Opposition Brief — Atonio v. Wards Cove Packing Co.

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No. 87-1388 ~~” ws:

a«—«,,

IN THE

Supreme Court of the United States

October Term, 1987

FRANK ATONIO, EUGENE BACLIG, RANDY delFIERRO,

CLARKE KIDO, LESTER KURAMOTO, ALAN LEW,

CURTIS LEW, ROBERT MORRIS, JOAQUIN ARRUIZA,

BARBARA VIERNES, as administratrix of

the estate of Gene Allen Viernes,

and all others similarly situated,

Petitioners,

v.

WARDS COVE PACKING COMPANY, INC.,

CASTLE & COOKE, INC.,

and COLUMBIA WARDS FISHERIES.

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

Douglas M. Fryer* -

Douglas M. Duncan

Richard L. Phillips

MIKKELBORG, BROZ,

WELLS & FRYER

Suite 3300

1001 Fourth Avenue Plaza

Seattle, Washington 98154

(206) 623-5890

* Counsel of Record Attorneys for Respondents

March 11, 1988

28CD Lewal Printers. Seattie. WA

TABLE OF CONTENTS

Page

Counter-Statement of The Case...................... 1

ee I ee ce nt eo l

SE eee eee re 2

C. Court of Ampenie Galings..................... 5

Reasons The Writ Should Be Denied... _——... 6

I. The District Court’s Resolution of Conflicting

Statistical Evidence Was Not Clearly Erroneous and

the Ninth Circuit’s Affirmation of That Finding as

to the Treatment Issue Was Not In Conflict With

Decisions of This Court or the Other Courts of

ps ae Aiea eae ar oe eS ae ee ee 6

A. The District Court’s Findings as to the Relative

Weight to be Given Conflicting Statistical

Evidence Were Not Clearly Erroneous............ 7

B. The District Court’s Findings as to Statistical

Evidence Under the Disparate Treatment Theory

are Supported by Decisions of This Court and

the Other Courts of Appeals.................... 8

C. The Purported Conflict Between the Ninth

Circuit’s Decision on the Treatment Analysis

and Decisions of This Court and Other Circuits

ss csr ae ae On sis 11

il

TABLE OF CONTENTS, (continued)

Page

II. The Dismissal of Title VII Claims Against

Columbia Wards Fisheries Canneries Was Correct

Under Principles of Law of the Case and Waiver,

and, if Reversed, Would Not Change the Result in

Thie Cees... 2... ic eee 15

Conclusion............. 1233 17

TABLE OF AUTHORITIES

Table of Cases

Anderson v. Bessemer City, 470 U.S. 564 (1985)... «sis 8

Clark v. Chrysler Corp., 673 F.2d 921 (7th Cir. 1982) .. 9,10

Connecticut v. Teal, 457 U.S. 440 (1982)... .. : 12

Coser v. Moore, 739 F.2d 746 (2d Cir. 1984).......... 10

DeMedina v. Reinhardt, 686 F.2d 997 (DC. Cir. 1982)... .9

EEOC v. Federal Reserve Bank of Richmond, 698 F.2d

633 (4th Cir. 1983), reversed on other grounds, sub

nom. Cooper v. Federal Reserve Bank of Richmond,

467 US. 967 008... J... 5 eee 9,10

Furnco Constr. Co. v. Waters, 438 U.S. 567 (1978)... . 12,14

Giles v. Ireland, 742 F.2d 1366 (11th Cir. 1984)..__.. 13,14

Hammon v. Barry, 826 F.2d 73 (DC. Cir. 1987)........ 10

ili

TABLE OF AUTHORITIES, (continued)

Page

Hazelwood School Dist. v. United States, 433 U.S.

EE es ea a GR Shale Fela ka eee eds 9,11

Hilton v. Wyman-Gordon Co., 624 F.2d 379 (1st Cir.

ee RTS Bh EASE Ap ine yl ens mC ae ee OP 9

James v. Stockham Valves & Fittings Co, 559 F.2d

310 (5th Cir. 1977), cert. denied, 434 U.S.

1034 (1978) ...... ce Breer | 12,13

Janowiak v. Corporate City of South Bend, 836 F.2d

i cee nes se a ake be 10

Johnson v. Transp. Agency, 480 U.S.__., 94 L. Ed.

ER EE I a ee aa 9,12

Johnson v. Uncle Ben's, Inc.,628 F.2d 419 (5th Cir. 1980)... .9

Moore v. Hughes Helicopters, Inc., 708 F.2d 475 (9th

gre. ora a4 oa I ey

Paxton v. Union Nat'l Bank, 688 F.2d 552 (8th Cir.

1982), cert. denied, 460 U.S. 1083 (1983).......... 13

Payne v. Travenol Laboratories, Inc., 673 F.2d 798

(5th Cir. 1982), cert. denied, 459 U.S. 1038

EN ne or en ea a xo ree 5 ee

Pullman-Standard v. Swint, 456 U.S. 273 (1982) ........ 7

Raxton Corp. v. Anania Assoc., Inc., 668 F.2d 622

ey OO. os ys REN eee 16

iv

TABLE OF AUTHORITIES, (continued)

Page

Richardson v. Communications Workers of America,

AFL-CIO, 486 F.2d 801 (8th Cir. 1973)........... 16

Rivera v. City of Wichita Falls, 665 F.2d 531 (5th

1) RR i SE Pret CARN A oc crdl eo 9,10,12,13

Ste. Marie v. Eastern R.R. Ass'n., 650 F.2d 395 (2d

Gk Ak Sek Cee eee sake ees 2 te )

Teamsters v. United States, 431 U.S. 324 (1977)... 8,11

Texas Dep't of Community Affairs v. Burdine, 450

SR EES 5s oc ets cd cl eee ee. 14

Statutes

Oe tee es: <i, ee ae 1

er tlie Se aS pera mr 1

IN THE

Supreme Court of the United States

October Term, 1987

FRANK ATONIO, EUGENE BACLIG, RANDY delFIERRO,

CLARKE KIDO, LESTER KURAMOTO, ALAN LEW,

CURTIS LEW, ROBERT MORRIS, JOAQUIN ARRUIZA,

BARBARA VIERNES, as administratrix of

the estate of Gene Allen Viernes,

and all others similarly situated,

Petitioners,

v.

WARDS COVE PACKING COMPANY. INC.,

CASTLE & COOKE, INC.

and COLUMBIA WARDS FISHERIES,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

COUNTER-STATEMENT OF THE CASE

A. Nature of the Case.

The named plaintiffs in this class-action suit are former

employees at several salmon canneries in Alaska. They brought

this action against their former employers, respondents Wards

Cove Packing Company, Inc., Castle & Cooke, Inc., and

Columbia Wards Fisheries charging employment discrimina-

tion on the basis of race in violation of Title VII of the Civil

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

Rights Act of 1866, 42 U.S.C. § 1981. The class is defined

as all nonwhites who are now, will be, or have been at any

time since March 20, 1971, employed by one of these three

employers at one of the five class canneries. See Petitioners’

Appendix, p. A-347 (defines class).

Following a lengthy non-jury trial, the trial court found

that petitioners had not established discrimination under

§ 1981 or Title VII and judgment was entered for respondents.

The Ninth Circuit affirmed this decision, but on rehearing en

banc resolved a conflict within the circuit by determining that

the impact analysis could be applied to subjective employment

practices and remanded to the original panel. The subsequent

panel decision vacated the judgment and remanded to the

district court with directions to apply the disparate impact

analysis in a manner inconsistent with decisions of this court

and in confiict with other circuits.'

B. Material Facts.

Respondents operate salmon canneries in remote and

widely separated areas of Alaska. The canneries operate only

during the summer salmon run. For the remainder of the

year they are vacant. Respondents’ head office and support

facilities are located at Seattle, Washington, and Astoria.

Oregon.

The employment needs to operate the canneries will vary

with the size and duration of the salmon runs. Respondents

hire employees primarily from the Pacific Northwest and

Alaska. The bulk of employees are “cannery workers,” who

work in the cannery itself on the fish processing, canning lines.

Local 37 of the I.L.W.U. has jurisdiction and a contract for

these jobs. The remaining jobs at the cannery are carpenters,

machinists, tender crews, longshoremen, administrative. and

other support personnel. It is these non-cannery worker jobs

‘ This decision is the subject of respondents’ own Petition for Writ

of Certiorari, No. 87-1387 (dated February 9. 1988).

which are at issue. The non-cannery worker jobs are covered

by several union contracts. Some are non-union. The trial

court’s opinion sets forth the facts in detail. (Petitioners’

Appendix, p. A-210-305; see also the background discussion

in first panel opinion at id., p. A-136-169).

Respondents hire all employees except those persons

working on the cannery line (cannery workers) from an external

labor market which is 10% nonwhite. For the positions at

issue, respondents hired 21% nonwhites in the at-issue jobs

at their class canneries. Cannery workers, on the other hand.

were hired through Local 37 of the I.L.W.U. The compositior

of Local 37 is dominated by Filipinoes, as are the crews it

dispatches to the canneries each summer. In addition, respon-

dents filled some cannery worker jobs for some of the more

remote canneries from local populations.

In 1974 petitioners commenced a class action against

respondents. The suit mounted a broad-scale attack against

the gamut of respondents’ employment practices. Petitioners

identified 16 “practices” which they contended caused an

imbalance and thus a “concentration” of nonwhites in the

lower-paying cannery worker jobs. Petitioners used com-

parative statistics to argue that of the total work force, the

majority of the nonwhites were concentrated in the lower-

paying jobs and that there should have been a balance of

50% white/nonwhite employees in all job classifications.

After 12 trial days, in which more than 100 witnesses

testified, over 900 exhibits were admitted, and over 1.000

statistical tables were submitted, the trial court entered exten-

sive findings of fact in a 73-page opinion. Petitioners’ Appen-

dix, p. A-208-347. The findings determined that petitioners’

comparative statistics were of little probative value; that the

_

labor supply for respondents’ facilities is 90% white;’ that

minorities were not underrepresented in the at-issue jobs;’ that

cannery workers are not the appropriate comparison labor pool

for at-issue jobs; that respondents hire from an external labor

supply and do not either promote-from-within or train

inexperienced, unskilled workers for at-issue jobs; that most

jobs at issue require skill and prior experience that is not

readily acquirable at the canneries; that Local 37 provides an

oversupply of nonwhite cannery workers and that this over-

representation is an institutional factor in the industry.

In addition, the trial court found that no individual

instances of discrimination were proven; that respondents did

not give job preference to friends and relatives; that peti-

tioners’ “nepotism” statistics were distorted and unreliable;

that hiring was on the basis of job-related criteria; that hiring

of experienced personnel was a business necessity; that the

rehire preference clauses in the union contracts operated like

a seniority system; that housing is not racially segregated.

and that housing, rehire, and messing policies were all dictated

by business necessity.

The trial court found that petitioners had failed to estab-

lish intentional discrimination‘ and the disparate impact

* Thus, it is not surprising that of the 13 individual “job families”

evaluated at the individual canneries, several mirrored this racial

composition. See Petition, p. 2. Many of these job families,

however, only hired one or two new people each year.

* Petitioners point to three instances in which class members were

significantly underrepresented in a job family at a cannery. (They

erroneously cite one other.) Petition, p. 4. They fail to point out

that in the sixty-two other job family evaluations, non-whites were

not significantly underrepresented.

* The trial court was fully aware of and considered petitioners’

evidence of “race labeling” (see Petition. pp. 2-3), but found it was

not persuasive evidence of intent; such terms were “routinely

(footnote continued on next page)

analysis was not appropriate for application to plaintiff's wide-

ranging multiple practice challenge nor to subjective hiring

practices. In applying the impact analysis individually to five

of respondents’ practices (rehire preference, English language,

“nepotism,” housing, and messing), the district court again

found in favor of respondents.

C. Court of Appeals Rulings.

On appeal a panel of the Ninth Circuit affirmed the

judgment, noting, however, that there was a conflict in the

decisions of several circuits and the Ninth Circuit itself as to

whether the disparate impact analysis could be applied to

analyze “subjective practices.’ 768 F.2d 1120 (9th Cir. 1985);

Petitioners’ Appendix, p. A-134 et seg. This opinion was

withdrawn after rehearing en banc was granted. 787 F.2d 462

(9th Cir. 1985); Id. p. A-133. On en banc rehearing, the Ninth

Circuit held that the disparate impact analysis could be applied

to such practices. 810 F.2d 477 (9th Cir. 1987); Petitioners’

Appendix, p. A-51 et seq. The case was then remanded to the

original panel which sought to apply the impact analysis to

eight of the 16 “practices” identified by petitioners. 827 F.2d

439 (9th Cir. 1987); “etitioners’ Appendix, p. A-3 et seq.

On remand the Court of Appeals panel affirmed the

district court on disparate treatment claims, did not discuss

the English language requirement, affirmed the finding that

the rehire preference was a business necessity, but held that

petitioners’ “comparative statistics,’ which showed only a

concentration of minorities in the cannery worker jobs, were

nonetheless adequate to require the district court to examine

used by non-whites.” Petitioners’ Appendix, p. A-336. Use of the

term “Iron Chink” (Petition, p. 3) was not significant because the

machine was patented under that name at the turn of the century,

long before respondents entered the business. The machine has

borne that stamped name ever since.

respondents’ hiring practices on grounds of business necessity.

In doing so, the Court of Appeals did not hold that any practice

caused disparate impact, and ignored the district court’s

findings that petitioners’ statistics were distorted and un-

reliable, that respondents hired more nonwhites than the

proportion available in the labor supply, and that institutional

factors, not the respondents’ practices, caused an overrepre-

sentation of minorities in cannery worker jobs.

The court also held, contrary to trial court findings, that

a preference for relatives (‘nepotism’) existed and had an

adverse impact on nonwhites. The court questioned the district

court’s finding of business necessity for respondents’ housing

and messing practices. Finally, the court affirmed its earlier

decisions dismissing the Title VII claims against Wards Cove

Packing Co. and Castle & Cooke as to the Columbia Wards

Fisheries canneries. Petitioners’ Appendix, p. A-50.° Judg-

ment for respondents was vacated and remanded.

REASONS THE WRIT SHOULD BE DENIED

I. The District Court’s Resolution of Conflicting Statistical

Evidence Was Not Clearly Erroneous and the Ninth Cir-

cuit’s Affirmation of That Finding as to the Treatment

Issue Was Not In Conflict With Decisions of This Court

or the Other Courts of Appeals.

Petitioners pursued their claims of hiring discrimination

under both the disparate treatment and disparate impact

theories. The first question presented by this petition concerns

only the disparate treatment theory. After reviewing the

statistical and other evidence, the district court found that

> Petitioners had failed to raise this theory in the first appeal of the

dismissal of these Title VII claims, reported at 703 F.2d 329, 332

(9th Cir. 1982). See discussion infra, € II.

intentional discrimination was not established under this

theory. See Petitioners’ Appendix, pp. A-323-324; A-337.

The Ninth Circuit affirmed. Because the finding of no inten-

tional discrimination was reasonable and firmly supported by

the evidence, it was not clearly erroneous. Pullman-Standard

v. Swint, 456 U.S. 273 (1982).

Petitioners now challenge only the evidentiary finding

as to the relative weight of the statistical portion of the

disparate treatment evidence. Their statistical arguments

are not supported by the decisions cited, but are refuted by

decisions of this court and the circuit courts.

A. The District Court’s Findings as to the Relative

Weight to be Given Conflicting Statistical Evidence

Were Not Clearly Erroneous.

The Ninth Circuit held that the “district court’s evaluation

of conflicting statistics and determination of the probative

weight they are to be accorded is a factual inquiry.’ Appendix,

p. A-16-17. It, therefore, reviewed the district court's findings

under the clearly erroneous test. Jd. Petitioners do not argue

this was not the proper standard of review.

Petitioners offered two types of statistical evidence that

was crucial to their attempt to prove disparate treatment in

hiring: labor market evidence that purported to establish the

racial composition of the available labor supply for the jobs

at issue and “comparative statistics” that made a simple

internal work force comparison between the percentage of

§ Beyond the statistical evidence, it is significant to note that with

a class of over 2,000 non-white employees, the petitioners were

unable to establish a single instance of individual discrimination

or disparate treatment in hiring, in application of hiring criteria,

in treatment of applicants, in the rehire practice, in pay, in termina-

tion, in messing, in application of work rules and fraternization

policies, or in housing.

minorities in jobs not at issue (cannery workers) with the

percentage of minorities in at issue jobs. Respondents chal-

lenged the relevancy and accuracy of this statistical evidence

and offered their own labor market theory and statistical

comparisons. The district court rejected plaintiffs’ labor

market theory and statistics in favor of the evidence offered

by respondents.’ The district court also found that under the

circumstances of this case, petitioners’ comparative statistics

were entitled to little weight and that defendants’ labor market

statistics were more persuasive. This decision was reason-

able and therefore cannot be clearly erroneous. Anderson uv.

Bessemer City, 470 U.S. 564, 573-4 (1985).

B. The District Court’s Findings as to Statistical Evi-

dence Under the Disparate Treatment Theory are Sup-

ported by Decisions of This Court and the Other Courts

of Appeals.

More than ten years ago, this Court cautioned that the

usefulness of statistics “depends on all the surrounding facts

and circumstances.” Teamsters v. United States, 431 U.S. 324,

340 (1977). Petitioners do not contest, but consistently ignore

key factual findings that render their work force comparisons

unpersuasive. For instance, the trial court found that respon-

dents hired from an external labor market that was approxi-

mately 10% nonwhite; that they did not promote from within,

nor did they provide the training for the at issue jobs; and

that the racial composition of the cannery worker crews was

severely distorted by institutional factors, particularly the

dispatching practices of a union.

* Petitioners did not challenge the rejection of their labor market

theory in the Ninth Circuit nor do they challenge it here. They

rely solely on the internal work force comparisons set forth in

their “comparative statistics.’

At least three post-Hazelwood circuit courts have held that

simple internal work force comparisons such as petitioners rely

on are relevant only in a promotion-from-within case or where

the employer trains its workers for the jobs at issue. Johnson

uv. Uncle Ben’s, Inc., 628 F.2d 419, 425 (5th Cir. 1980); Ste. Marie

v. Eastern R.R. Ass'n, 650 F.2d 395, 400 (2d Cir. 1981); EEOC

v. Federal Reserve Bank of Richmond, 698 F.2d 633, 659-60

(4th Cir. 1983), reversed on other grounds, sub nom. Cooper

v. Federal Reserve Bank of Richmond, 467 U.S. 867 (1984).

Petitioners do not refute, discuss, or even mention these

decisions. :

In determining whether minority employees are under-

represented in the at-issue jobs, it is an appropriate analysis

to compare actual hiring with the racial composition of the

relevant external labor market.* Hazelwood School Dist. v.

United States, 433 U.S. 299, 308 (1977) (alleged discrimination

in hiring of teachers); Johnson v. Transp. Agency, 480 U.S.__.

94 L. Ed. 2d 615, 630-31 and n.10 (1987) (alleged “reverse’’

discrimination under affirmative action plan). The post-

Hazelwood circuit court opinions agree. E.g., Johnson v. Uncle

Ben's, Inc., supra, 628 F.2d at 425 (5th Cir. 1980); Rivera v.

City of Wichita Falls; 665 F.2d 531, 544-45 (5th Cir. 1982);

DeMedina v. Reinhardt, 686 F.2d 997, 1004-1009 (DC. Cir.

1982); EEOC v. Federal Reserve Bank of Richmond, supra, 698

F.2d at 658-62 (4th Cir.). See Hilton v. Wyman-Gordon Co.,

624 F.2d 379, 380 (1st Cir. 1980) (plaintiff’s “concentration

evidence” rebutted by outside labor force statistics); Clark v.

Chrysler Corp., 673 F.2d 921 (7th Cir. 1982) any showing of

disparate impact in hiring refuted by external labor market

* The purpose of the labor market analysis in an external hiring

case is to establish the most reasonable “proxy” for the pool of

qualified, available applicants for the jobs at issue. E.g., Moore

v. Hughes Helicopters, Inc., 708 F.2d 475, 482-83 (9th Cir. 1983).

The trial court here found that the cannery workers were not a

reasonable proxy. Petitioners’ Appendix, p. A-249.

10

statistics). Cf, Hammon v. Barry, 826 F.2d 73 (DC. Cir. 1987)

(improper to adopt affirmative action plan for minorities where

those minorities are not underrepresented in comparison to the

external labor market); Janowiak v. Corporate City of South

Bend, 836 F.2d 1034, 1038-40 (7th Cir. 1987) (same; comparison

of employer’s work force to general population, rather than to

relevant qualified labor supply is inappropriate when deciding

whether to adopt an affirmative action plan).

More importantly, at least four post-Hazelwood circuit

decisions hold that internal work force comparison statistics

in a hiring case will be refuted by credible external labor market

evidence that shows no underrepresentation of minorities in

jobs at issue. Hilton, supra, 624 F.2d at 380 (1st Cir.); Coser

v. Moore, 739 F.2d 746, 752 (2d Cir. 1984); EEOC v. Federal

Reserve Bank of Richmond, supra, 698 F.2d at 658-62 (4th Cir.);

Rivera, supra, 665 F.2d at 539, 544-45 (5th Cir.) See Clark,

supra, 673 F.2d at 929 (7th Cir.) (external labor market data

relied on to show no disparate impact in hiring). These deci-

sions directly support the trial court’s resolution of conflicting

statistical evidence under the facts and circumstances present.°

° In affirming these findings under the treatment analysis, the

Ninth Circuit did not discuss respondents’ labor market evidence.

Moreover, it did not explain why it failed to discuss or credit

respondents’ labor market evidence under the impact theory; nor

did it explain why petitioners’ comparative statistics, discredited

under the treatment theory, were any more probative under the

impact theory. This is a subject of the Petition for Writ of

Certiorari that respondents have filed. No. 87-1387 (February

9, 1988).

Be:

11

C. The Purported Conflict Between the Ninth Circuit's

Decision on the Treatment Analysis and Decisions of

This Court and Other Circuits is Nonexistent.

Petitioners’ hiring statistics showed only that there is a

higher percentage of class members in the cannery worker jobs

than in the at-issue jobs. They claim that this alone proves

unlawful “segregation.” Petition, p. 5. Essentially, they claim

that this evidence of imbalance cannot be rebutted; that it

shows per se discrimination. Jd., pp. 5-6. None of the decisions

cited by petitioners stand for this proposition and all of them

are factually distinguishable. See Id., pp. 6-8.

The portion of the Teamsters decision cited by petitioners’®

does not apply to the facts here. In Teamsters, the employer

had two jobs (city driver and line driver) that were essentially

fungible because the skills were “fairly readily acquirable’”’ on

the job and other qualifications were the same. See Hazelwood,

supra, 433 U.S. at 308, n.13. The employer “allocated” the jobs

amongst competing applicants and placed most minority

workers in the lower-paying city driver job.

In contrast, here the jobs were found to be not fungibie,

i.e., each job requires differing skills and qualifications. See

Petitioners’ Appendix, p. A-245. Additionally, the trial court

found that the high percentage of minority employees in the

cannery worker jobs was attributable to institutional factors,

primarily the dispatching practices of the cannery worker

union. Petitioners’ Appendix, p. A-245-248; A-252; A-322.

Finally, while in Teamsters the minority employees were

“overwhelmingly excluded” from the jobs at issue (line driver),

431 U.S. at 342, n. 23, just the opposite was true here. The

district court found that minorities were not significantly

underrepresented in the jobs at issue. Petitioners’ Appendix,

p. A-252-253. Plaintiffs do not challenge this finding.

10 Petition, pp. 6-7; Teamsters v. United States, 431 U.S. 324, 342

n.23 (1977).

12

Petitioners cite two other decisions of this Court as sup-

port for their arguments that racial imbalance constitutes

unlawful segregation and that labor market statistics are

irrelevant. Petition, p. 7. The language cited in Furnco Constr.

Co. v. Waters, 438 U.S. 567, 579 (1978) is taken out of context.

See Petition, p. 7. The statement was made in the course of

rejecting the employer’s argument that an individual claim of

discrimination was refuted by a proportionate representation

of the class in the employer’s work force. Respondents make

no such argument here.

Similarly inapposite is the citation to Connecticut v. Teal,

457 U.S. 440 (1982). See Petition, p. 7. In Teal, this Court held

that if minorities are disproportionately excluded at one stage

of a testing procedure, the fact that they are proportionately

represented overall does not rebut a showing of disparate

impact. Here, the trial court found that minorities were not

significantly underrepresented in the jobs at issue and peti-

tioners offered no evidence that they were disproportionately

excluded at any stage of the hiring process.

Neither Furnco nor Teal stand for the proposition that

racial imbalance between two groups of jobs is illegal segrega-

tion, that it was error to give relatively little weight to peti-

tioners’ internal work force comparisons, or that respondents’

external labor market statistics are irrelevant. Moreover, if

petitioners were correct, one would be forced to conclude that

Hazelwood was overruled by Furnco and Teal. This is obviously

not the case. See Johnson, supra, 94 L. Ed. 2d at 630-31 (citing

Hazelwood with approval).

Placed in their proper factual contexts, the circuit court

opinions petitioners cite do not support their argument. The

quotation from James v. Stockham Valves & Fittings Co., 559

F.2d 310, 341 (5th Cir. 1977), cert. denied, 434 U.S. 1034 (1978),

is illustrative. See Petition, p. 7. As that decision was explained

by the Fifth Circuit in Rivera, supra, 665 F.2d at 541, n.16,

13

internal comparative statistics can be used in a promotion-

from-within case where the company fills the upper positions

through promotion of entry-level employees who are trained

by the company in skills for the upper jobs. Those were the

facts in Stockham Valves, 559 F.2d at 317, 340-41. They are

not the facts here.

The Payne decision" simply held that the district court's

decision to credit plaintiff's applicant flow statistics over

defendant’s hiring area statistics was not clearly erroneous.

673 F.2d at 823. Here, petitioners did not offer applicant flow

statistics; they offered only internal work force comparisons

which were found to be less probative.”

The Paxton decision rejected the employer's hiring area

statistics because the employer had a policy of promoting from

within. 688 F.2d at 564. Respondents do not dispute that

external labor market statistics are less relevant than internal

work force comparisons on those facts. However, petitioners

refuse to accept the obverse of this proposition: because the

statistical comparison must fit the facts of the case, if hiring

is from an external labor market, internal work force compar-

isons have little relevance. E.g., Rivera, supra, 665 F.2d at

540-46 (relied on by Paxton, 688 F.2d at 564).

Petitioners’ final contention is that respondents should

have promoted cannery workers from within (and, presumably,

trained workers for at-issue jobs). They claim that failure to

promote is illegal, citing Giles v. Ireland, 742 F.2d 1366, 1381

‘Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 823-24 (5th

Cir. 1982), cert. denied, 459 U.S. 1038 (1982).

‘2 It is interesting to note that in Payne, the Fifth Circuit rejected

similar “bare work force statistics” on plaintiff's claim of dis-

crimination in initial assignments. 673 F.2d at 824-25.

13 Paxton v. Union Nat'l Bank, 688 F.2d 552, 563-64 (8th Cir. 1982),

cert. denied, 460 U.S. 1083 (1983).

14

(11th Cir. 1984). Petition, p. 8. Petitioners read too much into

Giles. The employer had been previously found guilty of

discrimination in segregating jobs. Jd. at 1369. Past and

court-ordered remedial hiring resulted in blacks being con-

centrated in the entry level positions. Jd. at 1370, 1380. The

employer, who had previously used these positions as a promo-

tion pool for higher ranking jobs (id. at 1369), then changed

its policy. It refused to promote any entry level workers.

As a result, a disproportionate number of blacks were “frozen”

into that position.* Jd. at p. 1380.

The facts are much different here. There is no prior finding

of discrimination; respondents have never had a promotion-

from-within system; there is no evidence of pretext in that

business decision; and since at issue jobs are not filled from

within, no cannery worker is locked into that job. Each is free

to seek work in the at-issue jobs each season. The district

court found class members were not deterred from applying

and that all applicants are treated equally. Petitioners’

Appendix, pp. A-336; A-242.

Under these circumstances, no court has found an em-

ployer guilty of discrimination for failure to promote from

within and no court has mandated adoption of a previously

non-existent promotion policy. Yet petitioners demand it.

This is an unjustified intrusion into the employer’s business

decisions in violation of this court’s admonitions in Furnco,

supra, 438 U.S. at 577-78 and in Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248, 259 (1981).

‘4 There was also evidence in Giles that the decision to no longer

promote from within was pretextual. The employer stated that

it had no need to fill the higher positions, but the evidence was

to the contrary. 742 F.2d at 1370, 1376.

Ser ese re Gites Weed

15

II. The Dismissal of Title VII Claims Against Columbia

Wards Fisheries Canneries Was Correct Under Principles

of Law of the Case and Waiver, and, if Reversed, Would

Not Change the Result in This Case.

It was not until after the dismissal of Title VII claims

against the Columbia Wards Fisheries facilities was affirmed

by the Ninth Circuit that petitioners raised the theory they

now assert.’ Refusal to allow them to change their theory is

a straight forward application of the principles of law of the

case and waiver. It is not a matter of national importance.

Briefly the procedural history is as follows:

In March 1974, petitioners filed suit alleging violations

of Title VII against three different employers. One of those

employers was a joint venture, Columbia Wards Fisheries

(“CWF”), that operated two of the five class canneries, Alitak

and Ekuk. See Petitioners’ Appendix, p. A-347 (definition

of class).

In 1975, the Title VII claims against the CWF facilities

were dismissed as based on untimely EEOC charges. Peti-

tioners filed an initial 1975 appeal that was aborted'* and

then pursued a series of trial court motions over the next

seven years attempting to revive these claims. In 1981, they

again appealed. The Ninth Circuit affirmed the dismissal of

the Title VII charges against the CWF canneries. 703 F.2d

329, 332 (9th Cir. 1982).

'® Petitioners contend that the dismissal of Title VII charges

against the Columbia Wards Fisheries joint venture is of abso-

lutely no consequence because each of the joint venturers was

separately liable under Title VII for the acts of the joint venture.

‘6 Plaintiffs voluntarily dismissed that 1975 appeal with a stipula-

tion that the appeal could be made later.

16

It was not until after this 1982 affirmance that petitioners

raised their theory of separate joint venturer liability. Both

the trial court and the Ninth Circuit refused to allow peti-

tioners to pursue this new theory. See Petitioners’ Appendix,

pp. A-147-149 (trial court); A-147-149 (Ninth Circuit panel

opinion, adopted by reference by the panel on remand, A-49-50).

Petitioners now claim they could have raised their theory

earlier and should not be barred by the previous appellate

decisions.

An appellant who has two possible grounds for appeal

and presents only one to the appellate court is precluded

from raising the other ground later in the case, even if it

is successful in its first appeal.

Raxton Corp. v. Anania Assoc., Inc. 668 F.2d 622, 624 (1st

Cir. 1982). In Raxton, the plaintiffs were barred from raising

a new theory of liability on a second appeal. 668 F.2d at 625.

The court stated the philosophy and policy behind its ruling:

The presentation on appeal of all viable justifications of

a judgment insures that simpler and speedier bases for

decision are not overlooked, that occasions for remand are

minimized, and that issues that may have appeared as

independent alternatives to a trial court can be considered

as mutually supporting in their dependent parts of an

appellate decision.

668 F.2d at 624. Accord, Richardson v. Communications

Workers of Am., AFL-CIO, 486 F.2d 801, 803-804 (8th Cir.

1973) (two union defendants found liable as a unit could not

raise a new claim on a second appeal that they should have

been treated as separate entities). The authorities petitioners

cite are not to the contrary.

17

Finally, this petition should be denied because revival of

the Title VII claims against the CWF canneries would not

make a difference. Petitioners failed to prove Title VII liability

under either the disparate treatment or disparate impact

theories as to the actions at the CWF canneries. The finding

of no intentional discrimination under the disparate treatment

theory against all defendants was not clearly erroneous and

was correctly affirmed by the Ninth Circuit. See discussion,

supra, ¢ I. Petitioners’ disparate impact case against respon-

dents, including CWF. was based on the same comparative

internal work force statistics that were discredited by the

trial court in relation to petitioners’ treatment claim. Jd.

As discussed at length in respondents’ Petition for Writ of

Certiorari (No. 87-1387, pp. 8-23), under a proper application

of the disparate impact theory, petitioners also failed to prove

their case under that theory.

CONCLUSION

The trial court’s resolution of conflicting statistical evi-

dence was not clearly erroneous and was supported by deci-

sions of this court and the circuit courts. The dismissal of Title

VII charges as to the CWF facilities is supported by circuit

court opinions grounded in principles of law of the case and

waiver. It is not in conflict with decisions of this court or other

circuits. Accordingly, the petition for writ of certiorari should

be denied.

Respectfully submitted,

Douglas M. Fryer*

Douglas M. Duncan

Richard L. Phillips

MIKKELBORG, BROZ.

WELLS & FRYER

* Counsel of Record Attorneys for Respondents

a