Petition — Georgia-Pacific Corp. v. Boykin

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g 3-840 [Bie Supreme Cour, US

Woy 11 1983

No.

L. STEVAS

CLERK

In the Supreme Court of the United States

October Term, 1983

GEORGIA-PACIFIC CORPORATION,

Petitioner,

VS.

ROBERT BOYKIN, ET AL..,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

L. ARNOLD PYLE

(Counsel of Record)

PyYLe, Harris, DREHER & MILLs

Suite 390, 111 Capitol Building

Jackson, Mississippi 39201

Peyton S. IrsBy, Jr.

Watkins, LuUDLAM & STENNIS

20th Floor, Deposit Guaranty Plaza

Jackson, Mississippi 39201

Attorneys for Georgia-Pacific Corpora-

tion, Petitioner

E. L. Menpenwatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3080

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals for

the Fifth Circuit ignored the Supreme Court’s decision

last term in Pullman-Standard v. Swint and abused its

authority pursuant to Federal Rule of Civil Procedure 52 (a)

when it held that the District Court’s factual finding of

non-discriminatory intent did not rebut the Plaintiff's

statistical prima facie case of racial discrimination?

2. Whether the United States Court of Appeals for

the Fifth Circuit ignored the Supreme Court’s decision

last term in Pullman-Standard v. Swint and abused its

authority pursuant to Federal Rule of Civil Procedure

52(a) when it ignored the District Court’s factual findings

concerning the validity of the statistical evidence and ruled

that the statistics were sufficient to make a prima facie

case of racial discrimination?

3. Whether the Circuit Court abused its discretion in

reversing the District Court decision denying permanent

class certification and substituting its own judgment that

class certification was appropriate and mandating the same

in this action.

CERTIFICATE OF INTERESTED PERSONS

_ The undersigned, counsel of record, certifies that the

following listed persons have an interest in the outcome

of this case.

Georgia-Pacific Corporation

International Woodworkers of America,

AFL-CIO, CLC

Robert L. Boykin :

Thomas R. Powell |

And

All present and former black employees at the Petitioner’s

plant in Goss, Mississippi.

L. ARNOLD PYLE

Attorney for Petitioner

rit

TABLE OF CONTENTS

QUESTIONS PRESENTED .000.22..2...2020.-...csceccscscecsssnsecsossoseee I

CERTIFICATE OF INTERESTED PERSONS ................ II

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STATEMENT OF CASE AND FACTS .....000....-. ee 2

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APPENDIX—

Appendix “A”—Opinion of the U. S. Court of Ap-

peals for the Fifth Circuit, Boykin, et al. v.

Georgia-Pacific Corporation, 706 F.2d 1384

Re NT REE ISL MILER VO oh Al

Appendix “B”—Circuit Court’s Order on Sugges-

tion for Rehearing En Banc ...................----cesee0eeees A24

Appendix “C’—U. S. Magistrate’s Recommenda-

TE i ciiasciacczdeceseincdircitcstateariccnpipioddaieniaaaesaamalamaa A26

Appendix “C-1”—Order of U. S. District Judge .... A73

Appendix “D’—Opinion - Equal Employment Op-

portunity Commission v. Georgia-Pacific Corpo-

ration, et al., 450 F.Supp. 1227 (1977) ................ A74

Table of Cases

Boykin v. Georgia-Pacific, 706 F2d 1384 (5th Cir.

EE hcbictechansdiaidinsapnilcasingitnihecapitoabiihrirtctpccaadieeaaae passim

Castandea v. Partida, 430 U.S. 482, 496, 97 S.Ct. 127,

126, S21 Ladd 407 (1977) nccccnneeeccccnneecccccovesescon 13, 14, 15

Crawford v. Western Electric Co., 614 F2d 1300, 1305

(Ob Cie, 1908) 63 etnies 16

East Texas Motor Freight v. Rodrigues, 431 U.S. 395

IR Gphsdlatdctictrencsnseninbesvbiescotenesasicoobehsahtnnighiniialocnveiiepactem 17,18

Equal Employment Opportunity Commission v.

Georgia-Pacific Corporation, 450 F.Supp. 1227 (1977) 7

Fisher v. Procter & Gamble Mfg. Co., 613 F2d 527, 544

(5th Cir. 1980), cert. denied, 449 U.S. 1115 (1981) 12

Garcia v. Gloor, 618 F2d 264 (5th Cir. 1980), cert de-

SITE, AI Ca BAND CRIED i ecccccicticrrcestesieentenetorvtaionnones 16

General Telephone Company of the Southwest v.

Falcon, 457 U.S. 147, 72 L.Ed.2d 740, 749 (1982) ... 18

International Bhd. of Teamsters v. United States, 431

I ITE A is nldireitc suciasdcdpcnesainacdduatapuineeecbnbnebtoetiadiieaa 8,11

Pouncy v. Prudential, 668 F2d 795 (5th Cir. 1982) ........ 13

Pullman-Standard v. Swint, 456 U.S. 273, 285 (1982)

a Sea alia clk kocalahbislaccs chaspigarensachieen 8, 10, 11, 13, 19

Schlesinger v. Reservists Committee to Stop the War,

— § oO | RRR earcneme mena PLS Le EAN 18

United States v. Hayes Int’l Corp., 456 F2d 112, 120

LN . ; a a Oe 2H RES * 9

No.

In the Supreme Court of the United States

October Term, 1983

GEORGIA-PACIFIC CORPORATION,

Petitioner,

vs.

ROBERT BOYKIN, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Georgia-Pacific Corporation, your Petitioner, prays

that a Writ of Certiorari issued to review the Judgment

of the United States Court of Appeals for the Fifth Circuit

in this case.

OPINIONS BELOW

The Opinion of the Court of Appeals for the Fifth

Circuit, officially reported at 706 F.2d 1384 (1983), is

printed in full as Appendix “A”. The Order of the Fifth

Circuit denying Petitioner’s Petition for a Rehearing En

Banc (not officially reported) is printed in full as Appendix

“B”. The Opinion of the United States District Court for

the Southern District of Mississippi (not officially re-

ported), is printed in full as Appendix “C” and “C-1”.

;

———_—

JURISDICTION

The Judgment and Opinion of the Court of Appeals

for the Fifth Circuit were entered on June 16, 1983. The

Order of the Circuit Court of Appeals for the Fifth Circuit

denying Petitioner’s Petition for a Rehearing En Banc was

entered on August 15, 1983. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATEMENT OF CASE AND FACTS

An action claiming “nlawful employment discrimi-

nation was brought by International Woodworkers of

America (IWA) under Title VII, 42 US.C., § 2000(e)

Et. Seq. and 42 U.S.C. § 1981 under the guise of challenging

alleged racial discrimination in the employment, assign-

ment and promotion of blacks at the Georgia-Pacific Chip-

ping Saw Mill in rurai Goss, Mississippi. The Chipping

Saw Mill had been constructed and commenced operation

during August, 1970, with a work force of approximately

thirty-five (35) employees. Many of these initial em-

ployees were craftsmen recruited from the work forces

of the contractors who built the plant or were trans-

ferred from other Georgia-Pacific facilities. It required

a number of skilled and semi-skilled workmen to operate

it. However, a substantial portion of the work force

required were utilized in what was known as utility

positions, requiring little or no education and little or

no previous experience or skills. The work force in-

creased to between sixty (60) and seventy (70) persons

when running with one shift a day or to one hundred

(100) to one hundred ten (110) persons when running

two shifts a day up unti) July, 1974, after which the

plant has maintained a norma! full complement of em-

ployees of approximately sixty (60) to seventy (70). The

evidence in the record of trial in this case fails to disclose

a single instance where an employee has filed a charge

with EEOC claiming to have been discriminated against

because of his or her race or his or her sex. The only

charge of employment discrimination was filed by an

attorney representing the Labor Union, IWA, AFL-CIO,

CLC. At the time of the filing of the charge by IWA

claiming employment discrimination, the Union, IWA, was

the NLRB certified exclusive bargaining agent of the

hourly employees at the sawmill. The charge was filed

July 26, 1972, during the course of an economic strike

which the IWA called as part of its unsuccessful effort

to obtain a collective bargaining agreement. The strike

collapsed after one week. By the time the right to sue

letter was issued, May 18, 1973, and this action commenced

August 15, 1973, the IWA had abandoned any attempts

to represent the employees of this facility. The abandon-

ment was confirmed by a formal withdrawal of represen-

tation status on July 5, 1974. DX 29; TR at 1119-1120.

Counsel for the Union arranged for the individual Plain-

tiffs, Robert Boykin, Thomas Powell and T. J. Gholar

to join the Union as Plaintiffs in this action. All three

(3) of the named individual Plaintiffs were sympathizers

and among those who were out on strike at the time of

the Union’s efforts to obtain a collective bargaining agree-

ment with Petitioner. None of these named Plaintiffs

ever filed a charge with the EEOC claiming that he had

been discriminated against in any manner as an employee

at Petitioner’s plant.

The initial charge of the IWA claimed discrimina-

tion in hiring, assigning and promotion of employees.

After the hearing in the District Court when the evidence

of the Plaintiffs themselves cleaily demonstrated that

Georgia-Pacific had not, at any time, practiced discrimi-

nation in its employment at the plant, the charge of dis-

crimination in employment was dropped.

Plaintiff, T. J. Gholar, did not appeal the dismissal

of his claim to the Circuit Court. The only two individual

Plaintiffs with an appeal before the Circuit Court were

Robert Boykin and Thomas Powell. The only alleged

discrimination before the Court at this time is in the

area of job assignment and job promotions.

The evidence in the record will clearly show that

both Boykin and Powell had long since abandoned their

employment at Petitioner’s plant prior to the filing of

this action.

On March 30, 1976, the District Court, Chief Judge

Dan M. Russell, Jr., appointed the United States Magistrate,

John M. Roper, as a special master, pursuant to F.R.C.P.

53 for the purpose of hearing the evidence presented by

the parties at the liability hearing and for recommenda-

tions to the District Court for its decision.

The case was tentatively certified by the Magistrate

as a class action for the purpose of discovery and the

“presentation of evidence with respect to class claims.”

The trial commenced on June 14, 1976, and continued

for five (5) days. A transcript of thirteen hundred fifty-

eight (1,358) pages was compiled recording the testimony

of thirty-four (34) witnesses, including two (2) expert

witnesses, one presented by the Plaintiffs, and one pre-

sented by the Defendant.

The requested findings of fact, and conclusions of law,

together with legal memoranda in support thereof, were

timely presented to the Magistrate by the parties. The

Magistrate took the case under advisement for decision.

Many months went by and no suggested findings and

conclusions had been made by the Magistrate.

On August 17, 1981, Plaintiffs’ counsel filed a motion

requesting Chief Judge Dan Russell to enter an order di-

recting Magistrate Roper to prepare and file his findings

of fact and conclusions of law and recommendation with

the Court within forty-five (45) days. A short time prior

to the date of the hearing on the pending motion, Magistrate

Roper issued and filed with the Court very extensive find-

ings of fact and conclusions of law with recommendations

to the Court. He determined that the Plaintiffs had failed

to prove their individual claims of discrimination and that

the Plaintiffs had failed to prove classwide discrimination

in Petitioner’s plant and denied certification of the class

as requested by Plaintiffs. (See Appendix “C”).

On November 27, 1981, Judge Russell entered an order

adopting Magistrate Roper’s findings and conclusions as

the Opinion of the Court in this action. (See Appendix

“C.1”).

From the Judgment of the District Court entered on

November 27, 1981, two (2) of the three (3) named Plain-

tiffs and the IWA appealed to the United States Court of

Appeals for the Fifth Circuit.

On June 16, 1983, the United States Court of Appeals

for the Fifth Circuit reversed the decision of the District

Court on both legal and factual issues and determined that

Georgia-Pacific was guilty of classwide racial discrimina-

tion. Boykin v. Georgia-Pacific, 706 F2d 1384 (5th Cir.

1983). (Appendix “A”). The case was remanded to the

District Court for the sole purpose of determining whether

each individual member of the class was entitled to dam-

ages.

Defendant’s Petition for Rehearing En Banc was denied

by Order entered by the Fifth Circuit on August 15, 1983.

(Appendix “B”).

Petitioner respectfully submits that the Circuit Court

was apparently so concerned with the delay of the Magis-

trate in rendering his findings and recommendations in this

case that it set out to make findings and reach conclusions

of its own with little regard to the facts as reflected by

the record. The attitude of the Circuit Court toward Peti-

tioner is clearly set forth in the opening paragraph of its

opinion when it wrote:

The only thing more shocking than the racial discrim-

ination practice by Defendant Georgia-Pacific Corpora-

tion is the unconscionable delay by the Magistrate of

more than five (5) years in rendering a decision in this

action. It is all too obvious that but for the Plaintiff's

filing of a motion directing the Magistrate to issue a

decision within forty-five (45) days, we would not yet

have this case before us. 706 F2d 1384.

This statement was written in face of an abundance of

undisputed facts in the record which clearly demonstrated

that the Petitioner, Georgia-Pacific Corporation, a repu-

table American company, had made strenuous efforts and

had been successful in maintaining a high profile as an

equal opportunity employer since the opening of its plants,

not only the Chipping Saw Mill at Goss, Mississippi, but

numerous other plants throughout the State of Mississippi

in the late 1960’s. (See Appendix “D”).

The Circuit Court, in criticizing Georgia-Pacific com-

pletely disregarded the findings of the Magistrate in his

Recommendation, A33:

The evidence before the Court presents the picture of

a company attempting to establish itself as an ‘affir-

mative action’ employer since the inception of this

plant. Specifically, before the plant opened, the Com-

pany made a determination to hire and maintain a

workforce with at least 30% black employees, the per-

centage of available blacks in the workforce in the sur-

rounding counties. In this regard, the Defendant work-

force has always been over 30% black, and usually 40%

to 50% black. (TR 891-892, Exb. P-1).

Further, the Defendant instructed the Mississippi State

Employment Service to refer all applicants to it on a

nondiscriminatory basis. All advertisements for em-

ployees, the employee handbook, and the policy man-

ual state unequivecally that Defendant is an equal op-

portunity employer. [Exb. D-22, D-5(a), (b), (c) and

(d), TR 900-901]. Defendant has also posted equal op-

portunity notices on all bulletin boards. Further, De-

fendant has been very active in its support of ‘cluster

programs” at two predominantly black universities,

and has advised all potential sources of job applicants

of its program as an equal opportunity employer.

Also, the harsh criticism of Petitioner was entered and

published by the Fifth Circuit, 706 F2d 1384, in complete

disregard of the findings of the United States District Court

for the Northern District of Mississippi in Equal Employ-

ment Opportunity Commission v. Georgia-Pacific Corpora-

tion, 450 F.Supp. 1227 (1977). This was an action by the

EEOC represented by Commission attorneys of Atlanta,

Georgia, in which all other plants, operations and entities

of Georgia-Pacific Corporation in the State of Mississippi

were made parties in a Title VII class action suit. The

District Court there, after a full-blown hearing consum-

ing two (2) full weeks, found that there had been no dis-

crimination by Georgia-Pacific Corporation against its em-

ployees because of their race and/or sex and found against

the Commission on all issues. The action was dismissed

at the cost of the Commission, and no appeal was taken

therefrom. (Appendix “D”).

ARGUMENT

Petitioner prays that a Writ of Certiorari issue in this

case for the following reasons:

In International Bhd. of Teamsters v. United States,

431 U.S. 324 (1977) the United States Supreme Court set

out the burden of proof scheme the lower courts are to

follow in Title VII class action cases. The plaintiff has

the initial burden of demonstrating a prima facie case of

discrimination. The plaintiff may surmount this burden

by introducing pertinent statistical information. Id. at 360.

This statistical information may serve to demonstrate the

defendant’s discriminatory intent. The determination of

whether a party is guilty of an intent to discriminate, as

this Court recently stated, is clearly a question of fact that

will not be reversed unless clearly erroneous. Pullman-

Standard v. Swint, 456 U.S. 273, 285 (1982). Once this

burden is satisfied, the burden shifts to the defendant

either to discredit the plaintiff’s statistics or to provide

non-discriminatory reasons for the disparities. Interna-

tional Bhd. of Teamsters v. United States, 431 U.S. at 360

n. 46.

A er determining that the Plaintiffs’ statistical proof

demonstrated a prima facie case of discrimination, the

Fifth Circuit held that the Defendant had failed to rebut

this prima facie case. Boykin, 706 F2d at 1393. The Cir-

cuit Court stated that the Defendant’s “attempt to combat

a prima facie case with evidence about a handful of pro-

motion decisions is doomed to failure because a prima facie

case of class-wide discrimination is not met by [Defen-

dant’s] attempts to pary specific allegations of alleged

discrimination .. .” id. at 1393 quoting United States

v. Hayes Int’l Corp., 456 F2d 112, 120 (5th Cir. 1972).

The Fifth Circuit, while correctly citing the case law,

clearly is mistaken in this conclusion.

The Supreme Court has stated the following:

[Statistics are not irrefutable; they come in infinite

variety and, like any other kind of evidence, they

may be rebutted. International Bhd. of Teamsters

v. United States, 431 U.S. at 340.

The District Court was aware of the vagaries of

statistical evidence, and consequently made a detailed

analysis of the relevancy of the Plaintiffs’ statistics. It was

the factual conclusion of the District Court that this sta-

tistical evidence was not reliable. The District Court, how-

ever, did not conclude its analysis at this point. The

lower court also stated the following:

The Defendant’s [evidence] effectively rebut[s] any

inference which the statistical exhibits of the Plain-

tiffs may have established. Defendant’s evidence in

this regard reveals that Defendant utilized proper

non-discriminatory criteria in selecting individuals for

employment, initial assignment and promotion. The

matching of job openings to the person receiving those

jobs, along with the other evidence presented, clearly

reveals that race was not a factor in Defendant's selec-

tion of employees for employment, initial assignment

or promotion.

In other words, the District Court determined that

even if the Plaintiffs’ statistics were sufficient to show a

prima facie case of discrimination, the Defendant presented

statistical and other evidence that demonstrated non-dis-

criminatory reasons for those statistics. The Fifth Cir-

cuit cannot justifiably dispute that such evidence rebuts

the Plaintiffs’ statistical case. In order to arrive at that

conclusion, the District Court carefully examined and ana-

lyzed the Defendant’s hiring and promotion policies with

regard to the following positions: Foreman, Office Cler-

ical and Office Manager, Saw Filer and Saw Filer Helper,

Electrician, Lead Electrician and Electrician Helper, Mill-

wright, Millwright Helper, Kiln Operdtor and Kiln Opera-

tor Trainee, Crane Operator, Chip-n-Saw Operator, Ship-

ping Clerk, Machine Operator and Machine Helper, Stacker

Operator, Grader and Head Grader and Diesel Mechanic.

Appendix C at pgs. A44-A55. The District Court did not

make a selective examination of certain promotion deci-

sions but instead examined every possibly relevant as-

signment and promotion decision and determined that none

were the product of racial discrimination. These were the

very assignment and promotion decisions upon which the

Plaintiffs’ statistics were based.

In Pullman-Standard, this Court held that a Circuit

Court should not reverse a District Court’s findings of

fact unless those facts were clearly erroneous. 456 U.S. at

285. The District Court in Boykin factually determined

that the Defendant’s hiring assignment and promotion de-

cisions clearly manifested that the disparities presented

in the Plaintiffs’ statistics were not caused by a discrim-

inatory motive. This factual determination rebuts the

Plaintiff's statistical prima facie case. If a Defendant can-

not rebut a statistical prima facie case of racial discrimina-

tion by demonstrating that each decision upon which the

statistics were based was founded upon non-discriminatory

factors, it would appear that a statistical case of discrimina-

tion is irrebuttable. Yet the Fifth Circuit, without revers-

ing a single factual determination and without discussing

Rule 52(a) of the Federal Rules of Civil Procedure, er-

roneously concluded that such evidence does not con-

stitute a rebuttal.

Further, the Supreme Court stated in Pullman-Stand-

ard that a determination of whether a party is guilty of in-

tentional discrimination is a question of fact left up to the

District Court. 456 U.S. at 285. In the present case, the

Fifth Circuit used statistical evidence alone to make this

factual determination. Although statistics may be used for

this purpose, the District Court factually found that these

statistics were rebutted. In doing so the District Court

was making a factual determination of discriminatory in-

tent. Before reversing, the Pullman-Standard decision

mandates that the Fifth Circuit determine that this factual

finding is clearly erroneous. The Circuit Court did not

make this determination. Consequently, it reversed the

District Court improperly.

II.

If the Court is not convinced that the Defendant re-

butted the Plaintiffs’ statistical case, the Fifth Circuit’s

decision in Boykin is also in error because the Fifth Circuit

improperly determined that the statistical evidence itself

was credible.

The Circuit Court ruled initially that the Plaintiff's

statistical proof was credible and sufficient to demonstrate

a prima, facie case. In doing so, the Circuit Court overruled

the District Court’s factual finding that this statistical evi-

dence was not credible. In International Bhd. of Team-

sters v. United States, 431 U.S. 324 (1977), the Supreme

Court stated that the usefulness of statistics “depends on

all the surrounding facts and circumstances.” Id. at 340.

Further the Supreme Court, in Pullman-Standard, stated

in the context of a Title VII suit that a Circuit Court is

bound by the factual determinations of the District Court

unless clearly erroneous. Id. at 285.

In Boykin, the District Court found the following facts

that led him to conclude that the statistical evidence was

not credible. First, the statistics improperly subjectively

determined which job applicant had ‘prior relevant ex-

perience. Second, the statistics were based on surveys

that ignored the fact that there were 35 positions available

at the Georgia-Pacific plant. Third, the District Court

determined that, given the numerous job positions, the

sampling manifested in the statistics was too small to be of

consequence. Fourth, having heard expert opinions from

both sides, the District Court determined that the statistics

did not reflect the complexity of he employment decisions.

Appendix “C” at A55-A57. It was the District Court’s fac-

tual conclusion that the only accurate way in which to

review the Plaintiffs’ charge of racial discrimination was

to examine the actual hiring practice of the Defendant with

respect to each job at the Mississippi plant. Id. at A56.

_ The Circuit Court ignored these findings of fact. First,

the Circuit Court, without stating that the District Court’s

opinion was clearly erroneous, made its own finding that

the statistics covered enough employees to be relevant.

Boykin, 706 F2d at 1391. Second, the Circuit Court, cit-

ing Fisher v. Procter & Gamble Mfg. Co., 613 F2d 527, 544

(5th Cir. 1980), cert. denied, 449 U.S. 1115 (1981), deter-

mined that the other statistical problems uncovered by the

District Court, as a matter of law, were superfluous be-

cause Georgia-Pacific made all promotion decisions based

on training received at the work place. Boykin, 706 F2d

at 1392. The District Court was aware of Georgia-Pacific’s

practice of training for promotion from within but believed

the statistics still did not accurately reflect assignment

and promotion decisions. Appendix C. This was a distinct

factual finding based on factors apart from the on-the-job

training practice. Once again, the Circuit Court reversed

a finding of fact without demonstrating that the District

Court was clearly erroneous.

The Fifth Circuit phrased its decision that the Plain-

tiffs’ statistics were credible by stating that the District

Court made certain errors of law. Actually, the Fifth

Circuit overruled many of the District Court’s factual de-

terminations. If the Circuit Court did not implicitly over-

rule these factual determinations, the District Court’s al-

leged legal errors would be superfluous. As the Supreme

Court stated in Pullman-Standard, the District Court’s

factual determinations should not have been overruled

unless clearly erroneous.

In Pouncy v. Prudential, 668 F2d 795 (5th Cir. 1982),

the Fifth Circuit held that the statistical evidence presented

by the Plaintiff, which evidence was more complete, more

professionally prepared and presented and containing clear

disparities in job assignments and promotions was insuf-

ficient to establish a prima facie case of class discrimination

because of race. Petitioner asks why such a drastic change

in position by the Fifth Circuit within a matter of a few

months? We respectfully submit that if the statistical evi-

dence in Pouncy was insufficient to establish class dis-

crimination, the statistical evidence in this case is “doubly”

insufficient. Petitioner respectfully submits that the hold-

ing of the Fifth Circuit in Pouncy and the holding in this

case cannot amount to equal justice under the Constitution

and laws of the United States.

The Circuit Court’s reliance upon Castandea v. Partida,

430 U.S. 482, 496, 97 S.Ct. 127, 128, 51 L.Ed.2d 497 (1977),

to support its conclusion that Plaintiffs established a prima

facie case with their statistical evidence is totally mis-

placed. In the first instance, Castandea is a criminal case

concerned with the selection of jurors with a fair represen-

tation of the accused’s race or nationality on the grand

jury. The majority opinion of this Court made it quite

clear that the Court was holding that a prima facie case

~—— ——al

established “since statistics showed that Mexican-Amer-

icans constituted a clearly identifiable class as to which the

highly subjected ‘key man’ in the selection procedure was

not racially neutral in view of the easy identifiability of the

Spanish-Surnames and since statistics for the pertinent

eleven-year period, (1962-1972), showed that although the

County’s population was 79.1% Mexican-American, only

39% of the persons summoned for grand jury service were

in such class.” In this case, we are dealing with claims

of discrimination because of race in initial assignment and

promotion of employees in a Chipping Saw Mill where the

statistics used by the Plaintiffs had to necessarily deal with

relevant past experience, job vacancy, seniority, best quali-

fied, and other criteria which are not readily identifiable

and are not reflected in the statistical tables of the Plain-

tiffs.

The binominal distribution statistical analysis used

by the Fifth Circuit in its opinion predicated upon me-

thodology which it states was gained from Castandea v.

Partida, supra, for Plaintiffs’ Table I and Table VI could

be meaningful only if all of the elements utilized in the

analysis were equal. This was forceably demonstrated

by the testimony of Dr. Knox, an expert statistician wit-

ness for Petitioner. Even the Plaintiffs’ expert, Dr. Hen-

derson, had to admit that such binominal distribution

statistical analysis could be meaningful only if all things

were equal. Since the record clearly reflects that all

things were not equal as used in the binominal distribu-

tion statistical analysis of Table I (initial assignment data)

and Table VI (promotion data), the conclusions reached

therefrom by the Fifth Circuit are highly improper and

clearly demonstrate that the Plaintiffs did not establish

a prima facie case with their statistical evidence in this

case.

net

In Castandea this Court stated that “the State offered

no evidence at all either attacking Plaintiffs’ allegations

of discrimination or demonstrating that his statistics were

unreliable in any way.” To the contrary, in this case

the record clearly demonstrates that the statistical evi-

dence submitted by the Plaintiffs was vigorously attacked

by Petitioner and Petitioner’s evidence showed a multi-

plicity of flaws which coupled with the lack of credibility

of the lawyer/witness presenting the statistical evidence,

led the trial court to conclude that the statistical evi-

dence of Plaintiffs was wholly unreliable. Furthermore,

if this Writ should be granted and the Petitioner given

an opportunity, it can be clearly shown by the record

that there was no intentional discrimination by Petitioner

against any individual employee or against any class of

employees at its small Chipping Saw Mill at Goss, Mis-

sissippi. Petitioner respectfully submits that the bold

statement made by the Fifth Circuit in its opinion that

Petitioner offered no evidence to discredit the statistical

presentation made by the Plaintiffs and that no explana-

tion was offered by Petitioner to demonstrate the non-

discriminatory disparities claimed to have been shown

by Plaintiffs by their statistical and other evidence is

simply contrary to the facts found by the District Court.

The District Court’s findings are clearly and completely

supported by the record in this case and should not have

been reversed by the Fifth Circuit.

IT.

The determination by the District Court that this

action was not a proper action for certification as a class

action pursuant to Federal Rules of Civil Procedure 23(a)

was correct and should not have been reversed by

the United States Court of Appeals for the Fifth Circuit.

The District Court properly concluded that the Plain-

tiffs failed to meet their burden of proof required to

establish this action as a class action in two respects:

(1) Plaintiffs failed to prove that there was a proper

representative of the class alleged and (2) that the num-

ber of potential members of the class met the numerosity

test.

The District Court concluded that the prerequisites

for a class action not present in this case included a lack

of a proper representative of the alleged class and the

absence of proof of a sufficient number of employees

affected by initial assignment and promotion to meet the

numerosity test. Garcia v. Gloor, 618 F2d 264 (5th Cir.

1980), cert. denied, 449 U.S. 1113 (1981); Crawford v.

Western Electric Co., 614 F2d 1300, 1305 (5th Cir. 1980).

The Plaintiff union contended it had a right to rep-

resent a class of black employees and applicants in this

action, but the Court found as a matter of fact, undisputed,

that the Plaintiff Union had only engaged in negotiations

for a collective bargaining agreement with the Defendant

for about a three-month period in 1972, during which

period there was a strike of Defendant’s employees for one

week in July of 1972, and that it was during this one week

strike period that Mr. Youngdahl, the Union lawyer, filed

a charge with EEOC; that no employee of Defendant had

at any time filed a complaint of discrimination in violation

of the EEOC laws and regulations; that in mid-1974, the

Union withdrew its legal status as a collective bargaining

representative of Defendant’s employees because of lack

of support. The District Court further found from the un-

controverted facts presented by the evidence that none of

the individual Plaintiffs have had any contact with the

Defendant plant since 1982, long prior to the time of the

commencement of this action on August 15, 1973. The

District Court concluded that none of the individual Plain-

tiffs (originally three, now two) had had any contact with

the Defendant plant since August of 1972, prior to the

filing of this action on August 15, 1973. The District Court

found as a matter of fact, that all of the individual Plain-

tiffs left their employment with the Defendant voluntarily;

that the District Court further found from the facts before

it that none of the three original individual Plaintiffs had

been discriminated against by the Defendant because of

their race. The District Court concluded that the individ-

ual Plaintiffs could not properly represent a class of ap-

plicants in a class of which they are not members. East

Texas Motor Freight v. Rodrigues, 431 U.S. 395 (1977).

The District Court further concluded that the interest of

a sub-class of applicants represented by the individual

Plaintiffs are antagonistic to that of employees seeking

higher positions at the Defendant’s plant. The District

Court further found that there was no evidence presented

to the Court that any applicant had ever been a member

of the Plaintiff Union. The District Court further found

that there was a complete absence of evidence in the record

regarding sufficient numerosity to constitute the need for

the maintenance of this case as a class action. The Dis-

trict Court concluded that the evidence before the Court

did not reveal any employee, other than perhaps Boykin

and Powell “who had ever been members of the Plaintiff

Union”; the Court concluded that the relatively few in-

dividuals who appeared in the Court testifying concerning

alleged discrimination on the part of the Defendant in

initial assignment or promotion could easily have main-

tained an individual action in regard thereto. (Appendix

“C” A61-A63).

In spite of the District Court’s thorough consideration

of the facts before it, the Fifth Circuit, using a distorted

version of the facts established by the record and as con-

sidered by the District Court, such as the delay between

the conclusion of the trial and the submission by the

Magistrate of his findings of fact and conclusions of law, as

the period in which the individual Plaintiffs had not had

contact with the Defendant’s plant was clear error on the

part of the Circuit Court. The District Court’s findings in

this regard very explicitly related to the time period from

the voluntary termination of each of the individual Plain-

tiffs to the time of the filing of this action.

The Fifth Circuit took the position that the reliance by

the District Court upon Rodrigues was misplaced because

“prior qualifications are irrelevant in this case, the two

cases are not analogous.” In making its determination as

to the appropriateness of a class action in this case, the

Fifth Circuit was obviously confused in dealing with the

number of total employees who had at one time or an-

other been on the payroll of the Defendant, which number

could have been concerned only with a question of dis-

crimination in employment which had long since been

abandoned by the Plaintiffs. The question before the Court

was whether or not there had been discrimination in initial

assignment and/or promotion. We submit that the Dis-

trict Court was fully justified in concluding from the facts

before it that prior qualifications were a prerequisite to

consideration in the making of assignments and the promo-

tion of employees by the Defendant. The Fifth Circuit

was clearly in error in reversing the United States District

Court on this issue. See also General Telephone Company

of the Southwest v. Falcon, 457 U.S. 147, 72 L.Ed.2d 740,

749 (1982) and Schlesinger v. Reservists Committee to Stop

the War, 418 U.S. at 216.

CONCLUSION

The Fifth Circuit's decision in Boykin is clearly an

emotional response to the Magistrate’s five year delay in

bringing this case to resolution. In its haste to remedy a

perceived miscarriage of justice, the Fifth Circuit has

overstepped its statutory duty to overturn findings of fact

only when clearly erroneous. Further, it has ignored the

teachings of the Supreme Court’s decision in Pullman-

Standard. For these reasons, and the reasons stated above,

Petitioner respectfully submits that its Petition for a Writ

of Certiorari in this action should be granted.

Respectfully submitted,

L. ARNOLD PYLE

Pye, Harris, DreHer & MILs

P.O. Box 23004

Jackson, Mississippi 39205

Peyton S. Irspy, Jr.

Watkins, LupDLAM & STENNIS

P.O. Box 427

Jackson, Mississippi 39205

Attorneys for Petitioner,

Georgia-Pacific Corporation

CERTIFICATE OF SERVICE

. I hereby certify that a true copy of the Petition for

a Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit was mailed, first-class, postage prepaid,

this the llth day of November, 1983, to the following

named counsel of record for Respondents:

Richard B. Sobol, Esquire

Abourezk, Sobol & Trister

21 Dupont Circle, N.W.

Washington, D.C. 20036

James E. Youngdahl, Esquire

Lynn-Marie Cricei, Esquire

Youngdahl & Larrison

2101 Main Street

Little Rock, Arkansas 72206

Danny E. Cupit, Esquire

Cupit & Maxey

Post Office Box 22666

Jackson, Mississippi 39205

L. ARNOLD PYLE

APPENDIX

APPENDIX ‘“A”’

Robert BOYKIN, et al., Plaintiffs-Appellants

Cross-Appellees,

Vv.

GEORGIA-PACIFIC CORPORATION,

Defendant-Appellee Cross-Appellant.

No. 81-4521.

United States Court of Appeals,

Fifth Circuit.

June 16, 1983.

In an employment discrimination case, magistrate’s

recommendations, adverse to plaintiffs in all respects, were

adopted by the United States District Court for the

Southern District of Mississippi at Hattiesburg, Dan M.

Russell, J. On appeal by the plaintiffs, the Court of Ap-

peals, Garza, Circuit Judge, held that: (1) requirements

for class action certification were met; (2) plaintiffs’

statistical evidence made prima facie case which was not

rebutted; and (3) claims were not barred by limitations.

Reversed and remanded.

1. Federal Civil Procedure (Key) 184

Where total of jobs at issue in racial discrimination

case was only about 20, but contours of class encompassed

all present and past black employees, of whom there were

317, all of whom had a stake in the claim, numerosity

requirement for tentative certification of class action was

met. Fed. Rules Civ.Proc.Rules 23, 23(a), 28 U.S.C.A,;

Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e

et seq.

2. Federal Civil Procedure (Key) 175

Where five-year delay of magistrate in deciding case

made time span between empioyment and final resolution

of employment discrimination claims so large, class cer-

tification was improperly denied on the ground that “none

of the individual plaintiffs have had any contact with

the defendant plant since August of 1972.” Fed.Rules

Civ.Proc.Rule 23(a), 28 U.S.C.A.; Civil Rights Act of 1964,

§ 701 et seq., 42 U.S.C.A. § 2000e et seq.

3. Civil Rights (Key) 44(4)

In an employment discrimination case, statistical evi-

dence presented by plaintiffs at trial made prima facie case

of racial discrimination in respect to assignments and pro-

motions, and employer was bound to come forward with

evidence either discrediting such statistical presentation or

providing nondiscriminatory explanation for the result.

Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e

et seq.

4. Civil Rights (Key) 44(4)

Where unskilled persons are hired and then promoted

on basis of training received on the job, disparity between

number of whites and blacks promoted is significant, and

it is ummecessary to standardize data for qualifications

where jobs do not involve skiils not generally possessed

or readily acquired by general population. Civil Rights

Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq. .

5. Civil Rights (Key) 44(1)

’ Prima facie case of racial discrimination in employ-

ment cannot be met by attempts to parry specific allega-

tions of alleged discrimination, but, rather, to combat case

of classwide discrimination based upon statistical evidence,

defendant must either show flaws in plaintiffs’ statistics or

provide nondiscriminatory explanation for result, which

burden will not be met by general assertions of good faith

or of hiring only best applicants. Civil Rights Act of

1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.

6. Civil Rights (Key) 40

Statute of limitations applicable in employment dis-

crimination case was six-year Mississippi catchall statute.

Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e

et seq.; Miss.Code 1972, §§ 15-1-29, 15-1-49; 42 U.S.C.A.

§ 1981.

Danny E. Cupit, Jackson, Miss., James E. Youngdahl,

Little Rock, Ark., Richard B. Sobol, Washington, D.C., for

plaintiffs-appellants cross-appellees.

L. Arnold Pyle, William A. Pyle, Peyton S. Irby, Jr.,

Jackson, Miss., for defendant-appellee cross-appellants.

Appeals from the United States District Court for the

Southern District of Mississippi.

Before GARZA, POLITZ and JOHNSON, Circuit

Judges.

GARZA, Circuit Judge:

The only thing more shocking than the racial discrim-

ination practiced by defendant Georgia-Pacific Corpora-

tion is. the unconscionable delay by the magistrate of more

than five years in rendering a decision in this action. It is

all too obvious that but for the plaintiffs’ filing of a motion

directing the magistrate to issue a decision within forty-

five days, we would not yet have this case before us.

Five days prior to a hearing on said motion, the magistrate

finally issued his recommendation, which was adverse to

plaintiffs in all respects. That opinion was adopted by

the district court. For the reasons stated herein, we re-

verse that opinion and remand the case to the district

court where it hopefully will receive more expeditious

treatment than it has heretofore.

FACTS

This class action was brought under Title VII, 42 U.S.C.

§ 2000e et seq. and 42 U.S.C. § 1981 to challenge alleged

racial discrimination in the initial assignment and promo-

tion of blacks at the Georgia-Pacific chip-n-saw mill in

rural Goss, Mississippi.' A chip-n-saw mill is a modern

facility designed to produce finished lumber from raw

timber. This plant opened in 1970 and, depending on

whether it operated on one or two shifts a day, employed

either between sixty to seventy persons or 100 to 110 per-

sons.

The EEOC charge in this case was filed in July of 1972

by the International Woodworkers of America (IWA). A

right to sue letter was issued to the IWA in July of the

following year and the complaint was filed shortly there-

after. At the time the lawsuit was filed, the IWA was

certified by the National Labor Relations Board as the ex-

clusive bargaining agent for the plant employees. The

individual plaintiffs did not file EEOC charges, but in-

stead relied on that filed by the union.

1. The original complaint included a claim of discriminatory

hiring practices which has not been pursued in this appeal.

The EEOC charge was filed by the union during the

pendency of a strike called to protest the inability of the

union to secure a collective bargaining agreement with

the defendant. The union was never successful in this

regard. In 1974, it withdrew its represen \ational status

but has not ceased, in the magistrate’s words, “to vigorously.

pursue this particular lawsuit.” Record on Appeal, vol. 5

at 656.

The named plaintiffs in this action are two black men

who were employed at the chip-n-saw mill until mid-1972.

It is clear that defendant was willing to hire blacks at its

plant; although the area labor force was approximately

thirty percent black, often fifty percent of the plant’s

work force was black. What is at issue, however, is the

quality of the jobs which these individuals were allowed

to fill. The chip-n-saw mill is organized into five depart-

ments—Log Yard Department, Sawmill Department, Rough

Lumber Manufacturing Department, Planer Mill Depart-

ment and Shipping Department. Within each department,

there are various job classifications. The bottom rung of

the employment ladder is a classification called “utility,”

which is where most blacks, including the named plaintiffs,

both began and ended their employment.

Plaintiff Robert Boykin was assigned to utility de-

spite the fact that he had a great deal of relevant prior

experience. He had previously worked in a plant that

manufactured wood products and had received vocational

training as a diesel mechanic. After his initial assignment,

he repeatedly requested promotions from his supervisor,

but his appeals were to no avail. In January of 1972, a

white employee who had just completed probation was

given the position (forklift operator) that Boykin had been

seeking. Plaintiff Thomas Powell also completed his two

years of work at the plant as a utility. He had fifteen

in ee

years of prior experience at a furniture plant but was

still unable to secure a promotion.

‘The initial assignment of new employees at the plant

was made by the plant manager or plant superintendent.

Promotion decisions, on the other hand, were delegated to

the foreman of the department that experienced a vacancy,

but the plant superintendent retained veto power over the

foreman’s choice. The management did not post notices of

vacancies within departments. Neither did it have any

written procedures regarding the filling of vacancies until

long after this action was filed. Plaintiffs contend that

racial discrimination prevented blacks from initially re-

ceiving or indeed ever receiving the good jobs at the plant.

In order to prove their contentions, plaintiffs presented

a battery of statistical evidence designed to show racial dis-

crimination from the disparities between percentages of

blacks and whites who received favorable initial assign-

ments and promotions. In addition, plaintiffs bolstered

their statistical case by presenting evidence concerning in-

dividual employment decisions, both (1) evidence from

black witnesses about their inability to secure preferable

assignments, and (2) evidence of the preferences shown to

white employees, notably preferences given to whites who

were family or friends of the upper level plant personnel.

CLASS CERTIFICATION

The first prong of plaintiffs’ attack upon the lower

court judgment is aimed at the denial of class certification.

The action was tentatively certified as a class action in 1974,

with a final decision reserved until after trial. When the

magistrate finally issued his recommendations in 1981, he

denied class certification for two reasons. First, he held

that the number of persons involved was not great enough

to meet the numerosity requirement of Fed. Rule Civ. Pro.

23{a).? Second, he held that the claims of the individual

plaintiffs were stale since they had not been involved with

the Georgia-Pacific plant since 1972.

[1] In order to determine whether the numerosity re-

quirement was indeed met, we must examine the exact

boundaries of the class. At the time of tentative class cer-

tification, the class was identified as all past, present and

prospective black employees and all unsuccéssful applicants

for employment at the sawmill. Since the hiring claim has

not been pursued upon appeal, that portion of the class

must be eliminated. The claims of present and past black

employees are raised in this appeal. Therefore, a class of

317 individuals remains. Certainly, a class of this mag-

nitude is large enough to meet the numerosity ;equirement.

Defendant claims that the class includes fewer than

twenty individuals. This number was calculated by deter-

mining the number of promotions which could have oc-

curred during the relevant period (69) and then assuming

that blacks were hired at a rate equal to their participation

in the labor force (approximately 30%). The total num-

ber of jobs at issue is only approximately twenty, a num-

ber much too small to meet the numerosity requirement.

However, this argument ignores the fact that the contours

of this class encompass all present and past black employ-

ees. This is a case where employees were not promoted.

2. Federal Rule of Civil Procedure 23(a) provides:

Prerequisites to a Class Action. One or more members

Pep fy Ay $, Ay hy. pone A

behalf o only class is so numerous

members is impracticable, (2) ba emg

All 317 individuals have a stake in that claim. There is

no way to limit the action to twenty persons, as defendant

suggests, because it is impossible to identify those persons

who would have been hired but for the discrimination

which occurred.

[2] The magistrate also denied class certification

because, in his words, “none of the individual plaintiffs

have had any contact with the defendant plant since Au-

gust of 1972.” Record on Appeal, vol. 5 at 679. The rele-

vant consideration for purposes of Rule 23, however, is not

length of absence from the plant but willingness and abil-

ity to litigate the issues on behalf of the class. The plain-

tiffs shall not be penalized for the five year delay of the

magistrate in deciding this case which makes the time span

between employment and final resolution so large.

The magistrate’s recommendation also refers to East

Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 S.Ct.

1891, 52 L.Ed.2d 453 (1977), as support for its holding that

the individual plaintiffs are not proper class representa-

tives. Reliance upon that case is misplaced. In Rodriguez,

the plaintiffs were judged improper class representatives

because there were objective qualifications standards that

they did not meet. Since prior qualifications are irrelevant

in this case, the two cases are not analogous.

VALIDITY OF THE STATISTICAL

EVIDENCE

The validity of statistical proof as a means of proving

a prima facie Title VII case has long met with acceptance

in the courts. E.g., Teamsterz v. United States, 431 U.S.

324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Mayor of Phila-

delphia v. Educational Equality League, 415 U.S. 605, 94

S.Ct. 1323, 39 L.Ed.2d 630 (1974); McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973);

Johnson v. Uncle Ben’s, Inc., 628 F.2d 419 (1980), vacated

on other grounds, 451 U.S. 902, 101 S.Ct. 1967, 68 L.Ed.2d

290 (1981); Fisher v. Procter & Gamble Mfg. Co., 613 F.2d

527 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101 S.Ct.

929, 66 L.Ed.2d 845 (1981); Parson v. Kaiser Aluminum &

Chemical Corp., 575 F.2d 1374 (5th Cir.1978), cert. denied,

441 U.S. 968, 99 S.Ct. 2417, 60 L.Ed.2d 1073 (1979).

This class action was brought to remedy “pervasive re-

sistance to the principles of equality of treatment and op-

portunity in the workplace articulated in Title VII.” Ri-

vera v. City of Wichita Falls, 665 F.2d 531, 534 (5th Cir.

1982). The battery of statistical evidence which was pre-

sented does show that a significantly smaller percentage of

blacks are initially assigned to a classification other than

utility. Likewise, a much smaller percentage of blacks

are ever promoted to higher positions and those who are

promoted must wait much longer for this opportunity than

their white counterparts.

The following is a summary of the statistical evi-

dence presented by plaintiffs at the trial of this case:

Table I

Number and Percentage by Race of Employees Whose

Initial Assignment Was Not to the Utility Position

Number Not

Total Initially Percentage

Number Assignedto Not Assigned

Employed Utility to Utility

444 90 20.3%

317 22 €9%

A10

Table I

Number and Percentage by Race of Employees

Who Had Relevant Prior Experience and Whose

Initial Assignment Was Not to the Utility Position

Number Not Percentage

Number with Initially Initially Not

Relevant Prior Assigned to Assigned to

Race Experience Utility Position Utility

White 184 61 33.2%

Black 107 13 12.1%

Table II

All-White Job Classifications

Job Classification Number of Whites Assigned

Saw Filer 4

Saw Filer Helper

Lead Electrician

Electrician

Electrician Helper

Millwright Carpenter

Millwright/kiln Operator

Kiln Operator

Kiln Operator Trainee

Crane Operator

Chip-n-saw Operator/Millwright

Chip-n-saw Operator

Chip-n-saw Trainee

Shipping Clerk

Machine Operator

Stacker Operator

Diesel Mechanic

Diesel Mechanic Helper

—

lL maaankhertneonsanvwnasna

Total:

All

Table IV

Average Wage of Employees in the Work Force on

2/11/76 by Race by Year of Hire

Whites Blacks

Difference:

White

Wage-

Year Average Average Black

of Hire Number Wage Number Wage Wage

1970 5 $3.88 6 $2.99 $0.89

1971 3 3.90 2 2.82 1.08

1972 5 3.11 3 2.75 0.36

1973 + 3.55 3 2.91 0.64

1974 2 3.43 2 2.78 0.65

1975 10 3.59 11 2.77 0.82

1976 2 2.65 7 2.65 0.00

Table V

Average Wage of Employees in Work Force

on 2/11/76 by Race, by Experience

Whites Blacks

Difference:

White

Wage-

Average Average Black

Experience Number Wage Number Wage Wage

With prior

experience 16 $3.77 17 $2.86 $0.91

With no

prior exp. 16 3.21 16 2.73 0.48

Al2

Table VI

Number and Percentage by Race of Non-probationary

Employees Whose Initial Assignment Was In the

Utility Position and Who Were Promoted Above Utility

Number of

non-proba-

tionary em-

ployees whose Percentage

initial who were

assignment Number who promoted

was in were promoted out of

Race Utility ou". of Utility Utility

White 178 84 47.2%

Black 157 42 26.8%

Table VII

Average Number of Months by Race to

Promote Out of Utility

Number who were

promoted above Average number

Race Utility of months

White 95 3.3

Black 40 3.7

Al3

Table VIII

Number and Percentage by Race of Non-probationary

Employees with Prior Experience Whose Initial

Assignment was in the Utility Position and

Who Moved Above the Utility Position

Number of non-

probationary

employees with

prior experience

whose initial Percentage who

assignment was Number who Were Promoted

in the Utility Were Promoted Out of

Race Position Out of Utility Utility

White 68 36 52.9%

Black 61 19 31.1%

Table IX

Average Number of Months by Race by Experience

to Promote Out of Utility

Number who were pro-

Race/ moted to jobs paying Average number

Experience more than Utility of months

whites with

prior experience 37 3.9

whites with no

prior experience 50 3.0

Blacks with prior

experience 18 8.1

Blacks with no

prior experience 22 11.1

Plaintiffs’ Brief at 10, 12-16.

Al4

The Supreme Court, in Hazelwood School District v.

United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768

(1977), held: “Where gross statistical disparities can be

shown, they alone may .. . constitute prima facie proof of

a pattern or practice of discrimination,” 433 U.S. at 307-08,

97 S.Ct. at 2741. Although proof of discriminatory motive

is generally required in disparate treatment cases, the evi-

dence of subjective, standardless decision-making by com-

pany officials, which is a convenient mechanism for dis-

crimination, satisfies this requirement. See Rowe v. Gen-

eral Motors Corp., 457 F.2d 348, 359 (5th Cir.1972). The

company, after all, made no provision for informing em-

ployees of promotion opportunities nor did it establish any

objective bases for judging the possible applicants. The

explanation of plant manager Bobby Thornton for the

scarcity of blacks in upper level jobs demonstrates the

prejudice which must have entered into the decisions he

made:

. their own choice, a whole lot—a lots of cases, it’s

their own choice as well as their experience, in other

words, what probably I’m trying to say is our better

jobs as far as less physical work and responsibility

and what have you is in our semi-skilled jobs, they

have less responsibility. It’s usually an easier type of

job, less physical work such as debark operator has a

cushion he sits on all day, and he’s got buttons to push,

he has to know which button to push at which time,

but it’s a much easier job than a millwright. A mill-

wright’s job—he has to get down in the grease and the

grit and grind and everything that he does is physically

hard plus he has to have the knowledge and the skill

to do his job as quickly as possible to get the mill

back in production and most of these people that you're

talking about—this class of black people are satisfied

1 Tee

Al5

with a semi-skilled job.... [T]hey’re contented more

so in a semi-skilled job than taking on the responsibility

and extra hard work and long hours that maintenance

requires.

Plaintiffs’ Exhibit 41 at 53.

Plaintiffs’ reliance on statistical evidence to prove a

prima facie case of racial discrimination requires us to

judge the statistical significance of the disparities charted

above. Fortunately, the methodology to be utilized in ar-

riving at this answer is clearly set out in Castaneda v. Par-

tida, 430 U.S. 482, 496 n. 17, 97 S.Ct. 1272, 1281 n. 17, 51

L.Ed.2d 498 (1977). A binomial distribution statistical

analysis of Tables I (initial a.gignment data) and VI (pro-

motion data) demonstrates the statistical significance of

the difference between the actual and expected number of

blacks who received favorable initial assignments/promo-

tions®

[3] In order to rebut this prima facie case of racial

discrimination in employment, the defendant must come

3. The binomial distribution statistical analyses were com-

puted as follows:

BINOMIAL DISTRIBUTION FOR TABLE I

Total Number in Pool = 444+ 317 = 761

Percentage of Blacks = 41.7%

Percentage of Whites = 58.3%

Total Number Not Assigned

to Utility (sample) = 90+ 22+ 112

ae Number of

41.7% of 112 = 47

Actual Number of Blacks = 2

Difference = 235

Standard Deviation = Vilitx 417 x 583 = 5.2

Number of Standard

Deviations = 25/5.2=> 48

(Continued on following page)

Al6

forward with evidence which either discredits the plain-

tiffs’ statistical presentation or, in the alternative, pro-

vides a non-discriminatory explanation for the result.

There is no dispute with the numbers listed in the tables

printed below. Defendant, however, did present a number

of challenges to the statistical proof offered by plaintiffs,

which were adopted by the magistrate. First, defendant

contended that the number of employees involved is too

small to permit statistical evaluation of disparities in as-

signment and promotion. Defendant understates the size

of the work force by maintaining that what is really in-

volved here is simply a work force of sixty to seventy

workers when the plant operated on one shift and 100 to

110 workers when the plant increased its operation to two

shifts a day. A closer look at the exhibits presented by

plaintiffs reveals that the initial assignment table con-

sidered the assignment of 761 employees and the promotion

table considered 335 non-probationary employees. This

suit involves, after all, a charge of continuing racial dis-

crimination over a number of years; there is no merit to

the proposition that at most 110 employees should be con-

sidered. This is irrelevant, however, because the dis-

Footnote continued—

BINOMIAL DISTRIBUTION FOR TABLE VI

Total Number in Pool 178 + 157 = 335

Percentage of Blacks = 46.9%

Percentage of Whites = 53.1%

Total Number Promoted

(sample) = 84+ 42 = 126

“Expected” Number of

Blacks = .469x 126 = 59

Actual Number of Blacks = 42

Difference = 17

Standard Deviation = Vi2ttx 40x 531i = 56

Number of Standard

Deviations = 17/6.6 = 3.04

Al7

positive point here is that the significance of the statistical

data is shown by the test approved in Castaneda and Hazel-

wood.

The second basis upon which the court found the statis-

tical evidence inadequate was the failure to standardize

the data for qualifications. In determining the qualifi-

cations of employees, plaintiffs utilized all information

listed on the individuals’ employment applications.‘ This

is insufficient, according to defendant, because a number

of witnesses testified in court about additional qualifi-

cations.

Although the defendant stressed the need for highly

qualified individuals in many of the jobs at the plant,

the plant manager testified that only one job required

a skilled employee. The other jobs could be learned at

the plant, in his opinion.

Q. On that same issue, it is also true that any job

at your plant can be learned and has been learned

at the plant?

A. That’s true.

Q. There’s no job, is there, for which—some com-

panies simply will not hire people into a certain job

unless they have had certain types of experience else-

where? That is not the case at your plant.

4. Plaintiffs’ exhibits considered the following types of

experience relevant for jobs at the chip-n-saw mill:

work in a sawmill;

work in a logging or pulpwood operation;

work in a wood products or paper mill;

work at the New Orleans Furniture Company (a local

ees Ss ee ee ee ee. Sveenerene

department or in a saw operator classification

5. work in a craft represented at the sawmill;

6. work as an operator of the type of heavy equipment found

at the plant.

ee PY

Als

A. That’s not the case at this plant.

-Q. And, in fact, every single one of these jobs that

you’ve been talking about today have been learned

by employees who have had no relevant prior experi-

ence, isn’t that true?

A. No.

Q. Give me a list of the jobs at the Columbia sawmill

that have not been learned by employees at the job

but which have always been filled by persons who

came with the necessary skills.

A. The lead electrician job has never been filled by

a person.

Q. Are there others?

A. Ican’t think of any.

Record on Appeal, vol. 10 at 983-84.

[4] The plant manager stated that the company had

adopted a policy of promoting to upper level positions

on the basis of training received at the plant.* It is

5. The plant manager presented the following evidence about

the way by which individuals progress to higher paying, more

responsible jobs:

Well, most of these particular people right here that

move through this plant from one job to another learn the

fundamentals and learn how to operate this particular type

of equipment at times whenever they always have an op-

portunity to watch and observe and just, say, for a few

moments at a time run these particular types of equipment.

usually they let it be known by doing this type of

talking to their foreman about they want to

so and so, whichever type of equipment it is. And

available when the operator is off for a day

These people have an

sagcgs B

ete

R BEE

ghee

sEst

awe

Alg

the rule in this Circuit that where unskilled persons are

hired and then promoted on the basis of training received

on the job, a disparity between the number of whites and

blacks promoted is significant. It is unnecessary to stan-

darize the data for qualifications.

The Company’s entry level hiring policy is a dis-

tinctive circumstance in this case supporting the infer-

ence of discrimination. When a company adopts a

policy and practice of hiring in at low-level unskilled

jobs and promoting to upper-level [positions] based

upon training received and skills developed at the

plant itself, it cannot convincingly challenge the prima

facie showing under the Hazelwood “qualifications”

dicta. Where skills are commensurate with company

training, we will approve statistical comparisons be-

tween racial make-up in key positions and racial com-

position in the total work force. See, James v. Stock-

ham Valves, [559 F.2d 310] at 341 [(5th Cir.1977)];

Scott v. City of Anniston, [597 F.2d 897] at 901 [ (5th

Cir.1979) }.

Fisher v. Procter & Gamble Mfg. Co., 613 F.2d at 544.

Defendants points to a line of cases in which the

failure to standardize data for qualifications was judged

fatal to the plaintiffs’ statistical case. E.g., Pouncy v.

Prudential Ins. Co., 668 F.2d 795 (5th Cir.1982); Rivera

v. City of Wichita Falls. Unlike the case at bar, however,

those cases considered jobs involving skills not generally

possessed or readily acquired by the general population.

The Supreme Court, in Hazelwood School District v. United

States, set forth the reason that the two types of cases

must be viewed differently.

In Teamsters, the comparison between the percentage

of Negroes on the employer’s work force and the

A20

percentage in the general areawide population was

highly probative, because the job skill there involved

—the ability to drive a truck—is one that many per-

sons possess or can fairly readily acquire. When

special qualifications are required to fill particular

jobs, comparisons to the general population (rather

than to the smaller group of individuals who possess

the necessary qualifications) may have little probative

value.

433 U.S. at 308 n. 13, 97 S.Ct. at 2742 n. 13. Since the plant

manager plainly stated that all but one of the jobs could

be learned on the job, this case certainly corresponds to

the line of authority represented by Fisher v. Procter &

Gamble Mfg. Co., and qualifications need not be considerd

in making an accurate statistical picture.

[5] The final reason for rejection of the statistical

evidence was defendant’s presentation of evidence about

a few of the promotion decisions and why blacks were

not placed in these positions. This attempt to combat a

prima facie case with evidence about a handful of promo-

tion decisions is doomed to failure because a prima facie

case of class-wide discrimination ‘is not met by [defen-

dant’s] attempts to parry specific allegations of alleged

discrimination ....” United States v. Hayes International

Corp., 456 F.2d 112, 120 (5th Cir.1972). Defendant con-

tends that its articulation of allegedly legitimate reasons

for some promotion decisions should work to shift the

evidentiary burden back to plaintiffs to demonstrate that

the proffered reasons are a pretext for discrimination. How-

ever, the burdens of proof and production set out in Texas

Department of Community Affairs v. Burdine, 450 U.S. 248,

101 S.Ct. 1089, 67 L.Ed.2d 207 (1982), apply only to in-

dividual disparate treatment cases. In order to combat a

case of class-wide discrimination based upon statistical

A21

evidence, defendant must either show flaws in the plain-

tiffs’ statistics or provide a non-discriminatory explanation

for the result. This burden will not be met by general

assertions of good faith or of hiring only the best ap-

plicants. Teamsters v. United States, 431 U.S. at 342, n.

24, 97 S.Ct. at 1858 n. 24.

In addition to the reasons adopted by the court below,

the defendant urges that the statistical evidence should

be discounted because the exhibits impermissibly mixed

conduct for which liability might attach and conduct

barred by the limitations period.

This court has recently reaffirmed in Rivera v. City of

Wichita Falls, that the standards for judging claims of

pattern or practice employment discrimination under Title

VII and Section 1981 are identical. 665 F.2d at 534 n. 4.

Therefore, the plaintiffs’ case is not adversely affected

as long as the incidents upon which the statistical evidence

is built fall within one of the limitations periods. Defen-

dant reasons that the applicable statute of limitations gov-

erning this case is the Mississippi three years statute, Miss.

Code Ann. § 15-1-29 (1972). Since some of the individ-

uals whose employment history was reflected in the tables

were hired shortly outside this limitations period, the de-

fendant argues for the rejection of the entire battery of

statistical evidence.

{6] Although correct in its judgment that unlawful

conduct which has not been made the subject of a timely

charge is, in the words of the Supreme Court, ‘‘merely an

unfortunate event in history which has no present legal

consequences,” United Air Lines, Inc. v. Evans, 431 U.S.

553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), the

defendant is incorrect in his assumption that the rule

works to the plaintiff’s detriment in this action. This

A22

Court has held that the statute of limitations applicable to

Section. 1981 claims is the six year Mississippi catch-all

statute, Miss.Code Ann. § 15-1-49 (1972). Payne v. Trav-

enol Laboratories, Inc., 673 F.2d 798, 815 (5th Cir.1982),

cert. denied ........ LS es , 103 S.Ct. 451, 74 L.Ed.2d 605

(1983); Truwillion v. King’s Daughters Hospital, 614 F.2d

520, 528 (5th Cir.1980). The limitations period reaches

more than two years before any of the hiring at this plant

occurred. Accordingly, we find that all statistical material

presented by plaintiffs may properly be considered.

CONCLUSION

Regrettably, we cannot bring this case to final resolu-

tion today. We do, however, lay the groundwork which

should enable the court below to finish this task in short

order.

First, we reverse the court’s denial of class certifica-

tion and instruct the court below to certify plaintiffs

Boykin and Powell as class representatives for both the

initial assignment and promotion claims. Secondly, we re-

verse the court’s judgment on the liability issue and order

the district court to enter judgment for plaintiffs on both

the initial assignment and promotion claims. The entry

of judgment for plaintiffs on their claims of class-wide dis-

crimination brings this case into Stage II. See Baxter

v. Savannah Sugar Refining Corp., 495 F.2d 437, 443-44 (5th

Cir.1974), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.

2d 308 (1975). See also James v. Stockham Valves & Fit-

tings Co., 559 F.2d 310, 354-59 (5th Cir.1977), cert. denied,

434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). A

notice must be sent to each member of the class informing

him of his entitlement to make a claim. The named plain-

tiffs, as every other black employee in the class, are en-

titled to the presumption that arises from the finding of

\ —

A23

discrimination and should be entitled to make a claim for

back pay and other relief.

Finally, the finding of past discrimination makes ap-

propriate the examination of defendant’s present practices

in order to evaluate the propriety of granting injunctive

relief. We are unable to perform this task on a record

that includes no information after the 1976 trial of this

case; we, therefore, remand this issue for the district court

to undertake this inquiry.®

REVERSED AND REMANDED.

6. As a point of cross-appeal, defendant argues that the

magistrate improperly denied its motion for attorney’s fees. In

Title VII cases, attorney’s fees will be awarded where the action

is “frivolous, unreasonable, or groundless.” Christiansburg Gar-

ment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 LEd2d 648

(1978). Defendant maintains that the action was brought in bad

faith and that attorney’s fees are consequently mandated. The

foregoing discussion of this case makes it very clear that this

is a legitimate action. The reversal of the magistrate’s decision

on the merits clearly precludes us from awarding attorney’s fees

to the defendant.

A24

APPENDIX ‘“‘B’”’

(Filed August 15, 1983)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 81-4521

ROBERT BOYKIN, ET AL.,

Plaintiffs-Appellant

Cross Appellees,

versus

GEORGIA-PACIFIC CORPORATION,

Defendant-A ppellee

Cross Appellant.

Appeal from the United States District Court for the

Southern District of Mississippi

ON SUGGESTION FOR REHEARING EN BANC

(Opinion 06/16/83, 5 Cir., 198.., ........ F.2d ........ ).

(August 15, 1983)

Before GARZA, POLITZ and JOHNSON, Circuit Judges.

PER CURIAM:

(\/) Treating the suggestion for rehearing en banc

as a petition for panel rehearing, it is ordered that the

petition for panel rehearing is DENIED. No member of

the panel nor Judge in regular active service of this Court

having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 16), the suggestion for Rehearing

En Banc is DENIED.

A25

( ) Treating the suggestion for rehearing en banc

as a petition for panel rehearing, the petition for panel

rehearing is DENIED. The judges in regular active ser-

vice of this Court having been polled at the request of

one of said judges and a majority of said judges not having

voted in favor of it (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16), the suggestion

for Rehearing En Banc is DENIED.

Entered for the Court:

/s/ Henry A. Politz

United States Circuit Judge

A26

APPENDIX “C”’

(Filed August 27, 1981)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT

OF MISSISSIPPI

HATTIESBURG DIVISION

CIVIL ACTION NO. 73H-64(R)

ROBERT BOYKIN, et al

PLAINTIFF

VS.

GEORGIA-PACIFIC CORPORATION

DEFENDANT

RECOMMENDATION

This suit was filed by the named Plaintiffs in their

individual capacities, as well as representatives of other

blacks, seeking redress for allegedly unlawful employ-

ment practices at the Defendant’s sawmill in Columbia,

Mississippi, pursuant to Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq, and Section I of the Civil

Rights Act of 1866, 42 U.S.C. § 1981.

In their complaint the Plaintiffs allege that the com-

pany has intentionally engaged in policies and practices

made unlawful by Section 701 of Title VII; and that such

unlawful employment practices include, inter alia, the fol-

lowing: (a) initially assigning Plaintiffs Boykin, Gholar,

and Powell to utility positions because of their race; (b)

failing to promote the Plaintiffs Boykin, Gholar, and Powell

from the utility position, because of their race; (c) ter-

minating the employment of Plaintiffs Boykin and Powell

because of their race; and (d) discriminating against blacks

A27

as a class in initial hiring, assignments and promotions be-

cause of race.

The Plaintiffs seek (a) permanent injunctive relief

enjoining the Defendant from continuing to engage in acts

and practices which discriminate against black employees

and black applicants for employment and requiring the

Defendant to offer each future promotion to the black em-

ployee with the highest plant-wide seniority until such time

as blacks occupy each position in the plant, including super-

visory positions, in approximately the same proportion as

the total number of black employees bear to all the plant’s

employees, and thereafter to implement a system for pro-

motions which will assure that black and white employees

are given equal opportunity for promotion regardless of

. race; (b) grant to Plaintiffs and the members of the class

they represent, back pay and other wage supplements to

redress discriminatory job assignments; (d) [sic] require

the Defendant to reinstate the named Plaintiffs with plant-

wide seniority from their first employment with the com-

pany to the date of reinstatement; and (d) award the

Plaintiffs the cost of this action, including reasonable at-

torneys’ fees in accordance with Section 706(k) of the Civil

Rights Act of 1964, 42 U.S.C. § 2003(k).

The Defendant contends that the Plaintiffs have failed

to meet their burden of proof as to any of the allegations of

employment discrimination; that the Plaintiffs have failed

to prove by a preponderance of the evidence that the De-

fendant has intentionally engaged in any racially dis-

criminatory employment practices; and that the Plaintiffs

have failed to prove the existence of any damage to any

black individual or class of black individuals. The Defen-

dants [sic] further state that the Plaintiffs have failed to

prove a prima facie case through their statistical exhibits

and witnesses; that assuming arguendo that the Plaintiffs

A28

have proved a prima facie case, the Defendants [sic] de-

tailed summaries and oral testimony rebutted the Plaintiffs’

case and whatever inferences may have been established;

and that the Plaintiffs failed to come forward with further

proof to refute the Defendant’s evidence. Further, the De-

fendant alleges in its own counterclaim that the Plaintiffs

only filed the present cause of action to promote the union

at the expense of the company and its employees.

The issues as presented by the parties at trial and as

summarized in the post trial briefs are as follows:

1. Whether the Plaintiffs may maintain this suit pur-

suant to 42 U.S.C. § 2000e et seq since the Plaintiffs vio-

lated 29 C.F.R. 1601.6.

2. Whether this suit should be maintained as a class

action.’

3. Whether the Defendant has engaged in unlawful

employment practices at its plant in Marion County, Mis-

sissippi in the hiring, initial assignment, and promotion

practices which have been used to discriminate against the

named Plaintiffs, as well as class members because of their

race.

1. An order has been entered herein by the District Court

wherein it was found that

00 to Rule 23(c)(1) of the Federal Rules of Civil

Procedure, this cause is tentatively certified as a class action

for purposes of the completion of plaintiffs’ discovery and

the presentation of evidence with respect to class claims at

the hearing on liability,.... This Order with respect to

met fr gree ied anh eng sae Mand nig Bienes De the

a. class representation following the hearing on iia-

bre Pape per yocomtn i erg 7d pn iran ge

all past, present and prospective black employees and

unsuccessful black applicants for employment at the

. lumbia, Mississippi sawmill of Defendant Georgia-Pacific

A29

4. Whether any injunctive relief should be granted

against the Defendant and, if so, the nature of the said

relief.

5. Whether any further hearing is necessary to deter-

mine if any individual or class or individuals is entitled to

back pay or damages.

FINDINGS OF FACT

This is a class action suit instituted by individuals

and a labor organization which seeks to enjoin and redress

for alleged violations of the rights of black employees of

the Georgia-Pacific Corporation in Columbia, Mississippi,

as secured pursuant to Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. 2000e et seg. and by Section I

of the Civil Rights Act of 1866, 42 U.S.C. § 1981. In addi-

tion, the named Plaintiffs seek affirmative relief including

promotion, reinstatement, back pay, and other wage sup-

plements for themselves and for the members of the class

they represent that will redress any alleged acts of dis-

crimination which might have occurred against them and

prevent any alleged perpetuation of its effects. Juris-

diction is alleged in this case under Section 706(f) (3) of

the Civil Rights Act of 1964, as amended, 42 U.S.C. Section

*~ 2000e-5(f) (3) and by 28 U.S.C. Section 1343(4).

II.

The named Plaintiffs are black citizens of the United

States and of the State of Mississippi. The Plaintiff, In-

ternational Woodworkers of America, AFL-CIO, CLC

(union is an unincorporated organization with central of-

fices in Portland, Oregon. Prior to and at the time of the

filing of the said lawsuit, the Plaintiff union was the col-

A30

lective bargaining representative for a unit of produc-

tion.and maintenance employees at the Columbia, Missis-

sippi plant of the Defendant, Georgia-Pacific Corporation.

(company). The union is a labor organization within the

meaning of Section 701 of the Civil Rights Act of 1964, 42

U.S.C. § 2000e. Plaintiffs filed this action on behalf of

themselves and a class of persons composed of all black

employees of the Defendant company, all former black

employees of the Defendant company, and all black persons

who have applied for employment with the Defendant com-

pany, but who have been refused such employment because

of race.

ITI.

The Defendant is a corporation qualified to do business

in the State of Mississippi. It operates a number of ply-

wood, particle board, sawmill and chemical operations

throughout the rural areas of this State. The specific plant

involved in this suit is a highly mechanical wood processing

plant known as a chip-n-saw mill in rural Marion County,

Mississippi, approximately eight miles north of the town of

Columbia, Mississippi. The Defendant’s work force comes

primarily from individuals residing in Marion and Jeffer-

son Davis Counties. The total number of persons in the

labor force in these two counties during the time in ques-

tion was approximately 11,133 individuals, 3,368 of whom

were black. Accordingly, blacks constitute 30.25% of the

labor force available to the Defendant. (Exb. D-3)

IV.

The Defendant plant is an automated chip-n-saw mill

utilized primarily for producing finished pine lumber.

It was only the second mill of this type in the State of

Mississippi and the first such mill operated by the De-

A31

fendant. The plant began production in August, 1970 with

a work force of approximately 35 employees. The initial

supervisory staff, with one exception, was brought to

the mill from other sawmills or construction companies

outside the surrounding area. The Defendant plan orig-

inally utilized a two-shift operation employing approxi-

mately 100 to 110 persons until July 1974 when layoffs

became necessary due to economic conditions. The plant

continued to cut back on employees in late 1974 and early

1975 and was closed for production for approximately six

months until it reopened in June of 1975. From July of

1974 to June of 1976 the work force consisted of approxi-

mately 60 to 70 employees. This is the normal employee

complement for a one-shift operation. Between the open-

ing of the plant in 1970 and 1976, the Defendant employed

approximately 783 workers at the Columbia plant, 460

whites and 323 blacks. This has resulted in an overall hir-

ing policy during the pertinent period of 41.5% black.

The impetus for this lengthy litigation emerges from

union activities dating back to 1972. In February of that

year, the Plaintiff union won an election at the plant

and bargained for a collective bargaining agreement be-

ginning in late April, 1972. The union ultimately called a

strike against Defendant on July 7, 1972, which lasted

for one week. Approximately 45 to 50 employees went

out on strike and the Defendant hired 32 to 35 new em-

ployees during this period. All but one of the striking

employees was black.

During the pendency of this strike, counsel for the

Plaintiff's union, Mr. James Youngdahl, sigriéd and for-

warded a sworn charge to the Equal Employment Oppor-

A32

tunity Commission on July 12, 1972, alleging unlawful

employment practices as follows:

’ Black employees have been denied opportunities for

promotion, transfer, and other vacancy filling move-

ment, denied back pay and front pay to which they

were entitled because of present discrimination gen-

erated by years of service under racially discrimina-

tory conditions, and otherwise have been discrim-

inated against with respect to their compensation,

terms, conditions and privileges of employment be-

cause of their race and/or color.

This charge did not contain the name, address and tele-

phone number of any aggrieved person. Nor is there any

evidence that the E.E.O.C. verified the authorization of

the union to file this charge. The Plaintiffs, Robert Boy-

kin, Jr., Thomas Powell and T. J. Gholar have never filed

a charge with the E.E.O.C. nor have they talked to any

of the E.E.O.C.’s investigators. There is no evidence be-

fore the Court that these named Plaintiffs are now mem-

bers of the Plaintiff union. Further, there is no credible

evidence before the Court that any other employee or

prospective employee of the Defendant was at any [sic] a

member of the Plaintiff’s union.

At the conclusion of the strike on July 14, 1972 the

Defendant and union signed an agreement regarding the

method by which striking employees would return to their

jobs. After this agreement, there is no evidence of any

further bargaining between the Defendant and the union

and no evidence of any contract between the union and

any of the Defendant’s employees. In mid-1974 the union

formally withdrew any claim to being the collective bar-

gaining representative of the Defendant’s employees, os-

tensibly because of a lack of employee support. The union

A33

does, however, vigorously pursue this particular lawsuit.

As heretofore noted, the Defendant in its counterclaim

contends that the present cause of action was filed solely

to promote the union at the expense of the company and

its employees.

VI.

The evidence before the Court presents the picture

of a company attempting to establish itself as an “af-

firmative action” employer since the inception of this plant.

Specifically, before the plant opened, the company made

a determination to hire and maintain a workforce with at

least 30% black employees, the percentage of available

blacks in the work force in the surrounding counties. In

this regard, the Defendant workforce has always been

over 30% black, and usually 40% to 50% black. (Tr. 891-

892, Esb. [sic] P-1) Further, the Defendant instructed the

Mississippi State Employment Service to refer all appli-

cants to it on a non-discriminatory basis. All advertise-

ments for employees, the employee handbook, and the policy

manual state unequivocally that Defendant is an equal op-

portunity employer. [Exb. D-22, D-5(a), (b), (c) and (d).

Tr. 900-901]. Defendant has also posted equal opportunity

notices on all bulletin boards. Further, Defendant has

been very active in its support of “cluster programs” at

two predominantly black universities, and has advised all

potential sources of job applicants of its program as an

equal opportunity employer. See E.E.0.C. v. Georgia-

Pacific Corporation, 450 F.Supp. 1227 (N.D.Miss.1977).

VII.

In order to fully examine the issues in this case it

is necessary to set forth in some detail the organization

of this particular plant. (Exb. D-4, D-20, Tr. 913-942)..

The various departments can be broken down as follows:

A34

MANAGEMENT:

Plant manager, plant superintendent, log yard fore-

man, sawmill foreman, rough lumber manufacturing fore-

man, planer mill foreman and shipping foreman. When the

plant is operating at one shift, there is only one person in

each of these positions and at times there has been no one

in the shipping foreman slot. At the time of trial, the

plant superintendent position had been vacant for six

months.

ADMINISTRATIVE AND OTHER NON-PRODUCTION

EMPLOYEES:

Office Manager, accounts payable clerk, secretary-

receptionist, janitor and guard. Normally only one person

occupies each of these positions with the exception of

usually three or four guards at all times.

LOG YARD DEPARTMENT:

Diesel mechanic (skilled position), crane operator

(skilled position), front end loader (80,000 pounds) and

front-end loader and utility. There is only one employee

in the diesel mechanic and front end loader (80,000 pounds)

category. The crane operator has never had two em-

ployees. The front-end loader and utility positions nor-

mally have two employees.

SAWMILL DEPARTMENT:

Chip-n-saw operator (skilled position), trim saw oper-

ator, debarker operator, cutoff saw operator, saw filer

(skilled position), saw filer helper, millwright (skilled

position), millwright helper lead electrician (skilled posi-

tion), electrician (skilled position) electrican helper and

utility. The chip-n-saw operator, saw filer, saw filer helper,

lead electrician, electrician, and electrician helper positions

> -

inte

YY => =

A35

normally carry only two employees per position. At the

time of trial there had been no one in the electrician helper

position since June of 1973. All of the other positions in

this department normally carry two employees in a one-

shift operation with the exception of millwright, which

usually has six to ten employees. Although millwright

helper has had up to four employees, there had been only

one employee in this position since January of 1976 at the

time of trial.

ROUGH LUMBER MANUFACTURING DEPARTMENT:

Stacker operator, lift truck operator, transfer car oper-

ator, kiln operator (skilled position), kiln operator trainee

and utility. With the exception of utility which varies

from three to four employees according to need, and kiln

operator which had been vacant at the time of trial since

October of 1973, the plant normally has one to two em-

ployees in each of these positions.

PLANER MILL DEPARTMENT:

Machine operator (skilled position), head grader

(skilled position), grader (skilled position), trim saw oper-

ator, machine helper, lift truck operator, tally clerk, ma-

chine feeder and utility. There is normally one machine

operator, head grader, trim saw operator, lift truck oper-

ator, and tally clerk. There had been no machine helper

since July of 1975.

SHIPPING DEPARTMENT:

Shipping clerk, lift truck operator and utility. These

positions are filled by one to two people at all times with

the clerk and operator position ordinarily filled by one

person.

A36

VII.

All of the above noted departments have been from 30%

to 50% black since the date the plant began production. As

noted above, there are 11 positions which are considered

skilled positions at the plant. The position of shipping

clerk is considered an administrative position. There are

32 positions held by hourly employees in the production

force alone. With the exception of utility and millwright,

these positions are normally filled by one or two employees

in a one-shift operation. The millwright position ordi-

narily has four employees when there is one shift, and

two or three more if an additional shift is in operation.

The utility position is ordinarily composed of 20 to 25 em-

ployees in a one-shift operation.

IX.

The Plaintiff, Robert Boykin, was hired by the Defen-

dant on July 6, 1971 as a utility employee. Boykin’s prior

experience was working in a factory making wood cab-

inets, in a post office, and as a leadman in another factory.

He also testified to experience in operating a fork lift and

other equipment. The only inquiry Boykin made at the

time of application was concerning forklift operation and

he was informed there was no opening at the time. Boykin

testified he had asked his supervisor for a promotion to

another utility position or forklift operator. However, he

presented no evidence as to the date of these requests,

the openings in these positions, or the individual hired to

fill a particular opening while he was employed. In fact,

the evidence reveals that the forklift operator positions

had been filled predominantly by black employees. (Exb.

D-19)

The evidence does reflect that Boykin voluntarily ter-

minated his employment in February of 1972 but was re-)

A37

hired one month later. Although the testimony is some-

what conflicting. this first termination seemingly resulted

from a desire to close a house transaction and visit his

mother in Chicago. This particular terminations [sic] was

not a part of any charge filed with the E.E.O.C. and clearly

was not based on race.

Robert Boykin was the elected president of the union

local at Defendant’s sawmill in 1972 and joined the July

7th strike. The evidence revealed that during the strike

Boykin was involved in a picket line incident with another

individual named Harold G. Tolar, and was subsequently

tried and convicted of a misdemeanor, assault with a

deadly weapon. Nevertheless, Boykin was reinstated in

accordance with the agreement between the Union and

Defendant but subsequently voluntarily terminated his

employment on August 22, 1972. Although Boykin alleges

he was forced to resign due to the company’s desire to

“get rid” of him because of his race and involvement with

the union, he presented no credible evidence to substan-

tiate this charge. In fact, the record reflects that following

the incident with Tolar, he was allowed by the plant man-

ager to return to work with a clean slate regarding the

incident. This Court finds absolutely no evidence of a

constructive termination in the case of Robert Boykin.

This Court is of the opinion that the Plaintiff Boykin

has failed to meet his burden of proof in this case. The

record reflects that there were no vacancies in the forklift

position when he was hired. Further, the only evidence

of record reveals that of the three employees hired as

forklift operators while Boykin was employed, two were

black. (Exb. D-19, p. 22) These statistics hardly establish

a case of racial discrimination. Further, the one white

hired was in a different department than Boykin. (Exb.

P-3) It is the finding of this Court that the Plaintiff

A38

has failed to demonstrate a prima facie case of discrim-

ination in initial assignment or promotion. This Court

further finds that the Plaintiff has failed to establish the

Defendant conspired in any way to force his termination

in August of 1972, creating a constructive termination

situation. The individual claims of the Plaintiff Boykin

are totally without merit and should be dismissed.

The Plaintiff T. J. Gholar was hired by the Defendant

on August 6, 1970 and worked until February 1, 1972.

Plaintiffs do not contend that the termination of his em-

ployment was discriminatory on the basis of race and the

Court directed a verdict for the Defendant on this issue

at the close of the Plaintiff’s case. (Tr. 759) Gholar was

always classified as a utility employee with prior work

experience as a painter, hauling pulpwood, and assisting

a brick layer. His testimony indicated he had no skills

which would qualify him to be initially assigned or pro-

moted to any other classification. Further, he never asked

to be promoted or transferred and was satisfied with his

job. (Tr. 654-663) This Court concludes that the De-

fendant did not discriminate against the Plaintiff T. J.

Gholar in any manner because of his race and all claims

as to Plaintiff Gholar should be dismissed.

XI.

The Plaintiff Thomas Powell was hired by the De-

fendant on August 21, 1970 and worked until July 26, 1972.

He was classified as a utility employee during this time

frame. Powell’s prior experience had been as an unskilled

employee for 15 years at New Orleans Furniture Company.

His testimony does not indicate that he possessed quali-

fications or skills for a higher job classification nor did

he testify he ever sought another position.

A39

Powell testified that when he returned to work after

the strike he was required to do the job of two or three men

on his first day back on the job and was told by Foreman

Joe Murphy that he would do it or else. Murphy denied the

allegations and testified that Powell did not say anything

to him on the day he was terminated, but advised him that

he was going back to his former job. Further, testimony

reveals that the number of individuals required to work

the so-called “green chain” has varied from 1 to 3 indi-

viduals. (Tr. 869-870, 1300-1303) This Court, having heard

all the testimony does not find that the testimony of

Powell to be credible regarding his contention that he

was overworked. Furthermore, the Plaintiff has totally

failed to prove that any possible overworking of Powell

was because of his race. There is no claim made in this

lawsuit that black employees were discharged, construc-

tively or otherwise, either in greater numbers than white

employees or were treated differently on individual cases

of discharge than white employees. This Court finds that

the Plaintiff has failed to prove even a prima facie case of

discrimination against the Defendant and his individual

claim should be dismissed.

XII.

The testimony reveals that the hiring practices of the

Defendant after the initial staffing in 1970 consists of taking

a written application from all persons who desire to apply.

Each applicant is interviewed regardless of the lack of

job vacancies. This interview consists of talking with

the applicant to ascertain his prior work experience, skills,

interests and desires of employment. Defendant employs

no test nor is there a minimum education requirement,

although some jobs do require the ability to read and

write. An applicant is advised at the time of application

that he must update his application within thirty days if

A40

he is not hired during this period. The applicant is called

for a second interview at the time a vacancy occurs, if

none exists upon application, and is generally interviewed

by a different supervisor on the second interview. A de-

cision is then made as to which applicant will fill a par-

ticular vacancy. Clearly, this procedure does involve the

subjective consideration of various supervisors. As here-

tofore noted, however, the hiring policy of the Defendant

has resulted in a hiring of 41.5% blacks in an area where

the work force is 30.25% black. Further, the Plaintiffs

were not able to point to a single specific instance where

a black applicant was the victim of racial discrimination

as the result of the Defendant’s hiring policy. The only

testimony in this regard was that of John Pittman who

applied for the job of a welder or millwright in 1971. No

one was hired into the millwright position between Febru-

ary 1971 and February 1973. (Exb. D-20) The proof is

clear that blacks have not been denied employment at

the Defendant company as the result of its hiring pro-

cedure.

XIII.

A new employee at the Defendant plant is normally

assigned to the utility classification unless he initially

possesses some skill the Defendant has a need for at the

particular time and there is no one already employed who

is qualified for promotion or reassignment to that position.

The testimony reveals the Defendant, after initial staffing

of the plant, sought to train present employees for open-

ings rather than go outside the plant. (Tr. 907-909, 911-913,

1024). The testimony reveals that the decision to hire in-

dividuals into positions above utility during the first three

years of plant operation was made by plant manager Thorn-

ton after an in-depth interview regarding a specific job

or after an applicant had demonstrated proficiency in that

job.

A4l

The Plaintiff’s proof did not reveal any white applicant

who had been hired into a job above utility in favor of a

black applicant or employee with greater or equal qualifi-

cations for that particular position. Although Exhibit 6-A

of the Plaintiffs reveals a disparity between the number of

white employees assigned above utility positions as com-

pared to black employees so assigned, it is of limited value

in considering this issue. The exhibit ignores the initial

staffing of the plant, the administrative/supervisory and

clerical positions, the rehiring of former employees, and

does not deal with the issue of qualifications or vacancies

for the jobs in question. It necessarily assumes that all

initial assignments above utility were made without re-

gard to qualifications. Under these circumstances, this

Court can afford little weight to this particular exhibit.

Accordingly, this Court is of the opinion that the

Plaintiffs have failed to prove that the Defendant engaged

in racial discrimination in the making of initial job assign-

ments. The evidence clearly reveals that since the initial

staffing of the plant, relatively few positions above the

utility classification have been filled from outside the De-

fendant’s work force. When this has been done, the person

filling the job had prior related experience and no qualified

person within the plant desired or was qualified for the

job.

XIV.

As noted hereinabove, the Defendant maintains a pol-

icy of filling vacancies above the utility classification from

within its own work force whenever possible. Further,

the utility position comprises the bulk of the available posi-

tions in this now relatively small lumber operation.

Vacancies in the non-utility positions have been infrequent,

thus rendering numerically small statistical analyses ex-

tremely suspect.

A42

In March of 1976 the Defendants began utilization of

a “bid system” for the filling of vacancies above the utility

classification. This procedure requires all employees to file

or fill out a bid form in order to be considered for a pro-

motion. All vacancies are posted plant wide in order that

employees may make known their interest in any vacancy.

(Exb. D-5) This system affords all employees in the

plant written notification of job openings and an op-

portunity to seek and qualify for any vacancy.

Prior to March of 1976, the Defendant maintained in

its handbook a policy for promotion known as “depart-

mental seniority” in the filling of vacancies above the

utility classification. Nevertheless, testimony reveals that

the Defendant has in fact followed a policy of “plant se-

niority” since the opening of the plant. (Tr. 1034-1040)

Although no formal bid system existed prior to 1976, em-

ployees were informed at the time of hiring that they

would have to make known their desire for promotion or

for training for a position other than the one held, by con-

tacting a member of the supervisory staff. Employees

could train on jobs prior to openings, although they could

receive promotion without training, depending upon senior-

ity and qualifications. Most vacancies went to employees

who had previously trained for that position. An employee

would have to transfer to another department to train on

jobs in that department, but he would retain his seniority

for purposes of promotion. Training was freely given to

any employee who sought the same. Although job vacan-

cies were not posted by Defendant prior to 1976, the evi-

dence reveals employees throughout the yard were ap-

prised of vacancies occurring in various departments by

supervisors or other employees. In this regard, the Court

notes that all departments of the Defendant plant have

been from 30% to 50% black since the plant began pro-.

A43

duction. In fact, there is no charge of racially segregated

departments, and testimony of witnesses indicates free

communication between employees and supervisors

throughout the Defendant facility. Although the present

formalized posting of openings is certainly the preferable

procedure, this Court does not find that the prior method

utilized resulted in unequal notification of blacks regard-

ing vacancies in the positions above utility at the plant

during the time in question.

No evidence was presented that any black employee

was denied training opportunities which were given to a

white employee. This Court will hereinafter examine in

detail specific positions within various departments which

the Plaintiffs contend have been underrepresented by

blacks. Exhibit D-19 offered by the Defendant reveals

that both white and black employees move above the

utility position in large numbers. Exhibit D-20 reveals

the skills of employees in job vacancy positions in jobs

with less than a representative number of blacks. This

fully rebuts the exhibits offered by the Plaintiff, Exhibits

P-8A, 9-A, 12A and 13A, which do not take into considera-

tion the skills, qualifications work performance, prior

experience, job vacancies or the express desires of indi-

Accordingly, it is the finding of this Court that the

Plaintiff has failed to establish allegations of discrimina-

tion and promotions by a preponderance of the evidence.

Even assuming establishment of a prima facie facie [sic] in

this regard, the Defendant has presented legitimate non-

discriminatory reasons for the promotions of specific indi-

viduals which have not been shown by the Plaintiff to

be a pretext for racial discrimination.

A44

XV.

Turning now to a full examination of the evidence

presented rel>tive to the specific job classifications within

the various departments, the Court notes that the fol-

lowing jobs have always had a representative number of

blacks occupying the position: Utility, lift truck operator,

machine feeder, tally clerk, trim saw operator, transfer

car operator, cutoff saw operator, debarker, front end

loader, front end loader [sic] (80,000 pounds), guard and

janitor. This is revealed by examination of Exhibit D-19

which consists of a listing of all employees in each job

classification for the 16 printouts which constitute Exhibit

P-1. (Tr. 793-797) Exhibit D-19 reveals that there has been

a substantial and representative number of blacks in all

classifications except those listed on Exhibit D-20. Ex-

hibit D-20 lists every employee who has ever held any of

the job classifications listed thereon from the beginning

of the plant operation through March 1, 1976. It also

shows the employee’s race, date of hire, date entered a

position, date left a position, date of termination, wage,

rates, work history at the plant, and prior work experience.

The job classifications for D-20 were presented by the

Defendant as those job classifications which did not appear

on D-19 as having a substantial or representative number

of blacks. These specific positions are examined in detail

hereinbelow.

XVI.

SUPERINTENDENT AND PLANT MANAGER - The De-

fendant has had two superintendents and three plant man-

agers since its inception, all of whom have been white.

However, the position of superintendent has been vacant

since December, 1974. There is no evidence that there

has been a black applicant for any of these positions who

A45

is equally or better qualified than the person hired at the

time they were filled.

XVII.

FOREMAN - The Defendant has employed 11 foremen

since 1970. There have been two other individuals whose

personnel files contain a form denoting foreman but the

evidence reveals that neither of them were ever foremen

for the Defendant. The testimony further reveals that

Leroy Bridges, who is black, declined an offer of the

shipping foreman position in 1972. (Tr. 1184) There are

presently 5 foremen working for the Defendant company,

one of whom, Herron, is black. Murphy was the first

employee hired by the Defendant and has been foreman

since production began. Tamm had been a planner fore-

man at Urania Lumber Company and has been the only

planner foreman the Defendant plant has hired. Charles

R. Tolar has been a kiln foreman since February, 1973, and

Fortenberry has been the only shipping foreman Defen-

dant has ever had. No foreman has been hired at the

Defendant plant since July, 1973. The evidence reveals

that all of the Defendant’s foremen have had supervisory

and/or skilled experience that would qualify them for

this position with the exception of Breedlove. Breedlove

was hired as night foreman and terminated after one

month when the night shift was ended.

Thus, almost all of the initial supervisory staff of

this highly automated and mechanized chip-n-saw mill was

brought in from operations outside the State of Mississippi

or were hired from the construction company that built

the mill. There is no evidence of any black individual

being rejected for one of the limited foreman positions

which have become vacant over the years or that the

position was filled by a lesser or equally qualified white.

A46

This is one category in which the limited number of indi-

viduals filling the position over the years render a statis-

tical analysis of little assistance to the Court in determin-

ing the true situation. This has thus necessitated the

rather complete examination of the employees hired in

this particular position.

XVII.

OFFICE CLERICAL AND OFFICE MANAGER - Defen-

dant has employed ten full-time employees and one part-

time clerical employee since its inception, to fill three

positions, sales secretary, accounts payable clerk, and sec-

retary-receptionist. Each of these employees had prior

relevant work experience in clerical duties when she was

hired. Two of the individuals, Tamm and Butler, have

been employed since the plant’s opening and are the only

employees who have held the position of sales secretary

and accounts payable. No proof was presented that any

black applicant for these positions had equal or better

qualifications at the time of hiring. Of the remaining

eight full-time clericals, secretary-receptionist, two have

been black, Frelix and Fortenberry. There is no proof

that any black applicant had qualifications equal to or

greater than the remaining six white employees that have

been hired. In fact, there is no proof that any black in-

dividuai ever sought an office clerical position other than

the two that were hired.

Defendant has employed three office managers since

its opening, all of whom have been white. There is no

proof that any black applicant or employee had qualifica-

tions equal to or greater than any of these individuals

hired. Nor is there any evidence that any black individ-

ual ever sought this position at any time.

A47

XIX.

SAW FILER AND SAW FILER HELPER - The De-

fendant has employed four saw filers and six saw filer

helpers since the plant’s inception, all of whom are white.

All of these individuals were clearly qualified for these

positions. A saw filer’s position is the most skilled position

at the plant and is the highest paying hourly position.

(Tr. 907-908) There is no evidence of any black individual

being rejected for this position in favor of a lesser or

equally qualified white. The Plaintiff did present one

witness, Larry Brent, who claimed to have requested the

position of saw filer helper, which was ultimately filled

by a white, Charles Stogner. However, the facts reveal

that not only was Brent an unreliable and unskilled em-

ployee, but that Stoger [sic] was a qualified saw filer at the

time he was hired. The evidence reveals that Brent had

quit Defendant’s employ four or five times, including

walking off during a work shift. Further, two black em-

ployees had rejected an offer of filling this particular

position. The evidence reveals that this selection of

Stogner was not racially motivated. The evidence further

fails to reveal any black individual who sought the posi-

tion of saw filer helper or the employment of any white

with lesser or equal qualifications than a white employee

or applicant.

XX.

ELECTRICIAN, LEAD ELECTRICIAN, AND ELECTRI-

CIAN HELPER - The Defendant has employed four elec-

tricians and one lead electrician since the plant’s inception,

all of whom are white. The one white lead electrician

was hired at the time the plant began operation in 1970.

There is no evidence of any black individual being re-

jected for the position of electrician or lead electrician

a. eee

A48

in favor of a lesser or equally qualified white, nor is

there any evidence that any black ever sought either of

these positions. The facts do reveal that the electrician

positions require a high degree of experience and com-

petency.

Defendant has employed four white electrician helpers

at his plant, but this position has not been occupied since

June of 1973. There is no evidence of any black individual

being rejected for this position in favor of a lesser or

equally qualified white, nor any evidence that a black

has ever sought this position.

XXI,.

MILLWRIGHT/CARPENTERS - Defendant has employed

two millwright/carpenters, both of whom are white. This

position was only in existence for a short period of time

as these individuals were employed to construct additional

buildings at Defendant plant, with the understanding that

they would be terminated when the job was completed.

They were hired solely because they could not secure

adequate insurance coverage to build these additions on

a contract basis. There is no evidence of any black indi-

viduals being rejected for this position in favor of a lesser

or equally qualified white.

XXII.

MILLWRIGHT HELPER AND MILLWRIGHT - Defen-

dant has employed 21 millwright helpers since its opening,

one of whom was black. Another black individual was

classified as an oiler, the position title which preceded

millwright helper. There was no one in this position in

August of 1972 until January of 1976 and there has been

only one in the positions [sic] since January of 1976. Only 8

out of these 20 were hired at the time the plant was

A49

being staffed. Seven of these individuals had prior re-

lated experience and the eighth, who was later promoted

to electrician, had experience operating heavy equipment

and as a sheet metal worker. Evidence reveals that five

individuals did not have related prior experience shown

on the application, but testimony indicates experience in

the mill before being promoted to this particular position.

There is no evidence of any black individual being re-

jected for the position in favor of a lesser or equally

qualified white.

In this regard, L. J. Daniels testified at trial that

he requested promotion to millwright helper position sev-

eral times when he knew there were vacancies. The facts

reveal that five millwright helper positions opened while

Daniels was employed with the Defendant. One of these

positions was filled by Herron, who is black. The other

four positions were filled by white individuals who either

had more seniority and/or prior related experience.

Daniels’ prior experience was that of operating a hand

sander at a furniture plant. Further, Daniels testified

he had no skills or experience in the millwright trade.

Kermit Holloway, a black individual, testified at trial

that he requested a transfer to the millwright helper

position but the position was given to a white, Charles M.

Tolar. The facts indicate that Tolar had maintenance

skills whereas Holloway’s testimony reveals he had no

prior maintenance experience and skills equal to that of

Tolar. The third individual, W. B. Daniel, testified that

he applied for a millwright helper position but was told

there was no opening and was thus forced to accept a

utility position. He further testified that a white, Vernon

Williamson, was promoted to millwright helper instead

of him during this time frame. The facts indicate that

Daniel had no skills in the area of the millwright position.

A50

The Defendant has employed 21 persons as mill-

wrights, one of whom was black. There are presently

only four millwrights employed. Two of the 21 mill-.

wrights held other positions while they were so classified.

Ten millwrights had worked previously as millwright

helpers. Only three individuals, Brewer, Sims and Smith,

showed no related qualifications on their applications and

had not served as a helper prior to acquiring a position.

The Court finds that Sims’ qualifications were misrepre-

sented at the time of hire. (Tr. 960). Brewer had worked

previously as a saw filer and was classified in both the

millwright and saw filer categories when he was rehired.

This Court finds that the Plaintiff has failed to show by

a preponderance of the evidence that any black individual

was rejected ‘or the position of millwright in favor of

a lesser or equally qualified white.

XXIII.

KILN OPERATOR AND KILN OPERATOR TRAINEE -

Defendant has employed four kiln operators, all of whom

have been white. Two of these individuals were also

classified as millwright/kiln operators. There is no evi-

dence that any black individual was rejected for this

position in favor of a lesser or equally qualified white or

that any black ever sought this position.

Defendant has employed four kiln operator trainees,

but no one has been employed in this position since Octo-

ber of 1973. There is no evidence that any black indi-

vidual has been rejected for this position in favor of a

lesser or equally qualified white, nor any evidence that

any black individual has ever sought this particular posi-

tion.

A51

XXIV.

CRANE OPERATOR - Defendant has employed four crane

operators since its inception, one of whom was black.

This position requires the operation of a “knuckle boom”,

a hydraulic machine used for stacking of logs. (Tr. 1156-

1157) One black individual, Tate, testified that he worked

from August of 1970 to October of 1973 as a utility man

and felt he was qualified for the position of crane oper-

ator. The evidence reveals, however, that he had never

operated a crane, although he had worked as a “hook-on

man” on an “overhead” crane at Ingalls Shipyard. De-

fendant did not utilize overhead cranes. The crane opera-

ator job was filled when Tate was hired and there was

no vacancy unti) five or six months after he left the

employment of the Defendant. There is no evidence

that any other black employee or applicant was qualified

and/or sought the crane operator position anytime when

it was filled by one of the few employees to occupy this

position.

XXV.

CHIP-N-SAW OPERATOR - Defendant has employed ten

chip-n-saw operators since the opening of the plant and

another employee who was classified as a chip-n-saw

operator/millwright. The chip-n-saw is a complex ma-

chine through which the logs are turned into lumber

at the rate of 208 feet per minute. The operator is

responsible for the production of the Defendant’s plant

and he is required to get maximum yield from each log

that comes through the operation. The job requires con-

sistency and knowledge of the production process as well

as superb motor skills to perform the operation of this

machine. All ten individuals who have Served in this

position have been white. Two black individuals were

A52

trained for this position and one of these took a millwright

position before completing his training. Several white

employees have also trained for the operation without

being promoted to the position.

Three of the ten operators were hired into the position

at the time of the plant’s beginning. Hudson was hired

into the position in 1970 and Carroll, who had originally

been assigned to operate the debarker, was promoted to

the position in November of 1970. Tommy Turnage was

hired into the position in December of 1970. Hudson left

when T. Turnage was hired. These are the only indi-

viduals initially assigned as chip-n-saw operators except

for the rehiring of Tommy Turnage (twice), Gerald

Turnage (twice), Louis Broome (once), and Billy J.

Broome (once). Billy J. Broome was promoted to the

position after three months on the cutoff saw. Louis

Broome was employed for eight months as a debarker

operator and was rehired during the strike. He worked

for four months before being promoted to chip-n-saw

operator. Toxie Polk wa: employed for 14 months before

being promoted to operator.

Since the plant reopened in June 1975, Defendant

has employed only one chip-n-saw operator at a time.

They have been Thomas Turnage and Billy J. Broome.

In fact, no one has been promoted to this position since

May of 1973 except for the rehiring or reassignment of

former chip-n-saw operators.

In conclusion, there have only been 10 operators in

all, and only 6 operators after the plant was originally

staffed. Although the Court heard testimony of several

black individuals claiming they had sought this position,

there is no credible evidence to show that a qualified

black was denied a position or training for the position

in favor of a lesser or equally qualified white.

A53

XXVI.

SHIPPING CLERK - The Defendant has employed five

shipping clerks since its inception, all of whom have been

white. Defendant utilized a shipping clerk to prepare,

maintain and record its shipping invoices, and other paper

work associated with the plant operation. There is no

evidence of any black individual being rejected for this

position in favor of a lesser or equally qualified white.

In this regard, Leroy Bridges, a black employee, has

been in this department since the plant began operation,

but is unable to read and write. His salary has always

been above the lift truck operator scale. In each instance

where a vacancy has been filled, the advice and counsel

of Bridges as to the individual to be given this position

has been sought and followed. (Tr. 1182-1185)

XXVII.

MACHINE OPERATOR & MACHINE HELPER - Defen-

dant has employed five machine operators, all of whom

have been white. One black individual, White, testified

that he requested this position when a vacancy occurred

but the position was given to a white employee named

Willey. White’s testimony was confusing as to whether

the machine operator and trim-saw operator were the

same positions or not. Assuming his testimony dealt with

the machine operator position, the evidence clearly revealed

the positioned [sic] was filled by an employee with

substantially superior qualifications to White. White had

no previous experience in mechanical work and did not

testify to any skilled training in this area.

There have been eight or nine machine operator

helpers at the Defendant plant, one of whom was black.

This black individual was the last person in the position

' o-

‘ei

a ae ee” i ee

A54

and it has been vacant since July 3, 1975. Another black

employee quit just prior to the time he was due promo-

tion to this position. (Tr. 969) There is no evidence

of any black individual being rejected for this position

in favor of a lesser or equally qualified white.

XXVIII.

STACKER OPERATOR - The Defendant has employed

six stacker operators, two of whom were black. One of

the white individuals hired in this position was a relief

stacker through March of 1976. Another black employee,

Green, has been offered this position but refused the

same on two different occasions. (Tr. 1227) There is

no evidence that any black individual has been rejected

for this position in favor of a lesser or equally qualified

white.

XXIX.

GRADER AND HEAD GRADER - Defendant has em-

ployed eight graders, two of whom have been black.

Two other black employees have been offered this posi-

tion. Two of the white graders have also been classified

as head graders. A black grader, Newsome, testified

that a white employee, Graham, had been selected over

him for the position of head grader, although he had more

seniority than Graham. The testimony of the plant man-

ager, Thronton, revealed that Newsome was not selected

for this position because he lacked the qualifications to

make reports and handle the necessary reading, writing

and mathematical requirements of the head grader posi-

tion. In this respect, Newsome did not refute this testi-

mony. (Tr. 881-883; 448-451) There is no evidence before

the Court that any black individual was rejected for the

position of grader or head grader in favor of a lessor [sic]

or equally qualified white.

A55

XXX,

DIESEL MECHANICS - Defendant employed seven diesel

mechanics and one mechanic helper, all of whom have

been white. The mechanic helper was employed for

only two days and is the only one to ever have been

hired into this position. Herron testified that he knew

of only one black in the community with the requisite

skills to be a diesel mechanic. This individual was hired

in a lower classification, pursuant to Herron’s recommen-

dation, on the basis he would become a mechanic if an

opening occurred. The individual quit, however, prior

to any opening. Plaintiff Boykin testified to having had

four weeks of training as a diesel mechanic at a trade

school, but the position was not vacant while he was

employed. This Court finds there is no credible evidence

that any black employee or applicant was qualified and

and/or sought the diesel mechanic position at any time

it was awarded to a lesser or equally qualified white.

XXXII.

The statistical exhibits presented by the Plaintiff do

not reveal a significant statistical conclusion as to whether

there was discrimination against blacks in employment.

Some of the exhibits utilized the determination of counsel

for the Plaintiffs as to which employee did or did not

have the “relevant prior experience.” These exhibits

reflecting counsel’s subjective determination of relevant

prior experience are not supported by the evidence.

Plaintiffs further use the concept of averaging on a

number of their exhibits. This concept is not proper in

a case in which the average has relatively small numbers

and lump together skilled, semi-skilled and unskilled jobs

into the same categories. The Plaintiff’s statistical ex-

A56

hibits ignore the fact that there are over thirty-five dif-

ferent jobs in the plant which require different skills

and pay different wages.

The Plaintiffs’ expert, Gordon Henderson, is a polit-

ical science teacher who testified as to the statistical

significance of various exhibits. He assumed, however,

that all factors related to the employment decision, i.e.,

skills, prior experience, dates of application, dates of job

openings were equal or “held constant.” On the other

hand, the Defendant’s expert, a mathematician and stat-

istician, was of the same opinion if the employment deci-

sions were based on “chance alone.” This Court finds

that the testimony of these experts coincides in this par-

ticular instance, and that the description used by the De-

fendant’s expert is the better phraseology. Nevertheless,

this Court does not find that all employment decisions

are made by “chance” or that all factors entering into

employment decision would be “held constant”. This type

of analysis may well be valid for voting registration or

reapportionment cases where the only variables are age

and residency which can easily be ascertained. It does

not lend itself to a reasoned analysis of employment deci-

sions which are necessarily based on factors such as skill,

experience, dates of openings, and motivation of the indi-

viduals seeking employment.

Statistical analyses by the experts testifying in this

case involving a relatively small labor force with infre-

quent openings in certain positions is of very little assis-

tance to the Court in ascertaining an accurate picture

of the hiring practices of the Defendant. As heretofore

noted, this entailed the rather lengthy detailed examina-

tion of the actual hiring practice in each specific position

which the Court considered under-represented by blacks

over the six years in question of this plant’s operation.

A57

The Defendant’s D-19 and D-20, and the Court’s

examination thereof, effectively rebut any inference which

the statistical exhibits of the Plaintiff may have estab-

lished. Defendant’s evidence in this regard reveals that

the Defendant utilized proper non-discriminatory criteria

in "selecting individuals for employment, initial assign-

ment, and promotion. The matching of job openings to

the person receiving those jobs, along with the other -

evidence presented, clearly reveals that race was not a

factor in Defendant’s selection of employees for employ-

ment, initial assignment, or promotion.

XXXII.

The Defendant owns and operates a number of other

manufacturing facilities in the State of Mississippi. On

November 7, 1974, the E.E.O.C. filed a similar complaint

in the United States District Court for the Northern

District of Mississippi, alleging that the Defendant had

engaged in racial discrimination at each of its operations

in this State with the exception of the plant involved

in this case. The District Court found that the Defen-

dant had not discriminated on the basis of race in each

of the three areas attacked by the E.E.O.C. therein; hiring,

initial assignments and promotion. E.E.0.C. v. Georgia-

Pacific Corporation, 450 F.Supp. 1227, 1242 (N.D.Miss.

1977).

XXXII.

In light of the foregoing analysis, this Court finds

that the Plaintiffs have failed to show by a prepon-

derance of the evidence that the Defendant has com-

mitted any acts of illegal employment discrimination with

respect to members of the black race.

A58

CONCLUSIONS OF LAW

Since August of 1970, the Defendant has continuously

been and is now an employer engaged in industry af-

fecting commerce within the meaning of Section 701(b)

(g) and (h) of Title VII, 42 US.C. Section 2000e(b),

(g) and (h).

Il.

The Defendant acknowledges jurisdiction of this Court

pursuant to Section I of the Civil Rights Act of 1866, 42

U.S.C. Section 1981. However, Defendant asserts that

this Court does not have jurisdiction pursuant to 42 U.S.C.

Section 2000e et seq because the individual Plaintiffs did

not file a charge of discrimination with the E.E.O.C. or

receive a “right to sue” letter as required by 42 U.S.C.

Section 2000e-5(f)(1). The Defendant also contends the

Plaintiff union did not properly file the charge on which

it asserts Title VII jurisdiction because it did not provide

the E.E.0.C. with the names and addresses of persons on

whose behalf the charge was made as required by 29

C.F.R. Section 1601.7.°. The Defendant contends this re-

sulted in the E.E.O.C. not grieving the charge filed by

the Plaintiff union.

2. 29 CFR. Section 1601.7 reads as follows:

(

a) Accharge that any person has engaged in or is engaging

in an unlawful employment practice within the meaning of

silt Vi Soee De mate by os Oe WEE ee eee

(Continued on following page)

AS5®

Case law establishes that a certified collective bar-

gaining representative has standing to challenge employ-

ment practices that allegedly discriminate against the

employees in the bargaining unit on grounds of race or

sex. A union which is clearly maintaining an action as

a part of its representational capacity under a collective

bargaining agreement may be a proper plaintiff for the

purposes of seeking injunctive relief in a Title VII pro-

ceeding. I.W.A. v. Georgia-Pacific Corporation, 568 F.2d

64 (8th Cir. 1977); Local 194, R.W.D.S.U. v. Standard

Bri. °s, Inc., 540 F.2d 864 (7th Cir. 1976); and Warth

v. . din, 422 U.S. 490 (1975). The union must allege

that its members are suffering “. . . injury as a result

of the challenged action of the sort that would make out a

justiciable [sic] case had the members themselves brought

the suit.” Warth, supra, at 511. However, this situation

does not exist in the case sub judice. The Plaintiff union

herein seemingly withdrew any semblance of representa-

tion of its purported employee membership after the

abortive strike attempt at the Defendant plant in July

of 1972. Although a general charge with the E.E.O.C.

was filed by the union during this time frame, this suit

was not filed until August of 1973. As heretofore noted,

there is no evidence of any contact between the Plain-

tiff’s union and any of the Defendant’s employees after

July of 1972 until the official withdrawal of any claim

as collective bargaining representative in mid-1974. Sec-

ondly, although there is evidence that individual Plaintiffs

Boykin and Powell were at one time members of the

Plaintiff union, there is no evidence that any individual

plaintiff or any of the Defendant’s employees were mem-

bers of this union when suit was instituted. In this

regard there is no evidence that any of the Defendant’s

employees other than the the two named Plaintiffs were

ever members of the union.

29 C.F.R. Section 1601.6 requires anyone who files

a charge for another to provide the Commission with the

name and address of the person on whose behalf the

charge is made. Plaintiff's union did not do so in this

case. Further, the E.E.O.C. is required to verify the

authorization of such charge by the person on whose

behalf the charge is made. Three individual Plaintiffs

had no contact with the E.E.O.C., and there is no evidence

that the Plaintiff union attempted to have anyone verify

the authorization.

This charge was filed by the counsel for the union,

Mr. James Youngdahl, during the pendency of a strike

at the Defendant plant involving primarily black em-

ployees. This charge was not filed by a layman unfamiliar

with the regulations of the E.E.0.C. and the omitted infor-

mation which would have allowed this charge to be prop-

erly grieved by the E.E.0.C. was the sole responsibility

of the Charging Party union. This case is not analogous

to the situation in Dent v. St. Louis-San Francisco Rail-

way Company, 406 F.2d 399 (5th Cir. 1969). Although

the Defendant has not convinced this Court of the merits

of its counterclaim concerning the union’s prosecution

of this action, the facts certainly hint of a union utilizing

all available methods to attack a company during a strike

and continuing the attack long after it had lost support

among most, if not all, of its members. The proper filing

A61

and follow through with the charge lodged with the

E.E.O.C. in 1972, may well have resulted in the resolution

of this case through conciliation. This Court cannot say

the Defendant company has not been prejudiced by this

failure of the union to follow statutory prerequisites.

Under these circumstances, this Court is of the opin-

ion that the Plaintiffs have not properly fulfilled the

jurisdictional prerequisites to maintaining this suit pur-

suant to Title VII of the Civil Rights Act. As heretofore

noted, the individual Plaintiffs have taken no action what-

soever toward fulfilling the prerequisites of filing a charge

with the E.E.O.C. and securing a “right to sue” letter.

Nevertheless, because the case law is conflicting at best

in this particular area, this Court deems it appropriate

to decide this case assuming that all jurisdictional pre-

requisites under Title VII have been met by the Plaintiff

union. As heretofore noted, jurisdiction is admitted pur-

suant to 42 U.S.C. Section 1981.

III.

The discussion hereinabove, however, leads to a sec-

ond difficulty in the consideration of this case. This

Court is not convinced that the Plaintiffs have shown

that this suit is a proper class action within the require-

ments of Rule 23 of the Federal Rules of Civil Procedure.

The Plaintiff has the burden of establishing these pre-

requisites. Although the Court initially tentatively cer-

tified this case as a class action for purposes of comple-

tion of discovery and presentation of the evidence, a final

ruling on the issue of class representation was reserved

until after hearing on the liability. The prerequisites

of a class action not present in this case include the

lack of a proper representative of the alleged class and

the absence of proof of sufficient numerosity to neces-

sitate the filing of a class action.

A62

The Plaintiff contends it has the right to represent

a class of black employees and applicants in this action.

However, the evidence reveals that the Plaintiff union

simply engaged in negotiations for a collective bargaining

agreement with the Defendant for about a three-month

period in 1972. Thereafter, there was a strike of Defen-

dant’s employees for one week during July of 1972, during

which time the Plaintiff union filed a charge with E.E.O.C.

There was no contact between the Plaintiff union and

the Defendant until this suit was commenced in August

of 1973. There is no evidence of any contact between

the union and Defendant’s employees during this time.

In mid-1974 the union withdrew its legal status as the

collective bargaining representative of Defendant’s em-

ployees because of a lack of support. These facts are

not controverted. Further, none of the individual Plain-

tiffs have had any contact with the Defendant plant

since August of 1972. Even assuming proper representa-

tion of a class of employees affected by discriminatory

practices in initial hiring or promotion, the Court finds

that the three individuals [sic] Plaintiffs could not properly

represent a class of applicants. East Texas Motor Freight

v. Rodriguez, 431 U.S. 395 (1977). In this regard, the

interest of a sub-class of applicants represented by the

individual Plaintiffs are antagonistic to that of employees

seeking higher positions at the Defendant’s plant. There

is no evidence that any applicant has ever been a member

of the Plaintiff union.

Secondly, there is a complete absence of evidence

in the record regarding sufficient numerosity to consti-

tute the need for the maintenance of this case as a class

action. The evidence does not reveal any employee,

other than perhaps Boykin and Powell, who have ever

been members of the Plaintiff union. The relatively few

A63

individuals testifying concerning alleged discriminatory

action on the part of the Defendant in initial assignment

or promotion could easily have maintained an individual

action in regards thereto. In fact, there was very little

evidence whatsoever adduced at the hearing in this mat-

ter relative to the numerosity requirement of Rule 23.

Under these circumstances, this Court is of the opinion

that the prerequisites of a class action have not been satis-

fied under Rule 23, F.R.Civ.P. and this case should not

be certified as such. Nevertheless, because the Court has

fully considered all matters in this case, this Court will

assume a class action for further consideration of the is-

sues herein.

IV.

The Plaintiff must prove by a preponderance of the

evidence that the Defendant is engaged in unlawful em-

ployment practices in violation of title VII. Texas Depart-

ment of Community Affairs v. Burdine, ........ RII = stevens ,

101 S.Ct. 1089, 67 L.Ed. 2d ........ (1981); Furnco Construc-

tion Corporation v. Waters, 438 U.S. 567 (1978); Albe-

marle Paper Company v. Moody, 422 U.S. 405 (1975); Mc-

Donnell Douglas Corporation v. Green, 411 U.S. 792 (1973).

The Plaintiffs’ burden is to offer “evidence adequate to

create an inference that an employment decision was based

on a discriminatory criterion illegal under the Act.”

Teamsters v. United States, 431 U.S. 324, 358 (1977).

Assuming that the Plaintiff is successful in this regard,

the Defendant must then articulate some legitimate non-

discriminatory reason for its actions to rebut the Plain-

tiff’s proof. The Plaintiff then has the opportunity to

attempt to prove by a preponderance of the evidence the

Defendant’s articulated reason(s) was a pretext for dis-

crimination. Texas Department of Community Affairs v.

ey ea ee

A64

Burdine, supra; Furnco Construction Corp. v. Waters, su-

pra; McDonnell Douglas Corporation v. Green, supra.

Initially, the Plaintiff must simply prove that the

individual applied for an available position, for which he

was qualified, but was rejected under circumstances which

give rise to an inference of unlawful discrimination. After

articulation of a reason for the plaintiff’s rejection or that

someone else was preferred for a legitimate, non-discrim-

natory reason, the plaintiff must show that the proffered

reason is not the true reason for the employment decision.

The plaintiff always retains the burden of persuasion.

Plaintiff may succeed by showing “either directly by per-

suading the Court that a discriminatory reason more likely

motivated the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of credence.”

Burdine, supra.

Before any relief may be granted, the Plaintiff must

meet its burden of proof. As to individuals, it must show

that each was the victim of racial discrimination pursuant

to the requirements set forth in McDonnell Douglas, supra,

as amplified in Burdine, supra. As to a class, it must be

shown that there was a racially discriminatory pattern of

practice which created an identifiable class of blacks who

suffered at least some damage. United States v. United

States Steel Corporation, 520 F.2d 1043 (5th Cir. 1975);

Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir.

1973). The Plaintiff has the burden of making a prima

facie showing that an employment policy or practice has

a disproportionate impact upon persons protected by Title

VII before entitled to any modification of the challenged

employment practice. McDonnell Douglas v. Green, supra;

Griggs v. Duke Power Company, 401 U.S. 424 (1971). In

A65

class action litigation, the plaintiff must prove that the

defendant’s standard operating procedure constituted dis-

crimination and the proof of ‘“‘mere occurrence of isolated

or ‘accidental’ or sporadic discriminatory acts” is not suf-

ficient. Teamsters v. United States, 431 U.S. at 336. In

an action under 42 U.S.C. Section 1981, the Plaintiff must

prove a discriminatory purpose. Scott v. City of Anniston,

597 F.2d 897 (Sth Cir. 1979); Williams v. DeKalb County,

582 F.2d 2 (5th Cir. 1978).

VI.

The Court concludes that Defendant did not discrim-

inate on the basis of race or color in its treatment of the

Plaintiff, Robert Boykin, Jr. We find that Boykin was

not unlawfully terminated on the basis of race by Defen-

dant on February 21, 1972 or August 22, 1972. The Court

further finds that Boykin was not discriminated against as

to work assignments, or opportunities for training or pro-

motion because of his race. The Court finds that Boykin

has not been discriminated against in any manner because

of his race or color and has not been treated in a disparate

manner by the Defendant.

VII.

The Court concludes that Defendant did not discrimi-

nate on the basis of race or color in its treatment of

Plaintiff T. J. Gholar. This Court granted a directed ver-

dict for the Defendant at the close of the Plaintiff's case

on the issue of Gholar’s termination of employment. The

Court finds that T. J. Gholar was not discriminated against

as to work assignments or opportunities for training or

promotion because of his race or color. The Court finds

that Gholar has not been discriminated against in any man-

ner by the Defendant and has not received any disparate

treatment because of his race or color.

Vil.

The Court concludes that the Defendant did not dis-

criminate on the basis of race or color in its treatment of

Plaintiff Thomas R. Powell. The Court finds that Thomas

R. Powell was not unlawfully terminated by the Defendant

on or about July 26, 1972, but voluntarily quit. The Court

further finds that Powell was not discriminated against

as to work assignments, or opportunities for training and

promotion because of his race or color.

IX.

The Court finds that the record in this case indicates

the percentage of blacks in the Defendant’s company ex-

ceeds the percentage of blacks in the civil labor pool for

the regional area. Although “obligation imposed by Title

VII is to provide an equal opportunity for each applicant

regardless of race, without regard to whether members of

the applicant’s race are already proportionately repre-

sented in the work force,” the fact remains that no con-

clusive proof demonstrating discrimination in hiring has

been shown in the case sub judice. Furnco Construction

Corp. v. Waters, 438 U.S. 567, 579 (1978); McDonald v.

Santa Fe Trail Transportation Company, 427 U.S. 273

(1976). Although the Court recognizes the statistical dis-

parity of blacks in several departments and positions of

the Defendant existing at the time of filing and prosecu-

tion of this lawsuit, it : .ould be noted that statistics must

be taken in light of the facts in each case. Teamsters v.

United States, 431 U.S. at 340. Thus, while a prima facie

case of discrimination by racial disparity may be estab-

lished by statistical evidence, the statistics must neverthe-

less be scrutinized closely, and are not conclusive proof of

past or present discriminatory practices. Teamsters v.

U. S., supra; Myers v. Gilman Paper Corp., 544 F.2d 837

A67

(Sth Cir. 1977); James v. Stockham Valve and Fittings

Company, 559 F.2d 310 (5th Cir. 1977); Pettway v. Ameri-

can Cast Iron Pipe Company, 494 F.2d 211, 225 n.34 (5th

Cir. 1974). The Court recognizes that statistics often con-

tain many complexities and variables and require close

examination. This is particularly true when a small com-

pany is involved which has a relatively small work force

and the statistical data is often insufficient to support any

conclusion as to whether discrimination has occurred.

Williams v. Tallahassee Motors, Inc., 607 F.2d 689, 693

(5th Cir. 1979); Robinson v. City of Dallas, 514 F.2d 1271,

1273 (5th Cir. 1975); Ochoa v. Monsanto, 473 F.2d 318,

319-20 (5th Cir. 1973). As noted hereinabove, certain

Plaintiff's exhibits utilized counsel’s subjective determi-

nation of “relevant prior work experience” and are not

valid as they are not supported by competent evidence.

Other exhibits do not rise to the level of a type of sta-

tistical analysis which has been found to establish a prima

facie case of discrimination. Further, the Plaintiffs’ ex-

pert witness testified that the use of statistics in this case

was based upon the assumption that all persons would

react equally to employment situations. He assumed that

all factors related to employment decisions, i.e., skills,

prior experience, dates of application, and dates of job

openings were equal or “held constant”. Under these cir-

cumstances, this Court can place little credence in the

statistical analysis presented by the Plaintiff herein. On

the other hand, Exhibits D-19 and D-20 present a complete

analysis of the vacancies at the employment plant over

the six-year period in question. This Court is of the

opinion that the in-depth examination of these exhibits,

as supplemented by relevant testimony, presents the ac-

curate picture of the employment practices of the De-

fendant company during time period in question.

A68

This Court has carefully considered the statistical evi-

dence of the Plaintiffs and Defendant and concludes that

the Plaintiffs have failed to establish by a preponderance

of the evidence that the Defendant has engaged in any

unlawful employment practices. The cases in which the

courts have held that the statistical evidence created a

prima facie case are not applicable herein. In each of

these cases in which statistics have “carried the day” for

the plaintiff, the numbers have been such as to leave no

doubt that a pattern of discrimination existed and were

not rebutted by the defendant’s evidence. Such numbers

do not exist in this case and Defendant has presented ample

rebuttal.

As heretofore noted, this Court finds no proper rep-

resentative of applicants in regard to alleged hiring dis-

crimination. The three individual Plaintiffs were all hired

and do not complain of any discrimination in that regard.

See East Texas Motor Freight Systems, Inc. v. Rodriguez,

431 U.S. 395 (1977). Plaintiff union presented no proof

that any of its members had ever applied for work with

the Defendant and certainly no proof that any of its mem-

bers had ever been denied employment for any reason.

Further, discrimination in hiring was not a part of the

charge filed by the Plaintiff union with the E.E.O.C.

Nevertheless, assuming this is a proper charge before

this Court and that the Plaintiffs and/or union are proper

representatives of applicants herein, the evidence presented

at trial demonstrates that the Plaintiffs are not entitled

to prevail in this claim of discriminatory hiring practices.

The Defendant’s hiring practices have not discriminated

against blacks. The statistics presented in this case show

that Defendant has hired 41.5% blacks in an area where

A69

the work force is 30.25% black. The relevant available

work force is a proper standard to use in determining

whether the Defendant has met its standard for hiring.

E.E.0.C. v. Georgia Pacific Corp., 450 F.Supp. 1227 (N.D.

Miss.1977); Robinson v. Union Carbide Corporation, 538

F.2d 652 (5th Cir. 1976).

XI.

This Court is of the opinion that there has been no dis-

crimination in initial assignments at Defendant plant. The

Court finds that the Plaintiffs have failed to prove by a

preponderance of the evidence that any black employee

has [sic] denied an initial job assignment above the utility

classification which was given to a white employee with

less or equal qualifications or that any group of black em-

ployees was denied initial job assignments above the utility

classification which were given to white employees with

less or equal qualifications. The Court finds the Defen-

dant has not maintained any policy or practice with regards

to initial job assignments that has served to create any arti-

ficial, arbitrary or unnecessary barriers to initial job assign-

ments of black employees above the utility position.

Griggs, supra. Further, the record as a whole does not

establish by a preponderance of the evidence that Defen-

dant has failed or refused to award black employees as

a group initial job assignments above the utility classifi-

cation because of their race or color. The few instances

in which whites have been awarded job assignments above

the classification of utility have been shown by the Defen-

dant to be on the basis of prior skills or experience of the

individual employee and the proof clearly fails to reveal

these few instances of hiring above utility classifications

of white employees to be a pretext for discrimination.

Texas Department of Community Affairs v. Burdine, supra.

A70

XII.

Plaintiffs have alleged that during the time period in

question there were no blacks in upper level management

positions and very few in supervisory or foreman posi-

tions. However, not only has there been a negligible turn-

over in the company’s few upper level and supervisory

positions, but the Plaintiff has also not shown there were

any qualified black applicants or current employees avail-

able at the times these individuals received their jobs. In

light of the foregoing, the Plaintiff has not proven that any

artificial or invidious barriers exist to deny blacks equal

opportunity. Williams v. Tallahassee Motors, Inc., 607 F.2d

689 (5th Cir. 1979). The same situation exists with the

disparities presented in regards to various positions within

several departments located throughout the Defendant

company’s operation. Not only has the Plaintiff failed to

show the existence of qualified black applicants or em-

ployees available or desirous of training for promotion,

but the Plaintiff has also failed to show that the positions

were filled by less or equally qualified whites.

XIII.

The Court finds that the Defendant’s policy and pro-

cedure in determining promotions was equally applied to

all employees. Although the procedure prior to the im-

plementation of the new bid system in 1976 may not have

been the best procedure, this Court is convinced that it did

not discriminate against blacks in promotion opportunities.

The evidence fails to indicate that blacks were treated any

differently under the system than whites or that the system

had disparate effect upon blacks. Furnco Construction

Corp. v. Waters, supra. Title VII does not require an em-

ployer to announce vacancies or to consider all applicants,

black and white, for all jobs. Lewis v. Tobacco Workers

A71

International Union, 577 F.2d 1135 (4th Cir. 1978); Furnco

Construction Corporation v. Waters, supra. Blacks desirous

of promotion had the same-opportunity to train for par-

ticular positions in the Defendant company and be chosen

for that position when the infrequent vacancies occurred.

This Court concludes that Defendant’s policy and pro-

cedure in determining promotions is applied equally to

blacks and whites alike. The Court finds that Plaintiffs

have failed to prove by a preponderance of the evidence

that any black employee was denied a promotion which was

given to a white employee with less or equal qualifications

or that any group of black employees was denied promotions

which were given to white employees with lesser or equal

qualifications. The Court concludes that the Defendant

does not maintain any policy or practice with regard to

promotions that serves to create an artificial, arbitrary or

unnecessary barrier to the promotion of black employees.

Further, the record as a whole does not show that the De-

fendant has refused to promote black employees as a group

because of race’or color. Griggs v. Duke Power Company,

supre; Burdine, supra.

Due to the failure on the part of the Plaintiff to demon-

strate a case of discrimination through direct testimony

and/or the use of proper statistics, the Court is cs the

opinion the Defendant has performed no illegal act so as

to entitle the Plaintiff to relief, either in the form of dar-

ages or injunctive relief.

XIV.

Pursuant to 42 U.S.C. Section 2000-5(k), attorneys’

fees may be allowed as an item of cost to the prevailing

defendant employer in employment discrimination suits.

However, the awarding of attorneys’ fees is a discretionary

decision on the part of the Court. In this respect, attorneys”

AT72

fees should be assessed when it is obvious that the Plain-

tiff’s. claim was brought as a means of harassment or

frivolous reasons. Christiansburg Garment Corporation v

E.E.0.C., 434 U.S. 412 (1978). Although questions may

arise as to the motives of the union in this particular law-

suit the Court is of the opinion that this lawsuit is not

one of a frivolous nature. Therefore, it is the opinion of

this Court that the Defendant is not entitled to attorneys’

fees in this case. E.E.O.C. v. Georgia-Pacific Corporation,

450 F.Supp. 1227 (N.D. Miss.1977).

XV.

The Court, having concluded the evidence as a whole

does not establish by a preponderance of the evidence that

the Defendant engaged in any unlawful practice, concludes

that no black individual or individuals are entitled to any

monetary or other relief from the Defendant. Accordingly,

the case against the Defendant, Georgia-Pacific Corp.,

should be dismissed with all costs assessed to the Plaintiff.

The Defendant’s counterclaim herein has not been proven

by a preponderance of the evidence and. the relief sought

therein is denied. All costs associated therewith are here-

by assessed against the Defendant.

RECOMMENDED this the 27th day of August, 1981.

/s/ John M. Roper

United States Magistrate

AT73

APPENDIX ‘“‘C-1”’

(Filed November 30, 1981)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

CIVIL ACTION NO. 73H-64(R)

ROBERT BOYKINS, ET AL

PLAINTIFFS

vs.

GEORGIA-PACIFIC CORPORATION

DEFENDANT

ORDER

This matter is before the Court on the Recommenda-

tion of the United States Magistrate in the above styled

and numbered cause. Objections to the Recommendation

have been filed by both plaintiffs and defendant and the

Court having considered such objections and the proposed

findings of fact and conclusions of law and other briefs

submitted by the parties in support of their objections, the

Court is of the opinion that the Recommendation is not

clearly erroneous or contrary to law.

IT IS, THEREFORE, ORDERED AND ADJUDGED

that the Recommendation be and is hereby fully adopted

by this Court as the Court’s final decision in this matter.

SO ORDERED, this the 27th day of November, 1981.

/s/ Dan M. Russell, Jr.

' United States District Judge

A74

APPENDIX “D”

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, Plaintiff,

Vv.

GEORGIA-PACIFIC CORPORATION, United Brother-

hood of Carpenters and Joiners of America, AFL-CIO, its

Plywood Workers Local Union 3181, United Papermakers

and Paperworkers, AFL-CIO, its Local Union Number

1076, International Woodworkers of America, AFL-CIO,

CLL, and its Local Union 5-349, Defendants.

No. EC-74-134-S.

United States District Court,

N. D. Mississippi, E. D.

Dec. 8, 1977.

Equal Employment Opportunity Commission brought

employment discrimination suit against employer. The

District Court, Orma R. Smith, J., held that: (1) Com-

mission failed to establish that employer had discrim-

inated against its employees on the basis of race, and (2)

employer was not entitled to award of attorney fee, in

view of absence of evidence that Commission brought pro-

ceeding in bad faith, without reasonable grounds, or to

harass or embarrass employer.

Action dismissed.

1. Civil Rights (Key) 44())

Evidence established that employer had not discrim-

inated against its black employees. Civil Rights Act of

1964, § 701 et seq. as amended 42 U.S.C.A. § 2000e et seq.

AT5

2. Civil Rights (Key) 34

Fact that charges with respect to certain plants of em-

ployer had not been taken through administrative process

by Equal Employment Opportunity Commission did not

necessarily preclude Commission from charging employer

with racial discrimination in employment at those plants,

where charges involving allegations of discrimination at

other plants had been acted upon and where employer’s

operations in various plants were subject to one source of

supervision and control. Civil Rights Act of 1964, §§ 701

et seq., 706(k) as amended 42 U.S.C.A. §§ 2000e et seq.,

2000e-5 (k).

3. Civil Rights (Key) 44(1)

In an employment discrimination suit brought by

Equal Employment Opportunity Commission, initial burden

rests with Commission to prove by preponderance of evi-

dence that employer has intentionally engaged in or is in-

tentionally engaging in unlawful employment practices.

Civil Rights Act of 1964, § 701 et seq. as amended 42

U.S.C.A. § 2000e et seq.

4. Civil Rights (Key) 43

Where racial discrimination in employment practices is

alleged, plaintiff must first establish prima facie case of

discrimination before burden of producing evidence shifts

to employer. Civil Rights Act of 1964, § 701 et seq. as

amended 42 U.S.C.A. § 2000e et seq.

5. Civil Rights (Key) 43, 44(1)

Once plaintiff in employment discrimination suit has

established prima facie case, burden then shifts to employer

to prove legitimate; nondiscriminatory reasons for his ac-

tions by preponderance of the evidence, and upon proper

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proof of legitimate reason for employer’s action, plaintiff

then bears burden of proving by preponderance of th

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