Anderson v. Bessemer City Brief for Petitioner

    No. 83-1623

I n  t h e

t̂tprrmr (tort ni % H&mUb Stairs
October Term, 1983

P hyllis A . A nderson,

v.
Petitioner,

City o f  B essemer City, etc.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONER

J onathan Wallas 
J ohn T. N ockleby

Chambers, Ferguson, Watt, 
Wallas & Adkins, P.A.

Suite 730
951 S. Independence Boulevard 
Charlotte, North Carolina 28202 
(704) 375-8461

J. LeV onnb Chambers 
0 . P eter S herwood 
E ric S chnapper*

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Petitioner
•'Counsel of Record



1

QUESTIONS PRESENTED *

1. Did the court of appeals exceed 
its authority under Rule 52, F.R.C.P., in 

holding that there was insufficient 
evidence to support the trial court's 
finding of hiring discrimination on the 
basis of sex?

2. Does Rule 52(a), F.R.C.P., forbid 
the courts of appeals from reviewing the 

credibility findings of a trial judge?
3. Did the court of appeals err in 

holding that a prima facie case of employ­
ment discrimination on the basis of sex 
may be rebutted by proof that the respon­
sible personnel officials permitted their 
wives to work?

* The parties to this case are set forth 
at p. iii of the Petition.



-  1 1  -

Page
TABLE OF CONTENTS

Questions Presented .................  i

Table of Authorities ................ iv
Opinions Below ......................  1
Jurisdiction .........      2

Statute and Rule Involved ......   3
Statement of the Case ..............  4

Statement of the Facts .............  7

Summary of Argument  .............  12
Argument ...........     19

I. The Trial Court's Finding of 
Intentional Discrimination 
Was Not Clearly
Erroneous  ............. 19

A. The Evidence of
Discrimination ......  24

B. The Decision of the
Court of Appeals .....  4 7

II. The Trial Court Credibility 
Determinations are Subject 
To Only Limited Appellate 
Review .................. 58



iii

Page

III. The Fact That Defendant
Official Is Married to a 
Working Wife Is Of No 
Probative Value in a Sex
Discrimination Case ....... 76

Conclusion ...........................  85



IV

Page
TABLE OF AUTHORITIES

Cases

Adamson v. Galliland, 242 U.S. 350
(1917) .........................  58

Anderson v. City of Bessemer City,
551 F. Supp. 412 (D.C.S.C.
1983) ..........................  2

Anderson v. City of Bessemer City,
717 F.2d 149 (4th Cir. 1983) ... 1

Bose Corporation v. Consumers Union,
___ U.S. ___, 80 L.Ed.2d 502
( 1984) ........................  16,58

Castaneda v. Partida, 430 U.S. 482
(1977)   66,81,82

Chisholm v. Georgia, 665 F.2d 482
(4th Cir. 1982) ..............  27

Coble v. Hot Springs School District 
No. 6, 682 F.2d 721 (8th Cir.
1982) ....       43,44

Dayton Board of Education v.
Brinkman, 433 U.S. 526 (1979) .. 23

International Brotherhood of
Teamsters v. United States,
431 U.S. 324 ( 1977) ........... 57,69

Inwood Laboratories v. Ives
Laboratories, 456 U.S. 844
(1982) .............     59



V -

Page

King v. Trans World Airlines, 35 FEP
Cas. 102 (8th Cir. 1984) ......  35

Los Angeles Department of Water
& Power v. Manhart, 435 U.S.
702 ( 1978) ...................... 18,81

Maxwell v. Bishop, 398 U.S. 262
( 1970) ..........................  67

McDonnell Douglas Corp. v. Green,
411 U.S. 792 ( 1973) ............. 20

McKenney v. Marsh, 31 FEP Cas. 178
(D.D.C. 1983) ................... 39

Miller v. Mercy Hospital, No. 83-
1629, petition for certiorari .. 60

Paxton v. Union National Bank, 668
F. 2d 552 (8th Cir. 1982) ......  41

Pullman-Standard v. Swint, 456 U.S.
273 (1982) ................. 12,23,24

Rogers v. Lodge, 458 U.S. 613
( 1982) ........................  23

Texas Department of Community
Affairs v. Burdine, 450 U.S.
248 ( 1981 ) ...... . 20, 21,25,26,

28,47,48

United States v. Oregon State 
Medical Society, 343 U.S.
326 ( 1952) .................  59,60

United States v. Raddatz, 447 U.S.
667 (1980) 61



VI

Page

United States v. United States 
Gypsum Co., 333 U.S. 364 
(1946)     58-59,63

U.S. Postal Service v. Aikens, 460 
U.S. , 75 L.Ed.2d 403 
(1983) ....................  23,31,53

Weiner v. City of Oakland, 14 FEP
Cas. 380 (E.D. Mich. 1976) ...... 35

Witherspoon v. Illinois, 391 U.S.
510 ( 1968) ......   67

Statutes
28 U.S.C. § 1254( 1 ) .................  3,5
Section 703, Title VII of the 

Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a) ......... Passim

Rule
Rule 52(a), Federal Rules of

Civil Procedure ......  4,16,24,57,63

Other Authorities
S. Casteras, The Substance or the 

Shadow -- Images of Victorian 
Womanhood (1982) ............... 80

E. Flexner, Century of Struggle 
(1959) ................... 81



V I 1

Page

New York Times, August 3, 1984,
p. A10, cols. 3-4 ............   36

Perpetuation of Past Discrimination,
96 Harv. L. Rev. 828
( 1983) ........................  27

Statistical Abstract of the United
States, 1982-83 ...............   79



1

No. 83-1623 
In the

Supreme Court of the United States 
October Term, 1984

Phyllis A. Anderson,
Petitioner, 

v .

City of Bessemer City, etc.

BRIEF FOR PETITIONER

On Writ Of Certiorari 
To The United States Court Of Appeals 

For The Fourth Circuit

OPINIONS BELOW
The decision of the court of appeals 

is reported at 717 F.2d 149, and is set 
out at pp. 35a-65a of the Appendix to the 
Petition. The order denying rehearing, 
which is not reported, is set out at



2

Petition Appendix p. 66a. The district 

court's Memorandum of Decision of Septem­

ber 1 6, 1982, which is not reported, is 
set out at pp. 1a-5a of the Appendix to 

the Petition. The district court's 
Findings of Fact and Conclusions of Law, 
which are reported at 557 F. Supp. 412, 
are set out at Petition Appendix pp. 
6a-32a.

JURISDICTION

The judgment of the court of appeals 
was entered on September 19, 1983. A
timely petition for rehearing was filed, 
which was denied on November 4, 1983. On 

January 25, 1984, the Chief Justice
granted an order extending the date on 
which the Petition for Writ of Certiorari 
was due until April 2, 1984. The Petition 
was filed on March 30, 1984, and certi-



3

orari was granted on June 18, 1984.

Jurisdiction of this Court is invoked 

under 28 U.S.C. § 1254(1).

STATUTE AND RULE INVOLVED 
Section 703(a) of Title VII of the 

1964 Civil Rights Act, 42 U.S.C. § 

2000e-2(a) provides:

It shall be an unlawful employment 
practice for an employer —

(1) to fail or refuse to hire or to 
discharge any individual, or other­
wise to discriminate against any 
individual with respect to his 
compensation, terms, conditions, or 
privileges of employment, because of 
such individual's race, color, 
religion, sex, or national origin; or
(2) to limit, segregate, or classify 
his employees or applicants for 
employment in any way which would 
deprive or tend to deprive any 
individual of employment oppor­
tunities or otherwise adversely 
affect his status as an employee, 
because of such individual's race, 
color, sex, or national origin.



4

Rule 52(a), Federal Rules of Civil 
Procedure, provides in pertinent part:

In all actions tried upon the facts 
without a jury or with an advisory 
jury, the court shall find the facts 
specially and state separately its 
conclusions of law thereon, and 
judgment shall be entered pursuant to 
Rule 58; and in granting or refusing 
interlocutory injunctions the court 
shall similarly set forth the 
findings of fact and conclusions of 
law which constitute the grounds of 
its action. Requests for findings 
are not necessary for purposes of 
review. Findings of fact shall not 
be set aside unless clearly errone­
ous, and due regard shall be given to 
the opportunity of the trial court to 
judge of the credibility of the 
witnesses.

STATEMENT OF THE CASE 

On May 18, 1981, petitioner commenced 
this action in the United States District 

Court for the Western District of North 

Carolina. Her complaint alleged that the 
defendant City of Bessemer City had 
refused to hire her as the city Recreation 
Director because of her sex, in violation



5

of Title VII of the Civil Rights Act of 
1964, 42 U.S.C. §§ 2000e et. seg. Peti­

tioner had previously filed a charge of 
discrimination with the Equal Employment 

Opportunity Commission, which had issued a 
Determination finding reasonable cause to 
believe that the defendant had engaged in 

discrimination on the basis of sex.
The case was heard at a non-jury 

trial in September 1982. On September 16, 

1982, the district judge issued a Memoran­
dum of Decision which concluded that 
petitioner had been denied the position of 
Recreation Director because of discrimi­
nation on the basis of sex. (Pet. App. 
1 a-5a) . The judge directed that the 
parties attempt to reach a settlement in 
light of that decision; if they were 
unable to do so, counsel for plaintiffs 
were directed to propose more detailed 
findings as well as an appropriate



6

judgment. (Pet. App. 5a). The trial court 
expressly provided that counsel for the 

defendant could respond to and comment on 

whatever was proposed by plaintiff. (J.A. 
35a). Counsel for plaintiff submitted 
proposed findings of fact and conclusions 

of law on November 15, 1982, and the 
defendant submitted a detailed response on 

December 1 0, 1982. (J.A. 1 1a-33a, 36a- 

47a). The trial court issued its Findings 
of Fact and Conclusions of Law on February 
16, 1983. (Pet. App. 6a-32a).

On appeal the Fourth Circuit reversed 
as "clearly erroneous" each of the con­

troverted factual findings of the district 

court. (Pet. App. 47a, 51a, 55a-56a, 
59a). The court of appeals held that the 
evidence of discrimination had been 
rebutted by proof that the male committee 
members were married to women who had held 
jobs outside the home (Pet. App. 61a). A



7

timely petition for rehearing and sugges­

tion for rehearing en banc was denied on 
November 4, 1983.

STATEMENT OF THE FACTS
Certain basic facts regarding the

events giving rise to this litigation are

not in dispute. Prior to 1975 most, if
not all, recreation activities in Bessemer
City were conducted on its behalf by the 

1
Optimist Club. The Club then ran "the 
team sports activities in Bessemer City" 
(J . A. 142a) and "just about ran the 

Recreation Department for the City". (J.A. 
156a). The Optimist Club is an all-male 
organization. (J.A. 149a).

J.A. 139a, 142a, 156a, 158a, 159a-60a; see 
note 12 infra.



8

In 1975 the city decided to appoint a
Recreation Director to expand the recrea-

2
tion activities then offered. The mayor 

named a selection committee composed of 
one woman, Leona Boone, and four men, 

Josiah Butler, William McClellan, Frank 
Nichols and Timothy Helms. Butler and 
Nichols were members of the all-male 

Optimist Club, and at differing times had 

been responsible for the recreation 
activities it operated on behalf of the 

city. (J.A. 139a, 156a). Butler person­
ally solicited applications for the 
position from four men, at least two of 
whom he knew because of their work in the 
Optimist Club programs. (J.A. 140a, 141a, 
149a). Among those so solicited from the 
Optimist Club by Butler was Donald

2 J.A. 108a, 142a, 1 6 3 a - 6 4 a. This was
apparently the second such appointment. An 
unidentified man had earlier been named to 
this position for a year and then had been 
dismissed for inaction. (J.A. 145a).



9

Kincaid, the individual eventually hired 
as Recreation Director. Butler admitted 
that he had recruited no female appli­
cants, although he acknowledged knowing 
two women whom he "would have recommended 
very highly for the job." (J.A. 144a).
The committee also placed an advertisement 
for the position in the local newspaper. 
Petitioner was the only woman who applied 

for the job.
The hiring committee did not estab­

lish prior to its selection decisions any 
standards or guidelines, written or 

otherwise, for choosing the Recreation 
Director, other than that the Director 
would have to 1 ive within the City of 
Bessemer. (Pet. App. 3a, 11a, 20a). Eight 
ind ividuals applied for the position, and 
al 1 eight were interviewed by the com­
mittee on the same day. The committee 
concluded that only three of the appli-



10

cants were qualified for the position 

— petitioner, Donald Kincaid, and Burt 

Broadway. The committee unanimously 
initially preferred Broadway, but decided 
not to offer him the position when he 
declined to move to Bessemer City. A 

majority of the committee then voted to 
offer the job to Kincaid, who accepted the 

position. The chair of the committee, 
Leona Boone, voted in favor of hiring 
petitioner.

The trial presented conflicting 
evidence on three important subsidiary 
issues: (1) whether petitioner alone was
asked personal questions indicating a bias 

against female applicants, (2) whether the 
committee had manipulated its selection 
standard, first emphasizing experience 
over education, and then doing precisely 
the opposite, in order to assure the



select ion of a man, and (3) whether
petitioner was better qualified than 
Kincaid.

The trial judge resolved each of 
these factual issues in favor of peti­

tioner. Both the September 16, 1982
3

Memorandum of Decision and the lengthier
4

Findings of Fact and Conclusions of Law of 
February 16, 1983, addressed each of these 
disputed issues. The trial court concluded 
that petitioner was the victim of inten­
tional discrimination and that but for 
that discrimination she would have been 
hired as Recreation Director. The court 
awarded petitioner back pay with interest

Pet. App. 3a (manipulation of standards), 
4a (personal questions; petitioner better 
qualified) .
Pet. App. 12a (questions), 15a-20a 
(petitioner better qualified), 22a 
(standards).



12

and a reasonable attorneys' fee. (Pet. 

App. 33a-34a). The amount of these awards 

is not in dispute.

SUMMARY OF ARGUMENT 

I
The district court found that 

petitioner had been denied the position of 
Recreation Director because of her sex, 
that the reasons given by city officials 

for rejecting petitioner's application 

were pretextual, and that but for that 
purposeful discrimination petitioner would 

have been appointed to that position. Such 
factual findings must be sustained on 
appeal unless clearly erroneous. Pull­
man-Standard v. Swint, 456 U.S. 273
( 1982) .



13

The trial court's finding of inten­

tional discrimination was amply supported 

by the record and subsidiary findings in 
this case.

( 1) One member of the selection 

committee, asked at trial why he had 
chosen to hire a male applicant rather 
than petitioner, responded, "[A] lady 
could have run the job, I'm not saying 
she couldn't, but it would have been real 
hard." (J.A. 158a). That committee 
member added that he would not want his 
wife to have the job, explaining "I think 

my wife should be at home at night." (J.A. 
161a).

(2) At her interview petitioner was 
asked how her husband felt about her 
applying for the job. None of the male 
applicants were asked if their wives 
approved of their working. The trial 
court concluded that the question asked of



14

petitioner "suggested that a woman ought 
to be at home instead of working." (Pet. 
App. 4a).

(3) Committee member Butler testi­
fied that he knew two women who in his 

judgment were better qualified for 

appointment as Recreation Director than 
Donald Kincaid, the man actually selected. 
(J.A. 144a). Yet Butler acknowledged that 

he had solicited applications from Kincaid 
and three other men, but not from either 
of the two women. (Pet. App. 1Oa-11a).

(4) The trial court concluded that 
the defendant had manipulated its selec­
tion standards to assure the selection of 
a man. (Pet. App. 22a). The reason 

articulated at trial for hiring Kincaid 
rather than petitioner was that Kincaid's 
college degree was in physical education, 
while petitioner's degree was in elemen­

tary education. But the committee's



15

actual first choice was another man, Burt 

Broadway, who, like petitioner, lacked a 

degree in physical education. Petitioner, 
like Kincaid, had taken physical education 
courses in college; the selection commit­
tee, despite its ostensible emphasis on 
education, never bothered to inquire what 

courses either candidate had actually 
taken. The trial judge properly gave 
particularly close scrutiny to the 
explanation offered at trial for hiring 
Kincaid, since no selection standards or 
job requirements were established in 

advance of the decision to reject peti­
tioner's application. Not until after the 
selection committee knew that Kincaid but 
not petitioner had a degree in physical 
education was any preference for such a 

degree expressed.



16

II

Rule 52(a) on its face distinguishes 
between appellate review of credibility 

determinations and appellate review of 

other factual findings. Bose Corporation
v. Consumers Union, ___ U.S. ___, 80

L. Ed.2d 502, 516 ( 1984). A trial court's 

characterization of the demeanor of a 

witness is unreviewable on appeal. Insofar 
as a credibility determination turns on 
evidence other than demeanor, such as the 
substance of a witness's testimony, 

however, that determination is subject to 
review under the usual clearly erroneous 
standard.

In this case one critical subsidiary 
issue was expressly and necessarily 
resolved based on demeanor and credibil­

ity. There was conflicting testimony as 
to whether Kincaid had been asked during 
his interview whether he was willing to



17

work at night. Counsel for respondent 
correctly argued that that issue had to be 

resolved on the basis of credibility (J.A. 
176a), and the trial judge relied on the 
credibility of the witnesses in concluding 
that Kincaid was not asked such a ques­
tion. (Pet. App. 13a). This issue was 
important because petitioner was asked if 
she "realized" the job involved night 
work, an inquiry which the trial judge 
found "implied substantial doubt that a 

woman ought to have a job which required 
night work." (Pet. App. 4a, 12a).

Ill
The court of appeals held that the 

direct evidence of discrimination des­
cribed above had been rebutted by testi­
mony by the four male committee members 
"that their wives had worked." (Pet. App.
6 1a). Respondent had deliberately



18

introduced evidence of the employment 

histories of the four wives on the theory 

that it proved that their husbands were 
not prejudiced against employing women. 
(J.A. 146a)

This working wife defense necessar­

ily, if tacitly, assumes that the wives of 

the male committee members would not or 
could not have worked outside their homes 

unless their husbands approved. Title VII 

condemns precisely such "myths and purely 
habitual assumptions about ... wom[e]n 

... ." Los Angeles Department of Water &
Power v. Manhart, 435 U.S. 702, 707
(1978). A personnel official's marriage 
to a working wife should be accorded no 
weight whatsoever in assessing that
official's motives in a Title VII sex
discrimination case.



19

ARGUMENT

I. THE TRIAL COURT'S FINDING OF
INTENTIONAL DISCRIMINATION WAS 
NOT CLEARLY ERRONEOUS

In a Title VII discriminatory 
treatment action the initial burden on the 

plaintiff is to establish a prima facie 
case by demonstrating that she applied for 
an available position for which she was 

qualified but was rejected. The burden 
then shifts to the defendant to rebut the 
presumption of discrimination by producing 
admissible evidence that the plaintiff was 
rejected, or someone else preferred, for a 
legitimate, nondiscriminatory reason. If 
the defendant carries this burden, the 
presumption raised by the prima facie case 
is rebutted, and the factual inquiry 

proceeds to a new level of specificity. 
The plaintiff must then demonstrate that 
the proferred explanation was not the true



20

reason for the employment decision. She 

may do so either directly by persuading 

the court that a discriminatory reason 
more likely motivated the employer, or in­

directly by showing that the employer's 

preferred explanation was unworthy of 
credence. Texas Dept. of Community

Affairs v, Burdine, 450 U.S. 248, 253-56 
(1981); McDonnell Douglas Corp. v. Green, 
411 U.S. 792, 802-05 (1973).

In the instant case the respondent

acknowledged that the petitioner was
qualified for the position of Recreation

Director, and both courts below agreed
that she had met her burden of establish-

5
ing a prima facie case. The district

Pet. App. 25a, 49a. The respondent 
apparently acknowledged in the court of 
appeals that petitioner had done so. Brief 
for Appellant, p. 13. ("In reference to 
the McDonnel 1-Douglas order and allocation 
of proof, the instant Argument relates to 
the third stage, that is, whether or not 
the plaintiff established that the defen­
dant's articulated reasons for the selec­
tion of Donald Kincaid are in fact pre—



21

court assumed that the defendant had, as

required by Burdine, articulated a

nondiscriminatory reason for hiring
Kincaid instead of petitioner: the fact
that Kincaid's college degree was in
physical education. The district court,
relying on the method of analysis mandated
by Burd ine, then considered whether
petitioner had nonetheless met her burden
of persuasion that she had been rejected
because of her sex. The trial court
expressly concluded that petitioner "was
not selected for the position of recrea-

6
tion director because of her sex". The 
district judge further held that the

textual...")

Pet. App. 20a; see also id. at 2a (peti­
tioner "was denied the job because of her 
sex"), 7a (petitioner "was denied the job 
because of her sex"), 23a ("[t]he male 
members of the committee chose Kincaid ... 
because he was male"), 31a ("plaintiff has 
been discriminated against because of her 
sex in violation of Title VII....").



22

reason given for selecting Kincaid, his 

possession of a degree in physical
7

education, was "pretextual", and that
" [b]ut for the discrimination based on

sex, the plaintiff would have been

selected for the position of Recreation
8

Director of Bessemer City."

At the trial of this action, as in 
most civil litigation, the different 
documents and live testimony adduced by 
the parties pointed toward different 
conclusions. The conflicting evidence in 

this case required "the district court 

[to] decide which party's explanation of

Pet. App. 2a, 26a. The trial court also 
held pretextual Helms' explanation, 
concurred in by no other member of the 
Committee, that he had chosen Kincaid 
because of the program of proposed activi­
ties Kincaid described at his interview. 
(Pet. App. 23a). Both McClellan and Boone 
testified, and the trial court held, that 
the program proposed by Kincaid was 
indistinguishable from the program proposed 
by petitioner. Id.

8 Pet. App. 23a; see also id. at 27a.



23

the employer's motivation it believe [d]".
U.S. Postal Service v. Aikens, 460 U.S.

9
711, ___, 75 L.Ed.2d 403, 411 (1983). The
district court's decision here that the 
respondent had been motivated by a 
discriminatory purpose may be reversed on 
appeal only if clearly erroneous. "'Find­

ings as to the design, motive and intent 
with which men act' [are] peculiarly 
factual issues for the trier of fact and 
therefore subject to appellate review 
under Rule 52." Pullman-Standard v. Swint, 
456 U.S. 273, 288 (1982). This Court has 
repeatedly applied that limited standard 
of review to claims of discriminatory 
intent. See, e.g., Rogers v. Lodge, 458 
U.S. 613, 622-23 (1982); Dayton Board of 
Education v. Brinkman, 433 U.S. 526, 534
(1979). An appellate court "may only

® The Fourth Circuit's opinion contains no 
reference to Aikens.



24

reverse a district court's finding on 

discriminatory intent if it concludes that 

the finding is clearly erroneous under 

Rule 52(a)." Pullman-Standard v. Swint, 
456 U.S. 27 3, 290 ( 1982).

(A) The Evidence of Discrimination

The Fourth Circuit did not suggest 

that the trial judge's decision was based 
on any error of law. Rather, the appel­
late court held that the record in this 

case was devoid of any evidence which 
could support the trial judge's finding of 

discriminatory intent. In fact, however, 
the evidence adduced at trial not only 

permitted but compelled the findings made 
by the district judge. That record 
included an admission that sex had been a 
reason for rejecting petitioner's applica­
tion, proof of selective recruiting on the



25

basis of sex, and evidence that only

petitioner was asked how her husband felt
10

about her applying for the job.

(1) There is at the outset con-
siderable question as to whether the
defendant met its burden to "clearly set
forth, through the introduction of admis­
sible evidence, ... reasons for the 
plaintiff's rejection [that are] legally 
sufficient to justify a judgment for the 
defendant." Burdine, 450 U.S. at 255. The 
defendant attempted to prove that Kincaid 
was preferred because of his degree in 

physical education, the only reason for 
his selection articulated by more than a 
single member of the selection committee. 
But committee member Nichols, who referred 
to that degree as part of the reason for

1 0 See, e.g., J.A. 95a, 108a, 158a, 161a; see 
also Pet. App. 12a, 13a, 21a, 26a.



26

1 1
Kincaid's selection, also conceded that 

petitioner's sex was another motivating 

factor. (See pp. 28-29, infra) . Had 
Nichols been the only personnel official 

involved, this testimony would clearly 

have been inadequate to meet the defen­

dant's burden under Burdine. Committee 
member Butler also stated that his 

preference for Kincaid was based on two 
considerations, Kincaid's degree in 
physical education and Kincaid's partici­
pation in the Optimist Club program. (J.A. 

141a). Since the Optimist Club was an 
avowedly discriminatory organization with 
only male members, and the program in
which Kincaid was involved was operated by

12
the Club on behalf of the City, Butler's 

testimony by itself also failed to

J.A. 157a.

12 See note 1, supra.



27

articulate a clearly nondiscriminatory
13

basis for Kincaid's selection. Committee 
member Helms, when asked why he voted for 

Kincaid, made no mention of Kincaid's 
college degree, but insisted that his vote 
was based on the proposed recreational 

activities which Kincaid described at his 
interview. (Pet. App. 23a). The trial 
court rejected this explanation as 
pretextual, since several other witnesses

^3 in the district court and court of 
appeals, counsel for respondent repeatedly 
referred to the activities conducted by 
the all-male Optimist Club as a city 
program. Brief for Appellant, pp. 4 
(Butler "as Youth Activities Director of 
the Bessemer City Optimist Club ... had 
the entire responsibility for the opera­
tion of the City's recreation progam"), 5 
(Nichols "in 1975 was the Youth Director 
of the Bessemer City Optimist Club, which 
then managed the defendant's recreation 
program."), 7; J.A. 36a, 37a. Any prefer­
ence for experience which was previously 
available only to men would unlawfully 
perpetuate the effects of past discrimi­
nation. See Chisholm v. Georgia, 665 F.2d 
482, 485 (4th Cir. 19 82) ; Perpetuation of 
Past Discrimination; 96 Harv. L. Rev. 828 
( 1983).



28

had testified the programs proposed by 

Kincaid and petitioner were indistinguish­

able. (Id.). Committee member Boone 

actually voted to hire petitioner rather 
than Kincaid. Thus of the five committee 
members only one, McClellan, testified 

that Kincaid's physical education degree, 
untainted by any combination with some 

discriminatory consideration, was the 

reason why he preferred to hire Kincaid. 
Assuming arguendo that these conflicting 
accounts were sufficient to satisfy 

respondent's burden under Burdine, it is 
apparent that they provided relatively 

little evidentiary support for respon­

dent's explanation of its selection of 
Kincaid.

(2) The district court emphasized 
that a member of the hiring committee 
candidly acknowledged at trial that one of 
the reasons he opposed hiring petitioner



29

14
was her sex. Prank Nichols, when asked by 

counsel for respondent why he had prefer­
red Kincaid over petitioner, referred to 
Kincaid's degree in physical education, 

then added another reason:

Q. Anything else?
A. At the time that we were 

talking about getting this 
recreation program started at 
Bessemer City, a lady could 
have run the job. I'm not 
saying she couldn't, but it 
would have been real hard.
(J.A. 158a).

On cross examination Nichols reiterated 

his reservations about the wisdom and 
propriety of hiring a woman:

Q. You wouldn't want your wife to 
have that job, though, would 
you?

A. No, sir, I wouldn't.
Q. And you wouldn't want to put

a lady through lining ballfields 
and being at the gym at night?

1 4 Pet. App. 20a, 26a.



30

A. I'm speaking personally for
myself. I have three children 
at home, and I think my wife 
should be at home at night.
(J.A. 161a).

Although Nichols stopped short of stating 

that he would never hire a woman for the 

position, he never withdrew or disavowed 

his express testimony that he preferred 
Kincaid over petitioner in part because of 

petitioner's sex. This direct evidence of 
discriminatory intent was a frank admis­

sion of precisely the sort of sexist 
purpose alleged by petitioner and forbid­
den by Title VII. While such direct proof 

of discriminatory intent is not required 
to establish a Title VII violation, it is 

certainly of exceptional importance where



31
15

it can be shown. U.S. Postal Service v.
Aikens, 460 U.S. at ____, 75 L.Ed.2d at
409 n.3 (1983).

(3) The district court found that
during her interview petitioner had been
asked if her husband approved of her

16
applying for the job. Petitioner under­
standably regarded this as an inappro­

priate inquiry:

I remember the question was asked 
how my husband felt about me 
applying for the job as Recreation 
Director, and I replied that my 
husband had nothing to do with my

The court of appeals inexplicably dismissed 
this testimony as "inadequate to support a 
finding of bias". (Pet. App. 61a n. 5) . 
The appellate court gave no explanation of 
why a candid admission of a discriminatory 
purpose is insufficient to support a 
finding of bias, and none can readily be 
imagined.

Pet. App. 12a, 13a, 21a, 26a? see also id. 
at 4a, 25a.



32

applying for the job; however, he 
was behind me 100 percent.17

Committee member Boone confirmed that this
18

question had been asked, and none of the

defense witnesses denied that that had 
1 9

occurred . The trial court found that no 

comparable question had been asked of male

1 7 J.A. 95a. See also id. at 81 a-82a. 
Petitioner also referred to this question 
in her written EEOC complaint filed only a 
few days after the interview. (J„A. 73a).

18 J.A. 108a.
1 9 The court of appeals stated, "The evidence 

in this case . .. amply demonstrated that a 
substantially similar question concerning 
... family reaction was posed both to 
Anderson and Kincaid, if not to all 
candidates." (Pet. App. , 58a). No witness 
testified that any such question had been 
asked of Kincaid or any other male appli­
cant. Although the court of appeals 
appeared to characterize Boone's comment 
to Kincaid about his new wife, "and your 
new bride won't mind," as a "question", 
see Pet. App. 58a, the appellate court 
later correctly described Boone's words as 
a "remark". Id. The difference between a 
question and a remark is of obvious 
importance.



33

20
applicants, and characterized this inquiry

21
as a "gender stereotyped" question "which
suggested that a woman ought to be at home

22
instead of working."

The district court also concluded
that petitioner had been asked if she
"realized" the position would involve

23
night work and travel. No male applicants
were asked about travel. (Pet. App. 12a)
There was conflicting testimony as to
whether Kincaid or the other men had been

24
asked about night work, but the district 
court concluded that only petitioner had

Pet. App. 12a, 13a, 21a, 26a.
Pet. App. 25a.
Pet. App. 4a.
Pet. App. 12a (night work, travel), 21 
(night work), 26a (night work). Peti- 
tioner's testimony regarding these ques­
tions is set out at J.A. 81a.

24 See pp. 70-76, infra.



34

25
been asked such a question. The district
court noted that an inquiry about night

work, if made of all applicants, might

arguably be job related, but that such an

inquiry when asked of female applicants
only implied a belief that "women have

family responsibilities that should keep
26

them home at night." These questions 
provided direct evidence of the state of 
mind of the committee at the time it 

rejected petitioner's application.

Pet. App. 12a, 13a, 21a, 26a. The court 
of appeals asserted that this "finding is 
without evidence to support it...." Pet. 
App. 59a. The testimony of Boone, quoted 
in the Fourth Circuit's own opinion only a 
paragraph earlier, was as follows:

"Q. Did you tell Phyllis Anderson 
that Donnie Kincaid was not 
asked about night work?

"A. He wasn't asked about night 
work."

Pet. App. 57a; see also J.A. 108a, 
120a, 121a.

Pet. App. 21a. That was precisely Nichols' 
view. See pp. 29-30, supra.



35

Inquiries of female job applicants

about their families or marital plans are

the hallmark of intentional discrimination
27

on the basis of sex. Such questions to
female job applicants about their personal

lives remain, despite the passage of

Title VII, a common phenomenon in the
28

United States, signaling an assumption on

The evidentiary significance of such 
questions does not depend on a showing 
that they are utterly unrelated to the 
job. A question is not exempt from 
scrutiny because of the mere possibility, 
however remote, that the information 
sought could under some unlikely circum­
stances be job-related. The hallmark of a 
sexually stereotyped inquiry is that it 
reflects the types of prejudices which 
prior to 1964 were the basis of the 
discrimination against female workers now 
forbidden by Title VII. Those prejudices 
include assumptions about the appropriate 
roles of husbands and wives in marriage, 
housework, and childrearing, and about the 
kind of work that a woman is capable of 
doing.

O O  'See, e.g., King v. Trans World Airlines, 
35 FEP Cas. 1"02, T037~T0FT8th"CIr7T984 ) ; 
Coble v. Hot Springs School Dist. No. 6, 
682 F. 2d 721 , 724 (8th Cir. 1982); Weiner 
v. City of Oakland, 14 FEP Cas. 380, 381 
(E.D. Mich. 1976) . On August 3, 1984, the 
New York Times reported the following



36

the part of the questioner that marriage 

or housework are for women a more appro­

priate avocation than employment outside 

the home. That was, as the trial court 

noted, precisely the unavoidable impli­

cation of the particular questions asked 
of petitioner. Similar personal inquiries 
are not made of male applicants because of 

the universal assumption that men will and 
should remain employed regardless of their 

family responsibilities. In this case no 
witness suggested Kincaid was asked if his

colloquy:

"Sandi Hesser, 29, explained that 
whenever she applied for a job she 
was asked whether she was married 
and when she was going to have 
children. 'Twenty-four years ago 
when I went out into the job 
market I found the same thing', 
Mrs. Ferraro said. 'Are you 
geting married? Are you going to 
havechildren.'The Vice-President 
nominee told Mrs. Hesser it was 
important to remember you can do 
both."

P. A10, cols. 3-4.



37

spouse objected to his working for a 
living, and it is simply inconceivable 

that an interviewer would put such a 
question to a man.

For working women a sexually stereo­
typed question of this kind is the moral 

and practical equivalent of the racially 
segregated water fountains and lunchrooms 
which once infested the nation's factories 

and offices, both a demeaning affront in 
and of itself and a grim harbinger of 
discrimination to follow. Such inquiries 
can announce as clearly as the most 
blatant direct statement a questioner's 
discriminatory belief that a woman should 
not work without her husband's permission, 
or that women are somehow unsuited for 
certain types of jobs. A question of this 
type places a female applicant in an 
unconscionable dilemma, forcing her to 
chose between either answering theeither



38

inquiry, thus giving legitimacy to an 

overtly discriminatory question, or 

articulating an objection to the inquiry, 
which may unavoidably offend the ques­

tioner. If asked a question such as "How 
does your husband feel about your working 

for a living?", a female job applicant is 

compelled either to compromise her 
principles, and the principles which 

underly Title VII, or to compromise her 
chances for employment.

Such inquiries constitute a per se 
violation of Title VII. Section 703(a) 

broadly prohibits any act of discrimi­
nation on the basis of sex with respect to 

employment. Any intentional difference in 
the method in which male and female 
applicants are interviewed for a job is on 
its face discriminatory. When an employer 

utilizes such sexually stereotyped in­
quiries, it compels even successful female



39

applicants to run a gauntlet of obnoxious 

or demeaning questions, a process from 
which male applicants are exempt. It is 
often irrelevant whether identical ques­
tions were asked of men. In many in­
stances the same inquiry, such as whether 
the applicant's spouse approves of the 
applicant working outside the home, is an 
insult when asked of a woman, but a joke 
when asked of a man.

(4) The district court held that the 
defendant had failed "to solicit qualified
men and women equally to apply for the 

29
position." The court noted that Josiah 
Butler acknowledged that while he knew of
six qualified individuals, four men and

*
two women, he had solicited applications

30
only from the four men. The failure to 
__

Pet. App. 25a? see also _id. at 26a. 
Compare McKenney v. Marsh, 31 FEP Cas. 
178, 180 (D.D.C. 1983).

30 Pet. App. 10a-1 1a, 21a. Butler attempted 
to explain his conduct by asserting that



40

solicit the two women involved was quite

possibly critical to the outcome of the

selection process, since both women had

degrees in physical education, the

criterion ostensibly relied upon to reject
petitioner, and Butler insisted that he

would have voted to hire either of them
31

instead of Kincaid. Conversely, although
Butler solicited applications from four

men, he only testified that one of them
32

had a degree in physical education. Two

he doubted the women would have taken the 
position because it was not well paid. 
(J.A. 149a). Butler acknowledged he did 
not actually know whether the two admit­
tedly qualified women were making more or 
less than the salary being offered for the 
Recreation Directors. Id. The trial court 
refused to credit this explanation, noting 
that Butler had made no similar analysis 
of the likely salary demands of the four 
men whom he recruited. (Pet. App. 21). 
One of the four men Butler recruited, Russ 
Bergman, was a teacher like the two women 
whom Butler declined to recruit. (J.A. 
148a).

31 J.A. 144a.
3 2 Butler stated that Kincaid had a degree in 

education. Broadway had no such degree.



41

of the men Butler recruited were his first
and second choices for the job, Burt

Broadway and Donald Kincaid, and both

Broadway and Kincaid were known to Butler
because all three had been involved in the

33
activities of the all-male Optimist Club. 

This pattern of selective recruiting was 
clearly of substantial weight in eval­
uating the motive behind the city's 

decision to hire Kincaid, and in assessing 
whether the subsequent emphasis on
possession of a degree in physical 
education was pretextual.

(5) The trial court concluded that 
the defendant had manipulated its selec­

tion standards to assure the selection of 
34

a man. (See Pet. App. 51a). Noting the

Butler gave no indication that either 
Pierson or Bergman had such degrees.

33 J .A. 140a, 141a.
34 Compare Paxton v. Union National Bank, 688 

F.2d 552, 563-68 (8th Cir. 1982) (employer 
emphasized either education or experience



42

allegedly decisive importance which the 

committee attached to a physical education 
degree in choosing between Kincaid and 
petitioner, the district court found:

The emphasis by the male committee 
members on the importance of a degree 
in health and physical education was 
abandoned when they explained why 
Broadway was their first choice. 
Broadway had no degree; they found 
him most qualified because of his 
work experience. ... Yet the male 
members of the committee downplayed 
the significance of experience when 
comparing plaintiff's teaching, 
supervisory, and recreation experence 
to Kincaid's qualifications. (Pet. 
App. 22a).

The trial judge noted that the committee 
had made its choice without first formu­
lating a description of either the respon­
sibilities of a Recreation Director or the
qualifications which it would seek in an 

35
applicant. The district court recognized

depending on which criterion led to the 
selection of a white).

35 Pet. App. 3a, 11a, 20a, 27a.



43

that such a standardless selection process

"left the committee members free to use
36

their own biases in the selection."

The district court correctly attached 
considerable significance to the fact that 

neither the committee nor any of its 
members articulated any concern with 
possession of a degree in physical educa-
tion until after Kincaid had been se~
lected. In a world in which no two
applicants are ever identical, it will
always be possible to identify after the 
fact some characteristic unique to an 
applicant who was actually preferred for 
an unlawful reason. In a Title VII case 
in which, as here, the criterion relied on 
to reject the plaintiff was only articu­

lated after the selection officials knew 
the criterion would have that effect,

Pet. App. 27a. See Coble v. Hot Springs 
School District No. 6, 662 F.2d 721 (8tK 
ClrT 1962.)



44

substantially less evidence will ordinar­

ily be necessary to establish that that
37

criterion was merely a pretext.

In this case there was a substantial
body of evidence supporting the trial

court's conclusion that the emphasis on
possession of a physical education degree

was a mere pretext. First, as the trial
court noted, none of the committee members
ever bothered to inquire of Kincaid what

courses he had actually taken, or how the
courses he had completed in health and
physical education might have differed, if

at all, from the courses on the same
38

subjects which petitioner had taken. The 
committee did not ask, could not know, and

37 See, e.g., Coble v. Hot Springs School 
Dist. No. 6, 682 F.2d 721, 728 (8th Cir. 
1982)(selection criterion met only by 
successful male applicant not announced 
until after choice made.)

38 Pet. App. 19a; J.A. 134a, 150a.



45

apparently did not care whether Kincaid 
actually had more such courses than 

petitioner, or whether his courses may 

have included topics, such as skiing, that 
might be irrelevant to the Recreation 
Department. Second, competitive ath­

letics, the apparent subject of Kincaid's 
39

education, was only one of five major
goals of the Recreation Department. (Pet.
App. 4a) . A majority of the committee
agreed that one of the primary purposes of
hiring a Recreation Director was to expand
the recreation activities from the sports
programs already operated by the Optimist
Club to activities such as music, dance,
drama, and programs for the handicapped 

40
and elderly. Third, whatever educational 
advantages Kincaid may have had, his work

See J.A. 63a.
J.A. 108a, 116a-17a (Boone), 142a (But­
ler), 164a (Helms).



46

experience was strikingly less valuable 

than petitioner's. In March 1975, Kincaid 
had been out of college less than a year, 
while petitioner had twenty years of 

experience in a variety of positions 
related to the job of Recreation Direc­

tor. Of the two applicants, for example, 

petitioner was the only one who had 
actually done budgeting or bookkeeping,
supervised other employees, or taught

41
dance, music, or art. Only petitioner
had actually organized and officiated at

recreational activities as part of her 
42

employment, and as of March 1975 only she
had received a North Carolina State
Recreational Director's Certificate, which

43
is awarded based on such experience. The

^  J.A. 86a (dance), 86a-87a (bookkeeping), 
87a (music, art, fundraising), 90a (fund- 
raising ) .

42 J.A. 86a, 88a-89a, 100a, 103a.
43 J.A. 91a, 100a-101a.



47

decision of the city to hire Kincaid was
avowedly based on his possession of a

degree in physical education; the district
court concluded that if all relevant
experience and training were considered,

petitioner was the better qualified 
44

applicant. That finding supported the 
trial court's conclusion that the defen­
dant's after the fact emphasis on posses­
sion of a degree in physical education was 
pretextual . Texas Department of Community 
Affairs v. Burdine, 450 U.S. 248, 259
(1981) .

(B) The Decision of the Court of 
Appeals

In dismissing the record in this case 
as insufficient to support any finding of 
discrimination, the court of appeals 
insisted that a plaintiff in a Title VII

74 Pet. App. 4a, 15a-19a.



48

case is required to prove that he or she

is "better qualified" than the person

actually hired or promoted. (Pet. App.

5 Oa) ( Emphasis in original). This Court
expressly rejected that rule in Texas

Dept, of Community Affairs v. Burdine,
holding that an employer is not free to
discriminate on an otherwise impermissible

basis among equally qualified individuals.
"[T ]he employer has discretion to choose

among equally qualified candidates, pro-
vided the decision is not based upon

45
uni awf ul criteria." 450 U.S. at 259 
(Emphasis added). A requirement that a 

Title VII plaintiff prove that he or she 
was better qualified than the applicant or 
employee chosen for a position would

45 The court of appeal's opinion recognizes 
no such limitation on an employer's 
decision. "[A]mong equally qualified 
candidates, an employer has discretion to 
choose the person he prefers." (Pet. App. 
54a-55a).



49

effectively repeal Title VII for the 
substantial number of positions in the 
United States labor market for which all 
of the qualified applicants are essen­
tially equally qualified.

The Fourth Circuit's analysis of the 
evidence in this case is inexplicably 
replete with inaccurate descriptions of 
the record. The court of appeals asserted 
"even Boone specifically denied that 
Anderson was better qualified." (Pet. 
App. 54a). In fact Boone's testimony 
contained several such assertions, one of 
which was deliberately edited out of the 
quotation reproduced in the Fourth
Circuit's opinion, specifically stating

46
that Anderson was better qualified. The

46 The relevant portion of the Boone testi­
mony quoted by the court of appeals is set 
out below. The underlined portions were 
replaced by an elipsis in the appellate 
opinion:

"Q. How about art, do you believe 
either one of them had qualifL-



50

court of appeals asserted Kincaid had "the 

most directly relevant work experience." 

(J.A. 52a). In fact, the only jobs 

Kincaid had ever held since graduating 
from college were selling life insurance 

and working for a finance company, 
neither of which involved any recreational 
activities. The court of appeals asserted 
that petitioner had not supervised any

cations superior to the 
other?

"A. That wasn't the basis of 
the hiring of a recreation 
-- you asked me what I felt 
1ike would be ....

"Q. What you were looking for 
In qualifications a s ~ a  
member of the commit­
tee ....

"A. As an all around Director, 
T felt like Phyllis was the 
better applicant.

"Q. As to the subject of art, 
specifically?

"A. No."
J.A. 117a; see also id. at 109a.

47 J.A. 135a.



51

recreational activities since 1957 (J.A.
52a). In fact, as the district court
noted, petitioner had throughout the

decade prior to 1975 taught physical
education as part of her work as a public

48
school teacher. The court of appeals
asserted that petitioner's "budgetary

experience was limited to collecting money
for school lunches and trips". (Pet. App.
53a). In fact, as the district court
found, petitioner had extensive experience
raising, budgeting and accounting for
funds, both as an official of several
civic and charitable organizations, and as

49
a bookkeeper for several physicians. The 

court of appeals asserted that peti­
tioner's college degree in education was 
"unrelated" to the work of a Recreation

Pet. App. 16a; J.A. 87a, 88a-89a, 100a, 
103a.

49 Pet. App. 17a-18a; J.A. 86a-87a, 90a.



52

Director. (Pet. App. 52a). In fact, as

the district court found, petitioner had

been required, in order to obtain her
degree, to take courses in physical 

50
education, the type of courses which the

appellate court thought of decisive
relevance when taken by Kincaid. These

errors are typical of the problems likely

to arise when an appellate court seeks to

substitute its own findings of fact for
those of the trial judge who actually
heard the case and who will often be
considerably more familiar with the

51
details of the record.

In reversing the trial judge’s 
finding of discrimination, the court of 
appeals emphasized that petitioner’s

"sh Pet. App. 17a; J.A. 90a-91 a.
51 Such de novo reconsideration of trial 

court findings of intentional discrimi­
nation appear to be the normal practice in 
the Fourth Circuit. See Petition for Writ 
of Certiorari, pp. 13-17.



53

52
education was not "current," and that her
work experience in recreation was "too
remote in time to merit serious consider- 

53
at ion." But this simply was not the
reason articulated by the committee 

officials for hiring Kincaid rather than 
petitioner. The responsibility of a 
defendant under Burdine is to adduce 
admissible evidence that the plaintiff was 

denied the dispute for one or more 
specific reasons. 450 U.S. at 255. It is 
the explanation set forth by such evi­
dence, and that explanation alone, which a 
plaintiff is required to prove is pretex- 
tual. The attorneys for the defendant may

52 pet. App. 52a. In fact petitioner
received her college degree in elementary 
education, a degree which required courses 
in physical education, in 1973, only two 
years before she applied for the position 
of Recreation Director. (J.A. 90a).

53 Pet. App. 54a. In fact petitioner was 
actually teaching physical education to 
elementary school students as recently as 
1973. J.A. 87a-9Qa.



54

not alter or supplement that explanation 

in briefs or arguments e 450 U.S. at 255 

n . 9; a f ort iorari an appellate court is 

not free to "articulate" explanations for 
the defendant's conduct which were never 

articulated by the defendant itself.
In sum, the evidence and subsidiary 

findings in this case represent far more 

than the minimal proof necessary to 

support the district court's ultimate 
finding of discrimination. The pattern 

revealed by the record in the case is a 
paradigm of the variety of obstacles that 
continue to deny women equal opportunity 

in employment. The position for which 

petitioner applied was one of many in 
American society which has traditionally 
been reserved for men. An avowedly 
discriminatory all-male club played a 
pivotal role in the selection of the 
successful male candidate. Because of his



55

participation in the Optimist Club, 

Kincaid was recruited for the job, was 
already known to two of the four committee 
members who voted for him, and was 

credited with relevant practical experi­
ence. All of those critical advantages 
associated with involvement in the 
Optimist Club were closed to petitioner 
because of her sex. When petitioner 
interviewed for the position, she was 
subjected to a demeaning inquiry about 
whether her spouse approved of her 
applying for the job, an inquiry that was 

not and could not conceivably have been 
made of a male candidate. At trial one of 
the committee members candidly acknowl­
edged that he had voted to hire Kincaid 
rather than petitioner in part because 
petitioner was a woman.



56

If a finding of intentional dis­
crimination cannot be sustained on the 

basis of such a record, establishing a 

claim of disparate treatment would be 

virtually impossible. Most of the Title 

VII cases in which the lower courts have 

found discriminatory intent involve less 
evidence than was adduced here, and few, 

if any, present the extraordinary variety 
of proof adduced by petitioner. Indeed, 
if future plaintiffs were required to 

assemble a record comparable to the unique 
circumstances involved in this case, Title 
VII might well be a dead letter. In
affirming the decision of the district 
court, this Court should reiterate its 

past holdings that the various types of 
direct evidence of discrimination present 

in the instant case are not required.



57

International Brotherhood of Teamsters v. 
United States, 431 U.S. 324, 358 n . 44

(1977).

II. TRIAL COURT CREDIBILITY DETERMI­
NATIONS ARE SUBJECT TO ONLY 
LIMITED APPELLATE REVIEW

All of the trial court's findings 
should be sustained as not clearly 
erroneous. Moreover, certain of those 

findings, the trial court's express 
demeanor-based credibility determinations, 
are not subject to appellate review at 
all. Rule 52(a) admonishes the appellate 
courts that in reviewing trial court 
findings of fact "due regard shall be 
given to the opportunity of the trial 
court to judge of the credibility of 
witnesses... ." Rule 52(a) also provides 
more generally that all findings of fact, 
regardless of whether or not based on 
credibility issues, are not to be over-



58

turned unless "clearly erroneous." The 

rule's requirement of "due regard" for 

credibility determinations must, unless 

entirely redundant, contemplate a

different standard of review for credibil­
ity findings than would be applicable to 
other types of factual findings. Cf. Bose

Corpooration v. Consumers Union, ___ U.S.
___, 80 L.Ed.2d 502, 516 (1984).

The decisions of this Court, while 
indicating that credibility determinations 
have a special status on appeal, have not 

heretofore resolved the standard of 

review. Adamson v. Galliland, 242 U.S. 350 

(1917), suggested that trial court credi­

bility assessments might be "unassail­
able", 242 U.S. at 353, but United States 
v. United States Gypsum Co., 333 U.S. 364
(1948) cautioned that such findings were



59

not necessarily "conclusive." 333 U.S. at 
395. United States v. Oregon State Medical 
Society, 343 U.S. 326 (1952), emphasized:

Face to face with living witnesses 
the original trier of fact holds a 
position of advantage from which 
appellate judges are excluded. In 
doubtful cases exercise of his power 
of observation often proves the most 
accurate method of ascertaining the 
truth... How can we say the judge is 
wrong? We never saw the wit- 
n 0 s s 6 s « • • •

343 U.S. at 339.
But that decision did not undertake to 
define the "doubtful cases" in which 
appellate review would be inappropriate. 
More recently this Court cautioned that 
" [determining... credibility... is the 
special province of the trier of fact." 
Inwood Laboratories v. Ives Laboratories, 

456 U.S. 844, 856 (1982). Inwood Labora­
tories did not explain, however, when, if 
ever, that special province was also the 
exclusive province of the trier of fact.



60

The courts of appeals have for several

decades been sharply divided regarding the
appropriate standard of review for trial

54
court credibility determinations.

Whether a trial court's credibility 

determination is subject to review under 
the ordinary "clearly erroneous" standard, 

or entirely immune from appellate scru­
tiny, depends, we urge, on the type of 

evidence relevant to that determination. 

There are, as this Court recognized in 

Oregon State Medical Society, facts 
relevant to the credibility of a witness 

of which only the trial court has direct 
knowledge. Only the trial judge can 
observe the demeanor of a witness, hear 

the phrasing and intonation which may shed 
important light on the words being spoken, 
or note the forcefulness or hesitation in

54 See Petition for Writ of Certiorari, 
Miller v. Mercy Hospital, No. 83-1629.



- 61

the witness's voice. See United States v. 
Raddatz, 447 U.S. 667, 679 (1980). This 

information can be important, not only to 

assessing the veracity of testimony, but 
also in deciding what it means. The same 
words can have very different meanings 
depending on the manner in which they are 
spoken or the gestures by which they are 
accompanied.

Insofar as a trial court's decision 
purports to describe such events, events 
necessarily absent from the cold record, 
that description must ordinarily be 
regarded as unassailable on appeal. That 

immunity from appellate scrutiny stems, 
not from any special legal status of 
credibility issues, but from the fact that 
the appellate court simply has no other 
source of information about the demeanor 
of a witness. The same principle would be 
applicable if a trial judge, following a



62

visit to a site involved in a case, 

provided in his or her opinion a descrip­

tion of a building, piece of machinery or 

odor that was not described by any 
witness. His role in such a situation is 

analogous to the role of the court 
reporter in providing the reviewing court 
with a description of what words were 

spoken at trial.
While a trial court's characteriza­

tion of a demeanor of a witness must 
ordinarily be accepted by the appellate 

courts, that demeanor is frequently not 

the only evidence bearing on the credibil­

ity of a witness. The substance of what a 
witness says is as important as how he or 

she says it; a witness who states in the 
most grave and convincing manner that it 

snowed in Miami on July 4 is clearly not 
to be believed. Similarly, extrinsic 

documentary or other physical evidence may



63

be available which bears directly on the 
truthfulness of disputed testimony. Thus 
in United States v. United States Gypsum 

this Court concluded that the trial 
court's description of the credible 

demeanor of certain witnesses was overcome 
by documents which demonstrated that those 
witnesses were lying. 333 U.S. at 396-99. 
If a trial court's assessment of the 

demeanor of a witness is the only factor 
bearing on the credibility of a witness, 
the trial court's credibility decision, 
like the assessment of demeanor on which 
it depends, must be accepted on appeal. 
But where other evidence exists bearing on 
the veracity of a witness' statement, the 
Rule 52 clearly erroneous standard should 
be applied in determining whether all the 
relevant evidence, including the demeanor 
of the witness as reported by the trial



64

judge, adequately supports the ultimate 
credibility finding made by the trial 
court.

The conclusive nature of a trial 
court's determination of the demeanor of a 
witness compels a commensurate degree of 
caution in ascertaining what a trial court 
has in fact decided. The meaning of an 

opinion specifically referring to demeanor 

will ordinarily be clear. Similarly, an 
express reference by a trial judge to the 
credibility of a witness can ordinarily be 

understood at least in part as a reference 
to the demeanor of that witness. In a 

particular case, of course, the nature of 
the facts in controversy and of the other 
relevant evidence may throw additional 
light on the meaning of a trial court's 
findings.



65

Where a trial court merely chooses to 
rely on or ignore the testimony of a 
particular witness, however, without 
making any express finding regarding 

credibility or demeanor, the appellate 
courts are not free to simply assume that 
findings regarding the demeanor or 

credibility were made. A trial judge may 
choose to accept the testimony of a 
particular witness, not because the judge 
found the witness totally credible, but 
merely because the judge did not regard 
the conflicting evidence as relevant, 
admissible, or legally sufficient, or even 
because the judge failed to recognize that 
such a conf 1 ict existed. Testimony may 

also be ignored by a trial judge for 
reasons unrelated to credibility. Thus, 

while the appellate courts are not free to 
speculate about the appearance and 
demeanor of a witness whom they never saw,



66

those courts are equally precluded from 
deferring to unspoken credibility determi­

nations whose actual existence is itself 
no more than a matter of conjecture.

The non-reviewability of credibility 

determinations has a second, equally 

important, limitation. The credibility of 
a witness, even if solemnly attested to by 

a federal judge, cannot overcome any legal 
insufficiency in the substance of the 
witness' remarks. For example, this Court 

has repeatedly held that evidence of 
intentional exclusion of black citizens 

from a grand or petit jury cannot be 
rebutted by a generalized denial by the 

jury commissioners of any discriminatory 
motive. Castaneda v. Partida, 430 U.S. 

482, 498 n.19 (1977). A credible general­
ized denial of discrimination would be 
equally insufficient. Similarly, this
Court has held that a juror may not



67

constitutionally be excused for cause in a 
capital case based on a question regarding 

whether his or her scruples "might" 
prevent him or her from voting for the 
death penalty. Maxwell v. Bishop, 398 

U.S. 262, 265 (1970). A voir dire couched 
in such ambiguous language is inadequate 
as a matter of law under Witherspoon v. 

Ill inois, 391 U.S. 510 (1968), and no 
credibility assessment can transmogrify an 
unconstitutionally uncertain answer into a 
response with the requisite unmistakable 
clarity. Credibility assessments often 
play an important role in the resolution 
of litigation, but they can only carry so 
much weight. Such assessments, no matter 
how sincere, cannot serve as a substitute 
for questions that were never asked, 
answers that were never spoken, or 
instructions that were never given.



68

The restrictions on appellate review 
of trial court credibility determinations 

have an important but limited application 
to the instant case. We do not contend 
that the district court’s finding of 

intentional discrimination is itself 

immune from appellate review. The finding 

of discriminatory purpose does concern the 

motives of Butler, McClellan, Nichols and 
Helms, all of whom testified before the 
trial judge in this case. That ultimate 
finding is nonetheless subject to review 

under the clearly erroneous standard for 

several reasons. First, here, as in 
virtually all other Title VII actions, 

there was a substantial body of evidence 
bearing on the motives of the defendant 
officials other than the credibility vel 
non of their testimony. The amount and 
importance of such evidence is ordinarily 
so substantial that both this Court and



69

the lower courts generally attach little 
importance to the credibility of excul­

patory testimony. See, e.g., Teamsters v. 
United States, 431 U.S. 324 {1977). Even 
if the trial court here had expressly held 

that the demeanor of the defense witnesses 
indicated that they were lying about their 
reasons for hiring Kincaid, an appellate 

court would still be obligated to apply 
the ord inary Rule 52 standard to the 
record as a whole. Second, in this case 
there s imply is no generalized find ing 
regarding the credibility of Butler's, 

Helms ' , Nichols' and McClennan's denials 
of discr iminatory intent. Rather, it is 
clear that the trial court' s finding of 
discr iminatory purpose was based on a 
review of the entire record adduced at

trial.



70

There is, however, one important 

subsidiary issue which was expressly and 
properly resolved on the basis of credi­

bility, and which, for that reason, is not 

subject to review on appeal. Petitioner 
claimed that she was asked a series of 

questions that were not asked of any of 

the male applicants. Both petitioner and 

committee member Boone testified that 
petitioner was asked how her husband felt 
about her applying for the job, if she 
realized there would be night work in­

volved, and if she realized the job would

require her to travel throughout the 
55

county. Boone further testified that
such questions were not asked of Kincaid

56
or any of the other male applicants. Re­
spondent's witnesses did not deny that

Pet. App. 4a, 12a; J.A. 63a, 81a, 95a, 
97a.

56 J.A. 48a, 65a.



71

these questions had been asked of peti­

tioner; respondent sought, rather, to 
establish that similar questions had been 
asked of male applicants. Respondent 

adduced evidence which to some extent
conflicted with Boone's testimony on this

57
issue. As the trial judge noted, however, 
part of Boone's testimony was in fact 

uncontradicted? no defense witness testi­
fied that any male applicant was asked how 
his wife felt about applying for the job, 
or if he "realized" he would have to 
travel.

The actual conflict in the testimony 
was limited to the question of night work. 
Kincaid was asked twice if the committee 
had questioned him about his willingness 
to work at night, but twice declined to 
assert such questions had been asked, 
testifying only that at the interview he

57 Pet. App. 12a.



72

had mentioned having worked long hours at 
58

a prior job. Butler testified he could

not remember Kincaid being asked if he
were willing to work nights, but recalled
that Kincaid was asked "in a way" how his

59
family would react to night work. Defense 

witness Nichols gave the opposite testi­

mony; he could not recall questions being 

asked about family reactions to night 
work, but stated that male applicants were

questioned about their willingness to work
60

long hours and evenings. Boone testified

she had "made the comment to [Kincaid]
personally —  and your new bride won't
mind", but insisted she had not asked

61
Kincaid a question on the subject. Asked

J .A. 129a. 

J.A. 145a.
60 J.A. 157a-158a.



73

by counsel for respondent who had put to 

Kincaid " the question about his wife's 
reaction", Butler insisted on characteriz­

ing what Boone had said as a "reference" 
rather than a question. In his closing 
argument counsel for respondent advised 
the trial judge that these conf1icts
presented "a matter for resolution of

6 3credibility on your part."
Faced with' this conflicting evidence, 

the trial judge expressly resolve the 
issue on the basis of credibility:

After hearing live testimony 
and considering the credibility 
of the different witnesses, 
this court concludes as a fact 
that no serious question about 
night work or reaction of

62 J.A. 146a.
63 J.A. 176a. Respondent argued in its 

Response to Plaintiff's Findings of 
Fact and Conclusions of Law that 
Boone "was not a credible witness." 
(J.A. 4 5a-4 6a).



74

spouses was asked of any 
candidate besides the plain­
tiff. (Pet. App. 13.)

Both in his remarks during the closing 
arguments (J.A. 117a) and in his Findings 

of Fact the trial judge characterized what 

Boone had said to Kincaid on this subject 
as a "facetious remark" rather than a 

question. (Pet. App. 12a).
This dispute presented precisely the

9

type of issue which could only be resolved 
on the basis of demeanor, and which was 

therefore not an appropriate subject for 

appellate review. Of the six people in 
the room when Kincaid was interviewed, 
Boone, Butler and Nichols each gave a 
different version of what was asked of 
Kincaid. Kincaid himself could not recall 
the questions, and neither McClennan nor 
Helms testified about the issue. In 
resolving the conflicting accounts of



75

64
Boone, Butler and Nichols as to what had
occurred at Kincaid's interview, the trial
court could rely only on the demeanor of

those witnesses, since there simply was no
other evidence, such as a tape recording

65
or contemporaneous notes, on which to base 

a decision. Similarly, whether Boone's 
comment to Kincaid about his "new bride" 
was facetious is simply unknowable on the 
face of the cold record, but could of 
course have been quite clear to the trial 
judge who heard the tone of voice in which 
Boone described her remark. The trial 

court's characterization of Boone's 
statement as facetious, like his determi­
nation that her testimony was more

The differences in the testimony of Butler 
and Nichols arguably undermined the 
credibility of both.

Boone testified that she had told peti­
tioner shortly after her interview that 
none of the male applicants were asked 
about night work. (J.A. 121a).



- 76

credible than the mutually conflicting 
accounts of Butler and Nichols, rests on 

information which by its very nature was 
available only to the judge who saw and 
heard the witnesses in person. Since the 

appellate courts are as a practical matter 
incapable of assessing the correctness of 
such trial court decisions, they are 
without authority to review them.

Ill THE PACT THAT A DEPENDANT OFFICIAL IS 
MARRIED TO A WORKING WIFE IS OF NO 
PROBATIVE VALUE IN A SEX DISCRIMINA­
TION CASE

At trial respondent based its defense 

to a significant degree on proof that each 
of the four male members of the selection 

committee were married to wives who had 
worked at some point since their marriage. 
Butler, McClellan, Nichols and Helms were 
each asked by respondent's counsel to 
detail the employment history of their



77
66

wives. Counsel for respondent argued that 

this evidence was relevant " [tjo show the 
witness is not prejudiced against a wife 

working at night." (J.A, 146a). The 
trial judge, however, attached no sig­
nificance to this evidence.

In the Fourth Circuit respondent 

expressly urged that the employment 
history of the four wives was of control­
ling importance:

[ I ] t is apparent from the personal 
circumstances of each of the four 
male selection committee members that 
none was prejudiced against female 
employment, or against females 
working at night....67

The court of appeals adopted the position 
advanced by respondent. Although acknowl­
edging the existence of otherwise un-

J.A. 146a, 153a-54a, 159a, 167a.
Brief for Appellant, p. 35 (Emphasis in 
original).



78

contradicted evidence in support of
petitioner's claim, the Fourth Circuit 
held:

This evidence ... is dispelled by 
other portions of the record. For 
example, there is nothing to show the 
male committee members had a bias 
against working women. All four 
testified that their wives had worked 
and were accustomed to being away 
from home during evening hours.

(Pet. App. 61a).

In the view of the court of appeals,
marriage to working women effectively

immunized the male committee members from
any charge of employment discrimination on
the basis of sex. The Fourth Circuit rule

apparently extends to male officials whose
wives had ever worked at any time during
their marriage; in this case only one of
the four wives was actually employed at

68
the time of trial, and two of the four had

68 J.A. 153a (McClellan's wife).



79

69
not worked for years. The working wife
defense, if sustained by this Court, would

be available in most Title VII sex
discrimination cases. Today over half of
all married women are working outside the 

70
home; the vast majority of all married 
women have held such jobs at some point 

after their weddings. Thus virtually 
every married male personnel official in 
the nation qualifies for the working wife 
defense now recognized in the Fourth 
Circuit.

The Fourth Circuit's working wife 
defense is itself based on the very type 

of sexual stereotyping which Title VII 
condemns. In early nineteenth century 
America, marriage to a working woman might 
have been the mark of an exceptionally

J.A. 147a (Butler's wife), 167a (Helms' 
wife).

Statistical Abstract of the United States 
llTsTHirJ, p . 382, table no. 638~.

70



80

liberated man. Not only was it then

uncommon for wives to work outside the
home, but in many states a married woman

could neither sign an employment contract
nor keep her earnings without the permis-

71
sion of her husband. But the legal status 

of married women in the United States no 
longer resembles that of minor children. 
The Fourth Circuit's assertion that the 
actions of the wives in this case were a 

persuasive indicator of the motives of 
their husbands necessarily, if tacitly, 

assumes that the wives of the male com­
mittee members would not or could not have 
worked outside their homes unless their 
husbands approved. Title VII condemns 
precisely such "myths and purely habitual

See E. Flexner, Century of Struggle, 8 
(1959); S. Casteras, The Substance or the 
Shadow —  Images of Victorian Womanhood, 
10-11 (1982).

71



81

assumptions about ... wom[eJn...." Los 
Angeles Department of Water & Power v. 
Manhart, 435 U.S. 702, 707 (1978).

The courts of appeal's working wife 

defense is at odds with this Court's 
decision in Castaneda v. Partida, 430 U.S. 

482 (1977). In Castaneda the district 
court had held that a prima facie case of 
discrimination against Hispanics in the 
selection of grand juries could be 

rebutted by evidence that a majority of 
the jury commissioners were themselves 
Mexican-American. This Court reversed, 
holding that "[bjecause of the many facets 
of human motivation, it would be unwise to 
presume as a matter of law that human 
beings of one definable group will not 
discriminate against other members of 
their group." 430 U.S. at 499. In light 
of the decision in Castaneda, the evidence
in this case could not have been rebutted



82

by evidence that four members of the 

hiring committee were themselves working 

women; a fortiori the mere fact that the 
male members of the committee were married 

to working women could not be used in that 

manner.
Justice Blackmun's admonition in 

Castaneda regarding the many facets of 
human motivation applies with particular 
force to the Fourth Circuit's working wife 

defense. The husband of a working woman 

may have protested, indignantly but in 
vain, her decision to seek employment, or 

may have supported a decision that 

offended his personal views about marriage 

only because the couple was in financial 
difficulty. The actual experience of 
being married to a working woman might 
have aggravated a husband's resistance to 
such employment, or created prejudices 
where none existed before. In the instant



83 -

case two of the wives had held traditional
72 73

women's jobs, school teacher and nurse; a 
husband who did not object to such employ­
ment might nonetheless resist hiring a 

woman for a position that had in the past 

ordinarily been held by men.
The political or social views of one 

individual can rarely if ever be reliably 
inferred from the actions or opinions of 
his or her friends, colleagues, or loved 
ones. The fact, for example, that Butler 
was a member of the all-male Optimist Club 
might support a claim that he had dis­
criminated against women, but surely it 

would not be evidence that Butler's wife 
was likely to engage in such discrimina­
tion. In the instant case the fact that 
the wives of the male committee members 

had once worked is of no more significance

72 t  a 146a.
73 _ .

CF« A  • 167a.



84 -

than would be proof that their mothers, 
sisters, or daughters of the male commit­

tee members were or had been employed. No 

one would seriously offer as proof of 

nondiscrimination evidence that a person­

nel official was dating the local chapter 

president of the National Organization for 
Women. Yet such a feminist paramour 

defense seems scarcely less plausible than 

the working wife defense actually adduced 
in this case.



85

CONCLUSION
For the above reasons, the judgment 

and opinion of the Fourth Circuit should 

be reversed and the case remanded with 
instructions to affirm the findings of the 
district court.

Respectfully submitted,

JONATHAN WALLAS 
JOHN T. NOCKLEBY 
Ferguson, Watt,
Wallas & Adkins, P.A.
Suite 730
951 S. Independence Blvd. 
Charlotte, North Carolina

28202
(704) 375-8461

J. LeVONNE CHAMBERS 
O. PETER SHERWOOD 
ERIC SCHNAPPER*
16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Petitioner
* Counsel of Record



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