Appendix — Cooper v. Federal Reserve Bank of Richmond

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. [Office - Supreme Court, US |

i oiainonentll FILED

3-485 4 Alc 4 1083

Supreme Court of the United Stereo"

Ocroser Term, 1983 “aT

Syivia Cooper, et al.,

Petitioners,

Vv.

FeveraL Reserve Bank or RicuMonp,

Puyuuis Baxter, et, al.,

Petitioners,

FeveraL Reserve Bank or RicuMonp.

—— =

— —

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

J. LeVonne CHAMBERS

Joun NockKLesy

Chambers, Ferguson, Watt,

Wallas, Adkins & Fuller, P.A,

Suite 730

Kast S. Independence Boulevard

Charlotte, North Carolina 28202

JACK GREENBERG

Q, Peter SHERWOOD

(CHARLES STEPHEN RaALston

Eric SCHNAPPER*

Suite 2030

10 Columbus Circle

New York, New York 10019

(212) 586-8397

Counsel for Petitioners

* Counsel of Record

Page

Opinion of the Court of Appeals,

January 11, 1983 cesccccccccccecs za

Order of the Court of Appeals

Denying Rehearing, April 6,

1983 SG @ 2 8 62 OC Ce 8 2648 2:0 8 8 62. Oo 9 8.0 6 6 eC 1864

Order of the Court of Appeals

Denying Rehearing En Banc, 4

April 6, 1983 SoC SEG CeCe seee@eoetsdss ee 188a

District Court Memorandum of

Decision, October 30, 1980 ..... 191a

District Court Findings of Fact and 191a

Conclusions of Law, May 29,

1981 oeeeeeeeteeeeneeeeeeeeeeeeeeee 197a

District Court Order, May 29,

1981 *eeeeeeeneeneeeeeeeneeeeeeeeee#e#ee 286a

District Court Order, February 26,

1982 00 Cee eewns Ce eciee 8688 Ge 8 60 6 8.86 292a

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 81-1536

Equal Employment Opportunity

Commission; Sylvia Cooper;

Constance Russell; Helen Moore

and Elmore Hannah, Jr.,

Appellees,

Vv.

- versus -

Federal Reserve Back of Richmond,

Appellant.

No. 82-1259

Phyllis Baxter; Brenda Gilliam;

Glenda Knotts; Alfred Harrison

and Sherri McCorkle,

Appellees,

- versus-

Federal Reserve Bank of Richmond,

Appellees.

Appeals from the United States District

Court for the Western District of North

Carolina, at Charlotte.

James B. McMillan, District Judge

- 2) =

Argued: July 21, 1982. Decided: January

11, 1983

Before RUSSELL, WIDENER and HALL, Circuit

Judges.

George R. Hodges (Robert D. Dearborn, Moore

and Van Allen on brief) for Appellant;

Colleen M. O'Connor (Michael J. Connolly,

General Counsel, Philip B. Sklover, Asso-

ciate General Counsel, Vella M. Fink,

Assistant General Counsel on brief); J.

LeVonne Chambers, John T. Nockleby (Cham-

bers, Ferguson, Watt, Wallas, Adkins &

Fuller, P.A. on brief) for Appellees.

RUSSELL, CIRCUIT JUDGE:

This is an action initially begun by

the Equal Employment Opportunity Commission

[EEOC] against the defendant Federal Re-

serve Bank of Richmond. The defendant,

reer + under the Federal Reserve

Act, operates a branch in Charlotte,

North Carolina, which provides (1) services

1/12: U.S.C. § 341, et seq.

- 3a -

to the member banks and the public in the

Charlotte area in check collection, adjust-

ment, and provisidm of cash and securities

and (2) services to the United States

Treasury and governmental agencies in

handling savings bonds and government

securities, including food stamp activities.

In performing these functions, the bank

distributed its various employees, number-

ing from 350 to 450 in the period 1974-78,

largely of a clerical or managerial type,

among 16 departments. The job ratings of

its employees ranged from pay grade 3 to

pay grade 16, with an ungraded officer

group of about 8. New employees were

generally assigned to pay grades 3 or 4 and

assignments among departments were based on

‘einentdount background and prior work

experience." All employees were evaluated

annually on a scale of 1 (unsatisfactory)

to 5 (exceptional). Since 1973, the branch

- 4a-

had generally posted notices of vacancies

by advertising in Southern Accent, a news

circular prepared by and distributed to

bank employees. Employees were invited to

indicate their interest in any posted

vacancy. Promotions were generally made

within the work force.

In its complaint the EEOC charged the

defendant with engaging in racially dis-

criminatory practices and policies in fail-

ure to promote blacks at its Charlotte,

North Carolina, branch in violation of

Section 703(a) of Title VII, 42 U.S.C.

§ 2000e. After the commencement of the

action, four former or present employees of

the defendant at the Charlotte branch

petitioned to intervene in order to assert

under § 1981, 42 U.S.C., and Title VII

individual and class claims of racial and

sex discrimination "in promotions, wages,

job assignments and terms and conditions of

- 5a -

employment" on behalf "of all blacks and

females who worked for the defendant at any

time since July 2, 1965." The petition to

intervene was allowed and the intervenors

were, by a consent order, certified as

the class representatives to maintain an

action charging racial discriminatory

practices and policies in the particulars

stated in the petition for certification

filed by the intervenors but with the class

narrowed to include only employees who may

have been hired after January 3, 1974. In

the same consent order, the EEOC itself

agreed to limit its claim of discrimination

to "only ... those black persons who worked

for the defendant since January 3, 1974."

After joinder of issues and consider-

able discovery, the actions both of the

EEOC and of the plaintiffs-intervenors came

on for trial in September, 1980. Following

the completion of the trial, the District

- 6a -

Court on October 29, 1980, filed its

"Memorandum of Decision." It ruled in this

Memorandum: (1) That the defendant had

discriminated against the intervenor Cooper

"by failing to promote her from her job as

a settlement clerk ... to a position as

utility supervisor" and against the

intervenor Russell "by failing to promote

her to a utility clerk position from her

position as a utility operator" and "by

discharging her ... in retaliation for her

filing charges of discrimination with the

Equal Employment Opportunity Commission;"

(2) that the intervenors Moore and Hannah

had not "shown the court that they suffered

any discrimination on account of their

race" and that their claims should be

denied; and (3) that defendant had engaged

in a pattern and practice of discrimination

from 1974 through 1978 by failing to

"afford black employees opportunities

- Ja -

afforded white employees [only] in pay

grades 4 and 5." ‘The "Memorandum" con-

cluded with the direction to "[c]ounsel for.

plaintiffs .. to propose and submit by

December 1, 1980: 1. Proposed findings of

fact and conclusions of law consistent with

the above findings...."

The District Court filed on May 29,

1981, findings of fact and conclusions

of law. In these it found discrimination

by the defendant in the class action, in

pay grades 4 and 5, and in individual

discrimination claims of the intervenors,

Russell and Cooper. It dismissed the

individual discrimination claims of Hannah

and Moore. While the District Court, as

had the District Court in Amstar Corp. v.

Domino's Pizza, Inc., 615 F.2d 252, 258

(5th Cir.), cert. denied, 449 U.S. 899

(1980), stated that "[t])he findings

and conclusions herein, however, as well as

the Judgment which follows are those of

the Court based on an independent review of

the record and consideration of the submis-

sions of the parties," such statement was

adopted verbatim from the plaintiffs'

proposed findings and conclusions; in fact,

the statement appears in exactly the same

words and in the exact same place as

footnote 3 in both the proposed findings

and conclusions submitted by the plaintiffs

and in the District Court's findings of

fact and conclusions of law. Moreover, the

Court's 37-page findings and conclusions

were almost word for word copies of the

finding and conclusions submitted by the

plaintiffs.

From the judgment entered pursuant to

the findings and conclusions of the Dis-

trict Court, as well as from an order

granting an interim allowance of attorney's

fees to the intervenors-plaintiffs' coun-

- 9a -

sel, the defendant has appealed. The

plaintiffs did not appeal the dismissal of

the individual claims of the intervenors

Hannah and Moore or the denial of relief in

the class claim in all pay grades above pay

grade 5. We reverse.

In considering such appeal we shall

treat first the decision in the class

action claim and, second, the decision on

the individual claims of intervenors Cooper

and Russell. Before addressing the sub-

Stantive merits of the class action claim,

however, it is necessary to resolve

two preliminary points pressed by the

defendant. The first of these relates to

the nature or type of the class action

claims, i.e., are they disparate treatment

Or disparate impact claims or both?

The District Court's "Memorandum of Deci-

sion" does not identify the class action

Claim as either a disparate treatment or a

- 10a -

disparate impact claim but in the findings

and conclusions later adopted by the

Court it is clear that the class action is

being treated as both a disparate treat-

ment and disparate impact claim. The

defendant, on the other hand, asserts that

the class action should be treated solely

as a disparate treatment action. We

agree.

~ In Stastny v. Southern Bell Tel. &

_——“tel. Co., 628 F.2d 267 at 273, n.10 (4th

Cir. 1980), we stated the necessary ele-

ments of a disparate impact claim. These

elements, as there declared, are:

"As is not well recognized, the

class action commonality criteria are,

in general, more easily met when a

disparate impact rather than a dispar-

ate treatment theory underlies a class

claim. The disparate impact ‘pattern

Or practice’ is typically based upon

an objective standard applied evenly

and automatically to affected employ-

ees: an intelligence or aptitude test,

e.g., Griggs v. Duke Power Co., 401

U.S. 424, 91 S.Ct. 849, 28 L.Ed. 2d

- lla -

158 (11971); an educational require-

ment, id.; a physical requirement,

e.g., Weeks v. Southern Bell Tel. &

Tel. Co., 408 F.2d 228 (5th Cir.

1969). Both the existence and the

‘common reach' of such objectively

applied patterns or practices are

likely to be indisputable from the

outset, so that no real commonality

problems for class action maintenance

ever arise in this regard. On the

other hand, the disparate treatment

pattern or practice must be one based

upon a specific intent to discriminate

against an entire group, to treat it

as a group less favorably simply

because of its sex (or other impermis-

sible reason). The greater intrinsic

difficulty on establishing the

existence and common reach of such a

subjectively based practice is obvi-

ous. See Hauck v. Xerox Corp., 78

F.R.D. 375, 378 (E.D. Pa. 1978). In

the instant case, it is clear that

plaintffs' ultimate reliance would of

necessity have been upon showing a

pattern of disparate treatment. There

is no suggestion in the record of a

Griggs-type objectively imposed prac-

tice having discriminatory disparate

impact."

We reiterated those criteria for a dispar-

ate impact claim in the recent case of Pope

v. City of Hickory, N.C., 679 F.2d 20, 22

(4th Cir. 1982):

- 12a -

"'The disparate impact model

applies only when an employer has

instituted a specific procedure,

usually a selection criterion for

employment, [such as an aptitude or

intelligence test, or height and

weight requirements] that can be shown

to have a causal connection to a class

based imbalance in the [employer's]

work force' and has been said not be

‘the appropriate vehicle from which to

launch a wide ranging attack on the

cumulative effect of a company's

employment practices.' Pouncy v.

Prudential Ins. Co. of America, 668

F.2d 795, 800 (5th Cir. 1982). It

is obvious that the plaintiff is

not complaining in this case of some

employment practice or procedure

of the defendant, which, though

neutral or fair on its face, has a

discriminatory impact on blacks and

thus does not fit within the model

Gisparate impact claim.”

It is manifest that the plaintiffs'

class action claim does not meet the

criteria for a disparate impact claim as

those criteria are identified in Stastny

and Pope. There was no evidence whatsoever

of any “objective standard, applied evenly

and autonatsfM@ay" in promotions, such as

physical requirement with respect to

height, as in Dothard v. Rawlinson, 433

- 13a -

U.S. 321, 324 (1977), or a high school

diploma, as in Griggs v. Duke Power Co.,

401 U.S. 424, 427 (1971), or a minimum

passing score on an aptitude test, as in

Albemarle Paper Co. v. Moody, 422 U.S. 405,

410-11 (1975) and Connecticut v. Teal,

U.S. __, 73 L.Ed.2d 130 (1982). The claim

here is a pattern or practice of inten-

tional discrimination against an entire

group by treating it less favorably because

of race. That is the typical disparate

treatment case. This case should accord-

ingly be properly treated as such. How-

ever, the result reached by us would not be

substantially different whether the class

action be considered as a disparate impact

or a disparate treatment case. Cf., Wright

v. National Archives & Records Service, 609

F.2d 702 (4th Cir. 1979).

Secondly, the defendant questions the

weight, if any, to be accorded by us to

- 14a -

the findings of fact and conclusions of law

in this case. It is defendant's contention

that the circumstance that these findings

and conclusions were prepared by plain-

tiffs' counsel at the direction of the

District Court and were adopted by the

Court practically verbatim weakens, if it

does not undermine completely, the relia-

bility of and the weight to be accorded

such findings and cake ais ee There

can be no dispute that the District Court

itself, in its “Memorandum of Decision,"

actually make no findings of fact or con-

clusions of law as those terms are used

and construed in Rule 52(a). Fed. R. Civ.

P. It confined itself in this Memorandum

2/ Both plaintiffs' counsel and counsel

for the defendant have submitted to the

Court the proposed findings and conclusions

as prepared by plaintiffs' counsel. A

comparison of such findings and conclusions

with the District Court's findings and

conclusions supports the statement in the

text.

- 15a -

to a purely conclusory statement that "the

defendant [had] engaged in a pattern and

practice of discrimination from 1974

through 1978 by failing to afford black

employees opportunities ... afforded

white employees in pay grades 4 and 5."

Such a statement of ultimate fact is

not a finding of fact reviewable under the

"clearly erroneous" rule, and sustainable

only if adequate supportive subsidiary

findings are made. Hicks v. United States,

368 F.2d 626, 631 (4th Cir. 1966); Casta-

neda v. Pickard, 648 F.2d 989, 1001 (5th

Cir. 1981) (with particular reference to a

"discrimination" finding in Title VII

actions). Apart from this statement,

the District Court stated only that the

"([djefendant [had] not submitted statisti-

cal evidence rebutting plaintiff-interve-

nor's case with respect to discrimination

in those grades." It did direct counsel

- 16a -

for the plaintiffs to submit "Proposed

findings of fact and conclusions of law

consistent with the above [conclusory]

findings" of discrimination and of non-

rebuttal. It is the findings and conclu-

sions so submitted by plaintiffs‘ counsel

which the defendant attacks as entitled to

little or no weight for accepting without

question the plaintiffs' contentions as

stated in the submitted findings, and for

disregarding entirely in those findings the

evidence and contentions offered by it.

We, along with other courts, have on a

number of occasions- one as recently as a

few months ago in Holsey v. Armour &

Company, 683 F.2d 864 (4th Cir. 1982)-

expressed our disapproval of a trial

court's practice of announcing its decision

and then requesting the prevailing party to

aby. trade findings of fact and conclusions of

law which the court adopts almost word-for-

- iva -

word in support of its previously announced

decision. The reason for such disapproval

is inherent in Rule 52(a), Fed. R. Civ.

P., a fair compliance with which "requires

the trial court to find the fact on every

material issue, including relevant sub-

Sidiary issues, and to ‘state separately'

its conclusions thereon with clarity.”

Kruger v. Purcell, 300 F.2d 830, 831 (3d

Cir. 1962); De Medina v. Reinhardt,

686 F.2d 997, 1011 (D.C. Cir. 1982).

3/ In De Medina, the court said: (p. 1011)

"It is established that the

requirement of fact findings cannot be

met by a ‘statement of ultimate fact

without the subordinate factual

foundations for it which must be

the subject of specific findings.'

O'Neill v. United States, 411 F.2d

139, 146 (3d Cir. 1969). Further, the

fact findings must touch all material

issues. ‘Por this court to exercise

adequately its power of review, the

district court must make specific

findings about the nature and truth of

{[plaintiffs'] allegations.' Borrell

v. ICA, 682 F.2d 981 at 992 (D.C. Cir.

1982).

- 18a -

As the Court in Sims v. Greene, 161 F.2d

87, 89 (3d Cir. 1947), said in language

quoted and approved by us in Consolidation

Coal Co. v. Disabled Miners of So. W. Va.,

442 F.2d 1261, 1269 (4th Cir), cert.

denied, 404 U.S. 911 (1971), "[t]he conclu-

sion is inescapable that since a district

court is required by the rule [Rule 52(a)]

-to make findings of fact, the findings must

be based on something more than a one-sided

presentation of the evidence," or, as

the Court in the same opinion repeated,

"[fl)inding facts [under Rule 52(a)] re-

quires the exercise by an impartial tribu-

nal of its function of weighing and ap-

praising evidence offered, not by one party

to the controversy alone, but by both.

See to the same effect: McManus v. Midland

as)

’

4/ Quoted with approval in Hershey-Cream-

ery Co. v. Hershey Chocolate Corp., 6 °

Supp. 45, 48 (S.D.N.Y.).

- 19a -

Valley Lumber Co., 348 F.2d 898, 900 (4th

Cir. 1962) ("... must necessarily consider

all available evidence bearing upon the

issue"); Burgess v. Farrell Lines, Inc.,

335 F.2d 885, 889 (4th Cir. 1964); Sligh v.

Columbia, Newberry and Laurens Railroad

Co., 250 F. Supp. 490, 491 (D.S.C. 1966),

aff'd. 370 F.2d 979, cert. denied, 380 U.S.

1007. ~

This application of Rule 52(a), it is

true, does not require the trial court to

deal with every piece of evidence in the

record or every argument made during the

proceeding, whatever their value, but it

does mean that "(tThe reviewing court

deserves the assurance [given by even-

handed consideration of the evidence

of both parties] that the trial court has

come to grips with apparently irreconcil-

able conflicts in the evidence ... and has

distilled therefrom true facts in the

- 20a -

crucible of his conscience." Golf City,

Inc. v. Sporting Goods Co., Inc., 555 F.2d

426, 435 (5th Cir. 1977).

All these considerations prompted the

Supreme Court in U.S. v. Crescent Amusement

Co., 323 U.S. 173, 184-85 (1944) to comment

that the adoption of "findings [proposed by

one of the parties to the suit and adopted

by the trial judge] leave much to be

desired in light of this function of the

trial court," under the Rules. This is so

because an appellate court will "'feel

Slightly more confident in concluding that

important evidence has been overlooked or

inadequately considered' when factual

findings were not the product of personal

analysis and determination by the trial

judge." James v. Stockham Valves &

Fittings Co., 559 F.2d 310, 314 n.1 (5th

Cir.), cert. denied; 434 U.S. 1034 (1978).

Nor is that disquiet, prompted by the trial

- 21a -

court's adoption of one party's findings

and conclusions, relieved by any statement

in such findings and conclusions that the

trial court had "'individually considered'

them and adopted them because it ‘believed

them to be factually and legally correct;

[even though] a cursory reading of the

district court's memorandum leaves one with

the impression that it was indeed written

by the prevailing party to the bitter

dispute." Amstar Corp v. Domino's Pizza,

Inc., supra, 615 F.2d at 258.

The adoption by the District Court of

proposed findings and conclusions, though

disapproved, will not, however, warrant

reversal of the cause per se nor does it

mean that the "‘clearly erroneous'" rule of

Rule 52(a) will not be applied at all,

simply because the findings and conclusions

were developed by one of the parties and

adopted in course by the judge. As the

- 22a -

Court in Flowers v. Crouch-Walker Corp.,

551 F.2d 1277, 1284 (7th Cir. 1977), after

observing that "the district [had] adopted

[in that case] without change findings of

fact and conclusions of law prepared by

the defendant," said: "[a] critical view

of a challenged finding is appropriate

where, as where, the findings of fact and

conclusions of law of which it is a part

were not the original product of a disin-

terested mind.” Again, in Photo Elec-

tronics Corp. v. England, 581 F.2d 772, 777

(9th Cir. 1978), the Ninth Circuit ex-

pressed itself similarly, declaring that,

while "the fact that the trial judge has

adopted proposed findings does not, by

itself, warrant reversal ... it does raise

the possibility that there was insufficient

independent evaluation of the cvidence and

may cause the losing party to believe that

his position has not been given the

- 23a -

consideration it deserves. These concerns

have caused us to call for more careful

scrutiny of adopted findings." See also,

United States v. State of Wash., 641 F.2d

1368, 1371 (9th Cir.), cert. denied,

U.S. _ _, 1902 S.Ct. 1001, ("Verbatim

adoption of proposed findings of fact by

the district court ... calls for close

scrutiny by an appellate court"); and

Shlensky v. Dorsey, 574 F.2d 131, 149 (3d

Cir. 1978) (such adoption requires the

appellate court to "examine them more

narrowly").

When the findings of fact and conclu-

sions of law adopted by the District Court

have been given that “careful scrutiny” by

the appellate court that is required under

such circumstances and have been "more

narrowly” examined than findings and

conclusions which, because developed

independently by the trial judge, provide

- 24a -

assurance that the District Judge making

the findings and conclusions "did indeed

consider all the factual questions thor-

oughly and .. guarantee[s] that each word

in the finding [was] impartially chosen,"

Louis Dreyfus & Cie, v. Panama Canal Co.,

298 F.2d 733, 738 (5th Cir. 1962, Wisdom,

J.), and when, the reviewing court, on the

entire record, "is left [after such review]

with the definite and firm conviction that

a mistake has been committed,” United

States v. Gypsum Co., 333 U.S 364, 395

(1948), or it is convinced that “the result

in a particular case does not reflect the

truth and right of the case," Armstrong

Cork Co. v. World Carpets, Inc., 497 F.2d

496, 501 (5th Cir. 1979), cert. denied, 444

U.S. 932, it is the duty of the appellate

court to reverse the findings and conclu-

sions as clearly erroneous.

It is important, too, to note, before

- 25a -

addressing the merits of the case, the

limited nature of the district Court's

finding of discrimination in the class

action, as declared by it in both its

"Memorandum of Decision" and in the subse-

quent findings of fact and conclusions of

law adopted by it. In its "Memorandum,"

the District Court, while finding discrimi-

nation -in affording "black employees

opportunities for advancement and assign-

ment equal to opportunities afforded white

employees in pay grades 4 and 5," made it

clear that "[o]ther than in the above

particulars, [i.e., in promotions in pay

grades 4 and 5], however, there does not

appear to be a pattern and practice of

discrimination pervasive enough for the

court to order relief.”

This narrowing of the issues in the

class action to promotions out of pay

grades 4 and 5 was restated in the later

- 26a -

findings and conclusions. Thus, finding of

fact #56, as adopted by the District Court

is:

"Except for promotions from pay grades

4 and 5, plaintiffs' and defendant's

data ... indicated no statistically

significant difference in the initial

job assignments and pay grades,

performance evaluations or promotion

of black and white employees."

The same ruling was included in the Dis-

trict Court's conclusions of law #27:

"The Court concludes that there

was no showing that the bank had

discriminated against black employees

with respect to promotion out of

grades 6 and above, and that defendant

did not violate Title VII or 42 U.S.C.

§ 1981 with respect to promotions

out of grade 6 and above."

Moreover, the finding of discrimination in

pay grades 4 and 5 was one of a pattern and

practice of discrimination in those

grades. The establishment of a pattern or

practice of discrimination requires proof

of “more than the mere occurrence of

isolated or ‘accidental’ or sporadic

discriminatory acts" and depends upon a

- 27a -

finding by "a preponderance of the evidence

that racial discrimination was the [defen-

dant's) standard operating procedure- the

regular rather than the unusual practice."

Teamsters v. United States, 431 U.S. 324,

336 (1977).

With the issues in the class action

claim thus limited the District Court

proceeded to state’its conclusions on those

issues (Conclusion #17):

"Black employees assigned to pay

grades 4 and 5 have, during the

relevant time period, been retained in

these grades for longer periods than

comparable white employees and passed

over for promotion solely because of

their race and color. Using two

Statistical methods, plaintiffs

demonstrated disparate treatment by

defendant of black employees in these

grades, that black employees have

been retained in these grades for

significantly longer periods even when

their relative qualifications are equal

to white employees and that the

disparate treatment is statistically

significant at the 5 percent level.”

The Court earlier in its findings had set

forth the factual basis for that conclu-

- 28a -

sion. It declared in such findings that

the statistical evidence proffered by the

plaintiffs and the defendant as well as\—"

"(t]he oral testimony of class members" had

established "a prima facie case that black

employees in pay grades 4 and 5 [had] been

denied promotions from these grades solely

because of their race," that, in response,

the defendant had “offered no explanation

for its unfavorable treatment of black

employees in pay grades 4 and 5," and

"therefore [it found], based on all of the

evidence of record, that black employees

who [had] been assigned to pay grades 4 and

5 between 1974 and the date of trial [had]

been deprived of rights under Title VII."

It is manifest from these statements that

the District Court's findings and conclu-

sions rest on “the statistical evidence" in

the record and “the oral testimony of class

members."

- 29a -

Before examining the statistical

evidence relied on by the District Court

for support for these findings and conclu-

sions, we would review the "oral testimony

of class members" which the District Court

found supplemented the statistical evidence

in establishing discrimination in pay

grades 4 and 5. There were only three

"class members" who testified, and to whom

the finding of supportive “oral testimony

of class members" could apply in connection

with discrimination in promotions out of

pay grades 4 and 5. These were Alfred

Harrison, Elmore Hannah and Emma Ruffin,

they being the only live employee-witnesses

who were members of a class of employees

not promoted out of pay grades 4 and

5. ##The claim of Elmore Hannah, one of

5/ That only employees in pay grades 4 and

5 were “class members” in evaluating promo-

- 30a -

the three non-promoted witnesses in pay

grades 4 or 5, was fully discussed and

the District Court made very clear findings

on his claim. The Court found that Hannah

had been “employed through the Bank's

handicapped program" at pay grade 3 and,

when tri’, at higher grade level jobs, had

"failed to demonstrate that he was quali-

fied or able to perform the job positions

he requested.” His claim was accordingly’

dismissed by the District Court as without

merit. The claim of Hannah was accordingly

unavailable as a support for any finding of

5/ continued

tions out of those pay grades is indicated

in the District Court's order filed on May

29, 1981, denying intervention by Phyllis

Baxter, Brenda Gilliam, Glenda Knott, and

Sherri McCorcke becaue these "were in

grades higher than grade 5 [and] are not

entitled .. to be treated as members of the

Class which gained rights in this litiga-

tion". It did recognize the rights of

Alfred Harrison and Emma Ruffin as members

of the class. “

- 3la -

discrimination; indeed, the defendant's

efforts at placing Hannah in higher level

jobs demonstrated, if anything, an absence

of discriminatory practice on defendant's

part against handicapped blacks. That

leaves the "oral testimony" of Ruffin and

selael s that of the only "class mem-

bers," out of the countless numbers who had

been employed in these two classes, who

could be said to support the statistical

evidence on which the District Court rested

its findings of a pattern of discrimina-

tion, as found in this case.

6/ Ruffin applied, according to her

testimony, for a typist position. She,

along with other applicants, took a typing

test. There is no evidence that her test

qualified her for the promotion nor that

her qualifications were superior to the

person selected. The same is true in the

case of Harrison. While the District Court

made the bald statement that he “made an

adequate showing on the tests for the posi-

tion," there is no evidence in the record

to support a finding that Harrison's

- 32a -

This case accordingly presents quite

a contrast with Teamsters where the “oral

testimony of class members" demonstrated

40 cases of specific instances of discrimi-

nation in support of the statistical evi-

6/ continued

showing on the tests was the same as the

one selected for the vacancy, much less

that he was only better qualified. It is

true he had been in the Army but his only

assignment was, by his own testimony,

"processing requisitions and in handling

computer printouts." See United States

Postal Service of Governors v. Aixkens, 665

F.2d 1057 (D.C. Cir.), cert. granted,

U.S. (1982), 50 U.S.L.W. 3765, dis-

cussed later in connection with the plain-

tiff Cooper's claim. Upon oral argument of

this case in the Supreme Court, even coun-

sel for the plaintff-employee conceded that

a prima facie case of alleged discrimina-

tory denial of promotion would be rebutted

by a showing of superior qualifications of

the person employed over the plaintiff; the

contention of the defendant, which was the

issue on which certiorari had been granted,

was that, in order to establish a prima

facie case, superior qualifications of the

plaintiff has to be proved. Unquestion-

ably, there is no evidence in this record

that either Ruffin or Harrison was superior

in qualifications to the person selected

for the vacancy in question.

- 33a -

dence offered by plaintiffs or with that in

our own case of Chisholm v. United States

Postal Service, 665 F.2d 482, 495 (4th Cir.

1981), where there were 20 “class members"

testifying of individual discrimination.

Here all we have is the testimony of but

two class members testifying of individual

discrimination in promotion out of either

pay grade 4 or pay grade 5 on which a

finding of discriminatory practices can be

rested. This is even less of a presenta-

tion of oral testimony in support of a

pattern of discrimination than that found

wanting in Ste. Marie v. Eastern R. Ass'n.,

650 F.2d 395, 405-06 (2d Cir. 1981), where

the Court declared that the small number of

incidents of discrimination in promotion

over a period of years in that case “would

be insufficient to support the inference of

a routine or regular practice of discrimi-

- 34a -

nation ...," Or, in Goff v. Continental

Oil Co., 678 F.2d 593, 597 (5th Cir. 1982),

where the Court held that "even if all

three witnesses' accounts of racial dis-

crimination were true, this evidence would

not have been enough to prove a pattern or

practice of company-wide dicrimination

by Conoco." It follows that these two

incidents of failure to promote Ruffin or

Harrison, even if regarded as discrimina-

tory, (which we assume only arguendo),

would not support the District Court's

finding of a pattern of class discrimina-

tion in promotions out of grades 4 and 5 or

offer any reinforcement to an inference of

discrimination derived from statistical

proof under Ste. Marie v. Eastern R.

Ass'n. and Goff, there was an absence of

7/ To the same effect, see United States

Vv. Jacksonville Terminal Co., 451 Fead 418

(Sth Cir. cert. denied, 406 U.S. 906

(1972).

- 35a -

sufficient basis for a finding of a pattern

of discrimination in promotion out of pay

grades 4 and 5.

It is true that a number of "live"

witnesses other than Ruffin and Harrison

testified for the plaintiffs. This number

includes the four plaintiffs Cooper, Moore,

Hannah and Russell and certain other past

Or present employees who moved, after

adverse decisions, to intervene as plain-

tiff-intervenors. This latter group

consisted of Phyllis Baxter, Brenda Gil-

liam, Glenda Knott, Alfred Harrison and

Sherri McCorcke. In denying the motion the

District Court stated that all intervenors

"in grades higher than grade 5" were not

members of the class in whose favor the

District Court had found "“classwide dis-

crimination." By this test, Cooper,

Moore, Russell, Baxter, Gilliam, Knott and

McCorcke were not members of the class in

- 36a -

which discrimination was found and their

testimony could not have been included

within the District Court's term “oral

testimony of class members,” complaining of

promotion out of either pay grade 4 or 5;

only the testimony of Ruffin and Harrison

met that qualifying standard. However,

it is interesting to review the employment

records of these witnesses, other than

Ruffin and Harrison, in order to see how

they were promoted out of pay grades 4 and

5. Thus, Baxter hired at pay grade 5, was

promoted to pay grade 6 seven months after

she was hired. Gilliam,, hired at pay

grade 4, was promoted to pay grade 5 within

approximately 17 months, and within eleven

months afterward to pay grade 6; McCorkle,

hired at pay grade 4, had in 24 months been

promoted two grades to grade 6; and Knott,

hired at grade 5, was promoted to grade 6

within 6 months after employment at the

- 37a -

Charlotte branch. Russell was employed at

pay grade 4, was promoted twelve months

later to pay grade 5, and within a month or

so, to pay grade 6. Cooper was employed

initially at pay grade 3, was promoted two

months later to pay grade 4, fifteen months

later to pay grade 5, and eleven months

later to pay grade 6. The intervenor

Hannah was found by the District Court not

to have suffered discrimination.

The experience of these seven black

employees, (Cooper, Russell, Moore, Baxter,

Gilliam, Knott and McCorkle) all of whom,

with the exception of Ruffin, Harrison and

Hannah, had promoted ovt of pay grades 4

and 5 in periods either less than or

equivalent to the average of white employ-

ees, far from supporting any proof of

discrimination in promotions out of pay

grades 4 and 5, represented strong proof of

the absence of class-wide discrimination in

- 38a -

promotion out of pay grades 4 and 5; and

since Ruffin's and Harrison's testimony,

which is the only "oral testimony of class

members" that could in any circumstances be

said to support a charge of a pattern of

class discrimination, is insufficient, the

District Court's finding of a pattern

of class discrimination can find no support

in the "oral testimony of class members” in

pay grades 4 and 5 and must find its basis

in the statistical evidence and in that

evidence pe

Statistics, when properly authenti-

cated constitute an accepted form of cir-

cumstantial evidence of discrimination and

may sometimes be sufficient to establish

8/ It should be noted that the District

Court found- and the plaintiffs do not

contest this finding- that there was no

class-discrimination in promotions in pay

grades 6 and above.

- 39a -

without more prima facie proof of discrimi-

nation. But statistics "come in infinite

variety” and their usefulness or weight

"depend[s] on all of the surrounding facts

and circumstances," Teamsters v. United

States, 431 U.S. at 340, and on "'the ex-

istence of proper supportive facts and the

absence of variables which would undermine

the reasonableness of the inference of dis-

crimination which is drawn"' therefrom,

White v. City of San Diego, 605 F.2d 455,

460 (9th Cir. 1979). Inaccuracies or var-

iations in data or in the formulae used

to test such data may easily lead to dif-

ferent, contradictory, or even misleading

conclusions by experts. This fact promoted

one court to comment that too often statis-

tical conclusions “appear to depend in

large part on the side producing them....”"

Stastny v. Southern Bell Tel. & Tel. Co.,

458 F. Supp. 314, 324 (W.D.N.C.) aff'd in

- 40a -

Part and rev'd. in part, 628 F.2d 267

(1980). And the sophisticated way in which

Supporting data may be used in developing

Statistical models in discrimination cases

has lead another Court to caution about

"the manipulability of statistics in

inguiries of [that] sort," Bilingual

Bicultural Coalition, Etc. v. F.C.C., 595

F.2d 621, 625 n.7 (D.C. Cir. 1978), and

still another to suggest that Title VII

cases too often develop into “contests

between college professor statisticians who

revel in discoursing about advanced sta-

tistical theory" and propounding increas-

ingly complex statistical models. Otero v.

Mesa Cty. Valley Sch. Dist. No. 51, 470 F.

Supp. 326, 331 (D. Colo.), aff'd., 628 F.2d

1271 (1980).

9/ This very manipulability of statisti-

Cal modeling caused the writer in the Note,

- 4la -

We do not mean to suggest that statis-

9/ continued

Judicial Refinement of Statistical Evidence

in Title VII Cases, 13 Conn. L. Rev. 515,

525-26 81981), to warn:

"Statistics can be exaggerated,

over-simplified, or distorted to

create support for a position that is

not otherwise supported by the evi-

dence. Samples with built-in biases,

unqualified statements of ‘average'

values, and improper mathematical

operations with statistics are areas

of statistical manipulation that

can misrepresent the data."

In S. Agid, Fair Employment Litiga-

tion: Proving and Defending a Title VII

Case, 540 (2d ed. 1979), the author speaks

of the “legendary amenability of manipula-

tion and abuse" of statistical evidence.

And in Wilkins v. University of Houston,

654 F.2d 388, 395 (5th Cir. 1981), vacated

and remanded, U.S. __, 51 U.S.L.W.

3252, October 5, 1982, the Court referred

to the “inherently slippery nature" of the

statistical evidence.