Patterson v. American Tobacco Co.

634 F.2d 744, 24 Fair Empl. Prac. Cas. (BNA) 531, 1980 U.S. App. LEXIS 12177, 24 Empl. Prac. Dec. (CCH) 31,361

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 18, 1980
• Docket: Nos. 78-1083, 78-1084
• Status: Published

Opinions

JAMES DICKSON PHILLIPS, Circuit Judge:

In these consolidated Title VII actions brought by EEOC and a class of black employees against American Tobacco Company (American) and Tobacco Workers’ International Union (Union) alleging race and sex discrimination in hiring, promotion, transfer and other employment practices, the district court found violations and granted sweeping relief which, with modifications, was then approved by this court upon appeal. Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976). Following entry by the district court of a modified judgment in conformity with our mandate upon remand, the Supreme Court decided International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); United Airlines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); and Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). Asserting that these decisions constituted significant intervening changes in the law entitling them to equitable relief from the judgment, American and the Union moved under Fed.R.Civ.P. 60(b) for appropriate relief.¹ The district court denied the motion and this appeal by the defendant-movants followed. It was first heard by a panel of this court which decided that while Evans and Hazelwood did not entitle the movants to any relief from the judgment, Teamsters might, and that remand for further proceedings in light of Teamsters was required. Patterson v. American Tobacco Company, 586 F.2d 300 (4th Cir. 1978).

Upon rehearing by the court en banc, we conclude that the decision in Evans did not entitle the defendants to any relief from the judgment but that the decisions in both Teamsters and Hazelwood may require relief whose specific form can only be determined by further proceedings in the district court. Accordingly we affirm in part and vacate and remand in part for further proceedings.

I

The factual background and protracted procedural history of these cases is adequately set out in our earlier opinion, 535 F.2d 257, and in the panel opinion withdrawn upon our en banc rehearing of the instant appeals, 586 F.2d 300. It need not be repeated in full here; specific details necessary to our discussion will suffice.

By way of general background, the essential features of the modified judgment from which relief by motion is now sought are here summarized. Based upon findings of violations by the defendants in transfer and promotion practices affecting non-supervisory employees and in the procedures by which supervisory employees were appointed, the judgment required American to: (1) post more definite written job descriptions when vacancies occurred; (2) eliminate lines of employment progression in six of nine job categories; (3) permit blacks in the prefabrication department in one branch to transfer to jobs in the fabrication department at another branch without losing seniority despite American’s longstanding policy disallowing inter branch transfers with retention of company seniority; (4) make back-pay awards to employees unlawfully denied promotions; and (5) develop and apply objective criteria for appointing supervisory personnel. Reserved for judgment and still pending for determination in the district court were the individual claims for restitutionary back pay awards.

The defendants contend that the cited Supreme Court decisions require relief in various ways from the further enforcement of the judgment. We consider the effect of each decision in order.

II

Teamsters

Defendants contend that Teamsters draws in question the continued validity of those portions of the challenged judgment finding American’s branch seniority system and its job lines of progression policy violative of § 703(a) of Title VII and granting related relief. The branch seniority system² was found violative on the basis that by imposing, without justification of business necessity, loss of seniority upon employees transferring from the lower paying prefabrication department of one branch to the higher paying fabrication department of another branch, blacks and women had been effectively locked into the lower paying positions. 535 F.2d at 263-64, 271. The lines of progression policy was found violative of Title VII in respect of six of nine protected job lines because of its demonstrated disparate impact upon protected employees and the failure to show its justification by any business necessity. Id. at 264-65, 271.

The contention is that Teamsters has now revealed that both the branch seniority system and the job lines of progression policy are immunized against challenge by § 703(h) of Title VII because they are, within contemplation of that section, “bona fide” seniority systems. We conclude that under Teamsters the branch seniority system must be held immune if bona fide within the meaning of § 703(h), and that this presents a factual issue requiring reconsideration by the district court. We further conclude that § 703(h) as interpreted in Teamsters has no application to the job lines of progression policy, so that no reconsideration of the finding of violation or of the relief granted in relation to this policy is required by Teamsters. Our reasons follow.

In pertinent part, § 703(h) provides that [I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority .. . system .. ., provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(h).

When the original judgment was entered, affirmed on appeal and modified on remand, the view in this and other Circuits was, as expressed in United States v. Chesapeake & Ohio Railway, 471 F.2d 582, 587 (4th Cir. 1972), that, notwithstanding § 703(h), “seniority systems which perpetuate past racial discrimination violate [Title VII].”

Teamsters expressly rejected that view, finding it belied by the legislative history of § 703(h) and holding instead that “an otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination,” 431 U.S. at 353-54, 97 S.Ct. at 1863-64. In holding the Teamsters seniority system immune under § 703(h), the Court emphasized that by literal terms of the statute a system’s immunity depends upon its being “bona fide,” and specifically pointed to the statutory requirement that differences in treatment flowing from the system’s application not be “the result of an intention to discriminate because of race.” Id. at 353, 97 S.Ct. at 1863.

Because the bona fides of the Teamsters system was conceded, the Teamsters Court was not, however, required to give detailed attention to the criteria by which bona fides in a contested situation is now to be determined. The Court did point out that the system before it “did not have its genesis in racial discrimination, and . .. was negotiated and [had] been maintained free of any illegal purpose.” Id. at 356,97 S.Ct. at 1865 [emphasis supplied]. Also emphasized were the facts that the system was facially neutral, applying alike to all employees, equally discouraging all from making intracompany transfers involving loss of seniority; and finally that the differences in employment conditions imposed by the system had a rational basis in the practices of the affected industry and were consistent with National Labor Board precedents. Id. at 355-56, 97 S.Ct. at 1864-65.

From this it is clear that the modified judgment in this case was entered under a misapprehension on the part of both the district court and this court as to the proper application of § 703(h) to claims of Title VII violation through the operation of seniority systems. At odds with our then understanding lack of bona fides may not be rested solely upon a finding of perpetuation of pre-Act discrimination. See Johnson v. Ryder Truck Lines, Inc., 575 F.2d 471 (4th Cir. 1978). Defendants are accordingly entitled to relief from that judgment to the extent the present or a reopened record shows that the “seniority system” therein found violative of Title VII is immune to challenge because “bona fide” within contemplation of § 703(h).

By their motions in the district court, the defendants contended that both the branch seniority system and the lines of progression policy were now revealed to be immune under § 703(h) because their bona fides was manifest on the record. The district court, without differentiating between the two and apparently treating them as constituting together “the seniority system” in issue, held flatly that

the seniority system of the defendants in this case is not a bona fide system under [Teamsters] not merely because it perpetuated Pre-Act discriminatory practices .. . but because this system operated right up to the day of trial in a discriminatory manner. [Teamsters citation omitted]. This system had a discriminatory genesis. [Teamsters citation omitted]. The background of labor relations of this Company and the seniority system clearly shows this to be true. The record in this case clearly supports this finding.

Defendants, of course, challenge that conclusion. Because we consider that application of § 703(h) to the branch seniority system and to the lines of job progression policy respectively presents separate questions dictating different results, we take them up separately.

A.

We first conclude that § 703(h) simply has no application to American’s job lines of progression policy, whether or not it be considered a “seniority system” in the mode of its operation.³ This policy was not in effect at American in 1965 when Title VII went into effect, but was only adopted in January 1968 in connection with American’s general revision of its promotional policies. 535 F.2d at 263.⁴

We think that the legislative history of § 703(h), as exhaustively analyzed by the Supreme Court in Teamsters and in Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), conclusively demonstrates that Congress intended the immunity accorded seniority systems by § 703(h) to run only to those systems in existence at the time of Title VII’s effective date, and of course to routine postAct applications of such systems. See Teamsters, 431 U.S. at 352, 97 S.Ct. at 1863. That history is replete with indications that the interests sought to be protected by this special exception to Title VII’s general coverage of all “conditions of employment” were those seniority rights already vested in incumbent workers when Title VII went into effect.⁵

Because § 703(h) has no application to this policy, its discriminatory effect was properly assessed by the district court under the general disparate impact test laid down in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The violation then found under that test and the related relief given having been affirmed by this court, 535 F.2d at 264-66, defendants are entitled to no relief from those portions of the judgment related to American’s job lines of progression policy.

B.

There is no question that if American’s branch seniority system is bona fide within contemplation of § 703(h) as interpreted in Teamsters, defendants are entitled to relief from those portions of the judgment related to inter-branch transfers. This system, unlike the lines of progression policy, was in effect when Title VII went into effect, and seniority rights were then vested under it. Opening up inter-branch transfers to protected groups of employees without loss of their branch seniority indubitably impinges retroactively upon seniority rights already vested at the critical time in employees in the transferee branch. It is this that is forbidden by § 703(h), so long as the seniority system is “bonafide.” 431 U.S. at 348-55, 97 S.Ct. at 1861-64.

We turn now to the fact that the district court in ruling on the 60(b) motion expressly concluded that in light of Teamsters, American’s seniority system was not bona fide. Implicit in that conclusion, earlier quoted, was the district court’s understanding that, under Teamsters, American’s branch seniority system would not be bona fide if it either “had its genesis” or was thereafter “maintained” for an illegally discriminatory purpose. We agree that this is Teamsters teaching. Id. at 356, 97 S.Ct. at 1865. However, we do not think that the record before the district court when it ruled upon the motion justified its specific conclusion that the system was not bona fide under this test. Certainly there are not in the record before us express findings of fact that would support such a conclusion. Whether there is evidence sufficient to support the requisite findings of fact is doubtful in view of the understanding of § 703(h)’s application that reigned in this Circuit when the original record was being made. In consequence, the present record does not permit us to conduct a principled review of the district court’s ruling on this point. See Schneiderman v. United States, 320 U.S. 118, 129-30, 63 S.Ct. 1333, 1338-39, 87 L.Ed. 1796 (1943); Kelley v. Everglades Drainage District, 319 U.S. 415, 421-22, 63 5. Ct. 1141, 1144-45, 87 L.Ed. 1485 (1943); Knapp v. Imperial Oil & Gas Products Co., 130 F.2d 1, 3-4 (4th Cir. 1942).

Because the issue of the branch seniority system’s bona fides only emerged in its present contours after the original record was made, we conclude that the relief invoked by defendants under 60(b) can only be achieved by reopening the record for additional proof and a new determination of bona fides in light of Teamsters,⁶

III

Evans

Evans held that Title VII was not violated by an employer’s failure to grant retroactive seniority under its bona fide seniority system to a rehired employee who had not filed timely charges with EEOC following her earlier discriminatory discharge. Defendants here contend that Evans draws in question the continued validity of the district court’s judgment to the extent it finds violations of Title VII and grants relief related to defendants implementation of its 1968 promotional system, because no timely challenge to that system was filed with EEOC when the system was adopted. We conclude that Evans is inapposite to the facts of this case and hence requires no modification or reconsideration of the judgment.

In Evans the Court specifically rejected the employee’s claim that the failure to accord her retroactive seniority benefits constituted a “continuing violation” that was not time-barred. Rejection was on the basis that the seniority system itself was not charged or proven to constitute an existing- violation of the claimants’ rights to nondiscriminatory conditions of employment. In the instant case, by contrast, the violations charged and found by the district court were “continuing” in the very sense not present in Evans. Here the promotional policies adopted in 1968 were alleged by the claimants, found by the district court, and affirmed by this court to involve a continuing pattern or practice of discrimination that locked black and women employees into less favorable job positions. These effects, unlike the denial to the Evans claimant of retroactive seniority benefits, constitute truly “continuing” violations of Title VII. Hence, claims related to these violations are not barred by failure to have challenged at its inception the policy which gave continuing rise to them.

IV

Hazelwood

Defendants contend that Hazelwood undercuts the basis upon which discrimination was found in appointments to supervisory positions at the Richmond and Virginia branches, and that they are accordingly entitled to relief from related portions of the judgment. While we do not believe that Hazelwood requires full relief from the judgment on the present record, we conclude that it does require remand for reconsideration.

Hazelwood made two critical clarifications in Title VII doctrine that might significantly have affected the district court’s original assessment of the evidence, its resulting judgment, and this court’s initial review of that judgment. The first has to do with the relevant time period within which discrimination is to be assessed;' the second, with the assessment of statistical proof in respect of jobs claimed by the employer to require special qualifications or skills. For reasons that follow, we conclude that the judgment under attack is not supportable on the present record under a fair application of these principles from Hazel-wood, and that their proper application can only be insured by reconsideration of the evidence related to the supervisory positions on a reopened record in the district court.⁷

The district court’s original finding of discrimination in appointments to the supervisory positions was based entirely upon plaintiff’s statistical proof. This showed substantial current disparities between the percentages of blacks and women in the general population of the Richmond SMSA ⁸ and those employed in supervisory positions by American in its Richmond and Virginia branches⁹ and, again, between the percentages of black and women employees in lower level positions at American and those employed in supervisory positions by American in its two branches. Taking into account that the supervisory positions had been filled partially by hiring from outside and partially by promotion and transfers from within American’s work force, the district court concluded that a violation of Title VII in filling these positions had been established by plaintiff’s statistical proof. The district court considered but was unpersuaded by defendants’ statistical evidence offered to rebut plaintiff’s prima facie case. That evidence consisted of two elements favoring defendants’ position that were then and now contended to be more probative on the issue than plaintiff’s statistical evidence: statistical data showing the percentages of women and blacks categorized as “supervisors” in the SMSA figures compared with the percentages of blacks and women employed in supervisory positions at American; and statistical data showing the overall course of American’s appointments to vacant supervisory positions since the effective date of the Act.

While the record is not wholly clear on the point, we are persuaded that the district court gave little, if any, consideration to these elements of defendants’ proof, presumably for the very reason that Hazel-wood had not then made plain their great importance in assessing proof of discrimination in this type case. Our reasons for this conclusion require brief analysis of Hazel-wood’s specific teaching on the relevant issues and of the district court’s order denying the Rule 60(b) motion.

As we recently pointed out in EEOC v. Radiator Specialty Co., 610 F.2d 178 at 185 (4th Cir. 1979), Hazelwood and its recent progeny have now confirmed the inappropriateness in the usual case of using general population and general work force statistics as base data for establishing discrimination in respect of hiring and promoting to job positions requiring special qualifications “not commonly possessed or readily acquired.” In the instant case, it seems obvious that in the pre-Hazelwood setting both the district court in entering original judgment and this court in review simply assumed the appropriateness of using plaintiffs’ general population and general work force statistics as the base data for comparison with American’s employment of blacks and women in supervisory positions. On the district court’s part this may have been because it rejected American’s contention that special qualifications existed. If so, the record does not indicate that this was the basis for the court’s reliance upon plaintiffs’ statistics, nor would such a conclusion have been supported on that record. The question whether special qualifications in the Hazelwood sense did or did not exist for these positions could not be resolved as a matter of law on the basis of the opposing parties’ bald conflicting assertions, nor by looking simply to the manifest nature of the positions, but required a factual inquiry whose necessity was not then realized. See EEOC v. Radiator Specialty Co., 610 F.2d at 178 at 185. That factual inquiry is required now to assure compliance with Hazelwood’s teaching on the appropriate use of statistical evidence to establish and to rebut a prima facie case of discrimination.

It is equally obvious that the district court and this court in the pre-Hazelwood setting failed to assess the evidence with appropriate regard for the relevant time period for inquiry as that too has now been clarified in Hazelwood. Basically, Hazel-wood teaches on this point that the relevant period commences no earlier than the effective date of the Act.¹⁰ This has two critical consequences. It makes irrelevant to the establishment of a prima facie case any evidence, including statistical data, related to pre-Act employment acts.¹¹ Perhaps more critically, it permits an employer effectively to rebut a prima facie statistical showing of discrimination in a current, static employment situation by showing that within the critical post-Act time frame its employments acts have been non-discriminatory. Thus, an “employer who from [the effective date of the Act] forward made all its employment decisions in a wholly nondiscriminatory way would not violate Title VII even if it had formerly maintained an all-white work force by purposefully excluding Negroes.” 433 U.S. at 309, 97 S.Ct. at 2742.

In considering on the 60(b) motion whether Hazelwood required relief from the judgment, the district court took the view that its only possible relevance was “on the question of whether the defendant should have been allowed to put on evidence to rebut the plaintiffs’ prima facie case.” As to this, the court pointed out, the defendants had been “allowed and they did, put on a substantial amount of evidence in an unsuccessful attempt to rebut the prima facie case.” Therefore, the court concluded, “Hazelwood ... is inapplicable to these cases.” Jt.Supp.App. at 23. As our discussion has indicated, Hazelwood goes well beyond simply authorizing the presentation of rebutting proof by an employer, and touches in critical ways upon the appropriate mode of assessing the total proof adduced by both sides. Our review of the record, including of course the district court’s expressed perception of Hazelwood’s impact, persuades us that reconsideration of the evidence on a reopened record is required in order fairly to determine whether the judgment can stand in light of Hazelwood.12

As earlier indicated, it is clear in the first place that the question of special qualifications for the supervisory positions must be determined as a prelude to proper assessment of the statistical evidence. If it is determined that no special qualifications beyond those commonly possessed or readily acquired are involved, then general population and work force statistics within the relevant time period may appropriately be used to determine whether plaintiffs’ evidence of record establishes a prima facie case.¹³ If it is determined that special qualifications in this sense do exist, then the most probative evidence will be qualified market data,¹⁴ and general population and work force data may be found not appropriate as the basis for statistical comparison.¹⁵ In the latter event, plaintiffs should be allowed on the reopened record to adduce any evidence of qualified market data available to them. See EEOC v. Radiator Specialty Co., 610 F.2d at 178, 185.

Next, in assessing defendants’ rebutting evidence, whether on the present or a reopened record, proper weight must be accorded its tendency to show nondiscrimination in post-Act employment decisions, notwithstanding the inference of discrimination permissible under Griggs from plaintiffs’ statistical proof of a prima facie case. In order fairly to assess defendant’s efforts at rebuttal, it would seem necessary to establish on a reopened record the details of the relatively small number of post-Act appointments (apparently around 30 in number) to supervisory positions: the approximate dates when vacancies were filled, the race and sex of each appointee, and whether appointment was by promotion from within or hiring from without. Only so can a valid statistical comparison within the relevant labor pool be made.

V

For these reasons, the order of the district court denying on their merits the motions of American and the Union for relief under Fed.R.Civ.P. 60(b) is affirmed in part and vacated and remanded in part for further proceedings consistent with this opinion.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

1 . Defendants first moved for relief in this court, seeking a recall of mandate and an order directing the district court to vacate its modified judgment. The recall of mandate was denied on the authority of Standard Oil Co. v. United States, 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976), as not requisite to district court consideration of the motions for relief. Jt.Supp. App. 2, 3. Defendants then moved in the district court that the modified judgment be vacated and the complaints dismissed on the basis of the intervening decisions. While the motions did not identify the rule under which they were made, they are most appropriately treated as motions under Fed.R.Civ.P. 60(b)(5) for relief from a judgment certified as final for purposes of appeal under Fed.R.Civ.P. 54(b). Jt.App. 183-84.

2 . Frequently alluded to by the litigants as the “plantwide seniority system,” essentially to distinguish it from the earlier departmental system that it supplanted in 1963.

3 . Plaintiffs have contended that 703(h) has no application to the job lines of progression policy because, as administered, the policy was not a seniority system within contemplation of § 703(h). Without challenging the proposition that the job lines of progression may constitute a 703(h) seniority system, see Teamsters, 431 U.S. at 355 & n.41, 97 S.Ct. at 1863 & n.41, the contention is that the only seniority system in effect at American was the plantwide (branch seniority) system; that it alone determined progression even within the job lines of progression adopted in 1968, there being no superimposed seniority system integral to this separate policy. Plaintiffs seek' and find considerable support for this position in various formal representations made by American in this litigation that the job lines of progression policy was operated entirely on a plantwide seniority basis. This was not, however, a factual issue directly litigated in the case and the record as presently composed is ambiguous on it. In view of our stated basis for deciding that 703(h) has no application to seniority systems instituted after the effective date of Title VII, we need not address this as a possible alternative basis for decision.

4 . Judge Widener’s dissenting opinion challenges this factual assertion, contending that this policy was demonstrably in effect prior to the effective date of Title VII in 1965. With all respect for his exhaustive search of the evidentiary record and for the fruits of that search in which he finds support for his challenge, we simply disagree with the inferences he draws and perhaps with the legal implication he derives from those inferences.

Without attempting here an exhaustive counteranalysis of the factual record, our perception is that while the informal rudiments of what is now described as a “job lines of progression policy” certainly existed before 1965, the stated procedures adopted by American in 1968 to control entry into and promotions within specifically identified job “lines” involved enough of change and formalization (whether in favor of or against employee interests) to constitute a new policy, or at least one so radically altered from prior unstructured procedures that it could not be considered simply a “routine application,” see Teamsters, 431 U.S. at 352, 97 S.Ct. at 1863, of those pre-1965 procedures. As indicated in text of this opinion, we construe § 703(h) as a quite narrow exception to Title VII’s general coverage of all “conditions of employment,” including of course promotional policies, the prime subject of all types of seniority systems. In line with that narrow interpretation, we consider that “routine application” should be given a stringent reading against any employer seeking the special insulation provided by § 703(h) for any seniority “system” alleged to have been in place when Title VII was enacted. On that basis, we conclude, as a panel of this court has long since assumed-without intervening challenge of fact or law-that within contemplation of § 703(h), the job lines of progression policy here in question only came into existence in 1968.

5 . The applicability of § 703(h) to seniority systems initiated after the effective date of Title VII was not decided by Teamsters. See Note, 52 Tul.L.Rev. 397, 405 (1978). The EEOC position is that § 703(h) has no applicability to seniority systems not in operation at the effective date of Title VII. EEOC Notice N-915 (July 14, 1977), reprinted in EEOC Compliance Manual *' 6500. We need not here embrace in its entirely this EEOC interpretation of Teamsters to agree that the legislative history suggests that post-Act seniority systems were not intended to be included in the protection of § 703(h). A memorandum prepared by Senators Clark and Case stated in explanation of the intended effect of this section that “Title VII has no effect on established seniority rights.” 110 Cong.Rec. 7213 (1964). The Justice Department noted that “Title VII would have no effect on seniority rights existing at the time it takes effect.” Id. at 7207. In discussing this legislative history, the Supreme Court noted in Teamsters that Title VII would allow “full exercise of seniority accumulated before the effective date of the Act,” 431 U.S. at 352, 97 S.Ct. at 1863, and that Congress did not intend to punish employees by destroying their “vested seniority rights . .. simply because their employer had engaged in discrimination prior to the passage of the Act,” id. at 353, 97 S.Ct. at 1863. The question of the application of § 703(h) to seniority systems initiated after 1965 was not present in Teamsters and apparently has not been authoritatively addressed subsequently. Considering that Title VII is a broad remedial statute, we believe the legislative history supports the view that only those bona fide seniority systems in operation when Title VII took effect are entitled to the protection of § 703(h). Systems initiated in the post-Act period must of course pass muster under the Griggs analysis in the same manner as other facially neutral policies or practices challenged as discriminatory in their consequences. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

6 . For guidance in addressing the issue the district court may find helpful the Fifth Circuit’s decision in James v. Stockham Valves & Fittings Co., 559 F.2d 310, 350-53 (5th Cir. 1977).

7 . See note 1 supra.

8 . There is no dispute that the appropriate geographical area from which to draw base statistical data is that defined by the Richmond SMSA.

9 . This excludes any consideration of the special case of the Richmond office which, with only four or five post-Act vacancies involved, is not in issue on this appeal.

10 . Under Evans, of course, the beginning of the relevant time period may be at later times set by limitation periods for charging violations.

11 . Except for the limited purpose of proving inferentially the continuation of pre-Act discrimination into the post-Act time period. See Hazelwood, 433 U.S. at 309 n.15, 97 S.Ct. at 2742 n.15.

12 . The possibly decisive force of defendants’ proof of post-Act appointments if properly considered under Hazelwood’s teaching is exhaustively explored in Judge Widener’s opinion dissenting from the withdrawn panel opinion in this appeal. 586 F.2d at 306-10. Without attempting prejudgment of the matter, we draw attention here to that analysis merely to emphasize our conviction that Hazelwood’s impact may not have been fully appreciated by the district court in ruling on the Rule 60(b) motion.

13 . This will require a rough break-out of appointments by hiring from those by promotions (or transfers) from within American’s work force. The relevant labor pool for assessing discrimination in promotion practices consists of qualified lower level employees. £. g., Hill v. Western Electric Co., 596 F.2d 99 (4th Cir. 1979).

14 . While we have earlier noted the possibly decisive force of SMSA statistics as the appropriate qualified market data, see note 12 supra, the question of their actual appropriateness will itself require analysis by the district court. Defendants contend that we have already decided their appropriateness by stating in our original panel decision that they provided a “more realistic measure of the company’s conduct than the gross percentage of blacks and women in the whole work force.” 535 F.2d at 275. This was said, however, in the context of an evaluation of the propriety of the district court’s remedial order. The question of their appropriateness for determining liability in the first instance is an open one on the present record. The SMSA statistics give the percentages of blacks and women in the Richmond area who are employed in jobs denominated as “supervisory” in the total labor pool there analyzed. Whether these percentages substantially reflect the percentages of persons in that pool “specially qualified” for American’s particular supervisory positions is not manifest on the present record.

Until the actual nature of any special qualifications required for American’s positions is determined in some factual detail, the probative force of the SMSA data will not be apparent. In any event, plaintiff is not absolutely required to produce evidence of the actual percentages of specially qualified blacks and women in the relevant labor pool in order to make out a prima facie case. Other data, e. g., applicant-flow statistics, may be “very relevant,” Hazel-wood, 433 U.S. at 308 n.13, 97 S.Ct. at 2742 n.13, though this has to be carefully assessed in light of the particular situation in issue. See Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977).

15 . Hazelwood did not entirely rule out the use of general population and general work force statistics in “special qualification” cases, simply pointing out that “[w]hen special qualifications are required to fill particular jobs, comparisons to the general population . . . may have little probative value.” 433 U.S. at 308 n.13, 97 S.Ct. at 2742 n.13 [emphasis supplied]. The question remains whether under the circumstances of a particular case the statistical proof offered justifies the inference on which the prima facie case rests. Our own postHazelwood cases have made it plain, however, that where special qualifications are found to exist, general population and work force statistics will not normally suffice as the base data for establishing a prima facie case. See EEOC v. Radiator Specialty Co., 610 F.2d 178 (4th Cir. 1979); Hill v. Western Electric Co., 596 F.2d 99 (4th Cir. 1979); EEOC v. Chesapeake & Ohio Railway, 577 F.2d 229 (4th Cir. 1978).