Johnson v. Uncle Ben's, Inc.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2590

THOMAS JOHNSON,
Plaintiff-Appellant,

versus

UNCLE BEN'S, INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Texas

(July 1, 1992)

Before WILLIAMS, JOLLY, and HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

This employment discrimination class action has been in the

federal courts for eighteen years, a captive to large changes in

the controlling law. It now makes its third appearance before this

court. On behalf of himself and similarly situated class members,

Thomas Johnson appeals the grant of summary judgment in favor of

Uncle Ben's, Inc. We affirm.

I.

Thomas Johnson, an employee at a rice-processing plant owned

by Uncle Ben's, Inc., filed this suit in 1974. The complaint

alleged that, commencing in March 1972, UBI discriminated against

him and similarly situated Black and Mexican-American employees in

violation of 42 U.S.C. § 1981. He amended the complaint in 1975 to
add a claim under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq.

The district court certified a class of Black and Mexican-

American persons who have been employed or may in the future be

employed by UBI. The case was tried to the bench from October 3

until October 21, 1977. At the conclusion of Johnson's direct

case, the district court dismissed all claims except discrimination

in the promotion of Black employees. UBI then called its personnel

manager and three expert witnesses. At the conclusion of Johnson's

direct examination of an expert rebuttal witness, the district

court granted judgment in favor of UBI.

The first district court opinion held that the proportion of

Blacks to whites in each job title at UBI should be compared to the

ratio of Black to white workers in comparable jobs in the Houston

Standard Metropolitan Statistical Area. Finding that the ratio of

Black to white workers in each job title at UBI was similar to the

proportion of Black to white workers in comparable jobs in the

Houston SMSA, the district court held that UBI had not violated

Title VII. Johnson I, 628 F.2d at 425.

We in turn vacated and remanded for further findings, holding

that workers employed in similar jobs in the Houston SMSA were not

necessarily the benchmark qualified applicant pool. Johnson v.

Uncle Ben's, Inc., 628 F.2d 419 (5th Cir. 1980). We stated:

"If [UBI] hires laterally, the relevant comparison is to
the general or qualified outside labor force. If Uncle
Ben's fills jobs by promotion, the relevant comparison,
as we recognized in James v. Stockham Valves & Fittings
Co., 559 F.2d at 331, 341, is the company's internal work
force. The applicability of James in any given case

2
 turns on whether vacancies in non-entry level positions
are or could be filled by promotion. If the vacant
positions ordinarily are filled by lateral hires or
hiring from among graduates of relevant educational
programs, then the rigid James rule is inapplicable."

Johnson I, 628 F.2d at 425. We remanded for findings regarding

"how many of those 394 employees [at UBI] hold jobs that ordinarily

cannot be filled by promotion." Id. The district court was

instructed to "determine the number of Uncle Ben's jobs that were

filled by promotion and the number that were filled by hiring from

outside of the Uncle Ben's work force." Id. at 426.

The Supreme Court, however, vacated Johnson I and remanded the

case for reconsideration in light of its decision in Texas Dep't of

Community Affairs v. Burdine, 451 U.S. 248 (1981). Uncle Ben's,

Inc. v. Johnson, 451 U.S. 902 (1981). On remand, we held that

Burdine was inapplicable to this disparate impact case and again

remanded to the district court for further proceedings as stated in

Johnson I. Johnson v. Uncle Ben's, Inc., 657 F.2d 750 (5th Cir.

1981).

Judge Sterling, who originally tried this case and issued the

first district court opinion reviewed in Johnson I, died while this

case was pending. The case was then assigned to Judge Hughes. On

May 2, 1991, Judge Hughes granted summary judgment in favor of UBI.

In his opinion, Judge Hughes stated that judgment for UBI was

appropriate because Johnson had failed to make a prima facie case

of disparate impact and had not stated an actionable claim under

§ 1981.

3
 The district court held that Johnson proved only that there

was a "high percentage of Black employees at Uncle Ben [sic] in

low-level jobs versus a low percentage of minority employees in

high level jobs." Because Johnson failed to prove that low level

employees were the appropriate pool of qualified persons in the

relevant labor market, he failed to prove any disparate impact.

The district court also found that Johnson failed to prove

that any specific employment practice had a disparate impact upon

the rate of Black promotion and that UBI had, in any event,

rebutted any prima facie case by producing legitimate business

reasons for its employment practices. Finally, relying on

Patterson v. McClean Credit Union, 491 U.S. 164 (1989), the

district court rejected Johnson's § 1981 claim, finding that the

claim did not rest on discrimination in the formation of a new

employment contract.

The trial evidence consists largely of statistics concerning

placement of Black and white employees at UBI's two processing

plants and administrative offices in Houston, Texas. UBI's

workforce is organized into three categories--plant workers paid an

hourly wage, office workers paid an hourly wage, and salaried

personnel. Each group is, in turn, subdivided into "zones," each

zone representing a wage or salary range.

Johnson presented undisputed statistical evidence that Black

employees were generally clustered in the bottom job zones within

each of the three job categories, while the top job zones in each

category were filled by white employees. Black employees comprise

4
95.3% of the workforce in the three lowest plant hourly job zones,

holding jobs as porters, warehousemen, packers, fork lift

operators, fumigators, bran hull helpers, rough rice helpers, and

mill helpers. However, white employees held all of the highest two

plant hourly job zones, including maintenance first class, boiler

operator, and miller first class. The patterns were similar in

office hourly and salaried positions. That is, Blacks were in the

lowest office job zones, such as cafe porter, junior file clerk,

and cook, and lowest salaried positions, including microbiology

analyst and accountant. Whites held jobs in the higher zones in

both office and salaried categories, including stenographer, export

service clerk, receptionist, and computer operator and most of the

salaried managerial and supervisory positions.

Johnson did not deny that promotion across category lines,

while possible, was unusual. Generally, workers were promoted only

to the top of the job category in which they start their

employment. However, the parties fiercely disputed the lines of

promotion within each of the three job categories. UBI argued at

trial and on appeal that workers qualified to hold jobs in the

lower zones of a job category were not necessarily qualified to

hold higher jobs in the same category.

Johnson replied that the court should look to lower job zones

as the qualified applicant pool for the higher job zones because

the natural line of progression was a low level entry followed by

gradual promotions through the job zones rising through the plant,

office, or salaried hierarchy. He argues that Black employees were

5
not promoted at the same rate as whites. Black workers entered at

a low level and stayed there, stopped by a glass ceiling of race

discrimination.

Johnson offered data showing that most jobs at UBI were filled

through promotion. According to Johnson's undisputed evidence, in

March of 1972, 65.3% of all the salaried positions, 53.6% of the

office hourly positions, and 91.0% of the plant hourly positions at

UBI were filled by promotion and not by initial hire from outside

the UBI workforce. Johnson's data, however, said little about

which jobs at UBI were filled by promotion or, more importantly,

from which jobs different UBI jobholders were promoted.

II. Johnson's Title VII Claim

Johnson contends that three of UBI's employment practices--

tests, formal educational requirements, and subjective promotion

decisions by supervisors--had the effect of denying promotions to

a disparate proportion of Black employees. For his prima facie

case of disparate impact, Johnson "need[ed] only show that the

facially neutral employment standards operate more harshly on one

group than another." Carpenter v. Stephen F. Austin State

University, 706 F.2d 608, 621 (5th Cir. 1983). This initial burden

included proof of a specific practice or set of practices resulting

in a significant disparity between the proportion of Black

employees at UBI and the proportion of Blacks in the pool of

qualified applicants. Cox v. City of Chicago, 868 F.2d 217, 220

(7th Cir. 1989).

6
 Statistical disparities between the relevant labor pool and

UBI's workforce are not sufficient. Pouncy v. Prudential Ins. Co.

of America, 668 F.2d 795, 800-801 (5th Cir. 1982). A plaintiff

must offer evidence "isolating and identifying the specific

employment practices that are allegedly responsible for any

observed statistical disparities." Wards Cove Packing Co., Inc. v.

Atonio, 109 S.Ct. 2115, 2124 (1989) (quoting Watson v. Fort Worth

Bank and Trust, 108 S.Ct. 2777, 2788 (1988) (plurality opinion)).

Johnson must also "offer statistical evidence of a kind and degree

sufficient to show that the practice in question has caused the

exclusion of applicants for jobs and promotions because of their

membership in a protected group." Watson, 108 S.Ct. at 2788-89;

Pouncy, 668 F.2d at 801 ("The disparate impact model requires proof

of a causal connection between a challenged employment practice and

the composition of the work force"). Absent "a systematic analysis

of the racial effects of all promotional criteria for each rank,"

Black Fire Fighters Ass'n. v. City of Dallas, Texas, 905 F.2d 63,

63 (5th Cir. 1990), Johnson cannot establish a prima facie case of

disparate impact.

Johnson challenges three employment practices: UBI's

"educational requirements," UBI's "subjective system of promotion,"

and UBI's use of irrelevant employment tests. Johnson was able to

do little more than describe the content or application of the

requirements. He failed a fortiori to show the specific effect

that each had on Black promotions.

7
 As evidence of UBI's educational requirements, Johnson cites

the testimony of Dr. Richard Jeanneret, an industrial psychologist

and UBI's expert witness. Jeanneret testified concerning his study

of 119 job titles at UBI, in which he interviewed UBI's employees,

observed work at UBI's facilities, and studied various job

descriptions. At trial, he testified about the level of education

that he believed UBI employees would need to perform different jobs

successfully. Jeanneret did not explain in detail which jobs at

UBI required which levels of education. He simply described the

number of jobs at UBI that required a high school or college degree

"or equivalent experience."1

Jeanneret also did not purport to testify concerning the

educational levels that UBI actually required. Rather, he

testified only about the skills he believed UBI's employees ought

to have. He conceded that UBI's own job descriptions did not

contain "written educational requirements" and that he was

testifying from his "expertise as opposed to some requirement that

is imposed at Uncle Ben's." Jeanneret testified that UBI's

"posting notices" announcing "something about education or an

education related item" such as "training in . . . chemistry or

math," but he did not testify at any time that UBI actually

1
Dr. Jeanneret testified out of roughly 191 jobs, 39 of the
jobs required a college degree, 27 required "some college perhaps
or some type of training beyond that which one normally gets at
high school," 39 required "either high school or some form of
vocational school or some other type of equivalent education," 45
jobs would require "simply a high school education or equivalent
experience," and 43 jobs would require "less than a high school
education."

8
required employees to have any degrees or formal education level

for promotion to any UBI job.

Dr. Jeanneret's testimony, therefore, does not compel the

conclusion that UBI had formal educational prerequisites for

promotion. Aside from Dr. Jeanneret's testimony, Johnson relies on

his own testimony to establish that educational requirements

existed at UBI. He testified that a supervisor told him that "you

don't have the science background or the academic background to

satisfy the needs of the job [to which Johnson sought promotion]"

(emphasis added). However, even if the district court credited

Johnson's testimony, that testimony indicates at most that a

supervisor told Johnson that he lacked necessary "background" in

science, not that Johnson lacked a formal degree or other specific

educational prerequisite to promotion. According to Johnson's own

testimony, the supervisor simply informed Johnson that "you don't

have the skills that we are looking for." This testimony indicates

at most that UBI required some unspecified level of scientific

training.

In contrast to the testimony of Dr. Jeanneret and Johnson

himself, UBI's personnel director, Herman Koehn, presented specific

testimony that UBI did not require any particular level of

education for most of the jobs at UBI. Koehn testified that "[w]e

don't make an evaluation on whether [one] finished high school or

not in terms of [whether one will] be[] offered a job." According

to Koehn, he "never thought about job requirements in terms of high

9
school or no high school." Rather than rely on formal education,

Koehn testified that UBI

"would focus on the job and the ability to make numerical
calculations and reading and writing. And [this would]
not necessarily [be] reflected upon the number of years
at school. It would be what they had learned and what
they were able to do through displaying what they can do
on the job."

Koehn also noted that there were supervisors who had never obtained

a college degree. Koehn admitted that food supervisors in research

and development had to have "knowledge in the sciences," but he

denied that this knowledge required a "specific degree." Rather,

the supervisor in research and development needed "an educational

background in the "physical sciences, chemistry, courses that

relate to . . . food science." Koehn also stated that microbiology

analysts ought to have "academic training in microbiology," but,

again, he did not specify the level of training expected.

In short, Johnson presented frail evidence concerning the

differing educational backgrounds that UBI required for different

jobs and presented no evidence whatsoever concerning how many Black

employees failed to meet UBI's requirements. Johnson contends that

any educational requirements, regardless of their content, would

"by definition" have a disparate impact on Black promotion rates,

because Blacks in general tend to have less education than whites.

To support this argument, Johnson cites national data from the 1970

U.S. census in his brief on appeal.

The national population, however, is not the qualified labor

pool against which UBI's workforce should be compared. The effect

of educational requirements on the ability of Blacks in the

10
national population to get promotions at UBI has little relevance.

New York Transit Authority v. Beazer, 440 U.S. 568, 584-87 (1979)

(statistics showing that 63%-65% of methadone users in New York

City's public programs were Black or Hispanic does not show that a

disproportionate number of Black or Hispanic Transit Authority

employees were dismissed for using methadone). The question is

whether and how specific educational requirements affected UBI

employees seeking promotions. It is not obvious that Black UBI

employees in the pool of employees qualified for promotion to

higher levels would not have the skills or education allegedly

required for promotion.

In short, there was little record evidence of the effects of

educational requirements on Black promotion rates from the

qualified applicant pool--employees at UBI. This is not to say

that UBI's entire internal workforce constituted the appropriate

statistical pool against which the proportion of Black employees at

UBI should be measured. Assuming without deciding that some job

zones at UBI should be compared with other lower UBI job zones, we

find a complete absence of evidence that UBI employees were barred

by educational requirements from reaching higher levels of

employment at UBI. The district court did not clearly err in

finding that Johnson failed to show that these alleged educational

requirements affected Black promotion.

Johnson also argues that UBI allowed its supervisors to make

promotion decisions subjectively and that this practice resulted in

a disparity between the promotion rates of Black and white

11
employees. However, "an employer's policy of leaving promotion

decisions to the unchecked discretion of lower level supervisors

should itself raise no inference of discriminatory conduct."

Watson, 108 S.Ct. at 2786. See also Pouncy, 668 F.2d at 801-02.

Johnson has not offered any evidence that Blacks' allegedly smaller

number of promotions was causally related to this subjectivity.

This cannot suffice to establish a prima facie case. Wards Cove,

109 S.Ct. at 2124-25.

Finally, Johnson refers to UBI's "use of invalidated

employment tests" as one challenged employment practice that had a

disparate impact on Black employees seeking promotions. There was

testimony that UBI had used three different written tests to

evaluate job applicants: (1) a typing test for jobs requiring

typing; (2) an arithmetic aptitude test for clerical jobs requiring

calculation such as statistical clerk; and (3) a "mental

adaptability test," which purported to test basic reading and math

skills. The last test was apparently discontinued sometime between

1971 and 1973.

Johnson presented no evidence of the effects of these tests on

Black promotions. There was no testimony that Blacks performed

more poorly on these tests than whites or that any Black employee

was denied a promotion as a result of his performance on these

tests. Indeed, Ethylene Burks, one of Johnson's witnesses and the

only witness to testify about a Black employee's performance on the

mental adaptability test, stated that the employee achieved a high

score of 90 on the test. Burks also testified that achievement of

12
any particular test score was not a prerequisite for promotion and

that test scores were only one factor among many that a supervisor

might consider. Given the dearth of evidence on the effects of the

various tests on Black promotion rates, we conclude that Johnson

failed to establish any causal nexus between the scores and the

alleged disparate impact.

Johnson contends that this court's earlier decision in Johnson

I precludes the district court from finding that he had failed to

make a prima facie case. According to Johnson, the Johnson I court

remanded for the narrow purpose of determining whether the

appropriate pool of qualified applicants constituted the entire

workforce of UBI or the population of people holding jobs similar

to those at UBI in the Houston Standard Metropolitan Statistical

Area. Johnson also argues that, if most jobs at UBI were filled

through promotion, then, under Johnson I, the district court was

required to find that Johnson had succeeded in establishing a prima

facie case of disparate impact.

We need not determine whether or not the district court's

findings went beyond the mandate of the Johnson I court. Assuming

arguendo that they did, we find that intervening Supreme Court

decisions justified such a departure. The "mandate rule" is "a

specific application of the 'law of the case' doctrine.'" Piambino

v. Bailey, 757 F.2d 1112, 1120 (5th Cir. 1985). Under this rule,

the district court must follow an appellate decision on an issue in

all subsequent trial proceedings unless the presentation of new

evidence or an intervening change in the controlling law dictates

13
a different result or if the appellate decision is clearly

erroneous and, if implemented, would work an egregious result.

Falcon v. General Telephone Co., 815 F.2d 317, 320 (5th Cir. 1987).

If the Johnson I court held that a disparity between the

proportion of Blacks in UBI's workforce and the relevant labor pool

of qualified applicants together with the use of challenged

employment practices were sufficient to establish a prima facie

case of disparate impact, it has been contradicted by the Supreme

Court's decision in Wards Cove, the Supreme Court's plurality

opinion in Watson, and this court's decision in Pouncy. As we have

explained, Johnson must identify a causal nexus between a specific

employment practice and a disparity in Black promotions. The

district court did not err in following Wards Cove and requiring

evidence that the particular challenged practices caused a

disparity in Black promotions.

III. Johnson's § 1981 Claim

Citing Patterson v. McClean Credit Union, 491 U.S. 164 (1989),

the district court held that Johnson's allegations of intentional

discrimination were not actionable under 42 U.S.C. § 1981, because

Johnson's allegations concerned "post-formation conduct of the

employment relationship, rather than . . . the making or enforcing

of a new contract." The district court found that Johnson's

evidence of discrimination was based entirely on discrimination in

"wage increases" and in promotions within each of the three basic

job categories. The district court held that movement within each

of the three categories--plant hourly, office hourly, and salaried-

14
-did not work sufficient change in the employer-employee

relationship under Patterson.

Patterson requires discriminatory "conduct at the initial

formation of the contract" or "conduct which impairs the right to

enforce contract obligations through legal process." Patterson,

109 S.Ct. at 2374. Discriminatory denials of promotion do not

state a claim under § 1981 unless the promotion denied to the

plaintiff "rises to the level of an opportunity for a new and

distinct relation between employee and employer." Id. at 2377.

Determining whether a promotion would create a "new and

distinct relation" requires a fact-specific examination into

employee's duties, pay, and responsibility before and after the

promotion. Harrison v. Associates Corp. of North America, 917 F.2d

195, 198 (5th Cir. 1990). The inquiry does not lend itself to

blanket prescriptions. At the least, "[R]outine increases in

salary and responsibility which are clearly part of an original

contract of employment" do not signal a new employment relation.

Harrison, 917 F.2d at 198. "It would be very odd to regard each

rung on the career ladder as a different employment relation."

McKnight v. General Motors Corp., 908 F.2d 104, 110 (7th Cir.

1990).

Johnson presented little evidence of the precise nature of the

promotions assertedly denied its class members. Rather, Johnson

urged that class members were denied promotion "from hourly-paid

positions to salaried positions and from non-supervisory positions

to supervisory positions." Johnson's anecdotal evidence of

15
specific attempts to obtain promotions showed that the promotions

involved routine upward movement by one or two job zones within a

single job category--plant, office, or salaried. In most cases,

both the pay raise and the change in responsibilities were modest,

involving no assumption of supervisory responsibility or change

from wage payment to payment of salary.

For instance, Ida Johnson, a junior file clerk (office job

zone two), applied for the position of traffic clerk (office job

zone four). Both jobs were essentially non-supervisory, clerical

positions paid by the hour, the latter being distinguished

primarily by the new duty of typing. Likewise, Marie Horner

testified that a typist, Brenda Smith, was denied a promotion to

the position of office receptionist--again, a move of two zones

from one non-supervisory, office-hourly position to another.

Zachary Perkins was denied a promotion from steeper-cooker (plant

zone four) to dryer operator (plant zone seven). Both were non-

supervisory positions involving the operation of plant machinery,

and Perkins testified that steeper-cooker operators were normally

promoted to dryer operator as a matter of course.

Two class members present a closer case. Clyde Cobb and

Johnson himself sought and were denied promotions from non-

supervisory jobs in salaried job zone seven (the lowest salaried

job zone) to a supervisory position. As the promotion sought was

from a non-supervisory position to a supervisory position, there is

not a complete absence of evidence that the promotion involved a

new employment relation: changes in supervisory status are

16
relevant to determining whether a promotion creates a new and

distinct relation under Patterson. Sitgraves v. Allied-Signal,

Inc., 953 F.2d 570, 574 (9th Cir. 1992).

However, we find that the record evidence concerning the

promotions sought by Cobb and Johnson is insufficient to create a

genuine fact question. Attainment of supervisory status does not

alone create a new and distinct employment relation. Partee v.

Metropolitan School District of Washington Township, 954 F.2d 454,

457 (7th Cir. 1992); Mozee v. American Commercial Marine Service

Co., 940 F.2d 1036, 1051-55 (7th Cir. 1991). Aside from the

supervisory status of the jobs sought by Cobb and Johnson, the

other evidence suggested that the promotions would not create a new

employment relation. Dr. Jeanneret's undisputed testimony about

the supervisory positions was that they could only be filled

through promotion from lower-zoned positions.2 Such testimony

indicates that the positions were simply rungs on a career ladder,

not new employment contracts. Malhotra v. Cotter & Co., 885 F.2d

1305, 1311 (7th Cir. 1989).

In any case, aside from the fact that Johnson and Cobb sought

supervisory positions, Johnson has not pointed to specific record

evidence that the promotions sought by Cobb and Johnson would

create new employment relations. Given that the change from a non-

supervisory to a supervisory position does not suffice by itself to

2
On cross-examination, Dr. Jeanneret testified that "all of
these jobs [administrators and managers] would require experience
at Uncle Ben's really before assuming the position," and he
agreed that such positions were "jobs that a person has to be
promoted into."

17
create a new employment relation, Johnson has not carried his

summary judgment burden. Celotex Corp. v. Catrett, 106 S.Ct. 2548,

2553 (1986); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-17

(5th Cir. 1992).

Johnson's general contention that the promotions in this case

involved "new and distinct relations" sits uneasily with his

contention at trial that UBI's job zones represented routine steps

in a sequential hierarchy in which work in each job zone gave the

qualifications needed for the duties of the next zone. With such

a natural progression, promotion within a single job category and

across only one or two pay zones is not likely to create a new

employment contract. To the contrary, they appear to be a

fulfillment of expectations implicit in the original employment

contract. Johnson strenuously argued at trial that the zone-by-

zone promotion was simply the ordinary progression of a UBI

employee. It is difficult to accept that proposition and also the

proposition that each promotion represented a "new and distinct

relation." Carter v. South Central Bell, 912 F.2d 832, 840 (5th

Cir. 1990). The district court did not err in concluding that

under the undisputed evidence there was no "new and distinct

relation between employee and employer" within the meaning of

Patterson.

IV. Retroactivity of the Civil Rights Act of 1992

In a Rule 28(j) letter sent to the clerk of this court four

days after the enactment of the Civil Rights Act of 1991, Johnson

argued that the Civil Rights Act of 1992 ought to be applied to

18
this case retroactively. The Civil Rights Act of 1991, 42 U.S.C.

§ 2000e-2(k), however, did not alter the "particularity" aspect of

Wards Cove as applied in this case.3 The application of the Act

has no effect on our disposition of Johnson's Title VII disparate

impact claim, and we need not address whether the Act's provisions

affecting Title VII disparate impact claims are retroactive.

The Act would, however, affect the disposition of Johnson's

§ 1981 claim. Section 101(2)(b) of the Act construes § 1981 to

include

"the making, performance, modification, and termination
of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual
relationship."

42 U.S.C. § 1981(b). Under § 1981 as amended by the Act, racial

harassment and other discrimination in an employment relation

occurring after contract formation is actionable. If the Act

applies to this case, the district court erred in dismissing

Johnson's § 1981 action on the ground that the discrimination did

not occur during the formation of a new employment relation.

We must determine whether § 101 of the Act amending § 1981

applies retroactively to cases pending when the Act was enacted.

We have not previously addressed the issue. Three circuits and the

Equal Employment Opportunity Commission have done so. Luddington

3
Section 105(a) of the Act, 42 U.S.C. § 2000e-
2(k)(B)(i)(A)(i) provides that "the complaining party shall
demonstrate that each particular challenged employment practice
causes a disparate impact, except that if the complaining party
can demonstrate to the court that the elements of a respondent's
decision-making process are not capable of separation for
analysis, the decision-making process may be analyzed as one
employment practice."

19
v. Indiana Bell Telephone Co., No. 91-2320 (7th Cir. June 15, 1992)

(Posner, J.); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th

Cir. 1992); Mozee v. American Commercial Marine Service Co., No.

90-2660 (7th Cir. May 7, 1992); Vogel v. City of Cincinnati, 959

F.2d 594 (6th Cir. 1992); EEOC Notice No. 915.002 (December 27,

1991). All have found that the Act does not apply retroactively to

conduct occurring before the effective date of the Act.

We find the holdings of all other circuits on this issue

persuasive. The statutory language and legislative history is

inconclusive on the question of retroactive application. Applying

a general presumption against retroactive application of

substantive laws, we find that § 101 of the Act, 42 U.S.C.

§ 1981(b), should not be applied to a case pending on appeal that

was filed and decided by the trial court before the enactment of

§ 101 and that arises out of conduct occurring before § 101's

enactment.

In determining whether a statute is retroactive, we look first

to the language of the statute. The language of the Civil Rights

Act of 1991 offers little help. As one court has noted, Congress

"dumped the [retroactivity] question into the judiciary's lap

without guidance." Luddington, No. 2320, at 3. The Act nowhere

states that it applies either prospectively or retrospectively. It

is silent on the subject, stating only that it "shall take effect

upon enactment"--November 21, 1991.

Sections 109(c) and 402(b) of the Act state that the Act

should not apply retroactively to certain categories of cases.

20
P.L. No. 102-166, §§ 109(c), 402(b), 105 Stat. 1071-1100.4 One

district court has reasoned that § 402(b) and § 109(c) imply that

the statute should generally be applied retroactively. Otherwise,

the specific sections withdrawing retrospective application would

be "meaningless." Stender v. Lucky Stores, Inc., 780 F.Supp. 1302,

1304-05 (N.D. Cal. 1992).

Stender's reasoning rests too much on negative implication.

Congress may have wanted to ensure that certain retroactive

applications of the statute were barred without intending to reach

any general conclusion about the statute's general retroactive

application. Mozee, 90-2660, at 9-10. Several Senators stated as

much. Fray, 960 F.2d at 1377. Moreover, attempts to extend the

Act explicitly to pending cases failed. President Bush vetoed the

Civil Rights Act of 1990, which contained language applying the Act

retroactively to pending cases. The Civil Rights Act of 1991

dropped this language and was signed by the President. It may have

been that neither the proponents of retroactive application nor the

supporters of pure prospectivity could obtain a veto-proof majority

concerning the general application of the Act. We do not know, but

the relevant point is that the negative implication cannot carry

Stender's freight given the swirling confusion surrounding the

Act's passage.

4
Section 402(b) provides that the Act shall not apply
retrospectively to the Wards Cove case itself, and § 109(c)
provides that the Act's provisions giving the Act
extraterritorial reach shall not apply retroactively.

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 Legislative history also sheds little light on whether the Act

should apply to pre-enactment conduct. There is little point in

reciting speeches made on the floor of Congress concerning

retroactivity. These remarks have been summarized before, see,

e.g., Fray, 960 F.2d at 1376, and they "contain statements that

both favor and disfavor the retroactive application of the 1991

Civil Rights Act to pending cases." Mozee, No. 90-2660, at 12.

See also Vogel, 959 F.2d at 598 (noting that Senators Danforth and

Kennedy expressed different views concerning retroactivity of Act).

We conclude only that members of Congress reached no consensus and

left it to the courts to resolve. Luddington, No. 91-2320, at 4;

Mojica v. Gannett Co., Inc., 779 F.Supp. 94, 96 (N.D.Ill. 1991).

We are faced with a deliberately ambiguous statute, and we are

asked to resolve political questions Congress was not able to

answer. This difficulty is not unfamiliar. It is exacerbated by

conflicting lines of authority in the Supreme Court's jurisprudence

concerning statutory retroactivity. In Bradley v. Richmond School

Board, 416 U.S. 696, 716 (1974), the Supreme Court declared a

"general rule that a court is to apply a law in effect at the time

it renders its decision." Bradley seems to have adopted this

"general rule" "even where the intervening law does not explicitly

recite that it is to be applied to pending cases." Id. at 715. By

contrast, in Bowen v. Georgetown University Hospital, 109 S.Ct.

468, 471 (1988), the Supreme Court held that the Secretary of

Health and Human Services could not promulgate retroactive limits

on reimbursable Medicare costs. According to Bowen,

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 "Retroactivity is not favored in the law. Thus,
congressional enactments and administrative rules will
not be construed to have retroactive effect unless their
language requires this result."

Bowen, 109 S.Ct. at 471 (citations omitted). The Supreme Court has

acknowledged the "apparent tension" between these two positions,

Kaiser Aluminum & Chem. Corp. v. Bonjorno, 110 S.Ct. 1570, 1577

(1990), but it has yet to choose between the two presumptions.

Our own decisions straddle the divide between Bowen and

Bradley. Some decisions follow Bowen's "general rule barring

retroactivity." Sierra Medical Center v. Sullivan, 902 F.2d 388,

392 (5th Cir. 1990). See also Walker v. United States Department

of Housing and Urban Development, 912 F.2d 819, 831 (5th Cir.

1990). Other cases, however, follow Bradley's rule that "a change

in law while a case is on direct appeal be given affect." See,

e.g., Louviere v. Marathon Oil Co., 755 F.2d 428, 430 (5th Cir.

1985).

Forced as we are to choose a canon without the guidance of

controlling authority, we find that § 101 should be construed not

to apply to cases arising out of conduct occurring prior to the

enactment of § 101. We follow the canon that statutes affecting

substantive rights "are ordinarily addressed to the future and are

to be given prospective effect only." Turner v. United States, 410

F.2d 837, 842 (5th Cir. 1969). See also United States v. Vanella,

619 F.2d 384, 385 (5th Cir. 1980) (quoting Greene v. United States,

376 U.S. 149, 160 (1964)) ("'legislation must be considered as

addressed to the future, not to the past . . . [and] a

retrospective operation will not be given to a statute which

23
interferes with antecedent rights'"). This canon has a lengthy

pedigree, see Kaiser Aluminum, 110 S.Ct. at 1579 (Scalia, J.,

concurring), reflecting obvious and fundamental concerns of

fairness and predictability. Luddington, No. 91-2320, at 4.

In Bennett v. New Jersey, 470 U.S. 632, 638-40, 105 S.Ct.

1555, 1559-60 (1985), the Court held that substantive provisions of

amendments to the 1978 Amendments to the Elementary and Secondary

Education Act cannot be applied retroactively to funds expended in

1971-72. In distinguishing Bennett from Bradley, the Supreme Court

noted that the rule in Bradley was limited by "another venerable

rule of statutory interpretation, i.e., that statutes affecting

substantive rights and liabilities are presumed to have only

prospective effect." Bennett, 470 U.S. at 639, 105 S.Ct. at 1560.

The Bennett Court noted that Bradley concerned allowance of

attorney's fees under § 718 of the Emergency School Aid Act, 20

U.S.C. § 1617--a remedial provision--not substantive obligations or

rights under a statute. Id.

Section 101 affects substantive antecedent rights. Under

Patterson, § 1981 did not prohibit discrimination in promotions

before the enactment of § 101. Section 101 extended § 1981 to such

discriminatory conduct. We then presume that § 101 does not apply

to conduct that occurred before its enactment, absent clear

evidence to the contrary. There is no such clear evidence.

We recognize the apparent anomaly that, at the time of UBI's

allegedly discriminatory conduct, Patterson had not yet been

decided and, under the decisions of many lower courts, § 1981

24
applied to racial discrimination in promotions. UBI's reliance on

the law announced in Patterson, therefore, may be minimal. Some

opinions have argued that, given such minimal reliance, the

presumption against retroactivity should not operate. Mozee, No.

90-2660, at 37 (Cudahy, J., dissenting); Stender, 780 F.Supp. at

1308; Mojica, 779 F.Supp. at 98.

We are not persuaded. As a matter of law, the rule announced

in Patterson applies retroactively to UBI's conduct in 1974.

Lavender v. V. & B. Transmissions & Auto Repair, 897 F.2d 805, 806-

07 (5th Cir. 1990). Cf. James B. Beam Distilling Co. v. Georgia,

111 S.Ct. 2439 (1991). UBI is just as entitled to the preservation

of its substantive interests under this rule as litigants whose

conduct occurred after Patterson was decided. Any other holding

would require unwieldy distinctions between classes of litigants

based on the degree to which they relied on the legal regime

antedating the Civil Rights Act of 1991. We decline to embark on

such an inquiry. Luddington, No. 91-2320, at 8.

Having decided that § 101 does not apply retroactively to

UBI's conduct, it follows that Johnson's § 1981 claims are governed

by the Supreme Court's decision in Patterson. As we have

explained, we affirm the district court's finding that Patterson

bars Johnson's § 1981 claim.

AFFIRMED.

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