Petition — American National Bank v. Equal Employment Opportunity Commission

;

Supreme Court, U.S.

81-2358 i

LED

SED. enttnadtemene ALEXANDER L. sTevas,

k ai

JUM 25 1990

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

AMERICAN NATIONAL BANK,

Petitioner,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

Hunton & WiiuiaMs Paut M. Taompson

Post Office Box 1535 Tuomas J. Maniey

707 East Main Street Greoory B, Rosertson

Richmond, Virginia 23212 Hunton & Wiiuiams

(804) 788-8516 C I for Petiti

QUESTIONS PRESENTED

1. Whether the judgment and opinion of the Court of

Appeals should be vacated in light of Pullman Standard v.

Swint since the appellate court independently weighed the

evidence and entered judgment reversing District Court

factual findings which were not clearly erroneous.

2. Whether a prima facie case of pattern and practice

employment discrimination may be sustained solely by facial

comparison of simple workforce percentages which are not

statistically significant under this Court’s Castenada-Hazel-

wood analysis.

3. Whether a Court of Appeals may independently infer

a pattern and practice of employment discrimination based

solely on statistics when all underlying individual claims of

alleged discrimination have been litigated and found to be

without merit.

This case also presents the following subsidiary question:

4. Whether, under 42 U.S.C. §2000e-5(f) (1), a court has

jurisdiction over corporate facilities the employment prac-

tices of which were not the subject of a charge of discrimi-

nation, EEOC investigation, conciliation or reasonable cause

determination.

Page

I, QUESTIONS PRESENTED i

Il, OPINIONS BELOW ..... 1

III, JURISDICTION 1

IV. STATUTORY PROVISIONS INVOLVED W000... = 1

V. STATEMENT OF THE CASE ....... oe

VI. REASONS FOR GRANTING THE WRIT ................... 2

1, Conflict Among The Circuits oe 5

2. Unresolved Conflict Within The Fourth Circuit ............... 9

3. Supervening Supreme Court Decision o.com 10

4. Unfairness of the Fourth Circuit's Decision ...................... 14

VII. CONCLUSION ............... 16

VIIL. CERTIFICATE OF SERVICE mation 16

IX. APPENDICES

Separate Volume

Page

A. Opinion of the Court of Appeals an 1

B. Opinion of the District Court 95

C. Order of the Court of Appeals Denying a Rehearing

and Suggestion for Rehearing En Banc . 248

D. Statutory Provisions Involved 263

TABLE OF AUTHORITIES

Cases Page

Albemarle Paper Co. v. Moody, 422 U.S, 405 (1975) oooooooooomm 8

Carnissina v. Estate of Bosch, 387 U.S. 456 (1967) 000... no TT

Castenada v. Partida, 430 U.S. 482 (1977) atts 4, 5,8,9

Deb JOG 1 UA. eg rk

EEOC vy. General Electric Co., 532 F.2d 359 (4th Cir, 1976)... 14

EEOC a Roebuck and Co.

FEP

Cases 43 (S.D. N.Y. 1960). aff'd; 650 20% (nd ble 1981) 14

EEOC Roebuck and Co. 490 F, 1245 (M.D.

Ala.” 1960)" 2% — 14

EEOC vy, United Virginia Bank, 615 F.2d 147 (4th Cir, 1980) ...9, 10

Eubanks v. Pickens-Bond Construction Co., 635 F.2d 1341 (8th

Cir. 1980) 5,6

Hazelwood School District v. United States, 433 U.S. 299

(1977) 4,5, 8,9

International Brotherhood of Teamsters v. United States, 431

U.S. 324 (1977) 12

Inwood ‘a Inc. v. Ives Laboratories, Inc., ........ U.S.

, 50 U.S.L.W, 4592 (U.S. June 1, 1982) oom 12,13

Ivan Allen Co. v. United States, 422 U.S. 617 (1975) OL 9

Mayor v. Educational Equality League, 415 U.S. 605 (1974) ........ 8

Mohasco Corp. v. Silver, 447 U.S. 807 (1980) wie 8

v. Swint, .... US. ....., 50 U.S.L.W. 4425

(U.S. April 27, 1982) 10, 11, 12, 13, 15

Ratchford v. Gay Lib, 434 U.S. 1080 (1978) 10

Rinaldi v. United States, 434 U.S. 22 (1977) 10

Rivera v. City of Wichita Falls, 665 F.2d 531 (5th Gir, 1982)... 5,6

of Community Affairs v. Burdine, 450 U.S.

248 (1981) 8, 13

Page

nele Ben's, I ohnson, 451 U.S, 902, vacating 628 F.2d 419

(ath Oe, 1580). (bain. 13

nion Carbide Corp., Consumers Products Division v. Nance,

431 US. 952, vacating 540 F.2d 718 (4th Cir. 1976) ............ 14

United States ex rel. Robinson v. Johnston, 316 U.S. 649 (1942) 10

Western Gillette, Inc. v. Sabala, 431 U.S, 951, vacating 516 F.2d

1251 (See Ce, 1978) it

Other Authorities

el

42 U.S.C. § 20000e—20000-17 1

The majority and dissenting opinions of the Court of

Appeals (Pet. App. A) are reported at 652 F.2d 1176 (4th

Cir, 1981); the Order of the Court of Appeals denying en

banc rehearing (Pet. App. C) is not yet published, The

opinion of the United States District Court for the Eastern

District of Virginia (Pet. App. B) is not officially reported,

but is published at 21 FEP Cases 1532 (E.D. Va. 1979).

A previous opinion of the Court of Appeals in this case is

reported at 574 F.2d 1173 (4th Cir. 1978). This Court's

denial of certiorari in that appeal is at 439 U.S. 876 (1978).

The first District Court opinion is at 420 F.Supp. 181 (E.D.

Va. 1976).

JURISDICTION

The judgment of the Court of Appeals was entered June

26, 1981. A timely petition for en banc rehearing was denied

by the Court of Appeals on May 18, 1982. On May 26,

1982 the Fourth Circuit stayed its mandate for thirty days.

This Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

STATUTE

The statute involved is Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. §2000e—2000e-17.

STATEMENT OF THE CASE

The January 21, 1976 Complaint in this action was based

on a 1969 administrative charge of discrimination which

had been investigated by EEOC in 1970. The District Court

dismissed the action for laches on August 31, 1976; but the

Court of Appeals vacated the dismissal order and remanded

1

2

on May 1, 1978. EEOC v. American National Bank, 574

F.2d 1173 (4th Cir.), cert. denied, 439 U.S. 876 (1978).

On remand the parties entered into a court approved

stipulation that al] issues of discrimination, including all

fifty one (51) claims for individual relief, would be tried in

a single unified proceeding. (Pet. App. 97, 116, 215). That

was done December 11-14, 1978. (Pet. App. B).

On June 25, 1979 the District Court issued a 184-page

opinion holding that the hiring practices challenged by

EEOC were “legitimate business ones” which were not dis-

criminatory whether analyzed “separately” or “in tandem”,

and that “the overall statistical evidence does not support

an inference of disparate treatment”. (Pet. App. 177-178).

The Court entered separate findings of fact on each indi-

vidual claim, holding that EEOC had not carried its burden

of proof in any of those cases and that many of the claims

were “frivolous”. (Pet. App. 241).

ane bi ae spate Aap 2 teal page. basen

the vacancy in question existed or applied for jobs com-

pletely different from the vacancy.

(Pet. App. 241).

The District Court found, however, that EEOC had sus-

tained a prima facie case solely on the basis of facial com-

parison between the percentages of blacks holding manager

and clerical positions with the bank and the census per-

centages of black managers and clericals in the surrounding

labor areas. (Pet. App. 135-138). Though noting that simple

static percentages might be “misleading” for the “quite

small” numbers of employees involved, the Court neverthe-

less found that “from 1969 to 1975 blacks were under-

represented in defendant’s workforce” and that the percent-

age disparities alone constituted “prima facie statistical

proof of a pattern or practice of discrimination.” (Pet.

App. 137, 138).

of actual applicant and hiring ratios, however, the District

Court found the prima facie case to be rebutted.

[T}he Court finds that the imbalance was a product of

pre-1969 activities. This case concerns the conduct of

defendant between 1969 and 1975. The available hiring

practi

1975, and none of the 31 applicants who testified were

discriminated against because of their race.

(Pet. App. 214-215).

The Court of Appeals for the Fourth Circuit reversed. By

a 2-1 panel opinion of June 26, 1981, the Court of Appeals

held that the District Court had correctly inferred a prima

facie case based on simple percentage comparisons, but con-

cluded that the District Court “erred in holding that de-

fendant’s rebuttal evidence was sufficient to overcome the

prima facie case.” (Pet. App. 2).

The Court of Appeals ruled that the extensive proof in-

troduced on the 51 individual claims should have been “sim-

ply set aside as a neutral factor in the overall assessment of

the evidence” (Pet. App. 39), and that it was “unlikely”

the applicant flow statistics were “reliable”, as found by the

District Court. (Pet. App. 28, 30). Though acknowledging

that many of EEOC’s allegations of discriminatory hiring

practices were “irresponsible” in light of the trial evidence

(Pet. App. 34 n. 18), the Court ruled it was error for the

4

District Court to consider “objective and consistently ap-

plied” practices as evidence in rebuttal of the prima facie

case. (Pet. App. 38). As for the District Court’s finc’ ag that

the Hazelwood-Castenada’ standard deviation analysis neu-

tralized the statistical prima facie case, the Court of Appeals

held as follows:

The conclusion was based on an apparent

that if standard deviations reflected in static work

statistics were not ‘more than two or three’ the dis-

parities were necessarily shown to be statistically in-

Tenificant. 21 FEP Cases at 1558-59. This assumption

is simply incorrect.

(Pet. App. 20).

The Court of Appeals then held that when “analyzed free

of the identified errors”

the total evidence established the existence of a dis-

criminatory pattern or practice of hiring in violation

of Title VII that remand for the determination

of appropriate reli

(Pet. App. 40).

Despite the pre-trial stipulation the Court of Appeals

held that the District Court’s findings of fact on individual

claims would, on remand, “have no preclusive effect” since

those claims had not been tried “to establish entitlement to

individual relief.” (Pet. App. 39, 41). As to those claims

the Court of Appeals assigned defendant the burden of

“showing by a preponderance of the evidence that nondis-

criminatory factors motivated the decision not to hire.” (Pet.

App. 41).

* Hazelwood School District vy. United States, 433 U.S. 299, 308-09,

s sn. 17 (1977) ; Castenada v. Partida, 430 U S. 482, 496-97,

a.

5

By 5-5 vote on May 18, 1982, the Court of Appeals for

the Fourth Circuit denied the bank’s Petition for Rehearing

and Suggestion for Rehearing En Banc. (Pet. App. C).

7

REASONS FOR GRANTING THE WRIT

1. Conflict Among The Circuits

The rule of the Fourth Circuit in this case is in direct

conflict with that of the Fifth and Eighth Circuits on the

question whether a prima facie case of employment dis-

crimination may be sustained by facial comparison of raw

percentages without analysis for statistical significance. Com-

pare EEOC v. American National Bank, 652 F.2d 1176

(4th Cir. 1981), reh. denied ...... F.2d . (May 18,

1982) with Rivera v. City of Wichita Falls, 665 F.2d 531

(5th Cir. 1982) and Eubanks v. Pickens-Bond Construction

Co., 635 F.2d 1341 (8th Cir. 1980).

In Rivera the Fifth Circuit upheld a District Court’s re-

fusal to infer a prima facie case of discrimination from em-

analysis revealed those disparities to be less than the 2-3

standard deviation range established by this Court in Cas-

tenada v. Partida, 430 U.S. 482, 496-97, n. 17 (1977) and

Hazelwood School District v. United States, 433 U.S. 299,

311m. 17 (1977).

discrimination fairly could be drawn “[aJs.a

erposted vlan and. chesrvedenester b gress ten

665 F.2d at 545, n. 22.

In Eubanks, as in the present case, the District Court

- found a prima facie case to be sustained on the basis of sim-

‘ple percentage comparisons. But the Eighth Circuit reversed,

holding that analysis for statistical significance was required

prior to inference of a prima facie case.

The district court merely stated the actual number and

percentage of black foremen for the three years in

question and the number and percentage of black ce-

meg wg by maripr ett: peda during

that period. To infer a prima facie case of di -

mothe eee ms One

disparity. See M v. Educational Equality League,

“simplistic percentage comparisons” of racial com-

tion of a thirteen member nomina and

the population of Phi ia); Hazelwood School

District v. United States, supra, "433 U.S. at 308-09

n. 14, 15 FEP Cases at 5 (standard deviation analysis) .

635 F.2d at 1349-50.

The Fourth Circuit in this case, however, has squarely

approved the District Court’s finding of prima facie dis-

crimination based on simple percentage comparisons, even

though subsequent standard deviation analysis showed that

7

the disparities in the percentages relied on consistently “re-

mained less than two.” (Pet. App. 152).

The Fourth Circuit’s approval of un-analyzed statistics

as the sole basis of a prima facie case has drawn vigorous

dissents at both the panel and en banc levels.

In the instant case, both the district court and the panel

majority, in finding a prima facie case had been proven

by statistic, committed the same error of drawing con-

from straight percentage com without

taking into account sample size at all. The majority

justified its finding of a prima facie case thro the

use of straight percentage comparisons by saying:

As frequently observed by the Supreme Court and

as recognized by the district court, gross statistical

disparities in the static workforce during the rele-

vant period may alone constitute prima facie proof

of the 7 Saal practice. Hazelwood, 433

US. at 307-08; .

* & cod

Clearly then the term “gross statistical disparity” in the

Hazelwood opinion does not mean a seemingly large

difference in straight percentages comparisons; it means

disparities must be found at the conclusion of statistical

It is important to emphasize that such formulae are of

no value, and thus statistical evidence is also of no

value, unless a court them at the proper point

ea eh emmy point is before the court

finds a prima ratings dy rt pr te wa ry

(Pet. App. 250-251) (Widener, J., dissenting) .

The Fourth Circuit’s rule on the appropriate analysis of

statistics for a prima facie case cannot be reconciled with

the views of th« “ifth and Eighth Circuits. Particularly be-

cause of the importance of this question to a large volume

of federal litigation and agency administration, this Court

should grant certiorari to resolve the conflict in the Circuits.

See, e.g., Texas Department of Community Affairs v. Bur-

dine, 450 U.S. 248 (1981); Mohasco Corp. v. Silver, 447

U.S. 807 (1980) ; Albemarle Paper Co. v. Moody, 422 U.S.

405 (1975).

It is particularly appropriate for a Writ of Certiorari to

issue to the Fourth Circuit in this case since it is the opinion

of the Fourth Circuit, rather than those of the Fifth and

Eighth, which is in apparent conflict with this Court’s previ-

ous opinions on the use of statistical evidence in discrimina-

tion cases. The use of raw statistics to infer a prima facie

case is contrary to this Court’s warning in Mayor v. Educa-

tional Equality League, 415 U.S. 605, 620 (1974) against

reliance on “simplistic percentage comparisons”, for exam-

ple; and the Court’s inference of pattern and practice dis-

crimination based on statistical standard deviations of “less

than two” (Pet. App. 152) is contrary to the rule of Hazel-

wood and Castenada that an intent to discriminate will

“generally” not be inferred from statistical disparities unless

they are “greater than two or three standard deviations”.

Hazelwood, supra at 309 n. 14, quoting Castenada, supra

at 497.”

The clear conflict between the Fourth Circuit opinion

Pomiig ema cny tetany de peal wee guns Armia wie ey

of “not more than two or three” ee aon ees as

coy Sas, Se Srey es ee eee “less

than two standard “may be sufficiently small to weaken

the Government’s other proof”. Hazelwood, supra at 311, n. 17. In

Petitioner’s view, of course, it was improper to restrict the use of

ees Sees Seaapee > Oe ee aah ny and by

reveal nondiscrimination” (Pet. op 10), ao Count tapeipelly

Suand tn bess pent ew o sapre at 255-258 o

below and the principles enunciated in this Court’s previous

decisions on statistical evidence provides yet another inde-

pendent reason for granting the writ in this case. See, e.g.,

Ivan Allen Co. vy. United States, 422 U.S. 617, 623-24

(1975).

2. Unresolved Conflict Within the Fourth Circuit

The Fourth Circuit is internally deadlocked over the use

of statistics as prima facie evidence of employment discrimi-

nation. As revealed by the 5-5 vote to deny en banc rehearing

in this case and by the vigorous dissents from both the en

banc denial and the panel opinion, the judges of the Fourth

Circuit are evenly split on the issue of statistical prima facie

proof, The precise nature of the split is highlighted by com-

parison of the panel majority opinion in this case with the

panel majority opinion in the almost identical case of EEOC

v. United Virginia Bank, 615 F.2d 147 (4th Cir. 1980).

Like the instant case, UV B involved the hiring of manager

and clerical employees for a bank in eastern Virginia. The

EEOC similarly attempted to sustain a prima facie case by

simple comparison of static workforce and labor force fig-

ures. 615 F.2d at 149. The two cases were tried before the

same District Court Judge. Unlike the appellate panel in

this case, however, the Fourth Circuit panel in UVB applied

the Hazelwood-Castenada standard deviation test to EEOC’s

static figures before drawing any inference from mere per-

centage disparities; and it concluded that a standard devia-

tion of 2.36 was a “borderline” figure which did “not suffice

to prove a prima facie case of discrimination.” Jd. at 153.

Contrary to the present case, UV B held that it was the plain-

tiff’s prima facie burden, not defendant’s rebuttal burden,

to adduce statistical evidence not improperly weighted by

hiring decisions made outside the period under scrutiny.

Id. at 150.

10

The statistical methods and burden of proof allocations

in UVB and the present case cannot be reconciled. Nor can

any guidance for the district courts in the Circuit be devined

when one panel holds that a “borderline” standard deviation

of 2.36 is insufficient as prima facie proof, UVB, supra at

152, while another holds that standard deviations of “not

more than two or three” “could not properly be taken as

dispelling the inference of discrimination based upon the

disparities in the static work force data.” (Pet. App. 23-24).

As Judge Russell noted in dissent from the panel decision,

Such inconsistency in decision is unfortunate and prop-

erly raises doubts in the public mind about even-handed-

ness. I am unable to see how we can decide one case

in favor of the defendant and not do likewise here. The

rights of parties when they are the same, as I submit

they are in the two cases, should not vary with differ-

ent panels of the same Court.

(Pet. App. 93).

This intra-Circuit conflict, coupled with the conflict

among the Circuits on this important question of interpret-

ing Supreme Court decisions on statistical proof, is yet an-

other reason a writ of certiorari should be granted in this

case. See, e.g., United States ex rel. Robinson v. Johnston,

316 U.S. 649 (1942) ; Carnissina v. Estate of Bosch, 387 US.

456, 457 (1967); Rinaldi v. United States, 434 U.S. 22

(1977); Ratchford v. Gay Lib., 434 U.S. 1080 (1978)

(Rehnquist, J., dissenting )

3. Supervening Supreme Court Decision

The decision of the Fourth Circuit is in direct contradic-

tion of this Court’s recent opinion in Pullman-Standard, Inc.

v. Swint, 50 U.S.L.W. 4425 (U.S. April 27, 1982). The

Swint decision made it plain that findings of fact in Title

VII cases are not reversible by a Court of Appeals unless

“clearly erroneous” and that, if the District Court’s finding

on the “ultimate fact” of discriminatory intent is set aside

for error of law, “the Court of Appeals is not relieved of the

usual requirement of remanding for further proceedings to

the tribunal charged with the task of fact-finding in the first

instance.” Jd. at 4430. Those are precisely the errors of the

Fourth Circuit panel majority below.

The District Court’s finding of “ultimate fact” in this case

was that

EEOC has not established by a preponderance of the

evidence that racial discrimination was defendant's

standard operating procedure between 1969 and 1975.

See International Brotherhood of Teamsters v. United

States, 431 U.S. 324, 336.

(Pet. App. 214).

In order to reverse that finding the Court of Appeals freely

overturned subsidiary factual findings without reference to

the clearly erroneous standard ; and it repeatedly substituted

its independent judgment on the weight of evidence for that

of the District Court.

The District Court considered and explained in detail, for

example, the basis for its conclusion that applicant flow

statistics were “reliable” and entitled to weight as rebuttal

evidence. (Pet. App. 141-142). Yet the Court of Appeals

dismissed that critical finding based on its independent liter-

ary assessment that the data’s reliability “seems highly un-

likely on the record we review” and that the District Court

therefore assigned too much weight to that evidence. (Pet.

App. 30, 15).

The District Court also found as fact that the total num-

ber of hiring decisions under review in the case “39 in Suf-

12

folk from 1969 to 1975—an average of 5.5 per ycar—and

24 in Portsmouth for 1975” were “too few to justify au in-

ference that defendant had engaged in a regular practice of

discrimination.” (Pet. App. 147). This evaluation of the

“usefulness” of statistical evidence based on “all of the sur-

rounding facts and circumstances” was the proper province

of the District Court. International Brotherhood of Team-

sters v. United States, 431 U.S. 324, 340 (1977); and see

Inwood Laboratories, Inc. vy. Ives Laboratories, Inc., 50

U.S.L.W. 4592, 4596 (U.S. June 1, 1982). Though not find-

ing the District Court’s evaluation clearly erroneous on this

point, the Court of Appeals nevertheless found the numbers

“quite sufficient as a basis for inferring the pattern of dis-

crimination,” (Pet. App. 28) notwithstanding the “danger

of unfairness to the employer in resting inferences of dis-

criminatory practices on proof involving small total num-

beis of employment decisions .. . .” (Pet. App. 26).

Similarly the Court of Appeals decided, again without

reference to the clearly erroneous standard, that the District

Court should have assigned no weight whatever to the live

testimony of over 30 witnesses whom the trial court had

observed. (Pet. App. 39).

The Court of Appeals’ own description of the perceived

error below makes it plain that, like the Fifth Circuit in the

decision reversed in Swint, the Fourth Circuit erroneously

believed the weighing of evidence to be a matter of law for

the appellate court.

a

13

statistical and nonstatistical evidence offered to

the discriminating pattern and practice idee

(Pet. App. 15).

As Judge Russell noted in dissent from the panel decision,

the assigned flaws are thus “errors in the weight or signifi-

cance to be assigned to the evidence”, yet “the majority

treats them as ‘errors of law’ and thus not subject to the

clear error rule for appellate review”. (Pet. App. 70). But

see Inwood, supra at 4596.

Even if the panel majority were correct in characterizing

its reversal of the District Court's findings as a matter of

law, its decision is still contrary to Swint since the appellate

court proceeded independently to find the facts under its

view of “controlling legal principle” (Pet. App. 40), rather

than “remanding for further proceedings to the tribunal

charged with the task of fact-finding in the first instance.”

Swint, supra at 4430."

Where a Court of Appeals’ opinion is so clearly contra-

Court case is appropriate.’ See, e.g., Uncle Ben’s, Inc. v.

*The Court of remand solely “for the determination of

relief” is erroneous because it defendant the burden of

of that nondiscriminatory

ee endand dt duties aes totter. (Pet. App. 41). This Court

-_ it = in Texas Department of Community Affairs v. Burdine,

of

US. ee paylines 119 + phere ied» Serremamdal nts 1

under Title VII, matter of producing evidence or persuad-

ing the trier fact. Id. at 257. be

at

14

Johnson, 451 U.S. 902, vacating 628 F.2d 419 (5th Cir.

1980) ; Union Carbide Corp., Consumers Products Division

v. Nance, 431 U.S. 952, vacating 540 F.2d 718 (4th Cir.

1976) ; Western Gillette, Inc. v. Sabala, 431 U.S. 951, va-

cating 516 F.2d 1251 (5th Cir. 1975); Detroit Edison v.

EEOC, 431 U.S. 951, vace ing 515 F.2d 301 (6th Cir.

1975).

4. Unfairness of the Fourth Circuit's Decision

Because nine (9) years had passed when this case came

to trial, the parties carefully defined the issues and claims to

be tried.’ With approval of the Court, the parties stipulated

“that the potential individual claims in this action are limited

to the fifty one (51) individuals named” (J.A. 293—Stip.

¥ 41),° “that the potential claimants have received actual

notice of this action” (J.A. 293—Stip. ] 42) and that the

“parties are aware of no other potential individual claims

of hiring discrimination other than those which may be

presented by the charging party and the persons listed.”

(J.A. 289—Stip. J] 19). Every hiring decision in the relevant

=F

7ES

Fs

;

15

of each potential claimant, his or her date of application

and the persons allegedly preferred over each, by application

date, hire date, and job hired into.” (J.A, 293—Stip. | 41).

EEOC represented that all individual claimants would be

“present to testify at trial.” (J.A. 338). The parties agreed

and the Court ordered that issues at trial would be

Whether any of the individual claimants who EEOC

resents at trial were denied employment by American

ational Bank because of their race [and]

what relief, if any, is appropriate.

(Pet. App. 97; J.A. 284)

The bulk of the trial below was consumed with testimony

about the particular merits of individual claims, including

back pay and interim earnings evidence. The parties fully

briefed and argued each individual claim. The District

Court entered detailed findings as to each such claim, none

of which were found to be erroneous by the appellate court.

For the Court of Appeals then to observe, without dis-

cussion, “that the evidence was not offered at this stage to

establish entitlement to individual relief’ and must be “set

aside as a neutral factor in the overall assessment of the

evidence” (Pet. App. 39) was wholly arbitrary and unjust.

(Pet. App. 92) (Russell J., dissenting). It was in addition

another example of appellate court unprincipled reassign-

ment of evidentiary weight in contradiction of this Court’s

decision in Swint.

16

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully submitted,

Paut M. THompson

Tuomas J. MANLEY

Grecory B. Rosertson

Counsel for Petitioner

Hunton & WiLuiAMs

Post Office Box 1535

707 East Main Street

Richmond, Virginia 23212

June 25, 1982

CERTIFICATE OF SERVICE

I, Paul M. Thompson, counsel for the Petitioner, and a

member of the Bar of the Supreme Court of the United

States, hereby certify that I have served all parties required

to be served by depositing three copies of the foregoing

Petition for Writ of Certiorari and Appendix thereto in the

United States Mail, first class postage prepaid, this 25th

day of June, 1982, addressed to: The Solicitor General of

the United States, Department of Justice, Washington, D. C.

20530; Michael J. Connolly, General Counsel, and Con-

stance L. Dupre, Esq., and William H. Ng, Esq., Office of

the General Counsel, Equal Employment Opportunity Com-

mission, 2401 E Street, N.W., Washington, D. C. 20560;

William K. Slate, II, Clerk, United States Court of Appeals

for the Fourth Circuit, Richmond, Virginia 23219.

Paut M. THompson

Counsel for Petitioner