United States Postal Service Board of Governors v. Aikens Brief for Respondent

    * f c i l

question presented

Was the court of appeals' holding that 
respondent, plaintiff below, had made out a 
Hlma ggcie case of discrimination, consis­
tent with decisions of this Court, with the 
legislative history of Title VII of the 
Civil Rights Act, as amended, and with the 
polices and purpose underlying Title VII?

-  1 -



Table of Contents

Opinion Below ..................
Jurisdiction ...................
Statute Involved ...............
Statement of the Case ..........

A. Background .............
B. Selection procedures for

details to higher level 
positions .............

C. The treatment of whitesand blacks ............
D. Comparison of Aikens

and his white col­
leagues ...............

E. Experience as a factor
in selection for higher level jobs ............

F. Anecdotal evidence re­
marks that betray prej­udice or sterotyped thinking ..............

Nummary of Argument .......‘....
ARGUMENT; .....................

I. Introduction .........

/- ii -

Page

1

2

2

3
3

20

27

32
34
36
36

W -
m v Page

II. The Legislative History of 
the Equal Employment Opportun­ity Act of 1972 Supports the 
Continuing Vitality of McDonnell Douglas and the Decision ofthe Court Below ...........
III. the Prima Facie Case
Rule of McDonnell Douglas Is 
A Reasonable and Effective 
Approach for Individual Title VII Cases ...........
IV. The Decision Below Is 
Fully Consistent With 
McDonnell Douglas v. Green

Conclusion .......
Statutory Appendix

- Ill -

55

70

and Its Progeny ........ 88
The Prima Facie Case . . . 88

B_̂ Addition Facts Demon-
stirating Discrimina-tion .............. 92
Petitioner's Arguments 
Are Inconsistent With
McDonnell Douglas and Burdine ............. 95

1 10



Table of Authorities 1̂ '

Cases Page

Alexander v. Louisiana, 405 U.S.
, 625 (1972) ................ 75
Barrett v. U.S. Civil Service 

Commission, 69 F.R.D. 544 
(D.D.C. 1975) ............. 45̂

Blake V. Califano, 626 F.2d 891
(D.C. 1980) ............... 47

Board of Trustees of Keene State 
College v. Sweeney, 439 U.S.
24 (1978) ................ 38,79,109

Brown v. G.S.A., 425
U.S. 820 (1976) ............  56,64

Castaneda v. Partida, 430 U.S. 482
(1977) .................... 73I

Chandler v. Roudebush,
425 U.S. 840 (1976 ) .......  45,51

Chisholm v. United States Postal 
Service, 516 F. Supp. 810 
(M.D.N.C. 1980), aff'd,655 F.2d 482 (4th Cir.
1981) ................... 65, 92,93,96

City of Mobile v. Bolden, 446 U.S.
55 (1980) .................  69

Clark V. Alexander, 489 F. Supp.
1236 (D.D.C. 1980) . . ."r. . . . . 64

Page

Clark V. Chasen, 619 F.2d 1330 (9th
Cir. 1980 ) ...............  64

Connecticut v. Teal, ___U.S. ___,
U.S.L.W. 4716 (June 4,1982) ..................... 99

Copeland v. Marshall, 641 F.2d 880
D.C. Cir. 1980) ............. 4 6

Davis V. Califano, 613 F.2d 957
(D.C. Cir. 1979) ......... 96,99, 108

Davis V. Weidner, 596 F.2d 726 (7th
Cir. 1979) ................ 81,82,85

Day V. Mathews, 530 F.2d 1083 (D.C.
Cir. 1976) ................ 45

deLesstine v. Ft. Wayne State 
Hosp., 29 FEP Cases 195(7th C ir. 1981) ........... 84

- Eastland v. T.V.A., 553 F.2d 364
(5th Cir. 1977) ........... 46

Evans v. Baldridge, 27 FEP Cases,
1479 (D.D.C. 1982 ) ........ 83

Flowers V. Crouch-Walker Corp., 552
F..2d 1277 (7th Cir. 1977) ... 78,81

Franklin v. Trokel Mfg. Co.,
501 F.2d 1013 (6th Cir.
1974) ..................... 78

Fullilove V. Klutznick, 448 U.S.
448 (1980) ................. 67

- V -

- IV -



Page
I- Page

Furnco Construction Corp. v.
Waters, 438 U.S. 567 
(1978) ....................

Gates V. Georgia-Pacific Corp., 492 
F.2d 292 (9th Cir. 1974) ___

Griggs v. Duke Power Co., 401 U.S. 
424 (1971) ................

Hackley v. Roudebush, 520 F.2d 108 
(D.C. Cir. 1975) ..........

Harrell v. Northern Electric Co., 
672 F.2d 444 (5th Cir.
1982) .....................

Harrison v. Lewis (D.D.C., Civ.Act. 79-1816, June 17,
1982) .....................

Houseton v. Nimmo, 670 F.2d 1375 
(9th Cir. 1982) ...........

Johnson v. Bunny Bread Co., 646 
F.2d 1250 (8th Cir.
1981) .....................

Kaufman v. Sidereal Corp., 677
F.2d 767 (9th Cir. 1982) ...

Kenyatta v. Bookey Packing Co.,
649 F.2d 552 (8th Cir.1981) .....................

King V. New Hampshire Dept, of
Resources, 562 F.2d 80-(lst 
Cir. 1977) ......< ........

38,79,99

79

56

51

98,108

64

47

84

84

84

; \

I '

' N

78,80

Kunda v. Muhlenberg College,
621 F.2d 532 (3rd Cir.1980) .....................

Loeb V. Textron, Inc., 600 F.2d
1003 (1st Cir. 1979) ......

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

McKenzie v. McCormick^ 425 F. Supp. 
137 (D.D.C. 1977) .........

Meyer v. Brown and Root Constr.
Co., 661 F.2d 369 (5th 
Cir. 1981) ................

Mitchell V. M.D. Anderson Hosp.,
29 FEP Cases 263 (5th Cir. 1982) .....................

Morton v. Mancari, 417 U.S. 535(1974) ....................
New York Gaslight Co. v. Carey, 447 U.S. 54 (1980) ............
Parker v. Califano, 561 F.2d 320 

(D.C. Cir. 1977) ..........
Payne v. Travenol Laboratories, 673 

F.2d 798 (5th Cir. 1982 ) ...
Peters v. Jefferson Chemical Co., 

516 F.2d 447 (5th Cir.
1975) .....................

Pointer v. Sampson, 62 F.R.D. 689 
(D.D.C. 1974) ............

107

80,81,87

passim

64

83

84

64

45

49

108

81,82,83

44
- VI - - Vll



Page
nr.sv-,; Page

Powell V. Syracuse University, 580F.2d 1150 (2nd Cir. 1978) .. 78,85
Rodriguez v. Taylor, 569 F.2d 1231

(3rd Cir. 1977) ............  84
Sabol V. Snyder, 525 F.2d 1009

(10th Cir. 1975) ..........  79
Saunders v. Claytor, 629 F.2d 596

(9th Cir. 1980) ...........  47
Segar v. Civiletti, 508 F. Supp.

609 (D.D.C. 1981) .........  64
Smith V. Califano, 446 F. Supp. 530

(D.D.C. 1978) .............  45
Taylor v. Louisiana, 419 U.S. 522

(1975) .................... 73
Texas Department of Community

Affairs V. Burdine, 450 U.S.
248 (1981) ................  passim

Thompson v. Sawyer, 28 F.E.P. Cases
1614 (D.C. Cir. 1982 ) .....  64

Trout V. Hidalgo, 517 F. Supp. 873
(D.D.C. 1981) .............  64

Turner v. Fouche, 396 U.S. 346
(1970) ...............   73

Turner v. Texas Instruments, Inc., 555 F.2d 1251 (5th Cir.
1977) .....................

Valentino v. United States Postal 
Service, 674 F.2d 56 (D.C.Cir. 1982) ................

Washington v. Davis, 426 U.S. 229 (1976) ....................
Wells V. Harris, 1 Merit Systems 

Protection Board Decisions 199 (1979) ................
Williams v. T.V.A., 552 F.2d 691 

,(6th Cir. 1977) ...........
Womack v. Munson, 619 F.2d 1292(8th Cir. 1980) ...........
Wright v. National Archives Records 

Service, 609 F.2d 702 (4th Cir. 1979) ......................
Statutes
Civil’Service Reform Act of 1978;

P..L. 95-454; 92 Stat. 1111 ...
Equal Employment Opportunity Act of 1972, Section 717 ..........

80

65

72

68

48

81,82

80,83

41,50

passim

- IX -

- Vlll -



5 U.S.C. §§ 1206 ...............
5 U.S.C. §§ 2302(b)(1)(A) ......
5 U.S.C. §§ 2302(d) ............
5 U.S.C. § 4302(b)(1) ..........
5 U.S.C. §§ 4313(5) ............
5 U.S.C. §§ 7121(d) ............
5 U.S.C. §§ 7201 ...............
5 U.S.C. §§ 7702 ...............
5 U.S.C. § 7702(e)(1) ...........
42 U.S.C. § 2000e-16 ............
P.L. 97-205; 96 Stat. 135 .......
Other Authorities
Bartholet, Application of Title VII 

to Jobs in High Places, 95 Harv. L. Rev. 947 (1982) ..........
C.C.H. Employment Practices

Guide II 5046 (1977) . .’.....

C.C.H. Employment Practices
Guide II 5327 (1975) .......

Executive Order 11478
Federal Personnel Manual, Chap.300.......................

Page

65
65
66 
66 

66
65
66 

65 
50

passim
69

•If;, ̂

107

46

44
56

93

Page

Hearings before the General Subcom­
mittee on Labor of the Committee on Education and Labor - House 
of Representatives, Washington,D.C., December 2, 1969 ...  S2

Hearings before the Labor Subcom­
mittee of the House Committee on 
Education and Labor, March 3,1971 ...................... 63

Hearings Before the Subcommittee on 
Labor of the Senate Committee 
on Labor and Public Welfare,
Oct. 4, 1971 .............. 43,63

Hill, "The AFL-CIO and the Black 
Worker: Twenty-five Years After the Merger", 10 
Journal of Intergroup Rela­tions 5 ( 1982) ............ 47

H. Rep. No. 92-238 (92d Cong., 1st
Sess. 1971) ............... 57,60,61

117 Cong. Rec. 32 (1971 ) ........ 61
1978 U.S. Code Cong. & Adm. News,

P. 9795 ................... 41
President's Reorganization Plan No.

1' 1978 .................    41,65
Ralston, "The Federal.Government as 

Employer: Problems and Issues
in Enforcing the Anti-Dis­
crimination Laws," 10 Ga.L. Rev. 717 (1976) ......... 51

S. Rep. No. 92-415 (92d Cong., 1st
Sess. 1971) ............... 54,56,57,

58,60,61



I

No. 81-1044 
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1981

UNITED STATES POSTAL SERVICE BOARD OF GOVERNORS,
Petitioner,

V.

LOUIS H. AIKENS,

On Writ of Certiorari to The United 
States Court of Appeals For The 
District of Columbia Circuit

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the district court 
(Pet. App. 49a-59a) is not reported. The 
initial opinion of the court of appeals 
(Pet. App. 17a-40a) is reported at 642 F.2d



W ■
- 2 -

514. The opinion of the court of appeals 
on petitions for rehearing (Pet. App. 
43a-48a) is not reported. The order of 
this Court vacating the initial judgment of 
the court of appeals and remanding for 
reconsideration (Pet. App. 10a-14a) is 
reported at 453 U.S. 902. The opinion of 
the court of appeals on remand (Pet. App. 
2a-9a) is reported at 665 F.2d 1057. 

JURISDICTION
The judgment of the court of appeals 

(Pet. App. la) was entered on September 8, 
1981. The petition for a writ of certi­
orari was filed on December 4, 1981, and
granted on March 22, 1 982 (J.A. 12). The
jurisdiction of this Court rests on 28 
U.S.C. 1254(1).

STATUTE INVOr.VKn
This action involves 42 U.S.C. §2000e- 

16, the full text of which is set out in 
the appendix to this brief.

- 3 -

STATEMENT OF THE CASE 
Respondent generally agrees with 

petitioners' statement of the procedural 
history of this case. In order to put the 
legal questions raised by this case in 
their proper context, however, a full 
statement of the facts herein is necessary.
A. Bac)cqround

Respondent, Louis H. AiJcens, is a 
Black man who began his employment with the 
Post Office in Washington, D.C. in 1937. 
He was promoted to his first supervisory 
position in 1952; until 1960, he held 
variogs jobs at the level of foreman. From 
1960 to 1966, he received six promotions 
that raised him from the foreman level 
to the level of Assistant Director, Opera­
tions Division for Transit Mails. He was 
the first Black to be at that level; until 
1973, only whites were above him. Between



- 4 -

1966 and 1 973, there were four positions 
in the Washington, D.C. Post Office that 
were ranked above PFS-15, During that 
period, several white employees, all with 
less seniority and experience than Aikens, 
were promoted and/or detailed above him.

After the Job Evaluation Program (JEP) 
in 1 973 ,“^ Aikens' job was rated at 
grade PES-20; however, following the 
implementation of the Job Evaluation 
Program, several additional positions were 
rated above Aikens' job and several junior 
white employees received details or promo­
tions above Aikens. In 1974, Aikens was 
upgraded twice, once by virtue of a

2/ The Postal Service's Job Evaluation Program resulted in a revision of the 
agency's grade structureWhereas before 1973 the grades ranged from 7 to 18, 
afterwards they ranged from 15 to 29 in the 
professional and supervisory positions 
in the Washington, D.C., post office.

i m

M.r-i-1 Vs ■
- 5 -

promotion and once pursuant to a "detail" 
(temporary assignment). Between 1966 and 
1974, however, Aikens was neither detailed 
nor promoted above his Assistant Director 
position. His failure to be promoted or 
detailed during this latter period formed 
the basis of this Title VII suit. (App. E, 
18a-19a).-/

Aikens filed an Equal Employment 
Opportunity complaint with the Postal 
Service on January 4, 1974, alleging, inter 
alj^, that the Postal Service's failure to 
promote and/or detail him to higher level 
positions during the entire eight year 
period, from 1966 until 1974, constituted 
racial discrimination of a continuing 
nature. (]M. , 19a, 19a, n.1.) However,
because of the time limitations in the EEO

2/ "App. E" refers to the appendix filed in the court of appeals below.



-  6 -
3/regulations, administrative and judicial 

review was focused only on Aikens' failure 
to be promoted to four positions for which 
promotions or details had occurred within 
thirty days of the complaint. The four 
positions in question were Mail Processing 
Officer; Acting Mail Processing Representa­
tive; Director, Operations Division; and 
Customer Services Representative. (id. 
19a-20a.)

B. Selection procedures for details to
higher level positions
The procedure for supervisory promo-

3/ 5 C.F.R. §713-214 (1974) (now, 29
C.F.R. §1613.214) provided that only 
matters occuring within 30 days of the 
time an EEO Counselor was contacted would 
be considered as part of the EEO complaint. 
Matters outside that time could, however, 
be considered as background. Evidence 
concerning earlier matters was introduced at trial on that limated basis. The 
correctness of the .lower courts' holding 
that the judicial complaint should be limited to the four latest positions is not at issue here.

I
m;: - 7 -

tions required that the employee state on a
Postal Service form 1717 any job in the
Washington, D.C. Post Office for which

4/he wanted to be considered (Tr. 167).~ 
The plaintiff had form 1717s on file for 
all jobs above his position of Assistant 
Director, Operations Division, and he was 
interested in being promoted or detailed to 
any position above his level 15 prior to 
JEP, and to any job above level 22 subse­
quent to JEP in March, 1973 (Tr., 67, 86,
90, 91, 132).

The Washington, D.C. Post Office did 
not post or solicit interested personnel to

I

fill details; individuals were selectedt
by higher level supervisors (Stip. 32;
J.A.10) 5/ The administrative procedure

4/ 'Tr" refers to the trial transcript.
5/ "Stip" refers to the stipulation of 
facts entered into evidence as plaintiff's 
Exhibit 4 (Joint Appendix, 6-11)



-  8 -

to assign a management official to a detail 
involved only the preparation of POD Form 
1723, "Assignment Order", signed by an 
official with authority over the vacant 
position; the normal procedure was to 
detail an employee for period not to exceed 
89 days, but the detail could be extended 
by another Form 1723 (Stip. 18; J.A. 8). 
Details were to be renewed only one time 
after the initial 89 day period, but the 
Postal Service had people who stayed on 
detail for years (Tr. 69, 108).

The managment officials responsible 
for selecting employees to be promoted 
and/or detailed into positions higher than 
that which the plaintiff held from 1966 
until 1974 were the Postmaster (or Officer 
In Charge) and the District Postal Manager. 
During the relevant ̂ ime frame, these 
positions were held by Carlton Beall and

- 9 -

Ellsworth Rapee, both of whom were white. 
Details were made either by Beall or by 
Rapee with the concurrence of Beall. (Tr.
38, 216-217, 241, 314) 6/

C • The Treatment of Whites and Blacks.
It had long been a practice of the 

officials of the Washington, D.C. Post 
Office to select white employees for 
promotion or detail to higher level posi­
tions, even though they were not more quali­
fied than Black employees. While there 
had been an improvement in the makeup of 
the supervisory workforce, especially in

I
the period between the filing of the 
complaint in 1974 and the trial in 1979,

The position of District Postal 
Manager was superior to that of Postmaster. 
Beall held the position of postmaster until 
1971, when he became District manager. 
Rapee then was acting postmaster until the 
selection of a black male into the position on a permanent basis in early 1974 after 
respondent filed his EEO complaint.



^  -  10 -

the statistics ^  of February, 1974, showed 
that the percentage of white employees 
occupying higher level positions was much 
greater than the percentage of white 
employees in the employee complement 
of the Washington, D.C. Post Office. Thus, 
when the complaint herein was filed, less 
than 14% of employees were white.
Nevertheless, more than 48% of the super~ 
visors (including the postmaster) were 
white. (Stip. 3-4; J.A. 6.)-'' one of the

7/ As of February 7, 1974, the employee
complement of the Washington, D.C. Post 
Office totaled 8,634 employees, 7,403 
of whom, or 85.7%, where of a minority 
group background (Stip. 3). As of the above 
date, 84.3% of Category I employees 
(covered by the 1973 Natdonal Agreement) 
were of a minority group background; 64.9% 
of Category II employees (not covered 
by the Agreement and in pay levels 1-14, 
except Postmasters and Supervisors) were of 
a minority group background, whereas 
only 51.6% of Category IIX._ employees (not 
covered by Agreement and' in pay levels 15 
and above, including ' all Supervisors and 
Postmasters) were of a minority group

-  11 -

reasons that the percentage of black 
supervisory employees has Increased over 
the years was due to a decrease in the pool 
of white employees, which left managment 
with fewer opportunities to promote them. 
(Tr. 20-21, 247). Although the situation 
at the Washington Post office had Improved 
considerably and a Black appointed Post­
master in early 1974, these developments 
all took place after Aikens filed his 
initial EEO complaint in January 1974.

On August 27, 1966, Aikens was pro­
moted to the position of Assistant Direc­
tor, Operations Division for Transit Mails.
He was.not detailed or promoted above that

V  continued

“  should be noted
the appointment of ”  bllck JSstmletf

pr^^-^Brfev’ r ^  TpPS^f a n a l a g e r s ^ o ^ "



-  12 -

position until January 9, 1974, a period of 
more than seven years. (Stip. 6; J.A. 7). 
Upon his appointment to the position of 
Assistant Director in 1966, Aikens was the 
highest ranking black supervisor in the 
Washington, D.C., Post Office and remained 
so until January 8, 1972, a period of more 
than five years (Stip. 5; J.A. 7). No 
other black employee advanced above the 
level of the plaintiff until March, 1973, 
when William Gordon's position of Assistant 
Director, Operations Division for Local 
Services, was reclassified from PFS-15 to 
PES-23 (Tr. 128-129).

This upgrading occurred only nine 
months prior to Aikens' initial complaint 
and was due solely to the JEP reclassifica­
tion of job levels, not to a promotion 
action. During the ^same period, while 
respondent did not advance, the following 
whites, inter alia, all of whom were junior

- 13 -

to Aikens in supervisory seniority, contin­
ually progressed in their careers, being 
detailed or promoted to higher levels: 
Dominic M. Barranca, Francis A. Miller, 
Ellsworth H. Rapee, and Marvin G. Thomas 
(Stip. 7; J.A. 7). These same individuals 
ultimately occupied the four positions at 
issue in this case.

From August 1966 to JEP in March 1973, 
there were only four positions higher than 
Aikens' position in the Washington, D.C. 
Post Office: Director, Installation
Services (PFS-17); Assistant Director, 
Operations Division for Distribution 
(PFS-16); Director, Operations Division 
(PFS-17); and Postmaster or Officer In 
Charge (PFS-18). (Stip. 19; J.A. 8). 
During the same period, six white persons 
were detailed and/or promoted into one or 
more of the above positions a total



- 14 -

of 29 times (Stip. 20-22; J.A. 8-9).-^ 
From July 1971, when C.G. Beall vacat­

ed the Postmaster's position, until JEP 
in 1973 there was only one board for the

8/ The positions, persons detailed, and 
date of details were as follows (see, Stip 28 and 29; J.A. 9-10.

(a) Director, Installation Services;L.M. Lieb (07-26-71), (10-26-71),
(09-09-72 until retirement in December 1973).
(b) Assistant Director, Operations
Division for Distribution: L.M.
Lieb,* (05-04-7 1 ), ( 1 1-14~'71); E.C.
Ray,* (07-26-71), (10-22-71); F.A.
Miller, (05-26-73), (08-24-73),
(11-21-73); M.G. Thomas, (02-17-73), 
(05-17-73); D.M. Barranca,* (11-06- 
71), (09-08-72), 12-06-72); L.V.Bateman, Jr., (02-21-71).
(̂ ) Director, Operations Division; E.H. Rapee * (detailed 05-04-71 until 
promotion on 03-04-72), (03-04-72 to
06-23-72); E.C. Ray,* (06-24-72), 
(09-24-72), (12-23-72); D.M. Bar­
ranca,* (02-17-73), (05-17-73),(08-15-73), (11-12-73J. -

II *  n indicates those persons eventually promoted over respondent.

■Vi;*-. 
'K- ■

- 15 -

positions of Director, Operations Division 
and Assistant Director Operation Division 
for Distribution (Stip. 25; J.A. 9). 
Respondent Aikens (PFS-15) was the second 
choice of the Promotion Advisory Board for 
each of these positions, with the selec­
tions being forwarded to the Officer In 
Charge on February 25, 1972. (Stip. 26;
J.A. 9). This resulted in E.H. Rapee's 
promotion to Director, Operations Division 
(PFS-17) and in L.M. Lieb's promotion to 
Assistant Director, Operations Division for 
Distribution (PFS-16) on March 4, 1972
(Stip. 25; J.A. 9). That same Board ranked

t
D.M. Barranca (PFS-14) third behind Aikens, 
even though Barranca had been detailed to 
the position of Acting Assistant Director, 
Operations Division, for Distribution on 
November 6, 1971. (Stip. 27; J.A. 9).
Nevertheless, on September 8, 1972, only
six months after he had been selected below



- 16 -

A ikens for the above position by the 
Promotion Advisory Board, Barranca was 
detailed to the position of Assistant 
Director, Operations Division for Distribu­
tion. (Stip. 31; J.A. 10).-"̂

During the same period, subsequent to 
the promotion board in February 1972 which 
resulted in the promotions of Lieb and 
Rapee to the positions of Assistant Direc­
tor, Operations Division for Distribution 
and Director, Operations Division, respec­
tively, both were detailed to other jobs, 
which left the above positions open for 
details by others. Under the circum—

Both Lieb and Rapee subsequently were 
detailed to new jobs within a short period 
of time after their promotions of March 4, 
1972; Lieb was again detailed on September 
9, 1972, to Acting Director, Installation 
Services, where he remS^ined until his ^stirement in December 1973, and Rapee was 
detailed to the position of Officer In 
Charge on June 24, 1972, where he remained 
until January 1974. (Stip. 30; J.A. 10).

- 17 -

stances, the evidence shows that, at those 
times, Aikens would have been the individ­
ual most qualified to be detailed and/or 
promoted to the Director, Operations 
Division position, or at the very least, to 
the position of Assistant Director, Opera­
tions Division for Distribution. Yet once 
again, his white colleagues were detailed

c

while Aikens remained frozen in the same 
position he had occupied since 1966 (see, 
Stip. 21-24; J.A. 8-9).

On March 3, 1973, Aikens' position.
Assistant Director, Operations Division for 
Transit Mails was reclassified to PES-20 
under JEP (Stip. 37; J.A. 10). As a result 
of the position being ranked at PES-20, he 
was no longer eligible for the position of 
Postmaster, Washington, D.C. (Stip, 38; 
J.A. 11). In the nine months between JEP 
and Aikens' promotion on January 9, 1974 to



- 18 -

PES-21, he appealed the PES-20 rating.— '̂ 
The testimony showed that Aikens 

wanted to be promoted to a level PES-23 or 
above, since this would keep him in conten­
tion for the Postmaster's job, but not to a 
level below PES-23, since he felt this 
would jeopardize his reclassification 
appeal. (Tr. 74, 81-82). Subsequent to
JEP, Aikens was not detailed or promoted to 
one of several unfilled higher level 
positions for which he was qualified and 
which would have placed him at a level 
which was within the area of consideration 
for Postmaster, even though junior white

10/ The higher job classification, which 
Aikens sought when his position was rated 
PES-20 instead of PES-23, was delayed 
during that period even though a position 
as head of a facility over which Aikens had 
supervisory responsibility "was rated at a level higher than that" of Aikens'. (Tr. 69, 70, 249; PI. Ex. 2. )

.** ■

- 19 -

males were placed in such pos it ions.
Daniel J. Thomas, white, who was 

Aikens' Administrative Assistant from 1969 
until approximately 1974 (Tr. 195), indi­
cated that Aikens was a capable manager and 
that the "operations that [Aikens] con­
trolled were very efficient" (Tr, 202). 
Thomas observed that all the individuals 
being detailed or promoted above Aikens 
were white and he questioned why Aikens was 
not promoted. He considered the possibil-

11/ The following white persons were 
detailed and/or promoted to positions at 
the following levels higher than Aikens' level .(PES-20); F.A. Miller (PES-22); C. 
Errico (PES-26); M.G. Thomas (PES-26); D.J. 
Robertson (PES-24); A.J. Eckerl (PES-21); 
J.J. Spelta (PES-23),- W.E. Hahn (PES-22) 
(Stip. 24; J.A. 9). F.A. Miller was also 
detailed three times to the position of 
Assistant Director, Operations, and D.M. 
Barranca was detailed three times to the 
position of Director, Operations Division. 
(Stip. 21-22; J.A. 8-9) Another example 
was the position of Manager of Personnel 
(PES-23) on September 29, 1973, in which
A.J. Eckerl replaced D.J. Robertson, who



,  -  20 -

ity that race was a factor in Aikens not
receiving promotions or details to higher

. . 12/level positions.

D. Co mparison of Aikens and his— wh i te 
coD-eaques.
In The Findings and Recommended 

Decision (November 12, 1975) in this case
at the administrative level the EEO Com­
plaints Examiner stated at page 6: "In a

1 1/ continued
was promoted to Employee and Labor Rela­
tions Specialist (PES-24), for which Aikens 
also was qualified. Management was willing 
to laterally transfer Aikens to the Manager 
of Personnel position sometime in 1971, 
when it was rated PFS-15, but not promote 
him to that position in September 1973 when 
it was rated PES-23. (PL. Ex. 3d, 31; Tr. 
319-322).
12/ Thomas stated that "these were people 
^ o  had worked for Mr. Aikens, the knowlege 
they had acquired in the Postal Service 
certainly came about as a result of their 
contact with him, and it was from my pointof view a strange coincidence that_thesê
people were promoted and he was in a slo_t 
at_a_^and_still" (Tr. 203) (Emphasis 
supplied).

I:
-  21 -

discrimination complaint case the crucial
consideration in analyzing issues is
comparative information of the treatment
afforded complainant and members of his
group (other similarly-situated Black
employees) and the treatment afforded
similarly-situated non-members of his
group. Consequently, I will not review
on the merits complainant's and the selec-
tees' comparative qualifications...
(Emphasis supplied) Similarly, during the
trial before Judge Hart, the court ruled
that plaintiff's witnesses could not
compare the plaintiff's capabilities with
those of his white colleagues unless that 

1witness had been a superior of the individ­
ual being compared. The only supervisors 
were Beall, Rapee, and whites they had 
promoted over respondent. The Court, in 
denying Counsel the opportunity to examine 
witnesses about }:heir opinions of their



-  22 -✓
supervisors, stated, "You have records here 
that show his qualifications, and appar­
ently he was well qualified. The question 
is not whether he was well qualified, the 
question is whether he was not promoted 
because of discrimination, not because he 
was qualified." (Tr. 173-176)

The record shows that Aikens partici­
pated in the first National Conference on 
Equal Employment Opportunity in the 
Postal Service in September 1967; subse­
quently he was Chairman of the Post­
master's E.E.O. Committee for a period of 
three years. At the time of filing his 
E.E.O. complaint he had been the E.E.O. 
Administrative Officer for the City Post 
Office for approximately two years (Stip. 
15; J.A. 8). It was during that period of 
time that Aikens did not advance beyond his 
position of Assistant'"Director, Operations 
Division for Transit Mails.

Ny-v-

■M-i 
.-.rv;

- 23 -

There was no derogatory or negative 
information found in plaintiff's official 
personnel folder to indicate that he had 
not fulfilled the requirements of his 
position (Stip. 11; J.A. 7). in 1968 
plaintiff was rated as "an outstanding 
supervisor whose management abilities were 
far above average" (Stip, 16; J.A. 8).

Of the four white supervisors who were 
placed into the positions at issue here, 
Miller completed 10th grade, Rapee completed 
11th grade, Thomas completed high school, 
and Barranca completed 8 months of college 
(Stip. 12; J.A. 7). Moreover, Carlton 
Beall, who was the Postmaster and later 
District Postal Manager during the relevant 
time period, had only completed the 10th 
grade (Stip. 12; J.A. 7). Aikens has a 
Master's Degree and had completed 3 years 
residence on his Ph.D. (Stip. 14; J.A. 7). 
Aikens had as many, or more, training and



-  24 -

development courses and seminars as did the 
four white supervisors (stip. 17; J.A. 8), 
and the four white supervisors were junior
to plaintiff in supervisory seniority 
(Stip. 7; J.A. 7).

A comparison of the POD Form,7's which 
contain transactions concerning promotions, 
details, and other pertinent information 
about the four white supervisors and Aikens 
<«• EX. 3A, 3B, 3F, 3G, and 31) i„ oon-
junctlon with Aikens' form 6802x (PI. e x . 

n  shows that the majority of the four 
white supervisors had no more experience in 
various positions than Aikens prior to 
their being promoted or detailed to posi­
tions above that of Aikens. m  fact, most
had less. 11/

No one, other than Aikens.

— A i k e n s  hac3 occuDi ef ^ f~ho i • 
et hods and F o r e m a n ;
c
Me
Tour Superinte?de'’„‘l"c^ Analyst; Assistant ^superintendent; Superintendent of Main

-  25 -

had any experience in the position of 
Assistant Director, Operations Division 
for Transit Mails, since that position was

13/ continued
Window Service; Tour Superintendent; 
and Assistant Director, Operations Division for Transit Mails (PI. Ex. 3A).
Dominic Barranca, who was appointed to the 
position of Director, Operations Division 
had formerly occupied the following positions; Foreman; Survey Officer; 
General Foreman; Assistant Tour Superinten­dent; Tour Superintendent; and Assistant 
Director, Operations Division for Distribu­tion (PI. Ex. 3B)
Francis Miller, who was appointed to the 
position of Acting Mail Processing Represen­
tative had formerly occupied the positions 
of Foreman; Survey Officer; General Fore­
man; Assistant Superintendent, AMF (under 
Aikens' jurisdiction); Tour Superintendent; Assistant Director, Operations Division for Distribution (PI. Ex. 3F).
Ellsworth Rapee, who was appointed to 
position of Customer Services Representa- 
tive, had formerly occupied the following 
positions: Foreman; Superintendent.Special Delivery Services; General Foreman; 
Assistant Tour Superintendent; Tour Super­
intendent; Director of Finance; Director, 
Operations Division; and Officer In Charge (PI. Ex. 3G).

t



- 26 -

continually occupied by him during the 
period in question.

In July 1972, Carlton Beall nominated 
three persons for the Postmaster position, 
none of whom was Aikens. Beall's first 
choice was E.H. Rapee, who had been de­
tailed to the position on June 24, 1972
(where he remained through January 4, 
1974). The Regional Office added Aikens' 
name as a candidate for Postmaster in 
1 972, feeling he was qualified for the 
position. (Stips. 23, 34, 35, 40; J.A. 7-
m  — / After Aikens' name was added in

13/ continued
Marvin Thomas, who was appointed to the 
position of Mail Processing Officer, formerly occupied the following positions: 
Foreman; Survey Officer; General Foreman; 
Assistant Superintendent, Registry; Assis- 
tant Director, Operations Division for

Manager, Quality Control

14/ No other names were^^^d^d, even though 
SIX or seven individuals were eligible.

-li.’ yr

V.'r‘; ..

- 27 -

1972 as a candidate, the list of four names 
was never submitted to the selection board 
during the nine month period when Aikens 
was eligible for consideration (Stip. 36; 
J.A. 10).

°̂ Experience as a factor in selection for higher level jobs. ~ ’
Although postal experience purported

to be the predominate qualification factor
considered for detail or promotion (Stip.
33; J.A. 1-9), Aikens, who had as much or
more varied experience than his white
colleagues, was never detailed and/or
promoted to a higher level position. The
testimony of both Aikens and Postmaster
Beall indicated that during the period from

r’'‘-

14/ continued
March 1972, in order to be eligible for the position of Postmaster, an 

employee was required to be in a level 15 
position and to have had six years of 
ex^te^nsive management experience (Tr.



- 28 -

1966 through JEP in March 1973, only two
positions were discussed with Aikens, that
of Director of Finance and Director of
Personnel, both of which would have been

moves and thus not promotions for
Aikens. Thus, Aikens was never offered a
promotion or detail above the PFS-1-5 rating
of his position as Assistant Director,
Operations Division for Transit Mails prior
to JEP (Tr. 78-80, 311, 315-316).--^

In discussing the importance of the
two positions, Beall stated that "anyone
who understands the personnel procedures
and helps to direct them is quite an asset
because 80 percent of our problems were

%

with people, ' and that the Work Measurement

Postmaster Beall, testifying about his 
discussion of the Finance position with 
Rapee, stated that "Mr. Rapee_said he would 
prefer not to take it, jDu't if I wanted him he would." (Tr. 319.) Although phrased 
^ l y , this was the same position Aikens took regarding the Personnel posi­tion.

xf-

'V'"-Y..
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-n-
I
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- 29 -

System under the Director of Finance "... 
really was the crux of the total management 
responsibility" (Tr. 312). However, Beall 
also testified that those jobs (i. e. Per­
sonnel and Finance), while they would 
broaden someone's experience in the Postal 
Service, were not absolutely necessary (Tr. 
318). In fact, most of the white indivi­
duals promoted or detailed above the 
plaintiff did not have any experience in 
either one of those areas.— ^

J_6/ Of the four white supervisors, Rapee, 
Miller, Thomas and Barranca, who were placed into the positions at issue, 
none w’as ever Director of Personnel, and 
Ellsworth Rapee was the only one to occupy 
the position of Director of Finance. 
Beall, when testifying as to why he "of­
fered" those positions to Aikens, stated that Aikens had "a good formal education 
... good knowledge of the Postal Service, 
and I though he could effectively handle 
this...." Beall, however, did not think Dominic Barranca "was equipped to handle 
that particular type of assignment...." 
Beall also stated that he didn't discuss 
the positions with Francis Miller or Marvin



- 30 -

Even though former Postmaster and 
District Manager Beall testified, he never 
gave any reasons as to why plaintiff 
was not promoted or detailed above the 
position of Assistant Director, Operations 
Division for Transit Mails. The entire 
record clearly shows that the plaintiff was 
qualified for any position in the Washing­
ton, D.C. Post Office, up to the Post­
master s position, and that he was inter­
ested in being promoted and/or detailed to 
higher level positions. Although few 
comparisons were made by witnesses as to 
the relative capabilities of the plaintiff 
and his white colleagues, what little there 
was, in conjunction with the personnel

J_6/ continued
Thomas either because "it was a very 
important assignment ... and I was inter­
ested in the people that were best quali­
fied for the job.... Naturally, you would 
use what you consider the best equipped." (Tr. 318-319, 321-322.)

'v;

'i ■ ■

- 31 -

records, shows that the plaintiff was at
least as qualified, if not more so, than
the whites who were continually being
promoted and/or detailed to higher level 

17/positions.—
The promotions that Aikens received in 

1974 also attest to his qualifications to 
perform work at higher levels of employ­
ment. Only a few days after Aikens had 
filed his employment discrimination com­
plaint in January 1974, he received a 
promotion to Area Logistics Manager, ranked 
at job grade PES-21, Shortly thereafter, 
he was detailed to the position of Assis-

y

tant Manager of Distribution, PES-24. 
(App. E, p. 23a).

J_7/ For example, Louis Thompson indicated that Francis Miller was deficient in 
communication because it was necessary for 
him (Thompson) to "write all [Miller's] 
letters for him because he couldn't write a decent report." (Tr. 228).



- 32 -✓

F• Anecdotal Evidence - Remarks That Be­
tray Prejudice or Stereotyped Thinirinq
Petitioner has suggested that "anec­

dotal" evidence has often been used to show 
that supervisors have betrayed a predispo­
sition towards discrimination (Brief, p. 
25)o Respondent introduced such evidence, 
which the trial court did not mention when 
it held that plaintiff had failed to make 
out a prima facie case. All the testimony 
concerned Carlton Beall, who as Postmaster 
and District Manager, essentially 
controlled all selections to higher level 
management positions.

Mr. Louis Thompson, a Black super­
visor, testified that Mr. Beall once made«
the following statement to him about 
blacks: "All they want to do is to lay
around and breed like yard dogs and collect

_1_8/ See n.6, supra,

■

'P
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JV-

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- 33 -

relief checks" (Tr. 220). His perception 
of Beall, was that he "was operating on an 
1865 concept .... would only want black 
janitors. He very reluctantly gave any 
ground as far as I could see.... I dealt 
with him quite frequently and while we 
didn't always agree I think he had a 
contempt for black people. I still think 
he has." (Tr. 219-220).

Mr. William F. Moore, Jr., a white 
supervisor, testified that Mr. Beall was 
always making remarks about Blacks. In 
particular he remembered Mr. Beall remark­
ing to an all white group at a meeting. 
"Yoil know, they don't have to set (sic) in 
the back of the bus anymore" (Tr. 250-251). 
Mr. Malcom Christian, a black supervisor 
testified that Mr. Beall referred to black 
people as "'that crowd' practically all the 
time ...," and that he frequently made 
sarcastic comments about Mr. Aikens educa-



- 34 -

tion. (Tr. 252-254.)
Despite all of this evidence, most 

of which was based on stipulated, and 
therefore undisputable, facts or official 
personnel records, the district court 
held that plaintiff had not even made out a 
£r _i m a facie case of discrimination. 
It is the holding of the court of appeals 
that this constituted error that is the 
issue presented here.

Summary of Argument 
I.

The positions advanced by petitioner 
are founded upon a lack of appreciation of 
the nature and extent of employment 
discrimination. If adopted, they would 
result in the effective overruling of 
McDonnell Douglas v.,Gteen, 411 U.S. 792 
(1975), and a substantial weakening of 
Title VII as a remedial statute.

- 35 -

II.
The legislative history of the Equal 

Employment Opportunity Act of 1972 demon­
strates Congress' concern with the perva­
siveness of discrimination in employment in 
American society. The protections of Title 
VII were extended to federal employees 
because of findings that minorities and 
women continued to be excluded from high 
level positions throughout the government. 
Effective enforcement of the Act's provi­
sions are necessary to root out this 
entrenched discrimination.

III.
McDonnell Douglas v. Green and its 

progeny have proved to be effective tools 
to address claims of employment discrimina­
tion. The lower courts have applied the 
prima facie analysis in a flexible manner 
to address the facts in particular cases.



- 36 - 37 -

Therefore, its continued vitality and use 
are essential to the vigorous enforcement 
of Title VII„

IV,
The decision of the court below was a 

correct application of McDonnell Douglas v. 
Green to the facts in this case. Plaintiff 
clearly established a prima facie case, and 
the decision should be affirmed.

ARGUMENT
'I.

Introduction
Although ordinarily the brief for 

respondent would focus on the arguments 
made by the petitioner, we feel it incum­
bent to discuss a number of issues raised 
by the present case not touched upon in the 
Government's Brief to any substantial 
degree. As will be^^,veloped in detail 
below, there is a fundamental disagreement 
between the views of the respondent and the

Congress of the United States, on the one 
hand, and the Government and its supporting 
amici on the other, with regard to the 
extent and seriousness of racial discrimi­
nation in employment in the United States.

The general thrust of the briefs of 
the Government and amici is that Title VII 
is something of a nuisance to employers. 
Discrimination based on race, sex and other 
prohibited categories is not, in their 
view, a-serious problem. Nevertheless, em­
ployers and labor unions are unduly besieg­
ed by lawsuits that misuse Title VII to 
attack non-discriminatory, race-neutral, 
and fair employment practices. Thus, they 
arfe seeking from this Court rules which 
would make it difficult, to the point of 
near impossibility, for plaintiffs to bring 
or maintain actions under Title VII.

Although they do not explicitly so 
state, they in reality are seeking the

■



- 38 -
✓

overruling of McDonnell Douglas Corp. v 
G r ^ ,  411 u.S. 792 (1975) and its prog-

Jl/eny, at least insofar as those decisions 
provide a straight-forward and expeditious 
way for a plaintiff to establish a prima 
faci^ case of discrimination, and thus to 
permit a court to move to an investigation 
of the employment practices which have 
given rise to the complaint. They seek 
insulation from having to defend employment 
practices by requiring the plaintiff, 
as a condition of simply going forward with 
his or her case, practically to prove the 
entire case. in essence, they wish to 
avoid having even to start mounting a 
defense to a charge of discrimination 
unless they already know that they have

iP^nco Construction Coro, v. Waters. 38 U.S. 567 (1978); Board of Trustees of
College v. Sweeney. 439 U.S. 24 

j. . Texas Department of Community Af-fairs V. Burdine, 4T 6 u.S. 2T 8 0 9 8 1 7 .

Bi:
■/i"'

’i'Au I

&

- 39 -

virtually no defense at all.
Respondent suggests that the adoption 

of these views, which are typical of 
defendants in Title VII cases, will turn 
the statute on its head. The rules urged 
by petitioner essentially presuppose that 
there is no discrimination in employment 
and that the plaintiff has a heavy burden 
to prove otherwise. Of course, as McDon­
nell Douglas and its progeny fully recog­
nize, the .ultimate burden of proof in a 
particular employment discrimination case, 
as with any other type of civil litigation, 
rests with the plaintiff and we do not seek 
to escape that burden. However, the rules 
by whi-ch a prima facie case can be estab­
lished in these cases stem from the Court's 
sensitivity to and awareness of the so­
cietal concerns that led to the passage of 
Title VII in 1964 and its expansion in 
1972.



- 40 -

The Acts reflect a national consensus 
that discrimination based on race and sex 
has been a pervasive problem in American 
society. Moreover, one of the main foci of 
that problem was employment, in which 
Blacks, other minorities, and women were 
consistently relegated to lower paying 
positions regardless of their qualifica­
tions or merit, and where, conversely, 
white males enjoyed special privileges and 
benefits. Given the pervasive and all 
encompassing nature of the problem. Con­
gress not only enacted Title VII in 1964, 
but strengthened it and broadened its scope 
by the Equal Employment Opportunity Act of 
1972. Section 717, which extended Title 
VII's provisions to federal government 
agencies, was enacted because of findings 
by Congress that the federal government had 
failed in its constitutional duty to 
correct discrimination in its own ranks.

- 41 -

Even subsequent to 1972, when it
enacted the Civil Service Reform Act of 

20/19/8 and approved reorganization measures
dealing with the enforcement of federal 

2 1/sector EEO, Congress found that dis­
crimination and the lack of equal employ­
ment opportunity was still a serious

2 2/problem in the federal government.—  
Of course. Congress has done nothing 

to date to indicate it has changed its view 
as to the seriousness of discrimination in 
the federal sector; nor has it done any­
thing to indicate that discrimination among

I

private employers and state and local

2^/ P.L. 95-454; 92 Stat. 1111.
2^/ President's Reorganization Plan No. 1, 1978 (1978 U.S. Code Cong. & Adm. News, p. 9795).
2^/ See, Part II, infra, for a discussion of the 1978 Act.



- 42 -

government agencies has ceased to be a 
serious problem. If, however, the views of 
the government and its amici are adopted, 
there will be a judicial weakening of a 
statute enacted and reenacted by Congress 
as a matter of considered judgment. We, 
therefore, respectfully suggest that the 
approach taken by petitioner must be re­
jected. As we will show, the decision be­
low is fully consistent with the decisions 
of this Court and with the purpose of Title 
VII. Therefore, it must be affirmed and 
the case remanded to the district court for 
further proceedings.

Before proceeding with the discussion 
of the pertinent legislative history and 
its relevance to the issues presented 
herein, however, we believe it is necessary 
to put the position taken by the government 
in the present case in its historical 
context. The government opposed the

- 43 -

K

'4“ .

iv*-'

I
:

f-■f;'

V:.fi/;'
M:

p
I

passage of § 717 in 1 9 7 2 oiiowing its 
enactment the government, primarily through 
the Civil Division of the Department of 
Justice and the offices of the United 
States Attorneys acting as defense counsel, 
vigorously sought to restrict the enforce­
ment of Title VII against it by taking a 
series of positions which would have 
limited the judicial remedies available to

f

The Civil Service Commission testified against the passage of Section 11 of
S.2515, the original version of § 717. 
See, Statement of Irving Kator, Assistant 
Executive Director, U.S. Civil Service 
Commission, in Hearings Before the Subcom- 
^ittee on Labor of the Committee on Labor and Public Welfare, U.S. Senate, Oct. 4, 6 
and 7, 1971, pp. 297-304. The CSC's
opposition focused on two points: (1) thetransfer of authority over federal EEO to 
the Equal Employment Opportunity Commission 
(later deleted from the statute); and (2) 
the need for establishing the right of 
federal employees to obtain judicial relief for discrimination. At the same time the 
CSC opposed Section 11, of S.2515, it 
expressed support for H.R. 1746 which, as 
it passed the House, had iio provis ion 
similar to § 717 covering federal employees.



- 44 -

federal government employees and which 
would have placed the government in a 
favored position with regard to both the 
procedural and substantive rules governing 
such actions.

The sequence of cases and strategy
employed by the government to limit the
scope and effectiveness of Title VII is a
long one and can only be summarized here.
The keystone of the government's assault on
Section 717 was its argument that federal
employees, unlike all others, were not
entitled to a trial de novo when they
got in court. From this argument flowed
arguments that federal employees were not

' 24/entitled to maintain class actions, re- 
,  ̂ 25/ceive counsel fees,—  or obtain other

24/ See, Pointer v. Sampson, 62 F.R.D. 689 
(D.D.C. 1974).
25/ See, Letter from Irving Jaffee, Acting 
Asst. Attorney General to Senator John 
Tunney, May 6, 1975 (reprinted in C.C.H.,
Employment Practices Guide II 5327 (1975)),

t ’

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- 45 -

types of relief except under narrow 
26/circumstances.

The government lost the trial ^  novo
battle as a result of this Court's decision
in Chandler v. Roudebush, 425 U.S. 840 

27/(1976).—  Following Chandler the govern­
ment took, for the first time, an enlight­
ened view of Section 717, and announced 
that as a general policy it would not argue

26/ See, Day v. Mathews, 530 
(D.C. Cir. 1976).

F.2d 1083

27/ In other litigation the government was 
forced to change a number of its rules 
relating to the administrative enforcement 
of Ti’tle VII. Thus, the government was 
ordered to permit the filing of class 
action complaints administratively. 
Barrett v. U.S.C.S.C., 69 F.R.D. 544 (D.D.C. 
1975). Court action was similarly required 
to bring about the reform of practices such 
as the refusal to grant attorneys' fees for 
work done during the administrative process( S miJt _C a 1_ j. f̂  ̂n o , 446 F. Supp. 530
(D.D.C. 1978); see. New York Gaslight Co.
V. Carey, 447 U.S. 54, 61, n.2 (1980)), and 
to impose proper rules for granting relief once there had been an administrative 
finding of discrimination.



- 46 -
✓

that it was subject to special rules. It 
abandoned its position with regard to class 
actions and stated that it would no longer
argue that different types of relief were

28/available to nongovernment employees.—
This approach was, unfortunately,

short lived. More recently the government
has argued, for example, that the rules for
calculating attorneys' fees in Title VII
cases should be different when the govern-

2 9/ment is defendant, that a federal court

28/ The change in policy was announced 
after Chandler and a series of appellate 
court decisions holding that federal 
employees had the same right to maintain 
class actions in Title VII cases as did all other employees (Eastland v. T.V.A., 
553 F.2d 364 (5th Cir. 1977); Williams v.
T.V.A. , 552 F.2d 691 (6th Cir. 1977 )).
See, Memorandum for United States Attorneys 
and Agency General Counsels Re; Title VII 
Litigation, from Attorney General Griffin 
B. Bell (Aug. 31, 1977) (reprinted in CCH
Employment Practices, 5046 ( 1977 )).
2 9/ See, Copeland v. ̂ a^hall, 641 
880 (D.C. Cir. 1980). F.2d

- 47 -

should not enforce a final administrative 
decision in a complainant's favor,— “̂and, 
successfully to date, that federal employ­
ees, unlike all others covered by Title 
VII, cannot receive adjustments in back pay
awards to account for the factor of infla-
 ̂ o , • 31/tion or other delays in payment.—

The point to be made in recounting
this history is that the government as a
defendant in Title VII actions has been
less than 'enthusiastic about the statute,
and the positions it takes in its Brief

32/here reflect that attitude. Indeed, it

30/ See, Houseton v. Nimmo, 670 F.2d 1375 (9th Cir. 1982)..
31/ See, Saunders v. Claytor, 629 F.2d 596 
(9th Cir. 1980); Blake v. Califano, 626 F.2d 891 (D.C. 1980).
32/ The government's lack of enthusiasm 
has generally been shared by its amici. 
See, e.g., Hill, "The AFL-CIO and The Black 
Worker: Twenty-five Years After the Mer­
ger", 10 Journal of Intergroup Relations 5, 36-44, 53-58 (1982).



- 48 -

is noteworthy that the brief contains
virtually iio discussion of the legislative

33/history of either the 1964 or 1972 Acts,—
nor any discussion of Congress' findings,
purposes, and concerns in enacting them.
Rather, it to a large extent consists of a
discursive account of alleged difficulties
employers have in selecting employees and
in defending Title VII cases.

V7e suggest that the picture painted by
the government and its amici is simply
inaccurate. Employers are not overburdened
by defending Title VII cases. Indeed, if
anything, the volume of cases is too small
given the extent and nature of employment

«
discrimination in our society. The rela­
tively low number of cases is a reflection 
of the inequality of burdens in these

33/ Petitioner's entire discussion of the 
history of the 1972 Act is found in note 19, p. 24, of its Brief.

■M-i

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- 49 -

cases. Bringing a Title VII action against
an employer, particularly when that
employer is an agency of the government of
the United States, is an intimidating
proposition beyond the resources of most
employees. In an individual case of
discrimination, a federal employee is
faced with overwhelming counter-resources,
including attorneys from the United States
Attorney's office, agency counsel, and, in
many instances, lawyers from the Department

34/of Justice itself. Ordinarily, vir­
tually all of the relevant information 
is in the hands of the agency, which is

I

defended by attorneys expert in the use of 
the federal rules to their advantage.

34/ Unlike private and state and local 
government employes, the federal employee 
stands alone. There is no public attorney 
general to aid in prosecuting his lawsuit. See, Parker v. Califano. 561 F.2d 320, 331 
(D.D.Cir. 1977).



- 50 -

Contrary to the government's unsup­
ported assertions, a typical federal 
employee case goes into court either after 
there has been virtually no processing of 
his EEO complaint, or after a decision 
of the agency charged that it has not been 
guilty of discrimination. Thus, the 
government, at pages 26-27 of its Brief, 
makes a number of claims concerning the 
administrative processing of federal EEO 
complaints. Any suggestion that this 
administrative process has proved generally 
successful as a means for rooting out 
employment discrimination in the federal

3_5/ Section 717 permits a -federal employee 
to file in court 180 days after filing the 
administrative complaint if there has been 
no final agency decision. Although this 
provision was enacted because of Congress' concern over delays in processing federal 
EEO complaints (see the parallel provisions 
in the Civil Service Refo'rm Act of 1978, 5
U.S.C. § 7702(e)(1)), most agencies take 
substantially longer on the average to 
process complaints. Therefore, many court 
complaints are filed prior to hearings or final decisions.

-  51 -

sector is supported neither by fact nor in
36/counsel's experience.

In any event, this Court held similar 
assertions by the government irrelevant in 
Chandler v. Roudebush, supra, given Con­
gress' intent to provide federal employ­
ees with the same broad rights in court as 
those enjoyed by all other employees. Any 
argument that more stringent burdens should 
be imposed on federal employees for them to 
establish a prima facie case because of the 
purported, but illusory, benefits of the 
administrative process should similarly be 
rejected.

36/ See, Hackley v. Roudebush, 520 F.2d T08, 137-141 (D.C. Cir. 1975); Ralston,
"The Federal Government as Employer: 
Problems and Issues in Enforcing the Anti-Discrimination Laws," 10 Ga. L. 
Rev. 717 (1976); Brief of the NAACP LegalDefense and Educational Fund, Inc., as 
amicus curiae, in Chandler v. Roudebush, 
425 U.S. 840 (1976).



-  52 -

If the employee has had resources to 
hire counsel, or has been fortunate enough 
to find an attorney willing to take the 
case without fee contingent upon eventually 
prevailing, there may have been developed 
during the administrative process some 
reasonably decent record. This is often, 
however, not the case and extensive dis­
covery, expenditure of funds, and legal 
resources are necessary to flush out the
information necessary to proceed with the 
case.

A substantial number of litigated 
cases are resolved in favor of the govern­
ment; a large number more are never brought 
or. If they are, are settled early be­
cause of problems in the case or lack 
of resources on the part of the plaintiff.
By and large those cases that get to trial 
are ones in which th^e-rip loy ee has a 
substantial case, and not ones where he or

I:
IV'-'

I
f

ft

r..

» ■

-  53 -

she can do no more than simply make 
out a prima facie case of discrimination. 
Thus, the alarms raised by the government 
as to why the rights of plaintiffs need to 
be further cut back are simply false 
ones.

Finally, we suggest that it is even 
somewhat unseemly for the federal govern­
ment to be seriously arguing that it is an 
unnecessary burden to it that its employees 
be permitted to challenge decisions made by 
it on the ground that they may be the 
result of discrimination. We believe 
rather, with Congress, that the govern­
ment'^ proper role is to serve as a model 
for the rest of society and all other 
employers in its diligence and concern to 
root out unlawful discrimination in every 
respect as it relates to its own employ-



- 54 -
37/ees. Without such an example by those 

charged with enforcement of the laws, it 
can hardly be expected that private 
employers will take seriously their own 
responsibilities.

22/ As the Senate Report on the 1972 Act noted;
The Federal government, with 2.6 
million employees, is the single 
largest employer in the Nation. 
It also comprises th|e central policy­
making and administrative network for 
the Nation. Consequently, its poli­
cies, actions, and programs strongly 
influence the activities of all other 
enterprises, organizations and groups. 
In no area is government action more 
important than in-^'he area of civil rights. X

S. Rep. No. 92-415 (92d Cong., 1st Sess.), p. I z .

- 55 -

II.
The Legislative History of the Equal 
Employment Opportunity Act of 1972 
Supports the Continuing Vitality of 
McDonnell Douglas v. Green and The 
Decision of the Court Below. ____

It is clear from the legislative 
history of the Equal Employment Opportunity 
Act of 1972 that when Congress decided to 
make Title VII fully applicable to federal 
agencies it was concerned not only with the 
exclusion of minorities from the federal 
service,’ but specifically with their 
exclusion from high level positions. 
Congress addressed these problems in three 
main 'ways. First, it expanded the powers 
of the United States Civil Service Commis­
sion and mandated that it provide effective
administrative enforcement of the EEO

38/complaint process At the same time.

38/ 42 U.S.C. § 2000e-16(b).



-  56 -

It provided federal employees for the first 
time, the clear right to go to court to 
enforce not only their rights under Title 
VII, but also their pre-existing rights 
under Executive Order 11 478 .— ^ Finally 
Congress mandated that all federal agencies 
institute effective affirmative .action 
programs, including training to permit all 
employees to reach their full potential, in 
order to upgrade the positions of minori­
ties and women in the federal service.— /

STs .a !? 425'S.'sf 820°u 976k ''
£2./ 42 U.s.c. s 2000p-lfî ĥ  Athe effort to orovi^o ^employment oddot -̂  equality of
servlc/e CongrllraJso " a*'" f^'^^alService Commission with the*̂ r̂  the civil Of examining all of its Pmol ^responsibility 
cations and criteria to qualifi-
t c t  t h e  s t a n d a r d i  s e r b r i : “h7s

concerned wi^h °"tre'“ ar’'rlwL"sr Commission's belief thi? « intent" on the oart  ̂ malicious
supervisor needed to particularNo. 92-415 (92d ron^ ^ Ptoven. s .  Rep. 
14-1 5. ' Sess. 19 71),  pp.

-  57 -

Congress' concern with the concentra­
tion of minorities and women in lower 
levels in the federal service was part of 
an overall concern with their exclusion 
from the better, more profitable, and more 
prestigious positions and occupations in 
American society as a whole. Thus, both 
the Senate and House Reports referred 
specifically to data demonstrating that 
minorities and women were concentrated in 
certain types of jobs and excluded from
4- V, 11/otners. ^t the same time Congress 

recognized that the problems of racial 
discrimination originally addressed in the 
1964 Civil Rights Act had proven more

41 / S. Rep. No. 92-415 (92d Cong., 1st 
Sess. 1971), p. 6; H. Rep. No. 92-238 (92d Cong., 1st Sess. 1971), p. 4. Both reports 
cited the exclusion of Blacks from profes­
sional and managerial positions as evidence that they were "still far from reaching 
their rightful place in society." S. Rep. 
No. 92-415, p. 6.



- 58 -

complex, deep rooted, and intractable 
than believed in 1964. Thus, the Senate 
Report acknowledged that:

In 1964, employment discrimina­
tion tended to be viewed as a series 
of isolated and distinguishable events, for the most part due to ill- 
will on the part of some identifiable 
individual or organization. It was 
thought that a scheme that stressed 
conciliation rather than compulsory 
processes would be most appropriate 
for the resolution of this essentially human" problem, and that litigation 
wcpuld be necessary only on an occa­
sional basis. Experience has shown this view to be false.

Employment discrimination as viewed today is a far more complex and pervasive phenomenon. 42/
Thus, contrary to the belief of

petitioner, it was Congress' judgment when
it decided to strengthen and broaden the
scope of Title VII that discrimination in
employment was indeed pervasive in American
society and needed to j^e'^ooted out relent-

42/ S. Rep. No. 92-415, p. 5.

f

- 59 -

lessly. With regard to federal government 
agencies specifically, both the Congres­
sional reports and testimony before both 
houses explored and attested to the 
existence of discriminatory practices 
inherent in the federal system and also 
suggested changes to address the problem.

Congress found in the concentration of 
blacks and women in lower grade levels 
throughout the government evidence both of 
employment discrimination and of the 
failure of existing programs to bring about 
equal employment opportunity. Thus, the 
House Report stated:

Statistical evidence shows that 
minorities and women continue to be 
excluded from large numbers of govern­
ment jobs, particularly at the higher grade levels . . . .

This disproportionate distribu­
tion of minorities and women through­
out the Federal bureaucracy and their 
exclusion from higher level policy­
making and supervisory positions



-  60 -

indicates the government's failure to pursue its policy of equal oppor­
tunity. 43/

The Senate report similarly concluded from
statistics showing the concentration of
minorities and females in the lower grade
levels that "their ability to advance to

44/the higher levels has been restricted."—  
Thus, the facts of this case present 

a prime example of what Congress was most 
concerned with. As noted supra, at n.7, 
as of February, 1974, immediately following 
the filing of respondent's administrative 
complaint, while Blacks were 85% of the 
work force at the Washington, D.C. work 
force, they held only 50% of supervisory 
and management positions. The top posi­
tions had been held by whites pr'ior to

43/ H. Rep. No. 92-238, p. 23.
4j4/ S. Rep. No. 92-415, pp. 13-14,

-  61 -

January, 1974, and the respondent had been 
repeatedly passed over in favor of whites 
for details and promotions.

Of course. Congress was deeply con­
cerned that the federal government should 
serve as an example to' others in avoiding 
discriminatory practices. The House report 
states:

The Federal service is an area 
where equal employment opportunity is 
of paramount significance. Americans 
rely upon the maxim "government of the 
people", and traditionally measure the quality of their democracy by the 
opportunity they have to participate 
in government processes. It is 
therefore imperative that equal 
opportunity be the touchstone of 
the Federal system. 45/

45/ House Report No. 92-238, p. 22. See, 
also, the Senate Report quoted at n.37, 
infra, and the remarks of Rep. Badillo, 117 
Cong. Rec. 32, 101 (1971) to the effect that the government needed to "put its own 
house in order in terms of ending its own 
discriminatory employment practices."



- 62 -
✓

The legitimacy of Congress' concern is 
demonstrated by testimony before both 
Houses. Witnesses testified during 
both House and Senate Hearings that there 
was a general lack of confidence in the 
effectiveness of the existing EEO complaint 
Process on the part of Federal employees. 
Richard Williams, Chairman of the Equal 
Employment Opportunity Committee of Mary­
land, an organization of employees of the 
Federal Government in Maryland, stated, 
"Racially discriminatory practices in Fed­
eral employment continue to be so rampant 
and widespread that the administration of 
the equal employment opportunity program by 
the Civil Service Commission has proved to 
be a failure." Rep. Fauntroy, of the

£6/ Hearings before the General Subcommit­
tee on Labor of the Committee on Education and Labor — House o f epresentat ives , 
Washington, D.C., December 2, 1969, p. 146.

- 63 -

District *of Columbia, testified to the 
thousands of complaints he had received 
from Black federal employees in the Dis­
trict. His own father had experienced 
discrimination strikingly similar to that

4 7/suffered by respondent here.—
In sum, as this Court has noted. 

Section 717 was enacted because the "long 
standing Executive Orders forbidding 
discrimination had proved ineffective for

£7/ My father ... trained two generations 
of white employees who were then 
passed up and over the shoulder to 
higher level and higher paying jobs. 
From all the evidence I have seen, 
even today in this supposedly enlight­
ened time, these practices continue 
daily with little substantive change.

Senate Hearings Before the Subcommittee on Labor of the Senate Committee on Labor and 
Public Welfare, Oct. 4, 6, and 7, 1971, p. 
202.

See also,testimony of Clarence Mitchell, Director, Washington Bureau of the NAACP 
and Legislative Chairman of the Leadership 
Conference on Civil Rights before the Labor 
Subcommittee of the House Committee on 
Education and Labor, March 3, 1971, pp.153-59.



- 64 -

the most part" and to correct [the] 
entrenched discrimination in the Federal 
service . . . . Morton v. Mancari, 417
U.S. 535, 546-547 (1974); Brown v. General 
Services Administration. 425 U.S. 820, 
825-28 (1976). See also, Clark v. Chasen. 
619 F.2d 1330 , 1332 ( 9th Cir. 1980 ).— ^
Thompson v. Sawyer. ___ F.2d ___, 28 F.E.P.
Cases 1614, 1640 (D.C. Cir. 1 9 8 2 ).--'^

48/ ("Congress was deeply concerned with 
the Government's abysmal record in minority employment
19/ The accuracy of Congress' judgment is 
attested to by the series of decisions 
finding class-wide systemic discrimination 
in various federal agencies, including the 
postal service. See, McKenzie v. McCormick. 
425 F. Supp. 137 (D.D.TT 1977) (Government 
-rinting Office); Thompson v. Sawver. 28 F.E.P. Cases 1614 (D.C. Cir; 1982) (Govern- 
ment Printing Office); Segar v. Civilehhi. 
508 F. Supp. 690 (D.D.c7 1981) (Drug En-
forcement Administration); Clark v. Alex- 
aMer, 489 F. Supp. 1236 (D.D.C. 1980 ),
(Department of the Army); Trout v. Hidaloo, 
517 F. Supp. 873 (D.D.C. 1581) (Department 
Of the Navy); Harrison v. Lewis (D.D.C., 
v-iv. Act. 79-1816, June 7, 1982 ) (Maritime

1.

- 65 -

Subsequent to the 1972 Act Congress 
took further measures to correct discrimi­
nation in employment in both the federal 
and private sectors. Thus, the Civil Ser­
vice Reform Act of 1978 reaffirms and in­
corporates by reference section 717 of the
1972 Act and provides new provisions for

50/its enforcement.—  Congress approved 
shifting the responsibility for administra- 
tj-ve enforcement to the Equal Eijployment 
Opportunity Commission because of continu­
ing dissatisfaction with the adequacy of
the role of the Civil Service Commis- 

5 1/sion. The 1978 Act also reaffirms

4 9/ continued
Administration). Chisholm v. United States 
Postal Service, 655 F.2d 482 ( 4th Cir.1981) . But see, Valentino v. United States
Postal Service, 674 F.2d 56 (D.C. Cir.
1982) .
50/ See 5 U.S.C. §§ 2302(b )(1)(A ),(d ); 
1206; 7121(d); 7702.
51/ President's Reorganization Plan No. 1, 
1978.



-  66 -

the affirmative action obligations of 
federal agencies in a variety of ways, 
including the strengthening of provisions 
requiring minority recruitment and mandat­
ing that high level federal officials be 
rated on their EEO and affirmative action 
performances.— ^

With regard to promotions specific- 
ally, Congress enacted a new system for 
appraising the performance of federal 
employees. The key substantive provision, 
which requires that performance appraisals 
be based on objective criteria related to 
the job in question was enacted spe­
cifically with Title VII concerns in mind 
because of the recognition that reliance on 
subjective criteria could form the basis

52/ See, 5 U.S.C. §§ 2302(d); 7201;4313(5).
^ /  5 U.S.C. § 4302(b) (1).

- 67 - 
54/for discrimination.

In the private sector. Congress en­
acted the set-aside provisions of the Pub­
lic Works Employment Act of 1977 discussed 
and upheld by this Court in Fullilove v. 
Klutznick, 448 U.S. 448 ( 1980 ). Those
requirements were based on congressional 
findings that discrimination and lack of 
equal employment opportunity remained a 
pervasive and difficult problem in the

54/ Thus, Rep. Clay, one of the bill's 
sponsors in the House, explained during the 
Committee Markup:

Experience with equal employment 
opportunity cases has demonstrated 
that the use of subjective criteria in 
promotions has been challenged in the 
courts on the grounds that women and 
minorities have been treated less 
fairly than white males. In sum, the use of objective criteria in perfor­
mance appraisals, consistently applied, 
will benefit Federal employees by 
providing them with protection against 
arbitrariness and discrimination.



-  68 -

construction industry.— '̂
Thus, while petitioner may not believe 

that discrimination is "that pervasive" 
(Brief, pp. 18-19), Congress does. If the 
government believes that the need for an 
effective Title VII has passed, then it 
should seek its repeal and present whatever 
evidence it has for its position to 
the legislature. There it could perhaps 
explain why discrimination against Blacks, 
other minorities, and women has been 
rampant for centuries if, as petitioner 
contends, it is "contrary to [an] employ­
er's economic interests" (Brief of Pet.,

54/ continued
Quoted in Wells v. Harris, 1 Merit Systems 
Protection Board Decisions 199, 223 (1979). 
See the Wells decision generally for a com­
prehensive discussion ,--of 'the legislative history of this provision.
55/ See, 448 U.S. at 461-467 (opinion of 
Burger, C.J.); 503-506 (op. of Powell, J.); 
520-521 (op. of Marshall, J.).

- 69 -

pp. 20-21).
For our part, we are confident that 

Congress would continue to find employment
discrimination an endemic and intractible

56/ . . . . . .problem. in the meantime, its findings
that discrimination has been particularly
pervasive among federal agencies and its
determination that that it be rooted out
must be determinative of the rules that
govern Title VII actions. 57/ As we will

56/ Thus, Congress has recently re-enacted 
and strenghtened the Voting Rights Act 
of 1965, despite arguments that the problem of discrimination in voting was one of the 
past. interestingly, one provision of the 
Voting Rights Act of 1982 is a response to 
a decision of this Court that imposed a 
heavy burden of proof on plaintiffs seek­ing to prove voting discrimination. 
Compare, Section 3, P.L. 97-205, 96 Stat. 
135, with City of Mobile v. Bolden, 446 
U.S. 55 (1980).
57/ As recently as this year, the Postal 
Service itself has been the subject of congressional inquiry into the scope of 
racial discrimination. In response, the Postmaster General has provided statistics



- 70 - - 71 -

now show, McDonnell Douglas and the lower 
court's application of it here is fully 
consistent with Congress' findings and 
intent.

III.
The Prima Facie Case Rule of McDonnell * 
Douglas Is A Reasonable and Effective 
Approach for Individual Title VII Cases.________________________________
Despite the fact that the grounds for 

seeking and obtaining certiorari were that 
the appeal court's decision was inconsis­
tent with Burdine and McDonnell Douglas, as

57/ continued
showing that in the period June, 1980 
through February, 1982, although Blacks 
were only 21% of the workforce, they 
suffered 48% of all suspensions and 
removal actions. Letter from William F. 
Bolger, Postmaster General, to the Hon. 
William L. Clay, Chairman, Subcommittee on 
Postal Operations and Service of the House Committee in Post Office and Civil Service, 
April 19, 1982. See, Chisholm v. U.S.P.S., 
516 F. Supp. at 848-50 finding racial 
discrimination from a similar 2-1 dispro­
portion at the Charlotte-Mecklenburg post office.

„e shall show below it is the government’s 
arguments themselves that suffer from this 
inconsistency. Of greater portent is the 
attempt, by the government indirectly 
and by its amici directly, to undercut 
MoDonnell Douglas and to have it overruled, 

or so changed as to render it 
ineffective as a method to analyze and 
decide individual Title VII cases raising 
claims of disparate treatment. These 
arguments should be rejected and McDonnell- 
Douglas must be reaffirmed for the fourth 
time by this Court.

~M,.nonnell Douglas is founded on the 
awareness that racial discrimination in 
employment is a pervasive problem and 
that Title VII was enacted in an attempt to 
provide meaningful remedies to combat it. 
(411 U.S. at 800-01.) Thus, the Court's 
concern was that the inquiry in a particu­
lar case of individual discrimination be



- 72 -

focused quickly and specifically on the 
evidence most relevant to a determination 
of intentional discrimination. The Court 
was acutely aware that it is the rare case 
where what the government and amici term 
"anecdotal" evidence (consisting of admis­
sions of racial prejudice or statements 
evidencing prejudice) or other "direct" 
evidence of a biased state of mind can be 
obtained. Rather, in the ordinary and 
usual case a court will be faced with 
objective evidence from which an inference 
of dis crimination may be drawn.

The approach of McDonnell Douglas is
fully consistent with over 100 years of

«
jurisprudence in the area of intentional 
discrimination embodied in many decisions 
under the Fourteenth Amendment. In those 
decisions, which were^^anvassed in detail 
by this Court in Washington v. Davis,426 
U.S. 229 (1976), it has been made clear

- 73 -

that objective evidence of a relatively 
limited and specific kind is all that needs 
to be marshalled in order for the conclu­
sion to be drawn that racial discrimination 
was at work. See Alexander v. Louisiana, 
405 U.S. 625 (1972). Attempts to read the 
minds of particular decision makers were 
unnecessary because both the Fourteenth 
Amendment and the Civil Rights Acts were 
passed in order to correct that which was 
already established to exist, viz., dis­
criminatory attitudes that impact on 
various decisions.

IFor example, upon a showing in a jury
58/discrimination case that few or no Blacks,

60/
women, or Hispanics have served on

58/ See, e.g., Turner v. Fouche, 396 U.S. 
346 (1970).
59/ See, e.g., Taylor v. Louisiana, 419 
u T s .  522~llS15).

W  See, e_^. , Castaneda v. Partida, 430 
U.S. 482 (1977).



- I n ­

juries a court must draw the inference 
that the'result came about because of 
discrimination. In a society without a 
history of race (or sex) discrimination 
such an inference might not be so readily 
drawn. However, in a nation where dis­
crimination has played a central role 
for centuries, the courts must be able to 
address the problem in a manner which is 
responsive to reality. In other words, 
both the Fourteenth Amendment and Title VII 
are founded upon a clear picture of the 
forces at work in society, and upon what 
amounts to a presumption that discrimina­
tion is the norm rather ,than the exception.

McDonnell Douglas, therefore, sets 
forth simple requirements in order to 
launch the inquiry into the reasons for a 
particular employment decision. If the 
complainant is a member of a protected

-  75 -

group, if s/he has applied for a position or 
promotion, if s/he is qualified for that 
position, and if s/he does not receive it, 
either because it is not filled or because 
a member of the majority group does, then 
Title VII, enacted to correct a problem 
that runs through every level of society, 
requires that the employer come forward 
with a race- (or sex-) neutral reason for
the action This is all that McDonnell

61/ Contrary to the government’s asser
Fions (Brief, p- 16), the fact that white
males are also protected against
nation by Title VII does notfour McDonnell Douglas factors wil
lish a prima facie case.statute ̂ ^Ftects all persons, its m a m
purpose was to cure pervasive discrimina­
tion against minorities and women. Since 
discrimination against white 
never been a serious, let alone 'problem in our society, the mere f^ct that 
a minority or a woman is selected over 
white male would not lead to an that discrimination was a f^^^^or in tne 
decision. Thus, although the substantive 
right to be free of discrimination is the 
same, what a white male mayprove discrimination will be different.



• . - 76 -

^Douglas requires and, as will be discussed 
below, that is all that the court below in 
the present case required as well.

If the employer cannot at least come 
forward with a "legitimate, non-discrimina- 
tory," or "lawful" reason, then the 
inference which flows from the policies 
embodied in Title VII is unrebutted. if, 
as will in most instances be the case, the 
employer can come forward with such an 
explanation, then the inquiry moves 
on to determine whether the reason given is 
but a mask or pretext for unlawful dis­
crimination. The burden of proof at all 
times remains with the plaintiff; but 
neither the plaintiff's initial burden of 
establishing a Rrima facie case nor the 
employer's duty to come forward with 
sufficient evidence to meet it are onerous. 
These rules are devic^tP cut through and 
eliminate those issues which are most

- - 77 -

easily disposed of, and to focus the
attention of the court and the parties on
the heart of any discrimination case.
M cDonnell Douglas's requirements are
simple, direct and deliberately easy to
meet so that the purpose embodied in Title
VII —  "to assure equality of employment
opportunities and to eliminate .

62/discriminatory practices" -- may be 
addressed and dealt with in a similarly 
direct and fprthright manner.

The government's arguments, however, 
would vastly complicate the process. They 
would require that the plaintiff prove his 
entire^case at the beginning, and would not 
meet any of the policy concerns which they 
would ostensibly advance. Rather, they 
would only serve to assist employers in 
being able to get rid of the "nuisance" of 
these actions expeditiously. As we will

62/ 411 U.S. at 800,



- 78 -

now show, McDonnell Douglas has worked well 
in the lower courts. It has neither been a 
source of confusion, nor has it resulted in 
unduly burdening employers with groundless 
actions.

Indeed, contrary to assertions made 
here, little or no controversy has sur­
rounded what the plaintiff must do ini­
tially to satisfy the McDonnell Douglas 
burden of establishing a £ r^m^ 
case. Rather, the controversy within the 
various circuits involved the nature of the 
showing a defendant must make in order to 
rebut plaintiffs' pr ima facie case.—

63/ Some courts held that the employer 
was only compelled to come forth with 
credible evidence of a nondiscriminatory 
motive; King v. New Hampshire Dept, of 
Resources, 562 F.2d 80 (1st Cir. 1977);
Powell V. Syracuse University, 580 F.2d 1150 (2nd Cir. 1978); Franklin v. Trokel 
Mfq. Co., 501 F.̂ 2d— 1013 (6th Cir. 1974 ); 
Flowers v. CrouPh-Walker Corp. , 552 F.2d
1277 (7th Cir. 1977); Gates v. Georqia-

- 79 -

Thus while the lower courts expressed 
some uncertainty in applying this Court's 
decisions in Furnco Construction Co. v. 
Waters, 438 U.S. 567 (1978) and Board
of Trustees of Keene State College y . 
Sweeney, 439 U.S. 24 (1978) regarding the
evidentiary burden to be placed on the 
employer, these same opinions have been 
consistent with regard to their adherence 
to the pr ima facie standard set out in 
McDonnell Douglas.

63/ continued
Pacific Corp., 492 F.2d 292 (9th Cir. T^7T)~;~Sabbl v. Snyder, 524 F.2d 1009 (10th 
Cir. 1975); while other courts held that the*prima facie showing required employers 
to prove the legitimacy of their actions by 
a preponderance of the evidence or suffer 
an adverse determination, Burdine v. Texas 
Dept, of Community Affairs, 608 F.2d 563 
(5th Cir. 1979).
64/ Indeed both Furnco Construction Co. 
^ d  Burdine reaffirm the basic elements of 
a plaintiff's prima facie case under 
McDonnell Douglas.



-  80  -

The greatest potential for confusion 
on this issue would, of course, arise as 
the lower trial and appellate level courts 
attempted to apply the McDonnell Douglas 
guidelines to widely varying fact patterns. 
This, however, has not proved to be a 
significant burden. Rather, the courts of 
appeals have generally understood that 
McDonnell Douglas provides an analytical 
framework for evaluating claims of employ­
ment discrimination and they have been
sensible and flexible in their application 
 ̂ • 65/of its standards. in other words, they

65/ Notwithstanding the broad range of 
the types of discrimination charged and 
the methods of proof available, the 
Courts of Appeal have had no difficulty ordering their evaluation of the cases 
pursuant to the demands of McDonnell Doug las. King v. New Hampshire Pep't of
Kesou^es , 562 F.2d 80, 83 (1st Cir.
1977); Loeb v. Textron, Inc., 600 F.2d 
1003, 1013-1019 (1st -Cir. 1979); Wright v. 
National Archives'lRecords Service, 609 F.2d 
702 (4th Cir. 1979); Turner v. Texas

-  81 -

have followed the Court's admonition that;
The facts necessarily will vary in 
Title VII cases, and the specification 
. . . of the prima facie proof re­
quired from respondent is not neces­
sarily applicable in every respect to 
differing factual situations. 411 
U.S. at 802, n. 13.
Thus, the lower courts have applied 

appropriate McDonnell Douglas prima facie 
factors in cases raising claims of dis­
criminatory discharge, 66/ reprisal for

65/ continued
Instruments, Inc. 555 F.2d 1251 (5th Cir. 
1977); Peters v. Jefferson Chemical Co., 
516 F.2d 447, 449-450 (5th Cir. 1975 ); 
Davis V. Weidner, 596 F.2d 726, 729-30 
(7th Cir. 1979); Womack v. Munson, 619 F.2d 
1^92 (8th Cir. 1980).
66/ A. Flowers v. Crouch-Walker Corp., 
supra, at 1282. Prima facie case_ estab­
lished by showing; (1) plaintiff was a 
member of a racial minority; (2) he was 
qualified for his job; (3) he was satisfy­
ing normal requirements of the job; (4) he 
was discharged; and (5) whites assigned to 
perform the work.

B Loeb V. Textron, Inc., supra at 
facie case shown1013. In ADEA case, prima _____by; (1) plaintiff was in the protected



- 82 -

challenging discrimination— ^discrimina­
tion in hiring promotion, "̂ and

66/ continued
age group; 
performing replaced by 
work.

(2) he was fired; (3 ) he was 
job adequately; (4) he was 
younger person doing the same

C. Davis V. Weidner, 730:
waswas
was

, , . , . ------r- ----- -- supra at' \  f was a woman; (2 ) shequalified for the position; (3) she 
terminated; (4) a male colleague retained in the same position.
|2/ Womack v. Munson, supra at 1296, n. 6. 
A prima facie case of retaliatory discharge shown by: (1) filing of a lawsuit (or
complaint or other protected activity); (2) 
employer aware of the lawsuit; (3) plain­
tiff discharged; (4) discharge close enough 
in time to justify an inference of retalia­
tory motive (also expressed as facts estab­
lishing a "nexus" between the protected 
activity and the retaliatory action.).

King V. New Hampshire Dept, of Re- 
fPurces, supra at 83. Prima facie case of 
niring discrimination shown by: (1 )
plaintiff was a woman; (2 ) position for 
which she was qualified was available; (3) 
she applied for it but was not hired; (4)
questions at interview evidenced bias against women.
±9/ 
supra69/ Peters v,

__ at 450.
established by

Jeffe rson 
faciePrima _ 

showing:
Chemical Co., 

_ case could be 
(1) plaintiff a

- 83 -

denials of transfers '̂ and training. ^ 

Notably, post Burdine rulings have followed 
and thereby reinforced the application of 
the McDonnell Douglas standards in various 
contexts. See, e.g., Evans v. Baldrige, 
27 FEP Cases 1479, 1480-81, (D.D.C.
1982); Meyer v. Brown and Root Const. Co., 
661 F.2d 369, 371-3 (5th Cir. 1981),
[claims of wrongful denial of promotion];

69/ continued
woman; (2) she applied for a position for 
which she was qualified; (3 ) she was 
rejected; (4) the employer then decided not to fill the position.
20/ Peters v. Jefferson Chemical Cn. , 
supra ’at 449; prima facie case established by: ,( 1 ) plaintiff a woman; (2 ) she
made repeated requests for transfers; (3) 
other transfers were permitted; (4) posi­
tions for which she was qualified went to males. In addition, the result of plain­
tiff's not being transferred was her 
termination in a layoff that disproportion­ately affected women.
71/ See, Wright v. National Archives Re­cords Service, supra at 714-15.



- 84 - - 85 -

Johnson v. Bunny Bread Co., 646 F.2d 1250,
1253 (8th Cir. 1981); Kenyatta v. Bookey 
Packing Co. Div. Swift & Co., 649 F.2d 
552 (8th Cir. 1981); Mitchell v. M. D. 
Anderson Hospital, 29 FEP Cases 263
(5th Cir. 1982); deLesstine v. Ft. Wayne 
State Hospital, 29 FEP Cases 195 at 194-5 
(7th Cir. 1981); [claims of discriminatory 
termination]; Kaufman v. Sidereal Corp., 
677 F.2d 767, 768 (9th Cir. 1982).

The lower courts have also been 
steadfast in their resistance to adding new 
"prongs" to the McDonnell Douglas standards 
which, like the proposals of the petitioner 
here, would serve to go beyond the frame­
work and policy considerations expressed 
therein. In Rodriguez v. Taylor, 569 F.2d 
1231, 1239 (3rd Cir. 1977), for example,
the court specifically rejected the sugges­
tion that the plaintiff must submit direct//
proof that a discriminatory motive underlay

an employer's decisions. In Powell_J'-
Syracuse University, 580 F.2d 1150, 1155
(2nd Cir. 1978) the Second Circuit rejected
the suggestion that the plaintiff must
prove that he or she was the best-qualified
candidate for the job, under the criteria
suggested by the employer, in order to
establish a prima facie case. The court of
appeals held that such an approach,

unnecessarily collapses the steps 
suggested by Mcnnnnell Phy’lf't ^7 ■ Ihifting considerations which are 
more appropriate to the employ­
er's rebuttal  ̂ ,,neearlier requirement that the 
employee demonstrate to perform the specified work.

in navis V. Weidner, 596 F.2d 726 (7th
Cir. 1979) the court also rejected the
suggestion that since, unlike McDonnell
nouglas, the case involved "'a simultaneous
choice between prospective employees on the
basis of relative qualifications under
circumstances which involved judgment'".



-  86 -

that an additional requirement for estab­
lishing a pr ima facie was appropriate. 
There, the defendant suggested that the 
plaintiff need establish that his or her 
rejection was not the result of a relative 
lack of qualifications. The Seventh Cir­
cuit held:

Establishment of a pr ima facie 
case under the McDonnell standard 
does not constitute an ultimate 
finding of fact as to discrimi­
natory refusal to hire under 
Title VII . . . [citations
omitted] McDonne11 is merely a 
model for ordering and evaluating 
evidence concerning employment 
discrimination. The employer 
can offer his rationale for 
refusing to hire or for firing 
the complainant in the second 
step of the McDonne 1.]̂ model.

596 F.2d at 730.
This view regarding the purpose and 

functions of the McDonnell Douglas standard 
is consistent throughout the circuits and
underpins their approach to applying that

/case to various factual situations. As

- 87 -

most courts have recognized, McDonnell
Douglas, is foremost:

an analytical framework enunciat­
ed post hoc, in light of a given set of facts, to give judges a 
method of organizing evidence and 
assigning the burdens of produc 
tion and persuasion in a dis 
crimination case.

Loeb V. Textron, Inc. , supra, 600 F.2d at 
1017.

Thus, this Court's unanimous opinion
in McDonnell Douglas offers clear, precise
and uncomplicated criteria for evaluating
the evidence in an individual disparate
treatment case. For the last nine years
the Federal courts have exercised good »
judgment and flexibility in applying its 
standards in a variety of situations. In 
so doing, they have been mindful of that 
decision's concern that the inquiry be 
focused quickly and specifically on the 
circumstances most relevant to determine 
the reasons for a particular employment



-  88 -

decision. Any suggestion that McDonnell 
Douglas should be overruled or applied only 
to a limited category of cases should be 
unequivocally rejected.

IV.
The Decision Below Is Fully Consistent 
with McDonnell Douglas v. Green and Its Progeny.

A. The Prima Facie Case
In the instant case, the court of

appeals has twice issued reasoned opinions
which emphasize the flexibility of the
McDonnell Douglas criteria and follow the

72/reasoning of Burdine. Thus, when the 
actual facts of this case are examined it 
is beyond question that the standards and 
requirements of McDonnell Douglas-Burd ine

72/ In fact, in the most recent decision, 
the court may have gone farther than 
necessary in remanding to determine 
the "qual i f i cat ions” ~'of the respondent. 
Petitioner has never contested the fact 
that Aikens was qualified for the posi­
tions. (Petitioner's Brief, 4; 7, n. 5;
1 1 ).

f.
- 89 -

for establishing a prl-na facie case of dis­
crimination have been more than met. 
indeed, it is clear that the case does not 
really present the issue as stated by 
the Government in its petition for a writ 
of certiorari, since respondent demons­
trated in his Etima facie case that he was 
as, or more, qualified than the persons 
selected for the positions complained of, 
and that the circumstances surrounding the 
failures 'to detail and promote him give 
rise to an inference of discrimination.

Respondent's evidence establishing a 
Crima facie case is: (1) four positions were 
available; (2) plaintiff, who is Black and 
therefore a member of a protected class, 
applied for consideration for these and all 
other available details and promotions; (3) 
petitioner was fully qualified for details 
to these positions and, indeed, was as



- 90 -

qualified as any of the persons who ac­
tually received them; (4) petitioner was 
not given any of the details but they were 
given to whites no more qualified than he.

In the words of Burdine, respondent 
applied for and was denied positions "under 
circumstances which give rise to an infer­
ence of unlawful discrimination."— ^ Indeed 
the facts here are strikingly similar to 
those which this Court found in Burdine to 
establish a EXllBa facie case without 
serious question. The plaintiff in Burdine 
was a qualified woman who sought an avail­
able position. She was passed over in
favor of a male who had been under her 

. . 74/supervision.—  Here, although Mr. Aikens
«

was highly qualified, he spent nearly eight

73/ 450 U.S. at 253,
Zi/ Id., at

- 91 -

years frozen in a position and received 
neither details nor promotions to higher 
level positions. At the same time there 
was a repeated pattern of whites being 
detailed above him, even though their 
seniority and other qualifications were no 
more and, indeed, were less than his. Just 
as in Burdine, plaintiff had supervised a 
number of the persons detailed and promoted 
over him. In fact petitioner's prima facie 
case is stronger than Burdine's, since he 
was passed over not just once but numerous 
times, with the last four instances being 
at issue here. ~

75/ As noted in the statement of the case, 
although it has been held that petitioner is time-barred from obtaining relief for 
all but the last four occurrences, the past pattern of continuing refusals to give him 
details or promotions is relevant and pro­
bative evidence in judging the significance 
of the most recent events.



- 92 -

^~ Additional Facts_Demonstratinq Dis-crimination
The strength of the prima facie case 

becomes evident when the system for choos­
ing persons to fill details is examined. 
In the Postal Service detailing to higher 
level positions is a crucial element in
obtaining- permanent promotions to such 

76/positions. Through the detailing pro­
cess, persons obtain experience in higher 
positions which helps them to compete 
against others when those positions 
are advertised. Under civil service 
regulations, detailing for lengthy periods 
of time is required to be done pursuant to

The problem of discrimination in detailing in the Postal Service has been 
the subject of extensive litigation. See, 
Chisholm v. United States Postal Service, 516 F. SuppT 810, 843-48 (M.D.N.C. 1980), 
aff^, 665 F.2d 482 (4th Cir. 1981), where 
the court found pervasive racial discrimi­
nation in detailing in the Charlotte-Meck- lenburg Post Office.-----

- 93 -

the competitive system. In this way the
practice of "pre-selection", by which
persons are given experience in a job and
then selected permanently for the same job
ostensibly through competition with others
not given the same opportunity, is to be 

77/avoided.
In a system that operates fairly, 

detailing to higher level positions is done 
equitably from all those persons presumably 
qualified for the higher level positions 
because they encumber positions within 
reach of the higher one. These equally 
qualified persons will then obtain the 
specific qualifications for the higher 
level job, and the selecting official will 
be able to judge their relative qualifica­
tions based on each one's performance in

77/ See, Federal Personnel Manual, Chap. 
300, Subchapter 8. See, Chisholm v. 
U. S . P. S . , 516 F. Supp. at 843-45 for a
description of a typical postal service 
detailing process.



- 94 -

the temporary position. Obviously, the 
system breaks down if certain persons are 
favored in the detailing process, since 
they will obtain experience beyond that 
which others will obtain and will then be 
found most qualified because of the greater 
opportunities to work in the position.

In the present case, although Aikens 
alleged that he was continually passed oyer 
for promotions and details to higher level 
jobs, his main challenge was to the detail­
ing system. As indicated in the statement 
of the case, the Washington, D.C., Post 
Office did not post or solicit interested 
personnel to fill details; individuals were
selected by higher level supervisors, who«
in this case were Rapee and Beall. (supra, 
7-8). Contrary to petitioners' claim 
(Brief, 10, 12) the evidence is undisputed 
that there was a' failure generally to pro­
mote or detail Blacks to the higher level

- 95 -

supervisory positions until Aikens filed 
his claim on January 4, 1974 (supra, 5-6).
The record also shows that Aikens was not 
even considered for promotion or details to 
higher level jobs until after he had filed 
his EEO complaint. (Aikens was promoted on 
January 9, 1974. )

Beginning in 1971 through JEP in March 
1973, there were nearly 30 details to the 
four positions (including Postmaster), 
ranked at a higher level than Aikens' posi­
tion of Assistant Director. All of the 
individuals detailed were white (supra, pp. 
13-14); not once was Aikens, or any other
ft
black supervisor, detailed to one of the 
four positions. Subsequent to JEP, there 
were a number of additional details of 
white persons to higher level positions, 
including the positions at issue. More­
over, the great majority of the whites so 
detailed were junior to Aikens in senior-



- 96 -
¥

ity, supervisory experience, and educa­
tional level. In other words, they were
less qualified than he by all objective

. 78/criteria.—
Although, as will be discussed below, 

these facts are not necessary to establish 
a prima facie case under McDonnell Douglas- 
Burdine, they independently establish one 
under decisions such as Davis v. Califano, 
613 F.2d 957 (D.C. Cir. 1979). Indeed, the 
case becomes overwhelming when the statis­
tics on the details are combined with those 
on the distribution of supervisory posi­
tions. It must be kept in mind that the 
relevant time frame was 1966—74, precisely 
when Congress was making findings concern­
ing the exclusion of Blacks from high level

28/ The phenomenon (or rather spectacle) 
of highly educated Blacks being passed over in favor of much more poorly educated 
whites in the postal-^service has not been 
uncommon. See, Chisholm v. United States Postal Service, 516 F. Supp. at 810, STsT 838-39.

- 97 -

positions and determining that discrimina­
tion in the federal service was so en­
trenched that Section 717 was necessary. 
Thus, although whites comprised less than 
15% of the total work force, as late as 
February, 1974, they encumbered nearly 50% 
of the supervisory and management posi­
tions. For many years, respondent was the 
highest ranking black employee. Until 1973 
all of the persons holding the top posi­
tions at the Washington post office were 
white.

C. Petitioner's Arguments Are Inconsistent 
with McDonnell Douglas and Burdine.

1. Petitioner attempts to argue»
that there are, in effect, five factors in 
McDonnell Douglas; in addition to the four 
set out therein, there must be something 
else that "gives rise to an inference of 
discrimination". (Pet. Brief, p. 17).



- 98 -

This interpretation of McDonnell Douglas is 
simply a misreading of Burdine. Burdine, 
in the language relied upon by respondent 
(450 U.S. at 248), merely summarizes and 
paraphrases McDonnell Douglas by stating 
that the factors there present circum­
stances "giving rise" to an inference of 
discrimination. In no sense can Burdine be 
read to engraft upon McDonnell Douglas any 
additional requirements beyond those set 
out therein particularly since there was no 
question but that a prima facie case had 
been made. Nor, as petitioner now
acknowledges, can the record here be read 
to present a case in which the plaintiff is 
even arguably less qualified than those 
persons chosen over him.

2^/ The lower courts have correctly con­
cluded that the McDonnell Douglas standards 
were not altered by-̂ Burdine. See, e.q., 
Harrell v. Northern Electric Co., 672 F.2d 444, 448 (5th Cir. 1982).

- 99 -

2. Moreover, neither McDonnell
Douglas nor the cases cited by petitioner
on pages 23 to 24 of its brief hold that
statistical evidence is necessary t o
establish a prima facie case. Of course,
Davis V. Califano, 613 F.2d 957 (D.C. Cir.
1979), holds that a plaintiff may establish
a pr ima fac ie case through statistical
evidence in an individual case. The Davis
holding (which the government acknowledges
is correct) cannot be read, consistent with
McDonnell Douglas, to hold that statistics
are necessary to establish such a case.
Indeed, such a reading would be flatly
inconsistent with Furnco Construction Corp. ̂ --—  -■  - —  -    -

V . . Waters, 438 U.S. 567 (1978), and this
Court's recent decision in Connecticut v.
Teal, ___ U.S. ___, 50 U.S.L.W. 4716 (June
21, 1982).

In both of those cases this Court made 
it clear that the right to be free of



-  100 -

 ̂ . . . .  80/ discrimination is an individual one. ^n
employer's good record overall, as demon­
strated through its statistical profile, is 
one piece of evidence that it may introduce 
as rebuttal to a prima facie case. Thus, 
while a well-balanced work force is not 
"wholly irrelevant on the issue of intent" 
( 438 U.S. at 580 ), in no way can it by 
itself refute a £ r_i m a f.££A£ case of 
discrimination. Id. at 579. Ipso facto,
such a shov/ing cannot be inconsistent 
with a prima facie case to begin with, and 
a plaintiff is not required to show a

8£/ In Teal, the Court rejected the 
so-called "bottom line" approach as either 
imposing an additional burden on plaintiffs 
in establishing a prima facie case or as an 
affirmative defense. As the Court held:

Title VII does not permit the victim 
of a facially discriminatory policy to 
be told that he has not been wronged 
because other persons of his or her 
race or sex were^j^red.

50 U.S.L.W. at 4720.

-  101 -

statistical pattern or practice of dis­
parate treatment in order to shift the 
burden of going forward to the defendant.

4. In its petition for writ of 
certiorari the Government's main argument 
was that it was required on the part of a 
Title VII plaintiff to prove that he was as 
well or more qualified than the person 
selected for promotion in order to make out 
a prima facie case. Thus, simply to show 
that a person had minimal qualifications 
was not sufficient. The Government now 
suggests in its brief that it had never 
taken that position explicitly, and it 
seems to concede that a showing of minimal 
qualifications for the position is all that 
is required as long as there exists some 
circumstance that can give rise to an 
inference of discrimination.



-  102 -✓
The Government's abandonment of its 

prior argument is surely correct. To urge 
otherwise would be inconsistent with this 
Court's discussion in Burdine, which holds 
that an employer is free to choose among 
equally qualified persons as long as that 
choice is not motivated by prohibited 
discrimination. Thus, Burdine makes it 
clear that establishing that the person 
selected was as qualified or more so than 
the complainant is part of the employer' s 
burden of coming forward with sufficient 
evidence to dispel the inference created by 
the prima facie case.—

81/ The Government's earlier argument was 
also inconsistent with the position it 
advanced in this Court in opposing the 
granting of certiorari in St. Peter v. 
Marsh, No. 81-917, in which certiorari was 
denied on the same day it was granted 
here. (72 L.Ed.2d 132, 133. ) In St. Peter 
the lower courts held^-that the plaintiff 
was more qual if ied^^bhan the selectee but 
nevertheless found that discrimination had

- 103 -
5. Petitioner's argument con­

cerning Mr. Aikens' refusal to accept 
certain positions allegedly offered to 
him, is nothing more than an attempt to 
require a plaintiff to prove pretext, and 
thus his entire case, in order to make 
out a prima facie case. Thus, petitioner 
states in its Brief (p. 3-4, 12) that
Aikens was not interested in the positions 
of Director of Finance, Director of Person­
nel, (both lateral transfers) and Tour 
Superintendent, and that his refusal to 
accept those positions, which v/ould have

81/ continued
not been shown. The Government urged here 
that it was indeed permissible to choose 
even a less qualified person as long as 
discrimination was not involved. (Brief in 
Opposition, p. 11.) Given this position the 
government can hardly turn around and argue 
here that a plaintiff need show any more 
than that he or she possesses the necessary 
qualifications for the position.



"  104 "

allegedly broadened his background, were 
the reasons for Aikens not being detailed 
or promoted to higher level jobs. Peti­
tioner goes on to state that ", 
respondent might have had a prima facie 
case if he had shown that his supervisors 
did not believe that the transfers and 
promotions he rejected would make him 
better suited for the positions he unsuc­
cessfully sought, . . . "  (Brief, p. 28).— ^

e v i d e n c e  s h o w s  t h a t  o n l y  two  
p o s i t i o n s  ( D i r e c t o r  o f  F i n a n c e  and D i r e c t o r  
o f  P e r s o n n e l )  were d i s c u s s e d  w ith  A i k e n s

August 1966 to JEP (supra, 14). Thus, the only opportunities Aikens was given were for
h^fd level that he alreadyheld. Such details would never provide the 
ype of promotional opportunities that

Those positions would.Those two lateral transfers are in stark
o^o^oMr details and/o^oe?Tod M whites during the samethese whites were junior to him in seniority, supervisory experience 
an e ucational level. Subsequent to JEP, 
Aikens was allegedly .offered the position of Tour Superintendent, one he had occupied

-  105 -

As shown by the statement of the case 
and n.82, in the margin, the government's 
attempted explanation for respondent's 
non-selection to higher level positions by 
his failure to accept lateral transfers is 
implausible at best. m  any event, these 
matters go to the legitimacy of the reasons 
given by the employer in its effort to 
overcome the prima facie case, or to 
whether the reasons are pretextual. They 
have nothing whatsoever to do with the 
P̂ ^̂ ma facie case itself.

6 . Finally, although the 
Government admits (Brief, p. n, n.8) that 
the issue is not directly raised by this

82/  co n t in u e d

p r i o r  t o  b e i n g  a p p o i n t e d  in  1966 t o  h i s  
A s s i s t a n t  D i r e c t o r  p o s i t i o n .  Any o p p o r t u n -  
i t y  t o  advance to  a h i g h e r  p o s i t i o n  from 
t h a t  one would have been p r o b l e m a t i c a l  a t



i -  106 -

case in its present posture, there has been 
presented the notion that when selection to 
a high level managerial position is at 
issue, the standards for establishing 
discrimination should be different than 
those for a blue collar or lower level

il/position. The argument, as we under­
stand it, is that because of the subjective 
nature of the judgment to be made in 
selecting a person for such a postion, it 
is more difficult to evaluate the correct­
ness of the selection in the face of a 
discrimination charge.

We urge that the argument has no 
force. As one commentator has recently 
pointed out, there is nothing in the

®1/ dissent of Judge Wilkey to the original court of appeals decision, 
Pet. App., pp. 33a-40a; Brief for the 
AFL-CIO As Amicus Curiae, pp. 11-12.

-  107 -

language, history, or purpose of Title VII 
which indicates that different standards 
govern depending on the job involved.— '̂ 
Indeed, this Court's decision in Board of 
Trustees of Keene College v. Sweeny, 439
U.S. 24 (1978) which applied the McDonnell
Douqlas-Furnco standards to the granting of 
tenure to a college professor, is inconsis­
tent with the position that different rules 
should apply to "higher level" positions.— '̂ 

The argument also flies in the face of 
the legislative history of the 1972 Act. 
As shown above, one of Congress' main 
concerns was with the continued exclusion 
of minorities and women from such positions 
by all employers, and particularly by 
federal agencies. Given this concern it

84/ Bartholet, "Application of Title VII to 
jobs in High Places", 95 Harv. L. Rev. 947 (1982).
85/ See, e.g., Kunda v. Muhlenberg Col- 
le£e, 621 F.2d 532, 541-544 (3rd Cir.1980).



i - 108 -

would be incongruous indeed to hold that a
plaintiff should have a harder time
proving discrimination when complaining
about the denial of equal opportunity in
the very jobs where the need for an
effective statute is most pressing. Rather
than providing a defense to a Title VII
claim, the fact that subjective and hard to
define criteria have been used to make a
selection should subject the decision to
even closer scrutiny. As a number of
courts of appeals have noted, the use of
subjective criteria, particularly by a
predominantly white supervisory or manager-

. . . 86/ial force, can mask discrimination.—  
It would turn the statute on its head to 
insulate those decisions «most susceptible

86/ See, e.g., Davis v. Califano, 613 F.2d 
957, 965-66 (D.C. Cir. 1979), and cases
there cited; Payne v. Travenol Laboratories, 
673 F.2d 798, 824 (5th C>r.-a982 ); Harrell
V. Northern Electric^C'o. , 672 F.2d 444 ,
448 (5th Cir. 1982).

- 109 -

87/  ̂ ,to bias from effective redress. Indeed,
as the court in Davis v. Califano. 613 F.2d 
at 965-66, correctly held, the selection of 
a white over a black using subjective and 
undefined criteria, as was the case here, 
can be an element of a prima facie since it 
is a circumstance that gives rise to an 
inference of discrimination.

7. In short, there can be no 
serious question but that under the rule of 
McDonnell Douglas, Furnco, Sweeny, and 
Burd ine plaintiff made out a pr ima facie 
case here. To hold otherwise would be to 
overrule this line of decisions, a result, 
as we have shown above, that would be

87/ Such a result would be particularly 
Inappropriate in a federal government case, 
since Congress specifically has mandated 
the use of objective performance standards 
because of the discriminatory potential of 
subjectivity in promotion decisions. 
See, supra, pp. 66-67, n.54.



’ ( -  110 -  

✓inconsistent with the policy of Title VII 
and with Congress' intent as demonstrated 
by the legislative history of the Act. 
Petitioner's arguments, based as they are 
on invalid views of the nature, depth, and 
pervasiveness of employment discrimination, 
must be rejected.

Conclusion
For the foregoing reasons, the deci­

sion of the court below should be affirmed.
Respectfully submitted.

L. HAROLD AIKENS, JR.*
1613 Crittenden St., N.E. 
Washington, D.C. 20017 
(202) 635-8095

JACK GREENBERG 
JAMES M. NABRIT, III CHARLES STEPHEN RALSTON 
CLYDE E. MURPHY 
GAIL J. WRIGHT 

Suite 2030 10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

BARRY L. GOLDSTEIN 
Suite 940 
806 15th St., N.W. 
Washington, D.C. 20005 
(202) 638-3278
Counsel for Respondent

*Counsel of Record



;. . * . V ^  V-

■■'s'.•.. '■•

APPENDIX



- la -

Appendix
42 U.S.C. § 2000e-16.

(a) All personnel actions affecting 
employees or applicants for employment 
(except with regard to aliens employed 
outside the limits of the United States) in 
military departments as defined in section 
102 of title 5, United States Code, in 
executive agencies (other than the General 
Accounting Office) as defined in section 
105 of title 5, United States Code (includ­
ing employees and applicants for employment 
who are paid from nonapproppriated funds), 
in the United States Postal Service and 
the Postal Rate Commission, in those units 
of the Government of the District of 
Columbia having positions in the competiti— 
tive service, and in those units of 
the legislative and judicial branches 
of the Federal Government having positions 
in the competitive service, and in the 
Library of̂  Congress shall be made free from 
any discrimination based on race, color, 
religion, sex, or national origin.
(b) , Except as otherwise provided in this subsection, the Civil Service Commission* 
shall have authority to enforce the provi­
sions of subsection (a) through appropriate 
remedies, including reinstatement or hiring 
of employees with or without back pay, as 
will effectuate the policies of this sec-

* Now the Equal Employment Opportunity 
Commission. See the President's Reorgani­zation Plan No. 1 of 1978.



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tion, and shall issue such rules, regula­
tions, orders and instructions as it deems 
necessary and appropriate to carry out its responsibilities under this section. 
The Civil Service Commission shall

(1) be responsible for the annual 
review and approval of a national and 
regional equal employment opportunity 
plan which each department and agency and each appropriate unit referred tj.o 
in subsection (a) of this section 
shall submit in order to maintain an 
affirmative program of equal employ­
ment opportunity for all such employ­
ees and applicants for employment;
(2) be responsible for the review and 
evaluation of the operation ,of
age-ficy equal employment opportunity 
programs, periodically obtaining and 
publishing (on at least a semiannual 
basis) progress reports from each such 
department, agency, or unit; and
(3 ) consult .with and solicit the recommendations of interested individ­
uals, groups, and organizations relat­
ing to equal employment opportunity.

The head of each such department, agency, 
or unit shall comply with such rules, 
regulations, orders, and instructions which 
shall include a provision that an employee 
or applicant for employment shall be 
notified of any final action taken on any complaint of discrimination filed by him 
thereunder. The plan submitted by each 
department, agency, and unit shall include, 
but not be limited to —

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(1) provision, for the establishment 
of training and education programs designed to provide a maximum oppor= 
tunity for employees to advance so as to perform at their highest potential; 
and
(2) a description of the qualifica­
tions in terms of training and expe­
rience relating to equal employment opportunity for the principal and 
operating officials of each such 
department, agency, or unit respon­
sible for carrying out the equal 
employment opportunity program and 
of the allocation of personnel and 
resources proposed by such department, 
agency, or unit to carry out its equal 
employment opportunity program.

With respect to employment in the Library 
of Congress, authorities granted in this 
subsection to the Civil Service Commission 
shall be exercised by the Librarian of Congress.
(c) Within thirty days of receipt of 
notice of final action taken by a depart­ment, agency, or unit referred to in 
subsection 717(a), or by the Civil Service 
Commission upon an appeal from discrimina­
tion based on race, color, religion, sex or 
natinal origin, brought pursuant to subsec­
tion (a) of this section. Executive Order 
11478 or any succeeding Executive orders, 
or after one hundred and eighty days from filing of the intial charge with the 
department, agency, or unit or with the 
Civil Service Commission on appeal from a



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decision or order of such department, 
agency, or unit until such time as final 
action may be taken by a department, 
agency, or unit, an employee or applicant 
for employment, if aggrieved by the final 
disposition of his complaint, or by the 
failure to take final action on his com­
plaint, may file a civil action as provided 
in section 706, which civil action the 
head of the department agency, or unit, as 
appropriate, shall be the defendant.
(d) The provisions of section 706(f) 
through (k), as applicable, shall govern 
civil actions brought hereunder.
(e) Nothing contained in this Act shall
relieve any Government agency or official 
of its or his primary responsibility to 
assure nondiscrimination in employment as 
required by the Constitution and statutes 
or of its or his responsibilities under 
Executive Order 11478 relating to equal 
employment opportunity in the Federal 
Government. (July 2, 1964, P.L. 88-352,
Title VII, § 717, as added Mar. 24, 1972,
P.L. 92-261, §11, 8 6 Stat. 111.)