Appendix — Bazemore v. Friday

Supreme Court brief1986

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BD A~ QF | Mer-surreme cour, vs

FilLkED

ee a )

Ie ome ALEXANDER L. STEVAS,

CLERK

Supreme Court of the United States

Oocroper TeRM, 1984

P. E. Bazemors, e? al.,

Petitioners,

WruuM C. Frmay, ef al.,

Respondents.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Epwarp D. RerMan

108 North Eighth Street

Allentown, Pa. 18101

Cressizg H. Tuicren, JB.

Thigpen, Blue & Stephens

Suite 214

Hallmark Building

Raleigh, North Carolina 27601

Juutius LzeVonnge CHAMBERS

Ronaup L. Exuis

Exic ScHNAPPER*

NAACP Legal Defense &

Educational Fund, Inc.

16th Floor

99 Hudson Sireet

New York, New York 10013

Counsel for Petitioners

*Counsel of Record

IN THE

UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

Filed August 20, 1982 CIV. No. 2879

P. E. BAZEMORE, et al.,

Plaintiffs,

AND

UNITED STATES OF AMERICA, et al.,

Plaintiff-Intervenors,

Vs.

WILLIAM C. FRIDAY, et al,

eee ee eee ee ee”

Defendants.

JUDGMENT ON CLASS-WIDE CLAIMS

For the reasons stated in the court's

memorandum of decision this day filed it

is now

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ORDERED, ADJUDGED AND DECREED that

the United States as plaintiff-intervenor

is not entitled to recover of the defen-

dants, or any of them, by reason of any

matters alleged in the Original complaint

in intervention or the amended complaint

in intervention and that the action of

the plaintiff-intervenor be and the same

is hereby dismissed with costs.

s/s

FP. T. DUPREE, JR.

UNITED STATES DISTRICT JUDGE

August 20, 1982.

By _—s—“‘(ate S/S

Deputy Clerk

» a «

IN THE

UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

Filed August 20, 1982 CIV. No. 2879

P. E. BAZEMORE, et al.,

Plaintiffs,

AND

UNITED STATES OF AMERICA, et al.,

Plaintiff-Intervenors,

Vs.

WILLIAM C. FRIDAY, et al,

se ee ee ee ee eee eee ee ee”

Defendants.

MEMORANDUM OF DECISION

(CLASS-WIDE CLAIMS)

This action instituted in this court

on November 18, 1971, by more than fifty

employees of the North Caroiina Agricul-

tural Extension Service (Extension

Service) alleging racial discrimination in

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employment and the provision of services

came on for trial in December, 1981, and

was tried to the court without a jury over

a period of approximately ten motiie. In

this memorandum of decision the court will

record its findings of fact and conclu-

sions of law in conformity with Rule 52,

F.R. Civ. P.

BACKGROUND

The action was based on alleged vio-

tions of the First, Fifth and Fourteenth

Amendments to the Constitution, 42 U.S.C.

§$§ 1981, 1983 and 2000d, and 7 U.S.C. §

To some extent the inordinate delay

between the filing date of the suit and

trial is attributable to docket conditions

in this court over the last ten years, but

perhaps to a greater extent to the action

(and sometimes inaction) of the parties in

obtaining amendments to the pleadings,

extensions of time to complete discovery,

motions for continuance, failure to press

for a trial and their intermittent

assurances to the court that a settlment

of all matters in controversy was proba-

ble,

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341, et seg. The United States intervened

in the action on April 7, 1972, under

Section 902 of Title IX and Sections 601

and 602 of Title VI of the Civil Rights

Act of 1964, 42 U.S.C. § 2000h-2, 2000d

and 2000d-1. Named originally as defen-

dants in the action, the Secretary of

Agriculture and the Administrator of the

Federal Extension Service were re-aligned

as plaintiff-intervenors on July 21, 1972.

The United States amended its com-

plaint in intervention on February 28,

1975, to include allegations of racial

discrimination against black and Indian

employees in violation of Section 703 and

706 of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. § 2000e, et

seq.

The defendants are William C. Friday,

President of the University of North

Carolina (which comprises the _ sixteen

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institutions of higher education in the

State), the Chancellor of North Carolina

State University, the Director of the

Extension Service, the Board of Governors

of the University of North Carolina, North

Carolina State University (NCSU), and its

School of Agriculture of which the

Extension Service is a part; and Alamance,

Edgecombe and Mecklenburg Counties.

In addition to their answers contain-

ing general denials the defendants filed a

third-party complaint against the Secre-

tary of Agriculture and the Administrator

of the Federal Extension Service alleging

discriminatory application of the civil

rights regulations of the Department of

Agriculture. The order re-aligning the

parties ordered that this third-party

complaint be treated as a counterclaim.

- Ja -«

North Carolina State University, a

land grant university located at Raleigh,

administers the state's extension program

the purpose of which is to aid in the

dissemination of "useful and practical

information on subjects relating to

agriculture and home economics." Funds

for the program are provided by the

federal government under the Smith-Lever

Act of 1974 (7 U.S.C. § 341, et seq.); by

the State of North Carolina and each of

the 100 counties in the state in the

approximate ratios of forty per cent

federal, forth-three per cent state and

- Ba -

seventeen per cent county.

The Extension Service is a division

of the School of Agriculture and Life

Sciences at NCSU at Raleigh. The present

head of the Extension Service is its

Director, Dr. Chester Black who assumed

the position on January 1, 1982. Dr.

Black, a white male, is also Associate

Dean of the School of Agriculture and Life

Sciences. He is directly responsible to

the Dean of that school and ultimately

responsible to the Chancellor or NCSU, its

Board of Trustees, the President of the

University of North Carolina and the Board

Prior to 1978 funds for extension programs

carried out by North Carolina A&T State

University (A&T), a predominantly black

institution located at Greensboro, North

Carolina, were made available through the

State Director of Cooperative Extension,

but since then have been appropriated

un-der Section 1444 of the Food and

Agri-cultural Act of 1977 (1890 Program)

and are made available tothe Administrator

of the 1890 Extension Programs at A & T.

- Ja -

of Governors of the University of North

Carolina for the operations of the

Extension Service. The position of

Director of the Extension Service has

always been held by a white male.

Responsibilities of the Director

include programming, planning, managing,

personnel, staffing, budgeting, staff

organization, selection of staff, assign-

ment, promotion of personnel, and the

development and implementation of policies

relating to employment and the delivery of

services of the organization.

The Associate Director of the Exten-

sion Service holds the second highest

position in the organization. Prior to

his elevation to the directorship on

January 1, 1982, the position of Associate

Director was held by Dr. Black. Responsi-

bilities of the position include overall

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administration, budget and organizational

management. This position has always

been held by a white male.

Directly beneath the Associate

Director are five Assistant Directors of

the Extension Service, each with responsi-

bility in one of these areas: staff

development, 4-H, home economics, agricul-

ture and special programs and county

operations. The Assistant Director for

Home Economics is a white female. The

remaining four Assistant Directors are

white males.

The state is divided into six dis-

tricts, the north central, northeastern,

northwestern, southeastern, southwestern

and western. Each district is headed by a

District Extension Chairman who is

responsible for administering all Exten-

sion Service programs within the district.

He or she coordinates the program efforts

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of ali agents and specialists within the

district, interprets administrative

policy, develops and maintains budget for

the district and makes recommendations to

the Director with respect to the hiring,

promotion and salaries of personnel within

the district. Of the District Extension

Chairmen at this time one is a black

female, one is a white female and the

remaining tour are white males.

The top administrative position in

the Extension Service in each of the 100

counties of North Carolina is that of the

County Extension Chairman. Under the

Supervision of the District Extension

Chairman the County Chairman coordinates

all Extension Service activities within

his county and is responsible for deveiop-

ing an effective county extension program.

He is responsible for organizing and

allocating resources, preparing the

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County's extension budget, making recom-

mendations to the District Chairman with

respect to the hiring, promotion, evalua-

tion and salary of all county-level

extension personnel. The County Chairman

reports to the District Extension Chairman

who reports to the Assistant Director for

County Operations. The County Extension

Chairman also reports to the Board of

County Commissioners in his county on

extension programs and matters relating to

budgeting and personnel.

In addition to the employees in the

managerial chain of command the Extension

Service employs some twenty-five or more

"Specialists" whose responsibilities are

to provide technical assistance to the

agents in the counties. Most of the

Specialists are employed at NCSU in

Raleigh. Their areas of responsibility

include such subjects as adult. and

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community college education, agricultural

communications, animal husbandry, dairy

husbandry, food science, 4-H, home

economics, horticulture and wildlife. A

Specialistsis one who has technical exper-

tise in a particular subject matter and/or

does research in a particular area or

matter and renders technical assistance in

that field. They keep agents and recipi-

ents of extension services informed of new

developments within their areas of

specialization, assist in planning,

implementing and evaluating extension

programs. Most Specialists serve the

entire state, but a few of them work

within a limited geographic area. Approxi-

mately two-thirds of the Specialists have

PhD degrees.

There are twelve district program

leaders with responsibility for specific

programs in the areas of home economics,

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agriculture, community development and 4-H

in assigned districts. Program leaders

also kprovide admi8nistrative assistance

to the District Extension chairman with

respect to personnel and programs within

the districts to which they are assigned.

There are two positions for state

agents in home economics, and at the

present time one of the positions is

filled by a white female and the other by

a black female. The latter is primarily

responsible for the Extension Service's

Expanded Food and Nutrition Education

Program (EFNEP).

The Extension Service renders

services in four major extension program

areas: home economics, agriculture, 4-H

and youth, and community resource develop-

ment.

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The home economics program helps

families solve problems and improve the

quality of their lives in the areas of

food, nutrition and health; housing,

energy and environment; clothing and

textiles; family resource management; and

human development and ag ing through

educational programs and an extensive

volunteer organization within each county.

There are three ranks of home

economics agents: home economics agent,

associate home economics agent and

assistant home economics agent. Ordinar-

ily these positions are held by females.

One of the functions of the home eco-

nomics agents at the county level is to

help women organize “homemaker clubs."

These clubs are associations of women who

receive lessons in home economics from the

county agents and from their own members.

Although membership in these clubs is

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entirely voluntary, home economics agents

regularly meet with the clubs, give

lessons to them and train individual club

members to give home economics lessons to

their members.

Another function of the Extension

Service is to operate the EFNEP program

the purpose of which is to improve the

diets of poor families and to increase

their effective utilization of public

assistance food programs. The program

uses non-college graduate para-profes-

sionals as “program aides" who work on a

part-time basis under the day-to-day

supervision of the county home economics

agent responsible for the food _ and

nutrition program in the county. The

majority of the clientele served by this

program is black, and the program is

financed primarily by federal funds.

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There are three ranks of agricultural

extension agents: agent, associate agent

and assistant agent. To qualify for the

position of full agent formerly required a

minimum of seven years' experience with the

Extension Service or equivalent experi-

ence. Since 1979 it has been six years.

The position of associate agent requires a

minimum of three years' experience with

the Extension Service or equivalent

experience, and the position of assistant

agent which is the position into which one

is initially employed requires no previous

experience. While the three ranks of

agents perform essentially the same types

cf tasks, when an agent is promoted his

responsibilities increase and a higher

level of performance is expected of him.

Each agricultural agent is assigned

particular areas of responsibility by the

County Chairman, and the areas of respon-

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sibility normally assigned are the crops

grown in the county and specific live-

stock. Both agricultural agents and home

economics agents can also be assigned to

4-H and community development.

The 4-H and youth program is operated

in each of the 100 counties of the state

and on the Cherokee Indian reservation.

This program is designed to develop good

character and citizenship and to teach

youth useful and practical skills.

Participants have the opportunity to

select from nearly fifty different areas

of study including archery, beef, cloth-

ing, foods and nutrition, home environ-

ment, bicycle repair and safety, electri-

city, entomology, horticulture, conserva-

tion, forestry and veterinary science.

The Specialists at NCSU and A & T prepare

)

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the subject matter instruction and related

activities that attract 4-H youth to the

program.

One of the functions of the county

agents assigned 4-H as an area of respon-

Sibility is to help organize and serve 4-H

clubs. Prior to the early 1960's these

clubs were organized in the public schools

and county 4-H agents would meet with the

clubs during school hours and present

educational programs to them. Thereafter

the clubs were moved out of the schools

and were organized on a community basis

with adult volunteers serving as leaders

of the clubs.

Community resource development (CRD)

programs deal primarily with problems that

require group or community action. The

CRD programs vary from county to county

depending on the needs of the counties

over a period of time. Many of the

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counties have developed programs that are

Similar in nature such as land use

planning and organization of volunteer

fire departments.

EMPLOYMENT WITHIN THE EXTENSION SERVICE

The salaries of Extension Service

agents and county chairmen consist of a

federal share, a state share and a county

share. The federal government allocates a

sum of money to the Extension Service each

fiscal year, and the boards of county

commissioners in each of the one hundred

counties in the state, in conjunction with

the Extension Service, determine how much

each county will pay agents at the time

they are hired. The county chairmen make

recommendations to the county commission-

ers as to what the professional staffs'

Salaries should be. Some extension

agents, such as those who work with the

EFNEP, receive only federal funds.

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The Extension Service has the re-

sponsibility to establish minimum require-

ments and qualifications for employment;

to generate, receive and examine applica-

tions; to interview and screen applicants

to determine their qualifications and

availability; to recommend to county

commissioners qualified applicants for

appointment to vacant or new positions; to

recommend the salaries of extension

agents; to determine jointly with the

county board of commissioners the share of

salaries to be paid by each and to provide

the state and federal share of these

Salaries; to prepare and submit an annual

budget request to the board of commis-

Sioners for the county share of funds for

Salaries and expenses; to provide funds

for travel in the conduct of extension

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work; and to provide extension agents with

official bulletins, leaflets and other

publications for educational purposes.

The Extension Service also has re-

sponsibility for the administration and

supervision of extension programs and

personnel and to develop and administer a

personnel management system that provides

for (a) the annual review of each worker's

performance, (b ) counseling for job

improvement where needed, and (c) periodic

county program reviews. It provides a

staff of specialists to train agents in

technology and other changes affecting

agriculture, home economics, 4-H and CRD

and assists in the conduct of work in

these areas. It prevides extension

workers with training program and develops

and maintains a county advisory leadership

system in each county.

;

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These responsibilities of the Exten-

Sion Service are set forth in a "Memoran-

dum of Understanding" between the Exten-

Sion Service and the boards of county

commissioners of each county (DX 79). This

agreement also outlines’ the respor :i-

bilities of the boards of county commis-

sioners which include the duty to provide

the county's share of salaries’ for

extension personnel; to provide office

space and equipment, utilities, telephone,

office supplies, demonstration materials

and other items needed for the efficient

operation of the county extension office

and program; to review and consider the

annual budget request from the Extension

Service and take appropriate action by

July 1 of each fiscal year; and to confer

and advise with district and county

extension chairmen and extension advisory

council relative to county extension

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programs. With respect to employment

practices the Extension’ Service

and

commissioners mutually agree as follows:

"That all county extension appoint-

ments and separations are to be

worked out jointly between the North

Carolina Agricultural Extension Ser-

vice and the Board of County

Commissioners, and that no official

action will be taken by either party

regarding appointment or separation

prior to discussion of the matter

with the other party."

Since November, 1972 a monthly

an-

nouncement of vacant county positions has

been sent from the office of the Assistant

Director of the Extension Service

for

county operations on the fifteenth of each

month to all Extension Service offices in

the state and certain universities.

announcement sets forth the area

responsibility, date the position

available and location and deadline

applying. Prior to December, 1980

The

for

the

Assistant Director for County Operations

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reviewed each application and acknowledged

its receipt by letter. That function is

now handled by a personnel specialist

under the direction of the Associate

Director of the Extension Service. To be

considered from the outside for a profes-

sional position an applicant must have an

overall 2.5 grade point on a 4.0 scale or

a 3.0 grade point in the applicant's major

field.

When a county chairman requests

permission to fill a vacancy and that

request is approved, the district chairman

requests, and is provided, a list of

applicants in the subject matter area by

the personnel specialist. They review the

list and obtain applications to consider

for a specific position from personnel

files. Applicants who possess qualifica-

tions deemed appropriate for specific

positions are interviewed by district

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chairmen and district program leaders.

After the interviewing procedure has been

completed, one or more applicants will be

asked to visit with the county chairman

and staff in the county in which the

vacancy exists. After consultation with

the county chairman and Assistant Direc-

tor, County Operations, a decision is made

as to who will be recommended for the

position. The district chairman, working

with the Assistant Director, County

Operations, suggests the salary to be

offered the applicant subject to county

approval. The county chairman’ then

presents the recommendation to the Board

of County Commissioners or county manager

for approval. Following approval the

Director of the Extension Service makes

the appointment.

;

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Since 1972 the Extension Service has

used throughout the state a standardized

performance evaluation instrument called a

"Performance Review Guide." The guide was

revised in 1976, and it is used primarily

as a counseling and evaluative tool. A

separate Performance Review Guide for

county chairmen was developed in 1970-71

and revised in 1978.

EXTENSION SERVICE PRIOR TO 1965

Prior to August 1, 1965, the Exten-

sion Service was divided into two

branches, a white branch (which had no

formal racial designation) and a Negro

branch. The Negro branch was composeé

entirely of black personnel and served

only black farmers, homemakers and youth.

The white branch employed no blacks but

did on occasion serve blacks. Both

branches were headed by the Director of

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the Extension Service who was white and

who had the responsibility for the total

operation of the service.

The Negro branch had its headquarters

at A & T in Greensboro, North Carolina, an

agricultural and technical college

maintained by the state for the education

of Negroes. The Negro branch of the

Extension Service was divided into three

geographical districts and maintained

offices in fifty-one of the state's one

hundred counties. . The Negro county

offices were separated from the offices |

maintained for white personnel.

The Negro branch of the Extension |

Service was headed by the "Negro state

agent,” a black mele, who was responsible

directly to the Assistant Director of

Extension Service at Raleigh, both of whom

were white. The responsibilities of the

Negro state agent included the hiring,

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assignment, salary determination, promo-

tion, transfer, discipline and discharge

of all black personnel. He also was

responsible for developing the budget and

a state plan of work for the Negro branch

and for supervising the work of all black

employees.

In each of the fifty-one counties in

which the black branch of the Extension

Service had offices the black organization

had a counterpart in the white organiza-

tion. There was no interchange of

personnel between the two organizations,

but black and white county agents had

identical responsibilities in formulating

and presenting budgets to county commis-

Sioners, developing plans of work, meeting

with clubs and conéucting meetings. County

agent job descriptions were identical

except for the appellation "Negro work"

for blacks.

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The salaries of black agents in the

segregated system were lower than the

Salaries of their white counterparts, and

black agents had inferior office space and

facilities in the segregated system.

On August 1, 1965, which was shortly

after the effective date of the Civil

Rights Act of 1964, the white and Negro

branches of the Extension Service were

merged into a single organization with its

headquarters at NCSU in Raleigh. To

effectuate the merger the six white and

three Negro geographic districts were

eliminated and six new geographic dis-

tricts were created. In conjunction with

the merger various positions were elimi-

nated and new positions were created. The

position of Negro state agent at A & T was

eliminated and the black male who had held

this position, Mr. R. E. Jones, became an

- 3la -

Assistant Director of the Extension

Service. He continued to maintain his

office at A & T in Greensboro.

This unification and integration of

the Extension Service did not result

immediately in the elimination of some

disparities which had existed between the

Salaries of white personnel and black

personnel, and during the course of the

transition from a segregated to an

integrated system some black agents and

black female home economics agents lost

some of their job responsibilities.

3 Conditions as they existed before the

merger and their effects on post-merger

conditions are set forth only as relevant

background evidence in connection with the

Title VII claims in this case which did

not arise until March 24, 1972, the

effective date of the amendments to the

Civil Rights Act of 1964 pursuant to which

public employers became subject to the

Act.

"A discriminatory act which is not

made the basis for a timely charge

is the legal equivalent of a

dis-criminatoryact whichoccurred

i ie

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The foregoing findings are designed

to afford an overview of the employment

practices of the Extension Service and the

two branches of the service which existed

before the merger in 1965. More detailed

facts are contained in the proposed

findings of fact submitted by the parties,

and the court adopts as its own and

incorporates herein by reference portions

of such proposed findings as follows:

Plaintiff-Intervenor (hereinafter

"the government": Findings numbered 12-37

inclusive; 46; 48 - 59 inclusive; 66-71

inclusive; 73 and 74.

before the statute was passed. It

may constitute relevant back-

ground evidence in a proceeding in

which the status of a current

practice is at issue, but separ-

ately con-sidered,it is merely an

unfortu-nate event in history

which has no present legal

consequences." United Air Lines

Inc. v. Evans, 431 U.S. 553, 556

(1977).

- 33a -

Defendants: Findings numbered 5-35

inclusive together with all stipulations

of fact set forth in the pre-trial order.

THE CLASS ACTION QUESTION

This action was originally instituted

in the names of sixty-five individual

plaintiffs, seemingly large enough to

constitute a class within themselves, but

they nevertheless alleged “across the

board" discrimination and sought to have

the action certified as a class action

under Rule 23, F.R. Civ. P. It was

proposed that a plaintiffs' class be

certified to include all black employees

of the Extension Service who have been

subjected to employment discrimination by

defendants; all black persons in North

Carolina who have been denied services or

provided inferior services by the Exten-

sion Service; all black females in North

Carolina who have been excluded from

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membership in all white extension home-

maker clubs solely because of their race;

and all black children in North Carolina

who are excluded from all white 4-H clubs

solely because of their wee,

Plaintiffs also proposed that a

defendants" class be certified to include

the boards of county commissioners of all

one hundred counties in North Carolina.

Mindful of the principle adopted in

this circuit and most recently applied in

Goodman v. Schlesinger, 584 F.2d 1325 (4th

. In paragraph 5 of an amended complaint

filed November 30, 1981, it is alleged

that the plaintiffs are "black citizens of

the United States and the State of North

Carolina,” but in paragraph 14 of the

amended complaint it is alleged that

"defendants have pursued and continue to

pursue policies and practices that

discriminate against black and Indian

individuals with respect to their compen-

sation, terms, conditions and privileges

of employment," and class-type relief is

sought on behalf of Indians as well as

blacks. No Indian testified at the trial

and no Indian has come forward to assert

a claim in this action.

a OO et Pr om an

- 35a -

Cir. 1978), that certification of a class

may await the completion of discovery, the

court deferred final decision on the

question of class certification pending

completion of discovery. Meanwhile,

pursuant to 42 U.S.C. § 2000h-2 the United

States intervened in the action= and

thereafter the named plaintiffs and the

government joined forces in the prosecu-

tion of the action.

Limited originally to allegations of

violations of the Fourteenth Amendment and

Title VI of the Civil Rights Act of 1964,

by order of October 9, 1979, the govern-

ment's complaint in intervention was

allowed to be amended to assert a cause of

action under Title VII of the Civil Rights

Act. As previously stated, on the eve of

trial the named plaintiffs were allowed to

file an amended complaint alleging

violations of Title VII whereupon the

- 36a -

discrimination claims of both the named

plaintiffs and the government became

identical.

The order of October 9, 1979 also

denied all motions to certify the action

as a class action, and the motion of the

named plaintiffs to reconsider this order

was denied by order of July 29, 1901. As

recent as the final arguments herein

following trial the named plaintiffs have

continued to insist that the action be

certified, and in their pre-trial brief

a On June 3, 1975, the government had filed

a motion to certify the action as a class

action. It proposed five classes of

blacks and Indians and a defendant class

consisting of the then 477 county commis-

sioners representing the one hundred

counties in the state. Since the October

9, 1979 order the government has not

pressed its class action claim further.

- 37a -

the named plaintiffs have proposed four

classes of plaintiffs and one class of

defendants as follows:

(2)

(3)

(4)

(5)

(1) All Black and Indian

employees and potential employ-

ees of the NCAES since November

18, 1971, and thereafter;

All Black and Indian persons who

were recipients or potential

recipients of service from the

NCAES on November 18, 1971, and

thereafter;

All Black and Indian members or

potential members of the NCAES's

4-H Clubs on November 18, 1971,

and thereafter;

All Black and Indian persons who

were members or potential

members of the NCAES's Homemaker

Clubs on November 18, 1971, and

thereafter; and

All County Commissioners in

North Carolina, in their

official capacities, on November

18, 1971, and thereafter.

Contrary to the statement in the brief

that the proposed classes were set forth

in plaintiffs' original complaint filed

November 18, 1971, the word "Indian"

appears for the first time in any pleading

filed by the named plaintiffs in their

amended complaint filed November 30, 1981,

one week before the trial began.

- 38a -

In light of the evidence developed at

trial and further case law developments

since the order of October 9, 1979, the

court remains of opinion that this is not

a proper action for class certification

either as to plaintiff or defendant

classes. It is settled, of course, that

employment discrimination cases are not

entitled to class certification as a

matter of course, but instead the require-

ments of Rule 23 must be satisfied as in

all other type cases. East Texas Motor

Freight v. Rodriquez, 431 U.S. 395 (1977);

Kelley v. Norfolk and Western Railway

Company, 584 F.2d 34 (4th Cir. 1978).

The plaintiffs apparently canvassed

the entire state and were able to come up

with fifty-five individuais, all black,

who were willing to join in the suit as

named plaintiffs. They apparently seek to

~ 39a -

head a class consisting of "all black and

Indian employees and potential employees

of [the Extension Service] since November

18, 1971 and thereafter" who would present

claims of discrimination in employment.

There was no evidence at the trial that

there exists any other potential class

members who have been subjected to any

alleged discriminatory employment prac-

tices of the defendants.

Five black farmers were named as

plaintiffs, presumably to head a class of

black people allegedly denied services or

provided inferior services by the Exten-

Sion Service sdneky because of their race,

but none of these plaintiffs testified at

the trial and there was no _ evidence

whatever to support the allegations of the

denial of services oor the provision of

inferior services by the Extension Service

to anyone because of race.

- 40a -

Two black females, members of ex-

tension homemaker clubs, were named as

plaintiffs presumably to head a class of

black females allegedly denied membership

in all white extension homemaker clubs and

denied services or provided inferior

services by the Extension Service solely

because of their race. Neither of these

plaintiffs testified at the trial, and

there was no evidence whatever that any

black female has at any time since the

institution of this action been denied

membership in any Extension Service

homemaker club or has been denied services

or provided inferior services by the

Extension Service because of race.

The fathers of three black children

who are members of 4-H clubs were named as

plaintiffs, presumably to head a class of

black children allegedly denied membership

in all white 4-H clubs and denied services

- 4la -

or provided inferior services by the

Extension Service solely because of their

race. Neither of these plaintiffs nor

their children testified at the trial. The

only evidence of any discrimination toward

a black child in 4-H club membership

related to one isolated instance in which

a voluntary worker attempted to discrimi-

nate against a black child, and this

resulted in the prompt removal of the

offending worker by the Extension Service.

There was no evidence whatever that any

other black child was ever denied member-

Ship in a 4-H club or was denied 4-H

services or provided inferior services by

the Extension Service.

What we are left with are the bare,

conclusory allegations of the complaint to

establish numerosity of affected parties,

commonality of questions of law and fact

and typicality of claims and defenses as

- 42a -

required by Rule 23(a). Numerous cases

hold that this is not sufficient, one of

the more recent of which is Wright Vv.

Whitehall Behoo} District , 94 F.R.D. 80

-D. Ark. 1981).

The named plaintiffs and the government

have been represented by exceptionally

able counsel throughout this litigation,

and the court does not reach the question

of whether as representative parties these

plaintiffs satisfy the requisites of Rule

23(a)(4) under the principles set forth in

Rodriguez, supra, and Hill v. Western

Electric Company, Inc., 596 F.2d 99 (4th

Cir. 1975), cert. denied, 444 U.S. 929

(1979). It may be said, however, that in

no event could these black plaintiffs

represent a class including Indians in

this action. Neither the original

complaint nor the motion to amend the

complaint (filed in open court on November

23, 1981) made any mention of Indians. The

motion to amend simply asked leave to

assert a cause of action under Title VII

on behalf of seven named plaintiffs who

had filed charges and obtained right-to-

sue letters from the EEOC. Any further

allegations of the amended complaint were

not authorized by the order allowing the

amendment.

et Delmer art eet ee

BR ON AE He lS eae 8 tat ABE A

—_-

A On

- 43a -

Another line of cases supports denial

of class certification here because of the

multiple employing units involved (one

hundred counties each providing funds and

maintaining a voice in as well as the veto

power over all employment decisions at the

county level). Representative of these

cases are Stastny vy. Southern Bell

Telephone and Telegraph Company, 628 F.2d

267 (4th Cir. 1980), and Doninger v.

Specific Northwest Bell, Inc., 564 F.2d

1304 (9th Cir. 1977).

S Compare Penk v. Oregon State Board of

Higher Education, 93 F.R.D. 45 (D. Ore.

) (geographic diversity of eight member

units of the University of Oregon did not

preclude class certification where it

appeared that the state board generated

policy decisions and guidelines for hiring

in the entire system, the member units had

no statutory autonomy to make employment

decisions, and the board received a single

budget appropriation and wrote all payroll

checks).

- 44a -

In Stastny Judge Phillips, quoting

from Harris v. Pan American World Airways,

Inc., 74 F.R.D. 24 at page 41 (N.D. Cal.

1977), identified a key question to be

considered in assessing the commonality

criteria of Rule 23(a) in Title VII as

follows:

"How uniform or diverse are the

relevant employment practices of the

employer, considering matters such

as: size of the work force; number

of plants and installations in-

volved; extent of diversity of

employment conditions, occupations

and work activities; degree of

geographic dispersion of the

employees and of intracompany

employee transfers and interchanges;

deg ree of decentralization of

administration and supervision as

opposed to the degree of local

autonomy.”

On the record presently before the court

it clearly appears that the commonality

requirement has not been satisfied.

Pinally, and perhaps most § impor-

tantly, we have here the unusual, if not

- 45a -

indeed unique situation in which the

government exercised its authority under

32 U.S.C. § 2000h-2 to intervene in a

private Suit grounded on employment

discrimination. Three years after the

1972 amendments toc Title VII subjecting

State agencies to its provisions’ the

government sought and was granted leave to

amend its complaint in intervention to

allege a cause of action based on Title

VII. As stated before, the named plain-

tiffs on the eve of trial obtained a

Similar amendment to their complaint.

Thereafter the cases proceeded as one with

the named plaintiffs and the government

making common cause against the defen-

dants. Thereupon for all intents and

purposes the suit became a class action,

for it is now settled law that class

action certification is inappropriate and

unnecessary in pattern and practice suits

- 46a -

brought by the EEOC and the government

pursuant to Title VII. General Telephone

Company v. EEOC, 446 U.S. 318 (1980). If

the government prevails herein the relief

granted can be as broad as any that could

be granted in any private class action

suit. United States v. Masonry Contracto-

rs Association of Memphis, Inc., 497 F.2d

871 (6th Cir. 1974); United States v.

Georgia Power Company, 474 F.2d 906 (5th

Cir. 1973).

For the foregoing reasons the court

adheres to its previous rulings denying

class certification for plaintiffs’

classes in this action. What has been said

with reference to the denial of class

Indeed the government has submitted a

proposed decree which embodies almost

every conceivable kind of injunctive

relief including back pay, and if such

decree were entered, the named plaintiffs

as prevailing co-parties would appear to

be entitled to attorney fees under 42

U.S.C. § 1988.

- 47a -

certification for the proposed plaintiffs'

classes also suffices to justify denial of

the proposed class of defendants consist-

ing of all the county commissioners in the

state. There was simply no evidence of

10°

In urging certification of defendants'

class plaintiffs have taken a position

seemingly contradictory to their position

on the plaintiffs' class question. On the

one hand they argue that the defendants'

policies emanate from a central source and

that these policies have a_ uniform

discriminatory impact on the plaintiff

class, while in an effort to obtain

certification of a defendant class

plaintiffs are obliged to argue that the

counties and county commissioners have

made it their statewide practice to

discriminate against blacks in the areas

of employment, working conditions and

provision of services. It would seem

apparent that if the practices complained

of originate from a central core that the

plaintiffs can obtain the relief desired

without the certification of a defendant

class. Any attempt to impose liability on

the counties under a theory of vicarious

liability as was done in Commonwealth of

Pennslyvania v. Local 542, 469 F. Supp.

329, at pp. 411-413 (E.p. Pa. 1978),

aff'd, 648 F.2d 923 (3rd Cir. 1981) would

seem now to be foreclosed by the Supreme

Court's reversal of those cases. General

Building Contractors Association, Inc. v.

Pennslyvania, U.S. , 50 U.S.L.W.

4975, TS75=80 (June 29, 1982).

- 48a -

any standardized practice among the one

hundred separate counties in the state to

deprive anyone of any rights’ solely

because of race. Prior to the merger of

the two branches of the Extension Service

there were forty-nine counties in which

there were no black agents, and in many

counties of the western part of the state

the percentage of Negroes in the popula-

tion is minuscule.

Case law supports this determination.

United States v. State of South Carolina,

445 F.Supp. 1094 (D.D.C. 1977), summarily

affirmed, 434 U.S. 1026 (1978) (plain-

tiff's attempt to certify a class of

defendants consisting of ninety-two South

Carolina school districts rejected);

Greenhouse v. Greco, 617 F.2d 408 (5th

Cir. 1980) (each church corporation within

a diocese was legally autonomous subject

- 49a -

to bishop's authority only by virtue of

religious obedience to canon law. Bishop

had no legal power to carry out = an

integration decree of a federal court).

For these reasons the court adheres

to its previous rulings denying certifica-

tion of a defendants’ class in this

action.

THE LIABILITY ISSUES

As previously stated, the amended

complaint filed by the named plaintiffs on

November 30, 1981, and the government's

amended complaint in intervention which

was allowed to be filed by the order of

October 9, 1979, contained essentially

identical allegations of discrimination.

mM The government's motion for leave to file

an amended complaint was filed on February

28, 1975. In addition to duplicating the

charges made by the named plaintiffs in

their original complaint the proposed

amended complaint attached to the motion

contained allegations of violations of

Title VII on grounds of racial and sex

Giscrimination. The order allowing the

It is alleged in each of the amended

complaints that the defendants’ have

implemented policies and practices of

racial discrimination by

(a) maintaining prior to 1965 a

racially dual system of Extension

Service employment and continuing to

assign black ... employees only to

counties which had black ... employ-

ees prior to 1965;

filing of an amended complaint entered

October 9, 1979, limited the allegations

of discrimination to those based on race.

So far as the court has been able to find

in this bulky, ten-year-old record the

government never filed an amended com-

plaint, but the parties have proceeded as

if such complaint had been filed, and the

court has therefore accepted the govern-

ment's proposed amended complaint as

attached to its motion as its amended

complaint but has disregarded the aliega-

tions charting sex discrimination as to

which no evidence was offered at the

trial.

While thegovernment alleged discrim-

ination against Indians in its amended

complaint (but not in its original

complaint in intervention) without

objection on the part of defendants, no

evidence was adduced at the trial relating

to Indians, and the motion of defendants

to dismiss the claims of all parties

relating to discrimination against Indians

will be allowed in a separate order.

ee ee oe ee ee en i oh en ea ee et ee a ae eee

(ob) failing to recruit, hire,

assign and promote blacks .. ona

(sic) equal basis with whites;

compensation, terms, conditions and

privileges of employment as provided

to whites;

(d) segregating blacks ... in

work assignments;

(e) failing or refusing to

establish valid qualifications,

tests, selection standards and

procedure which are sufficiently

objective to prevent continuing

discrimination in hiring and promo-

tion;

(f) failing or refusing to take

appropriate action to correct the

present effects of past racially

discriminatory policies and prac-

tices;

(g) failing to provide minori-

ties with services equal to those

provided to white persons; failing to

provide services to 4-H Clubs,

Extension Homemaker Clubs, farmers

and other persons on a non-racially

segregated basis; and

(h) failing to maintain

non-racially segregated 4-H Clubs and

Extension Homemaker Clubs.

- 52a -

In addition to general denials the

answers of defendants to the amended

complaints pled the three-year statute of

limitations, failure of the individual

plaintiffs to file charges with EEOC

within 180 days of the alleged discrimina-

tory acts of defendants, good faith,

waiver and the Eleventh Se The

issue thus joined by the pleadings will be

discussed in the sections of this memoran-

dum to follow.

I. Discrimination in Work Assign-

ments — Geographical.

The allegation that defendants as-

signed black employees only to those

counties which had black employees prior

to 1965 has not been supported by the

evidence. Rather, the evidence shows that

A counterclaim of defendants against the

United States Department of Agriculture

has been dismissed by separate order.

- 53a -

blacks are employed wherever they apply

for employment in those counties (mostly

in western North Carolina) where the Negro

population is very small and the relative

number of black farmers and prospective

recipients of services offered by the

Extension Service is even smaller.

The defendants’ motion to dismiss

this claim will be allowed.

II. Failing to Recruit, Hire, Assign

and Promote Blacks.

<¢

1. Recruiting.

The government contends that de-

fendants “have not established an af-

firmative recruitment and hiring program

nor agreed to such a plan with the United

States Department of Agriculture which

would eradicate their prior discriminatory

employment practices.” The defendants, of

course, deny that there were any “prior

discriminatory employment practices." The

- 54a -

evidence showed that the Extension Service

recruits agriculture and home economics

graduates by making personal visits to

campuses within North Carolina and nearby

states offering deg ree programs in

agriculture and home economics and by

sending position vacancy announcements to

colleges offering degrees in these

subjects.

Vacancy announcements are sent to

some of the more prestigious out-of-state

schools with nationally recog nized

agriculture and home economics programs

such as the University of Wisconsin,

Southern University in Louisiana and

Tuskegee Institute in Alabama. With the

exception of the latter two institutions

the Extension Service has not recruited at

other predominantly black institutions

outside North Carolina, and the government

contends that had applicants been sought

- 55a -

at nineteen additional schools in the

southern region with substantial black

enrollments the number of agriculture and

home economics graduates available would

have been doubled. The evidence showed,

however, that the Extension Service has

always received a sufficient number of

applicants to keep its position filled,

and since an employer is under no legal

duty to recruit applicants for employment

absent a t{.ading of discrimination

followed by court ordered affirmative

action, the defendants' recruiting

practices in this case cannot be held to

have been discriminatory. Rather, the

court was left with the impression that

the Extension Service's recruiting

practices were designed to obtain the

highest qualified applicants.

13,

That the best laid plans for recruitment

may not be productive was illustrated by

the experience Dr. Chester D. Black, the

- 56a -

The recruitment procedures employed

by the Extension Service are set forth in

more detail in defendants' proposed

findings of fact 92(a) - 97 inclusive

which the court adopts as its own and

incorporates herein by reference.

present Director of the Extension Service,

had when he visited Tuskegee Institute in

Alabama. Although he had written the

institution to inform them that he was

coming and that he wanted to interview

potential applicants for positions in

agriculture, the only person who showed up

for interview was one with a master's

degree in sociology "who expressed an

interest in the possibility of working

with extension work." Dr. Black stated

that he was never able to hire anyone from

Tuskegee, and he went on to testify that

"I was awed by -- unless you have been

through it and saw the recruitment effects

put on by major companies -- the Ford

Motor Company at the time I was there had

a display that you would use at a State

Fair to attract people to their company,

and I was recruiting at a real disadvant-

age that day." Tr. 4493-5.

-iS7a -

2. Hiring.

Hiring procedures of the Exten-

sion Service for positions at the state

level differ from the procedures employed

in filling county level positions. This

is because state level positions require

Faculty appointment in the School of

Agriculture and Life Science at North

Carolina State University and are there-

fore subject to the selection and promo-

tion criteria utilized by the University

for filing vacancies on its faculty.

State level positions in the Exten-

Sion Service generally require a minimum

of a master's degree, and the majority

require a PhD degree either in agriculture

and home economics. Because of the very

small number of blacks who obtain master's

and Ph.D degrees in agriculture and home

economics every year the labor pool from

which the Extension Service can recruit

- 58a -

for positions at the state level is

sharply limited. This alone is sufficient

to account for the seemingly small

percentage of blacks who hold state level

positions in the Extension Service.

The selection procedures employed by

the Extension Service in filling state

level positions are set forth in more

detail in defendants' proposed findings of

fact Nos. 214-237 inclusive which the

court adopts as its own and incorporates

herein by reference. These procedures are

non-discriminatory and have been employed

in a non-discriminatory manner.

All applicants for entry level

positions in the counties must have a

bachelor's degree in an area related to

the program responsibility to be assigned

the agent, and a master's degree is highly

desirable. Filling positions at the

county professional staff level also

- 59a -

involves a consideration of the agricul-

tural, social and economic needs of the

particular county, and this in turn

dictates the number of potential appli-

cants who can qualify for a particular

position.

When a vacancy in a county level

position comes open or a new position is

created, it is established for a particu-

lar subject matter responsibility. Prior

to 1972 there were not a great many

alternative employment opportunities for

agriculture graduates, and consequently

the turnover rate for county level

employees was much smaller than it has

been in recent years which have seen an

increase in the number of large farms with

an accompanying increase in employment

opportunities for agriculture agents.

Because of this small turnover rate it was

felt that word-of-mouth notices of

- 60a -

vacancies and announcements in_- the

Extension Service newsletter mailed

monthly to all employees in the organiza-

tion sufficed as adequate notice of

employment vacancies. Since 1972 the

Extension Service has sent monthly vacancy

announcements to all offices within the

state and to the educational institutions

indicating the location, position and

subject matter areas of responsibility

required to fill the vacancy.

No evidence has been offered to show

even one qualified black applicant who

applied and was not accepted for employ-

ment in a county level position with the

Extension Service. BEOC vy. United

Virginia Bank, 615 F.2d 147 (4th Cir.

1980); Shack v. Southworth, 521 F.2d 51,

55 (6th Cir. 1975); Eastland v. Freeman,

528 F. Supp. 862, 881 (N.D. Ala. 1981).

It is perhaps significant also to note

- 61a -

that there is no allegation nor proof in

this record that the Extension Service has

ever discharged any employee on account of

race.

The hiring procedures employed by the

Extension Service in filling county level

positions are set forth in more detail in

defendants' proposed findings of fact Nos.

88-92 inclusive; and 98-102 inclusive

which the court adopts as its own and

incorporates herein by reference. These

procedures are non-discriminatory and have

been employed in a non-discriminatory

manner which is further attested by the

fact that historically the Extension

Service has employed more black profes-

Sionals that any state except Alabama,

where the percentage of total population

that is black is also higher. As of

November, 1981, the Extension Service

employed a total of 1,554 full and

- 62a -

part-time people. The figures include

professionals at both the state and county

level as well as all the para-profes-

sionals and other supporting staff. Of

this total, 444 or 21.4 per cent were

black. The latest census data shows that

blacks represent 22.4 per cent of the

state's total population. Given the

difficulties of recruiting and retaining

qualified blacks, it is apparent that the

Extension Service has done a commendable

job in its minority hiring ey

3. Assignments

There is some evidence that fol-

lowing the merger of the white and black

branches of the Extension Service in 1965

14 More detailed facts concerning the

difficulties of recruiting and retaining

qualified blacks are set forth in defen-

dants' proposed findings of fact Nos.

250-254 inclusive which the court adopts

as its own and incorporates herein by

reference,

- 63a -

blacks, who had previously worked “across

the board" in all subject matter areas of

responsibility, were assigned to more

limited’ areas of responsibility and that

whites were assigned responsibility for

higher revenue-producing crops in some

ee In each instance defendants

were able to establish a sound reason for

the action taken and that the white agent

given the assignment was equally or better

qualified than the black agent who did not

get it. Plaintiffs were unable to show

that the reasons assigned for the action

"5 There was other evidence from which it

appeared that the contrary was true. For

instance, the commodities involved in the

areas for which the plaintiff, P. E.

Bazemore, had responsibility in Union

County before he retired in 1980 were

marketed for over ten million dollars

which represented some thirty to forty per

cent (defendants claims over fifty per

cent) of the total dollar volume of all

the crops and livestock sold in the county

tnat year - Far more than any other agent,

black or white. Tr. pp. 576-579.

- 64a -

taken were pretextual, and the court is

unable to find from a preponderance of

the evidence that the Extension Service

has discriminated against blacks in the

area of job sities

4. Promotions.

(i) County Level Agents.

At the county extension profes-

sional level there are three agent titles,

assistant agent, which is the entry level,

associate agent and full agent. The

requirements for promotion from one rank,

10 If it is true, as the government contends,

that blacks continued to be "under repre-

sented" in some major commodities,it may

well be simply another reflection of the

fact that agricultural agents continue to

be in short supply. See defendants'

proposed finding of fact No. 250 adopted

by the court wherein it is said: "Blacks

are particularly under represented among

graduates in the field of agriculture.

Successful recruitment and retention of

blacks in agriculture is made more

difficult by the fact that black agricul-

tural graduates do not remain in the

field.

- 65a -

to the next above have been in effect for

twenty years and have been well publi-

cized. These include service of time in

rank before an agent can become eligible

for promotion to the next higher rank, but

agents who possess or earn a master's

degree or a doctorate degree are given

additional time credit which enables them

to shorten the time required to be spent

in a particular rank. A credit of one year

is given for the master's degree and two

years for the doctorate.

Upon satisfaction of the time re-

quirements for promotion the agents is

informed of his or her eligibility for

promotion the procedures for which are

uniform throughout the Extension Service.

First, the district extension chairman is

notified annually by the assistant

director for county operatiors of the

agents in each district who are eligible

- 66a -

for promotion consideration based on time

in grade. The district chairman notifies

the agent at the county level of his or

her eligibility and provides the agent

with a promotion form which requires the

agent to give his or her performance,

accomplishments, educational background

and tenure. The agent then makes applica-

tion for promotion by preparing and

delivering the form to the county exten-

sion chairman who reviews the application

and sends it along to the district

chairman with his recommendations for or

against the promotion.

Upon receipt of the application the

district chairman confers’ with the

district program leaders and obtains their

observations ond information pertaining to

the performance of the agent with respect

to his or her areas of subject matter

responsibilities and extension educational

- 676 -

programs which they have been carrying

out. On the basis of the information

obtained from all sources including that

obtained by him personally as a result of

participation in the agent's annual

performance review with the county

chairman biannually and his_ personal

observation of the agent's work from time

to time the district extension chairman

makes a recommendation as to promotion to

the director's office at the state level

where the application is reviewed by the

director, associate director and assistant

director for county operations who either

approve or disapprove the promotion.

The promotion procedures employed by

the Extension Service are set forth in

more detail in defendants' proposed

Findings of fact Nos. 160-170 inclusive

which the court adopts as its own and

incorporates herein by reference.

- 68a -

Notwithstanding it has offered no

evidence of non-compliance by the Exten-

sion Service with its promotion procedures

the government contends that black agents

at the county level have not received

title promotions as rapidly as whites, and

to prove the charge it has cited the cases

of four black agents who applied for and

did not immediately receive promotions. A

review of al the evidence surrounding the

failure of these four individuals go gain

promotions initially has failed to

convince the court that such failures were

attributable to racial discrimination.

Jonnie Jones, a named plaintiff and a

black, an admittedly competent agent,

testified at the trial. He came across as

an abrasive, argumentative and belligerent

witness, but the court can only speculate

as to whether these personality traits

played any part in the denial ot his

- 69a -

initial request for a promotion to the

position of full agent. What does appear

is that the request was reviewed by Dr.

Paul Dew, the district chairman at the

time, and all others required by the

promotion procedure to be involved, and

the decision was that Jones did not

satisfy the established requirements for

promotion at that time. There is not the

slightest evidence that race had anything

at all to do with the decision. There-

after Jones accepted a position in Lenoir

County where he obtained promotion to the

position of full agent.

Haywood Harrell, a named plaintiff

and a black, testified at the trial, and

he was also an abrasive and belligerent

witness. He identified several areas of

dissatisfaction with the Extension

Service, but its failure to promote him

was not one of them. In fact he did not

- 70a -

testify that he ever applied for a

promotion, and if he did not, this alone

would eliminate any claim on his behalf

based on a failure to promote him. It

further appears, however, that Harrell was

a very poor student when he was in school

at A & T, his grades consisting mostly of

"D's", and that although he was engaged

primarily in 4-H work and was well aware

of Extension Service policy that required

4-H Clubs to be open to all races, he has

continued to organize all black clubs nor

did he ever bother to instruct’ the

volunteer leaders of the clubs that they

were to be open to all races. There was

no evidence that his failure to gain a

promotion was in any way attributable to

race, and on the contrary there is the

unmistakable inference that he simply was

not qualified for promotion.

- 71a -

Wanda Wilkins, a black but not a named

plaintiff, testified at the trial that

after she had been an assistant agent with

the Extension Service for three years she

applied for promotion to the position of

associate agent but was turned down for

the stated reasons that she had not

performed satisfactorily in her 4-H

programs and was “too concerned about

getting married and going to graduate

school." The government has compared her

case with that of a white women with about

the same tenure who was also engaged to be

married and who was recommended for

promotion at that time. The relative

qualifications of the two agents were not

shown by the evidence. Not satisfied with

her rejection, Wilkins appealed to the

associate director of the Extension

Service who convened ae review panel

consisting of the district chairman, the

- 72a -

county chairman and the two district

program leaders to inquire into the matter

and report back to him. They also

recommended that the promotion be denied

because of “low participation and a weak

program in 4-H," but they agreed to work

with Ms. Wilkins “to improve the produc-

tivity of her program." She accepted this

finding, her performance did improve and

she was thereafter promoted.

Margaret Woods, a black non-plain-

tiff, was called as a witness by the named

plaintiffs to show that the Extension

Service had authority to transfer its

agents between counties. By examination

of this witness the government sought to

show that she had been wrongfully denied a

promotion. While an assistant agent in

Gates County in 1977 Ms. Woods filed an

EEOC charge which resulted in a hearing

before a panel convened by the defendant.

- 138 -

The patter was settled and she was

transferred to Randolph County where she

applied for a promotion to the position of

associate agent in 1980. This was denied,

and in 1981 she transferred to Warren

County where she again requested a

promotion. She was then told by the

district chairman’ that if she made

Satisfactory progress he would recommend

her promotion on December 1, 1981. A

meeting between the district chairman and

Ms. Woods scheduled for November, 1981,

did not take place, but on the basis of

reports from his associates on the good

progress Ms. Woods had made following her

transfer to Warren County the district

chairman did recommend her promotion and

it was granted effective January 1, 1982.

The procedure® including the perform-

ance evaluation system utilized in

connection with promotions by the Exten-

- 74a -

sion Service of county level professionals

are valid, proper and non-discriminatory,

and they have been employed in a non-dis-

criminatory manner.

(ii) County Extension

alrmen

The top administrative position

in the Extension Service at the county

level is that of county extension chair-

man. In addition to. administrative and

leadership responsibilities the chairman

normally carries a subject matter program

workload depending on the particular needs

of the county. While the position is

routinely filled from the ranks of county

level professionals, it is one that has to

be applied for and it is not considered by

the Extension Service to be in the

promotional line within the county.

Rather, it is open to all qualified

applicants from any county or state. A

- 138 -

major portion of the battle here has been

waged around the claims of the named

plaintiffs and the government that the

Extension Service discriminates against

blacks in filling these positions.

Beginning in 1972, the year the Title

VII amendments bringing state agencies

into its cover became effective, the

Extension Service began publishing

announcements of vacancies in the posi-

tions of county chairmen which announce-

ments contain the name of the county in

which a vacancy exists, the subject areas

of responsibility which the county

chairman must carry in addition to his or

her administrative duties and the educa-

tional and experience qualifications

required. All applicants must have at

least a bachelor's degree, and a master's

degree is desirable but not mandatory. Six

years (formerly seven) of service with the

- 76a -

Extension Service or equivalent experience

is required, at least two years of which

must have been in the service of the North

Carolina Extension Service. A master's

degree will count for one year of experi-

ence and a doctorate two years.

All applicants who meet these quali-

fications are iodine, The most

important factors considered in the inter-

view process are subject matter ex-pertise

required in the county, demonstrated

leadership in present and previous

positions, demonstrated administrative and

management capabilities, educational back-

ground, advanced training, human relations

and communications skills. Interview are

These minimum requirements have not been

rigidly adhered to in every single

instance, but where there has been a

variance defendants have shown a valid

reason for recommending the applicant in

question for appointment as_ county

chairman.

- 77a -

conducted separately by the district

chairman, the assistant director’. for

county operations, the associate director

and the director of the Extension Service.

The group then meets and discusses the

strengths and weaknesses of all applicants

and comes to a consensus as to whom they

will recommend to the board of county

commissioners of the county where the

vacancy exists.

Occasionally more than one applicant

will be presented to the board of county

commissioners for interview and selection.

It will be recalled that in the memorandum

of understanding between the Extension

Service and the boards of county commis-

Sioners all appointments are worked out

jointly between the Extension Service and

the commissioners and no official action

can be taken unilaterally by either party

with respect to filling a vacancy.

- 78a -

Accordingly, county commissioners have on

occasion rejected an applicant recommended

by the Extension Service, and some of

these have been black. In more instances,

however, white applicants have _ been

rejected.

Since the institution of statewide

announcements of vacancies in 1972 there

have been seventy-seven county extension

chairmanship position vacancies in the

State. No blacks applied for fifty-nine

of these vacancies, but eighteen indi-

vidual blacks did apply for the remaining

eighteen vacancies. Of the eighteen

vacancies for which blacks applied five

were selected as county chairman. Al-

though highly recommended by the Extension

Service another black, I. W. Murfree, was

rejected by the Board of Commissioners of

Granvilie County.

eee ——-—— ~-——_se-. weeo-™-s

- 8 -

Thirty-seven individual whites applied

For the eighteen vacancies for which the

eighteen individual blacks also applied,

and thirteen of the thirty-seven white

applicants were selected as county

extension chairmen.

It thus appears that of the thirty-

seven individual white applicants thirty-

five per cent were selected and that of

the eighteen black applicants twenty-eight

per cent wer. selected. A comparison of

the white selection percentage with the

black selection percentage shows that the

black selection rate was eighty per cent

of the white selection rate. This is

exactly the rate established in the

Uniform Guidelines on Employee Selection

Procedures as a rule of thumb for iteter-

- 80a -

mining whether employer policies or

practice have an adverse impact- on

employment ieeiiiaiihtees

Moreover, had the black applicant,

Mr. Murfree, been accepted by then

Commissioners of Granville County the

number of successful black applicants

would have been six out of eighteen, and

the percentage of those applying would

have been raised to thirty-three and

one-third per cent. At the same time the

number of successful white applicants

would have been reduced by one of the

18 section 4D, 43 Fed. Reg. 38,297 (1978),

provides:

"A selection rate for any race ***

which is less than four-fifths (4/5) (or

eighty per cent) of the rate for the group

with the highest rate will generally be

regarded by the federal enforcement

agencies as evidence of adverse impact,

while agreater than four-fifths rate will

generally not be rvcarded by federal

enforcement agencies as evidence of

adverse impact.

——_— ee

- 8la -

percentage of successful white applicants

wease save dropped to thirty-two per

ae.

On the basis of the foregoing evi-

dence the court is unable to find that the

plaintiffs have established a prima facie

case of discrimination in the selection of

county chairmen. The result would be

Despite the suggestion in cases such as

Brown v. Gaston Count Dyeing Machine

company: 457 F.2d 1377, 7, 1384 (4th Cir.

, and more recently given Currency in

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

1176 (4th Cir. 1981) (rehearing en banc

denied by equally divided court, ~ F234

, May 18, 1982), that the use of small

samples such as those involved here may

somehow be justified in order to compen-

Sate for the difficulty encountered by

plaintiffs in proving discriminatory

motive in these cases, these figures

probably serve only to point up the

inherent unrel lability of such evidence as

proof of inferences favorable to either

Side. Other courts have rejected such

evidence as "meaningless." Mayor of

Philadelphia v. Educational Equality

League, 415 U.S. 605 (1574). See also

EEOC v. United Virginia Bank, 615 F.2d

147, 153 (4th Cir. 1986); Allen v. Prince

George's County, 538 F, Supp. 833 (D. Md.

- 82a -

otherwise if only the government's

Statistics were considered at face value.

The government contends that it has

offered evidence tending to show that if

black agents had been appointed to county

chairman positions at a rate proportional

to their 1964 representation in defen-

dants' county professional work force,

they would have received thirty-one county

chairman appointments from 1962 through

November, 1972; that only one. black

chairman was actually appointed during

this period; and that the disparity in the

rate of promotions was 5.98 standard

deviations. Government's Proposed Find-

ing No. 95, The government further

contends that it has offered evidence

tending to show that from 1962 until May,

1981, five blacks and 227 whites were

appointed to county chairman positions;

that from 1974 to 1981 the average

- 83a -

representation of blacks among full agents

was 22.4 per cent; that if black agents

had been appointed to county chairman

positions at a rate Proportional to their

representation as full agents, they would

have received fifty-two county chairman

appointments from 1962 until May, 1981;

and that the disparity in the rate of

Promotions was 7.40 Standard deviations.

Government's Proposed Finding No. 127 and

GX 124.1. Standing alone these Statistics

would certainly create a Prima facie case

of discrimination.

There can he no doubt that

Standard deviations of this

magnitude demonstrated that the

low proportions of women in the

technical and managerial

categories were not the result

of chance. But it was a quantum

leap, under Circumstances of

this case, to jump from that

Proposition to the conclusion

that such high Standard devia-

tions proved - or even had any

tendency to prove - that

defen-dants had committed a

legally cognizable wrong. Far

from being conclusive against

- 84a -

defendants, plaintiff's statis-

tical evidence and the EEOC

reports on which it was based

were totally wanting in proba-

tive value.

Ste. Marie v. Eastern Railroad Associa-~

tion, 650 F.2d 395, 400 (2d Cir. 1981).

Such is the case here where closer

examination reveals that the government's

Statistics are fatally flawed.

If the prima facie case is

established by the EEOC's sta-

tistical evidence, the employer

may nevertheless rebut it,

dispelling the inference of a

general policy of discrimina-

tion, by “demonstrating that the

Government's proof is either

inaccurate or insignificant."

Teamsters, 431 U.S. at 360. ...

One way that static work force

Statistics revealing gross

disparities can be shown

nevertheless to be “insignifi-

cant” is by showing that the

disparities are mainly attribut-

able to pre-Act rather than to

post-Act employment actions.

This may be done in two basic

ways: by focusing on the static

work force statistics and

purging them of all pre-Act

employment actions so that only

post-Act actions remain for

assessment; or, more commonly,

- 85a -

by focusing on post-Act employ-

ment decisions, and showing

either than considered alone,

they affirmatively reveal

nondiscrimination in the

post-Act period or that they are

insufficient in number to

Support an ultimate conclusion

of a post-Act discriminatory

pattern or practice. Hazelwood,

433 U.S. at 309, 313. «wee

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

1176, 1188 (4th Cir. 1981).

The position of county chairman was

created in 1962-63 before the merger of

the two branches of the Extension Service,

and the first one hundred appointees were

white. Not until 1971 was the first black

county chairman appointed. At the time of

trial a total of 232 county chairmen had

been appointed, only five of whom were

black. As previously shown, however,

there have been only seventy-seven

vacancies since 1972 when Title VII was

made applicable to public employers, and

blacks have applied for Only eighteen of

ele The appointment rate for blacks

during this period has been within the

applicable EEOC Guidelines, and the court

must reject the government's attempt to

have pre-Title employment decisions

considered in this instance, Interna-

tional Brotherhood of Teamsters v. United

States, 431 U.S. 324, 360 (1977) ; United

Airlines vy. Evans, 431 U.S. 553 (1977);

20 The possibility of liability for pre-Title

VII discrimination under 42 U.S.C. §§ 1981

and 1983 has been considered, but any such

claims arising prior to November 18, 1968

would be barred by the statute of limita-

tions, and in any event proof of the

intentional discrimination necessary to

Sustain an action under these Statutes

(even if the case is considered as one of

disparate impact as the government would

have the court do) has not been estab-

lished, General Building contractors

Association v. PennSlyvania, U.S.

——

’

90 U.S.L.W. 4975 (June 29,1982). “fhe

named plaintiffs have conceded in their

brief that proof of discriminatory purpose

is required to prove a prima facie case of

discrimination under 42 U.S.C. §§ 1981 and

1983. Plaintiffs' Brief filed February 8,

1982, at p. 5.

- 87a -

Ste. Marie vy. Eastern Railroad Associa-

tion, 650 F.24d 395, 401 (2d Cir. 1981);

EEOC v. United Virginia Bank, 615 F.2d 147

(4th Cir. 1980); BEOC V.Local 14, 553 F.2a4

251 (2d Civ. 1977).

Thus, in order to be valid, a

Statiscal analysis such as the

one presented here must exclude

those persons hired Prior to

(March 24, 1972, the effective

date of Title vII for public

employers]. To include pre-Act

hires in the statisca] analysis

in this case would improperly

weight the evidence and would

tend to show present discrimina-

tion by an employer if it had

discriminated prior to the

effective date of the Act but

had not discriminated after the

Act took effect.

EEOC v. United Virginia Bank, Supra, at

150.

Plaintiffs' statistics are flawed in

a further respect in that they include the

assumption that every black full agent at

the county level was qualified to fill the

position of county chairman. There was an

- 88a -

utter lack of any proof to substantiate

such a claim, and the persistent efforts

of defendants through discovery and all

the way through the trial to require

plaintiffs to identify the qualified labor

pool from which this nee should be

filled met with no success. While it is

true that most vacancies have been filled

et Evidence of the named plaintiffs that they

were qualified for the position of county

chairman consisted principally of their

own self-serving and conclusory testimony.

Courts uniformly reject such testimony as

insufficient to establish qualifications.

Smith v. Flax, 618 F.2d 1062 (4th Cir.

“T980).

Smith, of course, testified

that he had versatility, and

that his competence as an

analyst was not confined to the

field of logistics. Smith's

perception of himself, however,

is not relevant. It is the

perceptionof the decision maker

which is relevant.

a at 1067. See also Lovelace v.

erwin-Williams Company, “PP. 2d

(No. 580-179, 4th Cir., vine 15, 1982),

Slip Opinion at 31.

- 89a -

from within the ranks of the county

Professionals, it is equally true that the

POSition of county chairman requires

Special administrative and leadership

Skills not Shared generally by al} Such

employees, and

necessary qualifications) may have

little Probative value.

Hazelwood §choo) District y, United

States, 433 U.S. 299, 308 n.13 (1977),

See also United States vy. Commonwealth of

eS __—

Virginia, 620 P.2d 1018, 1025 (4th Cir,

1980), an@ EEOC y, Radiator Specialty

Company, 610 PF. 24 178, 185 (4th Cir.

1979),

The Plaintiffs have complained that

defendants employ Subjective Criteria in

Selecting applicants to be recommended for

- 90a -

appointments as county chairman, and this

is true to some extent. However, the

Extension Service after considerable study

and effort developed and put into effect

in 1972 a “Performance Review Guide" for

the purpose of evaluating the performance

of its untieeen.”- The performance of each

agent in the Extension Service is eval-

uated annually. Both the agent and the

chairman participate in this process, and

the district chairman participates in it

bi-annually. The persons involved in the

process attempt to reach a consensus on

the evaluation of the agent's performance,

4é The development of the Extension Service's

performance evaluation system is traced in

defendants’ proposed findings of fact Nos.

104-144 inclusive to which plaintiffs have

interposed no serious objections, and as

background information the court adopts

these findings as its own. Significantly,

the plaintiffs produced no evidence to

show that the Extension Service's perform-

ance evaluation system is invalid or

improperly validated.

;

- 9la -

and when the Performance Review Guide is

completed and Signed it is filed with the

district chairman and thereafter used in

matters affecting the agent's performance

when such matters aS promotions and merit

Salary raises are under consideration.

The fact that several persons in-

Cluding the agent himself Participate in

the evaluation and Promotion processes

minimizes the possibility that bias or

prejudice on the Part of any one individ-

ual will affect decision. Valentino vy.

United States Postal] Service, 511 FPF, Supp.

197, 933 (D.D.c. 1981), aff'd, 674 F.2a 56

23 At least four of the highest ranking

Officials in the Extension Service

Participate in the county chairman

Selection process. These Officials, each

Of whom holds a doctorate degree from a

leading university, testified at the

trial. They came across as fair-minded,

exceptionally capable Professionals and

the court credits their testimony in which

they disavowed any racial bias or prej-

udice in the performance of their duties,

Particularly with respect to promotions.

- 92a -

(D.C. Cir. 1982). Moreover, in the white

collar employment context courts have

tended in recent years to become more

tolerant of subjectivity in employment

decisions. Wilkins v. University of

Houston, 654 F.2d 388 (5th Cir. 1981);

Presseisen v. Swarthmore College, 442 F.

Supp. 593 (E.D. Pa. 1977), aff'd, 582 F.2d

1275 (3d Cir. 1978). When subjective

criteria are used fairly and with proce-

dural safeguards they have been approved

by the courts and EEOC. Thompson ov.

McDonnell Douglas Corporation, 416 F.

Supp. 972, 982 (E.D. Mo. 1976). The use

of subjective criteria is certainly not

unlawful per se, for hiring and promotion

decisions in supervisory and managerial

positions cannot realistically be made

using objective standards alone. Rogers

v. International Paper Company, 510 F.2d

1340, 1345 (8th Cir. 1975), vacated on

" ate eit Otte

~ ees ee nL tte eet

- 93a -

other grounds, 432 U.S. 809 (1975), at

these levels the test of legality of white

collar employment Practices is not whether

they are Subjective, as inevitably they

are, but whether they are applied fairly.

see Waintroob, The Developing Law of Egual

Employment Opportunity at the White Collar

and Professional Level, 21 Wm. & Mary L.

Rev. 45, 48-62 (1979), The plaintiffs

next assert what has come to be known as

"futility claims" - Claims of blacks who

contend they did not apply for the

position of county chairman because they

felt that blacks were being discriminated

against and that it would be futile to do

SO. The court has again reviewed the

testimony of the five black agents relied

upon to establish Such claims, James

Wright, Slater Lloyd, William Wright,

Leroy James, named Plaintiffs, ana Helen

Payne, a non-plaintiff. As a result the

- 94a -

court remains of the opinion formed at the

time of trial that the reasons given by

these witnesses for not applying for

county chairmanships were not credible.

James Wright, a black agricultural

extension agent in Hertford County,

testified that when the position of county

chairman opened in the late 1960's in that

county he did not apply for it because he

thought it was futile to do so. When

another vacancy in the county chairman's

position came open in Hertford County in

1979 Wright was recommended for the

position by the Extension Service and did

27. non-applicant's burden of proving that

he would have applied for a position

except for the perceived employer's

discriminatory practices is not an easy

one. Resolution of such claims not only

requires proof that the claimant would

have applied but for discrimination but

also that he was qualified and yet would

have been discriminatorily rejected had he

applied. Teamsters, supra, 431 U.S. at

368.

- 95a -

in fact apply for it. He was rejected by

the Board of Commissioners of Hertford

County in favor of a white person. Since

the trial that person has resigned, James

Wright has re-applied for the position,

has been appointed and is now serving as

county chairman of Hertford alilba res

Slater Lloyd simply testified that he

did not apply for the position of county

chairman in Granville County in 1971

because he "didn't think they would

appoint a Negro as county chairman at that

time."

William Wright testified that he did

not apply for the position of county

chairman in Nash County about 1971 because

25 This information has been furnished the

court pursuant to the court's directive at

the close of the trial that it be kept

informed of vacancies in county chairman-

Ships and actions taken to fill them.

Wright, incidentally, was selected over

two other applicants for the position, one

white and one black.

- 96a -

he was not aware that there was a vacancy

until it had already been filled. Since

Wright was working everyday in the same

office with the county chairman who

resigned, this evidence was simply

incredible.

Leroy James testified that he did not

apply for a county chairmanship in 1965

because "I had the feeling I wasn't going

to get the job, so I didn't apply.”

Q. Why did you have that feeling?

A. Well I felt that the people

from the state level - I was not

going to be able to reach them.

And I felt maybe on the county

level I hadn't reached the

clientele from that point of

view. So that is the reason I

didn't apply.

Q. Was there any contact or

conversation that you had had

with the administration that

gave you that feeling?

A. Not really.

Direincietintntneneiinninmmmentel

- 97a -

Tr. Vol. 11, pp. 2510-11. James was

recommended by the Extension Service for

the county chairmanship of Johnston County

in 1976, but was not selected. In 1978 he

was recommended for the county chairman-

Ship of his home county of Pitt and was

appointed and is now serving in that

easiiidiome s

Helen Payne testified that she did

not apply for the position of county

chairman in Caswell County in 1974 because

"I felt like it was a waste of time and to

avoid embarrassment .... I didn't know of

any other woman - black home agent - in

the state that was a county chairman." In

1974 Payne already had in more than thirty

years of service with the Extension

Service and was eligible for retirement.

The individual claims of the four named

plaintiffs who gave futility claim

testimony will be treated more fully in a

later memorandum.

- 98a -

She did in fact retire a few years

thereafter. The does does not credit any

inference which may arise from the

testimony of this witness that she would

have applied but for discrimination, but

in any event there was no evidence from

which the court could find that she was

qualified for the position and that she

would have been discriminatorily rejected

had she applied.

It thus appears that of the five wit-

nesses on whose testimony the plaintiffs

rely to establish “futility claims" only

one, Helen Payne, testified concerning a

vacancy which occurred after Title VII

became applicable to public employers in

1972. It was the court's impression that

this one witness was clearly not qualified

for the position of county chairman; that

it never crossed her mind to apply for the

position in 1974; and that if she had

- 99a -

applied, she would have been rejected but

not for any discriminatory reason. Of the

other four witnesses to of them did apply

for vacancies after the Extension Service

to the county commissioners of the two

counties in which their applications were

made and eventually each of them was

appointed and is now service as a county

chairman.

Further proof of the lack of merit in

the “futility claims" of the blacks who

did not apply for county chairmanships

lies in the fact that many blacks did

apply for these positions after 1972, and

when they did they were appointed in

approximately the same ratio as were the

white applicants for the same positions.

The court rejects all futility-based

Claims of discrimination.

- 100a -

In sum, the court finds that the sta~-

tistical evidence fails to establish a

prima facie case of racial discrimination

by the Extension Service in filling county

chairmanship vacancies, but in any event

the defendants have effectively rebutted

plaintiffs’ case by showing the inaccuracy

and insignificance of plaintiffs’ proof.

This has been done by showing that

apparent disparities in plaintiffs' static

work force statistics are mainly attribut-

able to pre-Act rather than post-Act

employment actions; that they are based on

the erroneous assumption that the quali-

fied labor pool consists of every black

professional at the county agent level in

the state; that all black professionals

are available for assignment to any county

in the state; that defendants’ post-Act

decisions which to some extent are based

on subjective criteria reveal non-dis-

oe Pe

- 10la -

crimination in the post-Act period; and

that defendants have adopted proper and

valid procedures for promotions to the

position of county chairman which plain-

tiffs have not questioned. These proce-

dures having been fairly and uniformly

followed without bias or prejudice, the

claims of plaintiffs based on alleged

racial discrimination by the Extension

Service in the selection of county

chairman must fail.

(iii) State Level Positions.

The positions in the Extension

Service other than those at the county

level are known as state level positions.

These include the director, associate and

assistant director, specialists, program

leaders and district extension chairman.

The duties of these various offices have

been more fully described in the back-

ground section of this memorandum.

- 102a -

Traditionally most, but not all, of these

posi: ’ons have been held by whites.

State level positions, with few

exceptions, require a minimum of a

master's degree, and the majority of them

require a PhD either in agriculture or

home osmmaiilinis. Since all state level

positions are also faculty appointments

within the School of Agriculture and Life

Science at NCSU these positions are

subject to the selection and promotion

criteria utilized for recruitment and

promotion of faculty at the university

level. Selection and promotion of state

level personnel in the Extension Service

therefore differs from the selection and

promotion procedures utilized for county

The minimum degree requirements for the

various state level positions are set

forth in defendants' propoosed findings of

fact Nos. 219-225 inclusive which the

court adopts as its own and incorporates

by reference.

- 103a -

level positions.

Where, as here, the need for special

qualifications for state level positions

is manifest it is incumbent upon a

plaintiff alleging discrimination to

produce "specially qualified market

statistics” in order to show disparities.

Hazelwood School District Vv. United

States, 433 U.S. 299, 308 (1976); EEOC v.

Radiator Specialty Company, 610 F.2d 178,

185 (4th Cir. 1979). But here again the

plaintiffs have failed to show the number

of qualified and available blacks in the

labor pool or relevant labor market from

which defendants could fill these state

level positions. Defendants, on the other

nand, have shown that the labor pool from

which defendants recruit is sharply

limited for that

- 104a -

... blacks are greatly underrepre-

sented among the graduates with

master's or PhD's in agriculture and

home economics. For the academic

years 1975-76, 1976-77 and 1977-78

blacks represented from only 1.4% to

2.4% of the total recipients of

master's degrees and from 1.2% to

2.1% of the PhD's in agriculture and

natural resources in the United

States. A total of only 43 blacks

received PhD's in agriculture in the

United States during these three

years. None were awarded in North

Carolina. In the field of home

economics, for the above’ three

years, blacks received from 4.7% to

5.1% of the total number of master's

degrees awarded in the U.S. and from

8.6% to 11.9% of the PhD's.

However, only a total of 20 PhD's

were awarded in home economics to

blacks during this entire three-year

period, with only one awarded in

North Carolina. In North Carolina

the percentage of blacks receiving

master's degrees in home economics

ranged from 8.6% to 11.9% of the

total master's degrees awarded in

this field for the period 1975-78.

Defendants' Proposed Finding of Fact. No.

216.

the

In addition to their failure to show

number of qualified and available

blacks in the relevant labor market the

- 105a -

plaintiffs have failed to produce any

evidence as to how many gQualified blacks

have applied but have not been accepted

for employment by the Extension Service in

a state level position.

The procedures employed by the uni-

versity and the Extension Service to fill

State level positions are designed to

obtain the best qualified persons and at

the same time to comply with all employ-

ment discrimination laws. The employment

and selection system is governed by the

university's affirmative action officer,

Dr. Lawrence M. Clark, who is black. A

search committee is then formed which

makes a nationwide search for interested

and qualified persons. Position announce-

ments are sent to all 1862 and 1890 land

grant institutions and also to nationally-

based journals in the subject area in the

particular vacancy. After interviews with

- 106a -

interested applicants have been con-

ducted decision is made to offer the

position to the candidate thought to be

best qualified, but before he or she is

offered employment, the approval of the

university affirmative action officer is

OT Ti

The admittedly valid procedures

employed by defendants in filling state

level positions having been fairly and

uniformly followed, in the absence of any

evidence tending to show bias or prejudice

in their implementation, it follows that

plaintiffs have failed to establish a

prima facie case of discrimination in

filling these positions,

These procedures are set forth in more

detail in defendants’ proposed findings of

fact Nos. 229-237 inclusive to which

plaintiffs have not objected, and the

court adopts them as its own and incorpo-

rates them herein by reference.

;

- 107a -

III. Salaries.

In the language of Title VII the

plaintiffs have alleged that the Extension

Service had denied blacks “the same

compensation, terms, conditions and

Privileges of employment as Provided to

whites," but the Plaintiffs' evidence has

concentrated only on alleged discrepancies

in salaries between blacks and whites. The

establishment of this Claim continues to

be a Primary goal of both the named

Plaintiffs and the government. With

respect to "terms," other than salaries,

"conditions" and "privileges" of employ-

ment, suffice it to Say that such meager

evidence was was Offered either failed to

establish a prima facie case or was

conclusively rebutted by defendants, and

For example, in an apparent effort to show

discrimination in Providing office

facilities, Geraldine Ray, a black named

Plaintiff, testified that she felt

"stigmatized" because she was provided

- 108a -

the court will therefore limit its

discussion to the matter of the alleged

with an old desk and that when new

carpeting was installed it did not cover

all the offices but stopped "right at her

door." Tr. p. 2325. Defendants' witness,

worth Gurkin, explained that his request

to the county commissioners to include in

his budget enough money to carpet all the

offices was cut in half and therefore only

one-half the offices were carpeted that

year; that the office of another black

agent was carpeted but his own office and

Ray's were not; and that the desk com-

plained of was a good solid wood desk

which, although it could have used some

sanding and a coat of varnish, is still in

use ten years later. Tr. P- 6332-39. The

claim was patently frivolous.

The original complaint alleged that

blacks were denied the same quality and

quantity of “in service training" as

whites. There was some evidence concern-

ing in service training but it tended to

show that opportunities afforded blacks in

this respect equaled or exceeded those

afforded whites. Significantly, plain-

tiffs have not submitted proposed findings

of fact on this and other subjects related

to "conditions and privileges” of employ-

ment and with respect to the defendants'

proposed findings (207-210 inclusive)

plaintiffs have simply responed under the

"red, blue, yellow" system of marking

opposing parties’ proposed findings used

in this case that the findings are not

denied but are irrelevant.

- 109a -

discriminatory pay practices of the

defendants.

The Extension Service has established

a minimum entry level Salary for all new

professional employees at the county level

who hold a bachelor's degree and have no

prior experience. A Salary differential

is paid those having a master's degree at

the time of employment. On occasion it

has been necessary to pay more than the

entry level salary in order to employ

persons to fill positions requiring

Special skills. Exceptions are also made

in the case of new employees whose prior

experience in teaching or business has

better equipped them to assume responsi-

bilities of their positions more guickly.

Because of inflation Starting sala-

ties have increased rapidly in recent

years, and this in turn has made it

necessary to adjust the salaries of those

ao ee oe tnge it

- 110a -

already employed in order to maintain a

proper relationship between the salaries

of beginners an those who have acquired

some tenure. In order to make such

adjustments is is sometimes necessary to

use funds intended for normal merit salary

increases.

As previously stated, funds for the

payment of salaries derive from three

sources, the counties, the state and the

federal government. The financial ability

of counties to support the local extension

program and the Salaries of its agents

yaries considerably between the lower

income counties and higher income counties

and between the counties in the western,

Piedmont and eastern sections of the

state. The percentage of total salaries

of county extension employees that is

contributed by the counties varies from

Repeat

Pal Pit te”

- lila -

county to county, ranging from a high of

597% in Forsyth County to 18% in Camden

County.

From time to time a given county may

grant across-the-board pay increases to

its employees which may also be in the

form of a specified percentage of the

county portion of the salary or a desig-

nated amount for each employee. Some

counties may not grant such increases at

the same time. There is no fixed proce-

dure between the counties for the granting

of pay increases among counties.

Each year about ten of the counties

also make available to the Extension

Service funds to provide merit Salary

increases. In some cases these increases

are designated by the county commissioners

as to the amount and which agents shall

receive them. In other cases the county

extension chairman will make these merit

- 112a -

increase decisions based on job perform-

ance of the agent for the previous twelve

RR The evaluation of the agent's

performance forms the basis for determina-

tion of his eligibility for a merit salary

increase and the size of that increase, if

any.

Funds furnished by the state to pay

salary increases are usually provided on a

percentage or flat sum basis across the

board to all University employees which

include employees of the Extension

Service. There is no evidence that such

salary increases have not been granted by

the Extension Service in accordance with

the state's authorization and without

30 The job performance evaluation system used

by the Extension Service is described in

detail in defendants' proposed findings of

fact Nos. 104-144 inclusive previously

adopted by the Court. See Footnote 22.

aS a Mes

a mT.

- l1l3a -

discrimination. The same is true with

respect to across-the-board increases

granted by the counties.

In some years the state appropriates

funds to be used to provide employees with

"merit" salary increases. These funds,

usually somewhat less than the cost-of-

living funds, are intended to be used to

reward those employees with superior job

performance records as documented in the

performance evaluation system previously

referred to. In addition to the Perform-

ance Review Guide this system includes

"quartile" rankings. The appraisal of the

31 Under the quartile system each agent is

placed in one of four quartile groups by

the district extension chairman, and the

determination of an agent's quartile

ranking for each particular year is based

upon his performance during the preceding

performance evaluation period. In

determining an agent's quartile rank for a

particular year his performance is

measured against his goals and objectives

for the year as set forth in the individ-

ual plan of work and how well the agent

performs the duties and functions called

- 114a -

employee's performance by the county

chairman, the district and state program

leaders and specialists and the district

extension chairman are also taken into

account.

Based on the employee's job perform-

ance as thus evaluated the district

exstension chairman then makes an actual

merit salary recommendation for each

individual agent and county chairman

within his or her district, to be paid

from funds made available from the merit

funds allocated by the assistant director

for county operations to the district.

Each district extension chairman is

advised of the total amount of merit money

available for his or her district, but

forin the job description. Agents do not

compete against other agents' performance

to achieve a quartile ranking but compete

only against themselves and their per form-

ance is measured on an individual basis.

Agents are not ranked within a quartile.

- 115a -

before the allocation of merit money

begins the district extension chairman

must first make salary adjustments to

reflect any increases by the Extension

Service during the previous performance

period in the entry level salary for

positions of assistant, associate and full

eniiae

These procedures for fixing salaries

and awarding merit increases are not in

serious dispute, but plaintiffs Seriously

contend that through the years they have

been discriminatorily implemented with the

For instance, in 1981 the increase in

Starting salaries required an adjustment

in present employees' salaries in the

amount of approximately $70,000. After

this adjustment is made, the district

extension chairman then makes a lump sum

allocation of dollars to each agent within

the first three quartiles. An agent in

the fourth quartile Ordinarily will not

receive a merit increase. However such

agent whose salary was below the entry

level salary for his or her title will

have received the adjustment made prior to

the merit salary allocation process.

- 116a -

result that blacks have been paid substan-

tially lesser salaries than have whites

and that such discrimination has continued

to this day. To prove this charge

plaintiffs have resorted to statistical

evidence and evidence of specific in-

stances of alleged discrimination involv-

ing individuals. For the reasons to

follow the court finds that the plaintiffs

have failed to establish this claim by a

preponderance of the evidence.

(i) The Statistical Evidence

Plaintiffs offered the testimony of

Dr. Charles Mann, an admitted expert

Statistician with extensive experience in

employment discrimination litigation.

Using the now familar multiple regression

technique, Dr. Mann conducted a multiple

See Baldus and Cole, Statistical Proof of

Discrimination, pp. 239, et seq. (1980);

Article, pexond the Prima Facie Case in

loyment Discrimination Law: Statistical

Proof and Rebuttal, 569 Harvard L. R. 309

- 117a -

regression analysis for each of the years

1974, 1975 and 1981 based on data fur-

nished the United States Department of

Agriculture by the Extension Service with

the following results.

Por the year 1974 he included 540

county level professionals. Controlling

for euieeh” we education he found the

regression coefficient for race, that is,

the excess of the salary of a white over

the salary of a black, to be $1,112.00,

(1975); and Fisher, "Multiple Regression

in Legal Proceedings,” 80 Columbia L. R.

702 (1980).

In Dr. Mann's 1974 and 1975 regression

analyses tenure was defined as_ the

difference between the date of the person-

nel file and the date when the indivi-

dual's current appointment with the

Extension Service began without a break in

service. His 1981 regression analyses

used the defendants' definition of tenure,

that is, the difference between the date

of the personnel file and the date when

the individual's current appointment with

the Extension Service began without a

break in service, plus years of prior

federal service, and added one year.

- 118a -

and he testified that this was statistic-

ally significant. When sex and program

areas were added as independent variables

the race effect exceeded $800 and remained

statistically significant. When job title

was added to tenure and education the race

effect dropped to between $257 and $337

depending on the other variables included,

but the results again remained statistic-

ally significant.

For the year 1975 Dr. Mann included

569 county level professionals. Control-

ling for tenure and education the regres-

sion coefficient for race was $1,207, a

statistically significant effect. When sex

and program area were added as independent

variables the race effect exceeded $880

and remained statistically significant.

When job title was added to tenure and

- 119a -

education the race effect dropped to $312

to $395 depending on the other variable

included.

For the year 1981 he included 560

county level professionals. Controlling

for tenure and education the coefficient

for race was $970 which was statistically

Significant. When sex and program area

were added as independent variables the

race effect exceeded $560 and remained

statistically significant.

In running his regressions Dr. Mann,

of course, included only those variables

which he was requested by his employers,

the plaintiffs, to include. Consequently

he included all county chairmen in all of

his regressions and omitted job title as a

variable in those regressions on which

plaintiffs principally rely. Other vari-

ables which defendants contend impair the

validity of Dr. Mann's regression will be

- 120a -

discussed later. In answer to a question

by the court he conceded that the inclu-

sion of other variables could have

affected the results. Tr. pp. 435-436.

(ii) Comparison of Individuals

It is undisputed that prior

to the merger of the white and black

branches of the Extension Service in 1965

salaries of professionals in the black

branch on:-the average were less than those

of their counterparts in the white branch.

Following the merger this disparity was

recognized and steps were taken to begin

its elimination prior to the amendments to

Title VII which brought the Extension

Service under its coverage in 1972.

Nevertheless the government has offered

35 Dr. Mann is a highly qualified statisti-

cian, but he disclaimed any expertise

concerning factors that go into fixing

Salaries in the Extension Service.

Plaintiffs called no expert to supply the

information which Mann was unable to give.

- 12la -

evidence tending to show that as of

January, 1973, the salaries of numerous

black agents throughout the System were

less than those of white agents in the

same counties who were in comparable or

lower positions and who had comparable or

less tenure (GX 102). The government has

also cited defendants' own exhibit (DX 48)

as showing some salary disparities between

blacks and whites as late as October,

1974,

The Extension Service's problem of

bringing black and white salaries into

line has been similar to that which faced

most business enterprises with a prior

history of racial discrimination following

the passage of the Civil RightsAct of

1964, Just as it had been found in the

area of education that there is no such

thing as instant integration, it was soon

found in the field of business's and

- 122a -

industry that there is no such thing as

instant quality in employment. Without

risking serious disruption of a business

by prohivitively costly budgetary aitera-

tions and a possible practice of wholesale

reverse discrimination it was soon

recognized (though not always by the

courts) that the adjustments mandated by

the law simply could not be made over-

night. The dilemma of the Extension

Service was further compounded by the fact

that its operating funds came from three

separate political entities each of which

retains a voice in all major employment

decisions.

To recognize these problems, however,

is not to excuse non-compliance with the

law. The court has therefore carefully

reviewed plaintiffs' evidence showing

individual salary comparisons and as 4a

result has concluded that while on its

- 123a -

face and evidence unquestionably estab-

lishes salary disparities, when viewed in

the light of defendants' explanatory

evidence it fails to prove discrimina-

tion.

The exhibits referred to have not

been found persuasive for several reasons.

To begin with the January, 1973 figures

shown on GX 102 are only selected examples

taken from across the State almost ten

years ago, and in most instances the

differences in Pay between the black

agents and white agents is very small.

There is nothing to show the areas of

responsibility of the agents compared and

more importantly, there is no way to make

a comparison between the Job performances

of the agents. The information contained

in DX 48 is Similarly inconclusive. The

lack of probative force of such evidence

- 124a -

becomes more readily apparent when the

cases of three specific individuals cited

by plaintiffs are considered.

Martha B. Thomas, a named plaintiff

black, was employed as a home economist by

the Extension Service in 1970. She had

come to North Carolina from Mississippi

where she had gained some experience in

the Mississippi Extension Service.

Although there is nothing to indicate that

she was not employed at the then applic-

able entry level salary, she complains

that the salary of a white home economics

agent was $500 more than hers at that

time. In rebuttal defendants showed that

the white agent was already an associate

agent at the time Thomas was first getting

started as an assistant agent. Another

white home economics agent shown by

plaintiffs to have had a higher salary

than Thomas was shown by defendants to

o> . 4 st ” ata, ath bee ate eS

Lem, |. »

- 125a -

have been a full agent with an extensive

backlog of experience both as an extension

agent and as a home economics teacher in

the public. schools. Finally, Thomas

received a reprimand for her consistent

failure after warnings to make certain

required reports on time. She was told

that the reprimand would go into her

personnel record; that it would have an

adverse effect on her future salary

possibilities; and that she had a right to

appeal the decision. She did not do so.

Johnny Jones, a black, was employed

by the Extension Service in Greene County

in February, 1971, with several areas of

responsibility including 4-H. Because of

&@ $100 mix-up" in his Salary, which was

corrected at mid-year, he joined as a

Plaintiff in this action in November of

that year. In July, 1972, he was trans-

ferred to Craven County, promoted to

- 126a -

associate agent and given a salary raise.

In early 1973 he transferred to Durham

county where he worked exclusively in

"urban 4-H" work under a black county

chairman. The extension Service portion

of his pay in Durham County came from

"1890 wn In 1978 for reasons not

quite clear unless it was to return to the

area of his birthplace and _ longtime

residence, Jones applied for and was given

a transfer to Leonoir county to work as an

agricultural agent. Jones testified that

3@ punds made available by Congress especi-

ally for the benefit of balcks to be

administered through the 1890 land grant

colleges, inthis case A&T University at

Greensboro, North Carolina.

37 After entering the employment of the

Extension Service Jones pursued a course

of graduate studies at NCSU which ultim-

ately led to a master's degree in adult

and community education in 1977. Had he

remained in urban 4-H work this additional

education would doubtless had been of

considerable value to him and the Exten-

sion Service. Its value in this work as

an agricultural agent would appear to be

minimal, and in any event it does not

- 127a -

he had “buried the hatchet as far as

Salary was concerned," but that it

"resurfaced" when, following a recess in

the trial during which he was shown by a

government attorney that a white agent in

Lenoir county, one Jimmy Pollock, was

being paid about $2,000 per year more than

he, Jones testified "I just feel like I

may be underpaid."

With respect to Jones the evidence of

the defendants showed that while he was a

very competent agent, particularly in his

field of 4-H work, Agent Pollock with whom

he was sought to be compared, was an

exceptionally well qualified livestock

agent with a rare expertise in swine; that

Pollock had been lured away from his

employment with the Extension Service by

Support a claim of disparate salary

treatment when his salary is compared to

that of a competent, experienced ag ricul-

tural agent without a master's degree.

- 128a -

a higher salary with the North Carolina

department of Agriculture where he

continued to add to his knowledge and

expertise over a period of about five

years; that because of Lenoir County's

position of importance both in the state

and nation in livestock production it was

necessary to have an agent of Pollock's

competence to carry on the livestock

program in that county; and that in order

to get Pollock back it was necessary for

the Extension Service to match the salary

which he was paid by the Department of

Agriculture. From all the evidence there

arises absolutely no inference that race

had anything at all to do with the

differential between the salaries of Jones

and Pollock.

Wanda Wilkins, a non-plaintiff black

woman who joined the Extension Service in

Greene County in 1974, testified for the

- 129a -

plaintiffs that she would make $400 less

in 1982 than a white woman agent with

comparable tenure; that she had had a

master's degree since 1980 while the white

woman has only a bachelor's degree; and

that she has concluded that her failure to

get promotions and raises has been because

of her race.

The defendants on the other hand

showed that over the five-year period

during which Wilkins was studying for her

master's degree she was commuting to

Raleigh from Greene Cornty - roughly a one

an one-half to two-hour drive each way;

that she was given a total of eighty-five

days off in which to pursue her graduate

studies but nevertheless her extension

programs suffered during the time she was

commuting to graduate school and still

trying to keep up with her work; that her

performance record, particularly in the

- 130a -

field of 4-H which constituted eighty per

cent of her work, was far short of what

was expected of her; and that her salary

simply reflected her poor ae...

It is perhaps significant that she has

never sought to intervene in this action.

In summary, the statistical evidence

of plaintiffs standing alone and without

further explanation probably suffices to

make a prima facie showing of discrimina-

tion in salaries; the corroboration to be

found in the comparison of salaries of

individuals in the exhibits is at best

38 It appeared that in 1980 out of a poten-

tial of over 4,000 children Wilkins only

had 124 involved in 4-H, down from 213 in

1973, the year before she went to work,

360 in 1977 and 487 in 1978; that she had

nine clubs organized whereas the average

for the 4-H agents in the state is thirty

clubs and 400 members; that her average

day participation in district activity was

five whereas the counties average twelve;

and that participation by her children in

the 4-H Congress never exceeded three

while the average for other agents was

ten.

- 13la -

meager; and the evidence in the three

individual cases proposed by plaintiffs as

representative has been completely

rebutted.

Turning then to defendants' evidence

on the question of salaries we begin by

considering the alleged defects in the

plaintiffs' statistical evidence. It will

be remembered that Dr. Mann's regression

analysis, which forms the centerpiece of

plaintiffs’ salary discrimination claims,

in addition to race contained only two

independent variables, tenure and educa-

tion. Defendants contend, and the court

is constrained to agree, that the omission

of other equally if not more important

variables so flaws the results of the

regression that it cannot be accepted as

preponderant proof of plaintiffs' claims.

Statistics are ... competent in

prov- ing employment discrimina-

tion. We caution only that

Statistics are not irrefutable;

- 132a -

they come in infinite variety

and, like any other kind of

evidence, they may be rebutted.

In short, their usefulness

depends on all the surrounding

facts and circumstances.

Teamsters, 431 U.S. 324 at 339-40.

It has been said that multiple re-

gression models never conclusively prove

anything. They merely describe statisti-

cal relationships. While a negligible

coefficient for race may warrant the

inference that race is not an important

factor to the employer in fixing salaries,

the converse is not necessarily true for

legitimate qualification variables may

have been omitted from the model. Baldus-

Cole, supra, at p. 243. Here the defen-

dants list numerous variables omitted from

plaintiffs' regression which sharply limit

if not indeed destroy its probative force.

- 133a <-

More specifically defendants point to the

failure

include

of plaintiffs' regression to

(1) Performance of agents

measured against the agents'

plan of work;

(2) The variations in

Salaries created by across the

board state raises with the

different percentage of state

contributions in each county;

(3) The across the board

increases in agent salaries by

some counties and not in others;

(4) The merit raises

provided by the state;

(5S) The merit raises

provided for by the counties in

which Extension Service per-

sonnel have no input;

(6) The merit raises

provided by the counties with

limited or full participation in

the merit recommendation by

Extension Service personnel;

(7) The range in merit

Salary increases provided by the

counties (0 - 12% in 1981);

(8) Prior and relevant

experience; and

- 134a -

(9) Variations in salary

due to market demands both at

time of hire and later for

agents with skills in short

supply or prior experience.

It will be observed that all these

variables are difficult if not impossible

to measure and quantify. Thus neither

side undertook to incorporate them in

their regressions. Yet it is indisputable

that following entry level the single most

important factor in determining salaries

for the Extension Service professional

staff is job performance. As previously

stated, each employee is evaluated

annually on the basis of his or her job

performance measured against a standard of

acceptable performance. The agent par-

ticipates in this evaluation process and

the results are reflected in salary

changes such as merit raises made there-

after. But even so, other factors over

- 135a -

which neither the Extension Service nor

the agent has any control are constantly

influencing salary changes. Examples of

Such factors are the differences in the

state contributions to salaries in each

county, the differences in across-the-

board increases in agent salaries and

merit raises in some counties and not in

others and market forces. Even among

The influence of market forces on Salary

has been illustrated previously in the

case of Agent Pollock. At the time he

was rehired by the Extension Service

livestock agents were in short supply and

it was necessary to pay more to hire and

retain him that it would have been to hire

and retain other more plentiful agency

such as home economists and 4-G agents.

"We had a vacancy in a

dairy agent positionback within

the last twelve months. That

position stayed vacant for

almost a year for the Simple

reason that we could not Find a

dairy-trainedagent at the price

we were able to pay. We have a

Standard starting salary, andwe

simply could not go into the

market and hire a dairy agent

for that price. ... Over the

years, certain areas seem to be

- 136a -

agents with the same program responsibili-

ties the salarydemands may differ substan-

tially from county to county. For

instance, an agent with tobacco responsi-

bility in a large tobacco-growing county

will command a larger salary than an agent

with the same responsibility in a county

where tobacco is not the major crop.

A principal criticism of plaintiffs’

statistics is based on the fact that the

raw data on which they were based includes

the salaries of county chairmen. Although

the selection process, as we have seen, is

not discriminatory, a relatively small

in short supply and therefore

the demand is great and the

starting salaries are high. A

few years we were in almost the

same situation with horticul-

tural agents. But not, there is

a fairly plentiful supply of

horticultural graduates avail-

able. Therefore we generally

can find what we are looking for

in that area. Blalock, Tr. pp.

3457-8.

- 137a -

number of blacks have applied for these

positions and the result is that ninety-

four of the one hundred county chairman

positions are held by whites. Because

these top county positions go to the

highest qualified agents who possess

administrative and leadership qualifica-

tions in addition to their professional

expertise, they naturally command the

highest salaries at the county level - an

average of at least $4,000 per year more

than the average salaries of ali other

agents. It is immediately apparent,

therefore, that when the salaries of these

ninety-four white agents are included with

those of the few hundred other agents in

the plaintiffs' regression, the results

are going to be distorted. Plaintiffs,

The size of the distortion depends upon

whose salary data figures are accepted as

accurate. The parties are at odds as to

the correctness of the salary data used by

Dr. Mann in his regression. Since computer

- 138a -

while admitting through Dr. Mann that it

is proper to include job titles (here

assistant agent, associate agent and full

agent) in a salary regression if it does

not “obscure race effect," (Tr. Pp-

369-70), contend that the evidence on

discrimination in promotions in this case

is "overwhelming" and therefore job titles

were properly excluded in Dr. Mann's

tapes were not available for the years

1974 and 1975 Dr. Mann used tapes for

later years together with other personnel

records furnished him by the United States

Department of Agriculture to work backward

and create tapes for those years. While

the regression based on this reconstruc~

tion showed 569 salaries, the defendants

were able to find only 318 salaries

recorded in the column Dr.Mann identified

as having been the source of the salary

data included in his regression. If the

defendants' figures are accepted as

correct, it thus appears that almost

one-third of the salaries included in the

Mann regression were those of county

chairmen. Since the burden was on the

plaintiffs to establish the accuracy of

the data to which their statistics were

based, the court is constrained to accept

defendants' figures as being more accurate

in this instance.

iin

- 139a -

regression, For the reasons previously

Stated the court has rejected this

contention, and it now holds that job

titles were improperly omitted from

plaintiffs' regression and the salaries of

county chairmen were improperly included

therein. Agarwal _v. Arthur G. McKee &

Company, 664 F.2d 8903 (9th Cir. 1981),

affirming Agarwal v. McKee, 19 FEP Cases

5903 (N.D. Cal. 1977); Wilkins v. Univer-

Sity of Houston, 656 F.2d 388 (Sth Cir.

1981), rehearing denied, 662 F.2d 1156

(Sth Cir. 1981); Presseisen v. Swarthmore

College, 42 F. Supp. 593 (E.D. Pa. 1977),

aff'd, 582 F.2d 1275 (3d Cir. 1978);

Fisher, Supra, 80 Columbia L. R. 702, 721

n.32 (1980).

Dr. Francis Giesbrecht, a qualified

expert in the field of statistics,

prepared several multiple regression

analyses for defendants. Using the same

- 140a -

statistical methodology employed by Dr.

Mann and most of the same data, when he

controlled for the same independent

variables as did Dr. Mann the results were

not significantly different. When the

county chairmen were omitted the coeffi-

cient for race dropped sharply, and when

quartile rankings were added to tenure,

education and job title the race effect

was reduced to $142 in 1981. The use of

these variables accounted for seventy~-

seven per cent of the total salary

variations between blacks and whites. Dr.

Geisbrecht testified that “it is a

subjective decision as to whether that

explains enough of it or not" and that he

would expect that the addition of other

factors such as variations in county

salaries and work in different crops would

lead to some changes. Tr. p. 6210.

- 141la -

After considering the great mass of

Statistical evidence produced by both

sides about the only firm conclusions the

court was able to reach were that when the

only independent variables used in a

salary regression were tenure and educa-

tion the coefficient for race was signifi-

cant; that individual salaries are

affected by a large number of factors;

that when other valid factors were

introduced the race effect diminished but

did not disappear; and that there are

several unmeasured factors, notably job

performance, the absence of which seri-

ously flaws the results.

Multiple regression analysis is a

relatively sophisticated means of

determining the effects that any

number of different factors have on a

particular variable; while it may be

the best, if not the only, means of

proving classwide discrimination with

respect to compensation in a case

such as this - where a number of

factors operate Simultaneously to

influence salary - it is subject to

misuse and thus must be employed with

- 142a -

great care. Ideally, when a multiple

regression analysis is used, it will

be the subject of expert testimony

and knowledgeable cross examination

from both sides. In this manner, the

validity of the model and the

significance of its results will be

fully developed at trial, allowing

the trial judge to make an informed

decision as to the probative value of

the analysis. In the instant case,

the statistical evidence associated

witn the multiple regression analysis

is inconclusive, raising more

questions than it answers.

Wilkins v. University of Houston, 654 F.2d

388, 402-3 (Sth Cir. 1981), a case

strongly relied on by defendants. On

petition to rehear the case and sugges-

tions for rehearing en banc the plaintiffs

were able to show that defendant's expert

statistician had given testimony (appar-

ently through inadvertence) to the effect

that his regression analysis model without

a sex variable had produced a table

showing that men and women were treated

equally with regard to pay when in fact he

- 143a -

was using another regression analysis

which did contain a sex variable. While

the point was held to cast doubt and

render incorrect statements in the court's

Original opinion which relied on this

erroneous’ testimony, in denying the

petition the court said:

Nonetheless, we still adhere to

our original conclusion and

affirm the district court on the

class plaintiffs' faculty com-

pensation claim.

The thrust of our Original

Opinion on faculty compensation

remains unchanged; Plaintiffs

have failed to demonstrate the

validity of the multiple

regression model as a whole. ...

Since multiple reg ression

analysis is subject to misuse,

courts cannot be expected to

accept at a face value conclu-

Sions derived from such a model

absent expert testimony concern-

ing the validity of the model

SGGEEEe ccc (W]hen the class

Plaintiffs purported to use the

university's statistics for

their own purposes, they did not

fulfill their burden of showing

that the multiple regression

analysis model employed was

valid, Without guidance, this

court cannot be expected to

- 144a -

resolve in the class plaintiffs'

favor fundamental questions

relating to the model itself.

(Pootnotes omitted. )

Wilkins v. University of Houston, 662 F.2d

1156, 1157 (Sth Cir. 1981).

In an attempt to explain and distin-

guish Wilkins the plaintiffs filed a

supplemental brief in which they point to

the court's emphasis on “the need for

expert testimony to enable the trial court

to assess the validity of the regression

model and the significance of the re-

sults." Plaintiffs assert that their

expert, Dr. Mann, testified that the

results of his regression were "meaning ful

and statistically significant,” and that

using the same methodology defendants'

expert obtained the same results. The

court accepts this testimony at face value

so far as it goes, but the difficulty with

plaintiffs' argument is that the statisti-

- 145a -

cians disclaimed any expertise in the area

of the factors that go into determining

Extension Service salaries, and the court

was left with only the testimony of

Extension Service professionals to supply

this information (see Footnote 35, supra).

At the same time both statisticians

conceded that if additional variables (not

tainted by race) were included in the

regressions, the results would be substan-

tially altered. Implicit in the testimony

of Dr. Mann as to why he included county

chairmen but not job titles in his

regression was that he felt (or perhaps

had been instructed) that these variables

were tainted by race. Certainly it is

plaintiffs’ position that they were so

tainted, but as stated before the court

has rejected this contention.

" It is true, as plaintiffs assert, that

defendants' expert, Dr. Giesbrecht, did

not question Dr. Mann's methodology and

- 146a -

And so, like the court in Wilkins,

this court is left without expert testi-

mony concerning the validity of the

regression model itself, and without such

guidance the court cannot be expected to

resolve fundamental questions relating to

the model in plaintiffs’ favor.

The defendants offered other evidence

tending to negate the inferences raised by

the statistical evidence. In 1976 when

the salaries of all agents except county

chairmen were compared the average salary

of white agents exceeded that of black

agents by $130, but the average tenure of

the white agents exceeded that of the

black agents by 1.5 years. In that same

results, but Dr. Giesbrecht's own ev idence

went considerably further. Dr.Mann came

back to court to hear Dr. Giesbrecht

testify, and the court considered it

significant that he was not recalled to

rebut any Of Dr. Giesbrecht's testimony.

The inference is that he did not disagree

with it.

- 147a -

year the salaries of black agents with a

bachelor's degree exceeded that of white

agents with the same degree by $121

although the average tenure of the white

agents exceeded that of the black agents

by 1.6 years. In 1976 blacks with

master's degrees averaged $409 less in

Salary than whites with master's degrees

and 1.5 years less tenure. The figures

for 1979, 1980 and 1981 showed comparable

results with the blacks with bachelor's

degrees and blacks with master's degrees

exceeding the average salaries of their

white counterparts in five instances out

of six. The fact that the average

Salaries of all white agents when compared

with all black agents is slightly higher

was accounted for by the fact that a far

greater percentage of white agents than

- 148a -

black agents have master's degrees. The

figures are contained in DX 201-205

inclusive.

Finally, the defendants offered a

series of graphs sometimes referred to as

"scattergrams" showing the relationship of

salary to tenure of black and white agents

at the various county job levels for the

years covered by the salary regressions.

DX 256, et seq.? Giesbrecht, Tr. pp. 6180,

et seq. Using the data from defendants’

salary regression when plotted on these

graphs the salaries of blacks and whites

were displayed in a completely random

distribution.

42 Each side also introduced exhibits showing

that certain individuals made more or less

than certain other similarly situated

individuals. Because, as has been

previously shown, job performance and

unmeasurable factors go into practically

all salary decisions the court is unable

to assign any significant probative force

to these exhibits.

- 149a -

Having thoroughly considered all of

the evidence bearing on the Salary issue

and the contentions of the parties based

thereon, the court has concluded that it

if be assumed that plaintiffs made out a

prima facie case on this issue, it has

Only been by virtue of the plaintiffs'

Statistical evidence based on the multiple

regressions of Dr. Mann; that because of

their failure to include many of the vital

factors necessary to be considered in

fixing salaries the probative force of

these statistics has been so Substantially

undermined that they cannot sustain a

finding of purposeful discrimination in

Salaries under any of the statutes on

which the action is based; that the

Faulty statistics do not create a prima

facie case. Allen v. Prince George's

Count 538 F. Supp. 833, 849-55 (D. Ma.

13874 (in an action against a public

employer our same Dr. Charles Mann's

regression analysis was rejected becuse it

did not exclude pre-1972 hires). Even

- 150a -

defendants have not only “articulated”

plausible reasons for the seeming salary

disparities, Texas Department of Community

Affairs v. Burdine, 450 U.S. 248 (1981),

but have satisfied the court of the

validity of their explanations; and that

the plaintiffs have not shown that

defendants‘ reasons were ameieneaei.’™ It

follows that plainci’ts have failed to

establish by a preponderance of the

evidence that the Extension Service has

discriminated against black employees in

the matter of salaries.

where the statistical compilation result

in “lopsided ratios," they are not

conclusive proof of discriminatory

employment practices. EEOC v. United

ae inia Bank/Seaboa National, 555 F.2d

Ne Le -

44 "Statistical evidence of the existence of

de facto discrimination is not determina-

tive of the pretext issue." arwal v.

McKee & Company, 644 F.2d 802, B06 (oth

Cir. 1981).

- 15la -

IV. Segregating Blacks In Work

Assignment

Prior to the merger of the two

Oranches of the Extension Service in 1965

black agents worked Only with black

clientele and white agents worked only

with whites. There is no substantial

evidence that this practice continued

after the merger. In those instances in

which black agents continued to Spend a

disproportionate amount of their time

working with blacks there is no evidence

that this has not been a matter of choice

with the agent instead of any requirement

On the part of the Extension Service.

Rather, the evidence showed that the

assignment of agents was largely the

result of numerous Sectors Such as

employee preferences, job guslifications

and conditions affecting job availability.

Such evidence will not Support a finding

- 152a -

that blacks have been intentionally

segregated in their work assignments for

racial reasons. Hilton v. Wyman Gordon

Company, 624 F.2d 379 (1st Cir. 1980).

v. Pailing to Sstablish Valid Tests.

The allegation is that the Extension

Service has failed and refused “to

establish valid qualifications, tests,

selection standards and procedures which

are sufficiently objective to prevent

continuing discrimination in hiring and

promotion." It is at once apparent that

the allegation assumes 4 fact which the

S If this has ever been a problem since the

merger, in view of the rapid decline in

the black farmer population it could not

remain one long. According to the United

States Bureau of the Census there are now

only 57,271 farms currently operated by

blacks in the United States, down from

926,000 in 1920. The current rate of

decline of black-operated farms is two and

one-half times the rate of decline of

white-operated farms. Report, U.S.

Commission on Civil Rights, The Decline of

Black Farming in America, February,

- 153a -

court has failed to find from a preponder-

ance of the evidence, that is, that the

defendants have discriminated in their

hiring and promotion procedures. These

procedures have been previously described

in detail in the sections on hiring (Page

20, et seg .) and promotion (pages 23, et

seg.) and will not be repeated here.

Since all professional positions in

the Extension Service are also faculty

positions at NCSU ard all require college

degrees, it is ¢€ (‘ficult to understand

just what additional tests Plaintiffs

contend the Extension Service should

administer in connection with its hiring

practices.

Plaintiffs produced no evidence of any

person claiming to have been wrong fully

denied employment by the Extension Service

On account of race, and no such person

joined as a plaintiff in the action.

- 154a -

The use of the performance review

guide in connection with promotions has

been referred to previously (see Footnote

22). Chief architect of this performance

evaluation system was Dr. Edgar J. Boone,

an assistant director of the Extension

Service and head of the Department of

Adult and Community College Education at

NCSU. He had had over twenty-five years’

experience in Extension Service work, the

last nineteen of which have been in North

Carolina. He has been engaged principally

in program analysis and personnel develop-

ment. His primary responsibility with the

Extension Service is in the staff develop-

ment program. He is a nationally recog-

nized authority, and the court was

impressed with his expertise in this

field.

- 155a -

Following extensive work during the

1960's in developing a programming guide

and job descriptions for Extension Service

agents work was begun under Dr. Boone in

1970 to develop a method of appraising the

performance of Extension Service workers.

Separate biracial committees were formed

for this purpose, and over a period of two

years there were developed two performance

review guides, one for county agents (Dx

237A) and one for county chairmen (Dx

237B). They are used as counseling and

diagnostic tools, and while their primary

Purposes are to enhance job Satisfaction

and professional competence, to assist

agents in recognizing areas where improve-

ment is needed and to assist the Extension

Service in more effectively accomplishing

its mission, they re also one of the many

things considered in fixing salaries and

awarding promotions. In the opinion of

- 156a -

Dr. Boone the performance review guide

does not discriminate against blacks, has

never been so used and does not have an

adverse impact on eattiiet A grievance

procedure is available to any employee not

satisfied with the evaluation on his or

her work by the performance review guide,

but to date no agent, black or white, has

resorted to the use of this grievance

procedure.

Prior to 1979 USDA at 4 cost of

approximately one million dollars con-

tracted with the American Institute for

Research to develop a national performance

appraisal system for the Extension

Service. A comparison of the results ofe

a7 or. Boone conceded that no studies had

been conducted to make this determination.

Significantly, although charged with the

burden of establishing discrimination, the

plaintiffs with all the United States

Department of Agriculture (USDA) resources

at their command, have apparently con-

ducted no such study either.

- 157a -

this study with that already developed in

North Carolina by the Extension Service

shows that they both undertake to measure

essentially the same elements of job

performance and that the Only material

differences between the two Systems are

that under the North Carolina System the

agent participates in self-evaluation

while under the national System he does

not; and under the national system weights

are assigned to the various job duties

while under the North Carolina system

weights are not assigned. The national

System is comparatively new and it has

Only been adopted in full in one state.

The North Carolina System, on the other

hand, was first adopted in 1972, and it

has been under’ periodic review and

revision over a period of ten years. It

has been studied by representatives of

- 158a -

forty-one states, and portions if not all

of it have been adopted in a great many

states.

The conclusion is that the perform-

ance review guides in use in North

Carolina are valid devices for measuring

the performance of Extension Service

agents; that they are not racially

discriminatory; and that plaintiffs have

fallen far short of establishing by 4a

preponderance of the evidence that the

Extension Service had failed to establish

valid qualifications, tests, selection

standards and procedures for use in its

hiring and promotion practices.

VI. Faili to Correct Present

Eftects of Past Discrimination.

The allegation is that detendants

have failed and refused "to tre appropri-

ate action to correct the present effects

of past racially discriminatory policies

- 159a -

and practices." Here again the allegation

involves the assumption that there has

been discrimination in the past’ the

effects of which continue, aé_e thesis

staunchly denied by defendants. Assuming

the correctness of the assertion, however,

nowhere in the statute law is there found

any specific requirement that an employer

must take affirmative steps to eradicate

possible continuing effects of prior

discriminatory practices. Plaintiffs have

cited no pertinent employment discrimina-

tion cases in support of their position,

but they have cited and relied on several

school desegregation cases such as Dayton

Board of Education v. Brinkman, 443 U.S.

526 (1979), for the proposition that there

is a continuing duty to dismantle uncon-

Sstitutional school systems which rule by

analogy should be applied here.

“8 Insofar as plaintiffs' claims are g rounded

- 160a -

These cases are considered distin-

guishable, however, for in all such cases

a clear and present violation of the law

is involved. By contrast, in the employ-

ment context the fact that a completed

on Title VII Hazelwood, supra, affords

some guidance.

"Racial discrimination by public

employers was not made illeg al

under Title VII until March 24,

1972. A public employer who

from that date forward made all

its employment decisions in a

wholly nondiscriminatory way

would not violate Title VII even

if it had formally maintained an

all-white work force by purpose-

fully excluding Negroes. Id.,

433 U.S. at 309. ane

This court has found that at least since

1972 the defendants have made all their

employment decisions in a wholly nondis-

criminatory manner. Even where a Title

VII violation has been found declaratory

and injunctive relief are not required

where the evidence shows that the for-

bidden employment practice has been

abandoned and the employer has indicated

the intention to comply with the law in

the future. Williams v. Yazoo Valley-

Minter City Oil Mill, inc., 469 F.Supp.

’ N.D. Miss. TOT).

- 16la -

prior discriminatory act has an impact

which continues into the Present is not

actionable under the employment discrimi-

nation laws. United States v. Evans, 431

U.S. 553, 558 (197); Farris Vv. Board of

Education, 576 F.2d 765 (8th Cir. 1978);

Wilson v. Allied Chemical Corporation, 456

F. Supp. 249 (E.D. Va. 1978); Annotation:

49 A.L.R. Fed. 693.

Notwithstanding the lack of any

Statutory or case law requirement that it

take affirmative action looking to the

elimination of any residual discrimination

of pre-Act origin the Extension Service

has taken highly commendable steps to

conform its employment Practices to the

law. It would unnecessarily prolong this

Opinion to list the actions taken, but

they are summarized in detail in defen-

dants' proposed findings of fact Nos.

- 162a -

256-267 inclusive which the court adopts

as its own and incorporates herein by

reference.

The result has been that the number

of black professionals emploved by the

Extension Service increased by 14 per cent

between 1970 and 1979, the latest date for

which figures were available, and during

this period the salaries of black profes-

sionals increased by 121.8 per cent while

salaries of whites were increasing only

114.1 per cent. Nationally the percentage

of non-white protessional Extension

Service employees is five per cent. In

North Carolina it is seventeen per cent.

49 Only South Carolina with twenty per cent

ranked higher. By contrast the USDA,

which started out as a co-defendant with

the Extension Service in this action but

wound up on the opposite side of the

versus when the Department of Justice

entered the picture, had only 7.1 per cent

black employees in all pay grades in 1979

and only 3.1 per cent in grade GS-12 and

above. The Extension Service is hampered

in its efforts to recruit even more blacks

- 163a -

The Extension Service currently employs

blacks at a rate approximately three times

the proportion they represent in the total

labor pool from which it recruits.

A violation by the defendant of any

duty, statutor, or otherwise, "to take

appropriate action to correct the present

effects of past racially discriminatory

policies and practices" has not been

established.

VII. Failure to Provide Equal

Services to Minorities.

The allegation that the defendants

have failed to provide minorities with

services equal to those provided white

persons need not detain us, for there was

no evidence at all to Support this

allegation and counsel for the government

by the fact that the USDA actively

competes with the Extension Service for

the highest qualified blacks and is able

to pay higher salaries,

- 164a -

finally conceded that the defendants are

not discriminating in the delivery of

their services to all races. Tr. pp.

3285-6672.

VIII. Pailure to Provide Services On

RK Non-Racially Segregated

Basis.

The allegation is that defendants

have failed “to provide services to 4-H

clubs, extension homemaker clubs, farmers

and other persons on 4a non-racially

segregated basis." There was no evidence

that the Extension Service provides

services to “farmers and other persons" on

a racially segregated basis, but it is not

disputed that there are many 4-H clubs and

extension homemaker clubs throughout the

system whose members are all of one race.

The services provided by the Extension

Service to such clubs of necessity are

provided on a racially seg reg ated

- 165a -

basis. The issue thus raised is subsumed

in the question of whether the existence

of such racially segregated clubs violates

federal law, and this is the subject of

the next section of this memorandum.

1X. Maintenance of Racially Segre-

gated 4-H and Extension Home-

maker Clubs.

The allegation is that defendants

have failed to maintain non-racially

seg reg ated 4-H clubs and extension

homemaker clubs. As stated, there are

many such clubs in North Carolina, and

there are many clubs to which members of

both races belong. The question is

whether or not the action of the Extension

Service in recognizing and furnishing

There is no evidence to show that the

quality of such services is any different

for the clubs of one race than for the

other. None of the named plaintiffs

representing 4-H and extension homemaker

clubs gave testimony at the trial.

- 166a -

services to the segregated clubs violates

Title VI of the Civil Rights Act of 1964,

42 U.S.C. § 2000d, which proscribes action

forbidden by the Fifth and Fourteenth

Amendments. Regents of University of

California v. Bakke, 438 U.S. 265(1978);

Taylor v. Cohen, 405 F.2d 277, 281 (4th

Cir. 1978). The Act states simply that

No person in the United States

shall, on the ground of race,

color, or national origin, be

excluded from participation in,

be denied the benefits of, or be

subjected to discrimination

under any program or activity

receiving Federal financial

assistance.

Plaintiffs contend that the members

of one-race clubs are subjected to

discrimination in violation of this

statute and the Constitution when they

receive services from the federally-funded

Extension Service; that the Extension

Service should take affirmative steps to

- 167a -

require these clubs to merge with clubs in

the same community that are of another

race; and that should these efforts fail

the Extension Service should withdraw its

services from any club which failed to

integrate. Defendants, on the other hand,

contend that membership in these clubs is

entirely voluntary; that the is no

evidence that any one of either race has

ever been excluded from membership in any

club, Or participation in, or denied

benefits of, any “a Or activity for

the Extension Service; and that Extension

Service produced no witness who testified

There was evidence of one isolated

instance in which a black child was told

by a voluntary worker from the community

that he would not be welcome as a member

in a white 4-H club. The worker was

promptly removed by the Extension Service

and the child was admitted.

- 168a -

that he or she had ever been discriminated

against in connection with the delivery of

services by the Extension manne”

The evidence adduced at the trial

fully supports each of defendants’

contentions. No witness appeared to

testify that membership in any 4-H or

extension homemaker club was anything but

voluntary; or that he or she had been

denied membership in any such club on the

basis of race; or that he or she had ever

been subjected to discrimination with

respect to any services offered by the

Extension Service. The question remains,

Defendants made a further contention that

to withdraw services from these segreg ated

clubs would be to deny such services on

the grounds of race - itself a violation

of Title VI. In view of the court's

finding that the furnishing of services to

the clubs does not violate Title VI it is

not necessary to decide this interesting

question.

The evidence shows, and plaintiffs do not

question, that for all phases of club

activity above the community club level,

- 169a -

therefore, as to whether the law requires

that these clubs be integrated. The court

has concluded that it does not.

Since the evidence has failed to show

exclusion from participation in or denial

of benefits of or discrimination in the

delivery of services, no violation of

Section 601 of Title vI, 42 U.S..C. §

2000d, has been established. we neat look

to the regulations adopted by the USDA

pursuant to the directive of Section 602

of the Act, 42 U.S.C. § 2000d-1. These

are found in 7 C.F.R. § 15.1, et seq.

Following a general prohibition of

discrimination in language tracking that

of Title VI, Section 15.3(b) of the

regulations lists some Specific discrimi-

all extension staff and volunteer club

leaders, all county-wide, district and

State meetings and training sessions are

fully integrated. In working with the

Clubs all agents work across racial lines.

- 170a -

natory actions which are prohibited. One

of these is that a recipient of federal

funding may not on the grounds of race,

color or national origin *"[sjubject an

individual to segregation or separate

treatment in any matter related to his

receipt of any service, financial aid, or

other benefit under the program."

Section 15.3(b)(6) provides:

(i) In administering a program

regarding which the recipient

has previously discriminated

against persons on the ground of

race, color, or national origin,

the recipient must take affirma-

tive action to overcome the

effects of prior discrimination.

(ii) Even in the absence of

such prior discrimination, 4

recipient in administering 4

program may take affirmative

action to overcome the effects

of conditions which resulted in

Limiting participation by

persons of a particular race,

color or national origin.

- 17la -

Section 15.3(d) lists Programs and

activities together with illustrations, by

way Of example only, of types of activi-

ties covered by the regulations. With

respect to Extension Service programs the

following are listed as prohibited

activities:

(i) Discrimination in the use

in any program or activity of

the Cooperative Extension,

demonstrations, information, and

publications offered by or

through the Cooperative Exten-

Sion Service;

(1i) Discriminationin the use

in any program or activity of

the Cooperative Extension

Service of any facility,

including offices, training

facilities, lecture halls, or

Other structures or improve-

ments; or

(iii) Discrimination

training activities, admission

tO or participation in fairs,

competitions, field days, and

encampments, conducted or