Fitzpatrick v. Kirkland Brief in Opposition

    No, 80-992

l  x  TH E

#ii$trrmp Court of %  ImtrJi ^tatro
October Term, 1980

D ennis F itzpatrick, et ak,

v.
Petitioners,

E d w a r d  L. K i r k k a :n d , et ak,
Respondents.

OX W RIT OP CERTIORARI TO TH E UNITED STATES 

COURT OP APPEARS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

J ack Greenberg 
O. P eter Sherwood*
JUDITH B eED

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

Attorneys for Respondents 
Edward L. Kirkland, 
Nathaniel Hayes, and the 
Plaintiff Class

* Counsel of Record



TABLE OF CONTENTS

Table of Authorities . ........... .......................... i i

Statement of the Case . ...................................  1

Summary of Argument .......................................... 6

Argument: Reasons for Denying the
Wr it . . . . . . . . . . . . . . . . . . . . .  6

I. IN UPHOLDING THE DISTRICT COURT'S 
APPROVAL OF EXAMINATION NO. 36-435,
THE SECOND CIRCUIT PROPERLY 
AFFIRMED AN APPROPRIATE REMEDY FOR 
A SETTLED CONSTITUTIONAL
VIOLATION . . . . . . . . . . . . . . . . . . . . .  6

II .  THE DECISION OF THE COURT OF
APPEALS IS CONSISTENT WITH THE 
DECISIONS OF THIS COURT . 9

Conc 1 usi_on . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  15

Page

-  l  -



TABLE OF AUTHORITIES

Page

Cases:

Albemarle Paper Company v. Moody,
422 U.S. 405 (1975) ................ 7 ,8 ,9 ,11 ,12

Blake v. City of Los Angeles,
595 F.2d 1367(9th Cir. 1978), cert, 
denied, U.S. , 100 S. Ct.

1865 (1980) . . . . . . . . . . . . . . . . . . . . . . . . .  10

Boston Chapter N.A.A.C.P., Inc.
v. Beecher, 504 F„2d 1017 (1st Cir. 1974), 
cert, denied, 421 U.S. 910 (1975) . .  10

Detroit Edison Company v .
NLRB, 440 U.S. 301 (1979) . . . . . . . . . .  10

Donnell v. General Motors Corp.,
576 F.2d 1292 (8th Cir. 1978) . . . . .  10

Dothard v. Rawlinson, 433 U.S.
321 (1977) ____. . . . . . . . . . . . . . . . . . . . .  10

Douglas v. Hampton, 512 F.2d 976
(DoG. Cir. 1975) . . . . . . . . . . . . . . . . . . . .  10

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976) . . . . . . . . . . . . . . . . .  7,14

Fullilove v. Klutznik, U.S. ___,
65 L. Ed. 2d 902 (1980)”
(1980) . . . ____. . . . . . . . -------. . . . . . . . . .  14

Griggs v. Duke Power Company
401 U.S. 424 (1971) . . . . . . . . . . . . . . . .  11

- ii -



Page

Johnson v. Railway Express Agency,
421 U.S. 454 (1975) ............... .................  7

Louisiana v. United States,
380 U.S. 145 (1965) .................   7

Rogers v. International Paper
Co., 510 F .2d 1340 (8th Cir.
1975) ........................................................... .. . 10

Sims v. Sheet Metal Workers
International Assn., 489 F.2d 1023
(6th Cir. 1973) ..........................  10

Stamps v. Detroit Edison
Co. 365 F.Supp. 87 (E.D. Mich. 1973), 
modified, 515 F.2d 201 (6th Cir.
1975) 7T.....................   10

Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1
(1971) .................. .. ........... ................... 7

United States v. City of Chicago,
549 F.2d 415 (7th Cir. 1977),
cert, denied, 434 U.S. 875 (1978) . .  10

United States v. City of Miami,
614 F. 2d 1322 (5th Cir. 1980) ...........  10

United Steelworkers of America
v. Weber, 443 U.S. 193 (1979)

— i i i —

14



Page

University of California Regents 
v. Bakke, 438 U.S. 265 (1978)

Washington v. Davis, 426 U.S. 229 
(1976) . . . . . . . . . . . . . . . . . . . . . .

9 ,12,13,14  

9,13

Federal Regulations

Uniform Guidelines on Employee Selection 
Procedures, 29 CFR § 1607.1,
et seq. . . . . . . . . . . a . ® . . . . . . . . . . . . . .  2,12,13

-  iv -



No. 80-992

In The

SUPREME COURT OF THE UNITED STATES 

October Term, 1980

DENNIS FITZPATRICK, et a l . ,

Petitioners, 
v.

EDWARD L. KIRKLAND, et a l . ,

Respondent s .

On Writ Of Certiorari To The United States 
Court Of Appeals For The Second Circuit

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

P etition ers ' statement of the Question 

Presented inaccurately reflects what they seek 
this Court to review. This case presents no 

questions concerning federal constitutional or 
statutory provisions. Petitioners simply d is ­

agree with the lower courts' construction of a



- 2 -

particular section of the Uniform Guidelines on 

Employee Selection Procedures, 29 CFR §16.071., et 
seq . , as promulgated by the Equal Employment 

Opportunity Commission ("EEOC") in 43(166) Fed. 
Reg. 38290 et seq. (hereafter the Guidelines).—̂

Petitioners themselves concede the narrowness 
of the issue: " it is the manner of the application 

of the EEOC Guidelines in the particular facts of 
this case as they have developed since the first  

Court of Appeals decision to which petitioners 
object."  Pet. at 15 (emphasis added). Although 

petition ers allude to questions regarding the 
underlying l i a b i l i t y  issu e , they themselves 

recognize that the lia b ility  issue was finally  
determined long ago by the first opinion of the 

Court of Appeals (520 F.2d 420), and no review of 
that finding was ever sought. See Pet. at 14.

The full history of this 10-year-old l i t ig a ­
tion and many of the pertinent facts are set forth

1/ The section at issue is § 16 .07 .14B(8)(d). 
The text of this section and the related section, 
14B(8)(a), is set forth in the petition. Pet. at 
10, 11 and Pet. App. M-5, 6.



- 3 -

in the two reported opinions of the Second Cir­

cuit. See, 520 F.2d 420, 422-423; 426 (1975); 628 
F. 2d 796, 797-98 (198Q)(Pet. App. H-7 to 11; A-3 
to 9 ) . — The remainder of th is  section of the 
brief discusses the posture of the instant case. 

By order of  the d i s t r i c t  court ,  dated
July 31, 1974, Examination No. 34-944 was declared

3/unconstitutional and defendants-— were ordered to 
develop an examination validated in accordance 
with the Guidelines. July 31, 1974 Order, If 1
and 3(b), 8 EPD 19675 at 5838 (Pet. App. F-2, F-3 
to 4 ) .  The validation  was to be of the type 
known as "criterion validity" to the extent it was 
feasible. July 31, 1974 Order, 1 3(c), 8 EPD at
5838 (Pet. App. F -4 ) . Pursuant to that directive, 
defendants developed Examination No. 36-435.  
Defendants presented the criterion  v a lid ity

2/ Citations in this form refer to the appendix 
to the petition.

3/ Respondents include the New York State De­
partment of Correctional Services and the New 
York State Civil Service Commission, as well as 
the original p la in tiffs . In order to distinguish 
between the two sets of respondents, we refer to 
the respondents as p l a i n t i f f s  and defendants.



- 4 -

study to the district court for its  approval, and 
p l a i n t i f f s  consented to the entry o f an order 
granting the approval sought. 482 F.Supp. at 1181 
(Pet. App. B -3). Petitioners filed a proposed 

complaint in intervention (Pet. App, K). Plain­
t i f f s  and defendants moved for summary judgment, 
and the district court granted that motion. 482 
F.Supp. at 1181 (Pet. App. B~6).

The d i s t r i c t  court f i r s t  found that no 
triable issues of material fact barred the motion 
(Pet. App. B-6 to 7). At no point in the proceed­
ings had petition ers provided, or offered to 

provide, affidavits or other proof to oppose the 
technical aspects of the study or the opinions of 

p la in tiffs ' and defendants' experts. 482 F. Supp. 
at 1182 (Pet. App. B-9 to 10). —

The d i s t r i c t  court  then held that  the 
proposed addition of only 250 points out of a 
maximum of 8830 (Pet. App. L-7), to the scores 
of minority candidates conformed with the Guide-

4 / Only at this late hour do petitioners raise 
such issues by urging this Court to "evaluate the 
[defendants'] methodology" (Pet. at 11); however, 
even here they offer no additional facts. Cf. 628 
F. 2d at 797 n. 1.



5

lines. Id. (Pet. App. B -9). It assured com­
patibility between the probability of successful 
job performance and the probability o f  being 

selected . Id . , quoting Guidelines. It was 
not a quota in violation of the Second Circuit's  
prior decision (520 F.2d at 427-30), since it did 
not establish a fixed ratio of minority appoint­

ments without regard to test and job performance. 
482 F. Supp. at 1181 (Pet. App. B-8).

The Second Circuit affirmed the d i s t r i c t  
court's grant of summary judgment. 628 F.2d at 
798 (Pet. App. A -6 ) . Agreeing with the district  
court that petition ers had raised no triab le  
issues of material fact, it  held the 250-point 
adjustment was neither a quota nor forbidden 
reverse discrimination, but, rather, was a proper 
and necessary method of implementing the relief  
previously ordered. 628 F.2d at 799, 801 (Pet. 
A-9, 13). Petitioners do not question the pro­

priety of deciding the remedy issue on a motion 
for summary judgment; hence, like the lia b ility  
determination, the facts involved are not in 
dispute.



SUMMARY OF ARGUMENT

- 6 -

The petition for a writ of certiorari should 
be denied for two reasons. (1) The Court of 
Appeals properly affirmed the district court's 
exercise of discretion in implementing a remedy 
for a previously found consitutional violation. 
(2) The decision of the Court o f  Appeals is  
consistent with the decisions of other circuits 
and of this Court.

ARGUMENT

Reasons For Denying The Writ

I. IN UPHOLDING THE DISTRICT COURT'S APPROVAL 
OF EXAMINATION NO. 36-435, THE SECOND 
CIRCUIT PROPERLY AFFIRMED AN APPROPRIATE 
REMEDY FOR A SETTLED CONSTITUTIONAL 
VIOLATION.

In affirming the district court's decision 
sanctioning examination no. 36-435, the Second

Circuit Court of Appeals approved an appropriate 
remedy, while properly acknowledging the inherent 
power of the district court to implement a decree 
remedying a constitutional violation.



7

The duty of a district court upon a finding 
of unconstitutional racial discrimination is 
settled by decisions of this court:

Once a right and a violation have been 
shown, the scope of a d i s t r i c t  court ' s  
equitable powers to remedy past wrongs is 
broad, for breadth and f l e x i b i l i t y  are 
inherent in equitable remedies.

Swann V . Charlotte-Mecklenburg Board of Educa-

tion, 402 U.S. 1, 15 (1971 ). This principle has

been held to be equally applicable to cases

invol ving the framing of remedies for i l le g a l
employment discriminat ion:

Where racial di scriminat ion is con-
cerned, ' the d i s t r i c t  c.ourt has not
merely the power but the duty to render
a decree which will so far as possible 
eliminate the discriminatory effects of 
the past as well as bar like discrimina­
tion in the future.1

Albemarle Paper Company v. Moody, 422 U.S.  
405, 418 (1975) ,  quoting Louisiana v. United 
St at e s , 380 U.S.  145, 154 (1965) .  See also,  
Franks v. Bowman Transportation Co. , 424 U.S. 747, 
764 (1976), and Johnson v. Railway Express Agency,

421 U.S. 454, 460 (1975).



- 8 -

The e a r lier  opinion of the Second Circuit  

upheld the finding that the examination for 
promotion to the position of Correction Sergeant 
administered in 1972 (examination no. 34-944) was 
discriminatory, in violation of the Constitution. 

520 F. 2d at 426 (Pet. App. H-10). Petitioners 
concede that they do not challenge this finding 
(Pet. at 14). The earlier opinion also approved 
in its entirety the remedy ordered by the district  

court as it related to the development of a new, 
validated se lection  procedure. Id. (Pet.  

App. H -ll) .
The district court's order merely implemented 

that remedy, and it  provided for no more than 
would be necessary to effect present compliance 

with Title VII "and to prevent future discrimina­
tion of the kind found to have existed earlier in 
this cas e . "  628 F.2d at 798 (Pet.  App. A- 6 ) .  
Albemarle Paper Co v. Moody, supra. The appellate 

court's task was thus simply that of examining the 
implementation of the remedy, and, after consider­

ing a ll  objections, determining that the district  
court had carried out i ts  mandate and had not



9

abused its  discretion. There is , therefore, no 
question for this Court to review.

I I .  THE DECISION OF THE COURT OF APPEALS 
IS CONSISTENT WITH THE DECISIONS OF 
THIS COURT.

Despite their recognition that a l l  this  
case involves is interpretation of an adminis­
trative regulation, petitioners vainly attempt 

to set forth reasons for a grant of certiorari.
Petitioners argue that this Court should 

grant certiorari because of an asserted "expan­
sion" of the scope of Albemarle v. Moody, supra 

(Pet. at 21) or a misapplication of the princi­
ples of Washington v. Davis, 426 U.S. 229 (1976) 
(Pet. at 26), and based on their mistaken conten­
tion that the 250-point adjustment constitutes a 
minority preference or quota that contravenes the 
holding in University of California Regents v .

Bakke, 438 U.S. 265 (1978)(Pet. at 24). None of
. 5/these implied conflicts exists.-—

5/ Petitioners do not assert any conf l i ct  
among the c i r c u i t s  (Sup.  Ct . R. 1 7 . 1 ( a ) ) .  
Indeed, most courts of appeals have cited the



10 -

Recent decisions of this Court have endorsed 
the Guidelines, see Detroit Edison Company v » 
NLRB, 440 U.S. 301, 313 (1979), Dothard v. Rawlin-

5/ continued.

Guidelines with approval and often have en­
dorsed the concept of d i f f e r e nt i a l  v a l id i t y .  
See, e . g . ,  Boston Chapter N. A. A. C. P. ,  Inc. v. 
Beecher, 504 F . 2d 101 7, 1026 (1st' Cir.  1974),  
cert. Ten led , 421 U.S. 910 (1975); United States 
v. City of Miami, 614 F. 2d 1322, 1344 (5th Cir. 
1980) ; Sims v . Sheet Metal Workers International 
Assn. , 489~f". 2d 1023, 1025 (6th~Cir.' 1973)'; ' United 
States v. City of Chicago, 549 F. 2d 415, 433 (7th 
Cir. 1977), cert, denied, 434 U.S. 875 (1978);
Donnell v. General Motors Corp. ,  576 F. 2d 1292, 
1299-1300 (8th Cir. 1978); ' Blake v. City of Los 
Angeles , 595 F . 2d 1367, 1379 (9th Cir. 1978), '
cer t . denied, _____ U.S.  ___ _, 100 S. Ct . 1865
(1980); Douglas v. Hampton, 512 F.2d 976, 986-87
(D.C. Cir. 1975). In United States v. City of 
Chicago, supra, the court noted rr! ! I the EfiOG 
Guidelines require that an examination be validat­
ed for both minorities and whites. . . .  We do not 
consider this requirement a mere technicality. "  
See also, Rogers v. International Paper Co. ,  510 
F .2d 1340, 1350 (8th Cir. 1975); Stamps v. Detroit 
Edison Co. ,  365 F.Supp. 87, 117 (E.TJ7 mT cF'." T973')', 
modified, 515 F.2d 201 (6th Cir. 1975)(". . . it



11

son, 433 U.S. 321, 332 (1977) and Albemarle Paper 
Co. v. Moody, supra. In Albemarle, this Court 
expressly approved di f f e r e nt i a l  validation  of 
employment tests, noting that the Guidelines were 
entitled to "great deference". 422 U.S. at 431, 
quoting from Griggs v. Duke Power Company, 401 
U.S. 424, 433-34 (1971). The Court of Appeals has 
not expanded the' concept of differential valida­

tion; it  has merely affirmed the district court's 
interpretation of the provision in the Guidelines 
that covers the steps that may be taken once a
differential validity study shows the existence of

6 /"unfairness".— Were defendants to have ignored

5/ continued

becomes [defendant's] burden to prove that these 
test batteries are valid predictors of job perfor­
mance for blacks as a separate group where feasi­
ble. . . . " ) ,  concept approved on appeal, 515 F.2d 
at 313.

6/ As the Court of Appeals noted,

. . . once the results of . . .  a [differen­
t i a l  val i di t y]  comparison indicate a d i s ­
crepancy, the responsible authorities have a 
choice. They can return to the drawing board 
and design a new test meant to correlate to 
job performance ratings; or they can adjust



12 -

the evidence of unfairness and used the results 
of the examination without modification, "whites 

with a particular level of job performance would 
be selected at a higher rate than blacks and h is -  

panics with the same measured job performance." 
(Pet.  App. L - 6 , 7) .  Thus, contrary to p e t i ­

tioners' assertions, it  is only in the absence of 
the 250-point adjustment that a racial preference 

occurs, since in that case lesser qualified whites 
would have been selected over better qualified 
minorities. The action taken here by defendants 
is clearly within the contours of Albemarle, as 

five members of this Court recognized in Bakke

6/ continued

the test to bring the results into conformity 
with those ratings. See 29 C.F.R. § 1607.- 
1 4 ( 8 ) (d) . In this case,  they chose the 
l at t er  course of action, an alternative  
clearly  foreseen by our prior opinion.

628 F.2d at 799 (Pet. App. A-8, 9).

7/ After describing an example of differential 
v a l i d i t y ,  in a concurring opinion Mr. Justice  
Brennan noted the following:

By im plication, were it  determined that a 
test score of 50 for a minority corresponded



13 -

Nor does Washington v. Davis, supra, forbid

adherence to the Guidelines in developing a
non-discriminatory selection procedure, even in

a non-Title VII case. That decision holds only

that no one type of validation  is mandated by

the Constitution. 426 U.S. at 250-51. Petitioners
do not contend it was error for the defendants to

follow the Guidelines in developing the latest
examination. Nor are they able to demonstrate
any error in the Di s t r i ct  Judge's "sen sib le
construction" of Section 14B (8)(d) of the Guide-

8 /
lines. Cf. 426 U.S. at 251-52 .-

7/ continued

in "p o te n tia l for employment" to a 60 for 
whites, the test could not be used consis­
tently with Ti t l e  VII unless the employer 
hired m inorities with scores of 50 even 
though he might not hire non-minority ap­
plicants with scores above 50 but below 60.

Id. ,  438 U.S.  at 364 n . 37 (opinion joined by 
Mr. Justice White, Mr. Justice Marshall and Mr. 
Justice Blackmun). See also I d . at 306 n.43  
(opinion of Mr. Justice Powell).

8 / Petitioners appear to object only to the 
district court's reliance on a communication with 
the General Counsel of the very agency that draft­
ed the Guidelines and the lack of judicial prece­
dent for the precise interpretation (Pet. at 12).



- 14 -

While petitioners correctly note that 
this Court has shown a "concern regarding racial 
preference." Pet. at 25, in each instance where 
this Court has been presented with such questions, 
it has approved the use of racial distinctions, as 
an appropriate equitable remedy. See, e . g , ,  
Bakke, supra; United Steelworkers of America v .
Weber, 443 U.S. 193 (1979), Fullilove v. Klutznik,

U. S . _____ , 65 L. Ed.2d 902, 927 (1980) and

Franks v. Bowman Transportation Co. , supra. Here, 
however, as Mr. Justice Powell recognized in 
Bakke, the issue is not a quota or a preference 
for one group over another, but the perfection of 
a testing instrument within the l imits  of  the 
current state of the art:

To the extent that race and ethnic 
background were considered only to 
the e x t e n t  o f  c u r i n g  e s t a b l i s h e d  
inaccuracies in predicting academic 
perforlnrmclT  ̂ r̂T~*5n~gTTt~~Fe Irgued that 
there is no "preference" at al l .  438 
U.S.  supra, at 306 n. 43 [emphasis 
added].



15

CONCLUSION

For the foregoing reasons, the petition 

for a writ of certiorari should be denied.

Respectfully submitted,

0. PETER SHERWOOD*
JUDITH REED

10 Columbus Circle 
Suite 20.30
New York, New York 10019

Attorneys for Respondents 
Edward L. Kirkland, 
Nathaniel Hayes and the 
Plaintiff Class

*Counsel of Record

January, 1981



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