Globus v. Skinner Petition for a Writ of Certiorari to the US Court of Appeals for the District of Columbia Circuit

    No.

In The Supreme Court of the United States
October Term, 1990

Kathleen Shetler Globus, Petitioner

v.

Samuel F. Skinner, Respondent

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

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Phillip R. Kete
Counsel of Record 

7216 Spruce Ave.
Takoma Park, Md. 20912 
(301)891-2295



QUESTION PRESENTED

Whether a presumption of 
reprisal should be created upon 
proof that an employee was de­
nied placement in a position in 
lieu of separation reasonably 
soon after she was identified 
by management as the "ring­
leader" of a "women's lib"
Title VII suit, or whether the 
prima facie case include proof 
that either there was no hiring 
freeze or the necessary exemp­
tion was obtained?



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TABLE OF CONTENTS

OPINIONS BELOW 1
JURISDICTION 2
STATUTES 2
STATEMENT 3
1. Introduction 3
2. The District Court's Findings 6

a) Prima facie case of 
reprisal in decision of grudge­
holding manager to separate whom 
he characterized as "ring-leader"
of "women's lib" class action. .. 10

b) Ms. Shetler could not
have been separated but for the 
decision to not offer her a 
vacancy.........................  14

c) Determination by
district court that Ms. Shetler's 
prima facie case failed for lack 
of proof that the concededly 
existent position was 
"available." .................  18

d) Although a vacancy con­
cededly existed, "availability" 
was defined as depending on 
whether an exemption from a 
hiring freeze was necessary and
had been obtained...............  19



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e) Lack of evidence that
any exemptions were requested 
from any hiring freeze in order 
to offer vacancies to employees 
affected by the RIF............  22

f) Alternative findings —
rejected by court of appeals —  
that prima facie case was 
rebutted by reasons in fact never 
articulated by the agency...... 2 4
3. Court of Appeals decision ... 27

REASONS FOR GRANTING THE PETITION 30
A. The conflict among the 

circuits requires resolution by 
this Court......................  3 3

1. Most circuit court deci­
sions define the reprisal 
prima facie case based only 
on the temporal relationship 
between protected activity 
and adverse personnel deci­
sion, without adding the el­
ements of an analogous sim­
ple discrimination case. .. 37
2. The District of Columbia 
and Eleventh Circuits re­
quire proof of the elements 
of a simple discrimination 
case as part of the prima 
facie case of reprisal. 41



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3. A significant number of 
circuit court panels effec­
tively deny any presumption 
in reprisal cases at all. 43
B. Determination of the

elements of the prima facie case 
is necessary even though the case 
was fully tried, because the em­
ployer declined to provide evi­
dence of any legitimate reason 
but the court refused to presume 
reprisal animus from the plain­
tiff's evidence................  47

C. Title VII Policy
Dictates Creation Of A Presump­
tion Of Reprisal When Adverse 
Personnel Decisions Are Made 
Reasonably Soon After Participa­
tion In Protected Activities. 50

1. A presumption of 
reprisal should be created 
by evidence which is ratio­
nally connected to reprisal 
motivation, sufficient to 
protect employers from trial 
of frivolous cases, and 
which respects the relative 
conveniences in production 
of evidence. 54



-iv-

2. Placing the burden on 
the employer of proving im­
pediments to filling a 
vacant position better 
serves the purposes of Title 
VII than does making dis­
proof of impediments part of 
the plaintiff's prima facie 
case.......................  59

CONCLUSION ....................  64
APPENDIX
Court of Appeals Order, granting 
Summary Affirmance ............  la
District Court Findings of Fact
and Conclusions of Law ......... 3a
District Court Order Denying
Motion for Reconsideration .... 38a
Court of Appeals Order Denying 
Petition for Rehearing ........  44a
Trial Transcript (Excerpts) .... 45a
Pi. Exh. 274 (Excerpt) ........  59a
Def. Exh. 3 (Excerpts) .........  60a
Def. Exh. 6 (Excerpts) .........  61a
Def. Exh. 18 (Excerpts) ......  62a
Stipulations (Excerpts) .......  63a
Appellee's Reply [to Appellant's 
Opposition to Motion for Summary 
Affirmance] (Excerpts) .........  64a



35

40

39

62

40

40

39

34

40

40

57

-v-

TABLE OF AUTHORITIES
Canino v. United States EEOC, 707 
F.2d 468 (11th Cir. 1983) ........
Davis v. Lambert of Arkansas, Inc., 
781 F.3d 658 (8th Cir. 1986 ......
Davis v. State Univ. of New York,
802 F.2d 638 (2nd Cir. 1986) .....
Furnco Construction Corp. v. Waters, 
438 U.S. 567, 577 (1978) .........
Gonzalez v. Carlin, 907 F.2d 573 
(5th Cir. 1990) ..................
Gonzalez v. Carlin, 907 F.2d 573 (5th Cir. 1990) ..................
Grant v. Hazelett Strip-Casting 
Corp., 880 F.2d 1564 (1st Cir. 1989)
Hochstadt v. Worcester Foundation, 
Etc., 425 F.Supp. 318 (D.Mass.
1976), aff'd 545 F.2d 222 (1st Cir. 
1976) ............................
Holland v. Jefferson Nat. Life Ins. 
Co., 883 F.2d 1307 (7th Cir. 1989)
Jalil v. Avdel Corp., 873 F.2d 710 
(3rd cir. 1989) ..................
Jayasinghe v. Bethlehem Steel Corp., 
760 F.2d 132 (7th Cir. 1985) .....



-VI-

Jennings v. Tinley Park, 796 F.2d 
962 (7th Cir. 1986) ..............
Klein v. Trustees of Indiana 
University, 766 F.2d 275 (7th Cir. 
1985 .........................  36,
La Montagne v. American Convenience 
Products, Inc., 750 F.2d 1405 (7th Cir. 1984) .......................
Lego v. Twomey, 404 U.S. 477 (1972)
Love v. Re/Max of America, Inc., 738 
F.2d 383 (10th Cir. 1984) ........
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) 31, 33, 36, 38,

52,
McKinney v. Dole, 765 F.2d 1129 
(D.C. Cir. 1985) .................
Mitchell v. Baldridge, 759 F.2d 80, 
(D.C.Cir. 1985)  35,
Payne v. McLemore's, 654 F.2d 1130 
(5th Cir. 1981)   39,
Petitti v. New England Tel. & Tel. 
Co., 909 F.2d 28 (1st Cir. 1990)
Polk v. Yellow Freight, 876 F.2d 527 
(6th Cir. 1989) ..................
Price Waterhouse v. Hopkins, 104 
L. Ed. 2d 268 (1989)   43,

39

44

56
27

39

61

39

42

40

40

39

46
Ruggles v. California Polytechnic 
State University, 797 F.2d 782 (9th 
Cir. 1986) ...................  36, 45



—V 11 —

Simmons v. Camden Country Bd. of 
Educ., 757 F.2d 1187 (11th Cir.1985)  39
Smith v. Horner, 846 F.2d 1521, 1524 
(D.C.Cir. 1988)....................  7
Taylor v. McKeithen, 407 U.S. 191 
(1972).............................  28
Teamsters v. United States, 431 U.S.324 (1977)   61
Texas Department of Community 
Affairs v. Burdine, 450 U.S. 248 
(1981)...... 26, 31, 33, 36, 48, 49, 53
Tot v. United States, 319 U.S. 463 (1943)   55
Transamerican Freight v. Brada 
Miller, 423 U.S. 28 (1975)   27
United States Postal Service v.
Aikens, 460 U.S. 711 (1983) ....47, 49
Waddell v. Small Tube, 799 F.2d 69 
(3rd Cir. 1986) ................  39
Williams v. Boorstin, 663 F.2d 109, (D.C.Cir. 1980) ................  35
Williams v. Cerberonics, 871 F.2d 
452 (4th Cir. 1989)   39
Womack v. Munson, 619 F.2d 1292 (8th 
Cir. 1980)   39



-vill-

Yartzoff v. Thomas, 809 F.2d 1371
(9th Cir. 1987)....................  38

STATUTES:
5 U.S.C. § 5362 ................... 27
5 U.S.C. § 5363 ..................  27
5 U.S.C. § 7703 (b)(2) .......... 7, 33
42 U.S.C. § 2000e-3(a) ........... 2
42 U.S.C. § 2000e-16(a) .......... 3
42 U.S.C. § 2000e-16(c) ..........  7

REGULATIONS:
5 C.F.R. § 351.201(b) (1983) ..... 15
5 C.F.R. Part 351 (1983) .........  14

MISCELLANEOUS:
F. James & G. Hazard, Civil
Procedure § 7.9 (2nd Ed. 1977).

51, 56, 58
Maguire, Evidence, Common Sense and
Common Law, (1947) ...............  31
Morgan, Basic Problems of Evidence, 
(1962) ...........................  58



-IX-

Morgan, Tot v. United States: 
Constitutional Restrictions on 
Statutory Presumptions, 56 Harv.Law Rev. 1324 (1943)...............  33
Annual Report of the Director of the 
Administrative Office of the United 
States Courts, 1988 ..............  33



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No.
In The Supreme Court Of The United States 

October Term, 1990

Kathleen Shetler Globus, Petitioner
v.

Samuel Skinner, Respondent

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

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Kathleen Shetler Globus respectfully 
petitions for a writ of certiorari to re­
view the judgment of the United States 
Court of Appeals for the District of 
Columbia Circuit in this case.

OPINIONS BELOW
The opinion of the court of appeals 

(App. p. la) is unreported. The main 
opinion of the district court (Revercomb,



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D.J.) (App. 4a) is reported at 721 
F.Supp. 329. The district court's order 
denying a motion for reconsideration 
(App. 33a) is unreported.

JURISDICTION
The judgment of the court of appeals 

(App. la) was entered on August 13, 1990, 
and a petition for rehearing was denied 
on November 30, 1990 (App. 44a). On 
February 15, 1991, Chief Justice Rehn- 
quist extended the time for filing this 
petition to March 28, 1991. The ju­
risdiction of this Court is invoked under 
28 U.S.C. § 1254(1).

STATUTES
42 U.S.C. § 2000e-3(a) . It 
shall be an unlawful employment 
practice for an employer to 
discriminate against any of his 
employees or applicants for em­
ployment . . . because he has
opposed any practice made an



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unlawful employment practice by this subchapter, or because he 
has made a charge, testified, 
assisted, or participated in 
any manner in an investigation, 
proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-16(a) All 
personnel actions affecting em­
ployees or applicants for em­
ployment . . .  in executive 
agencies . . . shall be made 
free from any discrimination 
based on race, color, religion, 
sex, or national origin.

STATEMENT 1

1. Introduction. This petition is 
filed because the District of Columbia 
Circuit, in conflict with most of the 
other circuits, requires Title VII 
reprisal plaintiffs in certain types of 
cases to proof more facts than are neces­
sary to justify a presumption of 
reprisal.



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the plaintiff, Ms. Shetler1, met the 
standards for creating a presumption that 
her reduction in force separation in 1983 
was an act of reprisal for her being, in 
agency management's words, the 
"ringleader" behind a "women's lib" Title 
VII class action suit, the court found 
this presumption did not extend to the 
decision to not offer Ms. Shetler a par­
ticular vacancy in lieu of separation.
In conflict with the rule followed in 
every circuit but the District of 
Columbia and the Eleventh, the courts be­
low held that the prima facie case as to 
this decision included proof of the same 
job-related elements as are contained in 
the ordinary sex or race discrimination 
prima facie case. The courts accepted 1

1 As noted in the district court opinion, plain­
tiff used her maiden name, "Shetler," while work­
ing for the agency, and that appellation was re­
flected in the various exhibits and the trial 
testimony. App. 5a n. 1. For convenience, it is 
continued to be used here.



-5-

the agency's argument that this meant Ms. 
Shetler had to prove that there had been 
exemption requested to a facially 
inapplicable hiring freeze, that she had 
failed to adequately do so2, and thus was 
not entitled to judgment even in the ab­
sence of an articulated reason for not 
offering her the job.3

Certiorari review is sought because 
the D.C. Circuit rule, followed by the

2 Ms. Shetler's evidence on the point was lim­
ited to showing that neither of the hiring 
freezes identified in the record applied to of­
fering vacancies in lieu of reduction in force 
separation, that the agency had a policy of of­
fering vacancies in lieu of reduction in force 
separation notwithstanding the purported freezes, 
and that twelve of her colleagues (who had not 
been repeatedly denounced by top management as 
women’s lib litigation ringleaders) had been of­
fered vacancies without any evidence of freeze 
exemptions having been obtained.
3 The district court did, alternatively, find 
the agency had articulated legitimately reasons 
for not offering Ms. Shetler the position. App. 
41a-42a, discussed below. These were generally 
left undefended at the court of appeals, which 
limited its affirmance to the sole ground of 
failure "to establish a orima facie case concern­
ing the availability of such a position." App. 
la.



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courts below, conflicts with the rule 
followed in the other circuits, and fails 
to reflect a proper understanding of the 
nature and role of presumptions in Title 
VII litigation. We discuss below the 
conflict among the circuits and the need 
for a definitive resolution by this Court 
(see pages 29 et seq., below). First, 
however, we briefly describe the findings 
and conclusions of the courts below.

2. The District Court's Findings. 
Ms. Shetler was removed in a reduction in 
force in 1983 from her GS 13 position in 
the Maritime Administration ("Marad").
An administrative claim before the Merit 
Systems Protection Board that the separa­
tion was a reprisal for earlier activity 
protected by Title VII was unsuccessful,4 4

4 Reprisal against a federal employee for exer­
cising Title VII rights is itself a Title VII vi-



-7-

and Ms. Shetler exercised her right to a 
trial de novo in the District Court. 5 
U.S.C. § 7703(b)(2); 42 U.S.C. § 2000e-
16(c).

The court found that Ms. Shetler's
supervisor regarded her as a productive
employee of the Office of Maritime Labor
and Training and had consistently rated 

5her highly, App. 17a; that she had been 
involved in class action Title VII lit­
igation charging systematic race and sex 
discrimination by the Maritime 
Administration, App. 5a; and that her 
case centered around the "alleged animus 
toward her by Mr. Russell Stryker, 5

olation. Smith v. Horner, 846 F.2d 1521, 1524 
(D.C.Cir. 1988).

5 Mr. Arthur Friedberg, the head of that office, 
testified specifically that Ms. Shetler was a 
valued member of his staff, that her removal was 
not a matter of getting rid of a useless func­
tion, and that her performance was always better 
than satisfactory— i.e., it was commendable or 
outstanding. App. 49a-50a.



-8-

associate administrator for policy and 
administration, who reported to Admiral 
Shear, administrator of Marad." App.
5a.

A few months after trial in the 
class action, the duties of one of Ms. 
Shetler's colleagues were eliminated and, 
simultaneously, the office's ceiling was 
reduced by one. App. 8a. To accommodate 
the ceiling reduction, Ms. Shetler's po­
sition (rather than the position which no 
longer had any duties) was abolished.
App. 7a-8a. A GS 6 typing position was 
vacant in another office, and Ms. Shetler 
was offered it in lieu of separation.
App. 52a. She accepted the offer, App. 
52a, but shortly before the RIF effective 
date one of her office colleagues un­
expectedly resigned, bringing the office 
down to ceiling by attrition, and the



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abolition of Ms. Shetler's position was 
therefore cancelled. App. 9a.

The 1983 RIF was set in motion sev­
eral months later, prior to the final 
decision in the class action. App. 63a.
A decision was made to reduce the 
agency's employment from 1,054 in early 
1983 to ceiling to 993 effective October 
1, 1983. App. 9a. Although attrition 
actually brought employment down to 994 
by the end of June of that year, App.
63a, Ms. Shetler's position and those of 
several other employees were nevertheless 
abolished. The conseguence of going 
through with the reduction in force was 
that the agency reached October 1, 1983, 
with 956 employees and over 30 vacancies. 
App. 63a. Ms. Shetler's claim is that 
the failure to offer her one of those 
vacancies, specifically, a position in 
the clerical reserve pool, was an act of



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reprisal for her activity in support of 
the earlier class action litigation.

a) Prima facie case of reprisal in 
decision of grudge-holding manager 
to separate whom he characterized as 
"ring-leader" of “women's lib" class 
action.
The court found that Ms. Shetler had

made out a prima facie case of reprisal
in her separation based on the temporal
proximity of her protected activities and
decisions adverse to her, evaluated in
light of the substantial direct evidence
of reprisal animosity on the part of Mr.
Russell Stryker:

[T]he Court concludes that the 
plaintiff succeeded in making 
out a orima facie case of re­
taliation. . . . [I]t is no­
table that the plaintiff was 
first told that she would be 
laid off in the 1982 RIF only a 
few months after the trial in 
Harrison. even though this no-



-11-

tification was later cancelled. 
Because the date of the first 
RIF certainly was close enough 
to make out a prima facie case 
of retaliation, the Court be­
lieves that the fact the plain­
tiff was laid off in the next 
RIF also is enough to establish 
a prima facie case.

*  *  *

Finally, the plaintiff helps 
prove a prima facie case of 
discrimination by citing nega­tive comments by Mr. Stryker 
and Mr. Friedberg regarding EEO 
activities. Although the offi­
cials did not take any adverse 
action against the plaintiff when they made the comments, 
the statements themselves help 
connect the plaintiff's EEO ac­
tivity and her dismissal enough 
to help establish a prima facie case.

App. 27a-29a.
As the court noted, Mr. Stryker was 

not only upset by Ms. Shetler's leader­
ship in the class action litigation, but 
he took the trouble to complain about her 
both to her supervisor and at his own 
weekly senior staff meetings:



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The plaintiff and other wit­
nesses testified that Mr. 
Stryker was displeased with Ms. 
Shetler's EEO activities and 
about the Harrison litigation 
in generally. He occasionally 
made unfavorable comments about 
her to her supervisor and often 
mentioned her at weekly staff 
meetings during the Harrison 
litigation.

App. 6a.
What specifically Mr. Stryker re­

peatedly said to his senior staff (who 
included both the personnel director and 
Mr. Jack Mann, the official whom the 
agency identifies as having made the de­
cision not to offer Ms. Shetler the va­
cancy at issue here6), was that the 
Harrison litigation was a "women's lib" 
project, and that Ms. Shetler was its 
"ringleader." App. 46a-48a.

The evidence established, moreover, 
that Mr. Stryker was willing, if neces­

"[T]he decision whether to fill a vacant po­
sition lay . . . with Jack Mann, the manager who 
had the vacancy." App. 64a.



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sary, to await a propitious moment to get
back at those he deemed his enemies:

QUESTION: Do you know the ex­
tent to which Mr. Stryker would 
quickly forgive his enemies or 
forget the grounds of animos­ity?
CAPT. WHITCHER: To the best of
my knowledge, he never forgave 
anybody anything.

*  *  *

THE COURT: He said he didn't
think that he would ever for­
give anybody for anything they 
did adverse to him. He held a grudge a long time, I guess.

App. 46a.
Indeed, the agency does not dispute 

that, in violation of the Age 
Discrimination in Employment Act, Mr. 
Stryker used the same 1983 RIF to oust an 
older manager and replace him with Mr. 
Mann.7 Pl.Exh. 475 at 142.

7 It was also undisputed that Mr. Stryker in­
volved himself in personnel decisions of his man­
agerial subordinates, even as to the filling of 
clerical positions. App. 48a-49a.



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b) Ms. Shetler could not have been 
separated but for the decision to 
not offer her a vacancy.
Ms. Shetler's complaint was that she 

had been separated as an act of reprisal 
for her protected Title VII activities. 
Throughout the litigation, both parties 
recognized that the abolition of Ms. 
Shetler's position was not sufficient to 
accomplish this end.8 The complicated 
reduction in force procedures in the fed­
eral civil service, 5 C.F.R. Part 351 
(1983), have the effect of eliminating 
any one-to-one correspondence between an

8 The court concluded that the agency rebutted 
the presumption that the overall reduction in 
force, the reduction in the ceiling in Ms.
Shetler’s office, and the abolition of Ms.
Shetler's position were motivated by reprisal, by 
providing testimony of non-retaliatory reasons 
for each of these decisions. App. 30a. The 
court concluded, further, that Ms. Shetler did 
not prove these articulated reasons to be unwor­
thy of credence. App. 30a. The court's errors 
on these points are not subject to this petition.



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employee's position being abolished and 
his or her being separated; through 
arcane "bumping" and "retreating" proce­
dures, it may well be that employee 
Smith's position is abolished but em­
ployee Jones goes out the door (with 
Smith taking the Jones position). In ad­
dition, and central to the present case, 
the civil service regulations allow, but 
do not require, an agency to offer vacan­
cies in lieu of separation to employees 
whose positions have been abolished, 5 
C.F.R. § 351.201(b) (1983). That is,
the decision whether to offer a vacancy 
in lieu of separation stands on the same 
ground as the decision whether to abolish 
a position: it lies within the sole dis­
cretion of the agency, unconstrained by 
civil service regulations, but subject to 
Title VII requirements that the decision



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not be made for discriminatory or 
reprisal reasons.9

Thus, abolishing Ms. Shetler's posi­
tion would not result in her being sepa­
rated unless either (a) there was no va­
cant position which she could be offered 
or (b) the agency exercised its discre­
tion to not offer her to an otherwise 
available position. This discretion 
could be exercised either by a blanket 
policy for or against offering vacancies, 
or by case by case exceptions to a gen­
eral policy. In the RIF affecting Ms. 
Shetler, the Maritime Administration had 
adopted a policy of offering vacancies to

9 If the decision were not within the agency's 
discretion, that is, if the civil service regula­
tions either barred or required offers of vacan­
cies, Title VII could not be involved. If the 
agency failed to offer a vacancy, but such an of­
fer would violate the RIF regulations, Title VII 
would not be violated. If the agency failed to 
offer a vacancy even though the particular offer 
was mandated by RIF regulations, the employee 
would have a complete remedy without having to 
prove illegal animus.



-17-

qualified10 employees whose jobs were
abolished:

PLAINTIFF'S FOURTH 
INTERROGATORY No. 20(a): In
the 1982 or 1983 reduction in 
force was any employee offered 
a vacancy even though he or she 
had not been determined to be 
entitled to displace an em­
ployee at or below the grade of 
that vacancy?
RESPONSE: Yes. It is MarAd's
policy to offer authorized va­
cancies to employees whose po­
sitions would be affected by 
RIF, provided they meet the 
qualifications requirements for those vacancies.

App. 59a.
Among the twelve of Ms. Shetler's 

headquarters colleagues who were offered 
vacancies in the 1983 RIF were Mr. John 
Faruki, a GS 14 who was offered a GS 4

Ms. Shetler had been offered a typing vacancy 
in 1982, in lieu of separation, only upon the 
personnel director's express finding that she was 
qualified for clerical jobs. App. 51a-52a. 
Moreover, under civil service regulations, quali­
fications requirements can be waived when consid­
ering employees for vacancies in lieu of separa­
tion. App. 50a.



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clerk-typist position, Rona LaPrade, a GS 
12 who was offered a GS 6 secretary 
(typing) position, and Alvin Foltz, a GS 
12 who was offered a GS 4 clerk-typist 
position. App. 61a.

c) Determination bv district court 
that Ms. Shetler's prima facie case 
failed for lack of proof that the 
concededlv existent position was 
"available.11
The court concluded that Ms. Shetler 

failed to make out a prima facie case of 
reprisal in failing to be offered a va­
cancy because she had failed to prove the 
availability of the clerical position in 
question:

There is no evidence that such 
a clerical position was avail­
able. Plaintiff points only to 
the general testimony that one 
of the four clerical positions



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exempt from the 1983 RIF was 
vacant at the time of plain­
tiff's termination. Plaintiff 
then asks the court to "infer 
that the [defendant's] office 
had determined that the vacancy 
was going to be filled." The 
Court will not indulge plain­
tiff in this inference. Ms. 
Globus and her counsel had the 
opportunity to develop direct 
testimony regarding the alleged 
vacancy at trial. In the ab­
sence of such evidence, this 
Court will not "infer" an es­
sential element of plaintiff's 
case after trial.

App. 40a-41a (footnote omitted).

d) Although a vacancy concededlv
existed, "availability" was defined
as depending on whether an exemption
from a hiring freeze was necessary
and had been obtained.
The agency freely admitted that

among the more than 30 vacancies which
existed concurrent with the RIF was the
clerical job in dispute here:

[T]he existence of a clerical 
vacancy is uncontradicted . . .



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App. 64a.
What the agency explained was that 

the clerical vacancy in question was not 
available, within the meaning of its pol 
icy to offer vacancies in lieu of separa 
tion, because Ms. Shetler had failed to 
prove that an exemption from an alleged 
hiring freeze had been obtained in order 
to fill it11:

Although the existence of a 
clerical vacancy is uncontra­
dicted, at least four other 
points, critical to appellant's 
case were in dispute: 1)
whether MARAD requested an ex­
emption from the hiring freeze 
to fill the position; . . .

App. 64a.

11 The agency identified the following addi­
tional points as being in dispute: "2) whether
appellant was a qualified typist; 3) whether 
appellant was entitled to the position; 4) 
whether the failure to offer appellant the posi­
tion was due to an illegal, retaliatory motive.” 
App. 64a.



-21-

The trial record did contain two 
distinct personnel freezes. One, dated 
April 16, 1982, was entitled "Civilian 
Hiring Freeze." App. 62a. On its face 
it only barred "hires of persons from 
outside [Department of Transportation]," 
and it specifically excluded "Personnel 
actions resulting in the movement of em­
ployees within the Department." App. 
62a. The effect of this freeze was to 
reserve vacancies for those, like Ms. 
Shetler, who were already inside the 
agency, unless Marad obtained a 
departmental exemption in order to 
recruit from the outside.

The other freeze, which went into 
effect July 1, 1983 was expressly de­
signed to facilitate, rather than re­
strict, the filling of vacancies by cur­
rent employees whose own positions were 
being abolished:



-22-

A personnel action freeze was 
implemented on July 1, 1983. 
Vacancies could not be filled 
after that date unless employ­
ees who were scheduled to be 
affected by RIF were selected 
for those vacancies. There 
were successful placements; 
for example, Code 500 agreed to 
make offers to vacant positions 
to 4 employees who would have 
either bumped other employees 
or who would have been sepa­
rated by RIF. Other vacancies 
were filled in the same manner.

We continue to make . . . every
effort to place affected em­
ployees within MARAD.

App. 60a.

e) Lack of evidence that any exemp­
tions were requested from any hiring 
freeze in order to offer vacancies 
to employees affected bv the RIF.
There is no doubt that twelve of Ms. 

Shetler's headquarters colleagues were 
offered vacancies during the 1983 RIF 
(including three offers involving demo-



-23-

tions comparable to that sought by Ms.
Shetler):

vacancv offeredlGS-9 Thomas, P. GS-7 Secty 
(Steno)

GS-11 Bryant, Memphis GS-8 Trade 
Route Asst

GS-14 Ledbetter, Roscoe GS-13 Contract 
Spec

GS-7 Higbee, Ann GS-6 Secty- 
typing

GS-7 Watson, Carol GS-5
Accountant

GS-6 Hawkins, Beverly GS-6
GS-4 Byers, Cheryl GS-4 Clerk- 

typist

GS 9 Isaac, Joyce GS-6 Secty 
(Steno)

GS 12 Foltz, Alvin GS 4 Clerk 
Typist

GS 7 Washington, Y GS 6 Subs Rate 
Asst

GS 12 Laprade, Rona GS 6 Secty 
(Typing)

GS-14 Faruki, John GS-4 Clerk 
Typist



-24-

App. 61a.
As with the position claimed by Ms. 

Shetler, with respect to each of these 
vacancy offers there is no evidence one 
way or the other "whether MARAD requested 
an exemption from the hiring freeze to 
fill the position," App. 64a. In ac­
cepting the agency's claim Ms. Shetler 
had failed to prove the availability of 
the clerical reserve pool vacancy, how­
ever, the courts below, accepted the 
agency's argument that proof of exemption 
from the hiring freeze was essential.

f) Alternative findings -- rejected 
by court of appeals -- that prima 
facie case was rebutted by reasons 
in fact never articulated bv the 
agency.
Alternative to the finding that Ms. 

Shetler's prima facie case depended on



-25-

proof that an exemption to a facially-
nonapplicable freeze had been obtained,
the district court held that the agency
had articulated three reasons for failing
to offer the job and that Ms. Shetler had
failed to discredit any of them:

[E]ven if plaintiff had suc­
ceeded in establishing a prima facie case, plaintiff has not 
proved that defendant's reasons 
for failing to offer plaintiff 
a clerical position were merely 
pretextual. . . . [A]s all 
parties agree, defendant had no obligation to offer plaintiff 
another position. Defendant 
reasonably believed that plain­
tiff would not accept a lower 
clerical position since she had 
previously rejected a similar 
demotion when faced with termi­
nation resulting from a reduc­
tion in force in 1982. Defen­
dant also introduced testimony 
that indicating that demotion 
of a relatively high level em­
ployee, such as plaintiff, to 
the level of GS 6 would create 
obvious managerial problems.

App. 34a.
Only the first of these was defended 

by the agency on appeal, it having been



-26-

the reason which the agency's pre-trial 
submissions had indicated would be testi­
fied to. As it happened, however, that 
testimony was never offered.12

The other alternative explanations 
were so bizarre that they were abandoned 
by the agency on appeal.13 There had 
been no testimony, nor any other evidence 
whatsoever, regarding problems that sub­
stantial demotions might imply; other 
than the fact that other employees, i.e., 
employees not denounced by the Mr. 1

1 9 As this Court has emphasized, a presumption 
can be rebutted only by evidence actually admit­
ted at trial, not by statements of counsel:

An articulation not admitted into ev­
idence will not suffice. Thus, the 
defendant cannot meet its burden 
merely through an answer to the com­
plaint or by argument of counsel.

Texas Department of Community Affairs v. Burdine, 
450 U.S. 248, 255 n. 9 (1981).

As will be seen, the court of appeals de­
clined to consider them when affirming the 
court's judgment. Below, p. 27-8.



-27-

Stryker as the women's lib lawsuit 
ringleader, were offered substantial de­
motions in lieu of separation,14 the 
question never arose in any manner or 
form before, during, or after the trial. 
And, although Ms. Shetler had indeed been 
offered a demotion to a clerical position 
when faced with termination in 1982, she 
had accepted the offer, not rejected it.

3 . Court of Appeals decision.
Ms. Shetler noted an appeal, but be­

fore briefing was scheduled the agency 
filed a motion for summary affirmance.
The motion was granted by a short, per 
curiam, unpublished order.15 The court I

I4 It should be noted that such demotion carried 
no loss of pay, 5 U.S.C. §§ 5362, 5363, and that 
by the time of the trial in this case every sin­
gle employee who had been demoted in the RIF had 
been re-promoted to his or her former grade.

^  This Court has no policy against reviewing 
unpublished or summary court of appeals deci­
sions. Transamerican Freight v. Brada Miller.
423 U.S. 28, 34, 46 L.E.2d 169 (1975); Lego v.



-28-

affirmed on the sole ground that Ms. 
Shetler had failed to prove the avail­
ability of the position:

ORDERED that the motion [for 
summary affirmance] be granted 
substantially for the reasons 
stated by the district court in 
its Findings of Fact and 
Conclusions of Law, filed 
September 13, 1989, and Order, 
filed November 29, 1989. . . .
We affirm the district court's 
conclusion regarding the 
agency's failure to offer ap­
pellant a position in lieu of 
separation solely on the ground 
that appellant failed to estab­
lish a prima facie case con­
cerning the availability of 
such a position. See Texas 
Department of Community Affairs 
v. Burdine. 450 U.S. 248, 252- 
53 (1981).

App. la.
A petition for rehearing was denied, 

App. 3a, and a suggestion for rehearing 
en banc was declined.

In essence, the agency's position, 
endorsed by the courts below, is that the



-29-

presumption that the agency acted for 
reprisal reasons in separating Ms.
Shetler did not apply to the decision to 
not offer her an authorized vacancy be­
cause— as to this portion of the decision 
to separate— the plaintiff's prima facie 
case includes proving that the identified 
authorized vacancy has been exempted from 
a hiring freeze which is facially inap­
plicable to it.



-30-

REASONS FOR GRANTING THE PETITION

The courts below resolved erro­
neously a question of great importance to 
the administration of anti-discrimination 
laws, in conflict with the decisions of 
other courts of appeals, and inconsistent 
with this Court's Title VII and presump­
tions jurisprudence.

In a series of Title VII discrimina­
tion cases, this Court judicially created 
a rebuttable mandatory presumption16 of 
discrimination upon the proof of a set of 
facts— a prima facie case— whether or not 
the trier of fact would necessarily infer

16 Technically, "mandatory rebuttable presump­
tion" is redundant. By definition, an ordinary 
presumption is mandatory and rebuttable. What is 
referred to as a "presumption of law," is irre­
buttable. On the other hand, if the effect of 
the evidence is nothing more than that the jury 
is allowed to infer the fact in issue, there is 
an inference but not a presumption.



-31-

discrimination from those facts.
McDonnell Douglas Corp. v. Green, 411 
U.S. 792 (1973); Texas Department of 
Community Affairs v. Burdine, 450 U.S.
248 (1981). This Court has not, however, 
ever addressed whether such a presumption 
can be created in a Title VII reprisal 
case.17 As will be shown, this Court's 
Title VII jurisprudence clearly demands 
recognition of a reprisal presumption and 
clearly what the elements of a prima fa­
cie case of reprisal should be.

The District of Columbia Circuit and 
the Eleventh Circuit allow presumptions 
to be created in reprisal cases, but take 
an idiosyncratic view of the elements of 
the prima facie case, adding to the stan­

17 This is not surprising: "[BJecause of ir­
regular fortuity in presentation of presumption 
cases to the top court, there are quite sure at 
all times to be important and embarrassing gaps 
even as to well established presumptions in any 
classification schemes." Maguire, Evidence, 
Common Sense and Common Law, 188 (1947).



-32-

dard reprisal elements the elements of 
what would be a prima facie case of sim­
ple race or sex discrimination. In addi­
tion, a few decisions scattered among the 
circuits effectively reject the possibil­
ity of a presumption of reprisal at all, 
holding that the employer has nothing to 
rebut unless the plaintiff actually 
convinces the trier of fact that reprisal 
was the employer's motive. Thus, how 
allegations of Title VII reprisals are 
litigated is determined both geographi­
cally and by the luck of circuit court 
panel appointments.

Ms. Shetler's evidence established a 
prima facie case of reprisal as defined 
by most panels in every circuit but two. 
This arbitrary distinction is unnecessary 
and, by this Court, easily correctable.
It should be corrected because the 
confusion not only increases the



-33-

likelihood of erroneous decision-making, 
but wastes the time, attention, and 
efforts of the participants (litigants 
and courts)18 in a substantial area of 
federal litigation.19

A. The Conflict Among The Circuits 
Requires Resolution By This Court.

All twelve of the geographical cir­
cuits20 say that reprisal cases are gov­
erned by McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) and Texas

18 "Each party and the court must know where
[the burden of introducing evidence] rests ar ev­
ery stage of the trial . . . ” Morgan, Tot v. 
United States: Constitutional
Restrictions on Statutory Presumptions, 56 Harv.Law Rev. 1324, 1325 (1943).
19 Between 1984 and 1988, around 9,000 employ­
ment discrimination cases a year were filed in 
the federal district courts. Annual Report of 
the Director of the Administrative Office of the 
United States Courts, 1988, 185.

20 The U.S. Court of Appeals for the Federal 
Circuit has jurisdiction over a range of federal 
government employment cases, but those involving 
Title VII are expressly excluded from that juris­
diction. 5 U.S.C. § 7703(b)(2).



-34-

Dept. of Community Affairs v. Burdine,

450 U.S. 248 (1981). All go on to recite
that the plaintiff is to prove certain 
facts— the prima facie case; then the 
defendant must rebut that case by intro­
ducing evidence of a legitimate non­
reprisal reason for its decision; and 
then the plaintiff has an opportunity to 
prevail by showing the articulated reason 
to be unworthy of credence. The circuits 
are unanimous in reciting that the ele­
ments of a reprisal prima facie case are 
that the plaintiff prove (1) that she en­
gaged in protected activity, (2) that she 
suffered an adverse employment decision, 
and (3) that there is a causal connection 
between the two.21 In practice, however, 
three radically different approaches are 
followed. First, in the majority of
o  *1 Thxs formula seems to have originated with 
Hochstadt v. Worcester Foundation, Etc., 425 
F.Supp. 318, 324 (D.Mass. 1976), aff'd 545 F.2d 
222 (1st Cir. 1976).



-35-

cases, the courts (correctly) find prima 
facie reprisal upon proof that the em­
ployee engaged in protected activity, the 
employer knew of the activity, and the 
employer made an adverse personnel deci­
sion within a short enough time that 
anger at the employee's actions would not 
have been completely attenuated.

Secondly, the District of Columbia 
Circuit and the Eleventh Circuit define 
the prima facie case by adding to the ba­
sic reprisal formula the elements of the 
simple discrimination prima facie case 
(other than membership in a protected 
group). Williams v. Boorstin, 663 F.2d 
109, 116-17 (D.C.Cir. 1980); Mitchell v. 
Baldridge, 759 F.2d 80, 86 n. 5 (D.C.Cir. 
1985) ; Canino v. United States EEOC, 707 
F.2d 468 (11th Cir. 1983); and the pre­
sent case. Where, as here, the reprisal 
was the failure to offer the plaintiff a



-36-

position, those elements are proof that 
the position claimed by the plaintiff was 
truly available and that the plaintiff 
was qualified for the position.

Finally, scattered through the cir­
cuits are decisions holding that a prima 
facie case of reprisal depends on the 
trier of fact, in the particular case in 
dispute, determining that in fact 
reprisal was the employer's motivation. 
Ruggles v. California Polytechnic State 
University, 797 F.2d 782 (9th Cir. 1986); 
Klein v. Trustees of Indiana University, 
766 F.2d 275 (7th Cir. 1985). This line 
of cases does not recognize the creation 
of a presumption within the meaning of 
McDonnell Douglas and Burdine.



-37-

1. Most circuit court decisions de­

fine the reprisal prima facie case 
based only on the temporal relation­

ship between protected activity and 
adverse personnel decision, without 
adding the elements of an analogous 
simple discrimination case.

In a case of simple discrimination 
(i.e, race discrimination, without any 
reprisal claim) in hiring, the prima fa­
cie case consists of proof: that the
plaintiff belongs to a racial minority; 
that he applied and was qualified for a 
job for which the employer was seeking 
applicants; that, despite his qualifica­
tions, he was rejected; and that, after 
his rejection, the position remained open 
and the employer continued to seek appli­
cants from persons of the plaintiff's



-38-

qualifications. McDonnell Douglas, 411 
U.S. at 802.

In reprisal cases, on the other 
hand, the usual standard for finding a 
prima facie case is for the plaintiff to 
prove protected activity and adverse per 
sonnel decision, and then to prove, in 
the name of causality, that the employer 
was aware of her activity and decided ad 
verse to her reasonably soon after the 
activity:

Causation sufficient to estab­
lish the third element of the 
prima facie case may be in­
ferred from circumstantial evi­
dence, such as the employer's 
knowledge that the plaintiff 
engaged in protected activities 
and the proximity in time be­
tween the protected activity 
and the allegedly retaliatory 
employment decision. Miller 
[v.Fairfield Industries, Inc.,
797 F.2d 727 (9th Cir. 1986)] 
at 731-32.

Yartzoff v. Thomas, 809 F.2d 1371, 1376 
(9th Cir. 1987).



-39-

Indeed, every circuit has issued de­
cisions holding that a presumption of 
reprisal is created by an adverse person­
nel decision following protected activity 
that the employer was aware of.22

Outside the District of Columbia and 
Eleventh Circuits, job-related issues 
(e.g., the plaintiff's qualifications for 
the job and whether the employer in fact 
intended to fill the vacancy in the first 
place) are addressed after the prima fa­
cie case of reprisal is established, as 
part of the employer's rebuttal and the 
employee's attack on that rebuttal.

22 Grant v. Hazelett Strip-Casting Corp., 880 
F.2d 1564 (1st Cir. 1989); Davis v. State Univ. 
of New York, 802 F.2d 638 (2nd Cir. 1986);
Waddell v. Small Tube, 799 F.2d 69 (3rd Cir. 
1986); Williams v. Cerberonics, 871 F.2d 452 
(4th Cir. 1989); Payne v. McLemore's, 654 F.2d 
1130 (5th Cir. 1981); Polk v. Yellow Freight,
876 F.2d 527 (6th Cir. 1989); Jennings v. Tinley 
Park, 796 F.2d 962 (7th Cir. 1986); Womack v. 
Munson, 619 F.2d 1292 (8th Cir. 1980); Love v. 
Re/Max of America, Inc., 738 F.2d 383 (10th Cir. 
1984); Simmons v. Camden Country Bd. of Educ., 
757 F.2d 1187 (11th Cir. 1985); and McKinney v. 
Dole, 765 F.2d 1129 (D.C. Cir. 1985).



-40-

Holland v. Jefferson Nat. Life Ins. Co., 
883 F.2d 1307, 1316 (7th Cir. 1989), and 
Gonzalez v. Carlin, 907 F.2d 573 (5th 
Cir. 1990).

Indeed, outside the D.C. and 11th 
Circuits, the courts seem to make a point 
of emphasizing that if a single personnel 
decision is attacked as both an act of 
discrimination and an act of reprisal, 
the two issues are analyzed using differ­
ing (and non-overlapping) prima facie 
cases. Davis v. Lambert of Arkansas, 
Inc., 781 F.3d 658 (8th Cir. 1986);
Jalil v. Avdel Corp., 873 F.2d 710 (3rd 
Cir. 1989); Payne v. McLemore1s 
Wholesale & Retail Stores, 654 F.2d 1130 
(5th Cir. 1981), cert, denied 455 U.S. 
1000; Gonzalez v. Carlin, 907 F.2d 573 
(5th Cir. 1990) ; and Petitti v. New 
England Tel. & Tel. Co., 909 F.2d 28 (1st 
Cir. 1990).



-41-

Thus, it is settled throughout most 
of the circuits that the issue which was 
central to Ms. Shetler's case— whether 
the vacancy she claimed was truly avail­
able— is considered as part of the em­
ployer's rebuttal rather than the plain­
tiff's prima facie case.

2. The District of Columbia and 
Eleventh Circuits require proof of 
the elements of a simple discrimina­

tion case as part of the prima facie 
case of reprisal.
The rule in the District of Columbia 

Circuit and the Eleventh Circuit is that 
a prima facie case of reprisal regarding 
a decision concerning a particular posi­
tion does not arise unless the plaintiff 
proves he or she was qualified for it:

In cases of alleged retaliatory 
discharge, failure to hire, or 
failure to promote, the plain-



-42-

tiff must also show as part of 
the prima facie case that he 
was qualified for the position. 
Williams v. Boorstin, 663 F.2d 
109, 16-17 (D.c.cir. 1980); 
see also Canino v. United 
States EEOC, 707 F.2d 468, 471- 
72 (11th Cir. 1983).

Mitchell v. Baldridge, 759 F.2d 80, 86 n.

We do not dispute that the rule 
identified in Mitchell applies to all as­
pects of the prima facie case— in our 
case, it applies to job availability as 
well as qualifications for the job. The 
problem is that the Mitchell rule is out 
of line with the approach generally fol­
lowed in the other circuits. It is this 
conflict which should be resolved by the 
Court, particularly because, as will be 
shown below, the D.C. Circuit rule is
wrong.



-43-

3. A significant number of circuit 
court panels effectively deny any 
presumption in reprisal cases at 
all.
In both the Seventh and the Ninth 

Circuits there are lines of cases inter­
preting "prima facie case" as meaning 
proof that actually convinces the trier 
of fact that reprisal was one of the rea­
sons for the employer's decision. Thus, 
one Seventh Circuit case says the plain­
tiff must satisfy the trier of fact that 
but for the alleged reprisal he or she 
would not have been subjected to the 
challenged employment decision:23 23

23 Satisfying the trier that in fact the em­
ployer would not have taken the adverse action 
but for a reprisal motivation does not create a 
presumption of reprisal, subject to rebuttal by 
an articulated non-reprisal reason; it estab­
lishes the fact of reprisal, entitling the plain­
tiff to judgment unless the employer succeeds in 
proving (by a preponderance of the evidence) that 
it would have made the same adverse decision even 
absent the reprisal motivation. Price Waterhouse 
v. Hopkinss, 104 L.Ed.2d 268 (1989).



-44-

To establish a prima facie case 
of retaliatory discharge . . .
the plaintiff must show: (1)
he opposed an employment prac­
tice that was unlawful within 
the meaning of Title VII or he 
participated in a proceeding 
under Title VII; (2) he suf­
fered an adverse action by his 
employer; (3) because of his 
opposition or participation.
See Rucker v. Higher 
Educational Aids Bd., 669 F.2d 
1179, 1182 (7th Cir. 1982).
The plaintiff must show that 
the employer would not have 
taken the adverse action "but 
for" his opposition or partici­
pation. McCluney v. Jos,
Schlitz Brewing Co., 728 F.2d 
924, 928 (7th Cir. 1984). 
Successfully establishing a 
prima facie case gives rise to 
a rebuttable presumption of 
discrimination.

Klein v. Trustees of Indiana University, 
766 F.2d 275 (7th Cir. 1985)

A leading Ninth Circuit case simi­
larly requires proof by a preponderance 
of the evidence that but for reprisal 
there would not have been a discharge, 
before the defendant has any burden of
proof or production:



-45-

In this circuit, retaliation 
claims have arisen most often 
in the context of an employee's 
termination, and the causation element in those cases requires 
the plaintiff to show "by a 
preponderance of the evidence 
that engaging in a protected 
activity was one of the reasons 
for the firing and that but for 
such activity the plaintiff 
would not have been fired."
Kauffman v. Sidereal Corp., 695 
F.2d 343, 345 (9th Cir. 1982).

Ruggles v. California Polytechnic State 
University, 797 F.2d 782 (9th Cir. 1986).

As will be discussed in Part C, be­
low, what this Court did in McDonnell 
Douglas and Burdine is create what is 
academically referred to as a "true pre­
sumption," one which shifts the burden of 
production of evidence (without affecting 
the burden of proof) upon the plaintiff's 
establishing certain facts, whether or 
not the trier of fact would infer the ul­
timate fact from them. The Klein-Ruggles 
line of cases —  whether rightly or 
wrongly decided —  are not recognizing



-46-

true presumptions in reprisal cases, as 
do the other cases cited above. Instead, 
they require reprisal plaintiffs to some­
how24 prove facts sufficient to bring 
their cases within the ambit of Price 
Waterhouse v. Hopkins, 104 L.Ed.2d 268 
(1989), with the trier of fact accepting 
that reprisal was one motivation and that 
the employer's articulated reason was an­
other and then determining whether the 
articulated reason would have resulted in 
the adverse decision even absent the 
reprisal reason.

24 This could most likely succeed where, as 
here, there is direct evidence of employer anger 
at the employee's protected activity.



-47-

B. Determination of the elements 
of the prima facie case is necessary 
even though the case was fully 
tried, because the employer declined 
to provide evidence of any legiti­
mate reason but the court refused to 
presume reprisal animus from the 
plaintiff's evidence.
An important preliminary question 

must be addressed, which is how can the 
question of prima facie case be presented 
once the case has been fully tried? As 
this Court has emphasized, at that point 
the simple question of discrimination or 
legitimate motives should be decidable. 
U.S. Postal Service v. Aikens, 460 U.S. 
711, 716 (1983)

The Aikens court did not have before 
it the situation presented here— with the 
employer declining to introduce evidence 
of any nondiscriminatory reason, but the



-48-

court refusing to honor the presumption 
created by the plaintiff's evidence.
Here, in contrast to the case in Aikens, 
the decision depends solely on whether 
the plaintiff's evidence does or does not 
create a legally binding presumption. If 
the evidence was sufficient, Ms. Shetler 
was entitled to judgment despite the dis­
trict court's honest belief that there 
must have been some legitimate reason for 
deciding not to offer her a vacancy in 
lieu of separation:

Establishment of the prima fa­
cie case in effect creates a 
presumption that the employer 
unlawfully discriminated 
against the employee. If the 
trier of fact believes the 
plaintiff's evidence, and if 
the employer is silent in the 
face of the presumption, the 
court must enter judgment for 
the plaintiff because no issue 
of fact remains in the case.

Burdlne, 450 U.S. at 254 (footnote omit­
ted) .



-49-

That presumption is dissipated only 
by the introduction, through evidence at 
trial, of the employer's claimed reason, 
ibid. Nothing in Aikens suggests that 
the defendant's mere participation in the 
trial destroys the legally mandatory in­
ference of discrimination. It is only 
when "the defendant has done everything 
that would be reguired of him if the 
plaintiff had properly made out a prima 
facie case," Aikens, 460 U.S. at 716, 
that is, when the defendant has actually 
"set forth, through the introduction of 
admissible evidence, the reasons for the 
plaintiff's rejection," Burdine, 450 
U.S. at 255, that the district court is 
free to choose between the plaintiff's 
explanation and whatever non-discrimina- 
tory explanations the defendant argues or 
(as here) appear sua sponte to the court.



-50-

C. Title VII Policy Dictates 
Creation Of A Presumption Of 
Reprisal When Adverse Personnel 
Decisions Are Made Reasonably Soon 
After Participation In Protected 
Activities.
Whether Ms. Shetler's evidence 

should have created a presumption of 
reprisal in failing to offer her the po­
sition in the clerical reserve pool de­
pends mainly on what a presumption is, 
and what purposes is serves— a subject 
notorious for its complexity:

It has been aptly observed that 
"presumption" is the slipperi­
est member of the family of le­
gal terms, except its first 
cousin, "burden of proof." . .

The lawyer must still grap­
ple with complexities, intrica­
cies and confusions that have 
enshrouded the subject for gen­
erations .

Louisell, Federal Evidence § 65 at p. 
518 (1977) (footnotes omitted).



At this point, it may suffice to 
note the three common meanings given the 
term "presumption," and to stress that 
what we are concerned with is the manda­
tory rebuttable type, the presumption 
which merely shifts the burden of produc­
ing evidence. The other two uses of the 
term must be distinguished from the pre­
sumption considered here. The first is,

the presumption of law, or con­
clusive or irrebuttable pre­
sumption. If A is shown, then 
B is to be presumed without 
guestion and the court will not 
even receive evidence or enter­
tain argument to show the 
nonexistence of B. And the 
court will direct a jury that 
if they find A to be proven 
they must also find B . . . .

F. James & G. Hazard, Civil Procedure § 
7.9 at 253-4 (2nd Ed. 1977.

At the opposite end of the scale are 
simple inferences, and the court's role 
in determining whether a jury can be al­
lowed to make a particular inference:



-52-

The word "presumption" is occa­
sionally used to refer to the 
logical inference of one fact 
from the existence of another.
. . . [CJourts set limits to
the drawing of inferences and will permit juries to draw only 
those which the courts consider 
rational.

Ibid., 254-5.
What concerns us here are presump­

tions of the type created by this Court 
in McDonnell Douglas, what the text au­
thors refer to as true presumptions:

The word "presumption" properly 
used refers only to a device 
for allocating the production 
burden. It operates thus: If
B is presumed from A, then on a 
showing of A, B must be assumed 
by the trier in the absence of 
evidence of non-B. To put it 
another way, if A is shown, 
then the party who asserts non- 
B has the production burden on 
the issue of B's existence or 
non-existence.

Ibid., 255.
"Prima facie case," in this context,

means the evidence necessary to create 
the presumption, rather than, as in other



-53-

contexts, the evidence sufficient (absent 
a presumption) to resist a motion for di­
rected verdict:

The phrase "prima facie case" 
may denote not only the estab­
lishment of a legally manda­
tory, rebuttable presumption, but also may be used by courts 
to describe the plaintiff's 
burden of producing enough evi­
dence to permit the trier of 
fact to infer the fact at is­
sue. . . . McDonnell Douglas
should have made it apparent 
that in the Title VII context 
we use "prima facie case" in 
the former sense.

Burdine, 450 at 254 n. 7.
Thus, in defining the prima facie 

case of reprisal this court is not set­
ting out standards for judging what in­
ferences are sustainable, but determining 
what evidence should be deemed sufficient 
so as to require the employer to state in 
evidence at trial what it contends the 
true reason for the challenged personnel
decision is.



-54-

1. A presumption of reprisal should 
be created by evidence which is ra­
tionally connected to reprisal moti­
vation, sufficient to protect em- 
plovers from trial of frivolous 
cases, and which respects the rela­
tive conveniences in production of 
evidence.
The authority creating a presumption 

(in this case, a court) has broad discre­
tion in identifying the elements of the 
prima facie case. There are, however, 
two extremes which must, or should, be 
avoided. In some cases, the elements of 
the prima facie case so clearly imply the 
presumed fact that to create a formal 
presumption is a waste of time:

In Hawes v. Georgia, 258 U.S.
1, the . . . statute provided 
that when distilling apparatus 
was found on the premises this 
should be prima facie evidence



-55-

that the person in actual pos­
session had knowledge of its 
existence. . . . The infer­
ence so accorded with common 
experience that a statutory 
provision scarcely was neces­
sary to shift the burden of proof.

Tot v. United States, 319 U.S. 463, 470-1 
(1943) .

On the other extreme, a presumption 
is not constitutionally permissible "if 
there is no rational connection between 
the fact proved and the ultimate fact 
presumed, if the inference of the one 
from proof of the other is arbitrary be­
cause of lack of connection between the 
two in common experience." Tot, 319 U.S. 
at 467-8.

In sum, one would not create a pre­
sumption where the proven facts necessar­
ily imply the ultimate fact, and one may 
not create a presumption where the proven 
facts have no logical relation at all 
with the ultimate fact. It is in the



-56-

broad space between these two poles that 
the decision is made as to exactly what 
facts should create the presumption.
This is a policy decision, made in light 
of the other factors going into the cre­
ation of presumptions:

What, then, are the bases upon 
which courts or legislatures 
will create presumptions? For 
the most part they are the same 
kind of reasons that influence 
the production burden gener­
ally, and these may be summed 
up as reasons of convenience, 
fairness, and policy.

F. James & G. Hazard, Civil Procedure § 
7.9, p 256 (2nd Ed. 1977).

By definition, recognition of proof 
by way of presumption allows a plaintiff 
to present a discrimination case in the 
absence of direct evidence of discrimina­
tory motive25; it would hardly make

25 "The special virtue of the indirect method of 
proof is that it allows victims of age discrimi­
nation to prevail without presenting any evidence 
that age was a determining factor in the em­
ployer's motivation." La Montagne v. American



-57-

sense to demand the equivalent of direct 
proof in order to make out a prima facie 
case. On the other hand, it can be eas­
ily conceded that the elements of a prima 
facie case must be sufficiently rigorous 
to indicate some difference between the 
case at bar and run-of-the-mill adverse 
personnel decisions:

[T]he prima facie burden is a 
useful barrier that serves to 
screen out unsubstantiated dis­
crimination charges. The em­
ployer is spared unnecessary 
litigation expense by its abil­
ity to file a motion to dis­
miss, a motion for summary 
judgment, or a motion for di­
rected verdict where the plain­
tiff fails to distinguish his 
or her case from the ordinary, 
legitimate kind of adverse per­
sonnel decision . . .

Jayasinghe v. Bethlehem Steel Corp., 760
F.2d 132, 134 (7th Cir. 1985).

Convenience Products, Inc., 750 F.2d 1405, 1409- 
10 (7th Cir. 1984).



-58-

The final factor relevant26 to de­
termining the elements of a Title VII 
presumption is to ensure that, as nearly 
as possible consistent with the other 
criteria, the evidentiary burdens fairly 
reflect the relative access to informa­
tion:

Access to evidence is often the 
basis for creating a presump­
tion. When goods are damaged 
in a bailee's possession, for 
instance, the bailee can more 
easily find out what happened 
to them than the bailor, so it 
is fair to presume the bailee's 
negligence as an initial matter 
and put to the production of 
exculpatory evidence if he has 
any. The owner of an automo­
bile has been means of knowing 
whether the driver was in his 
service when it struck the 
plaintiff than has the plain­
tiff.

Harper & James, 257.

26 Professor Morgan has identified a number of 
other reasons which have caused courts or legis­
latures to create or recognize presumptions, 
Morgan, Basic Problems of Evidence, 32-33 (1962), 
but none of these seems applicable to Title VII.



-59-

Thus, it is fair to state that a 
presumption of reprisal should arise from 
such evidence as would allow serious 
reprisal allegations to be distinguished 
from the frivolous, while at the same 
time allocating the evidence production 
burdens as nearly as possible consistent 
with the parties' relative convenience.

2. Placing the burden on the em­
ployer of proving impediments to 
filling a vacant position better 
serves the purposes of Title VII 
than does making disproof of impedi­
ments part of the plaintiff's prima 
facie case.
Both the formulation followed in 

most of the circuits and the formulation 
followed in D.C. and the 11th Circuit 
meet the first two criteria identified



-60-

above— they allow plaintiffs to seriously 
present cases in the absence of direct 
evidence of reprisal motivation, and they 
protect employers from full-scale trials 
where the reprisal claim has no apparent 
basis.

The D.C. formulation requires that 
the plaintiff disprove hypothetical rea­
sons for the employer's decision— in this 
case, that the plaintiff prove the reason 
was not the existence of a hiring freeze 
which barred the filling of the clerical 
vacancy. The majority formulation would 
disregard such reasons unless and until 
the employer itself presented some evi­
dence that the alleged freeze was its 
true reason. It cannot be doubted that 
the majority formulation better reflects 
the access to the information as to the 
employer's true reason:



-61-

[T]he employer was in the best 
position to show why any indi­
vidual employee was denied an 
employment opportunity.
Insofar as the reasons related 
to available vacancies or the 
employer's evaluation of the 
applicant's qualifications, the company's records were the most 
relevant items of proof.

Teamsters v. United States, 431 U.S. 324,
359 n. 45 (1977).

To be sure, in simple discrimination 
cases, reasons related to available va­
cancies or the employer's evaluation of 
the applicant's qualifications are made 
part of the prima facie case. McDonnell 
Douglas, 450 U.S. at 802. But this allo­
cation of proof is in spite of, not be­
cause of, estimates of convenience. In a 
simple discrimination case, the plaintiff 
must produce evidence directed at 
possible reasons for his or her rejection 
because absent that evidence no likeli­
hood of discrimination would appear in
the case at all:



-62-

A prima facie case under 
McDonnell Douglas raises an in­
ference of discrimination only 
because we presume these acts, 
if otherwise unexplained, are 
more likely than not based on 
the consideration of impermis­
sible factors. [citation omit­
ted] . And we are willing to 
presume this largely because we 
know from our experience that 
more often than not people do 
not act in a totally arbitrary 
manner, without any underlying 
reasons, especially in a busi­
ness setting. Thus, when all 
legitimate reasons for reject­
ing an applicant have been 
eliminated as possible reasons 
for the employer's actions, it 
is more likely than not the em­
ployer, who we generally assume 
acts only with some reason, 
based his decision on an imper­
missible consideration such as 
race.

Furnco Construction Corp. v. Waters, 438 
U.S. 567, 577 (1978).

In a reprisal case, in contrast, the 
screening function is sufficiently per­
formed by the reprisal-related elements—  
proof that the employee engaged in pro­
tected activities and the employer rea­
sonably soon thereafter made an adverse



-63-

personnel decision. The job-related ele­
ments, essential to create a presumption 
of simple discrimination, are unnecessary 
to this purpose in a reprisal case. The 
majority of the circuits are, therefore, 
correct in treating questions such as job 
freezes and job qualifications as matters 
to be raised in the employer's rebuttal, 
rather than as elements of the plain- 

prima facie case.tiff's



-64-

CONCLUSION
A writ of certiorari should be is­

sued to the U.S. Court of Appeals for the 
District of Columbia circuit, bringing 
Ms. Shetler's case for review to this 
Court, so that the judicial confusion 
over the reprisal prima facie case can be 
resolved.

Respectfully submitted,

Phillip R. Kete 
Attorney for Petitioner 
7216 Spruce Avenue 
Takoma Park, Md. 20912
(301) 891-2295