Keyes v. School District No. 1 Denver, CO. Conditional Cross Petition for a Writ of Certiorari

    No. 81-83

ttjo Supreme (Eouri of tf|e plrttteh ̂ tatos
October Term, 1980

Anthony M. Salone, Jr., petitioner 

v.

United States of America, et al.

ON PETITION FOR A W R IT  OF C E R TIO R A R I TO 
THE UNITED STA TE S COURT OF A P PEALS FOR 

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

R ex E. L ee 
Solicitor General

Stuart E. Schiffer 
Acting Assistant Attorney General

Leonard Schaitman 
M ichael Jay S inger 

Attorneys
Department o f Justice 
Washington, D.C. 20530 
(202)633-2217



QUESTIONS PRESENTED

1. Whether the courts below, in awarding petitioner ret­
roactive promotions with backpay in this suit under Title 
VII of the Civil Rights Act of 1964,42 U.S.C. 2000e et seq., 
erred in requiring petitioner’s federal government employer 
to promote him to the GS-8 grade level rather than to a 
higher grade level.

2. Whether the court of appeals properly applied the 
“clearly erroneous” standard of review dictated by Rule 
52(a), Fed. R. Civ. P.





Page
Opinions below ..............................................................  1
Jurisdiction......................................................................  1
Statute involved ..............................................................  1
Statement .......................................................................  2
Argument ........................................................................  4
Conclusion ......................................................................  8

TABLE OF AUTHORITIES
Cases:

Albemarle Paper Co. v. Moody, 422 U.S.
405 ....................................................................  5,7

Baxter v. Savannah Sugar Refining Corp.,
495 F. 2d 437, cert, denied, 419 U.S.
1033 ......................................................................  5

Chandler v. Roudebush, 425 U.S. 840 .................. 2
Day v. Mathews, 530 F. 2d 1083 .........................  5
Franks v. Bowman Transportation Co.,

424 U.S. 747 ....................................................  5, 7
Langnes v. Green, 282 U.S. 531 ...........................  7
Marotta v. Usery, 629 F. 2d 6 1 5 ...........................  5
Pettway v. American Cast Iron Pipe Co.,

494 F. 2d 211, cert, denied, 439 U.S. 1115 ........ 5
Richerson v. Jones, 551 F. 2d 918 .......................  5

TABLE OF CONTENTS

I I I



IV

Page
Cases—Continued:

Swint v. Pullman-Standard, 624 F. 2d 525, 
cert, granted, Nos. 80-1190 & 80-1193
(Apr. 20, 1981) ..................................................... 8

United States v. United States Gypsum Co.,
333 U.S. 364 ........................... ............................  8

Statute and rule:

Civil Rights Act of 1964, Title VII,
42 U.S.C. 2000e et seq....................................... 1,2

Fed. R. Civ. P. 52(a) ..............................................  7



<3n %  jiufrrrmr Court of %  Pntirb jitairs
October Term, 1980

No. 81-83
Anthony M. Salone, Jr ., petitioner

v.

United States of America, et al.

ON PETITION FOR A W RIT  OF C ERTIO RARI TO 
THE UNITED STA TES COURT OF A P P E A LS FOR  

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW
The opinion of the court of appeals (Pet. App. la-23a) is 

reported at 645 F. 2d 875. The opinion and order of the 
district court (Pet. App. 24a-43a) are unreported.

JURISDICTION
The judgment of the court of appeals was entered on 

April 10, 1981. The petition for a writ of certiorari was filed 
on July 9, 1981. This Court’s jurisdiction is invoked under 
28 U.S.C. 1254(1).

STATUTE INVOLVED
Relevant portions of Title VII of the Civil Rights Act of 

1964, 42 U.S.C. 2000e et seq., are set forth on pages 3-5 of 
the petition.

1



2

STATEMENT
1. Petitioner, a black civilian employee of the United 

States Air Force at Tinker Air Force Base in Oklahoma, 
instituted this action in 1973 under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. 2000e et seq., following final 
administrative denial of his claims of racial discrimination 
and reprisal for previously filed complaints (Pet. App. 3a). 
The district court, in the first trial of this case, granted 
summary judgment for the government on the basis of the 
administrative record, and the court of appeals affirmed {id. 
at 3a-4a). 511 F. 2d 902 (10th Cir. 1975). This Court, how­
ever, vacated that judgment and remanded the case for 
further consideration in light of Chandler v. Roudebush, 
425 U.S. 840 (1976), which held that federal employees are 
entitled to a trial de novo in the district court of suits under 
Title VII. 426 U.S. 917 (1976).

Following additional administrative proceedings again 
culminating in a denial of petitioner’s claims, this case 
returned to the district court in 1979 for a trial de novo {Pet. 
App. 4a-5a, 32a).1 Petitioner, who at the time had served as 
a GS-5 grade level supply clerk since 1967 {id. at 8a), con­
tended that he would have advanced to a higher grade level 
in the absence of discrimination.

The district court convened a five-day hearing during 
which 22 witnesses testified, including several of petitioner’s 
former and present supervisors and fellow employees. Evi­
dence was presented which suggested that both black and

•Contrary to the court of appeals’and petitioner’s assertions that the 
government did not contest the issue of discrimination at trial (Pet. 9; 
Pet. App. 5a), the government did present testimony that there had been 
no discrimination against petitioner (see, e.g., Tr. 758-760). At the 
conclusion of trial, however, the district court ordered the parties to 
prepare proposed findings of fact after stating “there has been discrimi­
nation proven here” (Tr. 786). The government’s proposed findings of 
fact were, of course, drafted in conformity with that order.



3

white co-workers refer to petitioner as a troublemaker (Tr. 
58-59, 74, 83, 1 12, 290, 339, 581-582); that petitioner had a 
poor attitude at work (Tr. 750-751); that he was a loner and 
did not participate in any employee activities by choice (Tr. 
96, 521,751); that petitioner had trouble getting along with 
people (Tr. 521, 551); that he argued with other employees 
and disrupted his work (Tr. 394); and that he became angry 
and unpleasant when contacted by supervisors (Tr. 364, 
448-449). This evidence was contested by testimony that he 
had good working habits (Tr. 63-64); that he was diligent, 
alert and dependable (Tr. 113, 115); and that he was “a 
pretty excellent worker” (Tr. 290). The conflicting nature of 
the evidence is reflected in the district court’s findings of 
fact, which concluded both that petitioner’s “performance 
in his job was satisfactory” (Pet. App. 29a) and that peti­
tioner “is known by all his co-workers, both supervisory 
and otherwise, as a troublemaker. He has earned this label 
because he has gone out of his way to create turmoil and 
controversy * * *” (id. at 27a). The district court, based on 
the evidence presented at trial, held that petitioner should 
be retroactively promoted to a GS-7 grade level effective 
June 28, 1970, and to GS-8 grade level effective June 28, 
1972, with an appropriate award of backpay and attorneys’ 
fees (id. at 39a-40a). Dissatisfied with this relief, petitioner 
sought to amend the judgment on the theory that he would 
have been advanced to higher grade levels following his 
court-awarded promotion in 1972 to the GS-8 position or, 
in the alternative, that he would have at least received step 
increases at the GS-8 level (id. at 41a-42a).2 The district 
court denied petitioner’s motion to amend the judgment (id. 
at 41a-43a), and petitioner appealed.

2Petitioner also challenged the amount of the attorneys’ fees award 
(Pet. App. 42a), but the attorneys' fees issue is not involved in this 
petition (see Pet. 11 n.2).



4

2. On appeal, the Tenth Circuit substantially affirmed 
the district court’s judgment but, in effect, granted the 
alternative relief that had been sought in petitioner’s motion 
to amend the judgment. Thus, the court of appeals held that 
petitioner was entitled to the automatic step increases that 
he would have received as a GS-7 from 1970 to 1972 and as a 
GS-8 from 1972 until he was actually upgraded pursuant to 
the judgment below (Pet. App. 14a-15a, 16a-17a, 22a).3 
With regard to petitioner’s further contention that he 
should have been promoted above the GS-8 grade level, 
however, the court of appeals found there was a “good deal 
of evidence” that petitioner went “out of his way to create 
turmoil and controversy” (id. at 13a), and concluded that 
there was evidence in the record to support the trial court’s 
finding that petitioner would not have advanced beyond the 
GS-8 position (id. at 15a). Because that factual finding was 
not clearly erroneous, the court of appeals saw no basis for 
setting aside the trial court’s determination (id. at 16a).

ARGUMENT
Petitioner contends that notwithstanding his retroactive 

promotions and step increases he has been denied full relief. 
This case, however, poses no significant question of law 
under Title VII, presents no conflict with decisions of this 
Court or the courts of appeals, and does not warrant further 
consideration by this Court.

1. The decision of the court of appeals does not articulate 
any novel theory concerning the proper allocation of 
burdens of proof under Title VII of the Civil Rights Act of 
1964 once unlawful discrimination has been established.

3The court of appeals also reversed the district court’s ruling on 
attorneys’fees and remanded the matter for further proceedings (Pet. 
App. 17a-23a). On remand, the district court increased the attorneys’ 
fees award and added the automatic step increases to the amount of 
petitioner’s backpay award. See Nos. Civ-73-591-E & Civ-78-0091-E 
(W.D. Okla. July 22, 1981), appeal pending, No. 81-1930 (10th Cir.).



5

Rather, the court below simply concluded that on the fac­
tual record before it petitioner would not have been pro­
moted above the GS-8 grade level even in the absence of 
discrimination.

Title VII mandates that injured employees be restored to 
the positions they would have occupied but for unlawful 
discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 
405, 418-419 (1975); Pettway v. American Cast Iron Pipe 
Co., 494 F. 2d 211, 252 (5th Cir. 1974), cert, denied, 439 
U.S. 1115 (1979). Where a claimant asserts denial of a 
specified promotion and the court finds that the denial was 
discriminatory, the claimant is presumptively entitled to a 
retroactive promotion to that position, with the burden 
shifting to the employer to show that even absent the dis­
crimination the plaintiff would not have been selected for 
the position. Franks v. Bowman Transportation Co., 424 
U.S. 747,772-773 (1976); Marotta v. Usery, 629 F. 2d 615, 
617-618 (9th Cir. 1980), Richerson v. Jones, 551 F. 2d 918, 
924-925 (3d Cir. 1977); Day v. Mathews, 530 F. 2d 1083, 
1085 (D.C. Cir. 1976); Baxter v. Savannah Sugar Refining 
Corp., 495 F. 2d 437, 444 (5th Cir.), cert, denied, 419 U.S. 
1033 (1974); Pettway v. American Cast Iron Pipe Co., 
supra, 494 F. 2d at 259-260.

In this case both the district and appellate courts con­
cluded that petitioner had been discriminatorily denied a 
promotion to a GS-7 grade level position in 1970 and a 
GS-8 grade level position in 1972. Petitioner was properly 
awarded retroactive promotions with backpay to compen­
sate for those specific instances of discrimination. Peti­
tioner, however, contends that once discrimination has 
been established, he is entitled to hypothetical promotions 
beyond the ones serving as the foundation for his Title VII 
action (Pet. 26-27). Whatever the merits of this contention 
in the abstract, it is clear that on this record petitioner is not



6

entitled to additional relief based on speculative promo­
tions along a hypothetical career ladder. The district court, 
in a finding sustained by the court of appeals, specifically 
concluded that petitioner would not have received any 
further promotion beyond the GS-8 grade level even absent 
discrimination.4

Petitioner attempts to convert this purely factual holding 
into a question of law by arguing that the courts below 
improperly imposed on him the burden of proof regarding 
subsequent promotions. Neither court below specifically 
addressed the burden of proof issue. It is clear, nonetheless, 
that, contrary to petitioner’s assertions (Pet. 36-39), sub­
stantial evidence supports the district court’s conclusion 
that petitioner would not have been promoted beyond the 
GS-8 grade level even absent discrimination. During a five- 
day hearing the district court heard evidence that petitioner 
had trouble getting along with people (Tr. 521,551), argued 
with other employees and disrupted his work (Tr. 394), 
became angry and unpleasant when contacted by supervi­
sors (Tr. 364,448-449), had an overall poor attitude at work 
(Tr. 750-751), was commonly referred to as a troublemaker 
(Tr. 58-59, 74, 83, 112, 290, 339, 581-582), and was a loner 
who did not participate by choice in any employee activities 
(Tr. 96, 521, 751). These factors combine to support the 
district court’s holding that petitioner would not have been 
promoted above the GS-8 grade level even in the absence of

4The district court concluded (Pet. App. 42a):
The court finds that plaintiff would not have received any promo­
tions or step increases after June 28, 1972, because he was a 
trouble maker and spent a great deal of his time agitating other 
employees against management and became so preoccupied with 
his efforts to disrupt the procedure at Tinker that his job perfor­
mance was unsatisfactory, and his denial of advancement after 
said date was because of these factors and not because of his race.



7

discrimination (Pet. App. 27a~31a, 42a).5 The court of 
appeals concluded that this factual determination was not 
clearly erroneous {id. at 16a), and this factual issue presents 
no question warranting review by this Court.

2. Petitioner further contends that the court of appeals 
erred in its application of the “clearly erroneous” standard 
of review by deferring to the trial court’s factual determina­
tion that petitioner would not have advanced beyond the 
GS-8 level. Although petitioner urges this Court to review 
this casein order to elaborate on Rule 52(a), Fed. R. Civ. P., 
no such elaboration is warranted on the present record.

This Court has repeatedly observed that the courts of 
appeals, in reviewing backpay determinations under Title 
VII, must recognize “that the trial court will often have the 
keener appreciation of those facts and circumstances pecul­
iar to particular cases.” Albemarle Paper Co. v. Moody, 
supra, 422 U.S. at 421-422. See also Franks v. Bowman 
Transportation Co., supra, 424 U.S. at 780. Moreover, this 
Court has held that the standard of appellate review in such 
cases “will be the familiar one of whether the District Court 
was ‘clearly erroneous’ in its factual findings and whether it 
‘abused’ its traditional discretion to locate ‘a just result’ in 
light of the circumstances peculiar to the case.” Albemarle 
Paper Co. v. Moody, supra, 422 U.S. at 424-425, quoting 
Langnes v. Green, 22,2 U.S. 531, 541 (1931). And it is well 
established that the reviewing court should not set aside the 
trial court’s factual findings as clearly erroneous unless a 
careful review of the record leaves the court with a definite

Petitioner intimates (Pet. 17) that there is no record evidence of his 
conduct after 1972 to support the district court’s conclusion that he 
would not have advanced beyond a GS-8 grade level. This contention 
overlooks the fact that one of petitioner’s current supervisors testified 
that petitioner was presently regarded by his fellow employees as being 
“aloof” and having “lots of problems” (Tr. 521).



8

and firm conviction that a mistake has been made. See, e.g., 
United States v. United States Gypsum Co., 333 U.S. 364, 
395 (1948).

Under these principles, the court of appeals properly 
declined to set aside the trial court’s factual determination 
concerning petitioner’s proper grade level.6 The fact that the 
court of appeals set aside the district court’s similar finding 
that petitioner would not have received step increases (see 
pages 3-4, supra) shows that the appellate court independ­
ently evaluated the evidence and did not unduly defer to the 
trial court’s determinations.

CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.

R ex E. L ee

Solicitor General
Stuart E. Schiffer

Acting Assistant Attorney General
Leonard Schaitman
Michael Jay Singer 

Attorneys

September 1981

6This case is not at all like Swint v. Pullman-Standard, 624 F. 2d 525 
(5th Cir. 1980), cert, granted, Nos. 80-1190 & 80-1193 (Apr. 20, 1981), in 
which the court of appeals chose to set aside the trial court’s factual 
findings.

D O J - 1981-09