# Petition — Nance v. Union Carbide Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1018%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 431 U.S. 953 ## Text |. supreme Court, U. S. FILED | DEC 16 1976 MICHAEL RODAK, JR., CLERK IN THE Supreme Court of the United States OCTOBER TERM, 1976 No. 26 824 WINIFRED S. NANCE, Petitioner, VS. UNION CARBIDE CORPORATION, CONSUMER PRODUCTS DIVISION, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT ROBERT BELTON Post Office Box 6057 Station B, University Station Nashville, Tennessee 37235 JONATHAN WALLAS Suite 730 East Independence Plaza 951 South Independence Blvd. Charlotte, North Carolina 28202 Attorneys for Petitioner WILSON - EPES PRINTING Co.. INC. - RE 7-6002 - WASHINGTON, D. C. 20001 TABLE OF CONTENTS IES IS eee aoe ae Ee EES ES ee NR , dd Statutcry Provisions Involve gn , cseindenimlipnmenteneisiniaietinhotaben Reasons for Granting the Wriltt I. The Petition Presents An Important Question II. III. Of Federal Law Concerning the Relationship Between the Class Action Procedures Under Rule 23 of the Federal Rules of Civil Procedure and the Remedial Authority of the Federal Courts Under Section 706 (g) of Title VII ........ The Decision Below Conflicts With Decisions of Other Courts of Appeals On the Same Matter.. The Decision Below Represents A Legally Insup- portable Departure From the Doctrine of Stand- — A ⅛˙— ̃ —˙————— ORS r SAS ae a a RE Pe a Appendix Decison of the Court of Appeals Judgment of the Court of Appeals Order of the Court of Appeals Denying Petition for Rehearing and Suggestion of Rehearing En 2 E Findings of Fact and Conclusion of Law of the r Judgment of the District Court Federal Rules of Civil Procedure, Rule 23 oo wo do do — 10 10 21a CITATIONS Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 69 — 10, 11, American Pipe & Construction Co. v. Utah, 414 r basis American Propeller & Mfg. Co. v. United States, fie 2, a ee Ass’n. of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970) Baumgartner v. United States, 322 U.S. 665 — . Carey v. Greyhound Bus Co., Inc., 500 F.2d 1372 1K — —ñ Carter v. Butz, 479 F.2d 1084 (8rd Cir.), cert. de- nied, 414 U.S. 1094, 1103 (1973) — . . Craft v. Memphis Light, Gus and Water Division, 534 F. 2d 684 (6th Cir. 1976) Danner v. Phillips Petroleum Co., 447 F.2d 159 ccc Detroit Edison Co. v. EEOC, 515 F.2d 301 (6th Cir. 1975), pet. for cert. pending, 44 U.S.L.W. 3150, 3214 (U.S. August 14, 1975) (No. 75- 00 ̃ 2 8 Doctor v. Seaboard Coast Line R. Co., 540 F. 2d Gehen,, eee East v. Romine, Inc., 518 F.2d 332 (5th Cir. — ͥ————— ntiataiensiiadiesiammieiaeaaiimmaaia Eisen v. Carlisle & Jacquelin Co., 417 U.S. 156 TK . Franks v. Bowman Transportation Co., 424 U.S. 920 9 ————ůů————— 10, 11, Gamble v. Birmingham S. R. R. Co., 514 F.2d 678 / / xx Graniteville Co. (Sibley Division) v. EEOC, 438 A bf ££ | YS | a een on Gray v. Greyhound Lines, East, No. 75-1631 (U.S. D.C. App., October 13, 1976), 12 EPD {] 11,211 .. Page 12, 13 14, 16 11 12, 18 18 18 19 — ee ee ee CITATIONS—Continued Hackett v. McGuire Brothers, Inc., 445 F.2d 442 D,, . Ihre v. Northern States Power Co., 459 F. 2d 566 (8th Cir.), vacated and remanded to dismiss as moot, 409 U.S. 815 (1972) ee. Love v. Pullman Co., 404 U.S. 522 (19717 Martinez v. Richardson, 472 F.2d 1121 (10th Cir. — ͤͤͤ ͤ a iai tk hei Sa Mohr v. Jordan, 370 F. Supp. 1149 (D. Md. 1974), aff'd. No. 74-1496, (4th Cir., filed July 31, REESE aaa neces ar weaken Me Se Oe Pettway v. American Cast Iron Pipe Co., 411 F.2d , rIraeiEr ser se or Rogers v. EEOC, 454 F.2d 248 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972) ⸗:· 7 Sanchez v. Standard Brands, Inc., 431 F.2d 455 % / ahaa igen Sibbach v. Wilson & Co., 312 U.S. 1 (19417 Simon v. Eastern Kentucky Welfare Rights Or- ganization, 96 S. Ct. 1917 (19760) Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991 (1971) Sullivan v. Little Hunting Park, 396 U.S. 229 WW G ace ee Tipler v. E. I. duPont de Nemours Co., 443 F.2d ee, See Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 1 K AA 8 United States v. Forness, 125 F.2d 928 (2nd Cir.), cert. denied, 316 U.S. 694 (1942) 8 Warth v. Seldin, 422 U.S. 490 (1975) Waters v. Heublein, Inc., — F.2d ——, 45 U.S. L. W. 2260 (7th Cir. November 12, 1976) Wells Benz, Inc. v. United States, 333 F. 2d 89 (9th / d aes le areas Wilson v. Zarhadnick, 534 F.2d 55 (5th Cir. 1—è HH ie biatiealid Page 19 16 17 16 16 17 19 18 13 18 14, 15 Iv CITATIONS—Continued Page Constitutional Provision: ee 18, 19 Statutes and Rules: | x ————— . a 3%. © 42 U.S.C. §§ 2000e et seg. [Title VII of the Civil Rights Act of 196444 5, 11, 12, 18, 14, 15, 17 42 U.S.C. § 20000-2(a) (1!) ————————— 3,13 423 U.S.C. 6 20000-B(a) ( ——— 3, 19 E ——— 8 42 U.S.C. 5 2000e-5 (b) n 3, 17, 19 42 U.S.C. § 2000e-5(g) )) 4, 8, 10, 11, 13, 14, 15 Federal Rules of Civil Procedure Rule 7 (e) — — — 14 Rule 23 6 4, 5, 9, 10, 11, 13, 14, 15, 16 1111111 7, 9, 21 Other Authorities: Comptroller General: Report to Congress: The Equal Employment Opportunity Commission Has Made Limited Progress in Eliminating Em- ployment Discrimination (19700 20 5 Wright & Miller, Federal Practice & Procedure — ͤ ͤ — 14 — a ee IN THE Supreme Court of the United States OCTOBER TERM, 1976 No. WINIFRED S. NANCE, vs. UNION CARBIDE CORPORATION, CONSUMER PRODUCTs DIVISION, Respondent. Petitioner, PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Petitioner, Winifred S. Nance, respectfully prays that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Fourth Circuit entered in this proceeding on July 28, 1976, rehearing and rehearing en banc having been de- nied September 23, 1976. OPINIONS BELOW The opinion and judgment of the Court of Appeals, reported at 540 F.2d 718, are reprinted in the Appendix infra at 1a-20a and 21a, respectively. The order of the Court of Appeals denying Petitioner’s petition for re- hearing is set out in the Appendix infra at 22a. The Findings of Fact and Conclusions of Law of the United States District Court for the Western District of North Carolina, reported at 397 F. Supp. 436, are set out in 2 the Appendix infra at 23a-72a. The judgment of the District Court, which is not reported, is set out in the Appendix infra at 73a-81a. JURISDICTION The judgment of the Court of Appeals was entered on July 28, 1976. Petitioner’s timely petition for re- hearing and rehearing en banc was denied on September 23, 1976. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). QUESTIONS PRESENTED 1. Whether Rule 23 of the Federal Rules of Civil Procedure can be applied as a matter of law to limit the remedial authority of the district courts under § 706(g) of Title VII to grant comprehensive “make whole” relief to an individual employee who has been found to be a victim of systemic and institutional employment discrim- ination but who has opted not to seek class certification under Rule 23? 2. Whether the Court of Appeals erred in its reliance upon matters contained in letters from the district court to counsel as the proper standard by which to review the claims of an individual employee challenging systemic and institutional employment discrimination? STATUTORY PROVISIONS INVOLVED Rules Enabling Act, 28 U.S.C. § 2072, as amended: The Supreme Court shall have the power to pre- scribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and pro- cedure of the district courts and courts of appeals of the United States in civil actions, including ad- miralty and maritime cases, and appeals therein, and the practice and procedure in proceedings for the review or enforcement of orders of administra- tive agencies, boards, commissions, and officers. Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution. The pertinent sections of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seg., as amended, provide: Sections 703 (a) (1) and (a) (2) 42 U.S.C. § 2000e- 2 (a) (1) and 2(a) (2): It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise 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. (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such in- dividual’s race, color, religion, sex, or national origin. Section 706 (b), 42 U.S.C. § 2000e-5 (b): Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer, em- ployment agency, labor organization, or joint labor- management committee controlling apprenticehip or other training or retraining, including on-the-job training programs, has engaged in an unlawful em- ployment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, 4 labor organization, or joint labor-management com- mittee (hereafter referred to as the respondent“) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. Section 706(g), 42 U.S.C. § 2000e-5 (g): If the court finds that the respondent has inten- tionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstate- ment or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, respon- sible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earn- able with reasonable diligence by the person or per- sons discriminated against shall operate to reduce the back pay otherwise allowable. No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hir- ing, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended or discharged for any reason other than discrimina- tion on account of race, color, religion, sex, or na- tional origin or in violation of section 704 (a). FEDERAL RULES OF CIVIL PROCEDURE The case involves the provisions of Rule 23, Federal Rules of Civil Procedure, fully set out in the Appendix infra at 82a-85a. 5 STATEMENT OF THE CASE This action was filed in the United States District Court for the Western District of North Carolina on August 18, 1972 in which Petitioner, a female employee of the Respondent, alleged discrimination based on sex in employment as being in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 88 2000e et seg. Petitioner alleged that the Respondent had engaged in systemic and institutional practices of discrimination _ based on sex prior to the effective date of Title VII (July 2, 1965); that the effects of those practices were continuing into the post-Act period; and that she was a person aggrieved by these practices. Petitioner began her employment with Respondent on July 8, 1952. The district court ordered Petitioner to file a state- ment on the class aspects of the case and on November 20, 1972, she filed the following statement: This action was not brought as a class action pursuant to Rule 23(a) (b) (2) of the Federal Rules of Civil Procedure, when the action was initially filed in Court on August 18, 1972. [Petitioner] does not contemplate at this time seeking to amend the Complaint to allege a class action, however, [Petitioner] is of the opinion that whatever bene- fits she may obtain in this action should inure to the benefit of other similarly situated females of the [Respondent] in the Mecklenburg County fa- cilities of the [Respondent]. However, Petitioner filed her action as an individual action and at no time sought class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. Respondent, relying upon the charges Petitioner filed with the Equal Employment Opportunity (EEOC), chal- lenged the standing of Petitioner to seek relief from across-the-board sex based employment practices and 6. moved the court to restrict Petitioner’s action to the narrow question relating to the correctness of her sen- iority date. The district court rejected this challenge after reviewing the complete files from the District Office of the EEOC. (64a-66a) The court found that Petitioner’s claims of sex based discrimination in “promotions, job classifications, and terms and conditions of employment“ were fully advanced before the EEOC and were con- sidered or should have been considered by the EEOC? prior to its issuance of notice of her right to seek relief in the district court. (65a; 66a) The trial began on March 12, 1974 and was adjourned after eight days. Shortly after the adjournment, the district judge sent several letters to counsel requesting the submission of proposed findings of fact to help 1 Petitioner filed a number of charges with the EEOC between March 30, 1970 and February 25, 1971. In a February 25, 1971 charge, which was the principal charge relied upon by the district court to decide whether Petitioner had standing to raise broad based claims of employment discrimination (64a), Petitioner alleged: “I and other females allege discrimination in terms and con- ditions of our employment because of sex in that, 1. Jobs are being changed so that they can be classified as male jobs. 2. Males are recalled with less seniority in preference to females with more seniority. 3. Females are denied an opportunity to use company service date at times of lay-off. 4. Males have job rights and department rights over women. 5. Males are allowed to quit and return and gain com- pany service while females are denied. 6. Rules are being changed to deny females and favor males. 7. Females are told if they accept a heavy job and can- not perform, they will be discharged. 8. Routine inspection test does not pertain to the job and never given the results of the test.” 7 “sharpen the issues” as an aid to the court in arriving at an “orderly final decision.” ? More than seven months after these letters, the trial was resumed and concluded on December 11, 1974. There- after, on April 28, 1975 the district court entered com- prehensive and detailed Rule 52(a) findings of fact. The On April 1, 1974, the district judge sent the following letter: Gentlemen: I have not yet been able to set a time to complete the taking of evidence. It has occurred to me that we might save some wheel spinning if we do a little skull work before the resump- tion of hostilities. With this in mind, and to sharpen the issues so that I can tell what I am trying to decide, I shall be grateful if you gentlemen will do the following: ‘ Plaintiffs are requested to draft proposed findings of fact in brief form, including a simple statement of the facts on the basis of which plaintiffs say that Mrs. Nance and others lost seniority before 1967 because of sex. In other words, what were the events which produced a loss of seniority and what amount of seniority was thereby lost and why was it dis- criminatory? Plaintiffs are further requested to indicate what methods may be possible to remedy any residual effects of such loss of seniority, if the court finds such loss to have occurred. Defendants are requested to prepare proposed findings of fact in favor of the defendants on all of the separate issues that were raised at trial which do not have to do with the single issue of loss of seniority. If you will prepare and file this information by April 15th or thereabout, I shall be grateful. It will help in winding up the remaining testimony, and also in trying to arrive at an orderly final decision. On April 18, 1974, the district court sent the following letter: Dear Mr. Ogletree: * * * * My April 1, 1974 letter may have been too broad in the last paragraph on Page 1. Although I do not remember the testi- mony very well, it seems to me there is probably evidence which would suggest a change in past or in existing practices about posting or not posting notices of vacancies and avail- able promotions. Perhaps I should therefore have asked plain- tiffs’ counsel to draft something on that subject, but I shall be glad for you to tender something on that point also. district court found that Petitioner had been a victim of comprehensive and systemic sex based discriminatory employment practices.“ (28a-64a) The practices found to be unlawful included the seniority system (28a-33a) ; lay-off and recall procedures (41a-43a); testing prac- tices (43a-46a); supervisory selection procedures (48a- 49a); and a disguised form of sex stereotyped job clas- sifications (34a-39a; 54a). None of these practices were held to be supported or required by business necessity (57a) nor protected under the bona fide occupation qualification exception provided in 3 703 (e) of Title VII, 42 U.S.C. § 2000e-2(e). (57a-58a) In October, 1975, the district court entered a com- prehensive judgment (73a-8la) under its authority in 706 (g) of Title VII, 42 U.S.C. § 2000e-5(g). The dis- trict court deemed the judgment necessary “to remedy the present and continuing discrimination based on sex and to remedy the competitive seniority disadvantage to [Petitioner] stemming from the [Respondent’s] practices of maintaining segregated jobs and rosters, and promo- tions, transfers, lay-offs and recall procedures based on sex.” (58a-60a) Specific relief in the nature of back pay was awarded only to Petitioner. (79a) For example: The district court found that from 1956 until November 18, 1969—more than four years after the effective date of Title VI1I—Respondent maintained an open and declared policy and practice of segregating its work force based on sex. (29a) The first female foreman at the Respondent’s Charlotte plant was not selected until shortly after the complaint was filed (48a); and the court found that supervisory selection procedures were based on “purely subjective standards [with] no safeguards in these procedures designed to avert discrimination against females.” (49a) Femarles were not allowed to take tests used by the Respondent at least since 1952 for certain jobs designated male jobs until five years after the effective date of Title VII; even then the court found that these “old tests” had a disparate impact on females and were not job related. (43a-46a) New tests were instituted in 1971, but the court found these “new tests” invalid under de- cisions of this Court and the EEOC guidelines. (54a; 59a) On Respondent’s appeal, the Court of Appeals vacated the judgment of the district court and limited Petitioner’s relief to only a consideration of an adjustment of her seniority date and the recognition of her right to back pay, costs and attorneys’ fees. (la-20a) The Court of Appeals held as a matter of law that a federal court is without authority to award comprehensive injunctive re- lief to an individual found to be a victim of discrimina- tion prohibited by Title VII unless the action has been properly certified as a class action under Rule 23 of the Federal Rules of Civil Procedure. (2a-9a) In reliance upon several letters that the district judge sent to coun- sel requesting proposed findings prior to the entry of Rule 52(a) findings the court below held also that cer- tain of Petitioner’s allegations made in her EEOC charges were not entitled to plenary consideration. The Rule 52(a) findings of broad based sex discriminatory prac- tices of the Respondent other than Petitioner’s seniority status were “briefly discussed” by the court below caly because the parties had “devoted some parts of their argument” to them. (9a-10a) Petitioner’s petition for rehearing and rehearing en banc was denied on Sep- * These letters are set out at n. 2, supra. In refusing to accord plenary treatment to all of Petitioner’s claims, the court of appeals held: . . . It must be assumed from [the district judge’s letter of April 1, 1976] that the trial judge found that, so far as her individual claim was concerned, the [Petitioner] was only “aggrieved” by her loss of seniority status, and he intended to limit her relief to this single specific claim of discrimina- tion. The testimony at trial, it is true, had churned up some other issues not concerned with broad, continuing sex dis- crimination on [Respondent’s] part, but issues involving prac- tices long since abandoned by the [Respondent]. These ad- ditional issues, the trial court seemingly regarded as wanting in substance, according to his joint letter to counsel to which we have previously referred. Since, however, both parties have devoted some parts of their argument to these other issues, we shall briefly discuss them. (10a). 10 tember 23, 1976 except for correction of a factual mis- take. (22a) REASONS FOR GRANTING THE WRIT The Petition Presents An Important Question of Fed- eral Law Concerning the Relationship Between the Class Action Procedures Under Rule 23 of the Federal Rules of Civil Procedure and the Remedial Authority of Fed- eral Courts Under Section 706(g) of Title VII The critical issues of employment discrimination law at present involve remedies. This Court has decided several significant Title VII cases over the past several Terms involving the scope of the remedial authority of the federal courts under § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g). These cases were race discrimination cases that had been certified as class actions under Rule 23 of the Federal Rules of Civil Procedure. Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) ; Albe- marle Paper Co. v. Moody, 422 U.S. 405 (1975). This case brings before the Court an important question of federal law involving the authority of the federal courts to award “make whole” injunctive relief to an individual plaintiff who has been found to be a victim of past and continuing systemic employment discrimination but who has opted not to pursue the action as a class action under Rule 23. That question is: Upon a finding of systemic and institutional employment discrimination as the find- ings of the district court herein so clearly demonstrate, is an individual who has been found to be a victim of that discrimination entitled to injunctive relief under 706 (g) of Title VII that affirmatively disestablishes that system, even though the action is not brought as a class action under Rule 23 and even though the dises- tablishment of the offending system would also operate, of necessity, in favor of other similarly situated persons? 4 ‘ ' : | : 11 The decision of the Court of Appeals interposes a general prohibtion on the authority of federal courts to award comprehensive and necessary relief to individual victims of employment discrimination. The court found a barrier neither in the s.atutory language nor the legis- lative history of Title VII nor in the findings of fact made by the district court, but in the provisions of Rule 23 of the Federal Rules of Civil Procedure. If the decision is correct, no federal court would have the au- thority to grant effective relief from systemic and in- stitutional employment discrimination to an individual victim unless the case is certified as a class action® or brought as a “pattern and practices” case by the EEOC.* The principle announced below is inconsistent with the remedial purposes of Title VII and with the construc- tion of § 706(g) of the Act established by this Court in Franks v. Bowman Transportation Co., 424 U.S. 747 (1976) and Albemarle Paper Co., 422 U.S. 405 (1975). The decision below also abridges Petitioner’s substantive rights under Title VII in contravention of the Rules Enabling Act, 28 U.S.C. § 2072, as amended. This Court has emphatically confirmed the Congres- sional mandate in § 706 (g) that gives federal courts plenary remedial power to make victims of unlawful discrimination whole because the attainment of this ob- jective requires that persons aggrieved by the conse quences of the unlawful employment practice be, so far ‘Efforts to obtain class certification under Rule 23 can add troublesome roadblocks to persons already aggrieved by employ- ment discrimination as is illustrated in the Fourth Circuit’s opin- ion in Doctor v. Seaboard Coast Line R. Co., 540 F.2d 699, 704-710 (4th Cir. 1976); see also Hisen v. Carlisle & Jacquelin, 417 U.S 156 (1973). *§ 707, 42 U.S.C. § 2000e-6; see Detroit Edison Co. v. EEOC, 515 F. 2d 301, 310-312 (6th Cir. 1975), pet. for cert. pending, 44 U.S.L.W. 3150, 3214 (U.S. August 14, 1975) (No. 75-393) (EEOC not sub- ject to class action rules under Rule 23). 12 as possible, restored to a position where they would have been were it not for the unlawful discrimination. Thus this Court has established a remedial standard that ef- fective relief in Title VII cases can be denied “only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimina- tion throughout the economy and making persons whole for injuries suffered through past discrimination.” Franks v. Bowman Transportation Co., supra at 771; Albemarle Paper Co. v. Moody, supra at 421. The construction of 706(g) established by this Court is premised on Congressional recognition that unlawful systemic and institutional employment discrimination re- quires substantial modification or abolition of all of the systemic features that create or perpetuate these prac- tices because, Employment discrimination as viewed today is a... complex and pervasive phenomenon. Experts familiar with the subject now generally describe the problem in terms of ‘systems’ and ‘effects’ rather than simply intentional wrongs, and the literature on the subject is replete with discussions of, for ex- ample, the mechanics of seniority and lines of pro- gression, perpetuation of the present effects of pre- Act discrimination through various institutional de- vices, and testing and validation requirements. Franks v. Bowman Transportation Co., supra at 764 n. 21, citing, S. Rep. No. 92-415, p. 5. The Court of Appeals did not disturb the ultimate finding’ of the district court that Respondent had en- The Court of Appeals ruled that, It is conceded by the [Respondent] that in the pre-Act period, the jobs in certain departments were reserved exclu- sively for male employees and that in periods of layoff only qualified male employees could bid on the jobs in these depart- ments. Such a system obviously gave the male employee a pre- ferred opportunity to protect his ‘company service’ over the — — — „„ 5 A 1 13 gaged in discrimination made unlawful under § 703 (a) of Title VII thus requiring a grant of relief under § 706 (g). Nevertheless, the Court of Appeals denied complete relief on the basis that comprehensive and systemic re- lief is available only upon a showing that an individual plaintiff has sought and was granted class certification pursuant to Rule 23 of the Federal Rules of Civil Proce- dure. (4a-9a) The Court of Appeals’ theory of borrowing Rule 23 to limit the authority of the district courts is incom- patible not only with the obligation of the federal courts under § 706 (g) as construed by this Court in Franks, supra and Moody, supra, but that theory abridges Peti- tioner’s substantive rights under Title VII in contraven- tion of the Enabiing Act, 28 U.S.C. § 2072, as amended, in 1966. The Enabling Act of 1934 gives this Court the authority to prescribe the Federal Rules of Civil Proce- dure. An important proviso in the Enabling Act is that the rules so prescribed “shall not abridge, enlarge, nor modify substantive rights” in the guise of regulating procedure. 28 U.S.C. § 2072; American Pipe & Construc- tion Co. v. Utah, 414 U.S. 538, 556 (1974); Sibbach v. Wilson & Co., 312 U.S. 1, 11 (1941). The principal pur- pose of Rule 23 is to provide a procedure for efficient and economical litigation designed to avoid multiplicity of activity where class action designation is found to be superior to other methods for the fair and efficient ad- female employee. This more extensive opportunity in bidding for vacancies during layoffs on part of male employees was a discrimination against female employees, and because that dis- crimination was carried over in the operation of the post-Act system. To such extent as the [Petitioner] was prejudiced thereby in the computation of her, company service, or seniority rights, she is entitled to relief. (18a) See Baumgartner v. United States, 322 U.S. 665, 671 (1944); East v. Romine, Inc., 518 F.2d 332, 338-339 (5th Cir. 1975) on distinction between “ultimate fact” and “subsidiary fact” for pur- poses of appellate review. 14 judication of the controversy. American Pipe & Construc- tion Co. v. Utah, 414 U.S. 588, 551, 553 (1974). Rule 23 is a procedural device of judicial administra- tion. The relief to be awarded in any Title VII case— class action or individual—is substantive rather than administrative. Thus the decision of the court below holding that Rule 23 limits the remedial authority of federal courts provided in § 706 of Title VII is reminis- cent of the days when the substantive rights of parties were decided on the basis of procedural technicalities. See Rule 7(c) of the Federal Rules of Civil Procedure; 5 Wright & Miller, Federal Practice and Procedure § 1181 (1969). II The Decision Below Conflicts With Decisions Of Other Courts of Appeals on the Same Matter The decision below holding that Rule 23 limits the authority of the federal court to grant systemic relief to individual victims of employment discrimination conflicts with decisions of other courts. In Carey v. Greyhound Bus Co., Inc., 500 F.2d 1872 (5th Cir. 1974), the Fifth Circuit held that a single employee found to have suf- fered from a violation of Title VII is entitled to “make whole” relief requiring the abolition of the offending discriminatory system even if a district court, under correct standards, decides that class certification under Rule 23 is inappropriate: . . Carey also seeks to have provisions of the collective bargaining agreement declared discrimina- tory and defendant enjoined from applying them. If the class action is allowed, this question becomes moot. If class action is denied, plaintiff’s point would be well taken, and he should be afforded abolition of the system—not just the prevention of its applic- ability to him. 500 F.2d at 1381. —— ete ** ä—— 8 — te aioe : : | 15 In Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991 (1971), the Sev- enth Circuit held that, Rule 23 notwithstanding, § 706 (g) of Title VII grants federal courts plenary power to enter a judgment in an action brought as an individual action that affords class wide relief to other similarly situated employees. 444 F.2d at 1201-1202. Sprogis is bottomed on the recognition that Title VII protects im- portant substantive rights and that a Title VII suit is necessarily a class action as the evil sought to be reme- died is discrimination on the basis of class characteristics, e. g., sex. The Seventh Circuit accorded the necessary recognition to the fact that federal courts have a special responsibility in the public interest to devise remedies which effecutate the policies of Title VII as well as to afford private relief to the individual employee institut- ing the complaint. In Tipler v. E. I. duPont de Nemours Co., 443 F.2d 125 (6th Cir. 1971), the Sixth Circuit held that although a Title VII action is not labeled a class action, it is per- force a sort of class action for fellow employees simi- larly situation. Thus the Sixth Circuit held that if an individual plaintiff is successful in establishing a viola- tion of the Act, the relief would inure to the benefit of fellow employees by providing relief against a wide range of past and present discriminatory employment prac- tices. 443 F.2d at 130. The conflict between the circuit courts is not limited to Title VII cases. In an analogous line of cases, courts have denied class certification on the ground that in cases in which injunctive relief is sought, such relief to the extent granted, will inure to the benefit of others simi- larly situated. The ruling in these cases is based upon the notion that no useful purpose would be served by certifying the action as a class action because the legality or non-legality of the challenged rules and regulations 16 can be determined to be constitutional or unconstitu- tional regardless of whether the action is treated as an individual action or as a class action. Craft v. Memphis Light, Gas and Water Division, 534 F.2d 684, 686 (6th Cir. 1976) ; Ihrke v. Northern States Power Co., 459 F. 566, 572 (8th Cir.), vacated and remanded to dismiss as moot, 409 U.S. 815 (1972); Carter v. Butz, 479 F.2d 1084, 1089 (3rd Cir.), cert. denied, 414 U.S. 1094, 1103 (1973) ; Martinez v. Richardson, 472 F.2d 1121, 1126-27 (10th Cir. 1973). The conflict between the circuits on whether Rule 23 limits the remedial authority of the federal court is not likely to be resolved by future cases in the courts of appeals. For example, in a case decided prior to Carey v. Greyhound Bus Co., Inc., supra, the Fifth Circuit held in a Title VII sex discrimination case that Rule 23 pro- hibits a court from entering relief in an individual case that inures to other similarly situated females unless the action is a certified Rule 23 class action. Danner v. Phillips Petroleum Co., 447 F.2d 159, 164 (5th Cir. 1971). But in a case decided subsequent to Carey, supra, the Fifth Circuit held in a plaintiff-prisoner case that Rule 23 prohibits a court from granting injunctive re- lief that requires a state to provide access to legal mate- rials unless a class action is pleaded in the complaint. Wilson v. Zarhadnick, 534 F.2d 55 (5th Cir. 1976). Similarly, the Fourth Circuit affirmed without opinion a decision of a lower court which had denied class action certification on the ground that the injunctive relief would inure to the benefit of others similarly situated even absent Rule 23 class certification. Mohr v. Jordan, 370 F. Supp. 1149, 1151 n. 3 (D. Md. 1974), aff'd. (No. 74-1496, 4th Cir., filed July 31, 1974). However, in the instant case, the Fourth Circuit ruled that an individual plaintiff is not entitled to broad injunctive relief unless class certification is granted. — ee aE, Vata — 17 The conflict among the circuits on this question justi- fies the grant of certiorari to review the judgment below. III The Decision Below Represents A Legally Insupportable Departure From the Doctrine of Standing The Court of Appeals summarily rejected practically all of Petitioner’s claims of employment discrimination for two reasons. First, the court failed to apply the ap- propriate standing test to the allegations made by Pe- titioner in charges that she had filed with the EEOC. Secondly, the court focused upon a letter, see n. 2, supra, that the district judge sent to counsel—rather than the charges Petitioner had filed with the EEOC—as the basis upon which to determine what claims of Petitioner were entitled to plenary judicial consideration. (9a-10a) The decision below thus raises important constitutional, statu- tory and policy considerations growing out of the bona fide efforts of “laymen, unassisted by trained lawyers,” “ to invoke the jurisdiction of the federal courts to seek vindication of their rights under Title VII. 1. The Appropriate Standing Test: A person claim- ing to be aggrieved by a violation of Title VII may not invoke the jurisdiction of a federal court until he has first unsuccessfully pursued certain avenues of potential administrative relief which must be initiated with the filing of a charge with the EEOC. § 706, 42 U.S.C. § 2000e-5; Love v. Pullman Co., 404 U.S. 522 (1971). The courts have thus adopted a rule that a complaint filed in the federal courts under Title VII may allege and raise issues of employment discrimination “like or related” to the claims contained in the charge filed with the EEOC and/or growing out of such allegation during See Love v. Pullman Co., 404 U.S. 522, 527 (1971); Pett Vv American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969). N 18 the pendency of the charge before the EEOC. E. g., Gamble v. Birmingham Southern R.R. Co., 514 F. 2d 678, 689 (5th Cir. 1975); Graniteville Co. (Sibley Di- vision) v. EEOC, 438 F.2d 32, 38 (4th Cir. 1971); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 463 (5th Cir. 1970). The “like and related“ doctrine is thus rooted in traditional notions of standing. The law of standing has two aspects. As a constitu- tional doctrine, founded in the restrictions imposed on the judicial power by Article III of the Constitution, the standing rules impart justiciability: whether the plain- tiff has made out a “case or controversy” within the meaning of Article III. Warth v. Seldin, 422 U.S. 490, 498 (1975) In sum, when plaintiff’s standing is brought into issue the relevant inquiry is whether, assuming justiciability, the plaintiff has shown injury to himself that is likely to be redressed by a favorable decision, Simon v. Eastern Kentucky Welfare Rights Organiza- tion, 96 S.Ct. 1917, 1925, 1926 (1976) or “injury in fact.” Ass’n. of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152 (1970). In addition to its constitutionally based requirement, the standing doctrine incorporates a prudential limitation on the ju- dicial power by demanding that the interest of the plain- tiff, regardless of its nature in the absolute, at least be arguably within the zone of interests to be protected or regulated by the statutory framework within which his claim arises. Simon v. Eastern Kentucky Welfare Rights Organization, supra at 1924; Ass’n. of Data Proc- essing Service Organizations, Inc. v. Camp, 317 U.S. at 153. In some statutory schemes, Congress has itself de- termined that standing should be granted to anyone who satisfies the constitutional requirements. Sullivan v. Little Hunting Park, 396 U.S. 229, 237 (1969); cf. Franks v. Bowman Transportation Co., supra at 752-757. Title PONE Senora wen we Ne ete a acne lei ilies RAR Re ae a eee eee eed | ) 19 VII is such a statute. The use in § 706 (b), 42 U.S.C. § 2000e-5(b) of the language “a person claiming to be aggrieved” shows a Congressional intention to define standing as broadly as is permitted by Article III of the Constitution. Gray v. Greyhound Lines, East, No. 75-1631 (U.S.D.C. App., October 13, 1976), 12 EPD 11,211; Hackett v. McGuire Brothers, Inc., 445 F.2d 442, 446 (3rd Cir. 1971) ; Waters v. Heublein, Inc., —— F.2d —— (7th Cir., November 12, 1976), 45 U.S.L.W. 2260. See also Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) citing with approval Hackett v. McGuire Bros., Inc., supra. Petitioner made claims that she is a person aggrieved within the meaning of § 706 (b) and the allegations that she made in her charges filed with the EEOC and in her complaint filed in the district court were broad based claims of systemic, across-the-board allegations of sex discrimination which the district court found caused her “injury in fact”. See n. 3 supra. The allegations asserted by the Petitioner in her charges are interests clearly within the scope of Title VII’s protection against sex discrimination in “terms, conditions, or privileges of employment.” § 703 (a) (2), 42 U.S.C. § 2000e-2(a) (2). Indeed, if such ma- ters as supervisory selection procedures, weight lifting limitations, posting of job notices, assignment of work, ete., were not consider2d “terms, conditions or privileges of employment,” it would be difficult to give that language any meaning at all. Gray v. Greyhound Lines, East, supra at 5582. In Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir, 1971), cert. denied, 406 U.S. 957 (1972), the court held that the language in § 703 of Title VII, 42 U.S.C. § 2000e-2 . evinces a Congressional intention to define discrimination in the broadest possible terms. Con- gress chose neither to enumerate specific discrimin- atory practices, nor to elucidate in extenso the parameters of such nefarious activities. Rather, it 20 pursued the path of wisdom by being unconstric- tive, knowing that constant change in the order of the day and that seemingly reasonable practices of the present can easily become the injustices of the morrow. Time was when employment discrimination tended to be viewed as a series of isolated and dis- tinguishable events, manifesting itself, for example, in an employer’s practices of hiring, firing, and pro- moting. But today employment discrimination is a far more complex and pervasive phenomenon, as the nuances and subleties of discriminatory employment practices are no longer confined to bread and butter issues. (emphasis supplied) The standard adopted by the court below to determine Petitioner’s standing was not the substantive “like and related” constitutionally based standard but rather a standard apparently fashioned for this case and premised upon a procedural trial practice of the district court in requesting counsel to submit proposed finding designed to facilitate a final disposition. The standard adopted by the court below is no standard at all when measured against well established principles of standing. The de- cision, if allowed to stand, will have a severe adverse impact not only upon the efforts of individual plaintiffs claiming to be aggrieved, cf. Doctor v. Seaboard Coast Line R. Co., 540 F.2d 641 (4th Cir. 1976), but also upon the effectiveness of the EEOC to carrying out its mandate under Title VII.“ 2. Reliance Upon Letter to Counsel: Finally, the procedure used by the court below to test the sufficiency of the decision made by the district court is open to seri- ous question. The record shows clearly that the district „The comptroller general has issued a report showing that as of June 30, 1975, the EEOC had a backlog of charges that totaled 123,340, some of which dated back to fiscal year 1968. Comp- troller General: Report to the Congress: The Equal Employment Opportunity Commission Has Made Limited Progress in Eliminat- ing Employment Discrimination, at 9 (1976). See SS ae Paes a — — 21 court carefully reviewed the charges filed by the Peti- tioner with the EEOC and found not only that all of the claims were properly before the EEOC (64a-66a) but also that Petitioner was a victim of all of these claims. The refusal of the court below to respect those facts and those findings and the action of the Fourth Circuit re- viewing the record de novo and in making its own find- ings as to the discrimination to which Petitioner was and was not subject cannot be justified. It is a well established rule that an appellate court cannot refer to extraneous matters or opinions for the purpose of im- peaching Rule 52(a) findings.“ American Propeller & Mfg. Co. v. United States, 300 U.S. 475, 479 and n. 2 (1937) ; Wells Benz, Inc. v. United States, 333 F.2d 89, 93-94 (9th Cir. 1964); United States v. Forness, 125 F.2d 928, 942 (2nd Cir.), cert. denied, 316 U.S. 694 (1942). 10 . it is well settled that an appellate court may not refer to a memorandum opinion for the purpose of impeaching find- ings .... and the same rule, in our estimation applies with particular force to oral observations and comments. ‘Often a strong impression that, on the basis of the evidence, the facts are thus-and-so gives way when it comes to expressing that impression on paper.’ Wells Benz, Inc. v. United States, 333 F.2d 89, 94 ; (citations omitted.) (9th Cir. 1964) 22 CONCLUSION The Court should grant a writ of certiorari to review the judgment and opinion of the Court of Appeals. Respectfully submitted, ROBERT BELTON Post Office Box 6057 Station B, University Station Nashville, Tennessee 37235 JONATHAN WALLAS Suite 730 East Independence Plaza 951 South Independence Blvd. Charlotte, North Carolina 28202 Attorneys for Petitioner rrr hh APPENDIX — — —— la DECISION OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT NANCE V. UNION CARBIDE CORP. Before BUTZNER, RUSSELL and WIDENER, Circuit Judges Decided July 28, 1976 RUSSELL, CIRCUIT JUDGE: This appeal arises out of an action charging sex dis- crimination in employment rights under Title VII. After trial, the District Court granted both individual and broad class relief. The defendant has appealed. We modify the decree and remand for entry of decree as hereinafter indicated. The plaintiff is a female employee at the Charlotte, North Carolina battery plant of the defendant. Her em- ployment began in 1952 and has been continuous since, save for layoffs. Following a layoff in January, 1970, she filed with the Equal Employment Opportunity Com- mission over a period of some eleven months a suc- cession of five charges alleging sex discrimination. All 1 Hereafter referred to as EEOC. 2a arose basically out of her layoff. Following receipt from the EEOC of a “suit letter,” this judicial action was begun, and after trial, resulted in the judgment from which this appeal is taken.“ A preliminary issue, earnestly pressed by the defendant and briefed by both parties, is whether this action is to be treated as a class action or as an individual action. Concededly it was brought as an individual action.* This individual character of the action was not merely af- firmed in the complaint as filed, it was so stipulated categorically in the record by the plaintiff herself at an early stage of the proceedings. This stipulation resulted from a motion by the defendant for a more definite state- ment by the plaintiff, setting forth the persons or class, if any, the plaintiff sought to represent. By this motion the defendant manifestly sought to establish definitely and finally whether the plaintiff intended to make any claim that her action was a class action. The motion was denied by the Court on the express condition “that the plaintiff would] plead or file stipulations with regard to the class action aspects of the case, indicating more specifically the make-up of the class and the identity of the plaintiffs.” By way of answer to such order, the plaintiff filed of record a stipulation to the effect that she did “not contemplate at this time seeking to amend the complaint to allege a class action, however, the plain- tiff is of the opinion that whatever benefits she may obtain in this action should inure to the benefit of other similar situated females” at the Charlotte plant.’ 18 397 F. Supp. 436. 2 See Katz v. Carte Blanche Corporation (3d Cir. 1974) 496 F. 2d 747, 760, cert. denied 419 U.S. 885 (1974): “* * * the plaintiff, not the judicial system, controls whether or not to ask for class action treatment.” (Emphasis added) * The latter part of this statement represents, as we understand it, an expression of plaintiff’s counsel’s opinion that any legal issue 3a At no time after the entry of this stipulation did the plaintiff seek to convert her individual action into a class action; she made no motion to amend her complaint to state a class action; she at no point endeavored to de- clare “specifically the make-up of the class and the iden- tity of the plaintiffs” she would represent as a class rep- resentative; in sum, she did nothing thereafter to comply with or satisfy the requirements for both alleging and establishing a right to proceed as a class action under Rule 23. Moreover, in a formal order, entered on Jan- uary 24, 1974, on the eve of the commencement of trial in March of that year, and some eighteen months after this action was commenced, the District Court sustained the plaintiff's objections to certain interrogatories sub- mitted by the defendant because of, as the Court put it, “representations of Plaintiff’s counsel that this suit was brought and remains an individual action and not a class action and that back pay is not sought for, and cannot extend as a result of this suit to anyone other than the named plaintiff.“ Nor did the District Court ever hold a hearing on class certification under Rule 23 or enter an order of class certification or set forth any definition of class or classes of which plaintiff was declared a representative or make any provision for no- tice to any identified class, all as contemplated under decided favorably to the plaintiff in this suit against the defendant may be availed of by way of collateral estoppel in any individual suit instituted or tried subsequently by one asserting the same seniority claim as the plaintiff against the defendant. Katz v. Carte Blanche Corporation, supra, at 762; Bradford v. Peoples Natural Gas Company (W. D. Pa. 1973) 60 F.R.D. 432, 436. This order creates another difficulty in possibly considering this as a class action. Such order, entered on the eve of trial and circumscribing defendant’s right of discovery on the assumption the action was purely an individual one, would put the defend- ant at a likely disadvantage at trial, if thereafter, without notice to the defendant, the action were converted into a class action. Such possible prejudice under such circumstances to the defendant would make treatment of the action as a class action inequitable. 4a Rule 23. The issue thus is whether, in these circum- stances, and in the face of two express “representa- tions” by the plaintiff to the Court that her action was strictly an individual action, and in the absence of any order of any class certification by the Court itself, this action can fairly be declared a class action in compliance with Rule 23. Despite the fact that Title VII actions often are de- scribed as “inherently class suits“ and that the require- ments of Rule 23 “must be read liberally in the context of suits brought under Title VII and Section 1981, . the plaintiff in such an action, in order to establish the right to proceed as a class representative, “must [like any other plaintiff] establish that the action meets the requirements of Rule 23(a) ;’ employee discrimination suits do not represent exemptions from the terms of such Rule.“ Rule 23 contemplates that every plaintiff, in order to qualify for class treatment thereunder, will seek “class relief in the complaint,“ and in the absence of such an allegation, class treatment is generally con- sidered inappropriate. An express ruling to this effect was made in Danner v. Phillips Petroleum Co. (Sth Cir. 1971) 447 F. 2d 159, a case very similar in its facts to the one under review here. In Danner, the plaintiff, a female, contended that, under the defend- ant’s seniority practices, female employees were discrimi- nated against in favor of male employees and that, as a result of such discriminatory seniority system, she had 5 Rodriguez v. East Texas Motor Freight (5th Cir. 1974) 505 F. 2d 40, at 50 (U.S. Appeal Pending). $ .: Senter v. General Motors Corp. (6th Cir. 1976) 532 F. 2d wa 4 — v. Crown Zellerbach Corp. (5th Cir. 1968) 398 F. 2d 496, 499; Pointer v. Sampson (D.C.D. 1974) 62 F.R.D. 689, 696; Kinsey v. Legg, Mason & Company, Inc. (D.C.D. 1973) 60 F.RD. 91, 99. Rodrigues v. East Texas Motor Freight, supra, 505 F. 2d at 50. ee Bs 5a been laid off in violation of the terms of Title VII. She, as has the plaintiff here, filed her action under Title VII as an individual action. In holding “that class action relief must be predicated upon a proper class action complaint satisfying all the requirements of Rule 23,” * the Court said, at p. 164: “* * * none of the Rule 23 prerequisites have been satisfied. Mrs. Danner sued as an individual plain- tiff; she established a prima facie case of sex dis- crimination against herself by proving that she had been discharged in a plant economy move because she possessed no seniority or bidding rights, and that no women in the plant had such rights. She showed further that the work she was doing was substantially similar to the work of men in the plant who had seniority and bidding rights, and that she was replaced by men who possessed those rights. Mrs. Danner, however, never took up the banner of women’s liberation for all the female employees in the Phillips plant. This, of course, does not mean that female employees of Phillips may not take ad- vantage of Mrs. Danner’s judicial victory in the future, or, indeed, that they may not join together in a class action against Phillips if they feel one is justified. But if they decide to bring a class action, i, must be brought and identified as such, and the predicate for class action relief must be carefully laid. In the meantime, Mrs. Danner’s victory is for her alone to taste and enjoy.” A similar result was reached in Washington v. Safe- way Corporation (10th Cir. 1972) 467 F. 2d 945, 947, and by us in Carracter v. Morgan (4th Cir. 1973) 491 F. 2d 458, 459. In fact, in the latter case, the plain- tiffs had indicated in their complaint that they were su- ing both individually and as representatives of a class but, in the absence of any certification or identification * 447 F. 2d at 164, n. 10. 6a of the class before a decision on the merits,’ it was held „that class treatment was inappropriate, the Court stat- ing: “Because of plaintiffs’ failure to bring to the at- tention of the trial court, at any time, the matter of the determination of whether the action would be maintained as a class action, and also because of lack of notice to any class of the proposed final order, we are of opinion that the district court was correct in its actions and the opinion below ought to be affirmed. No determination was ever made at any time that the action be maintained as a class action. F.R.Civ.P. 23 (e) (1). No notice was ever given. F.R.Civ.P. 23(e).”” ® guage of Rule 23(c) makes it quite clear that the deter- 3 class status is * made before the decision on the merits.” See Peritz v. Liberty Loan Corporation (7th Cir. 1975) 523 F. 2d 349, 354; cf. Indianapolis School Comm'rs v. Jacobs (1975) 420 U.S. 128, and Jimenez v. Weinberger (7th Cir. 1975) 523 F. 2d 689, U.S. Appeal Pending. 10 The reasoning in Carracter is confirmed substantially, it would seem, by the later decision in Indianapolis School Comm'rs. v. Jacobs (1975) 420 U.S. 128. In that case the action was clearly declared a class action in the complaint but no order was entered certifying it as a class action. The plaintiff prevailed both in the District Court and in the Court of Appeals as if on a class action but, during oral argument in the Supreme Court, it developed that the action was moot as to the individual plaintiff. Since, in the absence of actual certification as a class action, the action remained, in the opinion of the Court, but an individual action, the mootness of the individual claim rendered the case subject to dismissal. The Supreme Court accordingly vacated the judgment, stating at p. 130: In Franks v. Bowman Transportation Company, Inc. (1976) —— US. ——., 44 LW 4356, slip opinion p. 5, n.6, the Court explained the ruling in Jacobs, decided a few weeks ago, thus: “In Board of School Commissioners v. Jacobs, supra, the named plaintiffs no longer possessed a personal stake in the out- come at the time the case reached this Court for review. As 7a Nor do Senter v. General Motors Corp., supra, and Bing v. Roadway Express, Inc. (5th Cir. 1973) 485 F. 2d 441, relied on by the plaintiff in support of the class relief granted herein by the District Court, support her contention. In Senter, the Court at the outset emphasized that there was “no question but that the suit [involved there] was filed as a class action and it proceeded to trial as a class action” and then added that “Appellant had] identified the suit as a class action in his opening remarks at trial and Appellee [had] responded by freely admitting that the suit had been filed as a class ac- tion.” In that context, where, as the Court went on to comment, “all the parties had] proceeded on the as- sumption that the action was a class action,” the Court concluded, citing Bing v. Roadway Express, Inc. (5th Cir. 1973) 485 F. 2d 441, 446-47, that the action was not improperly treated as a class action. Bing, in its pertinent facts and ruling, was not substantially different from Senter. In Bing, lilt was apparent, the Court said, from the beginning that Bing intended his suit to be a class action;” he had clearly proclaimed it as such in his complaint; and, “all parties to the action knew [throughout trial] of its class nature and acquiesced in it.“ These factual differences—the treatment as a class action from the filing of the complaint throughout the proceedings with the knowledge and “acquiescence” of all parties—were the circumstances which distinguished Bing and Senter from Danner.“ They are similarly dis- tinguishable from this case. the action had not been properly certified as a class action by the District Court, we held it moot.” 522 F. 2d at 521-22. * 485 F. 2d at 446. The distinction between Bing and Danner was restated in the subsequent case of Rodriquez v. East Texas Motor Freight, supra, where Judge Wisdom, after stating that, “[w]hen class relief is 8a The plaintiff contends, however, that because she filed broad interrogatories that could be construed as relevant to a class action, the defendant was given proper notice that the plaintiff intended to proceed as a class action, and that, though no motion for certification was ever made or an order granting certification entered, the defendant was put on notice that plaintiff was proceed- ing by. way of a class action. To accept such an argu- ment would make a nullity of Rule 23 and the procedure it mandates. Moreover, the plaintiff had stipulated and entered representations on the record, not once but twice, as we have already said, that she was not proceeding by way of a class action. She had unequivocally declared in such record that if she intended her action to be a class action, she would amend her complaint to evidence such intention. She at no time made such motion to amend. Entitled to rely on the plaintiff’s positive dis- claimers of any intention to proceed by way of a class action—disclaimers appearing in formal representations to the Court—the defendant was not obligated to read every interrogatory filed by the plaintiff to determine whether it indicated an unexpressed but implied inten- tion on the part of the plaintiff to disavow her previous disclaimers and to assert a right to proceed as a class action. Furthermore, we do not perceive in the inter- rogatories any unmistakable sign or notice that the plain- tiff contemplated a class action.“ And this is particularly so, since, even on the eve of trial, the plaintiff was rep- sought in the complaint, * * * the court should liberally apply the — of Rule 23 (a),“ explained Danner as holding that class action relief must be predicated upon a proper class action complaint satisfying all the requirements of Rule 23.’” 505 F. 2d at 50 and n. 11. %* The prerogative of designating the action as a class action rested entirely with the plaintiff, see note 2. 15 Those interrogatories had at least some peripheral connection with the plaintiff's individual charges. a ee a ee resenting unequivocally to the Court, in opposition to defendant’s interrogatories, that she was not prosecuting a class action and was not seeking class relief, and the District Court, in reliance on that representation, had entered its order of January 24, 1974, denying in part defendant’s right to answers to its interrogatories. Even if it could be thought that plaintiff’s interrogatories gave some implied notice that she sought class relief, that im- plication would have been nullified by the representation made to the trial court, as stated in the order of January 24. On this record, then, we find no warrant for treating this case as anything more than what the plaintiff her- self has designated it, to wit, an individual action, lim- ited as it is to plaintiff’s individual claim or claims. It is perhaps not too much to add that, by failing to amend her complaint to seek class relief, and by failing to take any steps either in her pleadings or in positions taken during trial, to comply with Rule 23, and by her several representations to the trial court, the plaintiff herself has “precluded any class certification in this case.“ The real issue in this case is accordingly the validity of plaintiff’s individual claim. In that connection, it should be noted that the plaintiff’s claim revolves basi- cally around her “company service” status, the computa- tion of which resulted, she alleged, in her layoff in 1970. It was this layoff that precipitated her initial complaint to the EEOC, and it was this layoff which was the sole claim stated by the plaintiff in the first four charges she filed with the EEOC—as a matter of fact, it was not until some eleven months after the filing of her initial charge that she raised any other claim or claims. Nor was the trial judge apparently impressed at trial with 10 Peritz v. Liberty Loan Corporation (7th Cir. 1975) 523 F. 2d 349 at 354. 10a these additional claims, belatedly set up by the plaintiff in her fifth amended charge. In a joint letter to counsel for the parties, the trial judge indicated his proposed disposition of the case and, incident thereto, he requested counsel for the plaintiff to “draft proposed findings of fact in brief form” dealing exclusively with loss of sen- iority “before 1965” and “what methods may be possible to remedy any residual effects of such loss of seniority, if the court finds such loss to have occurred,” and re- quested counsel for the defendant in turn “to prepare proposed findings of fact in favor of the defendant(s] on all of the separate issues that were raised at the trial which do not have to do with the single issue of loss of seniority.” It must be assumed from his statements in this letter that the trial judge found that, so far as her individual claim was concerned, the plaintiff was only “aggrieved” by her loss of seniority status, and he in- tended to limit her relief to this single specific claim of discrimination. The testimony at trial, it is true, had churned up some other issues, issues not concerned with broad, continuing sex discrimination on defendant’s part, but issues involving practices long since abandoned by the defendant. These additional issues, the trial court seemingly regarded as wanting in substance, according to his joint letter to counsel to which we have previously referred. Since, however, both parties have devoted some parts of their argument to these other issues, we shall briefly discuss them. The first of these additional claims dealt with the weight and hours-of-labor qualifications for certain jobs in defendant’s plant. These qualifications are invalid under the Act, according to the plaintiff's contention. 17 Some days later the trial judge wrote that there “is probably evidence which would suggest a change in past or in existing prac- tices about posiing or not posting notices of vacancies and available promotions.” . e e. 11a The defendant does not seriously argue otherwise. Any layoffs suffered by the plaintiff because of the unavail- ability of certain jobs for bidding by her occurred in the pre-Act period. These restrictions, however, had no ad- verse effect on the plaintiff and her seniority rights. Continuously from the effective date of the Act until her layoff in January, 1970, she was employed, suffering layoffs and earning an uninterrupted “company service” record for such period in the computation of her seniority Following the enactment of Title VII and in anticipation of its effective date, the defendant, according to the record, sought to amend its employment rules to conform. There was uncertainty at the time even on the part of the EEOC itself whether Title VII overrode state weight and hours-of-labor statutes regulating the employment of females. There was a general feeling, shared at least tentatively by the EEOC, that Title VII did not invalidate such laws. The weight and hours-of-labor regulations adopted by the defendant and inaugurated, it was asserted, represented the de- fendant’s attempt to satisfy the requirements of both the federal and state law. There was some inconsistency, however, because the defendaut operated plants in both Ohio and North Carolina; and it sought, according to its contention, to develop regulations which would comply with the laws of either state and thus to have uni- form employment rules in all plants. These rules so adopted were thought to comply with the formal guidelines or regulations issued in 1965 by the EEOC itself, which specifically provided that “re- strictions on lifting weights will not be deemed in conflict with Title VII except where the limit is set at an unreasonably low level which could not endanger women; and that hours-of-labor statutes would be considered ordinarily “as a basis for application of the bona fide occupational qualification exception.” 29 C. F. R. § 1604.1(c). In late 1968, however, the EEOC reversed its position on these two points and it was because of this change in the position of EEOC and the decision in Bowe v. Colgate-Palmolive Company (7th Cir. 1969) 416 F. 2d 711, that the defendant claims it abandoned in 1969 its employment rules on weight and hours-of-work require- ments for female employees. The changes in the regulations of the EEOC between 1965 and late 1968 are fully discussed in Note, 61 Cornell L.Rev. 460 at 465-7 (1976) ; Williams v. General Foods Corp. (7th Cir. 1974) 492 F. 2d 399, 402-3; Kober v. Westinghouse Elec- trie Corporation (3d Cir. 1973) 480 F. 2d 240, 243-5; Vogel v. Trans World Airlines (M. D. Mo. 1970) 346 F. Supp. 805, 809-11. See, also, § 2000e-12, 42 U.S.C. 12a and fringe benefit rights.“ Moreover, all designations of any such jobs as male jobs and all weight qualifications therefor were discontinued entirely early in 1969, after the opinion in Bowe v. Colgate-Palmolive Company (7th Cir. 1969) 416 F. 2d 711, and the change in the regula- tions by the EEOC and before plaintiff’s layoff in Jan- uary, 1970. Nor is there the slightest suggestion in the record or reason to believe that there is any threat that such qualifications, abandoned by the defendant in 1969, will be reinstituted. In fact, as the evidence clearly reveals, the defendant has been attentive to any changes in either the regulations or the construction of the law and alert to conform its practices to such changes. The plaintiff made some point, too, that she had not been considered for promotion to a supervisory position. She offered no real proof of her qualification for such promotion nor did she suggest in her testimony that she had ever applied for promotion. Such evidence as there is in the record on this point is represented by the ex- planation offered by the defendant why the plaintiff had not been given consideration for a supervisory posi- tion. This explanation consisted of undisputed testimony, concurred in by the plaintiff herself, that the plaintiff was unable to work amicably with her fellow employees and had been embroiled in difficulties with them. This was a perfectly valid reason for not considering plaintiff for a supervisory position. There is nothing in the record that would justify an inference that the reason was pretensive or pretextual; nor did the trial court find that it was pretensive. The defendant accordingly met any % There is another reason for finding this claim without merit. At the time of her layoff in January, 1970, the plaintiff was offered a substantial number of “heavy” jobs. She refused and refused by her own explanation because she doubted her ability to perform these jobs. It would thus appear unlikely that, had a “heavy” job been open to her between 1965 and 1970, the plaintiff would have accepted one. ——— pda Nila on 6 ate ol noe — blew CRSA Bis 13a burden that may have rested on it for sustaining its failure to promote the plaintiff. Cf., McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 803-4. Nor did the plaintiff apparently consider that she had been treated unfairly or discriminately in this particular, for she did not in any one of her five charges assign this as a com- plaint. It is highly questionable under these circum- stances that this issue was properly before the Court.” We have recently held that a suit under Title VII “may encompass only the ‘discrimination stated in the charge itself or developed in the course of a reasonable investiga- tion of that charge.“ King v. Seaboard Coast Line Rail- road Company (4th Cir. 1976) —— F. 2d ——, slip opinion p. 3 (decided April 29, 1976). The final peripheral issue concerns a test required by the defendant of employees seeking certain specialized work in three departments at defendants’ plant. This test was inaugurated in 1970. Until 1970 all persons em- ployed in these departments were required to take two other tests. These earlier tests, however, were discon- tinued in 1970 in favor of a new simplified mechanical aptitude test. This new test, which was required of all employees seeking to transfer to these departments after 1970, did not have any “discriminatory impact” on fe- male applicants; on the contrary, the testimony shows 20 In Oatis v. Crown Zellerbach Corp. (5th Cir. 1968) 398 F. 2d 496, 499, the Court said: “We thus hold that a class action is permissible under Title VII of the Civil Rights Act of 1964 within the following limits. First, the class action must, as it does here, meet the require- ments of Rule 23(a) and (b) (2). Next, the issues that may be raised by plaintiff in such a class action are those issues that he has standing to raise (i.e., the issues as to which he is aggrieved, see § 706(a), supra), and that he has raised in the charge filed with the EEOC pursuant to § 706(a).” See, also, Equal Employment Opportunity Commission v. General Electric (4th Cir. 1976) — F. 2d ——. l4a that percentage-wise more females passed the test than males. And at the time of trial the employees in at leas: one of these departments had more female em- ployees than male employees. In that situation, there was no obligation on the defendant to validate this new test. The burden of establishing the job-relatedness of a test arises “only after the complaining party or class has made out a prima facie case of discrimination, i.e., has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants.” Albemarle Paper Co. v. Moody (1975) 422 U.S. 405, 425. The trial court, however, found the new test improper be- cause the then existing employees in those departments had not been required, as a condition of retaining their jobs, to take the new, less exacting tests. If the exist- ing employees had been given their jobs without any 21 This was recognized by the trial court, which, in a colloquy with plaintiff’s counsel, stated that “unless the test as administered shows that women flunk more than men, there is no question pre- sented about the testing.” See, also Cooper and Sobol, Seniority and Testing Under Fair Employment Laws, 82 Harv. L. Rev. 1598, 1659. The authors add (p. 1660) : “Psychologists have criticized this test by claiming that it will not predict job performance, but there is evidence that the criticism may be inaccurate. More important, this criticism is not relevant to the equal employment issue. So long as the test does not prefer whites over blacks or any other protected minority group, it does not violate equal employment require- ments. If an employer hired every fifth applicant on a random basis, his selection procedure would be arbitrary and might not relate well to job performance, but it would not deny equal employment opportunity * * *.” This is so because the Act itself very specifically declares that a party is only entitled to relief if his discharge or layoff or loss of any right was because of “discrimination on account of race, color, religion, sex, or national origin * * *.” § 2000e-5(9), 42 U.S.C. Cf., Washington v. Davis (1976) —— U.S. ——, 44 LW 4789, for comparison of rule under due process and under Title VII. ee 15 testing or after taking less stringent“ tests, we would find this argument appealing, but all these employees had secured their positions after successfully completing two tests, considerably more exacting and broader in scope than the test presently required (i.e., the simplified mechanical test). It would obviously be unfair to impose on these employees, who had qualified for their jobs by taking both the Modified Alpha and Bennett Mechanical Tests, to condition their continued right to their jobs on their taking the new simplified mechanical test. Nor do the guidelines established by the EEOC require such unfair treatment. These guidelines expressly pro- vide that only when older employees have qualified] under less stringent selection standards [as] previously enforced “will the validity of the new tests depend on whether these older employees have qualified under the new tests. 29 C.F.R. § 1607.11. Such guidelines, while not binding on the courts, are to be given great def- erence.” We find them reasonable and fair and consonant with the purposes of Title VII, et seg. Since obviously the new test was “less stringent” than the earlier tests, under which these employees qualified for their jobs, there was no basis in the record for holding that unless such employees again qualified by taking the new test, no subsequent applicant for employment on such jobs could be required to take the new test, which admittedly had no discriminatory impact. * We come now to the plaintiff’s individual claim that the layoff in 1970 resulted from an improper deduction in her “company service” record of time lost due to alleged sex-discriminatory layoffs in the pre-Act period of her employment. Under the defendant’s seniority sys- tem, “company service” is an employee’s period of em- ployment, less layoffs. Such “company service” fixes the 22 Griggs v. Duke Power Co. (1971) 401 U.S. 424, 433-4. 16a priority rights of employees in bidding for other job vacancies in cases of layoff and in qualifying for cer- tain fringe benefits. It is obviously of great value to an employee; it has been well characterized as an em- ployee’s “personal investment in a job.“ Plaintiff's claim is that the defendant, by following a discrimina- tory practice of limiting female employment to certain job classifications, narrowed the opportunity of its female employees to bid on an equal basis with male employees for job vacancies in the plant, thereby causing a female employee to suffer generally more layoff time than a comparably qualified male employee. To illustrate the effect of such practice in her case, she points out that she has suffered five layoffs between 1952 and July 2, 1965, whereas males employed subsequent to the plain- tiff suffered no layoff time prior to January, 1970. These layoffs of the plaintiff changed the beginning date of her “company service” from 1952 to 1955, and it was this latter date she was required to use in bidding for job vacancies. The defendant does not dispute the method of calcu- lating “company service” as claimed by the plaintiff. It does suggest that all of plaintiff’s layoffs prior to Janu- ary, 1970, took place before July 2, 1965, the effective date of Title VII and that such layoffs, whether discrimi- natory or not, were not illegal at the time. It does not follow, however, that, though they occurred before the effective date of the Act, these layoffs may not result in a violation of the Act if they have an adverse effect on the employee’s seniority rights after the Act became ef- fective. The bellwether authority in this area is the oft- 23 For a pertinent statement of the importance of such standing, see Franks v. Bowman Transportation Co., Inc., supra, at pp. 16-19, slip opinion. 24 Note, Remedies: Retroactive Seniority—The Courts as Per- sonnel Director, 29 Okla. L. Rev. 215 (1976). 17a cited case of Quarles v. Philip Morris, Incorporated (E. D. Va. 1968) 279 F. Supp. 505, 517-8. That case held (a) that only a bona fide seniority system was protected under the Act, (b) that “one characteristic of a bona fide seniority system must be lack of discrimination,” and (c) that a seniority system, however neutral facially, is not a bona fide seniority system if it “has its genesis in racial [or sex] discrimination,” whether pre-Act or post- Act.“ Accordingly, Quarles established that any seniority system which carried over into the post-Act period the effects of a pre-Act discriminatory job assignment policy disadvantaging a black [or a female] in seniority rights was not a bona fide seniority system under the Act and had to be adjusted to remedy that disadvantage. This decision has been consistently followed by this Circuit * and its ruling has been adopted in repeated decisions of other Circuits since“ and has been approved by the legal 20 [bid., 517. 26 United States v. Chesapeake and Ohio Railway Company (4th Cir. 1972) 471 F. 2d 582, 587-8, cert. denied 411 U.S. 939 (1973); Brown v. Gaston County Dyeing Machine Company (4th Cir. 1972) 457 F. 2d 1377, 1382, cert. denied 409 U.S. 982 (1972): Robinson v. Lorillard Corporation (4th Cir. 1971) 444 F. 2d 791, 795, cert. dismissed 404 U.S. 1006, 1007; United States v. Dillon ‘Supply Company (4th Cir. 1970) 420 F. 2d 800, 803-4; United States v. Continental Can Company (E.D.Va. 1970) 319 F. Supp. 161, 166. 27 United States v. T.1.M.E.-D.C. (5th Cir. 1975) 517 F. 2d 299, 315, U.S. Appeal Pending; United States v. Navajo Freight Lines (9th Cir. 1975) 525 F. 2d 1318, 1324-25; Pettway v. American Cast Iron Pipe Company (5th Cir. 1974) 494 F. 2d 211, 224; United States v. N.L. Industries, Inc. (8th Cir. 1973) 479 F. 2d 354, 360-1, where many of the authorities are cited; United States v. Inter- national Bro. of Elec. Wkrs., L.No. 38 (6th Cir. 1970) 428 F. 2d 144, 150, cert. denied 400 U.S. 943 (1970); Jones v. Lee Way Motor Freight, Inc. (10th Cir. 1970) 431 F. 2d 245, 248, cert. denied 401 U.S. 954 (1971); United States v. Bethlehem Steel Corporation (2d Cir. 1971) 446 F. 2d 652, 660-1; Schaefer v. lannian (E.D.Mich. 1975) 394 F. Supp. 1136, 1142. Cf., however, Jersey Cen. Pow. E LI. Co. v. Local Un. $27, etc. of I. B. F. W. (3d Cir. 1975) 508 F. 2d 18a writers.“ It is conceded by the defendant that in the pre-Act period, the jobs in certain departments were re- served exclusively for male employees and that in periods of layoff only qualified male employees could bid on the jobs in these departments. Such a system obviously gave the male employee a preferred opportunity to protect his “company service” over the female employee. This more extensive opportunity in bidding for vacancies dur- ing layoffs on the part of male employees was a discrimi- nation against female employees, and because that dis- crimination was carried over in the operation of the post-Act seniority system it tainted such post-Act system. To such extent as the plaintiff was prejudiced thereby in the computation of her “company service” or seniority rights, she is entitled to relief. This the District Court correctly concluded. The plaintiff is accordingly entitled to a judgment requiring an adjustment in her “company service” status sufficient to remove the adverse effect of any pre-Act discriminatory layoffs. The District Court left for fur- ther determination the extent of such adjustment and the plaintiff’s right, if any, to back pay.” The District 687, 706-7, U.S. Appeal Pending; and Waters v Wisconsin Steel Works of Int. Harvester Co. (7th Cir. 1974) 502 F. 2d 1309, 1319- 20, U.S. Appeal Pending. 28 See, Cooper & Sobol, supra, at pp. 1617, et seq.; and Sheeran, Title VII and Layoffs Under “Last Hired, First Fired“ Seniority Rule, 26 Case West. Res. L. Rev. 409, 449, et seq. (1976). 20 In her representation to the District Court, as set forth in the District Court’s order of January 24, 1974, to which reference has heretofore been made, the plaintiff disclaimed any intention of claiming back pay. In making such concession she may have been considering whether such a claim had any reasonable basis in the record. After all, at the time of her layoff in 1970 and again in 1973, the plaintiff had been offered a large number of jobs in the plant, some of them at least being jobs theretofore classified as “heavy” jobs. She refused all such proffers. She would justify her refusal of those which might be classified as “heavy” on the ground that —— 2 19a Court, however, did not confine its ruling to plaintiff’s individual claims, but proceeded as if it were dealing with a class action, despite the representations in the record and the limitation in discovery imposed on the defendant by the ruling that the action was purely an individual suit, to grant relief which required a general re-arrangement of the defendant’s entire seniority sys- tem, as applied to both male and female employees, in- cluding new rules for determining vacancies and super- visory promotions, even though it is well settled that a finding of either racial or sex discrimination in the es- tablishment or operation of a seniority system, even in a class action, requires that such seniority system “be modified only as it applies to those employees who were previously subjected to discrimination, only to the extent necessary to remove the elements perpetuating that dis- crimination, and only for a limited period of time. Such she was told that, if she chose one of such jobs and was unable to do the job, she would be “fired.” We have been pointed to no evi- dence where she justified her refusal of the offer of those jobs which were not classified as “heavy.” So far as the rule with refer- ence to “heavy” jobs of which she complained, it did not appear to be disputed that the rule, both for male and female employees, was that an employee who took such a job and failed to perform satisfactorily would be fired. In imposing such a standard on the plaintiff in connection with her right to bid for so-called “heavy” jobs, the defendant was imposing no different standard than that it imposed on male employees. See, Williams v. American Saint Gobain Corp., Okmulgee, Okl. (10th Cir. 1971) 447 F. 2d 561, 568. Assuming this to be true, there would seem to be no impropriety on grounds of sex discrimination in the requirement, the exaction of which the plaintiff claims as an excuse for refusing these job offers. Whether such offers of other jobs, some “heavy” and some not, as well as her formal representation that she did not seek back pay, operated as a bar to a right to back pay we leave, as we have said, to further proceedings in the District Court. See § 2000e-5(g), 42 U.S.C.: “Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allow- able. * * *” See, also, Williams v. American Saint Gobain Corp. at pp. 567-8, and United States v. Bethlehem Steel Corporation (2d Cir. 1971) 446 F. 2d 652, 665-6. a system should be allowed to apply unabated to all em- ployees, black and white, against whom the employer did not discriminate.” Stevenson v. International Paper Co., Mobile, Alabama (5th Cir. 1975) 516 F. 2d 103, 118.“ The additional relief provided in the District Court’s order, going beyond that to which plaintiff was properly entitled, was inappropriate and the order of the District Court should be modified to eliminate such provisions and terms. What we have said would apply to the inappro- priate injunction against weight and hours-of-work rules of the defendant, such rules having been abandoned in 1969 and there being no reasonable basis to assume that they will ever be reinstituted. The judgment below should accordingly be modified to include relief only in plaintiff’s seniority rights as rep- resented by the calculation of her “company service” records to such extent as she may show she was preju- diced as a result of defendant’s policy of reserving cer- tain jobs for male employees in the pre-Act period, and all other relief granted in the order of the District Court herein, should be vacated, other than a recognition of the right of the plaintiff to costs and an award of attor- neys’ fees. The cause is accordingly remanded for the entry of a decree in accordance with the foregoing and for such other proceedings as may be consistent here- with. REMANDED FOR ENTRY OF DECREE IN ACCORDANCE WITH FOREGOING. 8° This conclusion is supported by the recent case of Franks v. Bowman Transportation Compery, Inc., supra, 44 LW 4356, 4363-5, where the Supreme Court con.irued Title VII to allow seniority relief, in a class action, only for identifiable victims of the illegal hiring discrimination. 2la JUDGMENT OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT NANCE * * V. o UNION CARBIDE CORP. * Appeal From the United States Distriet Court For the Western Distriet of North Carolina Before BUTZNER, RUSSELL and WIDENER, Circuit Judges (Filed July 28, 1976) APPEAL FROM the United States District Court for the Western District of North Carolina. THIS CAUSE came on to be heard on the record from the United States District Court for the Western Dis- trict of North Carolina, and was argued by counsel. ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court that the cause is remanded to the United States District Court for the Western District of North Carolina, at Charlotte, for the entry of a decree in accordance with the foregoing and for such other proceedings as may be consistent here- with. 22a OPINION AND ORDER OF THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT DENYING PETITION FOR REHEARING NANCE v. UNION CARBIDE CORP. (Decided September 23, 1976) RUSSELL, CIRCUIT JUDGE: Upon consideration of the petition for rehearing by the appellee, it is ORDERED, That the first six lines, and the words “After all” on line 7, of footnote 29, on page 30 of the Slip Opinion be deleted; and that the following “as well as her formal representation that she did not seek back pay,” appearing in the first and second lines of the same footnote 29 on page 31 of the Slip Opinion, be deleted. The original opinion is reaffirmed in all other respects, and The suggestion for en banc consideration fails, no judge having asked that the court be polled. ...en N War ee ee q SN Por 23a FINDINGS OF FACT AND CONCLUSIONS OF LAW OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION NANCE V. UNION CARBIDE CORP. (Filed April 28, 1975) McMILLAN, District Judge. Winifred S. Nance, the plaintiff, a white female, filed this suit on August 18, 1972, against Union Carbide Corporation of Charlotte, North Carolina, alleging that she was subjected to discrimination because of her sex in the matter of employment, classification, promotion and other incidents of employment. The complaint al- leged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 5 2000e et seq. This matter came on for a hearing in March, 1974 and December, 1974 and the Court, after consideration of the evidence, enters Findings of Fact and Conclusions of Law as follows: FINDINGS OF FACT 1. Plaintiff, Winifred S. Nance, is a female citizen of the United States and the State of North Carolina, residing in Charlotte, Mecklenburg County, North Caro- 24a lina. The plaintiff has been employed by the defendant at its Charlotte piant since July 8, 1952. 2. The defendant, Union Carbide Corporation (de- fendant” or Company“), is a corporation organized under the laws of the State of New York and does busi- ness in all fifty states, including the State of North Carolina. The defendant maintains its corporate head- quarters in New York City, New York. 3. The defendant operates a battery manufacturing facility in Charlotte, Mecklenburg County, North Caro- lina (“Charlotte plant“). 4. The majority of the work performed ( 80-90 % ) at the Charlotte plant is pursuant to contracts with var- ious federal agencies and the majority of these contracts are with the Department of the Army. 5. The hourly paid work force at the Charlotte plant is organized into approximately sixteen (16) depart- ments. The departments and a general description of the work performed in each are as follows: By virtue of the fact that the majority of the work performed by the defendant at its Charlotte plant is pursuant to contracts with the federal government, the defendant is subject to Execu- tive Order 11246 and the Regulations implementing this Order. See Local 189, United Papermakers and Paperworkers v. United States, 416 F.2d 980, 984, n.3 (5th Cir. 1969), cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1969). Executive Order 11246 is a federal regulation that requires all employers subject to this Order not to discriminate against its employees or applicants for employ- ment because of race, color, religion, sex or national origin. Execu- tive Order 11246 became effective on October 24, 1965. 30 F. R. 12319; 3 C. F. R. 339. This Order was amended by Executive Order 11375, signed on October 13, 1967, which became effective in part on November 12, 1967, and in part on October 14, 1968, by sub- stituting the word “religion” for “creed” as a prohibited basis of discrimination, and by adding sex as a prohibited type of dis- crimination. 32 F.R. 14303. nee EIEN i Mie A ink Th ROS eee 25a Department 107: Blends proper amounts of ingre- dient into mixes to be used in the manufacture of Magnesium and LeClanche cells. Department 161: Produces magnesium cells to be used in the manufacture of magnesium batteries. Department 208: Produces LeClanche flat cells by the non-refrigerated method and ties into appropriate stacks for subsequent use in scheduled LeClanche battery types. Department 209: Produces LeClanche flat cells by the refrigerated method and ties into appropriate stacks for subsequent use in scheduled LeClanche battery types. Department 210: Repairs cell stacks rejected at test- ing in the battery finishing department. Department 215: Produces LeClanche round cells to be used in the manufacture of LeClanche batteries. Department 225: Assembles all required parts into finished batteries. Department 235: Manufactures parts to be used in the production of cells and finished batteries. Department 300: Cleans-up plant and machinery. Department 304: Provides employee relations depart- ment duties, such as pick-up and delivery mail; picks-up machinery parts; operates the canteen and operates the cash register in the cafeteria. Department 311: Cooks, serves meals and cleans-up cafeteria. Department 327: Provides upkeep of the plant build- ing and services, installs, repairs, builds and maintains plant equipment. Department 342: Warehousing-shipping-receiving, and supplying parts for the manufacturing departments as requested. Department 354: Provides production line inspection of all operations. Department 355: Sets up and checks on all inspec- tion procedures within an assigned area. Department 440: Machine operator adjuster. 6. There are over 160 different job classifications in the 16 departments at the Charlotte plant. The over- whelming majority of these job classifications are un- skilled jobs. 7. The wage rate of each job is determined by the job class to which it is assigned. Unskilled jobs are designated as job classes 1 through 12 with job class 1 with the lowest rate and job class 12 with the highest rate. Skilled jobs are separately designated as job classes 1 through 7 and are some of the highest paying jobs at the Charlotte plant. 8. The majority of the female employees as of July 2, 1965, and August 8, 1972, were employed in unskilled job classes 1-7. All of the female employees in job class 9 were employed in departments 225 and 355; these de- partments have been two of the departments in which females have been employed. 9. Many of the jobs designated as “heavy” jobs do not, in fact, have a weight lifting (or exerted force factor) of 30 pounds or more. For example, the oiler’s position in department 327 has an average exerted force of 15 pounds 50% of the time during the course of an eight-hour working day; outside warehouse operator in department 342 has an average exerted force of 2 pounds 75% of the time and 30 pounds 5% of the time; round cell machine operator/adjuster in department 440 has an average exerted force of 18 pounds 33% of the time and a maximum force of only 70 pounds 1% of the time; and process repair in department 225 has an average exerted force of 5 pounds 25% of the time (or 10 pounds 10% of the time) and only 85 pounds 1% of the time. 27a 10. On July 2, 1965 (the effective date of Title VII), July 2, 1970, and August 18, 1972 (the date the com- plaint was filed in this Court) the staffing of the various departments by sex at the Charlotte plant was as follows: Department 7-2-65 7-2-70 8-18-72 M F M F M F 161 — — — — 4 7 107 6 — 1 — 3 — 208 23 49 8 19 6 17 209 18 37 11 29 6 17 210 — — — 3 1 5 215 — — — — — — 225 74 57 37 65 50 77 235 19 5 15 2 11 1 300 14 — 9 2 5 8 304 — — 1 — — 1 311 2 3 1 4 1 4 320 — — 2 — 2 — 327 36 — 39 — 44 — 342 10 — 10 — 12 — 354 — 38 — 31 — 29 355 17 2 12 3 11 7 440 9 — 7 — 7 — Totals 228 191 156 158 163 173 11. An analysis of the work force by sex as set forth in Finding No. 10 above shows the following: (a) As of July 2, 1965, there were 419 hourly paid employees at the Charlotte plant; of these 228 were males and 191 were females. Of the 191 females, 181 or ap- proximately 95% of the females were employed in only four (4) of the sixteen (16) departments (208, 209, 225 and 354). Only 115 or 50% of the males were employed in these same four departments. There were no males in department 354 and no females were employed in department 327 (skilled trades department). (b) As of July 2, 1970 (five years after the effective date of Title VII), there were 314 employees; of these 156 were males and 158 were females. Of the 158 fe- males 144 or approximately 91% were employed in only 28a four (4) of the sixteen (16) departments (208, 209, 225, 354) and 56 or approximately 36% of the males were employed in these same four departments. There were no males in department 354 and no females in depart- ment 327. ä (e) As of August 18, 1972 (date complaint filed), there were 336 employees, of these 163 were males and 173 were females. Of the 173 females, 140 or approxi- mately 181% were employed in only four (4) of the sixteen departments (208, 209, 225 and 354), whereas only 62 or 38% of the males were employed in these same four departments. There were no males in depart- ment 354 and no females in department 327. 12. An analysis of Plaintiff’s Exhibits 19(A) through 19 (J) (Labor Reports) shows that the overwhelming majority of the females were employed in only four (4) of the sixteen (16) departments (208, 209, 225 and 354) The percentages of females in these four (4) depart- ments ranged from about 96% as of June 1, 1965, to about 78% as of June 1, 1973. 13. The defendant does not maintain lines of progres- sion within the departments. Promotions, demotions, transfers, layoffs and recalls are governed by “company service credit” which is the seniority standard. 14. Company service, i. e., seniority, is the length of time an employee has been employed at the Charlotte plant from his or her most recent date of hire minus any and all times during which the employee has been on lay-off because of a reduction in the work force. For example, the plaintiff, originally employed on July 8, 1952, has a company service date of July 21, 1956 for job progression and lay-off purposes. Plaintiff’s seniority standing has been reduced by approximately four years because of five lay-offs she was forced to take before July 2, 1965, and the several times she has been laid off 29a peed July 2, 1965 (January 23, 1970 and April 18, 15. From 1956, when the Charlotte plant re-opened, until November 18, 1969—more than four years after the effective date of Title VII—the defendant maintained an open and declared policy and practice of segregating its work force based on sex. 16. The job assignment policy set forth in the 1959 employee handbook provided that: For the purpose of job placement, increases and reduction in force, the following related job groups have been established: (1) All female jobs and (2) all male jobs, except as may be included in other special groups as ma- chine shop, routine inspection, mail service em- ployees, female service employees, ete. J ob assignment procedures [i. e., promotions, demo- tions, lay-offs and recalls] shall be applied within each job group separately and action resulting there- from shall be limited to each such group. (Brackets supplied). 17. The job assignment policy set forth in the 1964 employee handbook provided that: For the purpose of job placement, increases and re- ductions in force, the following related job groups have been established: (1) — female jobs except those ineluded in Group #2. (2) Female employees—Control Laboratory. (3) All male jobs except those included in Groups #4, 5 and 6. (4) Machine Shop. (5) 440 Department. 30a (6) Male employees—Control Laboratory. Job Assignment procedures shall be applied within each such group separately and action resulting therefrom shall be limited to each such group. 18. The number of jobs limited to males was almost twice the number of jobs available to females.’ 19. Prior to June 23, 1965, separate male and female seniority rosters were maintained. Males were hired into, promoted to, and laid off from those jobs limited to males and were credited with company service (senior- ity)* only as to the male jobs. The same practice was followed with respect to the jobs limited to females. 20. Prior to July 2, 1965, female employees were al- lowed to perform male jobs if they so requested; however, if females took male jobs, they were not allowed to qual- ify for the jobs, nor could they keep the jobs to avoid lay-offs because of the defendant’s strict policy and prac- tice of laying off employees based on the sex-segregated seniority rosters. 21. One result (but an important result for purposes of this case) of the separate male and female job classifi- cations and seniority rosters set out in Findings 15, 16, 17, 18 and 19, supra, was that it was possible, and in- deed did occur, that female employees would be laid off on the basis of their company service as compared to other females, while male employees with less company service and/or even later dates of original hire were re- tained. Whenever this situation did occur, the junior 2 Defendant, in answers to interrogatories (Plaintiff's Exhibit 2(B)), identified approximately 97 jobs (including the trainees II and I and the A and B classifications in department 327) as exclusively reserved for males, and approximately 47 jobs as ex- clusively reserved for females. See Finding No. 14, supra. — — — - — 31a males who were retained gained company service and the females who were laid off lost company service. 22. The result set out in Findings No. 21 is exactly the situation of what has happened to the plaintiff. The plaintiff was initially hired at the Charlotte plant on July 8, 1952. Between July 8, 1952 and August 20, 1973 she was laid off seven (7) times, thereby losing company service of about four years. A summary of plaintiff’s lay-offs is as follows: Hired 7-2-52 Original company service (CS) date of 7-2-52 Laid off 12-13-53 Rehired ° 5-2-55 Adjusted CS 11-14-53 Laid off 7-15-55 Rehired 9-28-55 Adjusted CS 1-25-54 Laid off 2-24-61 Rehired 8-21-61 Adjusted CS 7-21-54 Laid off 9-28-62 Rehired 2-11-63 Adjusted CS 12-3-54 Laid off 4-3-64 Rehired 1-25-65 Adjusted CS 9-25-55 Laid off 1-23-70 Rehired 7-20-70 Adjusted CS 3-20-56 Laid off 4-18-73 Rehired 8-20-73 Adjusted CS 7-21-56 23. All of the lay-offs in which plaintiff was involved prior to 1965 were the result of the sex segregated policies *The opposite result could also occur, and did. But see Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969), reversing in part, 272 F.Supp. 332, 344-345 (N.D.Ind. 1967) where the dis- trict court found that the sex segregated seniority system there ae had a similar effect on males and females as in the in- 8 case. 5 Recall from lay-off is referred to as a “rehire”. 32a of the defendant; none of these lay-offs were the result of pregnancy leaves. 24. The following males have original hire dates sub- sequent to that of the plaintiff and none of them have been laid off at any time, ineluding the January, 1970, and the April, 1973 lay-offs in which plaintiff was in- volved. Each has as his company service date his date of original hire; thus each has a competitive advantage as to seniority standing for job progression and protec- tion from lay-offs superior to that of the plaintiff:“ Date of Most Company Name Recent Hire Service George Hall 2-6-56 2-6-56 Bonner David Twitty 1-11-56 1-11-56 Carroll J. Stokes 1-2-56 1-2-56 Willard Paige 11-28-55 11-28-55 Hallbrook McCraw 11-14-55 11-14-55 Craig Barbee 10-31-55 10-31-55 Marvin Sutton 10-31-55 10-31-55 Bobby Joe McCorkle 10-31-55 10-31-55 Howard Morris 10-26-55 10-26-55 25. The following table shows the average time lost from company service credit (“company seniority” as currently defined by the defendant) of males and fe- males within the same year of hire as of the week end- ing November 26, 1972: * Other male employees who were initially employed after the plaintiff and who have a superior competitive seniority standing are set forth in Laslie’s deposition (Plaintiff’s Exhibit 9(A)), and Plaintiff's Exhibit 36(B), which shows hire dates and company service dates of male and female employees. 33a Average Time Lost By Males and Females Between Year of Hire and Week Ending November 26, 1972.7 MALE FEMALE (Average) (Average) Year of Hire Months Days Months Days 1952 10 26 66 20 1953 14 4 (no hires shown) 1954 (no hires shown) (no hires shown) 1955 5 69 3 1956 1 26 85 17 1957 15 6 (no hires shown) 1958 13 10 122 14 1959 (no hires shown) (no hires shown) 1960 7 25 (no hires shown) 1961 11 20 50 1962 10 16 (no hires shown) 1963 10 18 (no hires shown) 1964 8 15 (no hires shown) 1965 9 20 24 3 1966 15 16 25 18 1967 18 12 25 1 1968 25 19 31 27 1969 27 13 (no hires shown) 1970 10 6 16 7 1971 8 7 10 29 The table is based on Plaintiff's Exhibit 3608). The table was prepared by the plaintiff as follows: First, the difference in months and days between hire date and company service date as of No- vember 26, 1972 was determined. This total was computed for each male hired in the same year and divided by that number. The same procedure was used for females. Each month was assumed to be 30 days with the exception of those employees who had a hire date or service date that falls on the 31st of the month. For example, entry No. 316, p. 12 of Plaintiff's Exhibit 36(B), Leazer—1578, male, hire date 12-31-58, continuous service date 12-31-58. Frac- tions of days equaling .5 and below were dropped and fractions of days exceeding 5 were added to the total; e.g., 20.42 days was entered as 20 days and 19.55 days was entered as 20 days. 34a 26. In June, 1965, just over a week before the effective day of Title VII (July 2, 1965), the defendant adopted a twenty-five (25) pounds weight limitation policy. This policy was announced to employees at he Charlotte plant on June 23, 1965, by the plant manager. The pertinent portion of that policy is as follows: Beginning July 2, 1965, in order to comply with the effective date of the new Civil Rights Act, we will consider men and women, based on Company Serv- ice, for any job opening for which they can meet the qualifications. Only in cases where State or Federal law place restrictions on use of females will a job be considered as a “Male job” only. Generally, for instance, most state laws prohibit the employment of females in plants on the following occupations or capacities: “freight handling, trucking, or the fre- quency or repeated lifting of weights over 25 pounds”. The State of North Carolina leaves the weight factor to the judgment of management. In order that our plants may have a consistent policy, we have adopted the 25 pound maximum weight limitation. North Carolina does have a law re- stricting all female employees to a maximum of a nine hour day in a manufacturing plant. We will, of course, have to comply with this and use this law in determining whether or not a job will be male or female. In addition, the duties of such job as jani- tor or matron may require limiting them to male and female employees. This makes it necessary to abolish our present prac- tice of having separate male and female employee seniority groups other than those jobs requiring specific skills, such as machine shop, 440 depart- ment, and Routine Process Inspector. In the future job placement procedures, as well as laying-off and rehiring employees, will be handled 35a on the basis of length of service* regardless of whether it is male or female, except in such in- stances where the job requires males only or females only. (Emphasis supplied). 27. The State of North Carolina does not have (and never did have at any time material to this case) a law imposing a weight limitation on jobs females could per- form, and the decision to adopt a weight lifting require- ment was based on federal court decisions from other jurisdictions. 28. The twenty-five pounds weight limitation policy adopted by the defendant in June, 1965, was a new policy and jobs as either male jobs or female jobs. Jobs requir- ing lifting or an exerted force“ of twenty-five pounds or less were considered female jobs and jobs requiring ex- erted force of twenty-five pounds or more were considered male jobs. See Finding 9, supra. 29. The defendant, at or about the same time that it adopted the weight lifting requirement, abandoned its sex segregated jobs and rosters and classified the jobs as “male” or “either”. The jobs classified as “either” were open to males and females whereas the jobs classi- fied as “male” were limited solely to males. All of the jobs previously reserved for females were opened to males; however, only a few jobs previously reserved for males were opened to females. 30. The restriction on jobs designated as “male jobs” instituted in June, 1965, remained in effect until No- Length of service” is the same thing as company service. See Finding No. 14, supra. *The terms “weight lifting” and “exerted force” may be used interchangeably herein, but both terms will have the same meaning whenever used. The term “exerted force” is the term used in the job analyses (Plaintiff's Exhibit 24(A)), whereas the term “exerted force (or lifting)” may be used in the job descriptions (Plaintiff's Exhibit 24(B) ). vember 18, 1969, and female employees were not con- sidered for these jobs and were not given the oppor- tunity to demonstrate their ability to perform these un- der any circumstances. 31. In addition to the weight restriction to carve out certain jobs for males, the defendant also relied on N.C.G.S. § 95-17 which limited the number of hours an employer could employ a female person to not more than forty-eight hours a week, or nine hours in any one day, or no more than six days in any period of seven con- secutive days. However, between July 2, 1965, and No- vember 18, 1969, when the defendant of its own accord eliminated the restriction on the number of hours a female could work in any one week, the work schedules established at the Charlotte plant were so arranged such that if females were allowed to qualify for male jobs, the defendant would not have been in violation of N.C.G.S. § 95-17. 32. As a result of the policies and practices set out in Findings 28 and 29, the plaintiff, between July 2, 1965, and November 18, 1969, was denied the oppor- tunity to qualify for certain jobs reserved for males be- cause of her sex on the basis of the defendant’s stereo- typed characterization of the sexes without regard to plaintiff’s individual preferences and ability. 33. On November 18, 1969, a notice was posted on the bulletin boards at the Charlotte plant announcing the adoption of a new policy. The pertinent portions of that November 18, 1969, notice are as follows: From a plant standpoint we will be guided by these new decisions, and put into effect the following changes immediately: 1. All restrictions regarding the nwmber of hours a woman can work in any one day or week are eliminated. 37a 2. — offering procedures will be handled as fol- ows: a. Jobs having weight lifting requirements of thirty pounds or less, which are referred to as “Light” jobs will be offered according to the present regular job placement procedures. (This represents no change). b. Jobs requiring lifting of over thirty pounds, or comparable exerted force, referred to as “heavy” jobs, will be offered to men in accord- ance with present procedure. However, any fe- male may request any “Heavy” job and will be considered, in line with her company service credit, for such opening. Naturally all qualifi- cations for and requirements of the job would have to be satisfactorily met. 3. In case of a reduction-in-force, a female em- ployee will not be forced into a “heavy” job, and may elect lay-off if that is the only job available. The practice of not forcing a female employee to take “heavy” jobs will also be followed on any re- duction within any department or related group. (Emphasis in the original). 34. The thirty-pound weight limitation adopted in No- vember, 1969, as was the twenty-five pound limitation adopted in June, 1965, was based on court decisions and was used to distinguish between male and female jobs.” 10 Several months before the November 1969 announcement, a memorandum from the defendant’s Rocky River, Ohio, Divisional Headquarters was sent to the plant manager at the Charlotte plant stating, inter alia: Subject: Weight Limitations—Female Employees Several months ago a study was made to determine the effect of allowing women to lift more than 25 pounds at our plants and warehouses. The study was precipitated by recent Federal Court decisions which ruled that the use of 30 and 35 pound weight limitations in establishing female jobs is considered to be reasonable and fair. These court cases were brought 38a 35. The notice of the policy change announced in No- vember, 1969, provided that female employees had to re- quest heavy jobs. The intendment of this notice was that if females did not specifically request “heavy” jobs, they would not be considered for the “heavy” jobs. Although Moffitt, the then Charlotte plant manager, testified that a decision was made at the corporate level that the part of the November, 1969 policy providing that females had to specifically request heavy jobs would not be enforced, he also testified that his corporate decision was never formally announced to the employees. 36. Male employees were automatically considered for heavy jobs as a result of the November, 1969 policy change; they did not have to specifically request these jobs. In addition, male employees were eligible for all jobs previously reserved for females as a result of the policy adopted by the defendant in June, 1965. Finding No. 29, supra. 87. The decision to institute a weight-lifting limita- tion for female jobs at the Charlotte plant was made at the defendant’s Divisional Headquarters in Rocky River, Ohio. The weight-lifting requirement was made appli- cable to the Charlotte plant because the defendant wanted the policy to be consistent at all of its plants. The de- fendant’s weight lifting limitation policy was based on the Ohio statute, R. C. § 4107.43, which prohibited the employment of females in jobs requiring frequent or repeated lifting in excess of 25 pounds. about by female employees who questioned a company’s right to set a maximum weight limit on the weight females could lift. In view of this development and the fact that questions had been asked by a few of our hourly female employees about this matter, we felt we should reconsider our long-standing position of limiting female employees to a 25 pound maximum. After considering all factors we feel we can increase the maximum lifting limitations to 30 pounds and be within what would be considered to be a fair standard. (Emphasis supplied). 39a 88. In 1972 the Ohio Supreme Court in Jones Metal Products Co. v. Walker, 29 Ohio St.2d 173, 281 N.E.2d 1 (1972) ruled that R.C. § 4107.43 was pre-empted by Title VII under the Supremacy Clause of the Constitu- tion and that it could not be enforced in Ohio for that reason. The United States District Court for the South- ern District of Ohio reached the same results on March 24, 1971 in Ridinger v. General Motors Corp., 325 F. Supp. 1089, 1093-1097, and the Sixth Circuit in General Electric Co. v. Hughes, 454 F.2d 730 (1972) affirmed the granting of an injunction against appropriate officials of Ohio in the enforcement of R.C. § 4107.43. 59. The policy announced in the November 18, 1969, notice remained in effect until shortly before the J anuary 19, 1973, lay-off. In January, 1973, the defendant no- tified the employees that beginning with the job moves associated with the January 19, 1973, lay-off, men would be offered the opportunity to accept lay-off rather than being forced to take a “heavy” job. 40. The defendant’s thirty-pound weight limitation policy has not been eliminated; it remains in full force and effect, notwithstanding the fact that the defendant in November, 1969, eliminated its policy of not allowing females to work on certain jobs because of defendant’s alleged reliance on N.C.G.S. § 95-17 ( Finding No. 31, supra), even though the Attorney General of North Carolina issued an opinion on November 25, 1969 (40 N. C. A. G. 363) stating that N.C.G.S. § 95-17 would be enforced, and notwithstanding Finding No. 38, supra. 41. The policies and procedures for filling vacancies at the Charlotte plant are as follows: * Both the procedures for filling job vacancies and for reduction in the work force (lay-offs) involve all kinds of modifications and priorities. Compare Plaintiff’s Exhibit 3(B), pp. 59-73; Plaintiff’s Exhibit 3(D), pp. 65-83, and Plaintiff’s Exhibit 3( E), pp. 68-80. Officials of the Company have recognized that these procedures are 4 40a (a) Employees within the particular department where the vacancy occurs are given first preference. This preference is, in effect, departmental seniority. (See Plaintiff’s Exhibit 17 which is an announce- ment made to employees on January 13, 1970, where- in it was stated. . . our regular job-filling pro- cedure has always recognized departmental rights”. ) (b) Second preference is given to employees in other departments who have, prior to the time the vacancy occurs, submitted a written request for a transfer to the department in which the vacancy occurs, and the desired shift must be indicated on the request for a departmental transfer.” (c) A request for departmental transfer is valid only until the employee has accepted, refused or is laid off. complicated. Shore, plant manager, so testified. (See also Plain- tiff’s Exhibit 9A. Laslie, p. 71, “It is complicated“; Plaintiff's Exhibit 11, Humphreys, p. 52). A more apt description is con- fusing”. The Court will not attempt to summarize all of the modi- fications and priorities for the reason that most of the more detailed modifications and priorities probably will be eliminated as a result of the modifications that will be ordered. The Company has abandoned its practice with respect to the use of “home department” in determining the priorities for filling vacancies. However, reference to “home department” was still used in setting forth the vacancy filling procedures in the 1973 Employee Handbook. Presumably, the Company will delete the reference to “home department” in the next printing of the handbook. 12 The defendant has a separate form which is used in connection with a job change within a particular department. Requests for departmental transfers are filed with the Head of Employee Rela- tions; requests for job changes within departments are filed with the departmental supervisor. If an employee does not specifically request a transfer to de- partment 327 (skilled trades) on the request for departmental transfer, generally the employee will not be considered for vacancies in 327. The 1973 Employee Handbook provided that an employee could not specify a specific job in the request for departmental transfer. 4la (d) Notices of vacancies are not posted and em- ployees must rely on word-of-mouth information about vacancies. (e) The only reason advanced by the defendant for not posting vacancies is that it has never been the policy of the company to do so. (f) A regular job vacancy is defined as a job open- ing which is expected to exceed or does exceed two (2) weeks duration and does not result from dis- ability, scheduled vacation, leave of absence or loan of the regular job holder. All other vacancies are temporary vacancies, including job openings of reg- ular employees who are absent due to disability not to exceed 26 weeks. (g) The significance of defining a temporary va- cancy so as to include job openings due to dis- ability is that employees who cover the jobs during the period of disability assume the company service standing of the disabled employees and assume all of the job rights of the absent employee. 42. The policy of the defendant to give first preference to employees in the department in which vacancies occur puts female employees at a competitive disadvantage vis-a-vis their male counterparts because the overwhelm- ing majority of the female employees are in only four of the sixteen departments. See Findings 10, 11 and 12, supra. 43. The lay-off procedures presently in effect at the Charlotte plant as of January 13, 1970, are set forth in Exhibit A attached hereto. 44. The lay-off procedures set forth in Exhibit A at- tached hereto are the same procedures used in the April 18, 1973 lay-off, except that males were given the op- tion of refusing to take “heavy” jobs. 42a 45. In addition to the lay-off procedure set forth in Exhibit A hereto, the following practices are applicable to lay-offs: (a) Lay-offs are based on company service. (b) None [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1018%3A1. Public record. Not legal advice.