Griffin v. Dugger Reply Brief for the Respondent in Opposition

    No. 87-1281

I n  t h e

ĵ uprrmr (Court of % Imtrfc Bintts
Octobee Teem, 1987

P enebs L. Gbiffin, et al.,

v.
Petitioners,

R ichabd L. D ugger, et al.,
Respondents.

ON PE T IT IO N  FOE A W RIT OF OEETIOEAEI TO T H E  U N ITED  STATES 

COUET OF APPEALS FOE T H E  E LE V E N T H  CIRCUIT

REPLY BRIEF FOR THE RESPONDENT 
IN OPPOSITION

J ulius L eY onne Chambebs 
R onald L. E llis 
Chaeles S tephen R alston 
Clyde E. Murpjiy*

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

H aeey L. W itte 
J eeey G. Teaynham

P atteeson and Teaynham 
1215 Tkomasville Road 
Post Office Box 4289 
Tallahassee, Florida 32315 
(904) 224-9181

Counsel for Petitioners
*Counsel of Record



No. 87-1281
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1987

PENERS L. GRIFFIN,
V .

et al., 
Petitioners,

RICHARD L. DUGGER, et al.,
Respondents.

On Petition For A Writ of Certiorari To 
The United States Court of Appeals 

For the Eleventh Circuit

REPLY TO BRIEF FOR THE RESPONDENT 
IN OPPOSITION

In their quest to avoid review of the 
substantive legal issues posed by the 
petition, the respondents have distorted 
the factual and procedural record of the 
proceedings below. In order to insure 
that consideration of the legal issues 
raised in the petition is not obscured,



2
petitioners respond to the most blatant of 
these misrepresentations.

1. In their introduction, the
respondents misstate the thrust of
petitioners' argument, as well as the
effect of the court of appeals holding. 
In fact, petitioners plainly do assert the 
right of Griffin both to charge before the 
EEOC and to litigate in federal court, 
his e m p l o y e r ' s  maintenance of a 
discriminatory working environment, and 
to show the connection between the 
employer's hiring policies and the injury 
he suffers as a result of those policies.

The respondents' formulation ignores 
the fact that the court of appeals' 
decision relies upon its holdings that a 
layman, filing an administrative charge 
with the Equal Employment Opportunity 
Commission (EEOC), is required to satisfy 
the requirements of Article III standing



3
in order to have that charge investigated 
and processed by the EEOC, and that 
Griffin, as an employee, could not 
challenge hiring discrimination.

2. The respondents' assertion that 
they did not have a "fair opportunity to 
litigate the merits of the test below"1 
is without legal or factual foundation.

The respondents had and availed 
themselves of their full opportunity under 
Rule 56, F.R. Civ. P. , to "litigate the 
merits of the test" or to show its "job 
relatedness" or "business necessity". In 
their response to the motion for summary 
judgment (R3-120), respondents conceded 
both that the test had a disparate impact 
on black applicants2, and that it had not

x Brief in Opposition, p. 9; See 
also. id.. at p.7 n.3.

2 The exam's disqualification rate 
for blacks was six times that for whites.



4
been validated3, and, acknowledged their 
burden to show business necessity. Rather 
than defend the test, however, the 
respondents claimed that their affirmative 
action hiring efforts negated its 
disparate impact.

Nowhere in their response to the 
Motion for Summary Judgment (R3-120) did 
respondents contend that the testing 
issue was not properly before the district 
court - whether because Griffin lacked 
standing to raise it or for any other 
reason. In fact, the respondents later 
expressly contended that the examination 
issues had been fully briefed and were 
"clearly before the Court", thereby

J Respondents argued that the 
validation study that had been performed 
was too flawed to be of use to the 
plaintiffs. Indeed the study showed that 
the test had a negative validity, in that 
persons who did well on the test performed 
relatively poorly on the job, and vice- 
versa.



5
making Smith's intervention unnecessary 
and inappropriate.4

3. The respondents' repeated claim 
that they challenged Griffin's standing to 
raise hiring issues, including the 
correctional officer examination, is 
false. Not once during the pleadings, 
pretrial motions, discovery, summary 
judgment proceedings or trial, did 
respondents assert this defense. Indeed, 
their litigation posture was quite 
inconsistent with this assertion.5

Defendants' response to motion 
to intervene, R4-145-4.

5 F o r  e x a m p l e ,  a l t h o u g h  
respondents moved for a protective order 
(R2-89) limiting discovery, the limitation 
sought merely to avoid discovery of events 
occurring prior to 1974, since Griffin's 
charge was not filed until February of 
1975, and was not based on any opposition 
to the hiring claim. Similarly, a second 
motion for a protective order (R2-90), 
filed by the Florida Department of 
A d m i n i s t r a t i o n ,  expressly offered 
discovery relating to the correctional 
officer examination.



6
Before the district court the 

respondents sought to defeat Smith's post- 
Falcon intervention by claiming that 
Griffin adequately represented Smith's 
interests on the correctional officer 
hiring claims.

Not only has Smith failed to 
show any facts evidencing 
inadequacy of representation, 
but also, the record and Smith's 
own statements refute such a 
contention. Smith's stated 
interest in intervening is to 
"... litigate his (hiring) 
claims in this action on his own 
behalf and on behalf of all 
others similarly situated." 
Motion, paragraph 6. But Smith 
also correctly states that "The 
Plaintiffs have vigorously 
maintained that the Plaintiff 
Griffin may properly represent 
such class members, (applicants) 
because he has suffered and 
continues to suffer direct and 
personal harm by the Defendants' 
exclusion of other class members 
(including Smith) from the 
(DOC's) work force..." Motion, 
paragraph 5.

In view of the above, 
Defendants submit that Smith's 
interests are a d e q u a t e l y  
represented and petitioner is 
not entitled to intervention as 
a matter of right pursuant to



Rule 24(a) Fed. R. Civ. P. 
(Parenthetical material in 
respondents' original).

Defendants' response to the motion to
intervene. R4-145.

Additionally, in response to the
Motion to Certify, (Rl-51), respondents
merely claimed that the motion was
premature, and subsequently entered a
stipulation (Petitioner's Appendix 89a)
which provided the basis for the district
court's order certifying the class.

Contrary to the assertions of the
respondents, the stipulation did not
"specifically preserve[] their rights to
litigate and to appeal the disputed issues
of standing. . 6 Indeed, the
stipulation makes no mention of standing,
and suggests that the respondents were
more concerned with challenging the merits

7

Brief in Opposition to Petition 
for Writ of Certiorari, p. 5.



8
of Griffin's claims, than their classwide 
applicability.7

4. Finally, the respondents' 
assertions that "since Smith had waited a 
year to file his charge, the EEOC 
dismissed it for lack of jurisdiction"8, 
and that "In effect, petitioners have 
asked this Court to overrule the EEOC's 
1982 determination that Smith's charge was 
untimely filed"9 , are totally false.

' T h e  S t i p u l a t i o n  ( S e e
Petitioners' Appendix 89a, 91a) reads in
pertinent part:

"4. The claims of the named 
plaintiffs are, under current 
law in the United States Court 
of Appeals, Fifth Circuit, 
similar to those of other 
members of the proposed class.
The parties maintain their right 
to brief these issues on appeal, 
if any. The Defendants believe 
that the employment record of 
the Plaintiff Griffin is not 
typical, but recognize that this 
issue relates to the merits of 
the claim rather than to the 
existence of the claim".
8 Brief in Opposition, p.21.
9 Id.



9
There is nothing in or out of the record 
to support this assertion. The EEOC made 
no such determination, and in fact issued 
Smith a right to sue letter.



10

CONCLUSION

For the foregoing reasons the 
petition for a writ of certiorari should 
be granted.

Respectfully submitted,

JULIUS L. CHAMBERS 
RONALD L. ELLIS 
CHARLES STEPHEN RALSTON 
CLYDE E. MURPHY*
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

HARRY L. WITTE 
JERRY G. TRAYNHAM 
PATTERSON AND TRAYNHAM 
1215 Thomasville Road 
Post Office Box 4289 
Tallahassee, Florida 32315 
(904) 224-9181

Counsel for Petitioners
*Counsel of Record

May 6 1988



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