[79] DONALD RUSSELL, Circuit Judge, dissenting:

I dissent.

My difference with the majority opinion begins with its reversal of the district court's determination that it (the district court) was without jurisdiction in this proceeding to consider a claim of discrimination in hiring at the Portsmouth branch of the defendant Bank. The district court based its conclusion that hiring practices at the Portsmouth branch were not a proper subject of suit in this litigation because such practices had not been included in the initiating charge on which the Equal Employment Opportunity Commission (hereinafter EEOC) acted, or in the investigation conducted by the EEOC in connection with that charge, or in the reasonable cause determination of discrimination as made by the EEOC, or had been a subject of conciliation between the EEOC and the defendant.

All of the factual findings on which the district court rested this determination are clearly supported by the record. The charge of Ms. Holland filed with the EEOC in June, 1969, which provided the basis for this proceeding, related solely to a refusal of employment by officials at the Suffolk branch of the defendant. In her charge she made no reference whatsoever to the Portsmouth branch. When the EEOC undertook its investigation of the charge filed by Ms. Holland in March, 1970, it advised the defendant that it was sending its investigator to "Suffolk" and it requested that the "Suffolk branch" be informed of the impending visit of the investigator. It made no reference to any possible investigation of the Portsmouth anch or of any charges involving that branch. The investigator in the course of the investigation concerned herself solely with the Suffolk branch and its employment practices during most of the year 1969 and a few days in 1970. Later, when the reasonable cause determination, with its address of the employer given as "Suffolk, Virginia," was issued, it, as the district court points out, again focused exclusively on the hiring practices of the Suffolk branch during the period "March 1, 1969 through January 13, 1970." In that determination, the EEOC stated that as of May, 1969, the employees of the "respondent" consisted of 18 whites and no blacks in an office/clerical classification, a number which significantly was the exact number and character of employees at the Suffolk branch, as reported by the defendant for its Suffolk branch in its EEOC report of May, 1969. It also stated in its report which was dated March 11, 1974, that it had reviewed all applications for employment and that the defendant bank had "hired seven persons, six Caucasians and one Negro. Of these seven persons, five were hired into clerical or teller positions, one Negro and four Caucasians. The Negro teller was hired in November, 1969." These figures are also clearly identifiable as relating to the Suffolk branch alone, and related exclusively to the period ending January 13, 1970. Moreover, in its reasonable cause determination, the EEOC stated that, during its investigation, it had represented to the defendant that any records of employment at the Portsmouth branch were "irrelevant to employment at [the] Suffolk branch" which was the subject of its investigation. After its reasonable cause determination, the only conciliation engaged in between the defendant and the EEOC concerned the Suffolk branch and the facts disclosed by its investigation of that branch covering the period from March 1, 1969 to January 13, 1970.

In short, from the filing of the original charge in June, 1969, up to the filing of this action by the EEOC ( in default of any action by Ms. Holland) in January, 1976, the EEOC had confined its investigations, its determinations of discrimination (dated March 11, 1974) and its conciliation efforts (held in July and August, 1974) exclusively and wholly to the employment practices of the defendant at the Suffolk branch for a period of time terminating on January 13, 1970, and, in refusing to consider any employment figures at the Portsmouth branch, had firmly rejected as "irrelevant" any inquiry into the defendant's employment practices at the defendant's Portsmouth branch.

Whether, under the circumstances detailed, the district court's jurisdiction in this case was confined to inquiry into hiring activities of the defendant at its Suffolk branch is a question controlled by our decision in EEOC v. General Elec. Co., 532 F.2d 359 (4th Cir. 1976). In that case, we said that the court's jurisdiction was not limited to the language of the charge as filed by a complaining employee or applicant but extended to such types of discrimination as were reasonably uncovered during the investigation of the charge by the EEOC, were included in the reasonable cause determination, and were the subject of conciliation between the EEOC and the employer. 532 F.2d at 372-73. We emphasized, however, that each step in this administrative procedure of (a) investigation, (b) reasonable cause determination and (c) conciliation, was an essential step under the Act and, as the majority opinion states, "each step . . . is designed to be a prerequisite to the following step and, ultimately, to suit." And, again as the majority itself observes, this is particularly true of the conciliation step, which, in order to be effective, demands that the employer be fully notified of the violation which is the subject of conciliation.

If the rule enunciated in General Electric is applied in this case, it cannot be disputed that the scope of the action filed by the EEOC in this case should be restricted to the employment practices at the Suffolk branch. That was the activity covered by the charge filed by the complainant. The EEOC itself strictly confined its investigations to employment practices for the relevant time period at that branch alone. Even more significant is the fact that the EEOC refused to consider or investigate any employment practices at the Ports-mouth branch. And in its reasonable cause determination, it made it crystal clear that any action at the Portsmouth branch was "irrelevant" to its investigation and to its reasonable cause determination. It was against this background that the EEOC filed this civil action, seven years after the charge of discrimination was filed, six years after it began its investigation of the charge, and two years after it had issued its reasonable cause determination, raising for the first time the question of discrimination at the Portsmouth branch, without a charge being filed, without an EEOC investigation, without an EEOC reasonable cause determination, and without any effort at conciliation by the EEOC of hiring practices at Portsmouth. If each step in the administrative procedure in a Title VII proceeding i. e., an EEOC investigation, an EEOC reasonable cause determination, and an effort by EEOC at conciliation, is an essential "prerequisite . . . to suit," as the majority opinion declares, it would seem beyond controversy that there was no authority for inclusion of the employment practices at the Portsmouth branch in the civil suit by the EEOC in this case. Moreover, apart from the constricting language of the Act itself on the proper scope of this action, it is difficult to perceive under what principle of fairness and due process the EEOC should be permitted to inject into this proceeding at this belated date a claim that it had not merely failed to raise earlier but one that it had expressly asserted both in its investigation and in its reasonable cause determination was "irrelevant" to its inquiry.

The majority opinion, though declaring unequivocally that "we require that a particular charge of discrimination be the subject of the reasonable cause determination and conciliation before being subject to suit by the EEOC," proceeds to reverse the district court and to find jurisdiction in this action over hiring practices at the Portsmouth branch. It bases this ruling on the reasoning that (a) the charge filed and investigated by the EEOC in connection with the Suffolk branch involved hiring practices which, if found illegal at Suffolk, would support a like finding in connection with the Portsmouth branch, (b) "the EEOC's investigation [in 1969-70] and attempted conciliation [in 1974] with regard to Suffolk [gave] adequate notice to the defendant of the practices under investigation and ample opportunity for conciliation concerning those practices," and (c) "[h]ad the conciliation effort been successful, given the common control over the similar practices at the two cities' branches, whatever changes were to be instituted at the Suffolk branch would no doubt logically and necessarily have been made at the Portsmouth branch as well." I submit no one of those reasons is sound.

A finding of hiring discrimination at the Suffolk branch on the evidence in this case would not necessarily establish discrimination at the Portsmouth branch. Decisions on hiring were made separately at the two branches by the interviewing officer of the respective branch. The labor market from which the two branches drew their job applicants were different and the two labor markets varied markedly in their black constituency, measured both in numbers and in qualifications. So far as the EEOC's case rests on bare statistics, a finding of discrimination at either branch would depend on a comparison of the percentage of black hirees at each branch with the percentage of qualified blacks in the applicable labor market. The percentage of hirees as well as the percentage of qualified blacks in the applicable labor market, varied substantially at the two branches. Proof that the comparison of black applicants and hirees may have been sufficient at one branch to support an assumption of discrimination, based as such assumption would be on statistical data unique to that branch, would not establish that a similar situation existed at the other branch. Thus, if the statistical comparison resulted in a standard deviation of one at Suffolk and five at Portsmouth — a result that could be possible because of the differences in the labor market and perhaps a difference in the attitude of the interviewing officers — it could well be that any assumption of discrimination in hiring at Suffolk could not be justified but could be justified at Portsmouth. And the EEOC, as does the majority opinion, recognized all this, for it prepared and filed for the record separate evidence and separate statistical data and reached different results in connection with the two branches. A fortiori, it would follow that, under this supposition, Portsmouth might be required to make changes but Suffolk would not. Accordingly, two of the grounds assigned by the majority for its conclusion will not stand analysis.

The third ground is equally untenable. I suggest it is inexplicable to assume that an investigation which the EEOC itself had expressly noticed the employer was absolutely limited to one branch of the employer's business and where it had represented to the employer that any discussion or investigation of employment practices at another branch (Portsmouth) of the employer was "irrelevant" would be effective notice to the defendant that the EEOC would years later charge that the employment practices at such other branch (Portsmouth) were included within the investigation and conciliation which never touched that branch (Portsmouth) so as to provide a basis for a later civil suit involving that other branch. Such a doctrine, if accepted, would make meaningless and unimportant the statutory provision for a reasonable cause determination finding and an offer of conciliation by the EEOC as conditions to a right of suit as well as all the other procedural steps mandated by the statute as a "prerequisite" to suit. So long as the EEOC had met the prerequisites for suit on a charge involving one branch of an employer's business, it could, under the principle stated in the majority opinion, include at its whim in its suit, filed years later, charges of discrimination at all the branches of the employer even though the hiring practices at these other branches had never been investigated, had never been the subject of a reasonable cause determination, and had never been the subject of an offer of conciliation. Such a rule, if adopted, would mean that the new rule had washed out the step-by-step procedure so carefully laid down by Congress in the Act for the institution of a suit under Title VII. I am unwilling to participate in such guillotining of the Congressionally mandated procedure, under a novel exception which would enable the EEOC to broaden almost at will a charge at one plant of an employer made in 1969, into a charge against all plants of the employer, made for the first time in 1976, even though the employer was never notified of such broadening of the charge or given any opportunity of conciliation on the broadened charge. The reasons assigned by the majority for including the Portsmouth branch, I respectfully suggest, are unsupportable.

The majority would find support for its conclusion in the opinions in Statsny v. Southern Bell Telephone Telegraph Co., 628 F.2d 267 (4th Cir. 1980), and Hill v. Western Electric Co., 596 F.2d 99 (4th Cir. 1979). Neither of those cases involved the precise point which is raised in this appeal. There was no question raised in either of those cases about the scope of the EEOC investigation, the reasonable cause determination or the range of the offer of conciliation or the effect of the absence of any of these actions on the right to maintain a civil suit. To such extent as it is analogous, Hill even would seem to be contrary to the result reached by the majority. One of the issues in Hill, for instance, was the extent to which a class representative could represent employees having the same claim at two or more plants of the employer which may be considered analogous to the issue here. The Court held specifically that the class representative could only represent class members who had suffered "injury in precisely the same way" as he had in "other departments of the same facility" (Italics added). 596 F.2d at 102. That language would confine the class representation to the single facility or plant. If this situation can be taken as analogous to that now before us, it is manifest that the plaintiff in this case cannot meet the requirement established in Hill. Admittedly Portsmouth is not "the same facility" as Suffolk. Hill is thus unquestionably contrary to the majority's conclusion.

Hill did refer to and distinguish 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). In that case the issue involved whether the exemption under Title VII granted a bona fide seniority system was applicable to employees who work "not in different locations." In other words, the controversy related to what branches ( i. e., those "not in different locations") of an employer might be included within a claim that the employer's employment practices were immunized by a bona fide seniority system in connection with charges under Title VII. That question is quite analogous to that presented in this case. In Patterson the district court had found that the two plants, located a few blocks apart and engaged in the same general manufacturing operations, were "not in different locations" for the purposes of the Act and were accordingly not within the exemption. But — and this is the important fact in the case — we held, in deciding that issue, "that the labor market is the most important factor in determining whether a company's employees work in different locations." 535 F.2d at 266. For authority the Court cited Russell v. American Tobacco Co., 528 F.2d 357 (4th Cir. 1975). In Russell, the Court said at pp. 362-63:

"Neither the Act nor the EEOC regulations define the statutory term "employees who work in different locations," and we deem it unwise to attempt to draft a definition for every situation. It is readily apparent, however, that the labor market is the most important criterion for determining whether a company's employees work in different locations. If the labor for each plant is recruited from different geographical areas, or if one plant requires labor possessing different skills from the labor employed at another company plant, it is obvious that the company cannot draw from the same labor market to man its plants. Under these circumstances, it generally can be said that the employees work at different locations. In contrast, if a company can operate two or more of its plants with employees from the same geographical area who are unskilled or possess the same skills, an applicant for a job can be assigned to an entry level position in either plant. Therefore, these employees, having been hired from the same labor market, would not generally fall within the statutory class of 'employees who work in different locations.'"

If the controlling factor is identity of labor market, as I deduce it is in the light of the decisions in Patterson and Russell, then it is improper to treat the two branches of Suffolk and Portsmouth as one and to find that a discrimination charge against a branch in one labor market may be considered a charge against another branch of the same employer in another labor market. That, however, is what the majority does in this case and what I think is not warranted.

There is another reason, grounded on fair dealings and the fundamentals of due process, for denying jurisdiction over Portsmouth hiring practices in this suit. From 1969 to 1976, the EEOC was in effect representing to the defendant that there was no claim of hiring discrimination against the Portsmouth branch. As a result of its investigation of the Suffolk branch, the EEOC knew of the defendant's practice of discarding employment applications after six months. Thus it was in possession of the knowledge that when it told the defendant it had no interest in the Portsmouth records, the defendant would follow its routine practice of discarding all applications after six months, thereby destroying evidence of possible great value to it in establishing a rebuttal to any charges against it involving the Portsmouth branch by proof of applicant flow from 1969 to 1975. To permit the EEOC now, without a charge to investigate, without any investigation, without a reasonable cause determination, without notice and without an offer of conciliation, and after six years of implicit representation that it was making no claim of discrimination at the Portsmouth branch, and after the defendant had placed itself at a disadvantage in proof because of the EEOC's own conduct, to attempt to piggyback Portsmouth onto Suffolk in a belated claim of hiring discrimination offends the purposes of Title VII as well as that element of fundamental fair dealings which is at the base of due process. And, though it is not discussed in the majority opinion, prejudice to the defendant arising out of what has all the appearances of a legal "ambush," whether intended or not, was, as we see in a moment, one of the "triable issues" in this case. The very inclusion in the Act of the prerequisites to suit, to which I have already referred, was to prevent an "ambush" and to avoid the inevitable prejudice such an "ambush" would impose on an employer such as this defendant against whom the EEOC, after some seven years, unexpectedly and without prior notice, leveled the charges relating to the Portsmouth branch. Under the language and intent of the Act, as construed in General Electric and other like authorities, and under every principle of fundamental fairness, any inquiry into hiring practices of the Portsmouth branch should have been excluded from the case. The district court agreed. The majority reverses. I think the majority is wrong.

Turning from the jurisdictional issue to the consideration of the merits of the EEOC's claim of discrimination, I would begin with the stipulation of the parties on the issues triable in the case (apart, of course, from the jurisdictional issue involving the Portsmouth branch, already discussed). These issues were stipulated to be: "B. Whether defendant American National Bank failed or refused to initially hire black employees because of race from 1969 to 1975. C. Whether any of the individual claimants whom EEOC presents at trial were denied employment . . . because of their race. D. Whether the passage of time has prejudiced defendant." In connection with those issues, the parties, prior to trial, entered into certain supplementary stipulations. First, they stipulated that the charges of discrimination were limited to initial hirings in two employment classifications ( i.e., (1) officer/manager, and (2) office/clerical) in the years 1969 to 1975 at two branches, one at Suffolk, and the other at Portsmouth. It is important to emphasize that, as the EEOC has stipulated, the action was not concerned with any hiring by the defendant prior to 1969, nor was it concerned with the composition of the defendant's work force prior to 1969. What was in issue under the stipulation of issues agreed on by the parties was the change in the composition of such employment classification as a result of hirings from 1969 through 1975, and whether hirings in that classification were racially motivated. They also stipulated the statistical data as shown by the 1970 census on the racial breakdown of Total Population and Labor Force characteristics for Norfolk, Suffolk, Nansemond County, Portsmouth, Norfolk-Portsmouth, and that the breakdown of "Workforce Availability Data on Minority Groups and Women in the Recruitable Labor Market Area" in those areas. Under these compilations, the parties did not differ on the black qualified labor force in these various areas. According to the charts on the office/clerical classification, the representation of blacks was 10.3% in Suffolk and 22.5% in Nansemond County. The comparable figure in Portsmouth proper was 13.9% and 21.5% for Norfolk-Portsmouth. The parties, also, stipulated the employment practices followed by the bank in its employment decisions.

Though offering the same types of employment, the two branches received separately any applications for employment at their separate branch offices and made their own separate determination on hiring. The branches were located about twenty-five miles apart in an area of the State where access between cities is not especially easy. In their employment, the two branches drew from entirely different labor markets. The district court found, and the majority accepts the finding, that the Suffolk branch draws its employees from the Suffolk and Nansemond County labor market and the Portsmouth branch from the Portsmouth and Portsmouth-Norfolk labor market. It was the long-established procedure of the defendant to require written applications for employment. These applications inquired into the applicant's health, his or her previous banking experience, any special skills or business-machine experience, education, employment record and personal references. They provided no information on the applicant's race. The branches were only required to retain the applications for at least six months. Both branches followed the practice of hiring only as a vacancy developed. In filling the vacancies the bank would normally review the applications filed within the six months prior to the date of the vacancy, select one or more applicants for interview, and, after the interview, would make its choice. Each branch had its own interviewing officer for employment applicants. In passing on the applications the branch would normally not employ without its labor market and would give some preference to the proximity of an applicant's residence to the branch where he or she was to be employed.

When the trial actually began, the parties stated their respective claims either for relief or by way of defense. Counsel for the EEOC began his presentation of his claim by asking rhetorically "what are we required to do" to make out a prima facie case, and then answered his own inquiry by declaring that he (meaning the plaintiff EEOC) "was required to show that an individual who applied for a job was black . . . [was] qualified . . . that a vacancy existed and [was] rejected." When that proof had been adduced and a prima facie case was thereby made out, EEOC counsel proceeded: "The burden then shifts to the defendant to come forth and show your Honor, based upon valid business reasons, why these individuals were not considered; in fact, were rejected." Having so stated the defendant's burden, counsel for the EEOC at this point offered the firm opinion that the defendant would be unable to meet this burden and that, because of such failure, "[t]he only conclusion, under those circumstances, . . . is that race was a factor" in the defendant's hiring decisions and a decree in its favor was in order on behalf of all claimants.

The EEOC's proof at the trial followed precisely the scenario thus laid out by its counsel at the commencement of the trial. In its live testimony following this statement by its counsel of its theory of the case, the EEOC began by developing in painstaking fashion the procedure followed by it in its investigation of alleged discrimination on the part of the defendant. It first secured and reviewed all employment applications at the Suffolk branch for the entire relevant period ( i. e., 1969 to 1975) and all employment applications at the Portsmouth branch for the years 1973-1975, inclusive. After identifying all the black applicants on these lists, the EEOC, through its representatives, sought to communicate with them suggesting that they might have a claim of discrimination against the defendant and a right to backpay, and requesting information from them relative to their claims. The EEOC took the replies it received and proceeded to identify all those made within six months of any employment decision by the bank at the relevant branch. It did this because the undisputed and agreed practice of the bank, as we have seen, was to consider only applications filed within six months of the time when a vacancy arose. If a white was employed at any time when there was a qualified black applicant or applicants with an application pending within the preceding six months' period, then that black applicant or those applicants were treated by the Commission as potential discriminatees. In this manner the 51 discriminatees asserted by the Commission were, according to the EEOC's testimony, identified by the EEOC through its witness, a paralegal with seven years' experience in this type of work. On the basis of this identification the EEOC stipulated that the 51 individuals so identified represented the only potential discriminatees in this action. The EEOC then proceeded to offer proof of its investigation to establish exactly the amount due each of such discriminatees by way of backpay and the result of this investigation was offered as proof of the amount of backpay due each claimant. The Commission followed up with the testimony of some 34 of the individual claimants. These claimants gave the circumstances on which they based their claims of discrimination.

Contrary to the expectations of the Commission's counsel, the bank, not only impeached the statistical evidence of the Commission, but it did, at the conclusion of the Commission's case, accept the burden of production, as declared in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and did "produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decisions (in connection with every potential discriminatory claim) had not been motivated by discriminatory animus." In fact, the bank went beyond this burden in connection with every employment decision in the relevant category for the period in question. The bank offered extensive proof in support of its failure to employ all the alleged discriminatees who had testified at trial. The bank, however, did not content itself merely with producing evidence in support of its decision in connection with the claims of the alleged discriminatees who had testified but adduced evidence which was found by the district court to be sufficient to support a rational conclusion "that the employment decision[s] [in all the other cases as well] had not been motivated by discriminatory animus." Thus, the defendant contested with proof the Commission's claim of discrimination in favor of every one of the named 51 alleged discriminatees and, as I later point out, the district court found that the defendant had not engaged in racial discrimination in failing to employ any one of the 51 alleged discriminatees. The bank, also, introduced evidence of its affirmative action program for minority employment which it had adopted in 1973, and had since implemented with the approval of the Department of Labor, to whom jurisdiction over such programs was assigned under the Government Contract Compliance Executive Order. Finally, it impeached the statistical proof by subjecting it to the standard Castaneda test and asserted it failed in proof of discrimination under such test.

At this point it seems appropriate to mark out precisely the conclusions reached on this record in the district court's opinion dismissing the action and the reasoning of the majority opinion reversing the district court and ordering exclusive relief in favor of the plaintiff, along with my own statement of my views which differ from those of the district court and those stated in the majority opinion. After finding that the action properly only embraced hiring decisions at the Suffolk branch, the district court proceeded, however, to consider the discrimination charge as it affected separately first the Suffolk branch and then the Portsmouth branch since the EEOC sought to present in this action its claim against the Portsmouth branch. It held at the outset that solely on the basis of the EEOC's statistical evidence of hirings in the two agreed work-force categories at the two branches, compared both with the overall black work force and with the qualified black work force in the specific categories involved in the action, the EEOC had made out a prima facie case. It then undertook to determine whether the defendant had rebutted or overcome both the prima facie case resting on inferences drawn from the statistical evidence and the additional non-statistical evidence offered by the EEOC, which related to the 51 claims of individual discrimination and to the defendant's hiring practices. It found that, when tested by the standard deviation test developed in Castaneda, the statistical evidence was not sufficient to support a reasonable hypothesis of discrimination and the prima facie finding, based on the raw statistical data, was thus neutralized as proof of discriminatory motive or intent. It then reviewed carefully the applicant flow evidence, found it reasonably reliable, and, after evaluating all the evidence on the 51 claims of individual discrimination identified by the EEOC, found as a fact that in no case did the evidence support a finding of discrimination. Finally, it reviewed the defendant's hiring practices and found, again as a fact, that none was discriminatory. It accordingly dismissed the complaint. Thus, the district court found (a) that the statistical evidence was, when tested by the Castaneda standard, neutral in the probability of discrimination in hiring, (b) that there was, as a matter of fact, no discrimination on the part of the defendant in failure to hire any one of the 51 alleged discriminatees, who, by stipulation of the parties, were "the only [possible] potential discriminatees" out of the black applicants for employment at either branch of the defendant for the relevant time periods, and (c) that the defendant had engaged in no hiring practice that resulted in discrimination in the relevant time period.

The majority opinion agrees with "the district court's ruling that the EEOC's statistical proof made out a prima facie case of discrimination" but found that the district court "erred in holding that defendant's rebuttal evidence was sufficient to overcome the prima facie case." As a basis for this latter finding, the majority opinion states that "the district court's analysis of the evidence [by which it concluded that the defendant had met successfully the EEOC's prima facie case] was flawed by specific failures correctly to apprehend or to apply controlling legal principles developed by the Supreme Court for analyzing the evidence in this type of case." It identified these flaws as "[1] the weight apparently assigned by the [district] court to a standard deviation analysis of certain of the statistical evidence; . . . [2] the significance which the [district] court assigned to ANB's applicant flow statistics as rebutting evidence; and [3] in the way in which the [district] court treated the relationship between the statistical and nonstatistical evidence offered to prove the discriminatory pattern or practice charged." Although these flaws would appear to be largely errors in the weight or significance to be assigned to the evidence, the majority opinion treats them as "errors of law" and thus not subject to the clear error rule for appellate review. It did this by concluding that in the case of the statistical evidence the district court gave improper weight to the standard deviation test, and that, in weighing the nonstatistical evidence, the district court failed to give proper consideration to the "coloring" which the statistical evidence gave to the nonstatistical evidence.

At the outset, I differ with both the district court and the majority opinions in their conclusion that on the statistical evidence alone the EEOC had proved a prima facie case. I think that the application of the standard deviation test as declared in Castaneda, which was unquestionably required in evaluating the statistical evidence in considering whether the EEOC had made out a prima facie case on the basis of such statistical evidence alone, demonstrates that the statistical evidence relied on both by the district court and by the majority was insufficient to make out a prima facie case of discrimination, but, more than that, if the statistical evidence, though not refined by the use of the standard deviation test, could be regarded as making out a prima facie case (which I dispute), such a statistical prima facie case was, as the district court found, rebutted by the standard deviation test, the applicant-flow proof, the complete rebuttal of the 51 individual claims of discrimination, and the express findings with respect to the defendant's hiring practices. Specifically, I would find no flaw in the use of the standard deviation test by the district court, in the district court's factual finding of the reliability of the defendant's applicant-flow data, or in its findings on the individual claims of discrimination or on the defendant's hiring practices. Finally, unlike the majority, I conceive of all these findings as findings of fact and not as "legal errors," as analyses and weighing of the evidence, reversible only for clear error.

I first address the finding by the district court and the majority that solely on the statistical evidence the EEOC had made out a prima facie case. The statistical evidence relied on for this finding consisted of two comparisons: One based on general work force statistics comparing the percentage of blacks in the general work force in the pertinent labor market of each branch with that of blacks hired by the defendant at such branch in the period 1969-75 and the other using the percentage of qualified blacks in the two labor categories involved in the charge for the pertinent labor market of each branch for the period 1969-75. Both the district court and the majority discarded the first comparison and "rel[ied] only on the specialized work figures." On the basis of these "specialized work figures," they found that blacks were so "grossly underrepresented" as to make out a prima facie case. In arriving at this conclusion for purposes of determining whether a prima facie case was made out, neither looked to the standard deviation test enunciated in Castaneda but looked to the record of hirings, particularly in the Suffolk branch in the office/clerical classification. They noted that the percentage of blacks available in this category for Suffolk was 10.3% and for Nansemond County 22.5%, or an average of 16.4%. The majority then declares that "during three of the charge years (1969, 1974, 1975) there were no blacks employed in these categories [ i.e., the office/clerical category]. In two years (1970, 1973), there was one black, and in two years (1971, 1972) there were two." This was the basis for the finding by both the district court and by the majority opinion of gross underrepresentation of blacks.

As a matter of fact, these figures on employment as used by the majority as a basis for its concurrence in the district court's finding of a prima facie case are inadequate in themselves to make out a prima facie case. In 1969 the EEOC's own undisputed evidence shows that there were five persons hired at the Suffolk branch in the office/clerical category, one of whom was a black (Beulah Chambers, hired on November 17, 1969). In effect, then, 20% of all hirees in this category at the Suffolk branch during 1969 were black. This percentage is twice the representation of blacks in the qualified Suffolk work force, considerably more than the average of both Suffolk and Nansemond County qualified work force statistics for the category (16.4%), and just under the qualified work force statistics for Nansemond County alone. Again, in both the years 1974 and 1975 the records included in the evidence by the EEOC show that, out of seven persons employed in the office/clerical category during those years, there was included at least one black hiree in each year. The percentage of blacks hired in this category in those two years was thus approximately 14%. The majority would seemingly discredit the hirings in 1971 and 1972, saying there were but two blacks hired in those two years. That is true, but in 1971, there were only two applicants hired in this category and one of these was black, for a percentage of 50%, and in 1972 there was one black hired out of five persons employed in this office/clerical category, for a percentage of 20% black. It is thus seen that, for three of the seven years in question, the percentage of the defendant's hiring in the office/clerical category at the Suffolk branch exceeded considerably the percentage of qualified blacks in that category both in the Suffolk and in the Nansemond County labor markets, and in two of the other four years, the percentage of hirings considerably exceeded the percentage of qualified blacks in the Suffolk labor market and was within two percentage points of the percentage of qualified blacks in the Nansemond County labor market. If, on the other hand, we compare the total number of hirees in the office/clerical category with the black hirees in this category for the full period of 1969 through 1975 at the Suffolk branch, the percentage of black hirees will be in excess of 14% or but approximately 2 percentage points less than the average of qualified blacks in the combined Suffolk and Nansemond County labor markets. For the Portsmouth branch we have hiring figures only for the years 1973, 1974 and 1975. In these three years the average percentage of black hirees in relation to overall hiring in the pertinent classifications was 15.2%, which did not represent any "gross underrepresentation" by any standard. These sporadic, spotty figures in hiring, in both of the pertinent classifications, spread as they are over seven years, and varying markedly from year to year, certainly evidence no clear-cut pattern or practice, "no standard operating procedure" of discrimination against blacks, (the required finding under Teamsters) and they cannot support a finding of "gross underrepresentation," which could be the basis for a finding of a prima facie case of discrimination on the part of the defendant, either at the Suffolk or at the Portsmouth branch.

But, apart from the complete inadequacy of even the evidence on which the district court and the majority sought to ground their finding of a prima facie case of a "standard practice" of discrimination in hiring, I think that the majority sought to deduce a prima facie case from statistical evidence, which necessarily involves an element of intent, in the wrong way and by disregarding the test established by the Supreme Court and followed by us in United Bank for such deduction. Intent is an essential element in a disparate treatment case. Manifestly, whenever, as here, a court seeks to determine whether a hiring selection by an employer is racially tainted by a statistical comparison of hirings with available qualified work force in the labor market, it does not ordinarily do so on the basis of evidence of express intent or motive. Statistics do not provide expressly such evidence. One must resort to the law of probabilities in assessing such statistics for purposes of arriving at a possibly reasonable inference of discriminatory intent. Under the law of probabilities, it is not sufficient for a finding of an inference of tainted motive that the percentage of hirings does not correspond exactly with the percentage of qualified blacks in the work force in the pertinent labor market; it is only when the deviation from the norm reaches such a level that it is reasonable to assume or hypothesize that the hiring was biased or intentional, rather than by chance or at random, that it becomes supportive of a prima facie case of discrimination. The Supreme Court recognized this and in Castaneda provided courts with what it characterizes as a "precise" test or formula for ascertaining when the deviation reaches this level and may be sufficient to justify a hypothesis of intent or bias in the hiring process. In arriving at such formula, on the basis of the mathematics of probabilities it declared that when the deviation provided by the statistical comparison is "greater than two or three . . . then the hypothesis" that defendant hired employees without regard to race "would be suspect," to such an extent that it was not unfair to assume that the hiring selection was tainted. In essence, what the court was saying was that until the deviation reached the level of "more than two or three," statistics based on a comparison of hirings with qualified work force would not render those hirings "suspect" of racial discrimination.

In reaching their determination that the EEOC had established a prima facie case solely on the statistical evidence, both the district court erred and the majority departed from the rule established by Castaneda and adopted by us in United Bank for qualifying statistical evidence in this context. The district court did it is true later apply the Castaneda standard in determining whether the statistics, when tested by the Castaneda rule, rebutted the prima facie finding. In so doing it determined that the deviations in this case, taken over the full period in both categories, were not "more than two or three." It concluded that such determination "neutralized" the value of the statistics as proof of a tainted hiring practice and as a basis for a hypothesis of bias in the hiring process. I agree with the district court in its calculations under the Castaneda rule, as I assume the majority does at least, it does not express disagreement. My difference with the district court is its failure to use the Castaneda test in determining whether the EEOC had made out a prima facie case with statistical evidence which was "neutral" in providing authority for a hypothesis of intent. In taking this position, I am following precisely what the panel did in United Bank, 615 F.2d 14, and what the Supreme Court in Castaneda, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498, and Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977), directed us to do.

If, however, we are to apply the Castaneda test by way of rebuttal, as did the district court, I agree with the district court's conclusion that the deviation in this case in the statistical evidence was not sufficient to render the hiring selections of the defendant "suspect" of bias. Under those circumstances, the district court correctly held that the statistical evidence was "neutralized" as evidence of bias in the hiring selection and, if bias was an essential element of the plaintiff's case, as the plaintiff itself concedes, it was necessary for the Commission to produce evidence of it elsewhere in the record, for, as we have seen, it is the Commission's burden to persuade throughout the case under Burdine. The majority, however, takes issue with this conclusion. As I read it, the majority opinion does not find fault with the district court's finding that the standard deviation reflected in the statistical evidence for the two pertinent employment categories was not "more than two or three." It contends rather that the district court committed "legal error" in the neutral effect given by it to a finding that the standard deviation in the statistical evidence was no "more than two or three." This is one of the three "specific failures . . . to apply controlling legal principles developed by the Supreme Court for analyzing the evidence in this type of case" found to have flawed the district court's opinion.

The majority opinion faults the district court on this point because that Court held that, under Castaneda, "if standard deviations reflected in static work force statistics were not `more than two or three' the disparities were necessarily shown to be statistically insignificant." (Emphasis added) It asserts flatly that this statement "is simply incorrect." The statement of the majority is not, however, a strictly accurate reading of the conclusion which the district court said should be drawn from a standard deviation of "not more than two or three." What the district court did conclude was that, when the standard deviation in the employee selection was more than "two or three," it was a fair hypothesis, based on accepted standards of mathematical probabilities, that the selection whereby blacks were not hired was "suspect" and not by chance but, conversely, that if the standard deviation in such a situation was no "more than two or three," there was no basis for a hypothesis that the selection was by design rather than by chance. In essence, the conclusion was that, if the deviation was no "more than two or three," that fact would not permit a hypothesis of bias or design as distinguished from chance and would be purely a neutral indicator insufficient to satisfy the plaintiff's burden of persuasion, which as Teamsters teaches, goes with the plaintiff in a discrimination case throughout the proceedings. That I think is a reading clearly justified by Castaneda and it was in effect the reading given Castaneda in United Bank, 615 F.2d at 152. Moreover, it is not substantially different from the construction of Castaneda arrived at in the majority opinion itself to the effect "that courts of law should be extremely cautious in drawing any conclusions from standard deviations in the range of one to three."

In my opinion, Castaneda begins with the premise — a premise reaffirmed recently in Burdine, supra — that the burden of persuasion in a discrimination case rests throughout the case, both in establishing a prima facie case and in sustaining a judgment of final liability, upon him who asserts discrimination. When the complainant relies as a basis for sustaining this burden on statistical evidence, that evidence is to be tested by rules of statistical probability. Until the statistics measured by these rules of probability, as stated in Castaneda reach a point of deviation in their application that will support a hypothesis of bias in hiring, promotion, etc., the plaintiff has not met this burden of persuasion and the defendant is entitled to prevail. Castaneda establishes this threshold point where a hypothetical construct of bias is warranted as a standard deviation of "more than two or three." When the standard deviation fails to reach that level of "more than two or three," the plaintiff, so far as his statistical proof is concerned, has not sustained his burden of persuasion and has not met the threshold test for a prima facie case based on statistical evidence. That was the situation here. Under that construction, the EEOC had unquestionably failed to satisfy the requirements for a prima facie case on the basis of the statistical evidence.

I would assume the majority does not suggest a court might hypothesize when the deviation is no "more than two or three" that the employer's selection of hirees was by design, i. e., was discriminatory. To do that would be to give the same weight to a standard deviation of no "more than two or three," as Castaneda says should be given to a standard deviation of "more than two or three," and I am confident that the majority does not opt for any such misapplication of Castaneda. I can only assume that the majority means that the "weight" to be given a finding of no "more than two or three" is that such a finding does not support a hypothesis of selection in hiring either by design or by chance. Such a finding authorizes an assumption neither of discrimination nor of nondiscrimination, specifically, that the finding in such a case is inconclusive, supportive of neither a hypothesis of design nor of chance. If this is the view of the majority, the district court adopted that view and I can find no reason for the majority to fault it as the first "flaw" which it finds "skewed" the district court's conclusions. The very test or formula articulated by the majority ( i.e., "that courts of law should be extremely cautious in drawing any conclusions from standard deviations in the range of one to three") unquestionably justified the district court in saying that such neutralization of the statistical evidence meant simply that the statistical evidence was without value in determining discrimination, either prima facie or substantively. Is not such a finding evidence that the district court, in its review of the statistical evidence was being "extremely cautious" in drawing any conclusions from the flawed statistical evidence, and has not the majority trespassed far beyond appellate review and abandoned its own rule of "extremely cautious" in evaluating the statistical evidence, giving it in effect conclusive effect?

The best evidence of discrimination or no discrimination in this case does not, however, consist of probability of inferences drawn from what are clearly neutral statistics but of the defendant's actual employment decisions themselves, analyzed under a proper applicant flow standard. Statistics support inferences but only inferences which, under appropriate circumstances may support a judgment of discrimination if no attempt at rebuttal is made. But — and this is the important point — statistics, with their inferences, cannot stand against proof that an employer never engaged in discrimination in a single employment decision in the relevant time period, when reviewed in the light of the available applicant flow. This positive proof that no employment decision was tainted is "the proof of the pudding" in the establishment of no discrimination and it completely nullifies any inference sought to be drawn from statistical evidence. This point was made clear in Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). In that case, where the plaintiff in a discrimination case, relied on statistical compilations for the claim, the Supreme Court remanded with the direction "on remand to determine whether sufficiently reliable applicant-flow data are available to permit consideration of the petitioners' argument that those data may undercut a statistical analysis dependent upon hiring alone." 433 U.S. at 313 n. 21, 97 S.Ct. at 2744 n. 21. In concurring, Justice Brennan agreed upon remand so that "Hazelwood reasonably should be given the opportunity to come forward with more focused and specific applicant-flow data in the hope of answering the Government's prima facie case." Id. at 314, 97 S.Ct. at 2744. Justice White, also concurring, was even more emphatic, suggesting that the Government in a discrimination case, should itself as a part of its prima facie showing submit applicant flow evidence. Thus, he said ( Id. at 347-48, 97 S.Ct. at 2748-49):

"Since the issue is whether Hazelwood discriminated against blacks in hiring after Title VII became applicable to it in 1972, perhaps the Government should have looked initially to Hazelwood's hiring practices in the 1972-1973 and 1973-1974 academic years with respect to the available applicant pool, rather than to history and to comparative work-force statistics from other school districts. Indeed, there is evidence in the record suggesting that Hazelwood, with a black enrollment of only 2%, hired a higher percentage of black applicants than of white applicants for these two years. The Court's opinion of course permits Hazelwood to introduce applicant pool data on remand in order to rebut the prima facie case of a discriminatory pattern or practice. This may be the only fair and realistic allocation of the evidence burden, but arguably the United States should have been required to adduce evidence as to the applicant pool before it was entitled to its prima facie presumption." (Italics added)

And in New York Transit Authority v. Beazer, 440 U.S. 568, 586, 99 S.Ct. 1354, 1366, 59 L.Ed.2d 587 (1979), the Supreme Court emphasized the superior reliability in the discrimination context of reliable applicant flow data over purely statistical evidence generating a mere inference of discrimination. In that case, the Authority had a policy of excluding from employment and of discharging persons receiving methadone maintenance. The statistical record established that practically all the persons receiving such maintenance were either black or Hispanic. The plaintiffs, who were black and on methadone, claimed the policy constituted racial discrimination. To support that claim, the plaintiffs relied on the disparity as shown statistically between blacks and Hispanics, on the one hand, and whites, on the other, as evidencing racial discrimination. In denying pertinence to such statistics and in pointing to applicant flow as providing the proper test, the Supreme Court said (pp. 585-86, 99 S.Ct. at 1365-66):

"We do not know, however, how many of these persons ever worked or sought to work for TA. This statistic therefore reveals little if anything about the racial composition of the class of TA job applicants and employees receiving methadone treatment. More particularly, it tells us nothing about the class of otherwise-qualified applicants and employees who have participated in methadone maintenance programs for over a year — the only class improperly excluded by TA's policy under the District Court's analysis."

We followed the same rule of relying on applicant flow data as a refutation of any claim of discrimination in EEOC v. United Virginia Bank/Seaboard National, 615 F.2d 147 (4th Cir. 1980). A majority of the court in that case followed the reasoning of Justice White in Hazelwood and looked to such data in determining whether the Commission had made out a prima facie case; Judge Butzner concurred but did so on the ground that the applicant-flow data rebutted absolutely what he considered to be the Commission's prima facie case, which was based wholly on statistics. Under either view, the applicant flow data were found to overcome any claim of discrimination based on an inference arising out of statistical evidence. And the reason for such conclusion is quite obvious. If, after reviewing the applicant flow data in relation with all hiring decisions, no discriminatory refusal to hire is found, there manifestly can be no basis for a discrimination claim.

Perhaps because it recognized the force of Justice White's concurring opinion, the Commission in this case attempted to establish discrimination both prima facie and substantively by testimony of applicant flow data. The bank offered its rebutting testimony. On the basis of all the evidence, most of which consisted of live testimony, the district judge found that not a single hiring decision of the defendant during the relevant period was tainted by racial bias nor had a single one of the 51 persons who the Commission asserted were the "only potential" discriminatees among those who applied for employment in the pertinent classification for the relevant time period had actually been denied employment because of his or her race. Such a finding was one of fact and reversible only for clear error. The majority does not seek to address the district court's findings on this point for clear error, obviously because such a holding was not reversible. Rather, it somewhat ambiguously faults the district court's finding in this area because of "the significance" (which I assume is synonymous with "weight") given this evidence by the district court. The majority rests this criticism of the district court's finding on three grounds: First, the applicant flow data for the Suffolk branch is incomplete; second, the applicant flow data for the Portsmouth branch covers but three of the relevant years; and, third, the applicant flow data are flawed at both branches by the inclusion therein of service worker employment. Except in these three situations, there is no attack on the reliability or trustworthiness of this applicant flow data.

The first objection raised by the majority opinion to the use of applicant flow data is its conclusion that the applicant flow figures for the Suffolk branch were incomplete. This same point was advanced in the district court by the EEOC and that court, after carefully reviewing the evidence, concluded that the figures were "reliable." Though this was plainly a finding of fact by the trial court and though such finding was not clearly erroneous, the majority would fault the finding as an error of law. The record, however, abundantly sustains the factual finding on this point made by the district court. As a matter of fact, the applicant flow data on which the district court relied for its finding were largely developed in the testimony of witnesses for the EEOC and in fact stand undisputed.

Ms. Stephens, a paralegal employed by the EEOC, was directed by the EEOC to determine whether any individual blacks had been discriminated against and who they were. To do this she obtained and reviewed all the applications for employment at the Suffolk branch for the years 1969-75. The majority, however, questions that Ms. Stephens had access to or reviewed all the applications for employment for such period. It points to the language in the stipulation of facts, which states that, "[a]fter a review of the available applications filed with American National Bank in Suffolk from 1969 through 1975 and in Portsmouth during 1975 . . . ." It attaches special meaning to the adjective "available" and suggests that "it seems highly unlikely on the record we review that this data represents substantially all the applicant flow data for the years in question." It offers as a basis for this only that the district court had noted that "the total number of applications reflected in the data offered the court varied widely from year to year, from a low of sixteen in 1972 to a high of ninety-seven in 1974." From this single observation of the district court the majority made its finding that the employment applications were incomplete. And this is, I submit, contrary to the testimony of Ms. Stephens.

In its note 47, the district court discussed Ms. Stephens' testimony. In the course of her testimony, she was interrogated on the applications she had reviewed for the Suffolk branch. The district court indicated its unwillingness to admit in evidence the EEOC's exhibit prepared on the basis of her review unless it covered all the employment applications for the pertinent years at the Suffolk branch. After some sparring, the witness affirmed that her exhibit covered all the applications. Moreover, during the colloquy at that time, counsel for the EEOC stated: "We believe it [the proffered exhibit] reflects those applicants, the total applicants, and the percentage of black applicants for the years 1969 through 1975." (Emphasis in text) The figures in the exhibit are consistent with the defendant's compilation of the number of applications filed at the Suffolk branch for the pertinent years. In the face of this evidence, and in the absence of any contrary evidence by the EEOC, the district court found the figures used by the defendant in its applicant flow presentation for the Suffolk branch were reasonably accurate. In the absence of some basis for a conclusion that such finding was clearly erroneous, that factual finding is binding on this appeal.

The second objection of the majority to the applicant flow data relates solely to the Portsmouth branch. That branch had employment applications for no years behind 1973. The uncontradicted evidence, as incorporated in the stipulation of the parties, was that as a general rule the defendant did not retain employment applications for more than six months. This was because of its practice that in filling a vacancy, it did not go back further than six months in its review of applications. The district court found this a reasonable practice, and one that the defendant generally followed, and, so far as I read it, the majority does not take issue with such finding. In 1970 the EEOC had told the defendant that, though it was investigating an employment claim involving the Suffolk branch, it was not interested in the Portsmouth branch and did not wish to review the records at such branch.

Not only had the Commission thus assured the bank that the Portsmouth branch was not involved in any charge of discrimination, but also there was another circumstance which was calculated to assure the bank that, with the possible exception of the dormant charges of Chambers against the Suffolk branch, the bank was in full compliance with the Act. In 1973, the Office of Federal Contract Compliance, Department of the Treasury, acting under the authority of Executive Order 11,246, as amended by Executive Orders 11,478 and 12,086, had reviewed the affirmative action program developed by the defendant, as well as its hiring practices. That review resulted in the approval of the defendant's affirmative action program at both branches as well as of its hiring practices. We repeat: until the EEOC filed its complaint in 1976, there had thus not been the slightest intimation by the EEOC or any other agency of the Government, such as the Department of Labor, having responsibility in the area of discrimination in hiring or employment practices, that either the EEOC or the Department of Labor, under its Executive Order authority, had any intention of charging discrimination at its Portsmouth branch. Actually, so far as the record shows, the EEOC had never received a complaint from any one about that branch and obviously it had never made any investigation of employment at that branch.

The injection of the Portsmouth branch into the action more than six years after the EEOC had notified the defendant it had no interest in employment at the Portsmouth branch undoubtedly came as a shock to the defendant. Until it was first notified that a charge of discrimination was being leveled against that branch, it had no particular reason to retain beyond six months any employment applications at the Portsmouth branch. I think the district court was fully justified in finding the action of the defendant in not retaining all its employment applications for the years 1969-75 at the Portsmouth branch was perfectly reasonable and in using the clear evidence of a want of discrimination in the years 1973-75 as a rebuttal of any claim of a practice of discrimination at the Portsmouth branch.

The majority, however, finds fault with this finding of the district court. It appears to suggest that the defendant may have destroyed the earlier records in order to conceal the true facts. There is nothing in the record to support such an inference. Indeed, the EEOC does not suggest such conduct on the defendant's part. Further, it seems to concede that there was no obligation on the defendant to retain these earlier applications at the Portsmouth branch. I say this because the majority appears to concede that "the affirmative obligation to preserve them [ i.e., the Portsmouth pre-'75 records] [had] expired." The majority intimates, however, that every employer ought to maintain all "employment records going back at least to the effective date of the Title [VII]" as a matter of "sound business judgment" which dictates "the maintenance of all business records having potential relevance in any of the litigation patterns to which businesses stand constantly exposed." It is difficult to think that any business is obligated to retain from 1965 on indefinitely all its employment records if it wishes to avoid the inference that any destruction of such records is a self-serving concealment of damaging evidence against it. Businesses are already inundated with records they are required to keep. I do not think we should add to their burdens by saddling them with such inference from their failure to preserve such records.

The final conclusion by the majority that the defendant's applicant flow figures are flawed because they included the category of janitors will not stand examination. Such inclusion, the majority suggests, inflates the number of black hirees used in the statistical comparison. Actually, though, if we exclude black janitorial employees in the statistical comparison, there is no real change in the standard deviation. Thus, in the office/clerical category, there were 35 persons employed at the Suffolk branch between 1969 and 1975. Of these 5 were black, excluding the 2 black janitorial employees. Applying the standard deviation test to these figures, I find that, using the qualified work force in Suffolk, a standard deviation of 1.80; if we use Nansemond County statistics, a standard deviation of 2.63; and if we combine Suffolk and Nansemond County, a standard deviation of 2.21. This claim of error in the use of the applicant flow figures, even if sound (which I do not concede), is thus groundless. When the black janitorial employees are clearly excluded, the standard deviation is still well below the level of "more than two or three."

It is thus manifest beyond dispute that the district court was warranted in making its factual finding that the applicant flow data were "reliable" and, on the basis of such data, in finding that none of the bank's hiring decisions in the relevant period was racially tainted. And this conclusion cannot, I submit, be impeached by any inference erroneously deduced from "neutral" statistical data. After all, the applicant flow data are evidence which could be neither rebutted nor given a discriminatory "coloring" by this neutral statistical evidence.

I think the majority improperly fails to give proper, if not controlling, weight to the district court's finding of want of discrimination in the actual hiring decisions themselves in arriving at its conclusion that, on the entire record, the EEOC had made out factually a case of liability. I take it as well settled that a federal appellate court, such as we are, is a court of error whose function is limited to affirming, modifying, vacating, reversing or remanding for further proceedings upon a consideration of trial court error; it does not engage in equity review, giving right judgments upon the whole record, nor conduct de novo review with or without additional evidence. If, however, this view of our function is inaccurate and we may properly assume the fact-finding function of the trial court in what I submit is contrary to the proper scope of appellate review, then it is necessary to review all the evidence in reaching its findings of fact, and this would include the fact that not one black, identified by the EEOC, had been discriminated against by the defendant. The majority in effect disregards such evidence, particularly its complete refutation by the defendant, and never weighs it in reaching its conclusion.

I turn next to the nonstatistical evidence which the majority does notice and on which it rests in substantial part its decision. This evidence, such as it was, relates to alleged discriminatory hiring practices and procedures followed by the defendant. Manifestly, any such practices are unimportant if the Commission has failed to prove a single tainted employment decision in the relevant time period and this is just what the district court, after a review of the evidence, has found. Nor does the majority conclude that any of the employment procedures in and of themselves were racially motivated or used. It merely finds that evidence of such practice, while insufficient to prove taint, "tended to corroborate — to some degree at least — the prima facie showing of discrimination made by the static work force statistics." (Emphasis added) However, I think I have demonstrated already that the statistical evidence was "neutral" and that the applicant flow data completely refute any possible "prima facie showing of discrimination made by the static work force statistics." But, beyond this, the charges of improper hiring practices themselves lack any force.

All allegations of hiring practices are of the "boiler-plate" variety made by the Commission indiscriminately in all cases, irrespective of how relevant such allegations may be in the particular case. The district court found that this was the situation in this case. It proceeded to underscore the fact that the EEOC made no effort at trial to prove that any of these practices resulted in any discrimination. The majority seems — at least, in part — to agree with this finding. Thus it joins the district court in condemning the EEOC's action in this case in making "irresponsible broadside" charges in its complaint and in failing "to follow up charges with attempted proof." It agrees with the district court in dismissing out of hand the bulk of all these "irresponsible broadside" charges. It does seek to resurrect from the dust heap two practices, stated in the complaint, one being the use of an all-white interviewing staff and the other "word-of-mouth recruiting," and built some finding of discrimination on them. Accordingly, the majority declares that "rightly assessed, the EEOC's evidence of word-of-mouth recruiting as the primary means used by ANB to fill vacancies, and the use of an all-white interviewing staff to make its subjective hiring evaluations tended to corroborate — to some degree at least — the prima facie showing of discrimination made by the static work force statistics." (Emphasis added) This tentative finding cannot be sustained on the record, and, in a substantial way, the majority so concedes.

I shall first deal with the charge relating to white interviewing officers. The majority concedes that "it is clear that the use of an all-white interviewing staff standing alone could not support a determination of liability" and states unequivocally that it could not "quarrel with the court's related conclusions that the criteria used for selection [by the all-white interviewing staff] were for the most part objective and consistently applied." It is difficult to extract from these statements a basis for the majority's faulting the district court in finding that the practice of using an all-white interviewing staff was not employed for purposes of discrimination. This was exactly the same practice which was found in United Bank not to support a judgment in favor of the EEOC on a finding of discrimination. The charge relating to "word-of-mouth recruiting," on the other hand, really relates to the mere fact that in its application for employment the applicant was requested to list "friends or relatives employed by the bank." This, in the majority opinion's view, tainted the whole employment practice. To support this conclusion, the majority observes that "[t]hirty-two of the sixty-five applicants hired in Suffolk from 1969-75 and in Portsmouth in 1975 — 49.2% had listed friends or relatives on their applications." The district court noted this same evidence. It found that no special significance was to be attached to this evidence, saying that "[i]f anything . . . statistics show[ed] that the listing of friends and relatives was a minor factor; a majority of the hirees had no `contacts' working for defendant." This finding of the district court appears fully justified and even the majority practically so concedes for it adds that "controlling significance to this particular factor in the overall assessment of ANB's hiring practices" is not in order. In any event, the weighing of the evidence on this point was for the district court and its finding on the weight to be ascribed to it can only be disturbed for clear error.

The legal error which the district court committed and which faulted its findings of fact under the majority's reasoning was that, in reviewing the charges with reference to practices (which the majority implicitly concedes standing alone would not support a judgment against the defendant) the district court failed "to assess the evidence in the light of, and colored by, the gross underrepresentation of blacks in ANB's work force already statistically demonstrated" and confined its "inquiry . . . to specific practices isolated from any inference of discrimination already established. It was in effect, as if the EEOC had sought to base its case solely upon the nonstatistical evidence relating to hiring." The difficulty with all this reasoning is that there was no statistical evidence of discrimination in this case, I submit. Whether we look at the cold figures or measure the statistics by the standard deviation test established by Castaneda, the statistical evidence does not justify "any inference of discrimination;" the statistical evidence is at best neutral and, being neutral, it can give no "color" to the EEOC's charge. The only basis for a finding by the majority of discrimination in this case is the nonstatistical evidence and even the majority implicitly recognizes, I submit, that this nonstatistical evidence is insufficient in and of itself to sustain a finding of discrimination. There is accordingly no warrant for diagnosing the district court's finding on these nonstatistical matters as infected with legal error.

In summary, it is obvious that the statistical evidence was at best neutral and certainly was insufficient to support a prima facie finding of discrimination, when properly tested by the standard deviation test mandated by Castaneda, 430 U.S. at 496 n. 17, 97 S.Ct. at 1281 n. 17. There was no piece of nonstatistical evidence which would support a finding of discrimination. Whether considered separately or together, the statistical and nonstatistical evidence did not make out a case of discrimination and the district court properly dismissed the action. The most relevant evidence was that offered in connection with the specific hiring decisions, to which I have already referred, and the evidence of the defendant's affirmative action program, as approved by the Department of Labor, evidence which the majority does not weigh, but evidence which United Bank says should be weighed in resolving whether EEOC has proved its case. 615 F.2d at 156. In the face of this evidence, I believe there is no basis in fact for a finding of liability in this case. When an employer has taken every hiring decision he has made and shows, as the bank did here, that no hiring decision was tainted, and when he has proved an affirmative action program approved by the Government, he has effectively, I submit, rebuffed any claim of discrimination.

There remains an ancillary point that deserves perhaps some comment, though I do not regard it as relevant under my analysis of the case. The majority opinion dismisses the finding of the district court on the individual claims and declares that such rulings had "no preclusive effect" on the right of these claimants to relitigate their individual claims on remand. It reaches this conclusion because, as it says, the evidence in connection with these claims "was not offered at this stage to establish entitlement to individual relief, but merely as corroborating or buttressing evidence of a general pattern of racial discrimination in hiring." I submit this is contrary to the agreed triable issues and to the Commission's own statement of its claim, as quoted by me supra. One of those issues was "[w]hether any of the individual claimants whom EEOC presents at trial were denied employment . . . because of their race." It stated the procedure for proving such claims under McDonnell Douglas and declared it intended to follow that procedure in its proof. How can it be said, in the light of this clear declaration by the Commission of the purpose of its proof, that, proof of the individual claims was "not offered . . . to establish entitlement to individual relief," especially since the Commission proceeded to prove exactly what it claimed the backpay award in each individual case should be? The EEOC sought to prove all these claims, and, in addition it, through its paralegal Ms. Stephens offered evidence of the amount of backpay due each of such claimants and the manner in which backpay was calculated. It would appear that these individual claims were directly in issue and were to be determined at this stage in the proceedings. This, however, is, as I have said, unimportant if my views on the disposition of the main issue are correct.

Finally, I would add that this case and United Bank are in effect twins. Both involved bank branches located in the very same areas. The charges in both cases were roughly the same. The evidence submitted followed the same pattern. The district court reached a like conclusion in both cases. On appeal we sustained the dismissal in the earlier case ( United Bank) but reverse it in this case. Such inconsistency in decision is unfortunate and properly raises doubts in the public mind about evenhandedness. I am unable to see how we can decide one case in favor of the defendant and not do likewise here. The rights of parties when they are the same, as I submit they are in the two cases, should not vary with different panels of the same court. I fear that is the situation here.

I would affirm the dismissal of this action for the reasons stated above.