# Petition — Georgia-Pacific Corp. v. Boykin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1006

## Text

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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Sa cn an bacscasegppociinhananbobewreosocnabbedeill 1
2 ior od berths faeobashas nienvulecapoiencvtecateetamaiess 2
STATEMENT OF CASE AND FACTS .....000....-. ee 2
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ISR ARE SS SER et ERT Te 19
CHAREIPSCATE, OF SHIRVICE nnn nnn nens conn n2nensoeee 20
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

IV

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-

a

"
>

3

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-

4

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.

5

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

7

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:

I.

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

10

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.

11

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

12

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.

13

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

14

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
:

15

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.

16

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

17

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

18

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.

19

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

Al

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

A2

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. .

A3

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

A4

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.

A5

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

A6

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

AT

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

E

A8

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.

Ag

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%

a

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

~'
co

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

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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
I.

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.

V.

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.

X.

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 & MACHIN

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0630%3A1. Public record. Not legal advice.