Petition — Ligons v. Bechtel Power Corp.

urt, U.S,

FILED

- SEP 15 1980

Mic

8 0 -445 HAEL RODAK, JR, CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1980

CHARLES E. LIGONS, PETITIONER,

We

BECHTEL POWER CORPORATION, RESPONDENT

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Lloyd E. Humphreys

HUMPHREYS & ASSOCIATES

200 Second Avenue SW

Cedar Rapids, Iowa 52404

(319) 366-1523

COUNSEL FOR PETITIONER

STATEMENT OF ISSUES PRESENTED FOR REVIEW

I

THAT THE CIRCUIT COURT ERRED IN

FINDING THAT THE EMPLOYER CARRIED ITS

BURDEN OF PROOF IN REBUTTING THE

EMPLOYEE'S PRIMA FACIE CASE OF DISCRIMI-

NATION.

II

THAT THE CIRCUIT COURT ERRED IN NOT

FINDING THE "OVERLOAD TECHNIQUE OF LAYOFFS"

(i.e. CONTINUING TO HIRE NEW EMPLOYEES

WHILE TERMINATING EXISTING EMPLOYEES) BY

THE EMPLOYER WAS NOT DISCRIMINATORY.

III

THAT THE CIRCUIT COURT ERRED IN NOT

REQUIRING TEE EMPLOYER TO OFFER ANY EVI-

DENCE IN REBUTTING EMPLOYEE'S PRIMA FACIE

CASE OF DISCRIMINATORY TERMINATION OF

EMPLOYMENT AND HOW THE EMPLOYEE WAS SE-

LECTED FOR TERMINATION.

ii

IV

THAT THE CIRCUIT COURT ERRED IN INTER-

PRETING AND APPLYING THE BURDEN OF PROOF

THAT THE EMPLOYER MUST MEET IN ORDER TO

REBUT THE EMPLOYEE'S PRIMA FACIE CASE OF

RACIALLY DISCRIMINATED TERMINATION FROM

EMPLOYMENT.

V

THAT THE CIRCUIT COURT ERRED IN NOT

FINDING THAT THE EMPLOYEE REBUTTED THE

EMPLOYER'S PROFERRED JUSTIFICATIONS FOR

TERMINATION OF EMPLOYMENT BY SHOWING THEY

WERE PRETEXTUAL.

VI

THAT THERE IS A CONFLICT IN THE LOWER

FEDERAL COURTS REGARDING THE BURDEN OF

PROOF ON A DEFENDANT-EMPLOYER IN REBUTTING

A PRIMA FACIE CASE OF DISCRIMINATION THAT

SHOULD BE RESOLVED.

PARTIES TO THE PROCEEDING

The <aption of the case in this Court

contains the names of all parties to the

proceeding.

TABLE OF CONTENTS

STATEMENT OF ISSUES PRESENTED FOR REVIEW .. .ii

PARTIES TO THE PROCEEDING .....-eee. Shi

rn we SOUR 4% 5 6 6 oe ee ee 6 el 8 eke

OPINIONS DELIVERED BELOW. ...+cececee’ V

STATEMENT OF JURISDICTION ... sc sceeceerelT

STATUTE INVOLVED ..... ‘te ts ee oe ae ee

Pr Sr) We Oe, Ng es kk ee we et ba eR

nn Sek ke sel we ee ee

wamamees On Tee PACTO . 2 « ew 0 0 wo ot

ARGUMENT FOR GRANTING CERTIORARI ....21

APPENDIX

OPINION OF THE DISTRICT COURT ..... .Al

JUDGMENT SOUGHT TO BE REVIEWED .... Al4

42 U.S.C. Sections 2000e,

Subsections 2(a) (1-2) and 2(h) a+ 6 2 ee

PROOF OF SERVICE . e * . * 7. . « s ° . . -_ °

TABLE OF AUTHORITIES

CASES

Furnco Construction Corp. v. Waters et al,

SPe UB. SGT CEST. 6k cc kk 20

Johnson v. Olin Corp., 477 P. Supp. 642,

647 (D. D.C. 1979). °. 7 > . 7 ee

Jones v. Trailways Corp., 477 PF. Supp.

wae) SO? tO. OC. 2978) «6S 22

Kirby v. Colony Furniture Co., 613 F. 2d

696, n. 6 at 705 (8th Cir. 1980). .23

Sweeney v. Bd. of Trustees of Keene State

College, 604 F. 2d 106, 108 (lst

Cir. 1979) 7 . 7 ~ 7 - « . . ~ * * -23

Turner v. Texas Instruments, Inc., 555

F. 2d 1251, 1255 (5th Cir. 4977). .93

STATUTE

42 U.S.C. Section 2000e, Subsections 2 (a)

(1-2) and 2(h)

iv

OPINIONS DELIVERED BELOW

The opinion of the United States

District Court for the Northern District

of Iowa is reported at FP. Supp.

(N.D. Iowa, September 7, 1979).

The opinion of the United States Court

of Appeals for the Eighth Circuit is re-

ported at F. 2d (8th Cir.,

June 16, 1980).

STATEMENT OF JURISDICTION

Petitioner seeks review of the judg-

ment entered on June 16, 1980, by the

United States Court of Appeals for the

Eighth Circuit, which decree affirmed an

earlier judgment rendered by the United

States District Court for the Northern

District of Iowa and denied Petitioner's

Appeal from said judgment. Petitioner

relies upon the authority of this Court

to review by certiorari any judgment of a

United States Court of Appeals as set

forth in 28 U.S.C. Section 1254(1).

STATUTE INVOLVED

The following federal statute is

necessary to the resolution of the

questions presented: Title VII of the

Civil Rights Act of 1964, as amended,

42 U.S.C. Section 2000e, Subsections 2 (a)

(1-2) and 2(h).

vi

STATEMENT OF THE CASE

PROCEEDINGS BELOW

The employee, Charles Ligons, filed

a complaint with the EEOC on or about Feb-

ruary 14, 1973, claiming discrimination

amounting to unlawful employment practices

committed by the Bechtel Power Corporation,

in violation of 42 USC Section 2000(e)-2

and Section 1981. That the EEOC arranged

a conciliation agreement for the payment

by Bechtel Power Corporation to the employ-

ee in the amount of $7,002.00. That Bech-

tel Power Corporation withdrew from the

agreement prior to its written execution.

That a right to sue letter was issued to

the employee on or about April 5, 1977.

That a complaint was filed in the United

States District Court for the Northern

District of Iowa, Cedar Rapids Division,

on or about June 8, 1977. That on or

about July 11, 1977, the employer filed

an answer claiming a defense of business

necessity in that employees were "laid off

due to lack of work and the layoff was made

in a non-discriminatory fashion and based

upon ability to perform the work. Those

persons who were retained at the time

Plaintiff was laid off had exhibited a

greater degree of competence for the per-

forming of the work that remained to be

done." The EEOC investigation found

reasonable cause to believe the charge of

employment discrimination was true. That

trial was held on June 13, 1979. That a

Findings of Fact and Conclusions of Law

and Order were entered by the Court on

September 7, 1979. That the Conclusions

of Law found that "Plaintiff has made a

prima facie showing of racial discrimi-

nation as to his claim of discriminatory

application of testing procedures and dis-

criminatory layoffs." The decision fur-

ther found that Plaintiff's layoffs were

non-discriminatory and born of business

necessity and that the Plaintiff failed to

show by competent evidence that the Defen-

dants proferred justifications in rebuttal

are pretextual. No findings were made or

evidence offered as to the method of se-

lecting the employee for termination.

That the Eighth Circuit of Appeals

decision on June 16, 1980 stated, "The

employer as a Title VII Defendant need

not ‘prove absence of discriminatory

motive to escape liability; a prima facie

showing of disparate treatment shifts only

the burden of producing evidence to the

employer, not the burden of persuasion'..

Criteria for Ligons' initial layoff inclu-

ded qualifications, skill and productivi-

ty. Richard Alberts, a pipefitter and

foreman, testified that only fitters less

qualified, skilled and productive than

Ligons were retained at the same time

Ligons was first laid off. There is no

evidence that welders less qualified,

skilled or productive than Ligons with

respect to the particular aspect of work

then required at Palo were retained."

STATEMENT OF FACTS

THAT THE EMPLOYER LAID OFF MR. LIGONS

AT THE SAME TIME IT WAS HIRING PERSONS

FOR HIS JOB. (Tr. 44, 151, 152)

That the Plaintiff, Charles Ligons,

was the only black employee in his crew.

(Tr. 29) There was a work force of 3 to 4

thousand for the Defendant at the Duane

Arnold Eneray Center atomic plant construc-

tion site in Palo, Iowa, with no evidence

of other blacks employed. (Tr. 115, 154)

That all supervisory personnel were Cau-

casian. (Tr. 100, 103) That Mr. Ligons

had been a welder for 35 years. (Tr. 8)

That the employer's policy was that

the selection of employees who would be

laid off would be through the foreman,

general foreman and then approved by the

superintendent. That this was the general

custom and practice in the trade and that

in corisidering the same, the productivity,

skill and qualifications of the employees

who are being laid off in relation to the

people who are retained is considered.

Those employees having a higher producti-

vity, higher skill and qualifications

would be retained and the lesser ones would

be laid off. In a layoff in which the

ooupaae is still hiring, the layoff in-

volves less qualified people. In this

case, if Mr. Ligons was more qualified

than the people who were retained, he

should not have been laid off. (Admitted

by Lawrence Eugene Rosetta, superinten-

dent of the Defendant-employer for the

Palo job.) (Tr. 105-108)

The employer violated its own recom-

mended practice and that established by

the custom and practice in the trade by

laying Charles Ligons off without consul-

ting his foreman. (Tr. 110) His foreman

never recommended that he be laid off and .

had no complaints about the work of Charles

Ligens. (Te. 33, 110, 112)

No evidence was offered by the em-

ployer as to how Ligons was selected for

layoff or how others were retained. The

foreman felt he had the skill and quali-

fications to do the welding job, and there

were employees who were retained after

the layoff in which Charles Ligons was

terminated who were less qualified and not

as productive as Charles Ligons. (Tr.

111, 151) On the particular job at Palo,

the foremen were not consulted about lay-

offs and in particular, no one asked the

foremen about recommendations as to

whether or not Mr. Ligons should be laid

off. The foreman thought Mr. Ligons was a

yood employee and good welder and that his

layoff was unfair and his being black

played a part in the layoff. (tr. 112-115,

151-153)

THAT THE EMPLOYER CONTINUED TO HIRE

WHEN IT LAID CFF MR. LIGONS (Tr. 44,

151, 152)

Charles Ligons was hired by the em-

ployer on or about September 21, 1971.

He was residing in California prior to

that time and saw a posted call for employ-

ment of welders in Palo, Iowa, by the em-

ployer. He called the employer and was

advised if he passed an independent welding

test at a laboratory in California he wodie

be hired upon his arrival in Iowa. (Tr.

18) That Mr. Ligons took the examination

at the indevendent laboratory in California

and passed the same. (Tr. 18, 86, Plain-

tiff's Exhibit 1) That he worked for the

employer until he was laid off on or about

February 9, 1973. That he was rehired by

the Defendant at the Palo, Iowa site on or

about February 22, 1974. That Charles

Ligons is a black United States citizen.

(See stipulation in final pre-trial Order).

He was not a member of the union. (Tr. 54)

That Charles E. Ligons is 54 years

of age and an ordained minister of the

Baptist Church, with a fulltime job as a

welder for Bechtel Power Corporation in

Palo Verde, Arizona. That he has been a

welder by occupation holding fulltime

employment since on or about the year

1943. (Tr. 7, 8) He has been employed

by the following companies: United States

Navy Shipyards, Vancouver, Washington;

Ford Motor Company, Richmond, California;

Naval Shipyards, Hunters Point, California;

Pacific Coast Shipyards, San Francisco,

California; Bethlehem Steel Shipyards,

San Francisco, California; Rainmaker Com-

pany, Stockton, California; Butane Tank

Company, Los Angeles, California; South-

west Engineering Company, Los Angeles,

California; that the same involved all

types of welding experience. (Tr. 8-17)

His experience at Southwest Engineering

included supervision and inspection of

welding and welding repairs to high pres-

sure boilers used in nuclear reactors.

That the boilers manufactured at South-

west Engineering Company, upon which Mr.

Ligons did welding, supervision and inspec-

tion of all welding and repairs, were the

same type that were installed at the Duane

Arnold Energy Center, Palo, Iowa, the site

of the Bechtel Power Corporation employment

in question i> this lawsuit. (Tr. 15-17)

That all supervisory personnel at the

Defendant's employment site at Palo, Iowa

were Caucasian. (Tr. 100, 103, pre-trial

Stipulation) That in particular, Max Shows,

chief inspector, and Billy Seals, general

foreman, were Caucasians from Mississippi.

That there was no secret as to these two

Supervisors' bias and prejudice towards

members of the black race. (Tr. 47-49,

52, 155)

That after his employment, Mr. Ligons

did general welding work and on or about

February 9, 1973, he received a notice

that he was being laid off pursuant to a

general layoff. (Tr. 29) That although

Mr. Ligons was advised that he was being

laid off as a resullt of the reduction in

the work force, new men had been employed

in his own crew within the last three days

prior thereto and a standing call for wel-

ders and fitters was maintained at the

union hall and on the day of the layoff

additional employees were being hired.

(Tr. 44, 151-152) That there were at

least five new men hired in his crew alone

within a space of a few days prior to the

layoff. (Tr. 30-32) That one of the men

hired and retained was in fact a fitter

working as a helper with Charles Ligons.

(Tr. 31) That Mr. Ligons had the great-

est seniority in his crew and was one of

the oldest employees of Bechtel Power Cor-

poration in the welding field at the time

of his layoff. (Tr. 30, 114) That none

of the pipefitters in Mr. Ligons' crew

were laid off. (Tr. 30)

That it is generally recognized that

a welder is more qualified and skilled

than a pipefitter, and that a welder can

10

do a fitter's job whereas a fitter cannot

do a welder's job. (Tr. 31, 112, 116, 149)

That many pipefitters were retained at the

time of Mr. Ligons' layoff.

That the "overload technique" is some-

times used in construction projects to weed

out those people whose employment they

would like to terminate. (Tr. 44, 46, 108)

That the technique in general involves a

continuing hiring of employees for particu-

lar positions beyond the requirements of

the job so that they can then pick and

choose other employees for purposes of lay-

off. (Tr. 44, 151, 152)

That upon Mr. Ligons' being rehired

by Bechtel Power Corporation as a welder,

it was necessary for him to be retested in

all phases of welding as a result of not

being employed during the interim period

and his certifications having expired.

(Tr. 193-4) That certification by testing

of welders is generally effective for a

90-day period, unless the welder is

11

performing welds in his employment. If

the welder is employed performing welds,

it is not necessary for him to be retested

after the 90-day period. If he is not

performing such welds, a test certification

is necessar-. (Tr. 42, 43) The retest

was a direct result of his being laid off

previously and not performing welding for

Bechtel Corporation during the period of

layoff. (Tr. 50, 56) Moreover, Mr. Ligons

was employed as a welder during part of

the interim by a different employer. (Tr.

33)

That upon Mr. Ligons being rehired,

he was tested by J. D. Pierce, a Caucasian

from Mississippi. (Tr. 184) That Mr.

Pierce's qualifications involved on-the-job

training and he did not have any formal

technical, college or advanced school tech-

nique. (Tr. 194, 195) That Mr. Ligons

was tested several times by Mr. Pierce and

that Tester Pierce failed to pass him con-

cerning several tests that he had previously

12

taken and passed successfully. (Tr. 192,

193) That Mr. Ligons did pass a test as

a general welder not involving advanced

techniques. He was then placed in the

fabrication shop.

That pursuant to a general layoff

for a "reduction in work force", Mr. Ligons

was laid off on or about February 24,

1974. (Tr. 39) That at the time of his

layoff on the second occasion, he was

working in a 20-25 man crew and was advised

by the shop foreman that the layoffs were

to be made on a strict seniority basis.

That one half of the employees kept were

fitters. (Tr. 41) That six veople were

laid off at this time and Mr. Ligons had

been there the longest of those six. (Tr.

39, 47-49, 52, 155) However, those re-

tained in Mr. Ligons' crew had been there

for a longer period of time than he had.

(Tr. 40) Due to the necessity of addi-

tional testing, and the failure of Mr.

Pierce to pass Mr. Ligons on his tests,

13

his qualifications as far as test qualifi-

cations were concerned were not necessari-

ly inferior to any of those individuals

retained. (Tr. 50, 56, 64, 175) The em-

ployer was still hiring at the time of

this second layoff. (Tr. 44, 46)

That there was a general attitude of

dislike for members of the black race

amongst the employer's personnel. That

crass jokes and signs were posted regu-

larly with racial slurs. That supervi-

sory personnel told racial jokes even in

front of Mr. Ligons. (Tr. 47, 48, 49, 52)

That during Mr. Ligons' time as a

welder for the Bechtel Power Corporation

at the Duane Arnold Energy Center, Palo,

Iowa site, he did not at any time have any

welds that were performed while he was on

the job rejected. (Tr. 162) That the

foreman who worked with Mr. Ligons on a

daily basis considered him to be a good

employee, very productive, with the

14

necessary skills and qualifications to be

a good welder. Noneof his foremen at any

time recommended that he be laid off. In

fact, if they had been asked for their

recommendation, they would have recommended

the retention of Mr. Ligons as an employee.

(Te. 115, 116, 150, 151)

That it was not unusual for a welder

to be tested periodically and that many

welders occasionally failed to pass welding

tests. (Tr. 172, 195, Defendant's Ex. J,

H) The list of welders not passing tests

during the time that Mr. Ligons was employed

at the Duane Arnold Energy Center involved

over 300 men. (Ibid.) That in fact, at

the maximum peak of employment, only 300-

350 welders were employed by Bechtel Power

Corporation at the Palo site. (Tr. 171,

172, Defendant's Ex. J, H)

That the EEOG report, Plaintiff's

Exhibit 10, notes that the representatives

of the Defendant agreed to a conciliation

15

agreement and payment to the Plaintiff in

the amount of $7,002.00. However, before

the same could be completed in writing,

and executed by all parties, they withdrew

from the agreement. (See Plaintiff's Ex-

hibit 10, page 5.) That the EEOG report

finds that the Defendant failed and refused

to produce evidence to document its con-

tentions of a business necessity, and

failed to show any evidence of the Plain-

tiff's inability, lack of skill or pro-

ductivity. (See page 17 Plaintiff's Ex-

hibit 10). That no evidence was offered

by the employer as to Ligons' comparative

ability, skill and productivity as com-

pared to those employees retained. The

EEOG report notes that foreman Alberts

stated to the investigator that Charles

Ligons was a quality welder, a good

employee and that the did not know why

the Plaintiff was not promoted. (See

page 19, Plaintiff's Exhibit 10.)

16

In regard to the testing of the Plain-

tiff by the Defendant, the following took

place: Prior to his arrival in Palo, Iowa,

the Plaintiff was tested by Advance Test-

ing Laboratories, Inc., an independent

laboratory in Los Angeles, California,

where he passed a test for heliarc advanced

welding technique. (Tr. 18, 86, Plain-

tiff's Ex. 63) After being employed by

the Defendant on or about September 21,

1971, the Plaintiff took his first welding

test on or about October 4, 1971, and

failed a heliarc welding test which was

identical to that which had been previ-

ously given by the independent laboratory

which he had passed. (Tr. 13, 63) The

next test he was given at or about that

time he passed, allowing him to do plate

welding, and he was sent back into the

field. (Tr. 136) That on or about Jan-

uary 12, 1972, the Plaintiff took his

fourth test and passed an advanced heli-

arc welding test. (Tr. 73) That the next

17

test the Plaintiff took was on or about

August 21, 1972, in which he passed a

heliarc pipe welding examination. (Tr.

75) That of the five tests taken by the

Plaintiff during this time, and before

his first layoff, he failed one and

passed four.

That after the first layoff and the

Plaintiff's rehixing by the Defendant,

he was retested for his welding skills on

or about October 24, 1973, October 26,

1973, and again shortly thereafter. He

failed the heliarc pipe welding test he

had previously passed on October 24 and

October 26, but did pass a stick welding

test for plate welding. (Tr. 148)

That all welders belong to pipefitters

unions, as do fitters. (Tr. 148, 149)

That it is generally recognized that a

welder can perform a pipefitter's job

whereas a pipefitter cannot necessarily

perform a welder's job; however, they all

a

18

belong to the same union. (Tr. 148, 149)

‘The union card that both carry is identi-

cally the same.

It was not unusual for a welder to

fail a test; a number of welders failed

welding tests. That at the peak time of

employment for the Defendant approximately

350 welders were employed. That the evi-

dence shows most of them failed welding

tests at times. (Tr. 171, 172, 173, Defen-

dant's Exhibit J + 1)

The Plaintiff is presently employed

as a welder by the Defendant in Arizona,

and his qualifications as a welder there

are not questioned. (Tr. 178)

That the Defendant-employer merely

stated its layoffs were due to business

necessity but offered no explanation as

to why it continued to hire and no reasons

as to why Ligons was selected for termi-

mation. The Circuit Court construed the

employer's evidence that a layoff of 58

19

other employees at the same time as Ligons

as sufficient explanation for his termina-

tion and did not deal with the question of

business necessity as to the particular

selection of Ligons.

The only evidence offered as to skill,

qualifications and production, the admitted

criteria for termination of an employee,

was that offered by the Plaintiff-employee.

That no rebuttal of the employee's prima

facie case of discrimination as to him

individually was offered by the employer.

That the trial court's finding of a

"McDonnell Douglas" prima facie showing of

discrimination as interpreted by Furnco

Construction Corp. v. Waterset al, 438 U.S.

567 (1979), would require an explanation

of the precise act of discrimination (i.e.

the personal selection of the employee for

termination).

That there is a conflict in the deci-

sions in the lower federal courts as to

20

the burden of proof of an employer under

the circumstances of this case that re-

quires resolution.

See, e.g., "Argument for Granting

Certiorari", infra.

ARGUMENT FOR GRANTING CERTIORARI

It is respectfully submitted that the

issues herein revolve around the question

of the burden of proof of an employer

after an employee has established a prima

facie case of discrimination. There is

doubt as to the precise legal standard to

be applied. Further, in this case there

is the additional question of precisely

what is the point of inquiry. In our case

the Court concentrated on the business

necessity of a layoff, rather than the

reason that the individual employee was

selected for that layoff. There is not

one scintilla of evidence to justify

selecting Ligons as an employee to be

21

included in the layoff. All evidence is

to the contrary - that he should have

been retained, based on the employer's

own standards. Further, the employer's

"overload technique" of laying off

employees while they continued to hire

employees to fill the same positions

should in and of itself be held to be

discriminatory.

The lower federal courts are in

disarray in their interpretations of the

applicable standards by which a defendant

must rebut a prima facie showing of dis-

crimination. See, e.g., Johnson v. Olin

Corp., 484 F. Supp. 577, 581 (S.D. Texas

1980) (to."articulate" a legitimate busi-

ness purpose means to "prove" by a prepon-

derance of the evidence); Jones Vv. Trail-

Ways Corp., 477 F. Supp. 642, 647 (D. D.C.

1979) (once discrimination has been found,

defendant can prevail only by clear and

convincing proof that same action would

22

have been taken even absent discriminatory

motive); Kirby v. Colony Furniture Co.,

613 F. 2d 696, n. 6 at 705 (8th Cir. 1980)

(proper standard for proving "business

necessity" is compelling need for challenged

practice and no alternative practice avai-

lable); Sweeney v. Board of Trustees of

Keene College, 604 F. 2d 106, 108 (lst Cir.

1979) (where defendant articulars a facial-

ly valid business practice, plaintiff may

prove by a preponderance of the evidence

that stated practice is pretext); Turner v.

Texas Instruments, Inc., 555 F. 2d 1251,

1255 (after prima facie showing is made,

defendant must prove legitimate business

purpose by preponderance of evidence).

23

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION

CHARLES E. LIGONS, No. C 77-41

Plaintiff FINDINGS OF

vs. FACT, CONCLU-

BECHTEL POWER CORPORATION, SIONS OF LAW

ee ee ee ee ee ee ee ee

Defendant AND ORDER

This employment discrimination case

was tried to the Court on June 13, 1979.

All proposed findings and conclusions

having been received, the Court now makes

the following findings of fact, conclu-

sions of law and order granting judgment

for Defendant.

In this action brought pursuant to

Title VII of the Civil Rights Act of 1964 \

as amended, 42 USC Section 2000e et. seq.,!

lolaintift's complaint also asserted claims

pursuant to 42 USC Section 1981, 1985 and

1986, which were dismissed by previous order

of court. See Order, Ligons v. Bechtel Power

Corp., No. C 77-41 (N. D. Iowa, December 20,

1977).

Defendant denies the charge of discrimina-

tion and asserts affirmatively that its

testing and layoffs of Plaintiff were pur-

suant to legitimate non-discriminatory

business practices and necessities.

At the outset, the Court notes that

the issues raised in the case as brought

by Plaintiff are rather limited. For ex-

ample, Plaintiff does not challenge the

validity of Defendant's testing procedures;

and he does not claim, nor has he attempted

to show, that Defendant's testing and lay-

off practices had a statistically disparate

effect on blacks as a racial group. His

claim hinges specifically on his limited

contention that these employment practices

were racially discriminatory as applied to

him individually. Compare, e.g., E.E.0.C.

Guideline, 29 C.F.R. 1607.11 (1978). Thus,

as sO presented, the case involves the fol-

lowing issues: (1) was Plaintiff denied

A2

Opportunities to upgrade his welding quali-

fications because of his race; (2) were

Defendant's testing procedures for up-

grading welder's qualifications racially

discriminatory as applied to Plaintiff

individually; and (3) were Defendant's

layoff procedures racially discriminatory

as applied to Plaintiff individually?

It is with this view of the issues

raised that the Court makes its decision.

FINDINGS OF FACT

l. Plaintiff is a black citizen of

the United States, and at all times mate-

rial was Defendant's employee, working as

a welder at Defendant's Duane Arnold

Energy Center construction site in Palo,

Iowa (Palo project).

2. Defendant is a corporation engaged

in the business of constructing nuclear

power plants, which is in an industry affec-

ting interstate commerce. At all times

A3

material, Defendant has had 25 or more

employees for each working day for each

of 20 or more calendar weeks.

3. Plaintiff has complied with all

relevant administrative procedure prere-

quisites to a civil action.

4. It was Defendant's employment

requirement that all welders at its Palo

project be qualified in accordance with

the welding-qualification standards of

the American Society of Mechanical Engi-

neers (ASME) Boiler and Pressure Vessel

Code, Section IX (1971 ed.). This ASME

code sets forth objective criteria for

testing welders on various types of wel-

ding work.

5S. As applied at Detendant's Palc

project, welding tests are divided into

two basic classifications: P1-A-LH

and P1-AT-LH. The "P1-A-LH" qualification

permits a welder to perform only general

A4

welding jobs. The "P1-AT-LH" qualification

permits a welder to pe-form the more dif-

ficult "heli-arc" welding jobs. There

exists no evidence indicating that welders

at the Palo project were renumerated dif

ferently based on this two-part qualifi-

cations classification.

6. On September 21, 1971, Plaintiff

was hired by Defendant to work as a welder

at its Palo project, having previously

passed a P1-AT-LH "heli-arc" welding test

administered by Advanced Testing Labora-

tories, Inc. of Los Angeles, California,

in accordance with the ASME Section Ix

Code. Passing this test was a prerequi-

site to employment as a welder at the Palo

project.

7. Under Defendant's welder testing

and layoff procedures, decisions to allow

a welder to test to maintain and upgrade

his qualifications or be laid off were made

by "project crew" supervisory personnel.

A5

8. Some of Plaintiff's "project crew"

Supervisors expressed, in other matters,

a predisiposition towards discrimination

against members of the black race by telling

"nigger jokes" and making other derroga-

tory comments about blacks.

9. Between September 21, 1971, and

February 9, 1973, Plaintiff was qualified

to perform P1-AT-LH welding. During this

period he was often tested for purposes

of maintaining his qualifications. In

applying tests, Defendant did not racially

discriminate among its welding employees.

10. On February 9, 1973, Plaintiff

and 58 other white employees were laid off

subject to re-hire, for reasons of business

necessity and in furtherance of a general

reduction in force. There is no evidence

A6é

that any of the welders” retained on the

job was less qualified than Plaintiff.

ll. On September 24, 1973, Plain-

tiff was re-hired by Defendant as a

welder at the Palo project.

zn the pipefitter trade generally

and as it operated at Defendant's Palo project,

there exists two classifications: welder and

fitter. It is generally recognized that a

welder is qualified to do a fitter's job, but

that a fitter is not qualified to do a welder's

job. Pipefitter hiring and layoffs at the Palo

project were pursuant to this welder-fitter

categorization, as required by Defendant's

agreement with the pipefitter union. Under that

agreement a person seeking employment as a

Welder at the Palo project had to proceed

through the Union hiring hall in Des Moines,

Iowa. For employment as a fitter, a person

had to proceed through the Cedar Rapids, Iowa

Union hall. No transfers between the welder

and fitter categories were made at the job site.

A person desiring such transfer had to proceed

through the respective union hiring halls.

Plaintiff does not challenge this procedure.

Therefore, the Court does not decide whether

such procedures are inherently discriminatory.

Thus, although the evidence does indicate that

at the time of Plaintiff's February 1973 layoff

fitters were retained on the Palo job site, this

fact is not material to Plaintiff's claim that

he was discriminatorily laid off in spite of his

asserted qualifications as a welder.

A7

12. At the time of re-hire, and be-

cause of his prior layoff, Plaintiff had

to be requalified for P1-AT-LH welding.

He failed his initial P1-AT-LH test, but

passed a Pl-A-LH test. There is no evi-

dence that those who tested Plaintiff at

this time had any predisposition towards

discrimination against members of the black

race. In applying these tests Defendant

did not racially discriminate among its

welding employees.

13. Between September 24, 1973, and

February 24, 1974, when he was laid off

a second time, Plaintiff failed tests to

re-test his welding qualifications.

14. On February 24, 1974, Plaintiff

was again laid off, subject to re-hire,

for reasons of business necessity and in

furtherance of a general reduction in force.

There is no evidence that at the time of

the second layoff, any of the welders?

3 See footnote 2, supra.

retained on the job was less qualified

than Plaintiff.

1p. In June 1977, Plaintiff was re-

hired by Defendant to work as a welder

at its construction site at Palos Verde,

Arizona. At time of trial, Plaintiff was

still working for Defendant as a welder

at the Arizona site.

CONCLUSIONS OF LAW

1. This court has jurisdiction of

the subject matter and of the parties.

42 USC Section 2000e-5(f) (3).

2. Defendant is an "employer"

within the meaning of 42 USC Section

2000e(b).

3. Plaintiff has failed to make a

prima facie showing that Defendant

denied him opportunities to re-test his

welding qualifications.

4. Plaintiff has made a prima facie

showing of racial discrimination as to his

Claim of discriminatory application of

A9

testing procedures and discriminatory lay-

offs. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). See, Pettit v. United

States, 488 F. 2d 1026, 1033 (Ct. Claims

1973). Compare Lumas v. Commercial Cartage

Co., No. 79-1009, Slip op. at p. 4 (8th

Cir., August 17, 1979); Baxter v. Savannah

Sugar Refining Corp., 495 F. 2a 437, 444

(Sth Cir. 1974); Thompson v. McConnell

Douglas Corp., 416 F. Supp. 972 (E.D. Mo.

1976), aff'd 552 F. 2d 220 (8th Cir. 1977);

Taylor v. Safeway Stores, Inc., 365 F. Supp.

468 (D. Colo. 1973). See also Lowry’ v.

Whitaker Cable Corp., 348 F. Supp. 202 (W.D.

Mo. 1972). aff'd 472 F. 2a 1210 (8th Cir.

1973).

5. Defendant has rebutted Plaintiff's

prima facie case of discrimination by a

preponderance of the evidence showing that

its testing procedures for upgrading of

welders' qualifications had a manifest

relationship to the welding jobs for which

Al0

they were used, see Griggs v. Duke Power

Co., 401 U.S. 424, 436 (1971); that their

application to Plaintiff individually was

not racially motivated or otherwise dis-

criminatory on the basis of race, Thomrson

v.- McDonnell Douglas Corp., supra, 416

F. Supp. at 982; and that Plaintiff's

layoffs were not actuated by racial con-

siderations but rather were based on valid

non-discriminatory evaluations of Plain-

tiff's qualifications and borne of buisi-

ness necessity in furtherance of a legi-

timate reduction ia force, see Thompson

v. McDonneli Douglas Corp., supra, 416

F. Supp. at 982; compare Lumas v. Com-

mercial Cartage Corp., supra, Slip Op.

at pp. 4-5; Mopkins v. St. Louis Die

Casting Corp., 423 F. Supp. 132, 135

(E.D. Mo. 1976), aff'd 569 F. 2a 454

(8th Cir. 1978).

6. Plaintiff has failed to show by

competent evidence that Defendant's

All

proferred justifications in rebuttal are

pretextual. 4 See Green v. McDonnell Douglas

Corp., 390 F. Supp. 501 (E.D. Mo. 1975)

(on remand from McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), aff'd 528 F.

2d 1102 (8th Cir. 1976). Compare Lumas v.

Commercial Cartage Corp., supra, Slip Op.

at p. 6.

It is therefore

ORDE RED

The Clerk of Court shall enter judg-

ment in favor of Defendant.

September 7, 1979.

/s/ Edward J. McManus

Edward J. McManus, Chief Judge

UNITED STATES DISTRICT COURT

4 With respect to the issue of pretext in

relation to Defendant's layoff practices, Plain-

tiff's proffered evidence relating to Defendant's

alleged use of a so-called "overload technique"

is insufficient to find that Defendant in fact

used such technique. Nor is it sufficient, even

assuming its use by Defendant, to conclude that

‘_. it operated to bring white welders less qualified

Al2

than Plaintiff onto the Palo project during the

- times that Plaintiff was laid off, or that its

use operated to bring in white welders to fill

the welding positions. left vacant by Plaintiff's

layoffs.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 79-1848

CHARLES E. LIGONS, APPEAL FROM

Appellant, THE UNITED

Vv. STATES DISTRICT

BECHTEL POWER CORPORATION, COURT FOR THE

+eenenee te &

Appellee. NORTHERN DIS-

TRICT OF IOWA

Submitted: April 14, 1980

Filed: June 16, 1980

Before LAY, Chief Judge, ROSS, Circuit

*

Judge, and LARSON, Distridt Judge.

ROSS, Circuit Judge

Charles E. Ligons appeals from a

judgment of the district court? rejecting

Al4

his claims brought pursuant to Title VII

of the Civil Rights Act of 1964, as amen-

ded, 42 U.S.C. Section 2000e, et seq? In

that action Ligons alleged that his employ-

er, Bechtel Power Corporation, had discri-

minated against him on the basis of race

in its employment testing and layoff

practices.

*

The Honorable Earl R. Larson, Senior

United States District Judge for the District

of Minnesota, sitting by designation.

line Honorable Edward J. McManus,

Chief Judge of the United States District

Court for the Northern District of Iowa.

2claims brought by Ligons pursuant to

42 U.S.C. Sections 1981, 1985 and 1986,

previously dismissed by the district court,

Ligons v. Bechtel Power Corp., No. C 77-4],

(N.D. Iowa, December 20, 1977), are not the

subject of this appeal.

A15

Following a hearing, the district

court denied Ligons' claim, finding that

Bechtel had rebutted Ligons' prima facie

case of disparate treatment and that

Ligons had failed to establish by compe-

tent evidence that Bechtel's proferred

justifications were a mere pretext for

racial discrimination. We affirm.

Ligons, a black, was first employed

by Bechtel in September of 1971 as a

welder at the Iowa Electric Light and Power

Duane Arnold Energy Center construction

Site at Palo, Iowa. To meet its contrac-

tual obligations with Iowa Electric, Bech-

tel required that its welders be quali-

fied in accordance with standards of the

American Society of Mechanical Engineers

Boiler and Pressure Vessel Code (ASME),

Section IX (1971 ed.). That Code pre-

scribes objective criteria for testing

welders on various types of welding work

Al6

and for placing them in two general cate-

gories: (1) P1l-A-LH, under which a wel-

der qualifies to perform general welding

jobs, and (2) P1-AT-LH, involving more

difficult welding procedures. Prior to

his arrival at Palo, Iowa, Ligons passed

a test which qualified him under P1-AT-LH

to perform heliarc welding. During his

first week of employment, however, Ligons

was required to report to the test shop

for training and testing as a result of

observations made by a welding engineer,

of a weld which Ligons had improperly

prepared. Following a one-week training

period, Ligons passed a simple plate

welding test, but failed the same heliarc

welding test which he had passed before

coming to Palo. lLigons spent several

weeks on at least three separate occasions

training for upgrading and testing to

assure his competence to perform various

A17

types of welds.

On February 9, 1973, Ligons was laid

off along with 58 other pipefitter-welders,

all of whom were white. Ligons was informed

that he was eligible for rehire when more

welders were needed, the layoff being the

result of a general reduction in work force

on the Palo project.

When rehired by Bechtel as a welder

on the Palo project in September of L373,

Ligons required further training and

testing for recertification. After ap-

proximately one month of training, Ligons

qualified only to perform plate welding,

the least difficult type of welding. On

February 22, 1974, Ligons was one of six

welders laid off, again as a result of a

reduction in the work force, this reduc-

tion being based strictly on seniority.

From these facts, the district court

determined that Ligons made a prima facie

Showing of disparate treatment under

Als

McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973), with respect to his claims

of discriminatory application of testing

procedures and layoffs, but not as to his

claim that he was denied opportunities to

» upgrade his welding qualifications.

Ligons' prima facie showing of dis-

parate treatment shifted the burden to

the company to prove that its manner of

testing and layoffs of Ligons were based

on "a legitimate consideration, and not

an illegitimate one such as race * * *,

To dispel the adverse inference from a

prima facie showing under McDonnell

Douglas, the employer need only ‘articu-

late some legitimate, nondiscriminatory

reason for the employee's (treatment) '."

Furnco Construction Corp. v. Waters, 438

U.S. 567, 577-78 (1978), citing McDonnell

Douglas Corp. v. Green, supra, 41l U.S.

at 802.

After considering Bechtel's rebuttal

evidence, the district court found legiti-

mate reasons for justifying the testing

and layoffs of Ligons. Specifically, the

court found that

(d)efendant has rebutted plaintiff's

prima facie case of discrimination by a |

preponderance of the evidence showing that

its testing procedures for upgrading of

welders' qualifications had a manifest

relationship to the welding jobs for which

they were used, see Griggs v. Duke Power

Co., 401 U.S. 424, 436 (1971); that their

application to plaintiff individually was

not racially motivated or otherwise dis-

criminatory on the basis of race, Thompson

v. McDonnell Douglas Corp., supra, 416

F. Supp. at 982; and that plaintiff's

layoffs were not actuated by racial con-

Siderations but rather were based on valid

non-discriminatory evaluations of plain-

tiff's qualifications and borne of busi-

ness necessity in furtherance of a legi-

timate reduction in force, see Thompson

McDonnell Douglas Corp., Supra, 416

Fo Sup est eas SOrP: 1 SU Vv. Com-

mercial Cartage Corp., supra, Slip Op. at

pp. 4-5; Mopkins v. St. Louis Die Casting

423 7. 2

Cort.» upp. 132, 135 (E.D. Mo.

isvey, aff was 569 F. 2d 454 (8th Cir.

1978).

In his suit and on this appeal Ligons

alleges that Bechtel failed to establish

that race was not a motivating factor in

A20

the decision to lay him off. Appellant

misconceives the nature of the burden

imposed on a Title VII litigant alleging

disparate treatment. The employer as a

Title VII defendant need not "prove

absence of discriminatory motive to

escape liabvility; a prima facie showing

of disparate treatment shifts only the

burden of producing evidence to the em-

ployer, not the burden of persuasion."

Kirby v. Colony Furniture Co., 613 F.

2d 696, 702 (8th Cir. 1980); Board of

Trustees v. Sweeney, 439 U.S. 24, 25

(1978). See also Vaughn v. Westinghouse

Electric Corp., No. 79-1561, slip op. at

8 (8th Cir. April 23, 1980).

Bechtel elsarty met this burden of

production. It established that the lay-

offs were due to business necessity and

in furtherance of a legitimate reduction

in the work force.

A21

The evidence established that personnel

requirements fluctuated as the project pro-

gressed. In light of the variance in work

force, Ligons admitted that layoffs were

anticipated. He also stated that he knew

there would be a general reduction in the

work force because the project was "winding

down." Indeed, the fact that 58 other

pipefitter-welders, all white, were also

laid off at the time of Ligons' initial

layoff clearly rebuts any inference of

discriminatory animus against Ligons.

Criteria for Ligons' initial layoff

included qualifications, skill and pro-

ductivity. Richard Alberts, a pipefitter

and foreman, testified that only fitters

less qualified, skilled and productive

than Ligons were retained at the same time

Ligons was first laid off.

There is no evidence that welders

3since Ligons was not hired as a pipe-

fitter, and made no attempt to reclassify as

A22

such, the district court was

correct in rejecting his contentions as to discri-

mination based on the retention of pipefitters

when welders were laid off.

As the district court noted:

In the pipefitter trade generally and

as it operated at defendant's Palo project,

there exists two classifications: welder

and fitter. It is generally recognized

that a welder is qualified to do a fitter's

job, but that a fitter is not qualified to

do a welder's job. Pipefitter hiring and

layoffs at the Palo project were pursuant

to this welder-fitter categorization, as

required by defendant's agreement with the

pipefitter union. Under that agreement

a person seeking employment as a welder

at the Palo project had to proceed through

the Union hiring hall in Des Moines, Iowa.

For employment as a fitter, a person had

to proceed through the Cedar Rapids, Iowa

Union hall. No transfers between the

welder and fitter categories were made at

the job site. A person desiring such

transfer had to proceed through the re-

spective union hiring halls. Plaintiff

does not challenge this procedure.

Therefore, the court does not decide

whether such procedures are inherently

discriminatory.

Thus, although the evidence does

indicate that at the time of plaintiff's

February, 1973 layoff fitters were retained

on the Palo job site, this fact is not

material to plaintiff's claim that he was

discriminatorily laid off in spite of his

asserted qualifications as a welder.

Ligons v. Bechtel Power Corp., No. C 77-41, slip

op. at 4 (N.D. Iowa Sept. 7, 1979).

A23

less qualified, skilled or productive

than Ligons with respect to the parti-

cular aspect of work then required at

Palo were retained. Indeed, one welding

engineer testified that to his knowledge,

no other employee with Ligons' qualifi-

cations spent as much time upgrading or

taking tests from September of 1971 to

February of 1973 as Ligons.

Nor is there evidence to Suggest

that the welding tests given Ligons were

discriminatorily applied so as to prevent

Ligons' certification for the more diffi-

cult welding procedures. In evidence is

an exhibit which demonstrates only that

other welders sometimes failed the tests.

In addition, Joseph Antriking testified

that he took a job as a fitter because

everyone was having difficulty passing

the tests.

The tests were based on objective

welding standards set by the American

A24

Society of Mechanical Engineers. Bechtel

was contractually bound to insure that its

welders were qualified under, and that all

welding performed on the job complied with,

these standards.

Ligons' assertion that, contrary to

typical procedure in the welding industry,

his foreman did not assess his qualifica-

tions and never recommended that he be

laid off, is without merit. Joseph Antri-

king, a pipefitter and foreman at the time

of Ligons' first layoff, testified that

at this particular job, the foremen were

never consulted about layoffs. Instead,

Billy Seals, a craft superintendent who

frequented the job site observing the

welders’ work, made the recommendations

as to which welders to lay off.

Ligons does not challenge the com-

pany's use of seniority in determining

that he be laid off in February of 1974.

At the time of his second layoff, he

A25

was performing the less sophisticated, plate

welding techniques.

In view of our finding that the first

layoff was legitimate, we must conclude

that the second layoff was also nondiscri-

minatory, since Ligons'’ lack of seniority

at the time of that layoff was a direct

result of his being laid off initially.

We agree with the district court's deter-

mination that the company effectively re-

butted Ligons' prima facie showing off

disparate treatment in both its testing

and layoffs of Ligons, as well as its

determination that the testing procedures

for upgrading welder's qualifications had

a manifest relationship to the welding

jobs for which they were used.

Those determinations did not end the

district court's inquiry. As mandated by

McDonnell Douglas, supra, 411 U.S. at 804,

Ligons was given an opportunity to introduce

evidence that Bechtel's proffered

A26

justifications for the layoffs and his

failures at welding tests were a mere

pretext for racial discrimination. *

“tn his brief, Ligons claimed that Richard

Alberts "stated that Ligons had the skill and

qualifications necessary for welding jobs and

that there were employees who were retained by

, the Defendant who had less qualified skills and

productivity than Mr. Ligons did at the time

of his first layoff.'"' The record discloses

that Mr. Alberts, a fitter, served as Charles

Ligons' foreman from approximately September 14,

1973 (when Ligons was rehired by Bechtel) to

January 15, 1974 (one month prior to his second

layoff). Mr. Alberts testified that in his

opinion Ligons had the skill and qualifications

to properly perform his welding tasks. His

testimony, however, was that fitters were the

only employees retained after the second layoff--

a layoff based strictly on seniority--who had

less qualified skills and productivity than Ligons.

As noted previously, fitters and welders were

Separately classified at Palo. See note 3, supra.

Ligons also claimed that Joseph Antriking,

a pipefitter and foreman, "testified that there

were people who maintained their employment after

Ligons' layoff who were less qualified, with

fewer skills and less productivity than Mr.

Ligons."" Mr. Antriking did testify to that

effect. But he also testified that he and Ligons

were working in different areas of this rather

extensive project at the time of Ligons' first

layoff, and that he was unfamiliar with and there-

fore, unable to directly compare, the skills

of the other employees in Ligons' crew. Antri-

king had worked with Ligons more than one year

prior to Ligons' initial layoff for a period of

only two months. When asked why he opposed

A27

Despite his efforts to establish that the

welding tests were discriminatorily applied

and that the layoffs were unwarranted, the

district court concluded that Ligons failed

to show by competent evidence that Bechtel's

proffered justifications for Ligons' treat-

ment were pretextual.

Our careful review of the record con-

vinces us that the district court's find-

ings are not clearly erroneous. FED. R.

CIV. P. 52(a). Contrary to Ligons' asser-

tions, the record does not support a find-

ing that Bechtel continued to hire welders

at the time of Ligons' layoffs or shortly

before or thereafter, or that Bechtel

employed an “overload"technique or other

procedure whereby it hired beyond its needs

for the purpose of reducing its work force

in a discriminatory manner. Rather, it

Ligons' layoff, Antriking responded that he felt

that no one should be laid off unless the job was

finished. The district court considered the tes-

timony of these witnesses insufficient to estab-

lish that Bechtel's proffered justifications for

the layoffs were pretextual.

A28

appears from the record that Ligons received

much assistance and instruction from the

company in maintaining and upgrading his

qualifications and that he was laid off

in accordance with Bechtel's typical poli-

cies at this job site based on a legiti-

mate need to reduce the work force.

The judgment of the district court

is affirmed. Each party shall pay its

own costs.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

A29

UNITED STATES CODE

TITLE 42 -- THE PUBLIC HEALTH AND WELFARE

Section 2000(e) - 2. Unlawful employment

practices

(a) Employer practices

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, con-

ditions or privileges of employment, be-

cause of such individual's race, color,

religion, sex or national origin; or

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 op-

portunities or otherwise adversely affect

his status as an employee, because of

such individual's race, color, religion,

sex or national origin.

wie 4&2 Ee 2 os Ce 2 2 ES OF ee eS e2 @

A30

(h) Seniority or merit system; quantity

or quality of production; ability tests;

compensation based on sex and authorized

by minimum wage provisions

Notwithstanding any other provision of

this subchapter, it shall not be an un-

lawful practice for an employer to apply

different standards of compensation, or

different terms, conditions or privileges

of employment pursuant to a bona fide

seniority or merit system ... provided

that such differences are not the result

of an intention to discriminate because

of race, color, religion, sex, or national

Origin, nor shall it be an unlawful prac-

tice for any employer to give and to act

upon the results of any professionally

developed ability test provided that such

test, its administration or action upon

the results is not desioned, intended, or

used to discriminate because of race,

color, religion, sex, or national origin...

A31

i

PROOF OF SERVICE

The undersigned hereby certifies

that three (3) copies of the foregoing

instrument were served upon each of the

attorneys of record of all parties to the

above-entitled cause by enclosing the same

in (an) envelope(s) addressed to each at

his respective address, as disclosed by

the pleadings herein, with first-class

postage fully paid, and by depositing same

in a United States Post Office depository

in Cedar Rapids, Iowa, on the * aaa day

of September, 1980.

L - H ey

COUNSEL FOR PETITIONER

Copies mailed to:

Patrick M. Roby

Attorney at Law

500 MNB Building

Cedar Rapids, Iowa 52401

(319) 365-9461

COUNSEL FOR RESPONDENT