# Opposition Brief — Atonio v. Wards Cove Packing Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 487 U.S. 1264

## Text

oe HILED
| }) WAR 11
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: 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

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