974
when the EEOC charge giving rise to this action was filed provided, in pertinent part:
Any personnel or employment record made or kept by an employer (including but
not necessarily limited to application forms submitted by applicants and other
records having to do with . . . promotion . . . ) shall be preserved by the employer
for a period of 6 months from the date of the making of the record of the personnel
action involved, whichever occurs later. . . . Where a charge of discrimination has
been filed . . . against an employer under Title VII, the respondent shall preserve
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(1984).44 Since the EEOC charge in this case complained of a pattern and practice of
discrimination in promotions [E1310], defendant was on notice and had a duty to save
records pertaining to promotions, the most basic of which would have been records
demonstrating applicant flow. Failure to maintain such relevant records can entitle a court
to presume that the lost evidence would have harmed, not helped, the defendant’s case.45
Second, even if applicant flow data were available, it would have been improper to
rely on them because such data would have understated the true scope of discrimination
in MOW promotions. As discussed above, applicant flow data compare the pool of
applicants for promotion with the pool of persons awarded promotions. However, in this
all personnel records relevant to the charge or action until final disposition of the
charge or action. The term "personnel records relevant to the charge," for example,
would include all personnel or employment records relating to the aggrieved person
and to all other employees holding positions similar to that held or sought by the
aggrieved person and application forms or test papers completed by an unsuccessful
applicant and by all other candidates for the same position as that for which the
aggrieved person applied and was rejected.
29 C.F.R. § 1602.14 (1976), codifying 37 Fed. Reg. 9219 (May 6, 1972), reprinted in
Barbara L. Schlei & Paul G rossman, E mployment D iscrimination Law at 1354-55
(1st ed. 1976) (emphasis added).
44Defendant has previously asserted that a duty to maintain such records obtains only
once a lawsuit has been filed and certified as a class action. However, the authorities make
clear that this duty attaches immediately upon the filing of an EEOC charge that contains
class allegations. See EEOC v. Shell Oil Co., 466 U.S. at 78 n.35.
45See United States v. California Dep’t o f Corrections, 62 Fair Empl. Prac. Cas. (BNA)
1865, 1872-74 (E.D. Cal. 1990). See also Anderson v. Douglas & Lomason Co., 26 F.3d at
1287 n.13 (adverse inference a permissible sanction for failure to preserve required
records, but not appropriate where facts show defendant did, in fact, preserve records in
its possession from six months before date of EEOC charge); Huey v. Sullivan, 971 F.2d
1362, 1364 (8th Cir. 1992) (EEOC recognizes duty to preserve records and applies adverse
inference where defendant’s destruction prevents plaintiff from proving case); Jackson v.
Harvard Univ., 721 F. Supp. 1397 (D. Mass. 1989).
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case, use of the pool of MOW Trackmen who actually applied or "bid" for promotions as
the appropriate labor pool for this comparison would not reveal the true scope of
discrimination because many Trackmen were likely deterred from even applying for
promotions.
The Supreme Court and this Circuit have held that courts may appropriately
presume that where an employer has a pattern and practice of discriminating, minority
workers, who otherwise would have sought promotions, may be deterred from applying,
believing that to do so would be futile. See Craik, 731 F.2d at 474-75 (quoting Dothard v.
Rawlinson, 433 U.S. at 330). Moreover, this Court has specifically held that where, as here,
an employer maintains a racially hostile work environment (see 826 F. Supp. at 1207-08,
A663-66 & discussion infra Part II.D), such deterrence is particularly likely. See Winbush,
66 F.3d at 1480-81 (quoting Teamsters, 431 U.S. at 365). In such circumstances, the courts
should use the pool from which applicants would normally emerge - rather than data on
workers who actually applied for promotions - as a proxy for what the expected racial
composition of the applicant pool would have been, had minority workers not been
deterred from seeking promotions. In this case, for promotions to Assistant Foreman,
Foreman, and Machine Operator, that pool is the aggregate Trackman labor force. For
promotions to Assistant Roadmaster and Roadmaster, that reference group is the pool of
Assistant Foremen and Foremen.
Finally, it would be literally impossible to use applicant flow data to analyze
discrimination in promotions to the MOW management ranks of Assistant Roadmaster and
Roadmaster. While there was a formal application or "bidding" process for promotion to
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the first tier supervisory ranks of Assistant Foreman and Foreman, defendant had no
formal application procedures for MOW workers seeking promotion to Assistant
Roadmaster and Roadmaster [P-T180; P-T20861; P-T20776 (stipulation of counsel)].
Rather, under this informal system, neither promotion opportunities [P-T19729], nor the
procedures for seeking promotion were publicly posted [P-T20862-63], Although workers
were free to communicate an interest in promotion to supervisors [P-T0861], those
superiors ultimately made promotions to management by hand-picking the workers to be
promoted, often without the workers’ ever having communicated an interest to the
supervisor [T20861-62; T19730 ("Management positions are by appointment")]. It was not
until approximately the summer of 1985, just before this case went to trial, that defendant
adopted a written application process as a consequence of its merger with the Union Pacific
Railroad [T20776],
Indeed, in Ingram v. Missouri P.R. Co., a separate lawsuit in which the district court
made a finding, affirmed by this Court, that Missouri Pacific discriminated against a black
worker regarding promotion, there was an explicit finding that defendant’s promotion
process was "an old boys’ network wherein some people are ‘picked’ for promotion over
others without any general notice and wherein some people are excluded from any
information about the network . . . ." 897 F.2d at 1451.46
46The court below took judicial notice of the Ingram court’s findings, 826 F. Supp. at
1206-07, A663, pursuant to Fe d . R. Evid . 201(b)(2). Defendant charges that such judicial
notice was improper, citing 9A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL
Practice and Procedure § 2579, at 543 (2d ed. 1994) [hereinafter "Wright &
MILLER]. Def. Br. at 91. Flowever, the treatise citation and the single fifty-year-old district
court case on which it relies, Ball v. Paramount Pictures, Inc., 67 F. Supp. 1 (W.D. Pa.
1946), cited in 9A WRIGHT & MILLER § 2579, at 543 n.18, are not relevant. Ball simply
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In light of this highly informal promotion procedure, it would have been literally
impossible to come up with applicant flow data for promotions to MOW management
positions made during this period. This fact still further confirms the appropriateness of
the district court’s acceptance of and reliance on plaintiffs’ snapshot evidence.
2. The District Court’s Finding that Defendant Did Not Rebut the
Inference of Discrimination Created by Plaintiffs’ Statistical and Other
Evidence Was Not Clearly Erroneous__________________
a. Legal standard. Once a plaintiff in a pattern-and-practice
class action adduces statistical evidence of racial disparities creating an inference of
discrimination, "[t]he defendant^ [is] required to rebut the plaintiffs’ evidence by showing
that it [is] inaccurate or insignificant or by providing a nondiscriminatory explanation for
the apparently discriminatory result." Craik, 731 F.2d at 476 (citing Teamsters, 431 U.S. at
held that a court may not adopt findings made in a previous case in which neither the
parties nor the issues were the same.
However, where the litigants in successive suits are either identical, or else are in
privity with one another, then the principle of collateral estoppel or issue preclusion
permits either party in the latter action to assert against its opponent any of the factual or
legal rulings rendered in the earlier suit. Montana v. United States, 440 U.S. 147, 153
(1979). Indeed, even where a litigant is not a party or a privy to a party in the earlier
action, it may nonetheless assert against its opponent rulings made adverse to that party
in the previous litigation, under the doctrine of "offensive, non-mutual collateral estoppel."
See United States v. Mendoza, 464 U.S. 154, 158-59 & n.4 (1984); Parklane Hosiery Co. v.
Shore, 439 U.S. 322, 326 n.5, 331-32 (1979).
The Ingram case was litigated between Missouri Pacific, the instant defendant, and
an individual black railroad worker. The Ingram plaintiff was obviously in privity with the
plaintiffs in this case. Thus, instant plaintiffs are entitled to invoke the Ingram court’s
rulings and Missouri Pacific is collaterally estopped from objecting to or denying them.
Moreover, as noted above, even if the instant class plaintiffs were not in privity with the
Ingram plaintiff, they would still be entitled to assert the Ingram findings against defendant
as an exercise of offensive, non-mutual collateral estoppel.
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360 & n.46). "If it fails, the ‘trial court may conclude that a violation has occurred and
determine the appropriate remedy.’" Craik, 731 F.2d at 476 (quoting Teamsters, 431 U.S.
at 361).
Under this standard, rarely may a defendant rebut the inference of discrimination
simply by asserting that the plaintiffs’ analysis is methodologically flawed or that the
observed disparity can be explained by factoring in a particular non-discriminatory criterion.
In Bazemore, although the Supreme Court did not itself determine whether plaintiffs had
proved discrimination, it pointedly observed the weakness of the defendant’s attempt to
counter plaintiffs’ statistical evidence:
Respondent’s strategy at trial was to declare simply that many factors go into
making up an individual employee’s salary; they made no attempt that we are aware
of - statistical or otherwise - to demonstrate that when these factors were properly
organized and accounted for there was no significant disparity between the salaries
of blacks and whites.
478 U.S. at 403 n.14. This Court made the same point following Bazemore:
[M]ere conjecture or assertion on [a] defendant’s part that some missing factor
would explain the existing disparities between men and women generally cannot
defeat the inference of discrimination created by [a] plaintiff[’s] statistics.
Catlett, 828 F.2d at 1266 (quoting Palmer v. Schultz, 815 F.2d at 101 & n.13). Rather, "[t]he
defendant] b[ears] the burden of introducing evidence to show [that an asserted failure] is
significant." Id.
When a plaintiff submits accurate statistical data, and a defendant alleges that
relevant variables are excluded, defendant may not rely on hypothesis to lessen the
probative value of plaintiffs statistical proof. Rather, defendant, in his rebuttal
presentation, must either rework plaintiffs statistics incorporating the omitted
factors or present other proof undermining plaintiffs claims.
Coble v. Hot Springs School Dist. No. 6, 682 F.2d 721, 730 (8th Cir. 1982) (quoting Segar v.
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Civiletti, 508 F. Supp. 690, 712 (D.D.C. 1981)). Accord Craik, 731 F.2d at 476-78 (finding
liability on statistics-based pattern-and-practice claim after scrutinizing and rejecting as
flawed defendant’s statistical analysis presented to rebut plaintiffs’ analysis); Teletype Corp.,
648 F.2d at 1134 (affirming liability in statistics-based pattern-and-practice case because
defendant "makes no showing that the figures used produced inaccurate results or that a
different result would have been reached had the statistician used a different population
base").47
The company argues that all a defendant in a pattern-and-practice class action need
do in order to respond fully to the plaintiffs statistical evidence, no matter how powerful,
is to "articulate a race-neutral reason for its decisions," at which point "the plaintiffs then
have the burden of proving ‘pretext’ (that the true reason for the decision was intentional
race discrimination), and that this occurred often enough to justify an inference of a
•pattern or practice’ of classwide discrimination." Def. Br. at 86. However, Catlett is the
law of this Circuit interpreting the teaching of Bazemore. It holds clearly that while the
mere articulation of a possible explanation for the statistical racial disparities suffices to
overcome the plaintiffs prima facie case and avoid judgment as a matter of law for the
plaintiff, the statistical evidence is still strongly probative of a pattern and practice of
discrimination. If the statistical showing supports an inference of discrimination which the
47This standard is in accord with that applied by the other circuits. See Griffin v. Carlin,
755 F.2d at 1526-27; Segar v. Smith, 738 F.2d 1249, 1268-70 (D.C. Cir. 1984), aff’g Segar v.
Civiletti, 508 F. Supp. 690 (D.D.C. 1981); Movement for Opportunity & Equality v. General
Motors, 622 F.2d at 1244-45.
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trier of fact draws, as discussed above it is the defendant’s burden to rebut the inference,
usually by means of a contrary statistical analysis. See Catlett, 828 F.2d at 1266.48
b. Defendant failed to rebut the inference of discrimination created by
plaintiffs’evidence. Defendant has conspicuously failed to come forward with any alternative
statistical analysis attempting to explain away the above-noted disparities in MOW
promotions, or with other information showing that plaintiffs’ analysis is methodologically
unreliable. Although defendant nakedly asserts that controlling for certain factors would
explain the observed disparities, "mere conjecture or assertion" of such explanations does
not suffice to carry a pattern-and-practice defendant’s burden under Catlett, Craik, and
Bazemore of rebutting the inference of discrimination created by plaintiffs’ statistical and
other evidence. Moreover, the record evidence indicates that controlling for the factors
cited by defendant would be very unlikely to explain the observed disparities and, indeed, 4
4 It is true that in Paxton v. Union Nat’l Bank, the court permitted a defendant to rebut
charges of a pattern and practice of discriminatory discharge of black workers by coming
forward with employment records documenting non-discriminatory reasons for the
discharge of each and every black class member who was discharged. Paxton, 688 F.2d at
567. However, Paxton does not support defendant’s argument here. In order to make a
showing in this case comparable to that of the Paxton defendant, the company would have
had to have come forward with qualifications evidence showing that each and every black
class member from the relevant labor pools (the Trackman pool for promotions to Assistant
Foreman/Foreman and Machine Operator; the Assistant Foreman/Foreman pool for
promotions to Assistant Roadmaster/Roadmaster) who was not promoted did not deserve
to be promoted. Not only could defendant not identify "applicants" who were not
promoted, see supra pp. 65-67, but, as discussed below, defendant made no such attempt
and instead has simply hypothesized that a statistical showing controlling for certain factors
might explain the promotion disparities.
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in one case would be likely actually to enlarge them. On this record, therefore, the District
Court was correct in ruling that plaintiffs’ unrebutted evidence entitled them to prevail on
the MOW promotions claim.
(i) Defendant’s expert’s testimony. The statistical analysis
prepared by defendant’s expert failed to explain the observed racial disparities. Defendant
asserts that the District Court erred in failing to find that the statistical study prepared by
its expert, Dr. Robert Russell, sufficed to rebut the inference of a pattern and practice of
discrimination in MOW promotions created by plaintiffs’ statistics. Def. Br. at 82-83.
However, Dr. Russell’s study is inadequate to rebut plaintiffs’ evidence since it does not
explain the observed stark racial disparities in MOW promotions. On this issue, Dr.
Russell’s analysis did little more than note the fact - already obvious from plaintiffs’
analysis - that (1) the Trackman pool was becoming gradually less black over time (from
57.6% in 1972 to 40.8% in 1983) [E938-39], and (2) black representation among
Roadmasters was gradually increasing (from 5.6% in 1972 to 13.0% in 1983) [E941-42].
(Compare with plaintiffs’ study [E1329, 1343].)
The Russell study did not purport to explain the persistent and severe disparities
between black representation in the Assistant Foreman/Foreman job category versus in the
Trackman pool from which the former were promoted. At the Assistant Foreman/Foreman
level there was no black progress whatsoever between 1972 and 1983, see E1341 (Blacks
31.4% in 1972; 28.8% in 1983), such that even in 1983, the black Trackman/Foreman gap
remained a substantial 40.8% to 28.8%. Id.-, E1343. The Trackman/Foreman racial
disparity decreased only because new Trackman hires were less disproportionately black -
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not because defendant improved in any way the severe underrepresentation of Blacks at the
Assistant Foreman/Foreman level. Moreover, as discussed below, since seniority is a factor
in Assistant Foreman/Foreman promotions, the fact that the Trackman pool was becoming
gradually less black should not have had much bearing on Assistant Foreman/Foreman
promotions since it would have been the more predominantly black group of senior
Trackmen that should have been the strongest candidates for promotion.
Similarly, at the Assistant Roadmaster/Roadmaster level, notwithstanding the gradual
narrowing noted by Dr. Russell, even in 1983 the gulf between black representation in these
management positions as compared to the Assistant Foreman/Foreman pool (from which
promotion to Assistant Roadmaster/Roadmaster were chiefly made, see discussion supra
note 36 and accompanying text) remained a stark 28.8% to 13.0% [E1329, 1341],
The fact that these disparities were gradually lessening in no way explains the
persistent racial gulf in MOW promotions.49 As defendant failed to adduce statistical
evidence of the sort needed to rebut the inference of discrimination created by plaintiffs’
statistics, the district court was correct in disregarding the analysis of defendant’s expert.
49Defendant asserts that this incremental lessening of the racial disparities in MOW
promotions is legally significant because, under Teamsters, plaintiffs must show "longlasting"
disparities in order to prove a pattern and practice of discrimination. Def. Br. at 83 (citing
Teamsters, 431 U.S. at 339-40 n.20). However, under Teamsters and Hazelwood, as applied
by this and other Circuits, statistical disparities need only be sufficiently large so as not to
be attributable to chance in order to support an inference of discrimination. See, e.g.,
Craik, 731 F.2d at 475-76. Under Teamsters, "longstanding and gross" disparities appear to
be required only where the statistical analysis employed is fairly crude, such as one using
general population data. See Teamsters, 431 U.S. at 339-40 n.20. The statistical disparities
shown in this case are in the range that courts have routinely found sufficient to create an
inference of discrimination in cases involving snapshot data. See supra Part Il.C.l.b
(gathering cases). In any event, even if a requirement of "gross and longlasting disparities"
applied, those revealed in this case would surely meet that requirement, notwithstanding
their marginal lessening over time.
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(ii) Promotions allegedly based upon seniority and qualifications.
Regarding promotions from the Trackman pool to the positions of Assistant Foreman,
Foreman, and Machine Operator (the MOW bargaining unit positions), defendant adduced
evidence showing that, under its rules and procedures, promotions to these positions were
supposed to be decided strictly based on the seniority and qualifications of the Trackmen
candidates seeking promotion. Defendant charges that this evidence sufficed to explain the
racial disparities shown in plaintiffs’ statistics, and that the District Court erred in not so
holding. Def. Br. at 84-86.
This argument is utterly without basis. To begin with, defendant erroneously
assumes that, as a matter of law, simply "articulating] a race-neutral reason for its
decisions" suffices to rebut the inference of discrimination created by plaintiffs’ statistical
evidence. However, as explained above, a substantially heavier rebuttal burden applies in
a statistics-based pattern-and-practice class action. See discussion supra Part II.C.2.a.
Under the proper rebuttal standard, such evidence - that it is a company’s policy
to base promotions on non-discriminatory criteria - is a classic example of the sort of proof
that does not suffice to rebut an inference of discrimination created by a showing of
statistical disparities. If it did, every employer would be immunized against claims alleging
a pattern and practice of discrimination based on statistical evidence since (virtually) all
employers have such rules. Rather, as just explained, under Catlett, Craik, and Bazemore,
defendant "must either rework plaintiffs statistics incorporating the omitted factors or
present other proof undermining plaintiffs claims." Coble, 682 F.2d at 730 (quoting Segar
- 76 -
v. Civiletti, 508 F. Supp. at 712). "[M]ere conjecture or assertion on [a] defendant’s part
that some missing factor would explain the existing disparities between [black and white
workers] generally cannot defeat the inference of discrimination created by [a] plaintiff['s]
statistics." Catlett, 828 F.2d at 1266 (quoting Palmer v. Schultz, 815 F.2d at 101 & n.13).
Indeed, this Court has held that even where a defendant does rework a plaintiffs
statistics to incorporate an allegedly explanatory omitted factor, that evidence can still fail
to rebut the plaintiffs evidence if the rebuttal analysis turns out to be methodologically
flawed. See Craik, 731 F.2d at 478.50 If an actual statistical analysis can fail to rebut an
inference of discrimination where the analysis is flawed, then the mere fact that company
policy dictates that promotion should be based on non-discriminatory factors plainly cannot
suffice to do so.
Defendant additionally asserts that, notwithstanding the stark racial disparities in its
promotions, its practices are immunized from the non-discrimination requirements of
Title VII by virtue of Section 703(h) of that statute, 42 U.S.C. § 2000e-2(h). Section 703(h)
shields decisions made pursuant to bona fide seniority systems from Title VII disparate
impact challenge (but not from charges that a decision involving a seniority system resulted
from intentional discrimination). Hameed v. Ironworkers Local 396, 637 F.2d 506, 516 (8th
Cir. 1980). However, in order to qualify for the Section 703(h) exception, a challenged
50In Craik, the Court ruled that a statistical analysis of disparities in promotions that,
while controlling for certain eligibility factors, did not control for other prerequisites for
promotion eligibility, nonetheless sufficed to establish a prima facie case of a pattern-and-
practice of disparate treatment. Craik, 731 F.2d at 475-76. The defendant was, of course,
permitted to try to explain away the disparity with statistics attempting to show the effect
of the ignored eligibility criteria. Id. at 476-78. However, when the defendant’s rebuttal
statistics were rejected as methodologically flawed, the plaintiffs prevailed. Id. at 478.
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employment decision must be shown to be caused by the employer’s seniority system, rather
than by other factors. Teletype Corp., 648 F.2d at 1134-35. As already discussed, if
defendant had come forward with evidence showing that the MOW racial promotion
disparities could indeed be explained by factoring in seniority, defendant would have
rebutted the inference of discrimination created by plaintiffs’ statistical evidence. Having
failed to do this, Section 703(h) affords defendant no additional defense from liability.
It is not plaintiffs’ burden to rule out the possibility that controlling for the factors
cited by defendant — seniority and qualifications — could reduce or eliminate the stark
disparities observed in MOW promotions. Nonetheless, we note that from the relevant
record evidence, it appears quite unlikely that the cited factors would, in fact, explain the
observed disparities. This fact makes doubly clear that it was not error for the district court
to find plaintiffs’ statistical evidence probative of discrimination.
Controlling for seniority - ostensibly a significant factor in promotions to Assistant
Foreman, Foreman, and Machine Operator - would be unlikely to explain the racial
disparities for the simple reason that the Trackman job category, the pool from which
promotions to these positions are drawn, had historically been predominantly black, but was
becoming gradually less so over the course of the 1970’s and 80’s. See E1343 (Trackmen
57.6% black in 1972, but 40.8% black in 1983). Because newer Trackman hires were thus
disproportionately white, one would presume that the average seniority of black Trackmen
would, if anything, be greater than that of whites. Accordingly, controlling for seniority
would not be expected to reduce the observed racial hiring disparity. Indeed, it would be
expected to increase it.
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Regarding qualifications, the chief skill prerequisite for promotion to the Assistant
Foreman/Foreman level is the ability to read and write. 826 F. Supp. at 1206, A662.
Literacy is no longer a job prerequisite for Trackmen. However, it was required for
Trackmen until October 15, 1973. See E432 (MOPAC memo announcing policy change).
As a consequence, those Trackmen who had been with the railroad for any significant
period of time - and who were hence most eligible for promotion under the seniority
system - were guaranteed to meet the literacy requirement. In light of this fact, controlling
for literacy in the promotion pool would be unlikely to affect significantly the observed
disparities. Moreover, defendant maintained no data on literacy levels among Trackmen
generally, nor on Trackmen rejected for promotion to Assistant Foreman, Foreman, or
Machine Operator positions. (Indeed, as explained above, defendant maintained no data
of any sort on Trackmen who unsuccessfully sought promotions.) Controlling for this
factor would thus be very difficult, in addition to being unnecessary.
Regarding promotions from the Assistant Foreman/Foreman pool to the MOW
management positions of Assistant Roadmaster/Roadmaster, defendant charges that
plaintiffs’ statistical analysis "will not support an inference of discrimination because it does
not account for qualifications and does not focus on the actual selection pool." Def. Br.
at 94. This argument is unavailing.
Plaintiffs’ failure to attempt to control for qualifications in their statistical analysis
of promotions from the Assistant Foreman/Foreman pool to the ranks of Assistant
Roadmaster/Roadmaster does not deprive their study of probative value. First, as just
noted, Craik held that, as with other asserted explanations for an observed disparity, a claim
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that qualifications explains a racial gap must be proven by the defendant by means of
statistical evidence. Here defendant has done nothing of the sort, but rather has simply
noted that plaintiffs did not attempt to control for qualifications. Even where it is clear
that a plaintiffs statistical analysis fails to take into account a relevant factor, the burden
remains on the defendant to show that the omitted variable would fully explain away the
observed disparities. Absent such a showing by the defendant, a plaintiffs admittedly
imperfect statistical evidence may nonetheless suffice to prove discrimination. See
Bazemore, 478 U.S. at 400-01:
[I]t is clear that a regression analysis that includes less than "all measurable
variables" may serve to prove a plaintiffs case. A plaintiff in a Title VII suit need
not prove discrimination with scientific certainty; rather, his or her burden is to
prove discrimination by a preponderance of the evidence. Texas Depl. of Community
Affairs v. BurcLine, 450 U.S. 248, 252 (1981). Whether, in fact, such a regression
analysis does carry the plaintiffs’ ultimate burden will depend in a given case on the
factual context of each case in light of all the evidence presented by both the
plaintiff and the defendant. However, as long as the court may fairly conclude, in
light of all the evidence, that it is more likely than not that impermissible
discrimination exists, the plaintiff is entitled to prevail.
The Supreme Court has expressly held that a plaintiffs statistics need not control
for the residue effect of preexisting racial disparities in the employer’s work force.
Although this factor may well exacerbate an observed disparity, the Court has held that it
is nonetheless the defendant’s burden and duty to show that the observed disparity can be
explained away on such grounds. See Hazelwood, 433 U.S. at 310 (citing Teamsters, 431
U.S. at 360).
Additionally, as explained earlier, it would be literally impossible to control for
qualifications, because no applicant flow data exists for promotions to Assistant
Roadmaster/Roadmaster because, until 1985, defendant’s promotional system was a
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standardless, informal "old boy’s network" with no formal application procedures. See
discussion supra pp. 68-69.
Finally, there is no reason to believe that controlling for qualifications would alter
the observed racial disparity. For example, Mr. Kenneth Welch, one of defendant’s
managers who served as Roadmaster in several different locations [T1565-66], testified that
he did not believe that black Foremen were less likely than white Foremen to have the
qualifications required for promotion to Track Inspector - the rank between Foreman and
Assistant Roadmaster/Roadmaster [T20007-08]. In light of the above, the District Court
was correct in finding plaintiffs’ statistics probative without requiring them to control for
qualifications.
Defendant’s objections regarding the selection pool are similarly misplaced.
Defendant seems to interpret the District Court’s opinion as finding discrimination in
promotions to Assistant Roadmaster/Roadmaster based simply on the very low (10.2%)
black representation in that job category, without making reference to the relevant labor
pool from which promotions were drawn. Def. Br. at 94. However, in the preceding
sentence of the opinion, the District Court noted and stressed the fact that the Assistant
Foreman/Foreman pool (from which Assistant Roadmaster/Roadmasters are promoted) is
29.7% black. 826 F. Supp. at 1204, A657-58. From this context, it is quite clear that the
District Court’s conclusions regarding this category of promotions were based on the
disparity demonstrated in this comparison. Moreover, even if this were not true and the
District Court had not quite focused on the right statistical disparity when making its
findings, this Court would still be obliged to uphold the district court finding of liability,
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for it is the practice of this Circuit to "affirm on any ground supported by the record, even
though that ground was not directly addressed (or, in fact, addressed at all) in the court
below." First Nat’l Bank in Brookings v. United States, 829 F.2d 697, 699 (8th Cir. 1987)
(quoting Katter v. Arkansas Louisiana Gas Co., 765 F.2d 730, 734-35 (8th Cir. 1985)). As
explained in this brief, the statistical disparities demonstrated by plaintiffs’ analysis, together
with the other record evidence of discrimination, by any measure suffice to create an
inference of discrimination, which defendant has not rebutted.
In the single sentence in its brief in which it alludes to the selection pool issue, Def.
Br. at 94, defendant does not raise any objection to use of the Assistant Foreman/Foreman
pool as the relevant labor pool for showing racial disparity in promotions to Assistant
Roadmaster/Roadmaster. The Assistant Foreman/Foreman pool is an accurate proxy for
this analysis, since Assistant Roadmaster/Roadmasters are chiefly promoted from this
position, often by way of the Track Inspector position. See discussion supra note 36.
Moreover, this Court has held that where a plaintiffs statistical analysis makes use of a
comparison pool that is substantially (but not entirely) the correct one, the burden remains
on the defendant (as it is with any asserted explanation for an observed disparity) to rework
the analysis in order to show that using a more accurate comparison pool would reduce or
eliminate the disparity. See Craik, 731 F.2d at 477 n.15. As defendant has come forward
with no such alternative analysis, any objections it might have to plaintiffs’ selection pool
analysis do not suffice to rebut plaintiffs’ statistics.
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3. The District Court’s Ruling Satisfied the Requirements of Rule 52(at
Defendant charges that the district court’s lengthy and balanced opinion does not
explain the basis for the court’s ruling in sufficient detail to satisfy the requirements of
Rule 52(a) of the Federal Rules of Civil Procedure. Def. Br. at 87, 88-90. This Court has
rejected the same argument on at least two pior occasions when it was raised by this
defendant in employment discrimination cases. See Jackson v. Missouri P.R. Co., 803 F.2d
401, 403 (8th Cir. 1986); Ingram v. Missouri P.R. Co., 897 F.2d at 1454. The Court should
do the same here.
"It is well established that the trial court does not need to make specific findings on
all facts but only must formulate findings on the ultimate facts necessary to reach a
decision." Allied Van Lines, Inc. v. Small Bus. Admin., 667 F.2d 751, 753 (8th Cir. 1982)
(citing Falcon Equip. Corp. v. Courtesy Lincoln Mercury, 536 F.2d 806, 808 (8th Cir. 1979)).
"In preparing findings under Rule 52(a), the trial judge is not required to assert the
negative of each rejected contention as well as the affirmative of those found to be correct."
9A Wright & Miller § 2579 at 542. In massive cases such as this involving lengthy trials
with thousands of exhibits and many witnesses, this Court has approved of district courts
making generalized findings that summarize large bodies of evidence at a fairly high level
of generality. See White Industries, Inc. v. Cessna Aircraft Co., 845 F.2d 1497, 1499 (8th Cir.
1988). In White Industries, this Court explained, "What Rule 52(a) does not require is a
particularized finding on each piece of evidence presented by the parties. If it did, it would
be impossible to adjudicate cases as complex as this one." Id.
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In this case, the District Court’s findings sampling the vast quantity of record
evidence are in full conformity with the approved White Industries model. Moreover, as the
preceding discussion makes clear, the core of the parties’ dispute on the promotion claim
concerns the statistical evidence, as to which there can be no serious question concerning
the adequacy of the findings. As such, no Rule 52(a) issue is presented in this case.
D. Discriminatory Terms and Conditions o f Employment
Title VII makes it "an unlawful employment practice for an employer to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national origin." 42
U.S.C. § 2000e-2(a)(l). The District Court correctly concluded that defendant violated the
statute:
[Plaintiffs have demonstrated, by a preponderance of the evidence, that black
employees, in both the North Little Rock facility and the Arkansas Division, were
required to work in an environment that was racially intimidating and insulting; that
the racial harassment and intimidation complained of are not isolated instances, but
are prolonged and continuous involving white co-employees and supervisors as well;
and that Missouri Pacific has failed to take steps to remedy the ongoing racial
harassment.
826 F. Supp. at 1206, A666.
1. The District Court Properly Considered the Totality of the
Circumstances as a Basis for Finding that Defendant Subjected its
African-American Employees to Discriminatory Terms and Conditions
of Employment___________________ _______________________ _ _
In harassment or hostile environment cases, "the key issue ‘is whether members of
one sex [or race] are exposed to disadvantageous terms or conditions of employment to
which members of the other sex [or race] are not exposed.’" Kopp v. Samaritan Health
System, 13 F.3d 264, 269 (8th Cir. 1993) (Arnold, C.J.) (quoting Harris v. Forklift Systems,
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510 U .S .___, ___, 114 S. Ct. 367, 372 (1993) (Ginsburg, J., concurring)); see also Stacks v.
Southwestern Bell Yellow Pages, 27 F.3d at 1326 (quoting same language and citing both
Harris and Kopp).51 Moreover, "Title VII comes into play before the harassing conduct
leads to a nervous breakdown . . . [s]o long as the environment would reasonably be
perceived, and is perceived, as hostile or abusive." Harris, 114 S. Ct. at 370-71.52
As the Supreme Court has indicated, "the trier of fact must determine the existence
of . . . harassment in light of ‘the record as a whole’ and ‘the totality of circumstances.’"
Meritor Savings Bank v. Vinson, 477 U.S. 57, 69 (1986) (quoting EEOC Guidelines, 29
C.F.R. § 1604.11(b)).53 Defendant errs for several reasons in asserting that the hostile
work environment claims must be evaluated by considering evidence of harassment or
hostility involving only individuals from each subclass independently of others. Def. Br. at
95-96. First, while departments and seniority lines exist on paper, members of employee
subclasses are not rigorously isolated from one another in the workplace. Company
personnel from different departments may interact, and are likely to do so at different sites
"‘District courts in this Circuit, quoting this language, have followed this reasoning See,
e.g., Bosley v. Kearney R-l School Dist., 904 F. Supp. 1006, 1023 (W.D. Mo. 1995); Marquart
v. McDonnell Douglas Corp., 859 F. Supp. 366, 368 (E.D. Mo. 1994).
52The statute is violated by "an objectively hostile or abusive work environment — an
environment that a reasonable person would find hostile or abusive" — that the protected
class members "subjectively perceive . . . to be abusive." Id. at 370. The Supreme Court
has described this standard as a "middle path between making actionable any conduct that
is merely offensive and requiring the conduct to cause a tangible psychological injury." Id.
"’While Meritor and some of the other cases cited herein concern sexual harassment,
"that difference does not alter the analysis." Harris, 114 S. Ct. at 372 (Ginsburg, J.,
concurring). See also Meritor, M l U.S. at 65-67 (treating cases of sexual harassment in the
workplace the same as racial harassment); Tart v. Hill Behan Lumber Company, 31 F.2d
668, 672 (8th Cir. 1994) (same).
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in the railroad’s extensive "workplace." It simply blinks reality to suggest that employees
of one subclass could not be aware of and affected by hostile signs, gestures, remarks or
treatment for which employees of another subclass are responsible. Cf Keyes v. School
District No. 1, Denver, 413 U.S. 189, 203 (1973) ("proof of state-imposed segregation in a
substantial portion of [a school] district will suffice to support a finding by the trial court
of the existence of a dual system" unless the district is "dividfed] . . . into separate,
identifiable and unrelated units"); id. at 213 (defendant’s burden to show intentional
discrimination was limited to "separate, identifiable and unrelated section of the school
district that should be treated as isolated from the rest of the district").
Second, and contrary to the defendant’s insistence on compartmentalizing and
counting up individual instances of harassment that occurred in each subclass, evaluating
hostile work environment claims "is not, and by its nature cannot be, a mathematically
precise test." Harris, 114 S. Ct. at 371. An analogous argument to that made here has
already been disapproved in this Circuit. In Hall v. Gus Constr. Co., 842 F.2d 1010, 1014
(8th Cir. 1988), the defendant contended that the evidence of objectionable conduct
directed toward each of three plaintiffs had to be considered separately in determining
whether a hostile work environment had been demonstrated as to each. This Court
"rejectfed] appellants’ contention that the district court erroneously considered all of the
women's claims together in determining that the harassment was sufficiently pervasive and
severe to constitute a violation of Title VII," concluding that the evidence as a whole
established that "[a]ll of the women were subjected to sexual insults that were systematicalIv
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directed to them throughout their employment with Gus Construction Co." Id. at 1014-5
(emphasis added).54
In assessing the work environment in Hall, this Court considered not only the claims
of the plaintiffs collectively, but also evidence of harassment directed toward other
employees. Id. at 1014-15.55 Defendant is therefore also incorrect in contending that
harassment that was directed at employees other than those in the plaintiff subclasses is
irrelevant background evidence. Def. Br. at 103-06. In addition to providing proof of
discriminatory intent of the person making the comment (a point defendant concedes in
its brief, Def. Br. at 100, n.95), evidence of harassment of other employees is relevant in
proving hostile work environment for the plaintiff class. See, e.g., Hall, 842 F.2d at 1015
("evidence of sexual harassment directed at employees other than the plaintiff is relevant
to show a hostile work environment"); Taylor v. Jones, 653 F.2d 1193, 1198 (8th Cir. 1981)
(citing with approval district court’s crediting of testimony of employees other than plaintiff
who also had been subjected to racial slurs, epithets, and jokes); Hirase-Doi v. U.S. West
Communications, 61 F.3d 777, 782 (10th Cir. 1995) ("evidence of a general work
atmosphere, including evidence of harassment of other women, may be considered in
evaluating a claim").
54Hall, much like the instant case, involved outdoor jobs. While defendant’s brief,
quoting Hall, remarks that "[o]ne may well expect that in the heat and dust of the
construction site language of the barracks will always predominate over that of the
ballroom", Def. Br. at 98, defendant does not mention that the Hall Court went on to find,
"What occurred in this case, however, went well beyond the bounds of what any person
should have to tolerate." Id. at 1017-18.
55The Court noted that "Title VII evinces a Congressional intention to define
discrimination in the broadest possible terms." Id. at 1014.
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Since plaintiffs "may rely on [defendant’s] harassment of others to the extent that
it affected [plaintiffs’] general work atmosphere," id., defendant’s attempts to view the
record below through a fragmented lens that separates the discrimination into separate
departmental spheres is simply an effort to obscure and dissipate the overwhelming
evidence of harassment, disparate terms and conditions, and other forms of racial
discrimination in its North Little Rock and Arkansas Division that was presented to the
District Court. As this Court has recently said,
In assessing hostility of an environment, a court must look to the totality of the
circumstances . . . . Just as "[a] play cannot be understood on the basis of some of
its scenes but only on its entire performance, . . . a discrimination analysis must
concentrate not only on individual incidents but on the overall scenario."
Stacks, 27 F.3d at 1327 (quoting Burns /, 955 F.2d at 564) (internal quotation and citation
omitted).56
In taking this broad view, this Court has faithfully followed Supreme Court
precedent. "[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by
looking at all the circumstances." Harris, 114 S. Ct. at 371 (emphasis added). See also
Meritor, 477 U.S. at 69 ("[T]he trier of fact must determine the existence o f . . . harassment
in light of ‘the record as a whole’ and ‘the totality of circumstances’").57 Thus, we reiterate
56District courts in this Circuit have followed this reasoning. See, e.g., Fred v. Wackenhut
Corp., 860 F. Supp. 1401, 1404 (D. Neb. 1994) ("This is not a ‘mathematically precise test,’
[Harris], and the Court should not pigeon-hole each alleged sexually harassing episode and
measure the harm occurring in each incident. Burns /, 955 F.2d at 564. ‘[A] discrimination
analysis must concentrate not on individual incidents but on the overall scenario’").
57Accord Catlett, 828 F.2d at 1265 ("[T]he question is whether the totality o f the
circumstances makes it more likely than not that the . . . disparity . . . resulted from
discriminatory decisionmaking") (emphasis added); Kopp, 13 F.3d at 269 ("To determine
whether a work environment is hostile or abusive, the adjudicator must consider all of the
circumstances") (emphasis added).
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that there is no valid basis for criticizing the District Court’s conclusions in this case on the
ground that it did not compartmentalize the proof.
2. Defendant Company Was Properly Held Liable for the Hostile Work
Environment to which Its African-American Employees Were Subjected
Because the Evidence Showed Both Actual and Constructive Knowledge of
these conditions on the part of its manaeement________________________
In determining when employers are liable for a hostile work environment, the
Meritor Court recommended that courts "look to agency principles for guidance in this
area," 477 U.S. at 72, and this Court has followed such an approach. See, e.g., Hall , 842
F.2d at 1016 (8th Cir. 1988) (finding foreman who had both actual and constructive notice
of harassment was agent of the company, making employer liable). Other Circuits have
followed this precedent as well. See, e.g., Hirase-Doi, 61 F.3d at 783); Davis v. Monsanto
Chemical Co., 858 F.2d 345, 348 (6th Cir. 1988).58
58This Court has noted that the scope of employer responsibility for the workplace
environment is to be determined under agency principles different from those applicable
to the doctrine of respondeat superior, which makes an employer liable only for those
intentional wrongs of employees that are carried out in furtherance of the employment.
Hall, 842 F.2d at 1015-16. Otherwise, an employer could insulate itself from liability simply
by adopting a formal policy statement against workplace harassment. In Hall, this Court
found the company liable for acts about which its management-level employees knew or
should have known, holding:
[A]n employer is directly liable (that is independent o f respondeat superior) for those
torts committed against one employee by another, whether or not committed in
furtherance of the employer’s business, that the employer could have prevented by
reasonable care in hiring, supervising, or if necessary firing the tortfeasor.
Consistent with this principle, an employer who has reason to know that one of
employees is being harassed in the workplace by others . . . and does nothing about
it, is blameworthy.
Id. at 1016 (emphasis added). See also Hirase-Doi, 61 F.3d at 783.
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Defendant concedes that the following were management officials who exercised
supervisory authority: MOW department - track inspectors, assistant roadmasters,
roadmasters, general roadmaster, division engineer, district engineer, assistant district
engineer, chief engineer; Transportation department - assistant trainmasters, general
yardmasters, trainmasters, road foreman of engines, assistant superintendent, division
superintendent, assistant general manager, district general manager. See Def. Proposed
Findings of Fact and Conclusions of Law (Appendix A: Company Structure and
Procedures), at 16-19 [P-A5-8]. Clearly, these supervisors were agents of the company and,
as described below, much of the harassment that occurred was either carried out by or
reported to supervisors in these positions.
Furthermore, the District Court held that track foremen and assistant track foremen
(in MOW), and conductors and engineers (in transportation) could also be considered
agents, because they had apparent authority to supervise and monitor work activities,
having been delegated responsibility to do so. Following agency principles, the District
Court in the instant case determined that those who held these positions and who subjected
black employees to adverse working conditions were themselves agents of the company:
It is clear from the evidence and, as a matter of fact Missouri Pacific concedes as
much, that Missouri Pacific has delegated responsibility and authority to certain
employees, assistant foreman, foreman, engineers and conductors, to supervise and
monitor the work activities of co-employees . . . . It is clear that these designated
employees, endowed with unqualified approval of management [and] are
representing the interest of Missouri Pacific . . . .
Webb, 826 F. Supp. at 1200, A647.59 Additionally, the District Court found that those who
5yThe district court noted that "‘[t]he relation of agency need not depend upon express
appointment and acceptance thereof, but may be, and frequently is, implied from the words
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held these positions had supervisory authority because they "are rewarded for such faithful
performance in salary benefits." Id. See Jas. E. Matthews & Co. v. NLRB , 354 F.2d 432,
435 (8th Cir. 1966) (finding supervisory authority and highlighting "significance" in the fact
that "leadmen are paid from eleven to forty cents an hour more than the regular employees
in their departments"). Moreover, former division superintendent Hillebrandt testified that
"A track foreman assigns the work for the people on the gang for the day. They might
decide who is going to drive spikes, who is going to carry material, who is going to pull tied,
that sort of thing" [P-T15585 (emphasis added)].60 The exercise of such independent
judgement is the essence of supervisory authority. This Court has found that the authority
to assign work is "[o]f controlling importance" in determining whether an individual has
supervisory authority.61
and conduct of the parties and the circumstances of the particular case.’" Id. (quoting 2A
C.J.S. Agency § 52). See also RESTATEMENT (SECOND) OF AGENCY § 27 (1958) ("apparent
authority to do an act is created as to a third person by written or spoken words or any
other conduct of the principle which, reasonably interpreted, causes the third person to
believe that the principal consents to have the act done on his behalf by the person
purporting to act for him").
(,0See also testimony of Donald Keels [T807-09] (describing how his foreman, Hadley
Caldwell, had authority to assign whites and Blacks to separate work crews, with Blacks
getting the harder work). The tasks of the assistant track foreman are similar insofar as
he or she fills in for the foreman when a larger gang splits into two parts [T15585]. In such
an instance, according to Hillebrandt’s testimony, "[t]he assistant foreman would assign the
work to the other men. The assistant foreman also fills in for the foreman if he’s off or on
vacation or something." Id.
6lJas. H. Matthews & Co. v. NLRB, 354 F.2d at 435 ("Of controlling importance is the
testimony that the leadmen assign work to the employees in their departments; . . . pass on
employee requests for time off; effectively recommend discipline; and oversee the other
employees’ work, as well as checking its quality"); see also NLRB v. Broyhill Co., 514 F.2d
655, 658 (8th Cir. 1975) (finding supervisory authority where individual participated "in the
preparation of daily work schedules of each employee [and] would then assign work
projects to each employee throughout the day").
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In any event, this Court has found that an employer can be held liable for the acts
of non-management employees where an agent of the employer has actual or constructive
notice of the conduct. Hall, 842 F.2d at 1016. Given that all MOPAC employees were
allegedly required to report instances of racial harassment to management, constructive
knowledge can be inferred.62 The company cannot have it both ways, claiming on the one
hand that it had effective grievance procedures and disciplinary structures in place to
respond to racial harassment on the one hand, while on the other hand, asserting that it
had no notice that such incidents had occurred.
An employer is not automatically or strictly liable for the conduct of its employees
or supervisors who engage in such discriminatory conduct in the absence of actual
knowledge. However, "absence of notice to an employer does not necessarily insulate that
employer from liability." Meritor, M l U.S. at 72 (citing RESTATEMENT (SECOND) OF
AGENCY §§ 219-37 (1958)). "[A] company will be liable if management-level employees
knew, or in the exercise of reasonable care should have known, about the barrage of
offensive conduct." Hall, 842 F.2d at 1015. See also Tart, 31 F.3d at 672; Hirase-Doi, 61
F.3d at 783. Indeed, "[constructive knowledge exists if there is a pervasive . . . harassing
work environment." Barbara L. Schlei & Paul G rossm an , E mployment
D iscrimination Law 423 (2d ed. 1983). For instance, a hostile work environment may
be found where "the atmosphere of racial discrimination and prejudice was so pervasive and
62Hillebrandt testified to the existence of a disciplinary structure under which all
employees were required to report rule violations [P-T 15694] ("General Rule D. requires
a report of any violation of the rules."). He also testified that racial slurs would be
prohibited under General Rule N., and that if this rule were violated, there was a
"responsibility to report that as part of these general rules" [P-T15694-95].
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so long continuing . . . that the employer must have become conscious of it." Taylor v.
Jones, 653 F.2d at 1199. See also Meritor, 477 U.S. at 72 (citing Taylor for proposition that
employer can be held liable "for racially hostile working environment based on constructive
knowledge"); Hall, 842 F.2d at 1016 (same); Hirase-Doi, 61 F.3d at 784 ("a plaintiff may
prove an employer’s knowledge of a sexually hostile work environment by proving that the
harassment was ‘so pervasive that employer awareness may be inferred’") (quoting Katz v.
Dole, 709 F.2d 251, 255 (4th Cir. 1983)). In fact, a defendant company "may be put on
notice if it learns that the perpetrators] ha[ve] practiced widespread . . . harassment . . .
even though [defendant company] may not have known that th[ese] particular plaintiffs]
w[ere] the perpetrator’s victims", where harassment of others was "similar in nature and
near in time" to harassment of plaintiffs. Hirase-Doi, 61 F.3d at 783 & 784 (applying
principles of proximate cause and foreseeability). See also Paroline v. Unisys Corp., 879 F.2d
100, 107 (4th Cir. 1989) (imputing liability to employer who reasonably should have
anticipated that the plaintiff would be the victim of harassment).
In the instant case, the defendant railroad, through its agents, had both actual and
constructive notice of a continuing pattern of racial slurs, insults, and other discriminatory
terms and conditions. In fact, in some instances, it was those in supervisory positions (who
are agents of the company) who engaged in this conduct. It was properly held responsible
for the discriminatory work environment.
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3. Defendant Was Liable for the Discriminatory Work Environment
Because It Failed to Take Effective Action Against Objectionable
Racial Harassment and Similar Conduct Despite Its Actual and
Constructive Knowledge of the Situation________________________
Under Title VII, an employer is liable for harassment "if the employer knew or
should have known of the harassment and failed to take proper remedial action." Stacks
v. Southwestern Bell Yellow Pages, 27 F.3d at 1327. See also Tart, 31 F.3d at 672; Kopp, 13
F.3d at 269. Once an employer has either actual or constructive notice of the harassment,
there is an affirmative duty on the employer to take immediate corrective action. Hall, 842
F.2d at 1016 ("Even if [defendant] did not know everything that went on, the incidents of
harassment here, as in Hunter, were so numerous that the [defendant foreman] and
[defendant company] are liable for failing to discover what was going on and to take
remedial steps to put an end to it") (referring to Hunter v. Allis-Chalmers Corp., Engine Div.
797 F.2d 1417 (7th Cir. 1986)). Moreover, the Supreme Court has held:"[W]e reject [the
defendant’s] view that the mere existence of a grievance procedure and a policy against
discrimination, coupled with [the victim’s] failure to invoke that procedure, must insulate
[the defendant] from liability." Meritor, 477 U.S. at 72. This contention, made also by
defendant in the instant case, Def. Br. at 96-97, would undoubtedly be stronger "if its
procedures [had been] better calculated to encourage victims of harassment to come
forward." Meritor, 477 U.S. at 73. As in Meritor, and as described below, in this case it was
futile, and even perilous, for plaintiffs to complain to superiors about racial harassment at
MOPAC, because of fear of retaliation. Nevertheless, even when the company had either
or both actual and constructive knowledge, the record shows that defendant took no
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effective corrective action. The trial court was therefore correct in finding liability under
Title VII.
4. The District Court’s Findings Are Supported by the Record
Examination of the record as a whole confirms that the evidence was more than
sufficient to support the District Court’s findings detailing examples of the discriminatory
terms and conditions of employment for African Americans at MOPAC. 826 F. Supp. at
1207-08, A663-66. Witness after witness testified to the existence of a work environment
pervaded with racial hostility, frequently expressed through insults, demeaning jokes and
epithets. Moreover, the evidence demonstrates that when Blacks complained of such
incidents to their supervisors, their complaints were shrugged off or ignored, demonstrating
tolerance and thus at least tacit encouragement of racist language, jokes, and insults. In
some instances, complaints were answered with retaliatory conduct, which discouraged
black employees from filing future complaints. Significantly, the evidence reveals much
more than a few isolated racial slurs; the record is replete with evidence of racially
derogatory remarks that permeated the workplace.
The District Court’s findings are based upon direct evidence of the pervasiveness of
racially discriminatory conduct presented through testimony of members of the plaintiff
subclasses, testimony from employees in other departments or seniority lines, and testimony
of the company’s management establishing both notice by the company of the problems and
its failure to remedy the conduct. Defendant’s disagreement with the trial court’s findings
boils down to two main objections; First, defendant asserts that it was error for the District
Court to consider testimony of employees other than plaintiffs or of members of
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management, or testimony of harassment prior to the limitations period, asserting such
evidence is "irrelevant background information," Def. Br. at 103 (emphasis added); see id.
at 103-06. However, evidence of discriminatory conduct toward employees other than
plaintiffs may serve both as proof of intent and as "evidence of . . . a hostile work
environment." Hall, 842 F.2d at 1015. See cases cited supra p. 87. Furthermore, plaintiffs
may rely on testimony from members of management to demonstrate that defendant knew
or should have known of racial slurs, degrading remarks, or other discriminatory conduct.
"This evidence is admissible at trial either as proof of the [company’s] knowledge of
[defendant’s] behavior or as admissions." Kopp, 13 F.3d at 270.
Defendant’s second major objection concerning the District Court’s findings relates
to credibility and corroboration. See Def. Br. at 107-12 & 117-19. Of course, in reviewing
credibility determinations of the trial judge, this Court must take into account that "the
district judge enjoyed the opportunity [this Court] now lackfs] to observe the demeanor of
the witnesses and weigh their credibility" and is "not free to reverse the district court simply
because [it may] believe[] that [it] would have weighed the evidence differently or disagree
as to where it preponderates," Powell v. Missouri State Highway Dep’t, 822 F.2d 798, 800, 801
(8th Cir. 1987). The trial judge assessed the evidence offered by both parties and made
findings reflecting, in part, that certain witnesses were more credible than others. For
example, where defendant failed to offer documentary evidence that investigations or
reprimands actually occurred subsequent to a complaint of harassment, the trial court was
entitled to discount the credibility of defendant witnesses’ testimony that racial harassment
or racially offensive language in its workplace was not tolerated. In addition, as
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summarized below, plaintiffs’ witnesses provided ample testimony demonstrating that
defendant failed regularly to encourage complainants to come forward, to carry out formal
investigations, to reprimand perpetrators in writing, or to prohibit retaliation.
As to "corroboration," the company seeks to create a new evidentiary rule out of
whole cloth. Defendant cites no law, other than Powell to support its claim that witnesses’
testimony regarding terms and conditions must be corroborated. See Def. Br. at 108.
Powell accepted the trier of fact’s determination that the plaintiff failed to establish his
hostile environment claim. In affirming, the panel commented that "[r]acially derogatory
language in the workplace can be evidence of a discriminatory atmosphere, and is certainly
not to be condoned. Title VII, however, is not necessarily violated by a few isolated racial
slurs," 822 F.2d at 801. To be sure, the district court in Powell had considered, in reaching
its conclusion, the fact that the plaintiff s administrative charge of discrimination mentioned
only his discharge and not the prevalence of racial slurs in the workplace. But the district
court in that case also found credible, testimony that the plaintiff not only failed to object
to racial comments but himself engaged in racially charged verbal joking with his co
workers. This Court’s decision simply announces no rule of corroboration nor does Title
VII require one.
a. Testimony from members of the plaintiff subclasses. Henry Johnson,
a member of the MOW subclass, testified that on several occasions Roadmaster Clyde
Brown made racially offensive remarks, including, "[y]ou can’t get these niggers to work"
[T2137]. In safety meetings, Brown would pick out one Black and make racial slurs
[T2141 ]. Also, Brown once told Johnson to "get [his] ass off' of railroad property [T2138],
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Once Brown called all the whites off to the side for a meeting. When Johnson and another
Black confronted Brown about the purpose of the meeting, Brown responded by holding
another meeting just for Blacks, because, he stated, someone was jealous and was "a little
baby" [T2142],
Another MOW subclass member, Andre Hawkins, testified that both foreman
Johnny Niswonger and J.D. Billingsly made racist jokes or remarks. Niswonger would bring
watermelon on the job and make racist remarks calling Hawkins "watermelon" and "nigger."
According to Hawkins, upon bringing this conduct to the attention of Roadmaster
Billingsly, Billingsly replied that "as long as Mr. Niswonger hadn’t put a hand on [Hawkins],
there’s not really much he could do about it." In fact, according to Hawkins’ testimony,
Billingsly also made racially offensive remarks, saying, for instance, "I don’t know what I’m
going to do with you six niggers that come off the rail gang." [T1463-65.]
Hawkins also testified that Billingsly said, "Black guys that come off the rail gang
were number one on his shit list and that [Billingsly] didn’t like us, and that . . . he was
going to do all he could to get us away from around here" [T1433]. Billingsly’s own racist
attitudes and inaction after Hawkins reported the "watermelon" comment to him caused
Hawkins to feel as though reporting racial slurs was futile. On cross-examination, Hawkins
explained, "I went to [Billingsly] complaining that [sic] I have been talked against, called
a watermelon nigger . . . and he didn’t take any action toward it" [T1547],
Attempts by Blacks to protest the use of demeaning remarks simply led to further
abuse. For example, MOW subclass member, Darryl Talley, testified that when he
protested against being called "boy" by Track Foreman Lester Rorie, Rorie said, "you’re a
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smart ass little nigger, aren’t you?" and "I’ll call you anything I want to call you" [T1928].
Additionally, Talley testified that Rorie referred to him as "my little spaded brother"
[T1929], According to Talley’s testimony, when Talley complained to Hillebrandt about
the racial remarks, he was told, "[w]ell, just go on and work." Id.
Talley also complained to Roadmaster Garfield Bridges, which caused Bridges to
pull Rorie aside to talk to him. However, following this, Rorie retaliated by returning to
Talley, told him, "[sjince you’re so smart, I got something for you to do," and assigned
Talley even harder work [T1969], A barrage of harassment continued, leaving Talley with
the impression that he would just have to put up with it [T1970] ("I was trying to ignore
this man . . . . I knew I had told somebody about it. You know, it was just something that
I was contending with"). While defendant argues that Bridges’ unsuccessful conversation
with Rorie was corrective action precluding liability, defendant’s failure to take effective
remedial action brings to mind the Supreme Court’s remark about the misguided
contention that the establishment of grievance procedures (however unsuccessful) insulates
a company from liability: such an argument "might be substantially stronger if [the
company’s] procedures were better calculated to encourage victims of harassment to come
forward." Meritor, 477 U.S. at 73. In this case, far from encouraging victims of harassment
to come forward, MOPAC failed to take steps that would give black employees any
confidence in the grievance process. Complaints to the company triggered retaliatory
conduct or apathy, discouraging black employees from complaining about the discriminatory
conduct.
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MOW subclass members also testified to other discriminatory terms and conditions
of employment beyond being subjected to racial epithets. For instance, both Andre
Hawkins and Roger Williams testified to the fact that Blacks (but not whites) were
required to work in inclement weather conditions. Roger Williams testified that among the
forms of "everyday" harassment he faced [T2508-11, T2521, T2523, T 2529], he was not
allowed to stand by a fire-lit barrel to warm up alongside his white co-workers. "They stand
around the fire. So I walked up there and they told me that I couldn’t stand there, to go
back to work" [T2523], The white employees got to stand by the fire "or they get in the
machines that got heat in it, and they sat in the machines, and the machines keep warm."
Id. When asked on cross-examination whether, as a probationary employee, he thought he
should be able to stand by the fire, Williams responded, "I thought I should be able to get
warm in that kind of temperature as a human being" [T2529], Williams further testified
that he was trying to get warm because, "you can’t do nothing when your hand is blistering
and frostbit. . . . You can have a pair of gloves and your hands still froze . . . . Your gloves
is going to get wet. Then you got a pair of froze gloves on your hand" [T2529-30].63
Andre Hawkins testified that on one occasion, when a tornado appeared and
members of the track gang sought shelter, Billingsly nevertheless ordered Blacks to go back
outside to pick up the tools [T1457-58], When the storm and lightning first came on, he
said, the white employees went into the office while the black employees went into box
“ Contrary to defendant’s characterization of Williams’ testimony in its brief, Def. Br.
at 112, n.106, in the testimony quoted in text Williams was not "claiming]" that his hands
were "blistering and frostbit" or that he was "so cold that the gloves froze on his hands."
The more plausible understanding of his testimony, which the district court credited, is that
Williams was describing risks he tried to avoid in cold weather so that he could do his job.
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cars. Billingsly then dismissed the whites, allowing them to go home [Id. & T. 1552-55] ("He
didn’t tell us to go home when he told them, when he dismissed them" [T1555]). When
Hawkins complained to Billingsly that he felt this was unfair, Billingsly told Hawkins, "[y]ou
don’t get paid to be feeling" [T 1457]. On cross, in response to a query whether this was
the only time "whites got to go home without having to pick up the tools", Hawkins
testified, "it’s normally left for us to pick up the tools every night when [the white
employees] come in, and they wash up and so forth, while we pick up the tools" [T1556].64
64Defendant suggests that Hawkins’ claim about the tornado "was essentially retracted
on cross-exam" (Def. Br. at 112 n.106). It is difficult to conceive of the basis for this
representation in the brief. On cross-examination Hawkins clarified that he had not
personally heard Billingsly tell the white employees inside the office that they could go
home but was told of this by "Kevin," a white worker leaving the worksite at the time. This
statement was properly stricken as hearsay. But Hawkins never retreated from his assertion
that Billingsly allowed the whites to depart and then required black employees to pick up
the tools. In fact, Hawkins put the incident into the context of black employees’routinely
being required to pick up white workers’ tools as well as their own:
Q. Let’s talk about the tornado or when the tornado comes. Did that happen
one time, this incident where the whites got to go home without having to
pick up the tools?
A. No, I wouldn’t say that happened - it happened at one time, at the time of
the storm, but it’s normally left for us to pick up the tools every night when
they come in, and they wash up and so forth, while we pick up the tools.
Q. . . . Are you talking about more than one incident or just one time?
A. Well, I might have been - at that particular time [his deposition], I might
have been stating the time that I’m telling you about now, but like I say,
every night we was left to put up the tools.
Q. Always the Black guys, and the white guys got to home earlyf?]
A. I never did see them help us put up the tools.
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Such disparate treatment vividly illustrates what Title VII was designed to outlaw. "[T]he
key issue ‘is whether members of one sex [or race] are exposed to disadvantageous terms
or conditions of employment to which members of the other sex [or race] are not exposed.’"
Kopp, 13 F.3d at 269 (quoting Harris, 114 S. Ct. at 372 (Ginsburg, J., concurring).
Hawkins also testified that whites got Gatorade and shady spots on hot days, unlike
Blacks [T1458-59], Moreover, Hawkins testified about other discriminatory terms and
conditions of employment, including the facts that white employees would get their break
just a little earlier than Blacks so that they got better shaded and comfortable places to
relax on break [T1459, T1507-08]; that Billingsly showed preferential treatment toward
whites by providing them with sunglasses for work in glaring light [T1468]; and that
Billingsly took no formal action against Niswonger when Hawkins’ reported Niswonger’s
unauthorized search of Hawkins’ car [P-T1461-62],
Q. And if a white guy was working there side by side with you, he didn’t have
to pick up his tools?
A. It wasn’t a question . . . if he had to or if he didn’t have to but he didn’t. It
was his job to.
Q. They were just laying there and you would just pick them up for him?
A. He would just walk off and go start to clean hisself up, getting ready to go
home.
Q. Did you stop that white and say, "Listen, mister, you pick up your tools"?
A. No, sir, I didn’t. . . . It wasn’t my job to tell somebody what they had to do.
[T1556-58].
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Sidney Williams, a transportation subclass member, related an incident involving a
white co-worker, Donny Chambliss, a fireman, who approached Williams and asked what
a "black boy was doing working on the first shift" [T3085], When Williams notified
supervisor Steve Sparr, about this incident, Sparr requested Chambliss to step outside
[T3086, T3096], Upon returning to the area where Williams was standing, Sparr said to
Williams apathetically, "[y]ou know how these Arkansas rednecks are," and went back to
his office. Id. While the district court found that this single incident standing alone was
insufficient to establish Williams’ individual claim, when viewed in the context of the
pattern and practice claim, this evidence was properly considered by the district court as
part of the totality of the circumstances. An isolated incident may not provide a sufficient
basis for finding discrimination in an individual claim, but such an incident, when
considered collectively with numerous other instances of harassment to various black
employees, should be taken into account "in light of the record as a whole." Meritor, 477
U.S. at 69; see Catlett, 828 F.2d at 1265.
Another transportation worker, Barry Stewart, related several instances in which he
was subjected to racial slurs. See T7532-36 ("nigger, you better not show up to my job late
again"); T7520 ("black ass"); T7519 ("nigger, you hadn’t marked off').
Transportation subclass member, Lawrence Barbee, observed racial slurs such as
"nigger" written in the bathrooms at locations as various as the service track facility in
North Little Rock, the depot in Popular Bluff, and the Texarkana depot [T3959-61],
Barbee complained to General Foreman, Mr. Jordan, who had the slurs painted over at the
service track facility, but the slurs reappeared [T3961], Barbee also observed racial slurs
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on the engine inside the cab, as well as KKK signs on the box cars at the North Little Rock
yard, as recently as two weeks prior to his testimony at trial [T3560], He had observed the
KKK signs for approximately six months on the box cars, which were located in plain view
of managerial personnel. Id. Management took no action until the district judge observed
a KKK sign on a box car during a tour of the North Little Rock facility, prompting the
railroad to paint it over [T848-49, T20268-71, T20342-50]. Even then, no investigation was
undertaken to determine who was responsible [T20346].
b. Testimony of employees other than members of the plaintiff subclasses.
As discussed supra p.87, testimony of witnesses other than those in the plaintiff subclasses
is relevant and bolsters the finding of discriminatory terms and conditions. For instance,
the testimony of Phoebe Hudspeth, a black female brakeman, regarding a confrontation
with white male engineer Earl McKenzie was appropriately considered by the trial court.
Although it occurred in another division of the railroad, Hudspeth reported it to supervisor
Lee Roach (the division superintendent) who later became division superintendent in North
Little Rock, one of the divisions at issue in this case.65 As such, Hudspeth’s testimony
relates to the company’s knowledge of discriminatory conduct (via notice to one of its
agents) and its failure to effectively redress the conduct. Ms. Hudspeth testified that she
rejected sexual advances by McKenzie and, as a consequence, McKenzie threatened to have
her removed from the job. According to her testimony, after Hudspeth advised McKenzie
65Note that part of the Louisiana Division, where this incident occurred, became
incorporated into the Arkansas Division during a corporate reorganization in fall of 1984.
See Def. Proposed Findings of Fact and Conclusions of Law (Appendix A: Company
Structure), at 11-12 [P-A3-4], Even before this reorganization, portions of the Louisiana
Division covered trackage within the state of Arkansas. Id. at 2 [P-A2],
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that she was going to register a complaint to their supervisor, McKenzie told her, "[o]h
yeah, and if you do, you will be one dead nigger." Hudspeth related that although she
reported the incident to Roach, she knew of no investigation having been done [T3670-
72].66
Similarly, the court correctly took into account the testimony of Mike Wilkins, who
was a clerk in the transportation department and therefore subject to the same work
environment as transportation subclass members. Wilkins testified that his supervisor,
Leota Merrit, in referring to a division he had worked in, said, "that’s what we call the
nigger division" [T6840]. Also, superintendent A.W. Reese reached over to touch Wilkins’
head, saying, "who was this, [B]uckwheat?" in front of two other company officials, Mark
Landrith and Kenneth Cargile, a trainmaster and assistant trainmaster. These management
officials took no action, even though Wilkins expressed displeasure about the statement
[T6910-11],
In fact, the trial transcript is rife with evidence of numerous other instances of
harassment, racial hostility, insults, demeaning jokes, and epithets. This testimony comes
from members of the plaintiff subclasses and other employees alike.67
""Although Roach testified that he had asked a trainmaster to conduct an examination,
defendants (who introduced numerous investigation transcripts and related records as
exhibits) proferred no documentary evidence confirming that such an investigation ever
occurred or that the engineer was disciplined for his conduct [T7207-18],
67 See, e.g., Curtis Carter: T2842-43 & T2852 (foreman Chaney and Roadmasters
Chapman and Clyde Brown called Carter "black bastard", "nigger", and "son of a bitch");
Louis Pressley: T56-57, T140 (Earnest Franklin related instance in Hope, Arkansas
in which Gene Butler grabbed an older gentleman, Louis Pressley, by the collar and
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kneed him on the butt, stating, "that’s the way all you darkies ought to be - that’s the way
I ought to take and do all you darkies");
Otis Ransom: P-T1097-1105 (Central Division General Roadmaster Pratt referred
to Blacks as "niggers"; stated that the only thing he did not like about the railroad was
"niggers and women"; and did not reprimand assistant roadmaster Hattan, who joked, "I
think all whites ought to own a nigger" and that "niggers don’t know nothing"). (The
Central Division, where these incidents occurred, became incorporated into the Arkansas
Division during a corporate reorganization in fall of 1984, see Def. Proposed Findings of
Fact and Conclusions of Law (Appendix A: Company Structure), at 11-12 [P-A3-4], and
even before this reorganization, portions of the Central Division covered trackage within
the state of Arkansas. Id. at 2 [P-A2].
Edward Smith: P-T5951-56 (trainmaster Smith referred to black employee Edward
Smith as a "nigger", and said he could call Edward Smith anything he wanted to when
Edv/ard Smith complained; racial slurs were commonly made by Edward Smith’s white co
workers in the presence of supervisors, nothing was ever done about it);
Joe Louis Hunter: T2595-2600 (continuously subjected to barrage of racial slurs by
foreman Cook and Roadmaster Clyde Brown, who laughed at Cook’s use of racial slurs);
Ronald Moore: P-T7429 (conductor said to engineer, "I can’t stand that nigger",
referring to Moore);
Ronald Watkins: P-T8301, P-T8303 (racial joke about "coons" told in front of
assistant supervisor, Tom Campbell); P-T6869-70 (Harold Weber’s reference to "Black
nigger" and "Black ass" in conversation with supervisor);
Earnest Franklin: T53-54, T76 (foreman Gene Butler referred to Blacks as "darkies",
"coon", "niggers", and required them to say "yaw suh" instead of "yes sir" to indicate
subservience).
Jerry Bradley: P-T6545-46 (it was "commonplace for conductors and engineers to
give orders and instructions to black employees prefaced or interlaced with terms such
"jungle bunnies", "coons", "monkeys", "niggers"; witness did not protest as it was plain he
would not be able to finish training if he did); P-T6561-62 (conductor and engineer asked
him if he could set whites up with black women, and "[i]s it true true niggers only like to
copulate at night and all kinds of various positions?"; witness tried to "steer clear" of these
type s of conversations, but called a "smart ass nigger" if he did not answer); P-T6569 (Leota
Merrit made comments to him such as, "[i]t is too hard to keep up with you niggers"); P-
T6571-73 ("Well, jungle bunny, it’s time for you to go to work. I guess you coons, for
instance, don’t need any more than 10 hour of rest"; witness did not report because "I was
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really afraid, you know, not only for my job but just for my safety"); T6577-78 (engineer
states "I don’t care what the damn rule book says" about name calling, and "I'm going to
say any damn thing I want to, nigger"); P-T6588-91 (similar slurs and derogatory
comments); P-T6784-85 (never knew of anyone written up for the use of racial terms); P-
T6785-89 (when Bradley complained to Assistant Supintendent Halfrey about other
people’s use of racial terms, Halfrey called him a "nigger" and put the onus of dealing with
the problem on Bradley, telling him not to try to create a whole bunch of ruckus with the
other men); P-T6788-89 ("I mentioned to [Halfry] how that my conductors and engineers
and the callers had persisted in constantly referring to me as nigger, jungle bunny and coon,
and telling racial jokes . . . . I went to this gentleman, who was Assistant Superintendent
[Halfrey], and told him about [this] and he himself attacked me with these racial slurs, I
didn’t have anywhere else to turn); P-T6813 (describing working environment as stressful,
"knowing that you have to continue going through this each time you report to work, is
extremely stressful to someone to be able to — conditions to be able to perform under, and
not knowing that you had any recourse whatsoever except to just take it"); P-T6814 ("I
didn’t have anywhere to turn after I found out that I was going to be treated that way I was
treated by Mr. Halferty, the Assistant Superintendent. So I was in a Catch-22 situation.
I wanted the job. I needed the job, and if I wanted to stay there, the only way I knew how
to stay there was to try to just take whatever it is they gave me and try my best not to
violate any of those rules").
There were also numerous examples of how Blacks were forced to work in more
difficult conditions and were humiliated in ways other than through slurs:
Donald Forte: T756-58 (Blacks and whites assigned to separate work crews, with
Blacks assigned harder, dirtier work, such as pulling out ties; complained to Roadmaster
Cowan, who did nothing about this);
Walter Washington: T615-16 (separate work crews);
Hershel Lovelace: P-T12029-31, P-T12070 (separate work crews, with Blacks doing
the mauling, which requires more physical labor than whites were assigned; work
assignments made by roadmaster, Danny King);
Donald Keels: T808-10 (separate work crews, with Blacks assigned to Ballast work,
which was harder work than whites were assigned; reported this to roadmaster Cowen, but
no action taken);
Earnest Franklin: T66-75 (Blacks on road crews were not allowed to go into towns
for lunch, as were whites, and Blacks had to be content with cold sandwiches that whites
would bring back; Gene Butler told local police officials not to worry because Butler would
"gel these darkies out of town," P-T75);
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c. No negative inference from fact that some of plaintiffs’ witnesses did not
give testimony regarding certain forms of harassment. Defendant suggests that there is some
significance in the fact that some of plaintiffs’ witnesses testified about discriminatory
employment practices other than harassment, testified to only a few instances of
harassment, or otherwise did not "corroborate" — although they did not contradict — other
witnesses who testified to sustained patterns of harassment.68 Def. Br. at 112-17 & 119-21.
However, as previously noted, supra p.97, corroboration is not a requirement in hostile
work environment cases, and credibility determinations are better made by the trial judge
than by a reviewing court on the cold record.
Defendant’s reference to witnesses who did not testify to certain forms of
harassment does not serve to undermine the overwhelming evidence of discriminatory terms
and conditions. One example illustrates why this is the case. Defendant refers to Donald
Keels’ testimony that he had not heard any racial terms used by white supervisors. Def. Br.
at 115. First, it is not surprising that Keels did not hear racial slurs used by white
supervisors given that he did not work around white people much [T828], particularly given
the existence of workforce segregation [T808-09]. Second, this aspect of Keels’ testimony
Mike Wilkins: P-T6895-6905 (observed white callers manipulating calls so that white
employees would get the favored and higher paying jobs over black employees).
See also defendant’s concessions of numerous racial slurs, insults, and other forms
of harassment, each which defendant tries to characterize as "isolated." Def. Br. at 113-21,
and accompanying footnotes.
)8See, for example, Roger Williams: T2508-11, T2521, T2523, T2529 (racial slurs and
other forms of harassment "everyday"); Curtis Carter: T2842-43, T2852, T3021-22
("continually harassed").
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does not necessarily reflect that he had not heard white co-workers use racial terms that
were tolerated by supervisors. Nor does it suggest Keels was not subjected to other forms
of harassment. In fact, Keels testified to having been subjected to several instances of
discriminatory conduct and harassment, such as being forced to participate in separate work
crews for whites and Blacks, with Blacks assigned to harder work [T808-09]; his observation
of a dispute between a black co-worker, Jerry Deloney, and a white supervisor, Denver
Weaver, whom Deloney called a racist [P-T819]; and his observation of Deloney being
harassed by white supervisor, Jim Pruitt [P-T821].69
d. Management testimony as to notice and failure to take remedial
action 7(1 Charles Malone, a trainmaster, testified about observing the KKK sign during
the district judge’s tour of the North Little Rock facility [T20342], He admitted that
despite his knowledge of the racist sign, no investigation was undertaken [T20346], He also
conceded that other members of management knew about the KKK sign. Malone testified
that "it was pretty well known that this had occurred on the tour with the judge. That was
pretty common knowledge among the officials that this thing had occurred" [T20348].
" ’Keels also testified that Pruitt had authority to make workers change job assignments,
indicating Pruitt’s supervisory role in the company, for which he and other supervisors were
agents [P-T821, P-T823],
7(’Defendant concedes that Malone, Lang, and Roach (discussed below) are "members
of management." Def. Br. at 105-06. Additionally, this Court can infer that Hillebrandt
was considered a member of management from defendant’s admission that superintendent
and general manager (both positions Hillebrandt held) were managerial positions. See
discussion supra p. 90.
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Furthermore, Malone testified that on another occasion, he saw a sign on railroad property
in Arkadelphia that said, "where is the world coming to, a nigger train master?" [T20267-
68],
Other management officials testified to their tolerance of a hostile work
environment. Alfred C. Bennage, a general road foreman of engines actually testified that
he allowed ethnic jokes as a matter of personal choice or preference, despite the fact that
he knew such jokes violated company rules [T4596] and despite the fact that he was
required to report any rule infraction.71 In explaining why he did not take remedial action
and thereby violated the rules, he explained, "I chose not to make an issue of it . . . . I’d
say it was personal prerogative" [T4596-97], General Manager R.G. Lang also conceded
that he never disciplined anyone for use of racial slurs, nor did he know of any supervisor
who had been reprimanded for the use of racial terms, despite the fact that he admitted
to having heard racial terms used on the railroad [T5186-88],
Furthermore, Division Superintendent Lee Roach admitted at trial that the company
had no established procedure wherein employees could make complaints, and that there
was no uniform practice of making written reports of complaints of race harassment
[T7137, T7142], Additionally, he conceded that he himself heard racial terms used in the
workplace, but did not write up reports on these occasions [T7140-41],
71Hillebrandt testified that "General Rule D requires a report of any violation of the
rules" [P-T15694].
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5. Taking All of the Evidence into Account and Considering the Totality
of the Circumstances, the District Court’s Finding of Racially
Discriminatory Terms and Conditions of Employment Must Be
Upheld_______________________________________
The evidence overwhelmingly demonstrates that racially discriminatory conduct in
MOPAC’s Arkansas and North Little Rock Divisions was so pervasive that it altered the
conditions of employment for African-American workers. The evidence further reveals that
company officials who exercised supervisory authority had either actual or constructive
notice of this conduct. (For example, witnesses testified that they reported this conduct to
the company, but no corrective action was taken.) In fact, members of management
themselves testified that they did not discipline or reprimand those who engaged in
discriminatory conduct, despite their knowledge of this conduct. The evidence also shows
that in a significant number of instances, management personnel themselves were offenders.
Further, some Black employees who complained of harassment suffered adverse
consequences as a result. See, for example, discussion of Darryl Talley and Phoebe
Hudspeth, supra pp. 98-99, 104-105. Fear of retaliatory conduct and the company’s failure
to take remedial action discouraged black employees from filing future complaints and
constituted at least tacit encouragement of racist conduct and insults.
Beyond proving the plaintiff claim of discriminatory terms and conditions, therefore,
evidence of racial slurs and harassment is also evidence that racial animus played a
significant role in making employment decisions that adversely affected black employees
and applicants. See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989). The managers
who made racially insulting remarks, thereby demonstrating prejudiced attitudes, also made
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decisions and recommendations regarding other employment matters encompassed in
plaintiffs’ claims. The racial hostility evidenced by these managers’ remarks - as well as
their tolerance of such remarks by white employees - properly bears upon their motivations
regarding decision-making with respect to promotions, assignments, and discipline that
produced the underrepresentation of Blacks in all but the most menial and low-paying jobs.
6. The Injunctive Relief Fashioned By the District Court Was
Appropriate ____________________________ _____________
On April 15, 1994, the District Court issued an order enjoining defendant from
"creating or tolerating a racially oppressive work environment for any member of the MOW
or Transportation subclasses" [A739]. The injunction requires defendant to keep anti-
discrimination policies in effect; provide EEO training; maintain grievance procedures; post
vacancies accessible to MOW subclass members who may seek promotions and job
assignment; develop written guidelines delineating criteria to be used in evaluating job
performance used as the basis for promotions; and maintain records demonstrating
compliance with anti-discrimination requirements [A738-46], In its liability opinion, after
carefully considering defendant’s objections to injunctive relief, the trial judge found that
it was "not convinced, based upon the record, that the work environment complained of is
free of the adverse conditions testified to by the plaintiffs and class members." Webb, 826
F. Supp. at 1207 n.17, A663. In this sense, the instant case is unlike Parham, in which the
trial judge found the Company’s record regarding its EEO policy to be "impressive and
salutary." Parham v. Southwestern Bell Tel.Co., 433 F. 2d at 429 (relied on in Def. Br. at
124-25).
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In what appears to be a backdoor challenge to the underlying finding of liability,
defendant contends that the railroad has put in place an EEO/AA program, making
injunctive relief no longer necessary. Def. Br. at 121-25. However, "compliance with [an]
affirmative action [policy] does not automatically translate into compliance with Title VII."
EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1101 (6th Cir. 1984). And, as the Supreme
Court has said, "the mere existence of a grievance procedure and a policy against
discrimination . . . [does not, standing alone,] insulate [the defendant] from liability."
Meritor, 477 U.S. at 72. Inasmuch, therefore, as Title VII vests courts with broad equitable
powers to fashion such relief as the circumstances involved may require, it was well within
the District Court’s discretion, in view of its liability findings, to conclude that injunctive
relief was appropriate, and was in fact necessary, to eliminate the discriminatory effects of
the past, to prevent similar conduct in the future, and to make whole the victims of
discrimination. Ingram v. Missouri P.R. Co.. See Albemarle (one purpose of Title VII is to
make whole the victims of employment discrimination). In the forthcoming remedial phase
of this case, the district court will afford the parties further opportunity to be heard as to
whether there is a continuing need for injunctive relief and retention of jurisdiction and
judicial supervision.
E. The District Court Did Not Err in Finding a Pattern and Practice of Racial
Discrimination in Discipline of Employees within the Maintenance of Way
Department
In this complex challenge to a wide variety of the policies and work practices of a
major employer in the Little Rock area, the District Court’s decision reflects a careful
sifting and weighing of the evidence presented by the parties. The trial judge’s dismissal
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of plaintiffs’ claims with respect to various subclasses and individuals (e.g., 826 F. Supp. at
1201, A649; 826 F. Supp. at 1209 n.18, 1211 n.21, A667 n.18, 673 n.21; A. 555-58, 562-63),
and his rejection of proffered statistical evidence that he found did not meet appropriate
standards of reliability or relevance (e.g., 826 F. Supp. at 1209, A667-68), demonstrate the
extent to which the court engaged in a reasoned application of evidentiary principles in
deciding whether, and to what extent, the defendant railroad company practiced racial
discrimination against its African-American employees during the relevant time periods
involved in this litigation. As we have shown in the previous sections of this brief, the
court’s conclusion with respect to promotions and terms and conditions of employment
were well supported by the evidence. The same thing is true of the findings regarding
administration of discipline within the Maintenance of Way Department.
Defendant attacks those findings basically on two grounds. First, it argues that the
testimony of individual plaintiffs on this subject, especially Earnest Franklin, was not
credible (see, e.g., Def. Br. at 44-48, 68 n.52). Second, it contends that plaintiffs failed to
show disparate treatment of African-American employees because every instance of a white
employee who received a lesser sanction involved an individual or infraction distinguishable
from - and therefore not comparable to - the situation of the minority worker.
As far as the plaintiffs’ testimony is concerned, defendant is basically expressing its
dissatisfaction with the lower court’s credibility and demeanor determinations, aspects of
the ruling below that cannot be meaningfully assayed by this Court on the cold record.
Moreover, defendant overlooks the fact that the trial court did not ignore unfavorable
aspects of various individuals’ workplace conduct or trial testimony in reaching the
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conclusion that when the charges were filed that led to this litigation, African-American
employees were subject to harsher discipline by Missouri Pacific’s supervisors. Thus, for
example, even employees who felt they had been unfairly and unnecessarily disciplined
would "accept responsibility" for their "misconduct" in order to retain or regain their
positions. See T317 (Franklin). The District Court heard all of the testimony and
concluded that the pattern of racially discriminatory discipline that it discerned, including
the imposition of harsher sanctions against African-American employees, could not be
justified by the fact that rule violations had been committed, or because individual minority
employees’ testimony may not have been accurate in every detail.
Additionally, in evaluating the totality of the evidence72 presented by plaintiffs, the
trial court could properly consider, in determining whether African-American employees
of the railroad faced disparate administration of discipline for infractions of the company’s
rules and procedures, the facts that discrimination was otherwise demonstrated to have
72It is true that in the section of its opinion discussing the discipline issue, as occurred
elsewhere, the District Court made reference to the defendant’s failure to "rebut plaintiffs’
prima facie case," e.g., 826 F. Supp. at 1211, A674. It is clear from the court’s opinion,
however, that it evaluated the weight of the evidence as a whole (without regard to the
sufficiency of the plaintiffs’ evidence, at the close of their case in chief, to withstand the
defendant’s Rule 41(b) motion — the denial of which the defendant has not appealed) in
reaching its ultimate conclusion that African-American employees in the Maintenance of
Way Department were subject to discriminatory discipline. The court evaluated the
testimony of defendant’s witnesses, such as Mr. Hillebrandt, about the factors that the
company asserted could explain the disciplinary sanctions imposed on black and white
employees, respectively, for arguably similar offenses. It determined in some instances,
defendant’s position was justified. E.g., 826 F. Supp. at 1213-14, A678-81 (Deloney). In
others, the trial judge found the ostensible distinguishing factors were insufficient to justify
the difference in treatment. E.g., 826 F. Supp. at 1209-11, A668-73 (Franklin). Taking the
evidence as a whole, the court found ample support for plaintiffs’ pattern-and-practice
claim.
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been the "company’s standard operating procedure - the regular rather than the unusual
practice," Teamsters, 431 U.S. at 336. As previously discussed, during the time period
relevant to the District Court’s conclusion, Blacks who were hired by the railroad were
assigned in overwhelming and disproportionate numbers to entry-level positions in the
Maintenance of Way Department, rather than into the Transportation or other divisions.
They were thus relegated to perform the most physically demanding and least desirable
jobs. Even within the MOW Department, African-American employees faced a racially
demeaning and hostile environment, including the use of racial slurs by co-workers and
managers without corrective action by the company.73 Their efforts to secure promotions
to less onerous and higher-paying positions within the company were limited by racial
discrimination.
In such circumstances, it is hardly surprising that discipline for rules violations was
also administered in a discriminatory fashion. The railroad maintained no written
guidelines limiting either the discretion of first-line supervisors to initiate formal
investigations leading to discipline (beyond direct counseling) for asserted infractions or the
authority of supervisors and investigating officers to offer or withhold from employees the
opportunity to waive formal investigation and accept a reprimand or deferred suspension74
7,Mr. Hillebrandt, who was Superintendent of the Arkansas Division during portions
of the 1970's and General Manager of the District including the Arkansas Division during
part of the 1980’s, testified that the use of racial slurs was not a company rules violation
unless it created an unsafe situation; that is, unless the minority employee toward whom
the slur was directed was so upset that he or she "was taking a racial slur as affecting one
of those [safety] conditions" [P-T15694-95].
74The railroad company did not routinely inform employees of this "waiver" option;
instead, it was left to union officers to disseminate such information [P-T16545]
(Hillebrandt).
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[P-T16281-83, P-T16300-03 (Hillebrandt)]. In each instance, white supervisors would have
been able to exercise their discretion in a racially discriminatory fashion.
The company relied upon the grievance and appeal process, Public Board decisions,
and the internal review of discipline cases by the railroad’s Labor Relations Department
to insure consistency and avoid arbitrariness [T16063-65, T16320-23 (Hillebrandt)].
However, there was no evidence that the Labor Relations Department ever reversed or
modified a disciplinary sanction because of discrimination or studied racial patterns.
Although defendant uses forms and reports to monitor the performance of management
employees in many areas, nondiscrimination is an exception to this practice [P-T15908-09
(Hillebrandt)]. Mr. Hillebrandt was not aware whether information about Public Board
decisions was routinely distributed to subordinate supervisors who initiate disciplinary
proceedings [T16064-65].
As far as comparisons of discipline imposed upon minority workers with that given
white employees is concerned, defendant’s approach would virtually eliminate the possibility
of ever demonstrating the occurrence of discrimination in disciplinary cases for large
organizations. The railroad relies primarily upon individual discharge or other discipline
suits. In such cases this Court (and other Circuits) have understandably insisted upon a
very high degree of comparability between the circumstances of the plaintiff and the
employee who is not a member of the class protected under the applicable statute but who,
it is claimed, received no discipline or lesser discipline for a similar infraction. That is
because an individual case necessarily focuses upon a very small number of events and the
difficulty of accurately ascertaining whether or not a particular decision was discriminatory
is correspondingly high. In a class action, however, the court surveys a much broader field.
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Decisions about whether particular class members were subjected to discrimination are
largely relegated to "Stage II" proceedings. The fact-finder’s task in making the liability
determination is rather to discern, from all of the evidence, whether an employer’s practices
and procedures incorporated or prevented the occurrence of racially discriminatory
treatment of workers on a regular basis; whether "the given reasons [for discipline] were
prelextual in at least enough instances that the court could find a pattern and practice of
racial discrimination," Paxton v. Union Nat’l Bank, 688 F.2d at 567.
When the court addresses that inquiry, though, it should not place upon plaintiffs
the burden of demonstrating that every disciplinary decision made by the company was
skewed by racial or other invidious discrimination, e.g., that white employees alwavs got
shorter suspensions or dismissals than African-Americans. The court need determine only
that there were "enough instances" to warrant the conclusion that discrimination took place
with regularity in the defendant’s operations. Thus, defendant’s evidence that some white
employees in what it considered comparable circumstances to plaintiffs and class members
received equal or more severe discipline75 does not indicate whether the treatment of
these white employees was typical or atypical nor, standing alone, compel the conclusion
that African-Ajnerican employees could not for the most part have been treated in a
discriminatory fashion by the company’s supervisors and officials.
At the same time, defendant should not be permitted to obscure the existence of
discrimination by fashioning so large a number of potential variables - all of which it
’5See, e.g., P-T16503 (Hillebrandt)("I was trying to find examples of comparability.
When I found two or three and found the personal records and was able to develop that
information, that was the end of my study").
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claims are taken into account in administering discipline — that any meaningful comparison
becomes impossible. In the instant matter, the company had numerous rules, often stated
in general terms,76 whose violation could lead to sanctions. There were multiple
supervisory personnel who could initiate, investigate, settle or terminate disciplinary
proceedings. The wide range of sanctions that could be imposed (from counseling through
reprimand, suspension, dismissal and ultimate reinstatement, to permanent termination)
made it highly likely that even individuals with similar tenure and work history would have
enough differences in prior disciplinary records to "explain" or "justify" differences in
treatment. Other factors that the defendant’s witnesses claimed were relevant, such as an
employee’s "acceptance of responsibility" through the waiver or request for leniency
procedures were subject to manipulation on the basis of race in the same fashion as the
determination of sanctions for a given infraction, see, e.g., P-T16050 (Hillebrandt) (no rule
requiring dismissal, as opposed to lesser sanction, for unexcused absence of specified
number of days). Finally, there were no records from which supervisors’ decisions to
overlook rule infractions committed by white, but not African-American, employees could
be identified. See, e.g., T15917-20 (Hillebrandt) (no company rule required a supervisor
to report every employee found sleeping on the job; if supervisor chose to ignore such an
incident it might never come to the attention of higher-level management). In response
76See, e.g., T15574; E468 (General Rule F., requiring that "[ejmployes [sic] must report
promptly to their immediate supervisor all injuries, no matter how trivial," covers racial
slurs); E479 (Maintenance of Way General Rule C. provides that "[ejmployes [sic] . . . who
do not conduct themselves in such a manner and handle their personal obligations in such
a way that their railroad will not be subject to criticism or loss of good will, will not be
retained in the service").
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to questioning by the court below, even defendant’s witness Hillebrandt recognized the
extraordinary difficulty of making comparisons on every factor that the company claimed
could have an impact on the occurrence and amount of discipline: he testified that he did
not review discipline records resulting in different levels of discipline imposed for the same
offense, but only at a limited number of instances where similar discipline was imposed for
the same offense, "recognizing that there are probably hundreds of personal records that
back up each of these I tried to limit my comparison to those that appeared more common
. . . . I just began with looking at other dismissals" [P-T16111-12].
The district court in its opinion identified numerous instances in which white
employees, who were sufficiently similarly situated to African-American workers to permit
comparison, received harsher disciplinary treatment at the hands of company personnel.
Together with the evidence of other discriminatory practices in the MOW Department, the
court concluded that plaintiffs had demonstrated "enough instances" to warrant the
conclusion that the railroad maintained a pattern and practice of allowing its supervisors
to treat black workers in a discriminatory fashion in administering discipline. On the
evidence as a whole, this determination is unexceptionable and should be affirmed.
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Conclusion
For all of the reasons stated above, the judgment should be affirmed.
Respectfully submitted,
Elaine R. Jones
Director-Counsel
Charles Stephen Ralston
Norman J. Chachkin
Catherine Powell
Paul K. Sonn
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street, 16th fl.
New York, New York 10013
(212) 219-1900
Lazar M. Palnick
University of Pittsburgh
Medical Center
3811 O’Hara Street
Pittsburgh, Pennsylvania 15213
(412) 647-0410
John w. Walker
Ralph Washington
John W. Walker, P.A.
1723 Broadway
Little Rock, Arkansas 72206
(501) 374-3758
H orace Walker
Jones, Tiller & Walker
Suite 518, Pyramid Place
211 West Second Street
Little Rock, Arkansas 72201
(501) 375-1135
Martin M. Shapiro
Emory University
Department of Psychology
Tilgo Circle
Atlanta, Georgia 30322
(404) 727-7447
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