Townsend v. Nassau County Medical Center Petition for Writ of Certiorari

    Ik the

Qkuri n! %  Intlpfr States
October T erm, 1977 

No...... .

Margaret T ownsend,

Petitioner,
—against—

Nassau County Medical Center, et al.,

Respondents.

PETITION FOR W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

Charles J. McE vily 
Susan T. K luewer

Community Legal Assistance 
Corporation 

73 Main Street 
Hempstead, New York 11550

Barbara A. Morris 
J oan Bertin Lowy

National Employment Law Project 
423 West 118tli Street 
New York, New York 10027

Jack Greenberg 
E ric Schnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioner



TABLE OF CONTENTS

PAGE

Table of Cases ...................................................................... ii

Opinions B elow .................................................................... 1

Jurisdiction ........................... .............................................  2

Questions Presented ............................. -...........................  2

Statutory Provisions Involved ........................................  3

Statement of the Case ...........................................  3

Reasons for Granting the Writ ..............................-.......  8

Conclusion ............................... - ............................................

A p p e n d ix —

Opinion of the District Court, December S, 1975 .. la

Order of the Court of Appeals, June 21,1976 ........  19a

Judgment of the District Court, September 27,
1976 ...........................................................................  21a

Opinion of the Court of Appeals, June 30, 1977 .... 23a

Order of the Court of Appeals, August 24,1977 .... 35a



11

PAGE

Table op Cases

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ..6,11,
12.13

Boyd v. Ozark Airlines, Inc., 15 EPD ft 7863 (8th Cir.
1977) .................................................................................  9

Brown v. Board of Education, 349 U.S. 294 (1954) .....5,13

Dothard v. Rawlinson, 97 S. Ct. 2720 (June 30,1977) ..2,4, 8,
9,10,11,12,13,14

Gaston County v. U.8., 395 U.S. 289 (1968) ............... 5
Green v. Missouri Pacific Railroad Co., 523 F. 2d 1290

(8th Cir. 1975) ...................................................................  9
Gregory v. Litton Systems, 472 F. 2d 631 (9th Cir.

1972) ...................................    9
Griggs v. Duke Power Co., 401 U.S. 424 (1971) .....6,9,11,

12.13

Johnson v. Goodyear Tire and Rubber, 491 F. 2d 1364,
1371 (5th Cir. 1974) ........................................................  9

United States v. Georgia Power Co., 474 F. 2d 906,
918 (5th Cir. 1973) ........................................................  9



In the

(tart of tfjr Imtrfi States
October T erm, 1977 

No........... .

Margaret T ownsend,
Petitioner,

—against—

Nassau County Medical Center, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

The petitioner, Margaret Townsend, respectfully prays 
that a writ of certiorari issue to review the judgment and 
opinion of the United States Court of Appeals for the 
Second Circuit entered in this proceeding on June 30, 1977.

Opinions Below

The opinion of the district court, which is not reported, 
is set out in the appendix, pp. la-18a. The order of the 
court of appeals vacating the district court judgment and 
remanding for reconsideration, which is not reported, is 
set out in the appendix, pp. 19a-20a. The judgment of the 
district court confirming its original judgment, which is 
not reported, is set out in the appendix, pp. 21a-22a. The



2

opinion of the court of appeals, which is reported at 558 
F.2d 117, is set out in the appendix, pp. 23a-34a. The or­
der of the court of appeals denying rehearing, which is not 
yet reported, is set out in the appendix, pp. 35a-36a.

Jurisdiction

The judgment of the Court of Appeals for the Second 
Circuit was entered on June 30, 1977. A timely petition 
for rehearing was denied on August 24, 1977 and this peti­
tion for Certiorari was filed within ninety days of that 
date. Jurisdiction of this Court is invoked under 28 U.S.C. 
§ 1254 (1).

Questions Presented

1. Was the June 30, 1977, decision of the Court of Ap­
peals, holding that evidence that a job requirement ex­
cluded 94% of the black adult population was irrelevant to 
Title VII, clearly erroneous and in conflict with the deci­
sion of this Court on June 27, 1977, upholding such evi­
dence as sufficient to demonstrate discriminatory effect 
under Title VII, Dothard v. Rawlinson, 97 S. Ct. 2720 (June 
27, 1977)?

2. Did the respondents act arbitrarily and capriciously, 
in violation of due process of law, or contrary to equal 
protection of the law wThen they dismissed petitioner from 
a job which she had concededly performed with complete 
competence for 8 years solely because she could not meet 
a newly implemented requirement that any person holding 
her job must have a Bachelor of Science degree!



3

Statutory Provision Involved

Section 703 of Title V II of the Civil Rights Act of 1964, 
42 U.S.C. § 2000e (2) as amended, provides:

“ (a) It shall be an unlawful employment practice for 
an employer—

(1) to fail or refuse to hire or to discharge any 
individual, or otherwise 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 opportunities or 
otherwise adversely affect his status as an 
employee, because of such individual’s race, 
color, religion, sex, or national origin.”

Statement of the Case

Petitioner is a 44-year old black woman who was fired by 
respondents1 after eight years of exemplary job perform­
ance because she did not possess a college degree, an 
eligibility requirement imposed some years after she began

1 The respondents are Nassau County Medical Center; Doctor 
Donald H. Eisenberg, Superintendent; Nassau County Civil Serv­
ice Commission; Gabrial Kahn, Chairman; Edward Witanowski, 
Edward A. Simmons, Adele Leonard, Executive Director of Nas­
sau County Civil Service Commission. Petitioner’s claim against 
the state defendants was dismissed before trial.



4

her employment. Petitioner commenced this suit alleging 
that respondents had discriminated against her on the basis 
of race in violation of the Civil Rights Act of 1964, 42 U.S.C. 
§§ 2000e, et s&q., as amended. Petitioner claimed, and the 
United States District Court found, that the requirement 
of formal college education had an unjustifiable racially 
disproportionate impact forbidden by Title VII. The Court 
of Appeals for the Second Circuit reversed the district 
court judgment on the grounds that petitioner failed to 
make out a prima facie case, notwithstanding unchallenged 
statistical proof that three times fewer blacks than whites 
in the area population could satisfy the challenged require­
ment. Such a holding is so directly in conflict with this 
Court’s recent decision in Dothard v. Rawlinson, 97 S. Ct. 
2720 (June 30, 1977), decided just three days before the 
court of appeals rendered its decision here, that summary 
reversal, or remand for reconsideration in light of Dothard, 
is warranted.2

Petitioner has been employed in the blood bank of Nassau 
County Medical Center since 1965. Her competence to per­
form the duties of Medical Technologist I is unquestioned: 
she is rated among the top employees in the blood bank 
and from 1967 served as assistant to the Supervisor. In 
1970, she was appointed Acting Supervisor of the entire 
laboratory and served in that capacity for six months. 
Thereafter, petitioner trained and then served as assistant 
to the newly-appointed permanent supervisor until 1973,

Petitioner promptly brought Dothard to the attention of the 
■ >.. art of appeals in a timely petition for rehearing, but the peti- 
■: u was denied without comment.



5

when she was fired for w’ant of formal education.3 Before 
she was fired, petitioner trained new employees in the 
blood bank to perform the duties of a Medical Technologist 
I. These new employees, all of whom are white, now earn 
more than petitioner because they have had the required 
formal education.

Petitioner was officially given the title and pay of a Medi­
cal Technologist I in 1967 as a result of a Civil Service 
reclassification. As a result of the same reclassification, 
respondents imposed the requirement that all candidates 
for permanent appointment as Medical Technologists I 
possess a college degree or equivalent academic certifica­
tion,4 and that they take and pass the Civil Service Exami­
nation.5

3 The record reveals that petitioner received an inferior educa­
tion in segregated Florida and South Carolina Schools. See Brown 
v. Board of Education, 349 U.S. 294 (1954) ; Gaston Co, v. U.S., 
395 U.S. 289 (1969). “ Her high school was apparently so poor 
that it was abandoned when integration was required . . . ” p. 2a.

4 Certification by the American Society for Clinical Pathologists 
(ASCP), is an alternative prerequisite. To obtain such certifica­
tion, however, one must have a specified amount of laboratory 
training and have a college degree. Petitioner, although not a 
member of ASCP, trained students who would later get ASCP 
certification and permanent Medical Technologist I positions. Peti­
tioner is certified by the International Association of Laboratory 
Technologists as a Registered Medical Technologist (RMT).

5 An issue not presented in this case is respondents’ use of a 
written examination, in addition to the college degree requirement, 
for qualification as a permanent Medical Technologist I. _ The 
examination tested not only knowledge of blood banking techniques 
relevant to the job at issue, but skills used in ten other labora­
tories involving very different methods and lab equipment: hema­
tology, histology, virology, chemistry, serology, bacteriology, immu- 
nohemotology, electrophoresis, microbiology, and parisitology. This 
Court has already held “a test may be used in jobs other than 
those for which it has been professionally validated only if there 
are ‘no significant differences’ between the studied and unstudied



6

An examination for permanent classification was given 
in April, 1973, but respondents denied petitioner permis­
sion to take the examination because she did not fulfill the 
formal academic requirements. In December, 1973, peti­
tioner was fired as a result of the promulgation of a Medi­
cal Technologist I eligibles list based on the April, 1973 
examination. Three months later she was rehired, and 
given the same duties, but at a lower-paying Laboratory 
Technician II classification. Before she was fired, peti­
tioner was the only black Medical Technologist I in the 
blood bank, which has approximately fifteen workers; at 
the time of trial, there were no black Medical Technol­
ogists I.8

Guided by the approach in Griggs v. Duke Power Co., 
401 U.S. 424 (1971), the district court, using local and state 
census statistics introduced by petitioner, found that the 
college requirement operated to exclude blacks from em­
ployment at a rate three times greater than whites, and 
held that petitioner had made out a prima facie case under 
Title VII. The district court also concluded respondents 
produced no evidence that the challenged degree require­

jobs.” Albermarle Paper Co. v. Moody, 422 U.S. 405, 432 (1975). 
Pursuant to a “grandfather” provision, petitioner was able to take 
the examination only onee. She did not pass, but was continued 
for two more years. If she had had a college degree, she would 
be permitted to take the examination repeatedly without being 
either fired or demoted. Thus, it is the degree which bars peti­
tioner’s path. Inasmuch as petitioner was not fired because she 
has not passed the examination, its validity, while not conceded, 
is not yet ripe for determination.

0 The only other black in the blood bank is Frank Appelwaithe, 
a male with not one but two college degrees. Mr. Appelwaithe 
was hired as permanent supervisor in 1970 to fill the vacancy left 
by George Davis, a white who had no college degree. Mr. Appel­
waithe is a Medical Technologist III.



7

ment was related in any way to petitioner’s ability to per­
form the job.7

The district court found that in denying petitioner per­
mission to take the 1973 examination because she was not 
“properly” educated,8 and thereafter demoting her to a 
lower paying position, respondents violated Title V I I ; the 
court ordered petitioner reinstated as a provisional Medi­
cal Technologist I, enjoined respondents from disqualify­
ing petitioner from taking future civil service examina­
tions because she does not have a college degree, and 
awarded back pay and attorneys fees.

On June 30, 1977,9 the court of appeals reversed the 
judgment with directions to dismiss the complaint on the

7 Nor can respondents now argue that the degree requirement 
is job related. In a memorandum to respondent Medical Center 
dated August 8, 1977, respondent Civil Service Commission ob- 
stensibly abolished the college degree requirement in recognition 
of the “criticism that the Bachelor’s Degree in Science did not 
provide adequate nor [sicj appropriate laboratory training.” In 
reality, however, since AS CP certification is still required and is 
currently granted only to individuals with college degrees, the 
degree requirement remains in effect. See note 4, supra.

8 On-the-job training rather than formal education is what is 
essential to successful work in the blood bank. One witness, who 
had a college degree and ASCP certification, testified that she 
learned everything she knew about blood banking from petitioner. 
Although the Medical Technologist I title is used throughout the 
Medical Center, the evidence established that once a person is 
trained in a particular laboratory, he is not thereafter transferred. 
Job specifications for Medical Technologist I do not require ex­
perience, while those for Medical Technologist II require two years 
experience in the field of specialization, indicating that vertical 
rather than horizontal movement within the Medical Center is 
what is contemplated.

9 Upon respondents’ initial appeal, the Second Circuit, on June 
21, 1976, vacated the district court judgment for the plaintiff and 
remanded for reconsideration in light of Washington v. Davis, 426 
U.S. 229 (1976). On remand, the district court confirmed its 
original judgment, and respondents again appealed.



8

ground that petitioner failed to establish a prima facie 
case. The court of appeals held that evidence demonstrat­
ing that the college degree requirement excluded almost 
three times as many blacks as whites in the adult popula­
tion, was not sufficient to establish adverse racial impact. 
Petitioner filed a motion for rehearing in light of Dothard 
v. Rawlinson, 97 S. Ct. 2720 (June 27, 1977). The petition 
was denied without opinion.

Reasons for Granting the Writ

The court of appeals held that unrebutted census sta­
tistics showing that a job requirement disqualifies a dis­
proportionate number of minorities in the adult popula­
tion are insufficient to establish a prima facie case of dis­
criminatory impact under Title VII. The Second Circuit 
ruled, at the urging of respondents,10 that plaintiff had 
failed to make out a prima facie case because “ statistical 
evidence concerning only the general population is [not] 
sufficient to demonstrate that a job prerequisite ‘operates 
to exclude’ minorities.” p. 29a. This is precisely the argu­
ment rejected by this Court in Dothard v. Rawlinson, 97 
S. Ct. 2720 (June 30, 1977).

The appellants argue that a showing of dispropor­
tionate impact on women based on generalized national 
statistics should not suffice to establish a prima facie 
case. . . . There is no requirement, however, that a 
statistical showing of disproportionate impact must

10 See, e.g., Brief for Nassau County Defendants-Appellants, No. 
76-7522, pp. 6-7.



9

always be based on analysis of the characteristics of 
actual applicants.

97 S. Ct. at 2727. In Dothard, this Court upheld the use 
of census data to prove the discriminatory impact of the 
defendant’s height-weight job requirement. 97 S. Ct, at 
2727, n. 12. In Griggs v. Duke Power Co., 401 U.S. 424, 430, 
n. 6 (1971), this Court expressly relied on census data 
showing the disproportionate impact of Duke Power’s high 
school degree requirement on adults in North Carolina. 
Because Dothard was decided only three days before the 
panel decision in the instant case, however, the court of 
appeals could not as a practical matter have been aware 
of it when its decision was written. Under these circum­
stances, it would clearly be appropriate to summarily re­
verse the decision below or to vacate and remand for recon­
sideration in light of Dothard.

The decision of the Second Circuit holding irrelevant 
evidence that a job requirement precludes a dispropor­
tionate segment of the black adult population is squarely 
in conflict with the decisions of the three other circuits. 
See United States v. Georgia Power Co., 474 F. 2d 906, 
918 (5th Cir. 1973); Johnson v. Goodyear Tire and Rubber, 
491 F. 2d 1364, 1371 (5th Cir. 1974); Green v. Missouri 
Pacific Railroad Co., 523 F. 2d 1290, 1293-95, rehearing 
den. 523 F. 2d 1299 (8th Cir. 1975); Boyd v. Ozark Air­
lines, Inc., 15 EPD 7863, pp. 6283, 6285, n. 1 (8th Cir. 
1977); Gregory v. Litton Systems, 472 F. 2d 631 (9th Cir. 
1972), aff’g 316 F. Supp. 401, 403 (C.D. Cal. 1970). In 
addition, the Equal Employment Opportunity Commis­
sion, conforming to this Court’s decision in Griggs, has 
consistently held that the disparate impact of a job re­



10

quirement can be measured by its effect on the general 
population.11 Thus either the Commission will have to fol­
low a different substantive rule in the Second Circuit than 
it applies in the rest of the country or its probable cause 
findings in cases arising in New York, Vermont and Con­
necticut will often be in direct conflict with federal law in 
that circuit.

The Second Circuit appears to have ruled that a job re­
quirement has a discriminatory effect only if “ virtually 
no blacks were in fact able to satisfy the challenged job 
qualification and obtain employment with the defendant.” 
p. 29a, n. 6. If the Second Circuit’s standard considers 
only evidence of the qualifying rate among actual job ap­
plicants, it is precisely the standard rejected by Dothard. 
It is also impossible to understand how this standard could 
result in judgment for defendant in this case, since no black 
applicant for the position petitioner held, Medical Technol­
ogist I at the blood bank, has ever satisfied the degree re­

11 E.E.O.C. Opinions Nos. 77-9, 2 CCH Emp. Practices Guide 
If 6564; 75-199, 2 CCH Emp. Practices Guide If 6555; 75-115, 2 
CCH Emp. Practices Guide ff 6533; 75-103, 2 CCH Emp. Prac­
tices Guide ff 6529; 75-047, 2 CCH Emp. Practices Guide ff 6441, 
p. 4176; 74-92, 2 CCH Emp. Practices Guide 6424; 74-90 2 CCH 
Emp. Practices Guide 6423; 74-89, 2 CCH Emp. Practices Guide 
If 6418; 74-83, 2 CCH Emp. Practices Guide 6414; 74-53, 2 CCH 
Emp. Practices Guide ff 6410; 74-41, 2 CCH Emp. Practices Guide 
ff 6408, p. 4093; 74-34, 2 CCH Emp. Practices Guide ff 6407, p. 
4089; 73-0499, 2 CCH Emp. Practices Guide ff 6402, p. 4079, 
74-25, 2 CCH Emp. Practices Guide ff 6400, pp. 4071-72; 74-27 
2 CCH Emp. Practices Guide ff 6396; 74-08, 2 CCH Emp. Prac­
tices Guide ff 6390; 74-02, 2 CCH Emp. Practices Guide ff 6386 
p. 4078; 72-0947, CCH E.E.O.C. Decisions (1973) ff 6357; 72-1497 
CCH E.E.O.C. Decisions (1973) ff 6352; 72-1460, CCH E.E.O C 
Decisions (1973) ff 6341; 72-1395, CCH E.E.O.C. Decisions (1973) 
ff6339, p. 4617, n. 2; 7200427 CCH E.E.O.C. Decisions (1973), 
ff 6312, 72-0284, CCH E.E.O.C. Decisions (1973) ff 6304; 71-2682 
CCH E.E.O.C. Decisions (1973) ff 6288.



11

quirement, and no black held that position at time of trial,12 
If this suggested standard means that plaintiff must prove 
that “ virtually no” blacks in the area population could meet 
the requirement, it finds no support in Griggs, Dothard, or 
Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975). The 
proportion of blacks (5.9% )13 able to meet the medical 
center’s job requirement was substantially lower than the 
proportion of women able to meet the height-weight re­
quirement in Dothard (41%) or the proportion of blacks 
able to meet the high school degree requirement in Griggs 
(12% ).14 Title VII is concerned, not with the size of the 
minority qualifying rate, but with the disparity between 
the proportion of minorities and non-minorities able to 
qualify. In this case 16.9% of the whites, but only 5.9% 
of the blacks, could meet the degree requirement ;15 16 the white 
rate was 2.9 times as high as the black rate. In Griggs, 
the white and black rates were 34% and 12%, a ratio of 
only 2.8. See 401 U.S. at 430, n. 6. In Dothard, 99% of the 
men but only 59% of the women could meet the height- 
weight requirement, a ratio of 1.7. Thus the disparity in 
the proportion of minorities able to meet the job require­
ment in this case is even greater than the disparity in 
Griggs or Dothard.

This case is of particular importance because it reflects 
the reluctance of the Second Circuit to apply to white collar 
jobs in New York the construction of Title VII established 
by this Court in cases arising in Alabama18 and North

12 Joint Appendix, pp. 277-278A.
13 Joint Appendix, p. 368A.
14 See Dothard v. Rawlinson, 97 S. Ct. 2720, 2727, n. 12.
15 Joint Appendix, p. 368A.
16 Dothard v. Rawlinson, 97 S. Ct. 2720 (June 30, 1977).



12

Carolina.17 That reluctance seems to arise in part from a 
misplaced reverence for higher education.18 The court of 
appeals was unduly concerned at the prospect of requiring 
employers to justify a college degree requirement, p. 30a, 
despite the fact that such a requirement precludes hiring 
94.1% of all adult blacks, and even though Griggs usually 
requires such a justification for a high school degree re­
quirement which precludes hiring only 57.5% of all adult 
blacks.19 The opinion below also reflects an inappropriate 
deference to Title VII defenses involving “ advanced scien­
tific method,” “ the fields of scientific knowledge,” and “ tech­
nology” pp. 30a-31a; but federal judges are as capable of 
evaluating the job-relatedness in these fields as the job 
relatedness of the requirements for the operation of coal- 
fired electric power plants,20 or sophisticated multi-million 
dollar paper processing machinery,21 or of a maximum- 
security prison,22 and Title VII recognizes no exemption for 
such positions. Certiorari should be granted to make clear 
that Title VII requires the elimination for all jobs in all 
parts of the country, not merely blue collar jobs in regions

17 Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975); Griggs 
v. Duke Power Co., 401 U.S. 424 (1971).

18 As this Court has noted, “History is filled with examples of 
men and women who rendered highly effective performance with­
out conventional badges of accomplishments in terms of certificates, 
diplomas or degrees. Diplomas and tests are useful servants, but 
Congress has mandated the common sense proposition that they 
are not to become masters of reality.”  Griggs v. Duke Power Co., 
401 U.S. at 433.

19 Statistical Abstract of the United States, 1976, p. 123.
20 Griggs v. Duke Power Co., 401 U.S. at 426-7.
21 Albermarle Paper Co. v. Moody, 422 U.S. at 427.
22 Dothard v. Bawlinson, 97 S. Ct. at 2730.



13

with a history of deliberate discrimination, “ of artificial, 
arbitrary and unnecessary barriers to employment when 
the barriers operate invidiously to discriminate on the basis 
of racial or other impermissible classification.” Griggs v. 
Duke Power Co., 401 U.S. at 431.

The particular facts of this case present circumstances 
of compelling injustice. In Griggs, Albermarle, and Dot- 
hard, the employer at least asserted a claim, ultimately 
rejected by the courts, that the plaintiff’s inability to meet 
the disputed job requirement proved that he or she "was 
incapable of performing the job. In this case, petitioner 
has in fact been doing the job for 12 years; the court of 
appeals noted that she had done “ a satisfactory job,” p. 33a, 
and respondents candidly conceded “ [tjhere is no doubt that 
appellee performs her work in the blood bank laboratory 
in a competent manner. She is highly regarded by the 
supervisor of the blood bank . . . ” 23 Petitioner reached 
her position as a Medical Technologist I only after over­
coming the special disadvantage of a segregated and in­
ferior public school education prior to Brown v. Board of 
Education, 349 U.S. 294 (1954). To dismiss petitioner un­
der these circumstances was as manifestly violative of the 
Fourteenth Amendment as dismissing her because she had 
brown eyes or was born under the wrong sign of the zodiac.

28 Brief for Nassau County Defendants-Appellants, No. 76-7522, 
p. 3.



14

CONCLUSION

For the above reasons, a Writ of Certiorari should issue 
to review the judgment and opinion of the Second Circuit. 
The decision of the Second Circuit should be summarily 
reversed; in the alternative, the judgment of the Second 
Circuit should be vacated and the case remanded for re­
consideration in light of Dothard v. Rawlinson.

Respectfully submitted,

Charles J. McE vily

Susan T. K luewer

Community Legal Assistance 
Corporation 

73 Main Street 
Hempstead, New York 11550

Barbara A. Morris

J oan Bertin L owy

National Employment Law Project 
423 West 118th Street 
New York, New York 10027

Jack Greenberg
E ric Schnapper 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioner

On the Petition:

Jerry Casel,
Leie R ubinstein, 
Legal Interns



A P P E N D I X



Opinion of District Court dated December 8, 1975 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 

73 C 294

Margaret Townsend,
Plaintiff,

-against-
Nassau County Medical Center,

Dr. Donald H. Eisenberg, Superintendent,

et al,
Defendants.

MEMORANDUM AND ORDER

WEINSTEIN, D.J.
Plaintiff, a black female, has been 

employed in the blood bank of the Nassau 
County Medical Center, satisfactorily 
doing the work of a Medical Technologist 
I, since 1965. She brings this suit for 
reinstatement in that civil service classi 
fication. The defendant Nassau County 
Civil Service Commission has demoted her 
to a lower paying classification because 
she lacks a college degree or equivalent 
academic prerequisites, an eligibility 
requirement imposed some years after she 
began her employment. Her claim is that 
the qualification has an unjustifiable



2a

racially discriminatory impact invalid 
under Title VII of the Civil Rights Act 
of 1964. 42 U.S.C. § 2000e et seg.

Plaintiff's case is typical of that 
of many blacks. She attended school in a 
segregated Florida system. Her high school 
was apparently so poor that it was aban­
doned when integration was required and 
its records are not even available. The 
movement of many educationally deprived 
blacks from the South to this district 
created enormous and expensive burdens 
for our municipalities. Where, as in 
this case, a product of that discrimina­
tory educational system has overcome her 
disadvantage by work experience, Title 
VII requires her actual job skills to be 
recognized.
Facts

Opinion of District Court dated December 8, 1975

On June 22, 1965, plaintiff was 
provisionally appointed to the position of 
Laboratory Technician at the Nassau County 
Medical Center. On January 6, 1967 she 
was provisionally appointed to the position 
of Senior Laboratory Technician.

Nassau County reclassified all its 
civil service positions effective July 7, 
1967 pursuant to a job survey conducted by 
the firm of Cresap, McCormack and Paget.
As a result, based on the work she had been 
doing, plaintiff was provisionally placed 
in a new, competitive position, Medical 
Technologist. She held this position until 
December, 1973.

During that period plaintiff also 
satisfactorily served in several adminis­
trative capacities. She was the assistant 
to supervisor George Davis, responsible for



3a

the laboratory when Mr. Davis was not there. 
She also was responsible for teaching 
students blood-banking techniques, since 
she was one of the few people who had this 
expertise. Some of her former students 
are presently employed by Nassau County 
doing the same work she does, but receiv­
ing much higher salaries because they have 
a college degree and have taken and passed 
the necessary civil service examinations.

When Mr. Davis left the Medical 
Center, plaintiff was appointed Acting 
Supervisor. In addition to her technical 
duties, she was responsible for all the 
administrative functions of the supervisor, 
e.g., payroll, supplies, work schedules, 
and meetings. After approximately one 
year, a permanent supervisor was appointed. 
Plaintiff became his assistant.

In December, 1971, plaintiff was 
permitted to take the examination required 
for permanent classification as a Medical 
Technologist I. Although she did not pass 
that examination, she was continued provi­
sionally in the position of Medical Tech­
nologist I because the eligible list pro­
mulgated as a result of the 1971 examina­
tion did not contain a sufficient number 
of names to fill all vacancies.

A second examination for Medical 
Technologist I was held in April, 1973.
The plaintiff's application to take this 
examination was rejected by the Nassau 
County Civil Service Commission because she 
did not have the formal educational quali­
fications. Plaintiff was discharged in 
December of 1973 as a result of the promul­
gation of a Medical Technologist I eligible 
list based upon the 1973 examination.

Opinion of District Court dated December 8, 1975



4a

Three months later she was rehired by the 
blood bank, again given the duties of a 
Medical Technologist I, but given the low­
er paying classification of Laboratory 
Technician II.

Although plaintiff's formal educa­
tion was limited, her qualifications for 
her work in the blood bank have never been 
questioned. She began her training in 
November 1962 at the Hollywood Memorial 
Hospital in Florida where she studied for 
one year. She has now had more than ten 
years experience in blood banking at the 
Nassau County Medical Center. The testi­
mony was clear that her activities covered 
the entire range of blood bank technology 
including typing of patients and donors, 
cross matching of patients, preparation of 
blood, covering in the donor room, taking 
blood, freezing blood, and all related 
clerical duties. She has routinely decided 
whether donors could safely give blood, 
and she has performed microscopic compari­
sons of blood samples. As already noted, 
for a period of five months, she served as 
Acting Supervisor for the entire blood 
bank, and she has trained many of the 
people who now work above her. Linda Schwaid, 
a permanent Medical Technologist I, for 
example, testified that plaintiff taught her 
everything she now knows about bloodbanking. 
Frank Appelwaithe, the present Supervisor, 
testified that he would rate the plaintiff 
among the top members of the department.

It is clear that there is no meaning­
ful specialization of labor within the blood 
bank. The witnesses agreed that the press 
of the work requires each member to be 
familiar with and to perform all functions.

Opinion of District Court dated December 8, 1975



5a

Thus, except for assuming added teaching 
and supervising duties, the plaintiff is 
presently doing as a Laboratory Technician 
II exactly what she had done and would do 
as a Medical Technologist I.

There is no evidence of bad faith 
in the defendants' reclassification of 
civil service jobs. The testimony of 
Albert Fontana, one of the personnel 
specialists involved in the reclassifica­
tion survey at the Medical Center, estab­
lished that a systematic effort was made 
to correlate job title with job content.
It is apparent, however, that, notwith­
standing the defendants' good intentions, 
an outstanding black employee has been 
frozen out of a position for which she has 
demonstrated eminent qualifications.

Law

Opinion of District Court dated December 8, 1975

The statutory basis for plaintiff's 
attack on job qualifications is Section 
703 of Title VII of the Civil Rights Act 
of 1964 providing:

" (a) It shall be an
unlawful employment 
practice for an 
employer —
(1) to fail or refuse 
to hire or to dis­
charge any individual, 
or otherwise to dis­
criminate against any 
individual with respect 
to his compensation, 
terms, conditions, or



6a

privileges of employ­
ment, because of such 
individual's race, 
color, religion, sex, 
or national origin? 
or
(2) to limit, segregate, 
or classify his employ­
ees or applicants for 
employment in any way 
which would deprive or 
tend to deprive any 
individual of employ­
ment opportunities or 
otherwise adversely 
affect his status as 
an employee, because 
of such individual's 
race, color, religion, 
sex, or national origin."

42 U.S.C. § 2000-e.
Interpreting this statute in Griggs 

v. Duke Power Co., 401 U.S. 424, 91 S . Ct. 
849 T1971), the Supreme Court held that 
requirements which operate to disqualify 
blacks in disproportionate numbers violate 
the Act unless they can be shown to be 
related to successful job performance. 
Considering the validity of a high school 
diploma and general aptitude tests as job 
qualifications, the Court wrote:

"Congress has now... 
required that the posture 
and condition of the job­
seekers be taken into 
account....The Act pro­
scribes not only overt

Opinion of District Court dated December 8, 1975



7a

discrimination but also 
practices that are fair 
in form but discrimina­
tory- in operation. The 
touchstone is business 
necessity. If an employ­
ment practice which oper­
ates to exclude Negroes 
cannot be shown to be re­
lated to job performance, 
the practice is prohibited."

401 U.S. at 431, 91 S.Ct. at 853.
The Court rejected the view that 

an employer's intent is conclusive in 
determining whether a prima facie case of 
job discrimination has been established:

"...good intent or absence 
of discriminatory inten . 
does not redeem employment 
procedures or testing 
mechanisms that operate 
as 'built-in headwinds' 
for minority groups and 
are unrelated to measuring 
job capability.... Congress 
directed the thrust of the 
Act to the consequences of 
employment practices, not 
simply the motivation. More 
than that, Congress has 
placed on the employer the 
burden of showing that any 
given requirement must have 
a manifest relationship to 
the employment in question."

401 U.S. at 432, 91 S.Ct. 854 (Emphasis

Opinion of District Court dated December 8, 1975



8a

Opinion of District Court dated December 8, 1975 

in original.).
Under Griggs the plaintiff carries 

the initial burden of showing that a job 
qualification has a racially dispropor­
tionate impact. Once this prima facie 
case is made out, the burden shifts to the 
employer to prove "a manifest relation­
ship to the employment in question." In
Albermarle v. Moody,___U.S.___,____, 95 S.
Ct. 2362, 2375 (1975), the Court strength­
ened the position of the complaining party 
by ruling that he or she will prevail on 
a demonstration that alternative, non- 
discriminatory means exist which would 
accurately test the qualifications of 
employees. See, The Supreme Court, 1974 
Term 89 Harv. L. Rev. 47, 228-229, n. 27 
(1975). Cf. Boston Chapter NAACP, Inc, v. 
Beecher, 504 F. 2d 1017, 1019 (1st Cir. 
1974);Vulcan Society v. Civil Service 
Commission, 490 F. 2d 387, 392 (2d Cir. 
1973) .

A. Prima Facie Discrimination

In support of her prima facie case, 
plaintiff offered data compiled by the 
Bureau of the Census for 1970. This statis­
tical evidence demonstrates the extent to 
which a college degree requirement dis­
criminates against blacks in New York State 
and Nassau County. In New York State 12.7% 
whites as compared to 4.2% blacks (males 
and females) age 25 years and older have 
completed 4 years of college or more. In 
Nassau County, 34.5% whites as compared to 
12.4% blacks, age 25 years and older, 
have a college degree. These statistics 
are broken down to reveal sex differences



9a

as well as racial distinctions. The total 
population of white males in Nassau County- 
age 25 years and older is 370,219. 84,728 
white males have four years of college or 
more. By contrast only 986 of a total 
population of 13,032 black males in Nassau 
County have achieved that level in educa­
tion. The total population of white fe­
males in Nassau County age 25 years and 
older is 423,529. 50,036 white females
have four or more years of college. But 
only 916 of 19,025 black females have 
achieved an equal educational status.
The group with the lowest percentage of 
members holding a college degree in Nassau 
County is black females; only 4.7% of them 
have college degrees.

Statistical evidence of educational 
disparity in an appropriate geographical 
area is sufficient to establish the dis­
proportionate racial impact of a degree 
requirement for Title VII purposes. In 
Griggs, North Carolina census statistics 
alone were relied upon by the Court for 
the proposition that a high school diploma 
requirement was racially discriminatory. 
401 U.S. 424, 431, fn. 6, 91 S. Ct. 849, 
853. Statistics on the completion of 
high school in the South and the Atlanta 
area were relied upon in United States v. 
Georgia Power Company, 474 F.2d 906, 918 
(5th Cir. 1973) as sufficient evidence of 
discriminatory impact. See also, Johnson 
v. Goodyear Tire and Rubber Co. Synthetic 
Rubber Plant, 491 F. 2d 1361, 1371 (5th 
Cir. 1974) (census data on educational 
achievement of blacks and whites in Texas 
and Houston area).

In the present case, state and

Opinion of District Court dated December 8, 1975



10a

county statistics demonstrate an approxi­
mately three times higher proportion of 
white as compared to black females who 
have attended four or more years of col­
lege. These statistics establish a prima 
facie case that a degree requirement has 
a disproportionate impact on blacks.

Comparable evidence as to the racial 
impact of the Medical Technologist I exam­
ination has not been presented. Because 
plaintiff was not dismissed for failure to 
pass that examination, it is not now before 
the court. Nothing said in this memoran­
dum should be construed as touching on the 
validity of the examination under Title 
VII or any other theory since no evidence 
was adduced on this issue.

B * Failure to Show Job-Related 
Justification

Opinion of District Court dated December 8, 1975

The Equal Employment Opportunity 
Commission has approved three methods of 
validation to establish the requisite rela­
tionship between a qualification and job 
performance. EEOC Guidelines, 29 C.F.R. 
1607. The Supreme Court in Albermarle, 
supra, stated that these guidelines are 
entitled to great deference.

"The EEOC has issued 'Guide­
lines' for employers seeking 
to determine, through pro­
fessional validation studies, 
whether their employment 
tests are job related. 29 
CFR Part 1607 (1974). These 
Guidelines draw upon and make 
reference to professional



11a

standards of test valida­
tion established by the 
American Psychological 
Association. The EEOC 
Guidelines are not administra­
tive 'regulations' promul­
gated pursuant to formal 
procedures established by the 
Congress. But, as this Court 
has heretofore noted, they 
do constitute '[t]he admin­
istrative interpretation of 
the Act by the enforcing 
agency', and consequently 
they are 'entitled to great 
deference.' Griggs v. Duke 
Power Co., supra, 401 U.S., 
at 433-434, 91 S. Ct., at 854.
See also Espinoza v. Fara 
Mfg. Co., 414 U.S. 86, 94,
94 S.Ct. 334, 339, 33 L.Ed.
2d 287. The message of these 
Guidelines is the same as 
that of the Griggs case -- 
that discriminatory tests are 
impermissible unless shown, 
by professionally acceptable 
methods, to be 'predictive 
of or significantly correlated 
with important elements of 
work behavior which comprise 
or are relevant to the job 
or jobs for which candidates 
are being evaluated.'
29 CFR § 1607.4 (c) ."

U .S. at___, 95 S.Ct. at 2378 (footnotes
omitted).

Section 1607.2 of the Guidelines

Opinion of District Court dated December 8, 1975



12a

provides that an educational requirement 
is to be treated as a test for purposes 
of determining its validity. Section 
1607.5(a) discusses criterion, content, 
and construct validation, the three tech­
niques which have been recognized by the 
EEOC:

Opinion of District Court dated December 8, 1975

" (a) For the purpose of 
satisfying the requirements of 
this; part, empirical evidence 
must be based on studies em­
ploying generally accepted 
procedures for determining 
criterion related validity 
such as those described in 
'Standards for Education 
and Psychological Tests and 
Manuals' published by American 
Psychological Association.... 
Evidence of content or con­
struct validity as defined 
in that publication, may also 
be appropriate where cri­
terion validity is not feasible. 
However, evidence for content 
or construct validity should 
be accompanied by sufficient 
information from job analysis 
to demonstrate the relevance 
of the content (in the case 
of job knowledge or proficiency 
tests) or the construct (in 
the case of trait measures). 
Evidence of content validity 
alone may be acceptable for 
well developed tests that 
consist of suitable samples of 
the essential knowledge,



13a

skills or behaviors 
composing the job in 
question- The types of 
knowledge, skills or be­
havior contemplated here 
do not include those which 
can be acquired in the 
brief orientation to the 
job."

Criterion related validation -- the 
preferred method —  would require a show­
ing that those who possess a degree per­
form better in the blood bank in terms of 
identifiable criteria, than those who do 
not. See Vulcan Society v . Civil Service 
Commission, 360 F. Supp. 1265, 1273 (S.D. 
N.Y.), affirmed in part and remanded with 
respect to issues not decided on the merits, 
490 F. 2d 387 (2d Cir. 1973). No credible 
evidence has been submitted to support 
this proposition in this case. Mrs. 
Townsend, without a degree, is considered 
by her supervisor and others to be one of 
the outstanding members of the blood bank 
staff.

The second method, content validation, 
would entail proof that the aptitudes, 
skills, and training necessary to obtain 
a degree are equivalent to the skills and 
training required for successful perfor­
mance in the blood bank. See Vulcan Society 
v. Civil Service Commission, 360 F. Supp 
1265 at 1274. Construct validation would 
necessitate proof that the requirements for 
a degree accurately test for the general 
mental and psychological traits which are 
needed in the blood bank. See Vulcan

Opinion of District Court dated December 8, 1975



14a

Society v. Civil Service Commission, 490 
F. 2d 287 at 395.' “

The evidence submitted in this case 
does not support the proposition that an 
acceptable college program relates to the 
practical demands of the blood bank. As 
noted, Linda Schwaid, a Medical Technolo­
gist I, testified that she obtained all 
her training from the plaintiff. More­
over, under the Guidelines, content and 
construct validation may be used only upon 
a showing that criterion validation is 
not feasible. 29 C.F.R. § 1607.5(a) (1974)
see also, The Supreme Court, 1974 Term 89 
Harv. L. Rev. 47, 233 (1975). No such 
showing has been made here.

Defendants did not produce any 
credible testimonial or documentary evi­
dence to demonstrate the validity of 
either the college degree or certification 
requirements for the position of Medical 
Technologist I pursuant to any of the 
accepted methods of validation. Witness 
Fontana indicated that no consideration 
was given to validating the degree quali­
fication during the preparation of the 
Cresap survey. According to the testimony, 
the development of class specifications 
for each job at the Medical Center was 
based on responses to questionnaires dis­
tributed to employees and supervisors.
The criteria relied on by the supervisors 
in making their recommendations is not 
known. See Albermarle Paper Company v.
Moody, U.S.___,___ , 95 S.Ct. 2362, 2379
(1975) (employer's validation study for 
aptitude tests fatally undermined by reli­
ance on supervisorial rankings based on 
vague standards). The only other evidence

Opinion of District Court dated December 8, 1975



15a

introduced to justify the inclusion of the 
college degree in the Medical Technologist 
I specifications showed that New York City 
requires a degree for a similar position 
and two federal bulletins recommend college 
education for medical technologists. This 
evidence is not sufficient to establish 
the validity of the degree requirement for 
the position of Medical Technologist I at 
the Nassau County Medical Center for this 
case in light of plaintiff's proven quali­
fications .

The court does not rule on the val­
idity of the degree requirement except in 
the special circumstances of the case be­
fore it. Mr. Appelwaithe the supervisor 
did suggest that a college degree might 
be useful. In addition, Ms. Schwaid testi­
fied that her undergraduate education was 
helpful in enabling her to read the litera­
ture in the field. Although no direct evi­
dence was presented on this point, a degree 
or its equivalent might guarantee that new 
applicants possess the skills and learning 
needed for successful training in the blood 
bank. This question would have to be 
explored in any future litigation. But, 
in any event, under Title VII an inherently 
discriminatory safeguard cannot be applied 
woodenly to deny job status to a current 
employee who has achieved all applicable 
learning and skills through practical 
experience.

This reasoning is understood by the 
District of Columbia Circuit's decision in 
Berger v. Board of Psychologist Examiners,
___F .2d___,No. 74-1047, 44 L.W. 2235 (D.C.
Cir. Oct. 28, 1975), partially striking 
down a federal statute prescribing minimum

Opinion of District Court dated December 8, 1975



16a

educational requirements for all psycho­
logists practicing in the District of 
Columbia. The Court held that the Fifth 
Amendment Due Process Clause guarantees 
current practitioners an alternative means 
of demonstrating his or her professional 
qualifications as against a conclusive 
statutory presumption of incompetence. The 
Court's language reflects an appreciation 
of the value of practical experience. It 
wrote:

Opinion of District Court dated December 8, 1975

"Possession of a graduate 
degree in psychology does not 
signify the absorption of 
a corpus of knowledge as 
does a medical, engineering, 
or law degree; rather it is 
simply a convenient line 
for legislatures to draw, 
on the brave assumption 
that whatever is taught in 
the varied graduate curricula 
of university psychology 
departments must make one a 
competent psychologist, or at 
least competent enough to be 
allowed to take a licensing 
examination. While it may 
not be irrational to assume 
that this academic background 
should in the future be a 
requisite to the practice of 
psychology, it is of question­
able rationality to insist that 
current practitioners, who 
may have studied and practiced 
at a time when graduate courses 
in psychology were even less



17a

meaningful, are conclu­
sively incapable of meeting 
today's new standards 
because they did not take 
those courses."

Slip Op. at 226.

The Court carefully distinguished 
the rights of current practitioners from 
those of future applicants.

"Here the irrebuttable 
presumption of professional 
incompetence absent a 
graduate degree is not 
invalid with respect to 
future psychologists, but 
only with respect to current 
practitioners who have no 
meaningful grandfather 
rights ....The inequity of 
the statute is that it fails 
to account for those compe­
tent psychologists who 
embarked upon their profes­
sion when no degree was re­
quired and who thus are 
denied a fair opportunity 
to come within the statute's 
licensing requirements at 
this point."

Slip Op. at 228.

If the right of a current, qualified 
practitioner to maintain his or her employ­
ment cannot be extinguished by statute, 
it follows, a fortiori, that such a result

Opinion of District Court dated December 8, 1975



18a

may not be accomplished by regulations 
which conflict with statutory policies 
against racial discrimination.

Conclusion

Opinion of District Court dated December 8, 1975

Plaintiff must be reclassified as 
a provisional Medical Technologist I, 
retroactive to December 31, 1973, the date 
of her dismissal. Pursuant to 42 U.S.C.
§ 2000e-5(k), plaintiff is entitled to 
back pay in the amount she would have 
earned as a Medical Technologist I less 
what she actually earned during this 
period. In addition, plaintiff is entitled 
to take any future Civil Service examina­
tions for permanent classification as a 
Medical Technologist I. Plaintiff is 
also entitled to attorney's fees. 42 U.S.C.
§ 2000e-5(k); Albemarle Paper Company v. 
Moody, U.S. , , 95 S. Ct. 23~62, 2370
(1975) .

Unless the parties stipulate with 
respect to back pay and fees, counsel for 
plaintiff shall submit an affidavit on 
the issue within ten days. Within twenty 
days defendants may either answer by 
affidavit or demand a hearing. Within 
thirty days, the parties shall submit a 
joint order or individual orders consistent 
with the court's determination. Agreement 
on the form of an order shall not constitute 
acquiescence in its validity or waiver of 
the right to appeal.

So ORDERED.
Dated: Brooklyn, New York 

December 8, 1975.

U.S.D.J.



19a

Order of Court of Appeals dated June 21, 1976 

UNITED STATES COURT OF APPEALS 

FOR THE

SECOND CIRCUIT

At a stated Term of the United States 
Court of Appeals for the Second Circuit, 
held at the United States Courthouse in 
the City of New York, on the 21st day of 
June one thousand nine hundred and seventy- 
six

Present:
HONORABLE HENRY J. FRIENDLY 
HONORABLE WILFRED FEINBERG 
HONORABLE ELLSWORTH A. VAN 

GRAAFEILAND

Circuit Judges,

MARGARET TOWNSEND,
Plaintiff-Appellee,

-against-
NASSAU COUNTY MEDICAL CENTER, et al,

Defendants-Appellants.

No. 76-7003



20a

Appeal from the United States 
District Court for the Eastern District 
of New York

This cause came on to be heard on 
the transcript of record from the United 
States District Court for the Eastern 
District of New York, and was argued by 
counsel.

ON CONSIDERATION WHEREOF, it is 
now hereby ordered, adjudged, and decreed 
that the judgment of said District Court 
be and it hereby is vacated and the case 
is remanded for reconsideration in the 
light of Washington v. Davis, 44 U.S.L.W. 
4789 (U.S. June 7, 1976), particularly 
Part III thereof.

Order of Court of Appeals dated June 21, 1976

/s/_________________
HENRY J. FRIENDLY

/s/_________________
WILFRED FEINBERG

/s/____________ ________________
ELLSWORTH A. VAN GRAAFEILAND

U . S . C . J J .



21a
Judgment of District Court dated September 27, 1976

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NEW YORK 

75 C 294

MARGARET TOWNSEND,

Plaintiff,

-against-
NASSAU COUNTY MEDICAL CENTER,

DR. DONALD H. EISENBERG, Superintendent,

et al,
Defendant.

JUDGMENT
This matter having been remanded by 

the Court of Appeals for the Second Cir­
cuit by Order dated the 21st day of June, 
1976 for reconsideration, and the matter 
having been set down for oral argument 
before this Court on the 24th day of Sep­
tember, 1976, the plaintiff having been 
represented by McEVILY, GRADESS & KLUEWER, 
by SUSAN KLUEWER and DONNA CLEAR, Legal 
Intern, Community Legal Assistance Corpora­
tion, and the defendants having been repre­
sented by JAMES M. CATTERSON, JR., County 
Attorney of Nassau County by JAMES N.



22a

Judgment of District Court dated September 27, 1976

GALLAGHER, Deputy County Attorney, it is 
hereby

ORDERED, ADJUDGED AND DECREED that 
the original judgment in favor of plain­
tiff dated the 26th day of February, 1976 
and heretofor entered on the 27th day of 
February, 1976 is in all respects con­
firmed for the reasons stated orally at 
the hearing. (JBW)
Dated: Brooklyn, New York

September 27, 1976

/a/ JACK B. WEINSTEIN
United States District 
Court Judge



23a
Opinion of Court of Appeals dated June 20, 1977

UNITED STATES COURT OF APPEALS

F ob the Second Circuit

No. 827— September Term, 1976.

(Argued April 1, 1977 Decided June 30, 1977.)

Docket No. 76-7522

Margaret T ownsend,

Plaintiff-Appellee,
—against—

Nassau County Medical Center; Doctor D onald H. E is- 
enberg, Superintendent, Nassau County Civil Service 
Commission ; Gabriel K ohn, Chairman ; E dward S. 
W itanowski, E dward A. Simmons, A dele Leonard, E x­
ecutive Director of Nassau County Civil Service Com­
mission; New Y ork State Department of Civil Ser­
vice; E sra H. P osten, President of the New Y ork State 
Civil Service Commission and head of the New York 
State Civil Service Department,

Defendants-Appellants.

B e f o r e  :
L umbard, Mansfield and Gurfein,

Circuit Judges.

Appeal from a judgment and order of the United States 
District Court for the Eastern District of New York (Wein­
stein, J.) that defendants had violated Title Y II of the



24a

Opinion of Court of Appeals dated June 30, 1977 
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 
ordering that plaintiff employee he reinstated with back 
pay.

Reversed.

M a t t h e w  A. T ed o n e , Deputy County Attorney, 
Mineola, N.Y. (Natale C. Tedone, Senior 
Deputy County Attorney, William S. Nor- 
den, Deputy County Attorney, and William 
Gitelman, County Attorney of Nassau 
County, Mineola, N.Y., of counsel), for De- 
fendants-Appellants.

S u san  K lajewer, Community Legal Assistance 
Corp., Hempstead, N.Y. (McEvily & Klue­
wer, Hempstead, N.Y., of counsel), for 
Plaintiff-Appellee.

Gtu rfein , Circuit Judge:

This individual Title VII action1 is before us the second 
time.2

Appellee Margaret Townsend, a black female, began 
work on June 22, 1965 as a blood bank technician, at the 
Nassau County Medical Center, a county facility subject 
to the New York Civil Service Law. When Mrs. Townsend 
was appointed provisionally as a “ Senior Laboratory 
Technician,” that position required graduation from high

1 42 U.S.C. § 2000e et seq.

2 On June 21, 1976, this court by order vacated a judgment for the 
plaintiff entered in the United States District Court for the Eastern 
District of New York after a trial before the Hon. Jack B. Weinstein. 
We remanded the case "for reconsideration in the light of W ashington  
v. Davis [426 U.S. 229 (1976)], particularly Part III thereof.” On 
remand, Judge Weinstein confirmed his original order and the judg­
ment for the plaintiff described below. The defendants now seek re­
view of both judgments.



25a

school, completion of an approved two-year course in med­
ical technology, and two years experience as a technician 
in a medical laboratory or a satisfactory equivalent of a 
combination of training and experience. As a result of a 
survey conducted for the County by the firm of Cresap, 
McCormick and Paget, the County adopted a reclassifica­
tion of all County positions subject to Civil Service 
effective July 7, 1967. Under the reclassification, Mrs. 
Townsend’s job was designated “ Medical Technologist I” 
and new prerequisites for appointment to a permanent 
position were established. It became necessary to pass a 
competitive examination which could be taken only by 
those holding either a bachelor of science degree or a 
certification by the American Society of Clinical Pathol­
ogists ( “ASCP” ).3 The County mitigated these new re­
quirements, however, with a “grandfather clause” provid­
ing that incumbents who had served at least one year prior 
to July 7, 1967, in positions whose prerequisites were af­
fected by the reclassification adopted by the County Civil 
Service Commission, would be permitted once to take the 
examination for his new title, regardless of the announced 
training and experience requirements, “but that for ’ en­
suing examinations it would be necessary for him as well 
as all other candidates to meet the qualification require­
ments of the test announcements.” 4

Appellee Townsend was accordingly permitted to take 
the examination given in 1971, although she had neither 
a college degree nor ASCP certification. Unfortunately, 
she failed to pass the examination. Another person in the 
same blood bank, also without the requisite academic

Opinion of Court of Appeals dated June 30, 1977

3 One of the requirements for ASOP certification was a B.S. degree.

4 Specifically, incumbents would be permitted to take the first examina­
tion administered a fter  the promulgation' of the "grandfather clause” 
on December 9, 1968.



26ci

qualification, passed it. Mrs. Townsend was, nevertheless, 
permitted to continue as a Medical Technologist I in a 
provisional status because the list of eligibles resulting 
from the 1971 examination was insufficient to fill all 
positions.

A  second examination for Medical Technologist I was 
administered in April, 1973. In accordance with the limited 
“grandfather clause,” Mrs. Townsend’s application to take 
the examination was rejected by the Nassau County Civil 
Service Commission, because she lacked the formal edu­
cational qualifications. As a result of the promulgation 
of a Medical Technologist I eligible list based upon the 
1973 examination, Mrs. Townsend was discharged in De­
cember of 1973. Three white incumbents were similarly 
discharged. See note 8, infra. Three months later appellee 
was rehired by the blood bank and given the duties of a 
Medical Technologist I. However, she was placed in the 
lower paying classification of a Laboratory Technician II. 
In short, Mrs. Townsend was, as the litigants and the 
District Court recognized, in effect demoted to a lower 
paying classification because she lacks the formal academic 
prerequisites to take future examinations which were im­
posed some years after she began her employment, and 
because she failed the “grace” examination.

Mrs. Townsend then brought suit for reinstatement with 
back pay, alleging that the requirement of either a B.S. 
degree or ASCP certification violates Title VII of the 
Civil Rights Act of 1964, 42 F.S.C. § 2000e et seq. The 
essence of her Title VII theory is that the requirement of 
a B.S. degree or an ASCP certification has a dispropor­
tionate racial impact since far fewer blacks than whites 
in the general population have college degrees; and that 
the requirement violates Title VII because it is insuffi­
ciently job-related.

Opinion of Court of Appeals dated June 30, 1977



27 a

After a trial without a jury, the District Court held that 
appellee had established a prima facie case of discrimina­
tion and that appellants had not met their burden of 
justifying the academic prerequisites as job-related in 
their application to Mrs. Townsend. A distinction was 
perceived, however, between the rights of a person holding 
a job and a person seeking a job in the first instance. The 
District Court expressly disclaimed any intention to ad­
judicate generally whether these academic requirements 
were sufficiently job-related to be valid. Rather, it held 
that Title VII mandates that an employer must recognize 
the actual demonstrated job skills of a minority employee 
whether those skills are acquired through practical ex­
perience or through formal training. The court ruled that 
the educational requirements could not be applied so as 
to exclude a black employee “ from a position for which she 
has demonstrated eminent qualifications.”

In finding that the academic prerequisites were “ inher­
ently discriminatory”—i.e., in finding a prima facie case 
of discrimination—Judge Weinstein recognized that the 
defendants had acted in good faith and with good inten­
tions. Nevertheless, he observed that a job requirement 
violates Title VII if it has a racially disproportionate im­
pact. Griggs v. Duke Poiver Co., 401 TJ.S. 424 (1971). 
Noting that, in the general populations of Nassau County 
and New York State, proportionately far more whites 
have college degrees than do blacks— and especially female 
blacks—Judge Weinstein concluded that this statistical 
evidence of educational disparity was itself enough to 
establish the disproportionate racial impact of a degree 
requirement.

Having concluded that “ a college degree requirement 
discriminates against blacks in New York State and Nas­
sau County,” Judge Weinstein next considered whether

Opinion of Court of Appeals dated June 30, 1977



28a

appellants had shown that this requirement was job-related. 
See Griggs, supra; Albemarle Paper Co. v. Moody, 422 
U.S. 405 (1975). He found no evidence indicating that 
persons with college degrees perform better as medical 
technologists than those who do not. The District Court 
concluded that since the plaintiff bad demonstrated her 
actual job qualifications by on-the-job performance, a col­
lege degree could not be required as a prerequisite to em­
ployment in her case. The court limited its ruling on the 
validity of the degree requirement, however, to “ the special 
circumstances of the case before us.” In short, the ruling 
of the District Court amounted to an ad hoc determination 
that Mrs. Townsend, by virtue of her demonstrable skill 
in the hlood bank, was entitled to take another examination, 
and to retain her provisional status, without any time lim­
itation, despite the existence of an unfilled eligible list.

The District Court, accordingly, ordered that: (1) plain­
tiff Townsend be reclassified as a provisional Medical 
Technologist I retroactive to December 31, 1973; (2) plain­
tiff be awarded back-pav for 1974 and 1975; and (3) plain­
tiff not be disqualified from taking future civil service 
examinations for permanent classification as Medical 
Technologist I by reason of her not having a college de­
gree or certification by AS CP. The court made no provi­
sion for how long the plaintiff could remain in provisional 
status without passing an examination.

Mrs. Townsend can gain redress in the federal court 
only if she has suffered discrimination—-either intentional 
or “objective”—-because of her race or sex, or upon the 
ground that substantive due process protects incumbent 
job-holders from standards for permanent qualification 
created only after years of satisfactory service on the joh.

We agree with the Nassau County defendants that ap­
pellee did not prove a prima facie case of racial discrimi­

Opinion of Court of Appeals dated June 30, 1977



29a

nation against herself under Title VII and that she was 
not denied any “ substantive due process” right.

As far as the prima facie case of discrimination is con­
cerned, appellee adduced no evidence whatsoever of inten­
tional discrimination, past or present, either by the County 
or by the Medical Center. It is well-established, however, 
that a prima facie case may be made through evidence that 
an employment test or qualification has as a consequence 
“ an exclusionary effect on minority applicants.” McDon­
nell Douglas Corp. v. Green, 411 U.S. 792, 803 n.14 (1973). 
See Washington v. Davis, 426 U.S. 229, 252 (1976). Even 
as far as adverse racial impact is concerned, however, the 
only evidence offered by appellee were 1970 census statis­
tics showing that in Nassau County college degrees are 
held by only 12.4% of blacks age 25 years or over, as op­
posed to 34.5% of whites, and by only 4.7% of black fe­
males, as opposed to 11.8% of white females.5 There were 
no statistics for the B.S. degree in particular.

Neither Griggs, supra, nor Johnson v. Goodyear Tire & 
Rubber Co., 491 F.2d 1361 (5th Cir. 1974), or United States 
v. Georgia Power Co., 474 F.2d 906 (5th Cir. 1973), relied 
upon by appellee, support the proposition that statistical 
evidence concerning only the general population is suf­
ficient to demonstrate that a job prerequisite “ operates to 
exclude” minorities. In all of these cases plaintiffs estab­
lished that virtually no blacks were in fact able to satisfy 
the challenged job qualification and obtain employment 
with the defendant.6

Opinion of Court of Appeals dated June 30, 1977

5 Similar statistics eoneerning the population of New York State as 
a whole were also submitted into evidence.

6 It is true that in Griggs, as well as Georgia Pow er, and Goodyear 
Tire Sr R ubber Co., the courts noted that the educational requirements 
at issue were satisfied only by a disproportionately low number of 
blacks. See 401 U.S. at 430 n.6; 491 F.2d at 1371; 474 F.2d at 918. 
But these statistics eoneerning the general population were relevant,



30a

I f  we were to hold that a bare census statistic concern­
ing the number of blacks in the general population who 
have college degrees could establish a prima facie case of 
discrimination, every employer with a college degree re­
quirement would have the burden of justifying the degree 
requirement as job-related. See Albemarle Paper Co. v. 
Moody, 422 U.S. 405 (1975). The burden of showing job- 
relatedness cast upon the employer does not arise until 
due discriminatory effect has been shown. General Electric
Co. v. Gilbert,:------  U .S .------ , 97 S. Ct. 401, 408-09, 45
U.S.L.W. 4031 at 4034 n.14 (Dec. 7, 1976). “ This burden 
arises, of course, only after the complaining party or class 
has made out a prima facie case of discrimination.” Albe­
marle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). We 
do not believe that a statistic relating only to the general 
population, and not to the employment practices of the par­
ticular defendant, should be sufficient to raise such a pre­
sumption against a college degree requirement. The 
requirement of a college degree, particularly in the sciences, 
seems to be in the modern day of advanced scientific 
method, a neutral reqirirement for the protection of the 
public. No doubt such a requirement could serve as a pre­
text for racial or sex discrimination, but this consequence 
should not be assumed. There will be time, if a showing of 
racial impact is made, for the comparison of the require­
ment of a degree in medicine, law, engineering or other 
professions with such a requirement for a laboratory 
technologist who is required by her Civil Service Title to 
be skillful in clinical chemistry, microbiology, blood-bank­
ing, serology, and hematology in more than one laboratory.

Opinion of Court of Appeals dated June 20, 1977

not to establish the prima laeie case of discrimination which had al­
ready been made, bnt to demonstrate that the racially disparate impact 
on defendant emnloyer’s workforce which was otherwise established, 
was due to  the challenged ;job requirement, and not to some other prac­
tice of the employer or other cause.



31a

The relative function of the academic prerequisites to job­
relatedness varies inversely with the risk to the health and 
safety of the public who depend upon the technology. See 
Spurlock v. United Airlines, Inc., 475 F.2d 216 (10th Cir. 
1972) (college degree for flight officer held job-related); 
Hodgson v. Greyhound Lines. Inc., 499 F.2d 859, 862 (7th 
Cir. 1974); 29 C.F.R. 1607.5(c) (2) ( i i i ) : “ . . . a relatively 
low relationship may prove useful when the [economic and 
human] risks are relatively high.” The issue will be 
whether a B.S. degree is substantially related to job per­
formance. Cf. Griggs, supra, 401 U.8. at 431. But the fields 
of scientific knowledge are too disparate, and cover too 
many disciplines, for the mere existence of general college 
degree statistics in the general population, without more, 
to sustain a presumption of racial discrimination.

In refusing to adjudicate whether the college degree re­
quirement discriminated against i lacks in general, includ­
ing potential future applicants, the District Court itself 
recognized that the adoption of a college degree require­
ment cannot, merely because of the general racial composi­
tion of college graduates, be considered discriminatory. 
Judge Weinstein noted that Though no direct evidence 
was presented on this point, a degree or its equivalent might 
guarantee that new applicants possess the skills and learn­
ing needed for successful training in the blood bank. This 
question would have to be expired in any future 
litigation.” 7

It was precisely because the District Court was unwilling 
to hold that the requirement of a E,S. degree, neutral on 
its face, makes out a per se violation, that the District 
Court had to award relief to Mrs. Townsend on an ad hoc 
basis.

Opinion of Court of Appeals dated June 20, 1977

7 The District Court credited the testimony of Mr. Applewhaite, the 
supervisor, "that a college degree might be useful.”



32a

Unfortunately, we see no legal ground for such ad hoc 
relief. Surely, if we restrict our consideration to Mrs. 
Townsend individually, no inference of racial discrimina­
tion against her alone is possible, cf. McDonnell Douglas 
v. Green, supra. When the new job qualifications were 
promulgated she was “grandfathered” into one examina­
tion despite her acknowledged lack of the threshold pre­
requisite academic standing. Although she failed this 
examination, there is no claim—nor was evidence adduced 
—that the examination violated Title VII. Indeed, at least 
one incumbent afforded the opportunity to take the “grand­
father” exam, passed it. And of the four incumbents who, 
like Mrs. Townsend, were demoted for failure to satisfy 
the new job requirements, three were white.8 In short, 
the newly promulgated prerequisites, neutral on their face, 
were applied to each employee at the blood bank in a uni­
form and racially neutral manner.

Similarly, we see no basis for awarding ad hoc relief to 
Mrs. Townsend under a “ substantive due process” theory. 
It might be argued that, wholly apart from racial implica­
tions, a state employee— even a provisional one—is en­
titled to some sort of due process protection against the 
subsequent promulgation of more stringent civil service 
requirements. A panel of the District of Columbia Circuit 
has held that, in the absence of a “ grandfather clause,” the 
promulgation of a degree requirement for licensure as a 
psychologist is an impermissible “ irrebuttable presump­
tion” that psychologists who have practiced for many years 
without benefit of academic degree are incompetent. Berger 
v. Board of Psychologist Examiners, 521 F.2d 1056 (D.C.

Opinion of Court of Appeals dated June 30, 1977

8 These people, according to a sworn affidavit on the motion for a 
preliminary injunction of Ronald J. Levinson, Deputy Executive Di­
rector of the Nassau County Civil Service Commission, were Frederick 
Miller, Jean Wilson and Jean Bush, all white persons. The affidavit 
was not controverted on the motion.



33a

Cir. 1975). We need not consider, however, whether the 
status of a provisional Civil Service employee is distin­
guishable from that of an individual practitioner, in terms 
of an alleged “vested right” protected by due process, Cf. 
Board of Regents v. Roth, 408 IT.S. 564 (1972); Perry v. 
Sinderman, 408 U.S. 593 (1972); Russell v. Hodges, 470 
F.2d 212 (2d Cir. 1972). Nor need vTe consider whether the 
heavily criticized “irrebuttable presumption”  theory of due 
process retains its vitality. See Weinberger v. Salfi, 422 
U.S. 749 (1975): Note, The Irrebuttable Presumption Doc­
trine in the Supreme Court, 87 Harv. L. Rev. 1534 (1974). 
For Mrs. Townsend was not confronted with any irrebut­
table presumption of incompetence. Under the terms of 
the “grandfather clause” she had a chance to rebut any 
such presumption by passing the examination which she 
was permitted to take in spite of her lack of academic 
credentials. Thus the only issue that remains is whether 
it -was reasonable for the County, in its “grandfather 
clause,” to limit its waiver of the academic requirement 
only to the extent of permitting an incumbent—white or 
black—to take one examination, rather than several. We 
cannot say that the choice made by the County to limit'the 
waiver to one examination wras irrational. Cf. City of New 
Orleans v. Dukes, 96 S. Ct. 2513 (1976) (“grandfather 
clause” limited by number of years pushcart vendor is in 
operation).

There is no doubt that Mrs. Townsend presents an ap­
pealing case, not because she is female or black, but be­
cause she has done a satisfactory job for several years 
and is now required to perform essentially the same duties 
for less pay than is given to some of her own former 
trainees who have qualified for permanent civil service 
positions. We can understand the desire of the District 
Court to redress an “ inequity” by using its power to effect

Opinion of Court of Appeals dated June 20, 1977



such redress. The question is whether Title VII authorizes 
the exercise of such an ameliorative function by a District 
Court in this way. We feel constrained to say that, on 
these facts, were the District Court judgment to stand, 
this hard case would make bad law. Bare figures on col­
lege degree distribution in the general population do not, 
in themselves, prove discrimination based on race, sex, or 
ethnic or national origin, in fields of scientific training in 
which risks to human life are involved. The black com­
munity has already made tremendous strides in achieving 
academic degrees, and, happily, there appears to be con­
tinuing, steady progress. In any event, should a college 
degree requirement ever be interposed as a prerequisite 
simply as a pretext for disqualifying members of the black 
community, the courts will be alert to deal with violations 
of Title VII. But we cannot say that this is such a case.

Beversed with directions to dismiss the complaint.

34a

Opinion of Court of Appeals Dated June 30, 1977



35a

Order of Court of Appeals dated August 24, 1977 

UNITED STATES COURT OF APPEALS 

SECOND CIRCUIT

At a Stated Term of the United States 
Court of Appeals, in and for the Second 
Circuit, held at the United States Court 
House, in the City of New York, on the 24th 
day of August, one thousand nine hundred 
and seventy-seven.

Present:
HON. J. EDWARD LUMBARD,
HON. WALTER R. MANSFIELD,
HON. MURRAY I. GURFEIN,

Circuit Judges.

MARGARET TOWNSEND,
Plaintiff-Appellee

v.
NASSAU COUNTY MEDICAL CENTER,
DR. DONALD H. EISENBERG, 
SUPERINTENDENT, NASSAU COUNTY 
CIVIL SERVICE COMMISSION,
GABRIEL KOHN, etc.,

Defendants-Appellants

DOCKET NO. 76-7522



36a

Order of Court of Appeals dated August 24, 1977

A petition for a rehearing having 
been filed herein by counsel for the plain- 
tiff-appellee

Upon consideration thereof, it is
Ordered that said petition be and 

it hereby is denied.

/s/ A. DANIEL FUSARO,
Clerk

/s/ By: SARA PIOVIA 
Deputy Clerk



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