# Appendix — Bazemore v. Friday

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 478 U.S. 385

## Text

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,
v.

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

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2
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

a

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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,

- lé4a -

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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!
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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
of
is

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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7
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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

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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

3
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

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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

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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.

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the named plaintiffs have proposed four

classes of plaintiffs and one class of

6

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

(E

-D. Ark. 1981).

iz

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
8
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

9
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

5

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.

|

a

- 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

10

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

11
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

en

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;

(c) denying blacks .. the same
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

12

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.

. 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

37
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

Otero v. Mesa _ County Valley School

District, 470 F. Supp. 326 (D. Col. 1979),

aff'd on other grounds, 628 F.2d 1271

(10th Cir. 1980).

Discriminatory intent here means
actual motive; it is not a legal
presumption to be drawn from a
factual showing of something less
than actual motive.

50 U.S.L.W. at 4429-30.

"Discriminatory purpose"
intent as volition or intent as
awareness of consequences.

It implies that the decision-
maker ... selected or reaffirmed

a particular course of action at
least in part “because of," not
merely "in spite of," its
adverse effects upon an identi-
fiable group.

Personnel Administration of Massachusetts

vy. Feeney, 442 U.S. 256, 279 (1979).

Tested by these standards the evi-
dence in this case falls far short of

establishing discriminatory intent or

purpose. Substantial evidence to the

- 18la -

contrary is to be found in the fact that
the Extension Service has had a policy
that all voluntary clubs be organized
without regard to race and that each club
certify that its membership is open to all
persons regardless of race; that it
instructs its agents to encourage the
formation of new clubs without regard to
race; that it publishes its policies in
the media; that all of its club work and
functions above the local community level
are being conducted on a fully integrated
basis; that its 4-H camps are fully
integrated and have been for over ten
years; and that no person has been denied
membership in any club on account of race.
That the policies of the Extension Service
have not operated to deprive blacks of

club opportunities is evidenced by the

fact that while the population of North

Carolina is only twenty-two per cent

- 182a -

black, 4-H club membership has remained at
approximately thirty-two per cent for the
last ten years.

The simple truth is that in the mat-
ter of these one-race clubs the Extension
Service has been faced with a dilemma
which admits of no easy, readily available
solution. On the one hand it has been
under constant pressure from the govern-
ment to eliminate racially seg reg ated

clubs or terminate services to them. On

57 in a classic case or bureaucratic blud-
geoning the director of the office of
equal opportunity of the USDA in a letter
drafted March 2, 1972 to Dr. John T.
Caldwell, the Chancellor of NCSU, and a
defendant in this case along with the USDA
at that time, was told that the Extension
Service was not in compliance with Title
VI and the department's regulations, and
he was given ten days in which to comply
or have the case referred to the Depart~-
ment of Justice. Among other things
required to be done, presumably within
this ten-day period, were the following:
devise new programs for minorities,
provide services across racial lines,
desegregate all clubs, give Negro agents
first priority for consideration for all
promotions to district and county chair-

- 183a -

the other hand there is the stark reality

manships and the establishment of hiring
quotas. Attachment A to Government's
Motion to Dismiss filed January 3, 1975.
In 1971 the Extension Service had sub-
mitted to USDA “a program for equal
employment opportunity in the North
Carolina Agricultural Extension Service":
which the department had rejected because
it did not conform in all respects to a
“model"program promulgated by the depart-
ment. Dr. Caldwell, himself a native of
the deep south and one of the nation's
foremost educators, in a letter dated
October 29, 1971 to the department pointed
out logical reasons why the "model" should
not be adopted verbatim in this state and
Suggested compromise language that could
be employed without changing the import
and effect of the model. He concluded the
letter thus: “Let me assure you again of
our intent to conscientiously and vigor-
ously implement an equal employment
Opportunity program within the North
Carolina Agricultural Extension Service.
The points we have raised in no way
indicate a reluctance on our part to do
what we feel is the intent of this law. We
Go feel that the modification we are
Suggesting still meet these requirements
and will represent a program that we can
earnestly strive to follow in every aspect
and detail."

Three weeks thereafter this lawsuit
was filed with the result that the good
faith efforts of the Extension Service to
resolve its differences with the Depart-
ment of Agriculture were frustrated thus
Placing on this court the burden of doing

- 184a -

that in North Carolina as well as all
other states integration of the races more
frequently than not meets with strong
a...

The choice thus posed is whether it
is better that the Extension Service

continue to provide its much needed

services to well over 100,000 North

so more than ten years later.

36 That whites are not alone in their desire
to exercise the right of freedom of
association is illustrated in this case by
the action of the black extension agents
in forming an organization known as
"Priends of 1890." This followed the
consolidation (forced by the Extension
Service) of the two agents professional
organizations, one black and one white,
which had existed prior to the merger of
the two branches of the Extension Service.
Although membership in the organization is
open to any friends or graduates of an
1890 land grant institution such as A&T,
it has remained all black and no indi-
yidual white has ever been asked to join.
In addition to its social activities
business meetings are held relating to the
work of black extension agents. If needed
the funds of the organization are used to
support litigation of the type involved
here. Tr. p-. 795, et Seq.

~- 185a -

Carolina club members while Striving to
achieve full integration of the clubs or
that it withdraw such services altogether
as the government would have it do. The
Extension Service has opted for the
former, and in so doing this court does
not perceive that it has violated the
rights of anyone under any law.

SUMMARY OF PATTERN AND PRACTICE CLAIMS

The preceding nine sections of this
memorandum list each of the pattern and
practice claims alleged by the named
plaintiffs and the government in their
amended complaints, and specific reasons
have been assigned as bases for the
court's conclusion that none of them has
been substantiated by a preponderance of

59
the evidence. In this section there will

59

"(B]ecause it alleged a systemwide pattern
Or practice of resistance to the full
enjoyment of Title VII rights, the
Government ultimately had to prove more
than the mere occurrence of isolated or

- 186a -

be summarized some general considerations
taken into account by the court in
reaching its conclusions, some of which
involve factual predicatesand legal
principles not previously identified with

60
specificity.

‘accidental’ or sporadic discriminatory
act. It had to establish by a preponder-
ance of the evidence that racial discrimi-
nation was the company's standard operat-
ing procedure - the regular rather than
the usual practice." Teamsters, 431 U.S.
at 336.

60 Reference has been made to the "blue, red,

yellow" system of marking the proposed
findings of fact of opposing parties.
Under this system each side was required
to and did mark in blue pencil the
proposed findings of the opposing party
with which there was no disagreement; in
red pencil the findings which were
contested and objected to; and in yellow
pencil the findings which were not
contested but which were contended to be
irrelevant. In addition to the specific-
ally adopted findings previously listed
the court now adopts as its own all
proposed findings which were marked by the
parties in blue and yellow.

- 187a -

The case has been hard fought by able
counsel on all sides and it has not been
an easy one to decide. At the outset the
court was confronted with conflicting
contentions as to whether it is a dis-
parate impact or a disparate treatment
case as those terms are defined in
employment discrimination law. Disparate
impact claims involve employment practices
that are facially neutral in their
treatment of different groups but that in
fact fall more harshly on one group than
another and cannot be justified by
business necessity. Disparate treatment
Claims result when an employer simply
treats some people less favorably than
others because of their race, color,
religion, sex or national Origin. Team-

sters, supra, 431 U.S. 335-6. Disparate

impact cases Ordinarily involve the use of

facially neutral devices such as employ-

- 188a -

ment tests, as in Griggs v.- Duke Power

Company, 401 U.S. 424 91971), which tests
are not shown to be job-related or
otherwise justified by business necessity
and which result in the exclusion from
employment benefits of a disproportionate
number ofa favored group. The nearest
thing in this case to such a device was
the “quartiling”™ system discussed previ-
ously (see Footnote 31), but this is
simply a measure of an agent's performance
against his own annual plan of work and
not against other agents. The system was
not shown to have an adverse impact on
blacks.

What we are left with, therefore, are
the employment practices of the defendant
Extension Service as they affect blacks in
recruitment, hiring,promotion, assignments

and salaries. The entire thrust of the

plaintiffs' case has been that in these

- 189a -

practices defendant has treated blacks
less favorably than whites on account of
their race. The court has therefore
concluded that the case should be analyzed
under the disparate treatment test of

McDonnell-Douglas v. Green , 411 U.S. 792

(1973), rather than the disparate impact
61

test of Grigg .

61 That the choice between the two tests is

not always an easy one has been recog nized
by the PFourth Circuit in Wright v.
National Achives & Records Service, 609
F.2d 702, 7120-13 (4th Cir. 1979), where
the court seems to suggest inferentially
in dictum (Footnote 10) that the choice
may turn on the relative number of people
affected by the alleged discriminatory
practice. While the very essence of
“pattern and practice" is a "standard
operating procedure" which affects all the
people in a favored group, it seems to
this court that if the number test is
going to be applied to determine whether a
practice has a disparate impact rather
than a disparate treatment effect, it is
going to create more problems than it
solves,

- 190a -

Having reached this conclusion, then,
the ultimate issue is whether the Exten-
sion Service regularly and purposefully
treats or has treated blacks less favor-
ably than whites and whether this dis-
parate treatment is racially motivated.

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

1176, 1188 (4th Cir. 1981). A careful
weighing assessment of the plaintiffs’
statistical and non-statistical evidence
led the court to conclude that the
plaintiffs had probably made out a prima
facie case with respect to defendants‘
promotion and salary practices, and the
analysis proceeded on this assumption.
While not conceding that plaintiffs had
made a prima facie case, the defendant
Extension Service assumed the burden of
articulating plausible reasons for its

actions, and its evidence, which the court

found convincing, has been set forth

- 19la -

herein. When the plaintiffs failed to

produce evidence to establish that

defendant's reasons were pretextual

plaintiffs' case failed, EEOC v. Korn

Industries, Inc., 682 F.24 256, 262 (4th

Cir. 1981).

The big difficulty with Plaintiffs"
case and the statistical evidence offered
in support of it is the assumption
inherent therein that the professional
white collar positions in the Extension
Service are fungible and that there is a
readily available labor pool of qualified
blacks from which vacancies can be
routinely filled. This is Simply not the

62
case, Valentino v. United States Postal

Compare, for instance, a case tried in
this Court, Siecde v. J.P. Stevens &
Company, Inc., F. 5 (4th Cir.

), where defendant's own evidence
Showed that the vast majority of textile
workers it hired could walk in off the

Street and with minimal instruction go
right to work.

- 192a -

Service, 511 F.Supp. 917 (D.C.D.C. 1981);

Agarwal v. Arthur G. McKee & Company, 19

PEP Cases 503 (N.D. Cal. 1977). The fact
is that blacks qualified for jobs in the
Extension Service are in short aitiiay
Moreover, the fact that a black pro-
fessional is qualified does not necessar-
ily mean that he is available. Form the
North Carolina coast to the far reaches of
the Appalachian Mountains is a distant of
about 600 miles. In many of the eastern
counties the population is about evenly

divided between blacks and whites. Very

few blacks live in the western counties.

63 virtually every named plaintiff who gave
testimony stated that subjective belief
that they were qualified for a position
and that it had been denied them on
account of their race. "Basing recovery
on that fact is an improper cousideration.
The question is whether or not the company
did in fact discriminate, not whether or
not the employee did in fact believe the
company had discriminated." Lewis v.
Tobacco Workers' International Union,
F.2d 1135, 1143 (4th cir. 1978).

- 193a -

Traditionally, blacks have prefered to
live in areas with substantial black

populations. Fitzpatrick v. Board of

Education City of Enid, 578 F.24 858, 863
: 64
(10th Cir. 1978).

There was discussion earlier of the
fact that each of the one hundred counties
in the state is a co-employer with the
Extension Service and that each retains
the veto power over all employment
decisions at the county level. Only three

of the counties were made parties to the

64 Black professionals are not always

available to accept positions even in
counties with substantial black popula-
tions. For example, in this case the
Plaintiff first named in the caption, P.
E. Bazemore, declined to accept an
appointment as county chairman in Mont-
gomery County less than 100 miles from his
home county of Union. Another named
plaintiff, Carrie Thompson, declined to
accept the county chairmanship of Washing-
ton County where she resides, and appar-
ently no other black cared to apply for
this position which had remained vacant
for several months at the conclusion of
the trial of this case.

- 194a -

suit. The chances that each of the one
hundred counties would take the same
approach to employment matters are
probably remote, but in any event there
was no evidence from which the court could
determine that they would do so. The
extent to which possibly discriminatory
employment decisions may have been made
solely as a result of positions taken by
the various counties will never be known,
but to assume that responsibility for any
such decisions should be laid only at the
door of the Extension Service would be to
ignore another trag ic legacy of our
history -~ the realities of racial atti-
tudes and their effects which have
afflicted not only North Carolina but the

65
entire nation for more than a century.

_

65 mis is not to say that in the formation
of its own decisions the Extension Service
has any right to defer to local prej-
udices. Such defense was specifically
rejected in Wade v. Mississippi Coopera-

- 195a -

Certain vestiges of dis-

~ crimination - although Cleariy

not the most pressing problems

facing black citizens today -

are a haunting reminder of an

all too recent period of our
nation's history.

Justice Stevens (dissenting) in Rogers vy,

Ledge, ___S-U.S. _,_ 50 U.S.L.W. 5041,
5046 n.1 (1982).

Another regrettable legacy in our
nation's history has been the substandard
education afforded black citizens. The

defendant here has for understandable

tive Extension Service, 372 F. Supp. 1126
(N.D. Miss. 1974), but in that case Judge
Keady apparently assumed that the defen-
dant Extension Service had sole responsi-
bility for all employment decisions, a
position urged by plaintiffs on this court
but rejected in the light of the contrac-
tual agreement between the Extension
Service and the counties. And Judge Keady
was writing without the benefit of General
Building Contractors Association, Inc. v.
Pennsyfvani=~ U.S. , 50 U.S.L.W.
I575 (Tana 25, 1582), which rejected the
theory of vicarious liability as between
two separate, autonomous employing units
as we have here. See Footnote 10, Supra.

- 196a -

reasons not advanced this as a specific
explanation for any of its employment
decisions involving the relative qualifi-
cations of black and white etabiiats
Nevertheless, it is a matter of common
knowledge that the quality of education
provided by the predominantly black
institutions in this and other states
simply has not measured up to_ that

afforded by institutions such as NCSU

which enjoy international reputations for

66 The reluctance of the authorities in the
Extension Servite to acknowledge this fact
was evidence in Chancellor Caldwell's
October 29, 1971 letter to the USDA in
which he said: “We are willing to include
this paragraph provided we can omit the
words ‘predominantly minority group.'; Our
staff feels very strongly that the
inclusion of these words in that sentence
conveys to our ‘predominantly minority
group' schools and colleges an implication
of inferiority in terms of curriculum and
content. We do not feel that this is, in
fact, necessarily true and therefore
prefer that these three words be omitted
from the sentence.”

- 197a -

67
excellence in their academic prog rams,

Yet until recently virtually all of the
black employees of the Extension Service,

through no fault of their Own, were

This is no idle observation, but one with
which the plaintiff-intervenor here, the
United States, has expressed agreement.
There is on record in this court a brief
filed May 2, 1979, by the United States
Department of Justice in Civil Action No.
79-217-Civ-5, State of North Carolina v.
Department of Health,Education and Wel-
fe -e, in which it is charged among other
things "respondent state and its agents
have developed traditionally white
institutions to a greater extent than
traditionally black institutions of
comparable age, original mission, or level
of degrees conferred. For example:
respondent state and its agents have
developed white institutions which were
founded at or about the same time as black
institutions in such a way that the
traditionally black institutions are
academically inferior, having less
extensive course offerings than the
counterpart white institutions."

Other examples cited included the lack of
post-graduate program in the traditionally
black institutions and discrimination
against AsT Specifically in the develop-
ment and distribution of land grant
programs. See also Adams v. Califiano, 430
FP. Supp. 118, 120 (D.D.c. 1977),

- 198a -

graduates of these black institutions.
While there is nothing in the record to
show that they have not performed commend-
ably in the discharge of their duties, it
is just not realistic to equate the
educational qualifications of many of
these graduates with those of the grad-
uates of the white institutions which, as
the government rightly alleges, have been
so long favored in the field of education

opportunities afforded. Agarwal v. Arthur

G. McKee & Company, 19 FEP Cases 503 (N.D.
¥:)

Cai. 1977).

68 ,

It must be borne in mind that even when a
black's objective qualifications are equal
to those of a white aspirant to the same
position the law does not require the
employer to prefer the black over the
white. Rather, the employer has the
discretion to choose among equally
qualified candidates so long as the
decision is not based on race. Texas

Department of Communit Affairs v. Bur-
dine, 450 0.5. 240, x55 (TS6T).

- 199a -

The court has been impressed by the
absence in this case of evidence of go
many of the usual badges of discrimina-
tion. For instance there was no evidence

- that there has been any discrimina-
tion in the employment by the
Extension Service of non-profes-
eteneiies’”.

- that any black ever applied for a
position and was turned down on
account of race.

- that the employment of any black was
ever terminated for racial rea-
sons.

- that blacks have ever been excluded

from any particular job category.

In the original complaint of the named
plaintiffs there was an allegation of such
discrimination, but it was not brought
forward in the amended complaint and no
evidence was offered by the plaintiffs in
Support of the original allegation.

- 200a -

~ that there is any difference in
the entry level salaries of blacks
and whites; and

- that any black has ever been

excluded from membership in any 4-H
or extension homemaker club on
account of race.

Additionally, several of the named
plaintiffs disclaimed any discrimination
in their answers to interrogatories and
many who dia testify seemed reluctant to
charge overt discrimination on the part of
the Extension Service. The claims that
were asserted were frequently based on
subjective "belief."

The propriety of considering such
negative evidence has been recognized by
the Fourth Circuit.

We also think the absence of other

evidence of discrimination should be

considered in determining whether a
prima facie case is made, just as the

- 20la -

presence of other evidence’ of
discrimination should be considered
in arriving at the same conclusion.

Roman _v. ESB, Inc, 550 F.2d 1343, 1350

(4th Cir. 1976). See also, Allen vy.

Prince George's County, 538 F. Supp.833,

853 (D. Md. 1982),

The court has likewise been impressed
with the conscientious dedication of the
Extension Service officials to achieving
its affirmative action goals. For
instance the court has found persuasive
the uncontradicted evidence

- that it began its efforts to

rectify pre-existing disparities
between the employment opportuni-
ties of blacks and whites prior to
the enactment of the 1972 amendment
to Title VII which brought the
Extension Service within its

coverage.

- 202a -

-~ that the Extension Service employs
the largest percentage of blacks of
any similar service in the coun-
try.

- that the average salaries of blacks
in the Extension Service have been
increasing at a greater rate than
those of whites.

- that instead of abandoning its
camping programs as so many other
states did, the Extension Service
desegregated its camps and streng-
thened its programs.

- that it required the black and
white agents associations to merge;
and

-~ that Extension Services in states
with minuscule black populations
have made less progress in achiev-

ing equal employment goals than has

- 203a -

the defendant here according to one
witness for the plaintiffs. (Tr. p.

6585).
It is appropriate to consider such
evidence as counterdalancing evidence of
that presented by plaintiffs as indicative

of discrimination. Swing v. Pullman-Stan-

dard, 539 F.2d 77. 104 (Sth Cir. 12976).

Recent progressive improvements
are highly relevant in determin-
ing whether the employer is
currently discriminating against
black persons. Such improve-
ments can counterbalance
evidence of old historical
conditions.

Williams v., Yazoo Valley-Minter City Oil

Mill, Inc., 459 PF, Supp. 37, 52 (N.D.

Miss. 1978). United States vy. County of

Pairfax, 629 F.2d 942 (4th Cir. 1980),
cited and relied on by plaintiff's for the
contrary proposition is Clearly distin-

guishable.

- 204a -

Of course the Extension Service has
been under no obligation to restructure
its employment practices in order to
maximize benefits for minorities. Furnco

Construction Corporation v. Waters, 438

U.S. 567, 577-8 (1978) Nor does the fact
that the methods it has employed to insure
equality of employment Opportunities may
not have been the most productive ones
available or that they may not have been
administered most effectively constitute a

violation of the law. Allen v. Prince

George's County, 538 F.Supp. 833, 855 (D.

Md. 1982).

In summary the court has found that
while there was ample evidence of dis-
parate treatment of blacks by the Exten-
sion Service prior to the enactment of the
Civil Rights Act of 1964, since that time
this defendant has made conscientious and

successful efforts to eradicate the

- 205a -

effects of past discrimination; that it
has at no time eng aged in purposeful
discrimination; and that Plaintiffs have
fallen far short of establishing by a
preponderance of the evidence that
defendant has engaged in pattern and
practice of discrimination. So long as
its present policies are Maintained and
put into practice the Extension Service
should be allowed to continue the great
work in which it is engaged without
interference from the courts,

It does not further the purposes

of Title VII to fina liability

in a union which has seemingly

complied with the Act's provi-

Sions since its enactment in

1965. We must carefully balance

the need for effective enforce-

ment of the Act against over-

zealous enforcement which can

only lead to resentment and a
resistance to change.

- 206a -

FEOC v. Local 14, International Union of

Operating Engineers, 553 F.2d 251, 255 (2d

Cir. 1977).

The Supreme Court has recently urged
voluntary ccmpliance by employers and
employees with legal requirements in order
to avoid the “often ponderous pace” of
litigation of the type this case so

painfully represents. Ford Motor Company

vy. BEOC, 50 U.S.L.W. 4937, 4939 (June 28,

1982). In a similar context this court
had occasion to give like counsel to two
of the parties in this case, the United
States and the University of North

Carolina, see State of North Carolina v.

Department of Health, Education and

Welfare, 480 F.Supp. 929 at 940 (E.D.N.C.

1979). The court now renews the hope that
the parties here will govern themselves

accordingly.

- 207a -

An order will enter dismissing the
pattern and practice suit of the United
States as plaintiff-intervenor. There
remains the matter of the claims of the
fifty-five individual plaintiffs, and
these will be the subject of a separate

memorandum Of decision and order.

s/s
F. T. DUPREE, JR.
UNITED STATES DISTRICT JUDGE

August 20, 1982.

- 208a -

UNITED STATES DISTRICT COURT
FOR THE
SASTERN 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,

Defendants.

werure te awww eee

nooo ee oe eee een oeoeoooaoaoae20e°- 8 eel

— ORDER OF DISMISSAL AS TO
CERTAIN INDIVIDUAL CLIAMS

In this employment discrimination
action the defendants tiled and served
upon the fifty-five named plaintiffs on

December 14, 1979 interrogatories in which

- 209a -

it was sought to have each Plaintiff
identify his or her Specific individual
claims and the basis for such claims of
alleged racial discrimination by the North
Carolina Agricultural Extension Service.
Thereafter a motion to compel the individ-
ual plaintiffs who had not answered these
interrogatories to answer them was filed,
and at a hearing held on this motion
before a United States Magistrate on
December 15, 1980, counsel for the
Plaintiffs were requested to inquire of
the individual Plaintiffs who had not
filed answers to the interrogatories as to
whether they were interested in continuing
to prosecute the action and suggesting
that consideration be given to the
dismissal of the action as to any party
who did not care to prosecute the Same
further, On July 29, 1981, the court

entered a further Order directing Plain-

- 210a -

tiffs to answer the interrogatories of the
defendants, but at the time of the trial a
number of them whose names are listed
below had failed to do so.

James P. West Hoover M. Royals

Roosevelt Lawrence Thelma Graves Turner

Administratric
Eva L.Greens, of the Estate
Administratix of of J. A. Turner

the Estate of
Cleo Rich Greene
Clarence Stockton

Warren Barnes

J. M. Spaulding
Cassius Williams :

Joyce Hunter

Samuel Taylor

On the authority of Roman V- ESB,

Inc., 550 F.2d 1342, 1349 (4th Cir. 1976),
it is now

ORDERED that the individual
claims of the foregoing named plaintiffs
be and the same are hereby dismissed with

prejudice.

- 21la -

At the trial of this action which
extended over a period of approximately
ten weeks the plaintiffs whose names are
listed below failed to appear and give
testimony concerning their respective

Claims of discrimination.

Henry Revell Alma Hobbers
Chester Stocks Inex Foster
E.C. Short George Koonce
Calvin Pargrave Lloyd Peace

Robert Lee Lancaster Marilyn Rich
White
Clifton Parker
Mary Crawford
Dorothy M. Hearns
Elizabeth Ivey,
Louise Penn Slade Administratrix
of the Estate
of D. O. Ivey

Essie Moore

On behalf of these Plaintiffs exhibits
were offered Showing Salary comparison
between them and certain white employees,

but there was no evidence to show the

- 212a -

relative qualifications and job perform-
ances of these plaintiffs and those of the
persons with whom they were sought to be
compared, and this evidence standing alone
was not sufficient to create a prima facie
case of discrimination. The motion of the
defendants to dismiss the individual
claims of the foregoing plaintiffs must
therefore be and is hereby allowed and
the action as it relates to these named

plaintiffs is dismissed with prejudice.

s/s

—_——_—=—

F. T. DUPREE, JR.
UNITED STATES DISTRICT JUDGE

August 20, 1982.

- 213a -

IN THE
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
Filed September 17, 1982 cIv. No. 2879
P. E. BAZEMORE, et Glee
Plaintiffs,
AND
UNITED STATES OF AMERICA, et al.,
Plaintiff-Intervenors,

vs.

WILLIAM C, FRIDAY, et al,

OP ae Pe PP ee ae Oe eh a ep ed

Defendants.

JUDGMENT

The individual claims of the named
Plaintiffs in this action having been
considered and decided in a memorandum of
decision this day filed, in accordance

therewith it is now

- 214a -

ORDERED, ADJUDGED AND DECREED
that all of the individual plaintiffs not
heretofore dismissed by separate order
including, but not by way of Limitation,
the plaintiffs named below, are not
entitled to recover of the defendants, or

either of them, by reason of any matter

alleged in the complaint and the amended

complaint filed herein:

P.E. Bazemore
James E. Wright
George E. McDaniel
Plese Corbett

Fred Belfield

W. N. Payton, Jr.
L. C. Coopler
Chester L.Bright
Johnnie Jones, IIl
Haywood E. Harrell
W. B. Waymer
Booker T. McNeill
Richard M. Edwards
L. D. Baldwin
Leroy James
Cliftono M. Grines
Avant P. Colemagn
Percy W. Williams
w. C. Strowd
Fletcher Barber

R. E. Wilkins

J. J. Wallace

S. T. Lloyd
Hernando F. Palmer
W. F. Wright

Earl G. Swann

I. W. Murfree
Mary C. Martin
Martha B.Thomas
Ann Coston

Esther B. Roscoe
Minnie B. Taylor
Pennie P.Battle
Joann Fleming
Jeannette B. Sherrod
Carrie U. Lindsey
Geraldine H. Ray
Mary I. Parham
Deborah Jean Hart
Merhan Hinton
Bernie STaton
Marian Staton

- 215a -

and that the action be and the same is
hereby dismissed as to all of the indi-
vidual plaintiffs. Each side will bear

its own costs.

s/s
F. T. DUPREE, JR.
UNITED STATES DISTRICT JUDGE

September 17, 1982.

- 216a -

IN THE
UNITED STATES DISTRLCT COURT
FOR THE
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION

Filed September 17, 1982 CIV. No. 2879
sana errs ese ee eee eS Se ee ee ee
P. E. BAZEMORE, et al., )
)
Plaintiffs, )
)
AND )
)
UNITED STATES OF AMERICA, et @lee )
)
Plaintiff-Intervenors, )
)
vs. )
)
WILLIAM C. FRIDAY, et al, )
)
)

Defendants.

MEMORANDUM OF DECISION
(INDIVIDUAL CLAIMS)

In a memorandum of decision filed
August 20, 1982 in this employment
discrimination suit the court has found
that the United States as plaintiff

intervenor failed to establish by a

- 217a -

preponderance of the evidence that the
defendants engaged in a pattern and
Practice of racial discrimination in
employment and the Provision of services
in violation of 42 U.S.C. §§ 1981, 1983,
2000d, et seg., and 2000e, et seg. In that
memorandum, reference to which is made for
further backg round information, the

discrimination Claims of the individual

- 218a -

named plaintiffs were reserved for
70
decision. In this memorandum their claims

will be separately considered.
The district court's finding of

an absence of class-wide
discrimination is not necessar~

we In the memorandum these were said to be
fifty-five in number. Actually seventy-
four plaintiffs were named in the caption
of the original complaint of whom five
were not identified in the body of the
complaint. By separate orders all but
forty-two of those named have been
eliminated from the case. In addition
there were a number of witnesses who
appeared and gave testimony in support of
the government's pattern and practice
suit, and the statement in the previous
memorandum at page 14 that no such witness
appeared was in error. The confusion
arose from the fact that defendants had
directed interrogatories to these wit-
nesses, and they were treated as named
plaintiffs in the proposed findings of
fact submitted following the trial. Had
the government prevailed in its pattern
and practice suit they would have been
entitled to relief as members of the
class, but in view of the failure of that
suit the fact that they did not intervene
in the action of the original named
plaintiffs they are no longer entitled to
have their individual claims considered.
Dickerson v. United States Steel cor
tion, 5 F. 7, Cir. 1978);
Croker v. Boei Company, 662 F.2d 975,
Cir. 1 ).

- 219a -

ily inconsistent with a claim
that discrete, isolated in-
stances of discriminations
occurred, for which the statis-
tical evidence of a pattern of
discrimination may have been
lacking; there may have been
sufficient evidence to establish
a prima facie case of discrimi-
nation directed against specific
employees, Therefore, the
court's decision as to the
Class-wide claims of discrimi-
nation does not, as a matter of
res judicata, bar class members
rom asserting individual claims
of personal discrimination.

Dickerson v. United States Steel Corpora-

tion, 582 F.2d 827, 830-31 (3d Cir.

71

717

In their original complaint the named
Plaintiffs asserted a number of Claims of
aclass-wide nature such as discriminatory
work assignments, testing, recruitment and
hiring practices, Provision of services
and maintenance of segregated clubs.
These claims have all been considered and
rejected in the judgment dismissing the
government's pattern and practice Suit and
will not be considered further here,

- 220a -

To the extent that these plaintiffs
seek to grourd their action on Title VII
of the Civil Rights Act of 1964 they are
met at the outset with the defense that
all but seven of them failed to comply
with the administrative remedy provisions

72
of that Act. While, nothing else appe-

Ve The government filed its amended complaint
alleginy violations of Title VII in 1975
but the named plaintiffs did not File
theic amended complaint with similar
allegations until November 30, 1981, one
week before the trial. It simply alleged
that seven of the named plaintiffs "Avant
P. Coleman, Clifton M. Grimes, Mary Se
Martin, Minnie B. Taylor, Fred Belfield,
Jc., Henry Revell, Jr., and Chester
Stocks, by and through their attorney,
Cressie H. Thigpen, Jr., received a letter
dated November 18, 1981, from the United
States Department of Justice, Civil Rights
Division, advising them of their right to
institute an action in an appropriate
United States District Court pursuant to
Title VII of the Civil Rights Act of 1964,
as amended, 42 §u.s.c. § 2000(e), et
seq., within 90 days of receipt of the
letter." There is nothing in the record
to show that any of the other named
plaintiffs filed charges with the EEOC or
that they ever received right to sue
letters.

- 221a -

aring, this failure to file timely charges
with the EEOC and to obtain right to sue
letters would seem to be fatal to the
Title VII claims of the non-complying

plaintiffs, United Black Firefighters of

Norfolk v. Hirst, 604 F.24 844, 887 (4th

Cir. 1979); Stebbins v. Nationwide Mutual

Insurance Company, 382 F.2d 2167 (4th Cir.

1967); Lay v. Bethlehem Steel;, 542 F.

Supp. 9 (D. Md. 1982), aff'd 681 F.2d 814
(4th Cir. 1982), the court has chosen to

consider the claims of all plaintiffs

- 222a -

under their properly alleged causes of
73
action grounded on 42 U.S.C. § 1981. This

statute provides in pertinent part that:

All persons within the juris-
diction of the United States
shall have the same right ... to
make and enforce contracts ..--
and to the full and equal
benefit of all laws and proceed-

Ws It has now been established that the
requirement of timely filing of a charge
with the EEOC is not a jurisdictional
prerequisite but is subject to equitable

tolling, Zipes v. Trans World Airlines
Inc, U.S. es 102 S.Ct. 1127 (1982);
Waiters v. Robert Bosch Cor oration,
F.2d (4th Cir., July”, £587) , but the
plaintiffs here offered no evidence to
support a finding that the tolling
doctrine should apply. In any event,
since the claims of all plaintiffs are
being considered under Section 1981, itis
not necessary to address the issue.
Similarly the question of whether those
plaintiffs in a non-class action who have
not complied with the administrative
requirements of Title VII may rely on the
compliance by other plaintiffs with
substantially identical claims does not
arise. See Dalton v. Employment Security
Commission, 671 F.2d nEL (ath Cir. 1962);

Alien v. United States Steel Cor ration,

F. t Ce ; Crawford v.
United States Steel Corporation, 660 F.2d

th Cir. 1981).

- 223a -

ings for the security of persons

and property as is enjoyed by

white citizens. ...

It has now been established that in
order to maintain a cause Of action for
racial discrimination in employment under
this statute it is necessary for the

plaintiff to allege and Prove purposeful

discrimination. General Building Contrac-

tors Association v. Pennsylvania, U.S.

, 50 U.S.L.W. 4975 (June 29, 1982).

"Discriminatory purpose,"
however, implies more than
intent as volition or intent as
awareness of consequences, ...
It implies that the decision-
maker ... selected or reaffirmed
a particular course of action at
least in part "because of," not
merely "in spite of," its
adverse effects upon an identi-
fiable group.

Personnel Administrator of Massachusetts

V. Feeney, 442 U.S. 256, 279 (1979).

- 224a -

Resolution of the issue of intent
depends largely on the credibility of the

witnesses. Morrison v. Nissan Motor

Company, Ltd., 601 F.2d 139 (4th Cir.

1979).

The initial burden on the plaintiff
in an action grounded on racial discrimi-
nation in employment is to establish a
prima facie case. This may be done by
showing that the plaintiff belongs to a
minority race and that he was qualified
for an employment benefit which was denied
him because of his race. The burden then
shifts to the employer to articulate a
legitimate non-discriminatory reason for
the employment decision in question. This
is not strictly speaking a burden of proof
but is simply the burden of producing an
explanation. Once this is done it is open
to the plaintiff to show that an otherwise

valid explanation advanced by the employer

- 225a -

is in fact a mere Pretext for the action
taken. The burden of Persuasion remains
with the plaintiff throughout to establish
a violation of his employment rights,

Texas Department of Community Affairs y.

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

The issue of pretext is essentially
one of a state of mind, and Ordinarily
evidence bearing on the issue will be

circumstantial in nature, Wright y,

National Archives & Records Service, 609

F.2d 702, 716 (4th Cir. 1979),

While historical inequality of
treatment of black workers may certainly
be considered on the question of present
discrimination, evidence of such Standing
alone does not suffice to establish a

Prima facic case. Fucnco Construction

Corporation v. Waters, 438 U.S. 567, 573-4

(1979). An employer must show that its

employment decisions were based on

- 226a -

legitimate considerations, but he does not
have to show that his hiring procedures
were calculated to maximize the hiring of
minority employees. Id. at sts. and
"lclourts are generally less competent
than employers to restructure business
practices, and unless mandated by Congress
they should not attempt it," id. at 578.
Where a black's objective qualifica-
tions are equal to those of a white
aspirant to the same position the law does
not require the employer to prefer the
black over the white. Rather, the

employer has the discretion to choose

among equally qualified candidates so long

74 «(The employer's] decision to discharge
Dr. Berkowitz may well have been an error
in business judgment. However, the law
does not prohibit a company making errors
in its personnel decision, so long as it
does not discriminate on the basis of age,
race, gender, or relig ion." Berkowitz v.

_ Allied Stores of Penn-Ohio, Inc., F.
Supp. 1209, 1315 (E.D. Penn. 1982).

- 227a -

as the decision is not based on race.

Texas Department of Community Affairs vy.

Burdine, supra, at 259.

Testimony of a plaintiff that he is
gualified for a particular employment
benefit is entitled to little weight.

Smith v. Flax, 618 F.24d 1062, 1067 (4th

Cir. 1980; Lovelace vy. Sherwin-Williams

Company, F.2d (No. 80-179, 4th

Cir., June 15, 1982) (Slip Opinion at 3),

With these Principles in mind we turn
now to a consideration of the Claims of
the named plaintiffs who remain in the
action, all of whom are black. Their
Claims will be considered in the order
that their names appear in the caption of
the original complaint.

1. P.E. BAZEMORE.

Prior to his retirement in 1981 Mr.
Bazemore was employed as an agricultural

extension agent in Edgecombe County and

- 228a -

Union County for thirty years. He had a
BS degree and had earned additional hours
toward an advance degree. His areas of
responsibility included cotton, swine,
corn and grain sorghum. He claims that he
was denied appointment as county extension
chairman in Union County in 1976 on
account of his race and that he also
suffered discrimination with respect to
his salary.

Bazemore was one of two applicants
for the Union County position in 1976.
The other candidate, M. C. Howell, was
also a member of the Union County staff.
The Extension Service conceded that
Bazemore had provided leadership and had
conducted good extension programs in the
county through the years. His primary
area of expertise was swine, and he
operated his own swine farm. Howell had a

BS degree and had been in charge of the

- 229a -

4-H program in Union County for eleven
years. Following an interview by the
Extension Service officials in Raleigh
Howell was recommended for the Union
County chairmanship. A fellow worker,
also black, corroborated Bazemore's
contention that he was competent to
discharge the duties of county chairman in
Union County. His tenure with the
Extension Service was more than twice that
of Howell.

The evidence showed that Howell had
provided outstanding leadership in the 4-H
Program in Union County and that the
program was regarded as the best one of
its kind in North Carolina and one of the
best in the nation. Howell was recog nized
nationally as an authority in 4-H volun-
teer leadership training and had served at
the national 4-H center in Washington with

responsibilities for training volunteer

- 230a -

leaders from other states' organizations.
Almost all of the national 4-H winners
from North Carolina in ‘976 were from
Union County.

In 1976 Howell had almost completed
his work toward a master's degree in adult
education, and he did obtain his degree
thereafter. During his interview with the
officials in Raleigh Bazemore was asked
whether he would pursue his work toward a
master's degree and he indicated that at
that stage in his career he would not be
interested in completing the work neces~
sary to obtain a master's degree.

With respect to his salary claim it
appeared that Bazemore was one of the
highest paid agents employed by the
Extension Service, and it was shown that
in many instances he earned more than
white agents with greater tenure and

advanced degrees.

- 23la -

Assuming that Bazemore made out a
prima facie case of racial discrimination,
at least with respect to the failure of
defendants to recommend him for the
position of county chairman of Union
County, the court is Satisfied that in
recommending M. C. Howell for tne position
the Extension Service Simply made a choice
between two qualified Candidates and that
there was no evidence to Substantiate
Bazemore's claim that the Failure to
recommend him was racially motivatéd. The
fact is that the Extension Service three
years earlier had suggested to Bazemore
that he allow his name to be submitted for
the county chairmanship in Montgomery
County, and he declined to do so because
he was already earning more money in Union
County as an agent than he would have
earned in Montgomery County as Chairman.

AS was shown in the previous memorandum

- 232a -

there was evidence that Bazemore was given .
preferential treatment with respect to his
areag of responsibility in Union County.
See page 23, footnote 15, of the memoran~
dum of decision filed August 20, 1982.

The plaintiff Bazemore having failed
to offer any evidence on the basis of
which the court find that the reasons
assigned by the Extension Service for the
failure to recommend Bazemore for the
county chairmanship of Union County and
any possible salary discrepancies were
pretextual, all of his claims of discrimi-
nation must be rejected.

2. JAMES E. WRIGHT.

The plaintiff Wright has been an
agricultural extension agent in Hertford
County for over thirty years. He alleges
racial discrimination in his failure to be
appointed as county extension chairman in

that county when vacancies occurred in

- 233a -

75
1969 and 1979, Wright also complained

that he was discriminated against with
respect to his salary.

In 1951 Wright received a BS deg ree
in agricultural economics from A & T
University, and since that time he has
earned approximately twelve credits toward
a master's degree. He taught vocational
agriculture before joining the Extension
Service in 1955. In 1962 he became the
Negro county agent in Hertford County and
assumed supervisory responsibilities over
the Negro Extension Service in that
county. His performance record with the
Extension Service has been a very good
one. He has received numerous awards

including the Distinguished Service Award

"9 With respect to the 1969 vacancy Wright

testified that he did not apply for the
position because he thought it would be
futile to do so. For the reasons stated
in the previous memorandum (pages 34-36)
Wright's futility" claim was rejected.

- 234a -

for the National Association of County
Ajcicultural Agents. He has held posi-
tions of leadership in various organiza-
tions associated with extension work.

In 1979 Wright was one of three
applicants for the position of county
extension chairman in Hertford County.
The other two were James Doughtry and
Billy Dunham, both white. Daughtry had
been a member of the Extension Service
staff in Hertford County prior to 1976,
but at the time he applied for the
chairmanship in 1979 he was employed by a
bank. While a member of the Hertford
staff there had been some friction between
him and Wright over the location of some
office furniture.

Dunham was an extension agent in
Bladen County at the time that he applied
for the chairmanship in Hertford, and

while he had only a few years' experience

- 235a -

in the Extension Service, he had taught
vocational agriculture in the public
schools and had been the manager of a
large farm equipment company in which
position he supervised a large staff. In
his first assignment with the Extension
Service in Brunswick County he had taken a
low productive agricultural program and
turned it around within two years. He
headed one of the most Outstanding
educational programs in the state. He had
a reputation for relating well to people
and was a good organizer who had received
much commendation from his superiors.
Following the interviews conducted by
the Extension Service officials in Raleigh
Doughtry, who was the only one of the
three candidates who had a master's
degree, was eliminated. It was the
court's impression that although Doughtry

was considered to be well qualified for

- 236a -

the position of county chairman, in view
of the friction which had existed among
members of the Hertford County staff while
Doughtry was employed there it would not
have been prudent to return him to a
position in that county.

The selection committee was thus left
with two candidates, Wright who was black
and Dunham who was white. Josephine
Patterson, who is the district extension
chairman of the northweastern district in
which Hertford County is located, was one
of the four members comprising the
selection committee. She is black. After
a full consideration of the relative
qualifications of Wright and Dunham the
selection committee voted unanimously to
recommend Dunham to the county commission-
ers of Hertford County to fill the county

76
chairmanship vacancy.

70 The statement on page 34 of the previous

- 237a -

As early as September, 1979, at or
about the time that vacancy in the county
chairmanship occurred in Hertford Dr. Paul
Dew, the assistant director for county
operations of the Extension Service, had
discussed the problem of friction among
the member of the staff with the chairman
of the county commissioners of Hertford
who expressed some concern Over the
Situation. Apparently it was the consen-
Sus Of all concerned in the selection
process that in view of Dunham's excellent
qualification here was a chance to get an
outsider to come into Hertford - "someone

who had not been a party to ten years of

memorandum of decision that James Wright
was recommended for the position of county
chairman in Hertford and rejected by the
county commissioners in favor of a white
was inaccurate. In fact both Wright and
Billy Dunham were found by the Extension
Service to be qualified for the position
but only Dunham was recommended to the
commissioners who thus were not called
upon to consider Wright's candidacy.

- 238a -

internal strife" (Tr. 5701) - to straigh-
ten out the intrastaff problems relating
to personality conflicts and communication
difficulties. It was for this reason and
not for any racially motivated reason that
the selection committee for the Extension
Service agreed unanimously to recommend
Dunham for the position.

Wright's contention that Dunham's
selection was racially motivated centers
on his version of the facts relating to
the events which transpired on the
afternoon and evening of the day when
Dunham was presented to the county
commissioners for approval. According to
him, he had been led to believe that he
was the favored candidate and that he
would be taken before the county commis-
sioners at a meeting to be held on the
evening of December 17, 1979 at the county

courthouse in Winton. When Dr. Dew and

- 239a -

Mrs. Patterson arrived with Billy Dunham
at the county extension office in Winton
that afternoon Wright Says that he had to
excuse himself very shortly in order to
fill a previous appointment and that he
did not understand that Dunham was to be
the the only candidate presented to the
commissioners that night. Instead, he
Says that he was told by Mrs, Patterson
that they would call him and tell him when
to come down for the meeting. He says
that he went home around 6:00 p.m. and
took a nap only be informed by a telephone
call from Patterson around 8 o'clock that
night that Dunham had been Presented to
the commissioners and approved by them to
fill the chairmanship vacancy effective
February 1, 1980.

Both Dew and Patterson gave quite a
different version of what transpired on

that afternoon and evening. They say that

- 240a -

the purpose of their taking Dunham to the
extension office that afternoon was to
introduce him to the members of the staff,
including Wright had he stayed around, and
to inform them that Dunham would be
presented to the commissioners that
evening for approval as the new county

chairman. The say that the purpose of

calling Wright was to take Dunham by his

home and introduce him that night since he
had only met Dunham briefly that after-
noon. Dew, Patterson and Dunham did in
fact visit with Wright that evening at
which time Dunham was very cordially
received and Wright pledged him his full
cooperation as a member of his staff.

The court was very favorably im-
pressed with James Wright, and it is with
regret that it is unable to credit his

testimony in this respect. If he was

subjected to the kind of treatment he

- 24la -

claims he received on that occasion, both
Dew and Patterson were guilty of a most
callous disregard of his feelings. Yet
these two Extension Service officials came
across as faic-minded individuals who
would not have been guilty of such
conduct, particularly in view of the Fact
that it would certainly have been counter-
productive in their aims to rectify the
longstanding internal friction problems
with which the Hertford extension staff
had been beset, Moreover, if the Dew and
Patterson version of the events of
December 17, 1979 is not correct, it would
have been a simple matter for Wright to
have brought one or more of the members of
the Hertford staff to give their version
of what transpired at their meeting with
Dew, Patterson and Dunham that afternoon.

No such witness appeared. The court also

- 242a -

considered it significant that neither Dew
nor Patterson was subjected to any serious
cross-examination on this subject.

We are left, then, with a situation
in which two qualified candidates were
considered to fill one position. The
court is unable to say that the evidence
proved either one to be more qualified
than the other. Under these circum-
stances, absent a showing of racial
motivation, it was open to the Extension
Service to recommend either one of the
candidates. No such showing has been
made. The fact is that all of the
evidence showed that James Wright has
always been highly regarded by the
officials in the Extension Service. For
instance, in the early 1970's Wright was
offered the opportunity to come to
Raleigh, study for a master's degree and

be given the position of specialist, 4a

- 243a -

more prestigious state level position than
that of county chairman. Wright turned
this offer down, and it was offered to
another black who accepted and was given
the specialist position. More recently
when Dunham resigned the county chairman-
Ship in Hertford County after having done
“an extremely effective" job with respect
to the program and achievement Of staff
harmony, Wright was recommended over two
Other applicants, one white and one black,
for the position created by Dunham's
resignation, and he was approved by the
commissioners on June 7, 1982. On July 1,
1982, he assumed the duties of county
chairman of Hertford County.

With respect to his Salary claim
Wright testified Simply that he knew of no

other white agent with the Same or less

- 244a -

tenure and education than himself who was
earning more money than he. This claim
has not been substantiated.

In summary, even if it be assumed
that the evidence sufficed to create a
prima facie case of discrimination, the
reasons advanced by the Extension Service
for its failure to recommend him for the
county chairmanship of Hertford County in
1979 were legitimate and reasonable, and
plaintiff Wright has failed to produce
evidence to show that these reasons were
pretextual. His salary claim was not
supported by evidence, and it follows that
his claims of discrimination must be
rejected.

3. GEORGE E. MCDANIEL.

McDaniel was first employed by the
Extension Service as Negro county agent in
Jones County in late 1946, and he served

there until 1949 when he moved to Wayne

- 245a -

County where he _ remained until his
retirement in 1975. He held a BS degree
from A & T and at the time of his retire-
ment had approximately twenty-one hours of
yraduate work toward his master's degree,
In 1972 he was one of eight applicants for
the position of county chairman in Lenoir
County, a position he alleges was denied
him because of his race. He also alleges
racial discrimination with respect to his
Salary.

Four of the eight applicants for the
county chairmanship of Lenoir County,
including McDaniel, were recommended by
the Extension Service to the Lenoir County
Board of Commissioners, W. S. Lamm, a
white with twenty-one years of Extension
Service experience and an MS degree, was
Selected over the other three candidates,
Lamm's area of expertise was tobacco which

is the Principal crop in Wayne County.

- 246a -

Lamm has established a reputation for
leadership by organizing the first
ag ri-business council in Wayne County and
the first young tobacco farmers associa-~
tion in North Carolina. McDaniel had six
years more tenure than Lamm but only a BS
degree and his areas of responsibility had
included soybeans and dairying. His claim
that he was better qualified for the
position than Lamm has not been substan-
tiated, but in any event the final
selection was made by the county commis-
sioners of Lenoir County and not the
Extension Service, and there is no
evidence to support McDaniel's claim that
he was discriminated against on account of
his race with respect to his failure to be
appointed as county chairman in Lenoic

County.

In support of his Salary discrimina-
tion claim McDaniel offered evidence
tending to show that there were white
agents with less tenure who earned more
than he did, Defendants, however, offered
evidence tending to show that there were
white agents with greater tenure who

earned less than McDaniel, There was no

various agents whose Salaries were sought
to be compared,

4. PLESE CORBETT.

Corbett graduated from A & T with a
BS degree in 1938. Two years later he
9btained a master's degree from the
University of Massachusetts. He was
employed by the Extension Service from

November 16, 1940 until his retirement in

- 248a -

1973. He claims that because of his race
he was discriminated against with respect
to his salary.,

Corbett was employed in Alamance
County, and although he had a twenty-five
years of tenure at the time of the merger
of the two branches of the ixtension
Service in 1965, he did not apply for the
county chairmanship at that time. His
area of responsibility included fruits and
vegetables, soybeans, small grains and
community resource development. Through
the years he showed little interest in
continuing and updating his expertise, and
although continuing educational programs
were available, during the last ten years
of his service he only spent eleven days
in such programs.

Corbett first complained about his
salary in 1971 after his tenure qualified

him for retirement, and as a result of his

- 249a -

complaints he received increases in his
Salary. Thereafter he made no more
complaints concerning his Salary prior to
his retirement in 1973.

While a comparison of Corbett's
Salary with the salaries Of various
selected white agents tends to indicate
some disparity, at least two of the white
agents whose salaries were compared were
county chairmen, and as Previously noted
this position carries a somewhat higher
salary than that of agents. Also lacking
is evidence from which a comparison of the
job performances of the various agents
with that of Corbett could be made.

The court is unable to find from a
preponderance of the evidence that Corbett
was the victim of racial discrimination
with respect to his Salary, and his claim

must therefore be rejected.

—————

- 292a -

city council work has affected his
performance as an Extension Service agent
and that his present salary which is in
excess of $20,000 per year is commensurate
with his performance.

: Coleman's claim of salary discrimi-
nation will be denied.

18. PERCY W. WILLIAMS.

Williams is a 1951 graduate of A & T

in agriculture. He has taken some

_graduate work at A & T and NCSU since that

time but has not obtained a master's
degree. After teaching veterans farming
for three years following his graduation
Williams was employed by the Extension
Service in the fall of 1954 in Wilson
County. He transferred to Pasquotank
County in 1957. His remaining complaint

in the case is salary discrimination.

The evidence showed that Williams
earned less money than two white agents

who had similar degrees and less tenure,

but the evidence for the defendant showed

that Williams earned more money than some
agents with greater tenure and master's
degrees. There was no evidence from which
the court could compare the Job perform-
ance records of Williams with those agents
who earned more money, His salary
discrimination claim remains unsubstan-
tiated, and it will therefore be denied.

19. W. C. STROWD.

Following his graduation from A & T
in 1941 with a BS degree in agriculture
Strowd worked as director of farm husban-
dry at a farm and vocational school in
Pennsylvania for about two and a half
years. He returned to North Carolina and
pecame employed by the Extension Service

in Perquimans County in 1944 as Negro

- 294a -

emergency war food production assistant.
Strowd claims discrimination in the
failure of the Extension Service to have
him appointed county chairman in Perqui-
mans County in 1969.

Strowd says that he expressed an
interest in this position but was dis-
couraged from applying by the departing
county chairman who is alleged to have
told him that he would be contacted by the
Extension Service if it wanted to support
his candidacy. At that time Strowd was
the senior agent in Perquimans County with
twenty-five years of experience. The
evidence showed, however, that Strowd
lacked initiative, drive and leadership
qualities considered necessary to be a
county extension chairman. On the other
hand the evidence for the defendants

showed that the person selected for the

position, Richard Bryant, was well

- 295a -

qualified for the position and had
demonstrated the requisite leadership
qualities in Gates County where he has
been the county extension chairman, The
court finds that the selection of Bryant
was predicated on his prior administrative
experience and leadership rather than any
racially discriminatory animus on the part
of the Extension Service.

With respect to his Salary claim
Sstrowd's attempted comparison of his
Salary with that of the county chairman,
for reasons previously stated, is without
probative force. Similarly, the evidence
tending to show that Strowd earned less
money than some white agents with less

tenure must be discounted for that Strowd

failed to present any evidence showing the

relative qualifications and job perform-

ances of the other agents,

- 296a -

All of Strowd's claims of discrimina-
tion will be denied.

20. FLETCHER L. BARBER.

Barber graduated from A & T with a BS
degree in agricultural education in 1949.
Later he took some post-graduate work but
did not obtain a master's degree. Follow-
ing college he taught school for one year
and joined the Extension Service in Jones
County in 1950. After serving two years
in the Army he returned to the Extension
Service in 1954 where he served until his
retirement in August Of 1981. He alleges
discrimination in the failure to appoint
him as county chairman of Jones County in
1978.

Barber and two others applied for the
position, and each of them was interviewed
by the Extension Service officials in

Raleigh. Of the three applicants Minton

Small received the recommendation of the

Extension Service, and he was appointed to
fill the vacancy in Jones County by the
county commissioners.

Central to Barber's claim i: his
contention that he was better gQualified
for. the position than Small. The evidence
failed to substantiate this Claim. While
Small's tenure with the Extension Service
was Only thirteen years as compared to
Barber's twenty-five years, Small hada

master's degree, with a Specialist in

tobacco and had served as county extension

chairman of Caswell County for four years
before applying for the Jones County
position. While Small's guartile rankings
nad been low tor several years, and his
performance as county chairman of Caswell
nad been criticized Dy one of the black
agents in that county, the evidence for
the defendants showed that he had in fact

performed creditably in his Caswell County

- 298a -

duties. Ii. view of the fact that tobacco
is the principal money crop grown in Jones
County which had prompted the commis-
sioners of that county to request that the
county chairmanship vacancy be filled by
one with expertise in tobacco, the
decision of the Extension Service to
recommend Small for the position was fully
justified. The evidence will not support
a finding that this decision was racially
motivated.

Accordingly, Barber's claim must
fail.

21. R. E. WILKINS.
Wilkins, a 1948 graduate of A & T with a
BS degree in agriculture, was first
employed by the Extension Service in

Duplin County in April 1948. He servec

approximately thirty years, retiring in

- 299a -

1977. Questioned as to the nature of his
complaint of discrimination Wilkins
testified:

I think it was not being given

an assignment. From '65 until

‘70, I worked mostly with the

other agents. I had no area of

responsibility of my own until

‘69 - until '68, I believe - '65

to ‘68.

Wilkins testified that he complained
about his work assignments in 1967 and
that in 1968 he was given sole responsi-
bility as “corn agent."

Evidence further showed that Wilkins
nad a complaint about his 4-H responsi-
Dilities, but the evidence showed that
this complaint was resolved by mutual
agreement of the county chairman and the
other agents involved.

With respect to his Salary claim
Wilkins testified that he thought in view

of his tenure that his Salary was "“terri-

Dly low." While he did not know of any

- 300a -

whites with less tenure who were making
more money than he, salary comparisons
were introduced in support of his salary
claim. This evidence showed that Wilkins
earned less than several other white
agricultural agents with less tenure, but
there was no evidence from which a
comparison of his job performance with
that of the other agents could be made.
Evidence for the defendants showed that
Wilkins earned more money than several
other agricultural extension agents witn
greater education and tenure.

Wilkins has failed to prove his
claims by a preponderance of the evidence,
and they will be denied.

22. J. H. WALLACE.

Judy Herring Wallace graduated from
Shaw University in 1965 with a BS in home

economics. She began work with the

Extension Service on January 1, 1966 in

- 30l1la -

Columbus County and on September 1 of that
year she transferred to Duplin County
where she has since been stationed.
Questioned by her counsel as to why she
joined as a plaintiff in this action she
replied that "I felt there was some
discrimination as it relates to pay - my
pay."

She further testified that her
Curiosity had been aroused when she
received a salary increase in 1971 ata
time of the year when raises were not
expected to be granted

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0868%3A03. Public record. Not legal advice.