Anderson v. Bessemer City Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    No.

I n  the

Bnpnmt (Hmtt ni tty MniUb Btatm
O ctober T e r m , 1983

P h y l l is  A . A nd erso n ,

v.
Petitioner,

C it y  op B essem er  C it y , e tc .

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

FOR THE FOURTH CIRCUIT

J .  L ev o n n e  C ham bers  
J o n a th a n  W allas 
J o h n  N ocklery

Chambers, Ferguson, W att, 
Wallas, Adkins & Fuller, P.A. 

Suite 730
951 S. Independence Blvd. 
Charlotte, North Carolina 28202 
(704) 375-8461

J ack  Greenberg  
O. P eter  S herwood  
E ric  S c h n a p p e r *

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

•Counsel for Petitioner 

•'Counsel of Record



QUESTION PRESENTED

1 . Did the court of appeals err in 
holding that a prima facie case of employ­
ment discrimination on the basis of sex may 
be rebutted by proof that the responsible 
personnel officials permitted their wives 
to work?

2. * Does Rule 52(a), P.R.C.P., 
forbid the courts of appeals from reviewing 
the credibility findings of a trial judge?

3. ** Did the court of appeals exceed

*_/ The same question is also raised by 
the pending petition for writ of certiorari 
in Miller v. Mercy Hospital, No. 83-____.
**/ The Fourth Circuit has found "clear 
error" in every Title VII appeal since 
Pullman-Standard v. Swint, 456 U.S. 273
(1982) in which the district court ruled in 
favor of the plaintiff. Three of those 
cases are already pending before this 
Court . M_i _11_ err _ v^__M e r cy__ H o sj£_i t. a1. , No.
8 3-____ ; Cooper v. Federal Reserve Bank,
No. 85-185; Cuthbertson v. Biggers Bro­
thers , Inc., see n.12, infra.

l



its authority under Rule 52, F.R.C.P., in
holding that there was insufficient evi­
dence to support the trial court's finding 
of hiring discrimination on the basis of 
sex, where the record showed and the trial 
court found that:

(i) a member of the hiring committee 
stated that he had voted not to 
hire petitioner because he 
believed it would be "real hard" 
for "a lady" to do the job;

(ii) the chair of the hiring commit­
tee testified that petitioner 
was "the better applicant";
a member of the hiring commit­
tee deliberately solicited 
applications only from men.

(iii)



PARTIES

The parties to this proceeding are 
Phyllis A. Anderson and the City of Besse­
mer City, North Carolina.

- i i i -



TABLE OF CONTENTS
£gge

Questions Presented .................  i
Parties .............................. xii
Table of Authorities ................  vi
Opinions Below ......................  2
Jurisdiction .......     2

Statute and Rule Involved ..........   3

Statement of the Case ..............   4

Reasons for Granting the Writ .....  12
(1) Certiorari Should Be Granted 

to Review the Fourth Circuit 
Practice in Title VII Case of 
Finding "Clear Error" in All
Lower Court Findings of 
Employment Discrimina­
tion .......................  1 2

(2) Certiorari Should Be Granted 
To Review The "Working Wife"
Defense Established by theCourt of Appeals .........  29

(3) Certiorari Should Be Granted 
to Resolve A Conflict Among 
The Circuits Regarding Whether 
Rule 52(a), F.R.C.P., Forbids Appellate Review of Trial 
Court Credibility Deci­
sions  ....................  38

Conclusion ..........................  40

IV



Page
APPENDIX

District Court Memorandum of 
Decision, September 16,
1982 .......................  1a

District Court Findings of Fact and 
Conclusions of Law, February 
16, 1983 ..................  6a

Judgment, February 16, 1983 .... 33a
Opinion of the Court of Appeals,

September 19, 1983 ........ 35a
Order of the Court of Appeals

Denying Rehearing and Rehear­
ing En Banc, November 
4,'1983 ...................  6 6a

v



TABLE OF AUTHORITIES
Page

Cases
Brady v. Thurston Motor Lines,

33 FEP Cases 1367 (4th Cir.
1983) ..........................  14

Castaneda v. Partida, 430 U.S.
482 ( 1977) ................... . 37,38

Cline v. Roadway Express, Inc.,
689 F.2d 481 (4th Cir. 1982) ... 16

Cooper v. Federal Reserve Bank,
No. 83-185 .....................  i

Cuthbertson v. Biggers Brothers,
702 F.3d 454 (4th Cir. 1983) ... 8,15,26

EEOC v. Federal Reserve Bank, 698
F.2d 633 (4th Cir. 1983) .... . 14,15

Fink v. Western Electric Co., 708
F.2d 909 (4th Cir. 1983) .......  16

Guzman v. Pichirilo, 369 U.S. 698
( 1962) .......................... 23

Lewis v. Central Piedmont Community 
College, 689 F.2d 1207 (4th 
cir* 1982) ...................  14,15,25

Lilly v. Harris-Teeter Supermarket,
720 F.2d 326 (4th Cir. 1983) ... 14

- vi -



Page

Lindsay v. Mississippi Research, etc.,
Center, 652 F.2d 488 (5th Cir.
1981) ..........................  28

Los Angeles Department of Water &
Power v. Manhart, 435 U.S. 702 
( 1978) ...... ..................  35

Lovelace v. Sherwin williams Co.,
681 F.3d 230 (4th Cir. 1982) ... 16

Miller v. Mercy Hospital, 720 F.2d
356 (4tn Cir. 1983) ........... . i,14,26

Patterson v. Greenwood School District 
No. 50, 696 F.2d 293 (4th Cir.
1982) ..........................  14

Payne v. McLemore's Wholesale &
Retail Stores, 654 F.2d 1130
(5th Cir. 1981 ) .... ... ..........  28

Pullman-Standard v. Swint, 456 U.S.
273 (1982) ................ i,13,14,17,

27,28,29
Rohde v. K.O. Steel Castings, 649

F. 2d 317 (5th Cir. 1981) ....... 28
Smallwood v. United Airlines, (4th

Cir., February 28, 1984) .....  16
United States v. Yellow Cab Co.,

338 U.S. 338 ( 1949) ............ 25

V I 1



Page

Statutes and Rules
28 U.S.C. § 1254( 1 ) ..................  3

29 U.S.C. § 621 ......................  15
42 U.S.C. § 2000e ...................  i , 1 5

42 U.S.C. § 2000e-2(a) ..............  3

Rule 52, Federal Rules of Civil
Procedure .................  i,ii,4,12,

13,16,23,25,
27,28,29,39

Other Authorities
S. Casteras, The Substance or The 

Shadow —  Images of Victorian 
Womanhood (1982) ............... 34

E. Flexner, Century of Struggle
( 1982) ................ ......... 34

Wright and Miller, Federal Practice
and Procedure (1971) ........... 16

Statistical Abstract of The United
States, 1982-83 ................ 35

viii



IN THE

No.

SUPREME COURT OF THE UNITED STATES 
October Term, 1983

PHYLLIS A. ANDERSON,
Petitioner, 

v.
CITY OF BESSEMER CITY, etc.

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

FOR THE FOURTH CIRCUIT

Petitioner Phyllis Anderson respect­
fully prays that a Writ of Certiorari 
issue to review the judgment and opinion of 
the United States Court of Appeals for 
the Fourth Circuit entered in this proceed­
ing on September 19, 1983.



2

OPINIONS BELOW
The decision of the court of appeals 

is reported at 717 F.2d 149, and is set out 
at pp. 35a-65a of the Appendix. The order 
denying rehearing, which is not reported, 
is set out at p. 6 6a. The district court's 
Memorandum of Decision of September 16, 
1982, which is not reported, is set out 
at pp. 1a-5a of the Appendix. The district 
court's Findings of Fact and Conclusions 
of Law, which are reported at 557 F. Supp. 
412, are set out at pp. 6a-32a of the 
Appendix.

JURISDICTION
The judgment of the court of appeals 

was entered on September 19, 1983. A
timely petition for rehearing was filed, 
which was denied on November 4, 1983. On
January 25, 1984, the Chief Justice
granted an order extending the date on



3

which the petition for writ of certiorari 
was due until April 2, 1984. Jurisdiction
of this Court is invoked under 28 U.S.C. 
§ 1254(1).

STATUTE AND RULE INVOLVED 
Section 703(a) of Title VII of the 

1964 Civil Rights Act, 42 U.S.C. § 2000e- 
2 (a) provides:

It shall be an unlawful employ­
ment practice for an employer —
(1 ) to fail or refuse to hire or 

to discharge any individual, 
or otherwise to discriminate 
against any individual with 
respect to his compensation, 
terms, conditions, or 
privileges of employment, 
because of such individual's 
race, color, religion, sex, 
or national origin; or

(2 ) to limit, segregate, or 
classify his employees or 
applicants for employment in 
any way which would deprive 
or tend to deprive any 
inctividual of employment 
opportunities or otherwise 
adversely affect his status



4

as an employee, because of 
such individual's race, 
color, sex, or national 
origin.

Rule 52(a), Federal Rules of Civil
Procedure, provides in pertinent part:

In all a c t i o n s  tried upon 
the facts without a jury or with 
an adisory jury, the court shall 
find the facts specially and 
state separately its conclusions 
of law thereon, and judgment 
shall be entered pursuant to Rule 
58; and in granting or refusing 
interlocutory injunctions the 
court shall similarly set forth 
the findings of fact and conclu­
sions of law which constitute the 
grounds of its action. Requests 
for findings are not necessary 
for purposes of review. Findings 
of fact shall not be set aside 
u n l e s s  c l e a r l y  e r r o n e o u s ,  
and due regard shall be given to 
the opportunity of the trial 
court to judge of the credibility of the witnesses. ...

STATEMENT OF THE CASE 
On May 18, 1981, petitioner commenced 

this action in the United States District 
Court for the Western District of North 
Carolina. Her complaint alleged that the



5

defendant City of Bessemer City had refused 
to hire her as the city Recreation Director 
because of her sex, in violation of Title 
VII of the Civil Rights Act of 1964, 42 
U.S.C. § § 2 0 0 0 e et. . _s e . Petitioner 
had previously filed a charge of discrimi­
nation with the Equal Employment Opportun­
ity Commission, which had issued a Determi­
nation finding reasonable cause to believe 
that the defendant had engaged in discrimi­
nation on the basis of sex.

The case was heard at a non-jury trial 
in September, 1982. Certain basic facts 
were not disputed. In the spring of 1975 
the mayor of Bessemer appointed a five 
member committee to select a new recreation 
director for the city. One of the committee 
members, Josiah Butler, personally soli­
cited applications from four male appli­
cants, including both of the men who were 
eventually offered the position. Butler



6

did not, however, solicit applications from 
any women, although he acknowledged knowing 
at least two women who were better quali­
fied then the four men whom he persuaded to 
apply. The committee also placed an 
advertisement for the position in the local 
newspaper. Petitioner was the only woman 
who submitted an application for the job.

The hiring committee did not establish 
prior to its selection decisions any 
standards or guidelines, written or other­
wise, for choosing the Recreation Director, 
other than that the Director would have to 
live within the City of Bessemer. Eight 
individuals applied for the position, and 
all eight were interviewed by the committee 
on the same day. The committee concluded 
that only three of the applicants were 
qualified for the position —  petitioner, 
Donald Kincaid, and Burt Broadway. The



7

committee initially preferred Broadway, 
but decided not to offer him the position 
when he declined to move to Bessemer. A 
majority of the committee then voted to 
offer the job to Kincaid, who accepted the 
position.

The trial presented conflicting 
evidence on three critical issues. First, 
petitioner claimed that she was better 
qualified than Kincaid for the post of 
Recreation Director. One committee 
member testified that petitioner was better 
qualified; other members stated they 
preferred Kincaid, in part because one 
believed it would be "real hard" for "a 
lady" to do the job. (See p. 30, infra). 
Second, petitioner was asked if her husband 
would approve of her seeking and taking the 
job. The committee members disagreed as to 
whether male applicants were asked if their 
wives approved of the job. (See p. 22,



8

infra.) Third, petitioner asserted that 
the committee had manipulated its hiring 
standard, first emphasizing experience over 
education, and then doing precisely the 
opposite, in order to assure the selection 
of a man.

The District Court resolved each of 
these factual disputes in favor of plain­
tiffs. In a Memorandum Decision of Septem­
ber 16, 1982, followed by lengthier Findings 
of Fact and Conclusions of Law filed 
February 16, 1983, the trial judge held
that petitioner was better qualified than

. 1/Kincaia, that only petitioner was asked 
questions about whether her spouse approved 
of her taking the job,- and th|t the com­
mittee had indeed manipulated its standards

1 / 4a, 15a, 19a, 26a, 29a.
2/ 4a, 1 2 a, 2 1 a, 25a, 26 a.



- 9

3 /to prevent the selection of a woman— 
The district court emphasized that peti­
tioner had extensive prior experience 
working as a recreation director, a 
music director, and an elementary school 
teacher, as well as experience in bookkeep­
ing, recruiting and supervising of subor­
dinates, public speaking and fundrais- 

4/
ln9- Kincaid had none of this work
experience; he had graduated from college
only nine months before the interview, and
had worked in the interim for a finance 

5/company. The ostensible reason for 
hiring Kincaid was that, although both he 
and petitioner possessed college degrees, 
and both had taken physical education

3/ 3a.
4/ 4a, 16a,-18a.
5/ 18a.



10

courses, his degree was in physical educa­
tion, whereas petitioner's degree was in 
elementary education.- The district 
judge concluded that this was a pretext,
and that petitioner had been rejected 
because of her sex.—^

On appeal the Fourth Circuit reversed 
as "clearly erroneous" each of the contro­
verted factual findings of the district 
court. The lower court's decision that 
petitioner was better qualified than 
Kincaid, that petitioner alone was asked 
questions about her family, that the 
committee manipulated the hiring standards, 
that the reasons for hiring Kincaid were 
pretextual, all were held to be "clearly 
erroneous", as was the district judge's 
ultimate conclusion that petitioner was

6/ 3a, 15a.
7/ 2 a, 7a, 23a, 2ba, 27a.



- 1 1 -

denied the position of Recreation Director
8/because of her sex.— The district court 

had also relied on uncontroverted evidence 
that one member of the committee had soli­
cited applications only from men, and that 
another member had acknowledged that his 
preference for Kincaid was based on a con­
viction that it would be difficult for "a 
lady" to do the job. (See p. 30, infra) . 
The court of appeals held that, as a matter 
of law, that evidence had been rebutted by 
proof that the male committee members were 
married to women who had held jobs outside 
the home. (61a).

A timely petition for rehearing and 
suggestion for rehearing £n banc was denied 
on November 4, 1983.

8/ 47a, 51a, 55a-56a, 59a.



12

REASONS FOR GRANTING THE WRIT

(1) Certiorari Should Be Granted to 
Review the Fourth Circuit 
Practice in Title VII Cases of 
Finding "Clear Error" in All 
Lower Court Findings of Employ­
ment Discrimination

The court of appeals' decision in this 
case is an object lesson in the problems 
that arise when an appellate court ignores 
the limited scope of review established by 
Rule 52 of the Federal Rules of Civil 
Procedure. The appellate court below 
"edited" the trial transcript to delete the 
critical testimony relied on by the dis-

9/ !tnct court,— disregarded the trial court's 
credibility f i n d i n g s ^ a n d  having done 
so concluded that the lower court's finding 
of intentional discrimination, as well as

9/ See pp. 19-20, infra. 
10/ See p. 39, infra.



13

every one of its critical subsidiary 
findings, were "clear error". This dis­
regard of Rule 52 would warrant summary 
reversal even if it were an isolated
incident. Trout v. Lehman, __  U.S. ___
(No. 83-706).

But the cle novo review apparent on the 
face of the panel's opinion is no abbera- 
tion; in the Fourth Circuit such appellate 
trials de novo are the normal practice in 
Title VII cases. This Court's decision in 
Pullman-Standard v. Swint, 456 U.S. 273 
(1982), reemphasized Rule 52's requirement 
that factual findings be reversed on appeal 
only if clearly erroneous, and directed 
that that standard be applied in particular 
to findings of fact regarding the presence 
of discriminatory motivation. But appellate 
findings of "clear error," which Swint 
contemplated would be the exception, are in 
the Fourth Circuit rule. Since April 27,



14

1982, the date on which Swint was decided, 
the Fourth Circuit has found clear error in 
every case in which a district court had 
found intentional employment discrimination 
on the basis of race or sex. In most of
those cases all findings of discrimination,
both as to individuals and as to the
plaintiff class, were reversed as "<clear

1 1 /error".-- / In every other Title VII
case at least one or more of the findings 
of discrimination was held on appeal to be 
clear error . one three judge panel,

11/ EEOC v. Federal Reserve Bank, 698 F.2d
633 (4th Cir. 1983) cert. granted ____ U.S.
____ (1983); Miller v. Mercy Hospital, 720
F . 2d 356 (4th Cir. 1983), cert. pending,
No. 83-____ ; Lewis v. Central Piedmont
Community College, 689 F.2d 1207 (4th Cir. 
1982), cert. denied, ___ U.S. ___; Patter­
son v. Greenwood School District No. 50, 
696 F .2d 293 (4th Cir. 1982); and the 
instant case.
12/ Lilly v. Harris-Teeter Supermarket, 
720 F.2d 326, 338 (4th Cir. 1983); Brady v . 
Thurston Motor Lines, 33 FEP Cases 1367,



15

which reviewed four unrelated Title VII
cases involving two lower court findings
of classwide discrimination and seven lower
court findings of individual instances of
discrimination, held that every single one

1 3/of these findings was "clear error".
14,The treatment of age discrimination cases 

is essentially similar. Since Swint the 
Fourth Circuit has considered five such 
cases involving 2 1 different findings of

1 2/ continued
1378 (4th Cir. 1983); Cuthbertson v. Big- 
gers Brothers, 702 F.2d 454, 462, 463,
464 (4th Cir. 1983), cert. pending. The 
petition for a writ of certiorari in 

kjLEJi_son , which has not yet been 
docketed, is in the custody of the Chief 
Deputy Clerk, Mr. Lorson.
13/ EEOC v. Federal Reserve Bank, Cuth­
bertson v . Bigg ers B rothers , Lewis_v. 
Central Piedmont Community College, and the 
instant case.
14/ See 29 U.S.C. § 621 et.. seq.



16

discrimination.' Two of these involved 
jury verdicts, which are subject to a 
standard of review even more stringent than 
Rule 52. ^ The Fourth Circuit reversed as 
"clear error" 20 of the 2 1 findings of 
age discrimination. Overall, out of 13 
appeals since Swint in which the plaintiffs

15/ Smallwood v. United Airlines, Nos. 
82-2115 and 82-2116, slip opinion February 
28, 1984 (finding for individual plaintiff 
"clear error"); EEOC v. Western Electric 
Co., Inc., 713 F.2d 1011, 1016, 1019 (4th 
Cir. 1983) (finding of pattern and practice 
and of 16 instances of discrimination all 
"clear error"); Fink v. Western Electric 
Co,, 708 F.2d 909 (4th Cir. 1983) (jury 
verdict for individual plaintiff over­
turned) ; Love lace v ._Sherwin Williams
Co,, 681 F.2d 230 (4th Cir. 1982) (jury 
verdict for individual plaintiff over­
turned); Cline v. Roadway Express, Inc., 
689 F.2d 481 (4th Cir. 1982) (finding for 
individual plaintiff not clearly erro­
neous) .
16/ 9 Wright and Miller, Federal Practice 
and Procedure , § 2585, p. 730 (1971).



17

prevailed below in an employment discrimi­
nation case, the Fourth Circuit has found 
"clear error” in 12. There is, on the 
other hand, no reported Fourth Circuit 
opinion since Swint finding clear error in 
a trial court employment discrimination 
decision favorable to a defendant.

The particular circumstances of the
instant appeal confirm the apparent Fourth
Circuit disregard of Rule 52 suggested by
this pattern of reversals. The district
court in the instant case found that the
Bessemer City officials had intentionally

17/rejected petitioner because of her sex,— '  

and based that conclusion, inter alia, on 
express subsidiary findings that petitioner 
was better qualified than the man who was

17/ 2a, 7a, 23a, 26a, 27a.



18

, . 18/nired, that petitioner was asked ques­
tions about her personal life that were

19/not asked of the male applicants,—  and
that the city officials manipulated
the job requirements of the position for
which petitioner applied in order to

20/justify the selection of a man.—  The
court of appeals held as to each of these

21 /findings that it was "clearly erroneous"—
or that there was "nothing in the record to

22/support" it.—
After a detailed review of the evi­

dence adduced at trial, the district judge

Jl/ 4a, 15a, 19a, 26a , 29a
19/ 4a, 1 2 a, 13a, 2 1 a , 25a
.20/ 1 2 a; see also 3a, 2 2 a ,
1 1 / 47a, 55a--56a, 59.
2 2 / 51a.



19

expressly concluded that petitioner "was 
the best qualified candidate" (4a). The 
court of appeals reached the opposite 
concusion, holding that the evidence showed 
that petitioner was not better qalified 
than the man who was hired. (55a-56a). 
The court of appeals expressly quoted and 
relied on the trial testimony of the chair 
of the hiring committee. The pertinent 
portion of Boone's testimony, as "edited" 
and quoted by the Fourth Circuit, reads:

Q How about art, do you believe 
either of them had qualifica­
tions superior to the other 
...? As to the subject of art 
specifically?

A. No.
(54a). The Fourth Circuit emphasized, 
" [E]ven Boone specifically denied that 
Anderson was better qualified." (Td.) The 
actual transcript, on which the trial judge 
relied, however, contains precisely the



n
| t

o
20

testimony which the Court of Appeals 
complained was lacking:

Q. How about art, do you believe
either one of them had qualifica­
tions superior to the other?

A. That wasn't the basis of the
hiring of a recreation [director]

Q. What you were looking for in
qualifications as a member of the 
committee...

A. As an all around Director, 
like Phyllis was the better cant

I felt
a P P 1 1 -

Q.

A.

As to the subject of art speci­
fically?
No. 23/

3/ Joint Appendix, No. 83-1278 (4th 
ir.), p. 149 (Emphasis added) (hereinafter 

cited as J.A.). See also _id. at 138-39:
"Q. Who was best qualified for the 

position of Recreation Director 
in your opinion?

"A. In my personal opinion, I felt 
Phyllis Anderson was the best 
qualified, and that's all-around 
qualified.

"Q. Would you explain what that was 
basea on?



21

The transcript was "edited" by the court of 
appals itself to omit the critical testi­
mony; the defendant never offered in its 
appellate briefs any such "edited" version 
of the proceedings.

The district judge also held that 
plaintiff had been asked questions regard­
ing her personal life, particularly about 
whether her husband would approve of her 
seeking or taking the job for which she was
applying, that were not asked of male 

, . 24/applicants.—  The district court con­
cluded that this questioning "suggested 
that a woman ought to be at home instead

23/ continued
"A. Her past experience, her educa­

tional background.
24/ See n.2, supra.



22

2 5/of working." (4a).—  The court of 
appeals acknowledged that there was "con­
flicting testimony" on this issue (44a); 
nevertheless, it overruled as "clearly 
erroneous" the lower court finding that 
petitioner was subject to inquiries not 
made of male applicants. (59a). The issue 
of whether or not questions about spousal 
approval were asked of male applicants 
involved a direct conflict in the testi­
mony. The committee chair insisted that no
such questions had been asked of the male 

_ .  ̂ 26/applicants.—  Another committee member, 
on the other hand, testified that the same

25/ In addition, the district court held 
that petitioner, but not the male appli­
cants, was asked if she realized the 
position involved working at night and 
traveling throughout the county. (4a, 12a, 
13a, 21a). The Fourth Circuit also re­
versed this finding as "clearly errone­
ous . " (59a).
26/ J.A. 136-37, 154-55.



23

question was "in a sense" asked of Donald
Kincaid, although apparently not of

27/the other male applicants.—  Such con­
flicts in the trial testimony must ordinar­
ily be resolved by the trial judge, since 
Rule 52 admonishes that "due regard 
shall be given to the opportunity of the 
trial court to judge of the credibility of 
the witnesses". This Court emphasized in 
Guzman v. Pichirilo, 369 U.S. 698 (1962),
that "under this rule ... [a] refusal to
credit the uncorroborated testimony of [a 
witness] , who obviously was not disinter­
ested in the outcome of the litigation, 
would not be considered clearly erroneous." 
269 U.S. at 702.

The district court in the instant case 
also held that the hiring committee had 
manipulated the selection criteria to

27/ J .A . 190.



24

assure the selection of a man. In justify­
ing their initial prefrence for Bert 
Broadway over petitioner, the officials 
explained that, although Broadway, unlike 
Petitioner, had no college degree, he had 
extensive teaching experience; the subse­
quent selection of Kincaid rather than 
petitioner was defended on the ground that 
although, unlike petitioner, Kincaid had no 
teaching experience, he had a college 
degree in physical education. The district 
judge concluded:

the committee emphasized either 
experience or education, depend­
ing on which criteria justified 
the choice of a particular male 
candidate. (27a; see also 22a).

The court of appeals insisted there was
"simply nothing in the record to support"
this conclusion. (51a). in reality
the defendant's shifting accounts of its
hiring standards provided support both for
the trial court's finding that the explana-



25

tions were "pretextual" (26a), and for the 
appellate court's contrary conclusion. In 
such cases Rule 52 rquired that considera­
tion be given to the ability of the trial 
court to assess the credibility of the city 
officials. "Findings as to the design, 
motive and intent with which men act depend 
peculiarly upon the credit given to wit­
nesses by those who see and hear them." 
United States v. Yellow Cab Co., 338 U.S. 
338, 341 (1949).

The decision of the court of appeals 
in this case to disregard the findings of 
the trial court were consistent with the 
general practice of the Fourth Circuit 
since Swint. In Lewis v. Central Peidmont 
Community College, 689 F.2d 1207 (4th Cir. 
1982), the district court held that the 
black plaintiff, who had both a college 
degree and relevant practical experience, 
was more qualified than the white who,



26

though lacking both, was hired. 689 F.2d 
at 1210. There, as here, the Fourth 
Circuit held the district court finding was 
"clearly erroneous". I_d. In Miller v . 
Mercy Hospital, 720 F.2d 356 ( 4th Cir. 
1983), certiorari pending, the district 
court which sustained the plaintiff's 
discrimination claims found the testimony 
of the key defense witnesses vacillating, 
vague, and undeserving of belief. 720 F.2d 
at 367. There, as here, the Fourth Circut 
found the lower court's credibility determ­
inations to be "clearly erroneous." 702 
F.2d at 375-68. In Cuthbertson v. Biggers 
Brothers, Inc. , 702 F.2d 454 ( 4th Cir. 
1983), certiorari pending, the district 
court concluded that the defendant had 
manipulated its hiring criteria to assure 
the selection of whites as salesmen. 702
F.2d at 457. The record showed that the



27

defendant had never hired a black salesman 
prior to 1976, that the firm's officials 
had announced "the time was not right" to 
hire black salesmen, and that the firm's
president had stated he "wouldn't let a

, , 28/ black man sell a dog for him". There,
as here, the fourth Circuit concluded that
was insufficient evidence to support a
finding of racial discrimination. 702 F.2d
at 461.

This court recognized in Pullman-Stand­
ard v, Swint that the extent of compliance 
with Rule 52 must be ascertained by examin­
ing the actual decision of a court of 
appeals, not by reliance on a pro forma 
recitation of the "clearly erroneous" 
standard. 456 U.S. at 291-93. The Fifth

28/ Petition for Writ of Certiorari, pp. 
7-8. (See n.12, supra.)



28

Circuit "ultimate fact" doctrine condemned
in Swint was a relatively minor deviation
from Rule 52 compared with the practice of
the Fourth Circuit described above. In the
Fifth Circuit prior to Swint, district
court decisions in employment discrimina-

29/tion cases were frequently upheld. in
the Fourth Circuit since Swint, at least 
in cases in which the plaintiff prevailed 
below, that virtually never occurs. Today 
in Maryland, Virginia, West Virginia and 
the Carolinas the role of federal district 
judges in many employment discrimination 
cases is merely to compile the record on 
which Fourth Circuit will base its de novo 
determination. In any case in which a

29/ See, e.g., Payne v. McLemore1s Whole­
sale & Rental Stores, 654 F.2d 1130 (5th 
Cir. 19 8 1); Lindsay v. Mississippi Re­
search, etc., Center, 652 F.2d 488 (5th 
Cir. 1981); Rohde v. K.O. Steel Castings, 
649 F .2d 317 (5th cir. 1981).



29

district judge decides to rule for the 
plaintiffs, the drafting of the findings of 
fact and conclusions of law required 
by Rule 52(a) is generally pointless, since 
such findings ordinarily carry no weight on 
appeal. In the Fourth Circuit today, as in 
the Fifth Circuit prior to Swint, the pro 
forma appellate references to the "clearly 
erroneous" rule cannot obscure the very 
different standard of review which is in 
fact being applied.

(2) Certiorari Should Be Granted to
Review the "Working Wife" Defense 
Established by the Court of 
Appeals

The district court finding of inten­
tional discrimination was based on several 
subsidiary findings the accuracy of which 
were not questioned by the court of ap­
peals. First, Frank Nichols, one of 
the hiring committee members, testified at 
trial that one of the reasons he opposed



30

hiriny petitioner was that he believed "it
would have been real hard" for "a lady" to
do the job for which she had applied.
, n . .30/l^iaa) Second, Nichols testified, with 
regard to the fact that the position 
required evening work, that he thought "my

30/ The full colloquy was as follows:
"Q. Mr. Nichols, if you remember, 

why did you personally prefer 
Donald Kincaid over Phyllis 
Anderson as your selection for 
this position?

"A. I figured he was better qualified.
"Q. In what sense?
"A. He had a PE degree.
"Q. Any thing else?
"A. At the time we were talking

about getting this recreation 
program started at Bessemer 
City, a lady could have run 
the job, I'm not saying she 
couldn't, but it would have been 
real hard."

J .A . 209.



- 31 -

wife should be at home at night."— / Third, 
another committee member, Josiah Butler, 
expressly solicited applications from four 
male candidates, including Kincaid, but 
deliberately refused to solicit applica­
tions from women, although he personally
knew several women who were qualified for 

3 2/the job. Kincaid was known to and

31/ The full questions and answers were as follows:
"Q. You wouldn't want your wife to 

have that job though, would 
you?

"A. No, sir, I wouldn't.
"Q. And you wouldn't want to put a 

lady through lining [sic] 
ballfields and being at the gym 
at night?

"A. I'm speaking personally for
myself. I have three children 
at home, and I think my wife 
should be home at night."

J.A. 214.

32/ 11a, 21a, 25a, 26a.



32

recruited by Butler because both belonged
to a club which excluded women from member- 

33/ship.
Although this evidence strengthened 

considerably petitioner's prima facie case, 
the court of appeals held that such direct 
proof of discriminatory attitudes was 
completely rebutted by evidence regarding 
the personal lives of the male members 
of the committee:

This evidence ... is dispelled by 
other portions of the record. For 
example, there is nothing to show 
the male committee members had a bias 
against working women. All four 
testified that their wives had worked 
and were accustomed to being away from 
home during evening hours. (61a).

This passage embraced the argument ex­
pressly advanced by respondent below 
that the family lives of the male committee 
members was conclusive of the allegations

33/ 21a; J.A. 196.



33

34/regarding their motives. — '

In the view of the court of appeals,
marriage to working women effectively
immunized the male committee members from
any charge of employment discrimination on
the basis of sex. The Fourth Circuit rule
apparently extends to male officials whose
wives had ever worked at any time during
their marriage; in this case only one of
the four wives was actually employed at the
time of trial,—  and two of the four had

3 6/not worked for years.— 7 This "working 
wife" defense is inconsistent both with the

34/ Brief for Appellant, Mo. 83-1278, p. 
35. ("[I]t is apparent from the personal
circumstances of each of the four male 
selection committee members that none was 
prejudiced against female employment, or 
against females working at night....") (Emphasis in original).
35/ J.A. 202.
36/ J.A. 192, 222.



34

purposes of Title VII and with simple 
common sense.

The Fourth Circuit's "working wife" 
defense is itself cased on the very type of 
sexual stereotyping which Title VII con­
demns. In early nineteenth century America, 
marriage to a working woman might have 
been the mark of an exceptionally liberated 
man. Not only was it then uncommon for 
wives to work outside the home, but in many 
states a married woman could neither sign 
an employment contract nor keep her earn­
ings without the permission of her hus-

.37/band. But the legal status of married 
women in the United States no longer re­
sembles that of minor children. The Fourth 
Circuit's assertion that the actions of the

37/ See E. Flexner, Century of Struggle, 
8 (1959); S. Casteras, The Substance or 
the Shadow —  Images of Victorian Woman­hood, 10-11 (1982).



35

wives in this case was a conclusive indica­
tor of the motives of their husbands 
necessarily, if tacitly, assumes that the 
wives of the male committee members would 
not or could not have worked outside their 
homes unless their husbands approved. 
Title VII condemns precisely such "myths 
and purely habitual assumptions about . . . 
worn[e ]n ...." Los Angeles Department of 
Water & Power v. Manhart, 435 U.S. 702, 707 
(1978).

The "working wife" defense would
virtually nullify Title VII's prohibition
against employment discrimination on the
basis of sex. Today over half of all
married women are working outside the 
, 38/home;—  the vast majority of all married 
women have held such jobs at some point

38/ Statistical Abstract of the United 
States 1 982-83 , p. 382 , table no. 638 .



36

after their weddings. Thus virtually 
every married male personnel official will 
qualify for the "working wife" defense now 
recognized in the fourth Circuit.

The courts of appeals' "working wife" 
defense is also at odds with this Court's 
decision in Castaneda v. Partida, 430 U.S. 
482 (1977). in Castaneda the district 
court had held that a prima facie case of 
discrimination against Hispanics in the 
selection of grand juries could be rebutted 
by evidence that a majority of the jury 
commissioners were themselves Mexican- 
American. This Court reversed, holding that 
"[bjecause of the many facets of human 
motivation, it would be unwise to presume 
as a matter of law that human beings of one 
definable group will not discriminate 
against other members of their group." 430 
U.S. at 499. In light of the decision in 
Castaned a , the evidence in this case



37

could not have been rebutted by evidence 
that four members of the hiring committee 
were themselves working women; the mere 
fact that the male members of the committee 
were married to working women is of con­
siderably less probative value than the 
evidence rejected in Castaneda itself.

Justice Black man's admonition in 
Castaneda regarding the many facets of 
human motivation applies with particular 
force to the Fourth Circuit's "working 
wife" defense. The husband of a working 
woman may have protested, indignantly but 
in vain, her decision to seek employment, 
or may have acquiesced in a decision 
that offended his personal views about 
marriage only because the couple was in 
financial difficulty. The actual exper­
ience of being married to a working woman 
might have aggravated a husband's resist­
ance to such employment, or created prej-



38

uaices where none existed before. In the
instant case two of the wives had held

. , , . 39/traditional women's jobs, school teacher"—
40/

ana nurse; a husband who did not object 
to such employment might nonetheless resist 
hiring a woman for a position that had in 
the past ordinarily been held by men. In 
short, the fact that a personnel official's 
marriage to a working wife, although now a 
virtually conclusive defense in the Fourth 
Circuit to proof of employment discrimina­
tion on the basis of sex, is in reality en­
tirely devoid of evidentiary significance.

(3) Certiorari Should Be Granted To 
Resolve A Conflict in The Cir­
cuits Regarding Whether Rule 
52(a), F.R.C.P, Forbids Appellate 
Review of Trial Court Credibility 
Determinations

The district judge expressly relied on 
the credibility of the witnesses in resolv-

39/ J.A. 192. 
40/ J.A. 222.



39

ing the conflicting testimony of city 
officials regarding whether petitioner 
was asked personal questions not asked of 
the male applicants. (12a-13a). The trial 
judge also expressly relied on credibility 
in reaching his overall conclusion that 
petitioner was denied employment because of 
her sex. (7a). The court of appeals 
reversed both credibility determinations.

The courts of appeals are sharply 
divided regarding whether trial court 
credibility determinations can be reviewed 
on appeal, or must be accepted as binding 
on the appellate courts. Seven circuits 
have held that no such appellate review is 
permitted by Rule 52(a). Four circuits, 
including the Fourth, permit such review, 
although applying widely divergent stan­
dards.

The conflict among the circuits on 
this important issue is described in detail



40

in the Petition for Writ of Certiorari
in Miller v. Mercy Hospital, No. 83-____.
Certiorari should be granted to resolve 
that question.

CONCLUSION
For the above reasons a writ of

certiorari should issue to review the
judgment and opinion of the Fourth Circuit.

Respectfully submitted,
J. LEVONNE CHAMBERS 
JONATHAN WALLAS 
JOHN NOCKLEBY

Chambers, Ferguson, Watt, 
Wallas, Adkins & Fuller, P.A, 
Suite 730
951 S. Independence Blvd. 
Charlotte, North Carolina

28202(704) 375-8461
JACK GREENBERG0. PETER SHERWOOD 
ERIC SCHNAPPER *

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

Counsel for Petitioner 
* Counsel of Record



IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

Charlotte Division 
C-C-81-204-M

PHYLLIS' A. ANDERSON, )
)Plaintiff, )
)-vs- )
)CITY OF BESSEMER CITY, )

NORTH CAROLINA, )
)Defendant. )

Jonathan Wallas and Ronald L. Gibson, 
Chambers, Ferguson, Watt, Wallas, Adkins & 
Fuller, P.A., 951 South Independence
Boulevard, Charlotte, North Carolina 28202, 
counsel for plaintiff.

Philip M. Van Hoy, 400 South Tryon 
Street, Suite 3022, Cnarlotte, North 
Carolina 28285, and Arthur C. Blue, III, 
Whitesides, Robinson and Blue, P.A., 246
West Main Avenue, Gastonia, North Carolina 
28052, counsel for defendant.

MEMORANDUM 
OF DECISION

Before James B. McMillan, District Judge

This case was tried without a jury on 
Monday and Tuesday, September 13 and 
14, 1982. The decision was taken under 
aavisement for a more deliberate review 
of the evidence and file. I have reached 
the following conclusions:



2a-

1. The plaintiff was denied equal 
opportunity to compete for the job of 
Recreation Director for the defendant 
municipal corporation, and was denied the 
job because of her sex.

2. The defendant's explanations for 
the choice, though valid on their face, are 
pretextual.

3. Plaintiff has carried the burden 
throughout of demonstrating that her 
rejection for the job was because of her 
sex.

4. Plaintiff is entitled to compensa­
tion for loss of income to the date of the 
trial, but is not entitled to a declaratory 
judgment and does not seek reinstatement. 
I have great doubts that reinstatement 
would oe an appropriate remedy under the
circumstances.



In arriving at the above conclusions, 
I have considered a number of pertinent 
facts, including the following which I 
have not attempted to list in order of 
relative importance, and which do not 
constitute any exclusive statement of the 
reasons for the decision:

(a) There were no objective 
predetermined standards for the 
selection.

(b) Each member of the selection 
commission followed his or her own 
nose in making the decision.

(c) Formal education in the 
specific field of physical education, 
which is the winning candidate's 
principal advantage over the plaintiff, 
had never been a prescribed nor agreed 
required qualification; in fact, the 
candidate (not selected) whom most of 
the commission said had been their 
original number one choice did not 
have formal education in physical 
education.

(d) The rationale of the four 
male members of the committee for 
their selection was based predominant­
ly upon the winning candidate's formal 
degree and his perceived experience in



4 a

taking part in and training for 
competitive athletics. Competitive 
sports is only one of five major goals 
listed in the later-developed program 
(plaintiff's exhibits 8 and 15) which 
is the only written description of the 
duties of the job. (This description 
was apparently prepared after the 
selection had been made.)

(e) In the interviews with 
applicants, plaintiff was asked 
questions which implied substantial 
doubt that a woman ought to have a job 
which required night work and which 
suggested that a woman ought to be at 
home instead of working. Men were not 
asked similar questions.

(f) Plaintiff had already ob­
tained a state certificate as a cert­
ified Recreation Director; the success­
ful candidate obtained his certificate 
after and by virtue of his selection 
by the committee to be the Director of 
the Bessemer City Recreation Commis­
sion.

(g) Neither the plaintiff nor 
the successful candidate participated 
in varsity college athletics. Plain­
tiff had extensive experience in posi­
tions of leadership and athletics in 
high school, and in community activi­
ties of all kinds following college, 
and had had two years of active 
experience in running a recreation 
program. She is skilled in music, 
dance, directing and playing sports, 
band activity, speaking, guidance 
leadership, community affairs, finan­
cial management and education. She 
was the best qualified candidate.



5a

Nothing in the above recital is 
intended to be uncomplimentary to the 
character and capacity of Mr. Kincaid, the 
successful candidate, nor in derogation of 
his apparent success to date in his work as 
Recreation Director.

If the parties can agree upon a 
solution of the case basea upon these 
findings, they are requested to let the 
court know by October 4, 1582. If they 
have not reached an agreement dy that time, 
plaintitff's counsel will be requested to 
draft and submit a somewhat enlarged 
version of this memorandum in the form of 
proposed findings of fact, conclusions of 
law, and an appropriate judgment.

This 16 day of September, 1982.

James B. McMillan 
United States District Judge



6 a

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

Charlotte Division 
C-C-81-20 4-M

PHYLLIS A. ANDERSON,
Plaintiff,

-vs-
CITY OF BESSEiMER CITY, 
NORTH CAROLINA,

Defendant.

)
)
) FINDINGS OF FACT 
) A N D
) CONCLUSIONS OF LAW
)
)
)
)
)

Jonathan Wallas and Ronald L. Gibson, 
Chambers, Ferguson, Watt, Wallas, Adkins & 
Fuller, P.A., 951 South Independence
Boulevard, Charlotte, North Carolina 28202, 
counsel for plaintiff.

Philip M. Van Hoy, Siegel, O'Conner & 
Kainen, P.C., 400 South Tyron Street, Suite 
3022, Charlotte, North Carolina 28285; 
Henry Whitesides and Arthur C f Blue, 
III, Whitesides, Robinson and Blue, P.A., 
246 West Main Avenue, Gastonia, North 
Carolina 28052, counsel for defendant.

Before James B. McMillan, District Judge

PRELIMINARY STATEMENT 
This case was tried without a jury on 

September 13 and 14, 1982. On September
16, 1982, this court filed a memorandum of 
decision finding that "plaintiff was denied 
equal opportunity to compete for the job of



7a

Recreation Director for the defendant muni­
cipal corporation, and was denied the job 
because of her sex." The court supported 
this finding with a review of the key 
evidence and a resolution of the central 
issues of credibility, and requested that 
plaintiff's counsel draft "an enlarged 
version cf this memorandum in the form of 
proposed findings of fact, conclusions of 
lav/, and an appropriate judgment."

On November 15, 1982 , the court
received plaintiff's proposed findings ana 
conclusions. On November 18, 1982, the 
court invited defendant to respond by 
pointing to the portions of the proposed 
findings not supported by the record, by 
providing references to the transcript and 
exhibits which support the defendant's 
position, and by suggesting language which 
should be substituted for that used by the



8a

plaintiff. On December 10, 1982, defendant 
filed a 15-page response to the proposed 
findings, including helpful references to 
the transcript.

Having reviewed the trial transcript 
and exhibits and having considered all of 
the evidence, and the proposals and argu­
ments of counsel for both parties, the 
court makes the following findings of 
fact and conclusions of law:

FINDINGS OF FACT

1. On May 18, 1981, plaintiff Phyllis 
A. Anderson filed this suit against defend­
ant, Bessemer City, alleging violations of 
Title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. §2000e jet seq. for 
discrimination on the basis of sex.

2. Plaintiff is a female citizen and 
resident of Bessemer City, North Carolina. 
The defendant, City of Bessemer City, is a 
North Carolina municipal corporation.



9a

3. During February or early March, 
1975, the position of Recreation Director 
for Bessemer City became vacant. Defend­
ant advertised the position through the 
local newspaper, the Gastonia Gazette, 
and by word of mouth.

4. The Mayor of Bessemer City ap­
pointed a committee to select a new Recrea­
tion Director. The committee consisted of 
Auduie Boone, Josiah Butler, William 
McClellan, Frank Nichols, and Timothy 
Helms. Ms. Boone, the only woman on 
the committee, was chairperson.

5. Eight persons applied for the 
position; plaintiff Anderson was the 
only woman applicant. She submitted a 
letter of application and a resume to the 
City Manager, William Metcalf,
16, 1975.

on March



-10a-

6. Some time before applying for 
the job, plaintiff talked to Neil Barnes, 
who was then the Superintendent of Water 
Works for the city, who told her that 
the position was "wrapped up" by another 
candidate. In response to that conversa­
tion, plaintiff included the following 
paragraph in her application letter:

I realize you will probably be giving 
stronger consideration for a male 
to fill this position. In this 
light, I would request you review all 
qualifications equally, realizing 
women are assuming positions of 
leadership and responsibility in 
industry and government equal to those 
held by men.

Before submitting her aj^plication, Anderson 
also talked to Boone who told her that 
anyone could apply for the job (TT 5).

7. Of the remaining seven applicants, 
one man, Bert Broadway, was asked by Butler 
to apply. Another applicant, Donald Kin-



- 1 1 a -

cald , was notified by Butler that the 
position was vacant (TT 82). Butler asked 
two other males, who he believed were 
qualified, to apply, but they declined (TT 
106). Butler did not contact either of two 
women whom he believed to be qualified to 
ask them to apply (TT106).

8. The committee interviewed all 
eight applicants on March 25, 1975. Each 
member of the committee had access to the 
application of each candidate. The commit­
tee received no written guidelines from the 
defendant for selecting the Recreation 
Director. No description of job duties was 
provided either the committee or the candi­
dates. The committee never formulated its 
own selection criteria except to agree 
informally that the person selected must 
live within the city or be willing to 
relocate there. Each committee member had
one vote.



- 1 2 a

9. During plaintiff's interview with 
the committee, she was asked about the 
program she would implement as Recreation 
Director. She was also asked (a) if she 
realized there would be night work in­
volved; (b) if she realized there could 
be travel throughout the county and meet­
ings with other directors; and (c) how her 
husband felt about her applying for 
the job (TT 8). No other candidate was 
seriously asked a similar question (TT 
48, 65). After becoming annoyed from 
hearing these questions asked only of 
Anderson, Boone facetiously remarked to 
Kincaid "and your new bride won't mind?" 
(TT 66).

The court has carefully considered 
the conflicting testimony of Nichols that 
all candidates were asked about night work 
(TT 119). Kincaid could not remember being 
asked a question about night work, although 
he remembered commenting on the subject (TT



-13a-

77); Butler remembered the question being 
asked of Anderson and of Kincaid "in a way" 
(TT 101). After hearing live testimony and 
considering the credibility of the differ­
ent witnesses, this court concludes as a 
fact that no serious question about night 
work or reaction of spouses was asked of 
any candidate besides the plaintiff.

Further, the plaintiff did not begin 
the interview by stating that the committee 
would not select her because she is a 
woman. No committee member besides Helms 
remembered such a statement and plaintiff 
explicitly denied making the statement (TT 
28) .

10, After reviewing the applications 
and completing the interviews, the committee 
generally considered Bert Broadway to be the 
most qualified applicant. Broadway 
was a Recreation Director in Cramerton 
and had taken five electives in physical



-1 4a-

education during college (TT 93, exhibit 
19). However, Broadway was eliminated from 
consideration during the interview because 
he said that he would not relocate to 
Bessemer City (TT 94).

11. After Broadway was eliminated, 
the only two candidates considerd by 
the committee to be qualified were Anderson 
and Kincaid (TT 100, 120, 131, 61). The 
remaining candidates were men who lived in 
the community, but had only participated in 
athletics -- they had no educational 
training or experience to prepare them for 
the position (TT 100, 131). The vote was 
4-1 for Kincaid; the four male members of 
the committee voted for Kincaid; Ms. Boone 
voted for the plaintiff. Kincaia was 
offered and accepted the job.

12. Shortly after Kincaid's selec­
tion, Boone told the plaintiff that she



-15a-

thought plaintiff was the best qualified 
candidate and that the committee members 
had chosen Kincaid because he was male. 
Plaintiff then filed a charge of discrimi­
nation with the Equal Employment Opportun­
ity Commission on March 31, 1975. A notice 
of right-to-sue was issued February 19, 
1981, and plaintiff initiated this proceed­
ing within ninety days of her receipt of 
that notice.

13. At trial, the male committee 
members said that they chose Kincaid over 
Anderson because he was more qualified 
because of his educational background. 
This court finds as a fact that plaintiff 
was more qualified for the job of Recrea­
tion Director based on the totality of her 
educational, employment, and recreation 
experience.

(a) While no job requirements 
were provided to the committee for 
making their selection of Recreation 
Director, t^iis court finds from



-1 ba­

the testimony of the committee members 
at trial that the job of Recreation 
Director was to create and implement 
a well-rounded recreation program 
for all citizens in the community. 
This job included a wide range of 
duties such as organizing and direct­
ing programs in athletics, art, music, 
dance, drama, and crafts; teaching and 
communicating with persons of all ages, 
backgrounds, and interests; managing 
community facilities; recruiting and 
selecting personnel; developing 
budgets and handling funds; and 
planning and implementing future 
programs (TT 49, 79; exhibit 8).
There was no educational requirement 
for the job; rather, the committee was 
searching for the person with the best 
background to perform the varied 
duties of the position (TT 53,115).

(b) In March, 1975, when the 
selection was made, plaintiff was a 
39-year-old woman, in good health, 
with a 1973 B.A. degree from Sacred 
Heart College in elementary education, 
and nearly twenty years of experience 
in various jobs, civic activities and 
recreation. In 1973-74, plaintiff was 
a third grade teacher in the Carr 
School in Dallas; she also had ten 
years of experience in substitute 
teaching in all grades in the Gaston 
County puolic schools. As part of her 
duties as a teacher she taught her own 
physical education classes, planned 
activities and trips, collected and 
budgeted money, and communicated with 
students, parents, and other teachers 
(TT 18-20).



-173-

Plaintiff was an experienced pub­
lic speaker through her activities in 
PTA and as President of the Exchang- 
ette Club, an organization which 
raises money to help crippled children 
(TT 17, 41). She frequently planned 
and organized activities, recruited 
people to carry out projects, and 
handled and budgeted money through her 
involvement in the Exchangettes, the 
Jaycette Club, and the Order of the 
Eastern Star (TT 18, 42).

Besides her experience teaching, 
plaintiff had direct experience in 
recreation as a member of the Broughton 
Hospital recreation department in 1956 
and 1957. There she planned and 
directed ballgames, dances and crafts 
and supervised other employees who 
helped implement these activities 
(TT 15). For this work, she received 
a North Carolina State Recreational 
Director Certificate 1957. Plaintiff 
personally has played softball, 
basketball, and soccer (TT 19) and 
followed her sons through sports, 
including attending many practices 
(TT 20-21). She has a basic knowledge 
of and enjoys all sports (exhibit 
10). To receive her elementary educa­
tion degree, plaintiff was required to 
take courses in physical education to 
learn how to set up activities and how­
to supervise them (TT 22). Plaintiff 
also has training in aecoupage, 
plays the piano, and has been a 
music director (exhibit 10).



-18a-

Plaintiff1s other education 
includes an associate degree from 
Sacred Heart College in 1963 or 1964; 
government and history courses at 
Gaston College in 1973 and 1974; logic 
and guidance courses at Belmont Abbey 
College in 1974; and a Dale Carnegie 
course in public speaking. Plaintiff 
also has bookkeeping experience 
through her job as a receptionist 
for three doctors in 1959 and experi­
ence with the public as a sales clerk 
at Belk Stores during 1961-1963 (TT 
15-16).

(c) In March 1975, Donald 
Kincaid was twenty-four years old, 
having graduated the previous spring 
from Appalachian State University 
with a B.S. degree in health and 
physical education. He did his 
student teaching at Mountain City 
High School in Tennessee (exhibit 
11). From approximately June 1974 to 
March 1975 he worked in the finance 
department of the Commercial Credit 
Corporation. He also sold life 
insurance for a couple of months 
immediately following completion 
of his degree requirements at school. 
Kincaid played football, baseball, and 
basketball in high school; he partici­
pated in intramurals during college 
(TT 74, 85). He had experience coach­
ing little league basketball in Besse­
mer City (TT 75). He mentioned on his 
resume that he enjoyed coaching, read­
ing and music (exhibit 11).

At the time of the interview, 
Kincaid had no experience supervising



-  193 -

other employees, no experience in 
public speaking, and no experience 
in planning or directing the activities 
of a recreation department. He had 
helped Butler schedule basketball games 
for the little league, but he had no 
hands-on training or experience in 
creating and setting up a broad range 
of programs. He had no experience 
teaching arts, crafts or music. He 
had never raised money or recruited 
personnel. Kincaid's only experience 
teaching sports was the required 
student teaching and coaching little 
league basketball in the winter of 
1975.

(d) On the basis of their 
relative qualifications, this court 
finds as a fact that plaintiff was 
more qualified than Kincaid to perform 
the broad range of duties required of 
a recreation director. She nad direct 
experience teaching, supervising, 
directing programs, raising money, 
speaking to the public, handling 
budgets, and planning activities, that 
Kincaid did not have. Both candidates 
knew the rules of most sports; both 
had actively participated in sports. 
Kincaid had a degree in health and 
physical education; Anderson had a 
degree in education, for which she was 
required to take classes in physical 
education. The selection committee did 
not inquire into the content of either 
candidate's courses (TT 84 , 108 ).
While Kincaid had personally played 
more of the traditionally male domina­
ted sports, Anderson had both partici­
pated in and taught a broad range of 
activities including sports, music, 
dance, and crafts. The combination 
of plaintiff's teaching degree, 
work experience, civic activities, 
and knowledge of recreation made her 
more qualified than Kincaid to perform 
the duties of the Recreation Director.



- 2 0 a—

14. Plaintiff, the more qualified 
candidate, was not selected for the posi­
tion of Recreation Director because of her 
sex. The selection committee had no 
standards or criteria by which to choose 
the new director, except for the informal 
residence requirement. The subjective 
decision making process left the committee 
members free to yse their own biases in the 
selection. Defendant argues that the male 
committee members had experience in athle­
tics, physical education, recreation, and 
government qualified them to use their own 
knowledge in selecting between the appli­
cants. After considering the live testi­
mony and reviewing the evidence, this court 
finds that the "knowledge" of the male 
members of the committee included a bias 
toward having a male, particularly one 
versed in the traditionally male-dominated 
sports, in the position of Recreation



- 2 1 3 -

Director. This bias is inferred from the 
following evidence:

(a) The only female candidate 
was asked questions about night work 
and the reaction of her spouse; those 
questions were not seriously asked of 
any male candidate. If the questions 
had been asked of all candidates, the defendant might reasonably claim that 
the inquiry about night work was job 
related. As it is, the questions 
imply a belief that women have family 
responsibilities that should keep 
them home at night. Plaintiff was not 
the only applicant with a family; 
Kincaid had a wife and child.

(b) Butler solicited applica­
tions from four males for the job 
(Kincaid, Broadway, Russ Bergman and 
Roy Pierson, TT 82, 99, 106). Al­
though he knew two qualified women, he 
did not seek applications from either 
of them. Butler made an assumption 
that the women would not want to take 
a cut in pay to accept the job, and he 
did not make that assumption with 
respect to the males.

(c) Nichols testified at trial 
that "it would have been real hard" 
for a lady to have run the job (TT 
120). He said that he thought "my 
wife should be at home at night" (TT 125) .



-22a-

(d) The emphasis by the male 
committee members on the importance of 
a degree in health and physical 
education was abandoned when they 
explained why Broadway was their first 
choice. Broadway had no degree; they 
found him most qualified because of 
his work experience (TT 115). Yet the 
male members of the committee down­
played the significance of experience 
when comparing plaintiff's teaching, 
supervisory, and recreation experience 
to Kincaid's qualifications.

(e) Both Nichols and Butler em­
phasized the role of the Recreation 
Director in organizing traditionally 
m a l e - d o m i n a t e d  sports leagues. 
Nichols referred to the job as 
"Athletic" director (TT 124, dep. 
p. 7). Butler wanted the baseball, 
football, and basketball programs to 
be strengthened (TT 107). When 
Nichols was asked about his experience 
with running a recreation program, 
he responded "We looked after the 
baseball football, basketball, lined 
the fields off, helped out at ball- 
games, helped officiate at basketball 
games, and et cetera like that" (TT 
117). Neither person mentioned the 
broad range of recreational activities 
outside these sports that a director 
would be expected to organize and 
supervise.

While one committee member, Helms, 
claimed to have been influenced by the 
program Kincaid presented during the 
interview. McClellan testified that



-23a-

Anderson and Kincaid presented very 
similar programs (TT 112)'. Prom the 
testimony of Anderson and Kincaid at 
trial, the court finds that there was 
no substantial difference between the 
programs offered during the interview 
and that this explanation is pretext- 
ual (TT 8, 79) .

The male members of the committee 
chose Kincaid, the less qualified 
candidate, because he was male. The 
explanation offered that Kincaid was 
more qualified because of his degree 
in health and physical education is 
pretextual. But for the discrimina­
tion based on sex, the plaintiff 
would have been selected for the 
position of Recreation Director of 
Bessemer City.
15. Plaintiff suffered monetary loss 

as a result of the denial of the Recreation 
Director job. Her evidence showed that her 
earnings from March 1975 through trial were 
$65,402 while the earnings of Kincaid for 
the same period were $95,799.

CONCLUSIONS OF LAW
1. This action is properly before the 

court, the court has jurisdiction of this 
action under Title VII, and all procedural 
requirements of Title VII have been met.



-2 4 a-

2. The evidentiary standard and 
allocation of burden of proof applicable 
to this case is set forth in Texas Dept.
of Community Affairs v._Bura ine , 4 5 0
U.S. 248 (1981), where the Supreme Court
refined the basic allocation of burdens 
and order of presentation of proof set 
forth in McDonnell-Douglas Corp. v. Green, 
411 U.S. 792 (1973). Plaintiff has the 
burden of proving by the preponderance of 
the evidence a prima facie case of discrim­
ination. if the plaintiff succeeds in 
proving a prima facie case, the burden 
shifts to the defendant to articulate some 
legitimate, nondiscriminatory reason for 
plaintiff's rejection. 411 U.S. at 802. 
The ultimate burden of persuading the court 
tnat defendant discriminated against plain­
tiff remains with plaintiff. Burdine, 450
U.S. at 253.



-25 a-

3. Plaintiff's evidence satisfies 
her burden of showing that she applied for 
the position, was qualified, but "was 
rejected under circumstances that give 
rise to an inference of unlawful discrimi­
nation.H Burdine, 450 U.S. at 253. Those 
circumstances include the gender stereo­
typed questions asked only of the plain­
tiff and the failure to solicit qualified 
men and women equally to apply for the 
position.

4. Defendant articulated a nondis-
criminatory reason for failing to select 
plaintiff: that another candidate was
better qualified because of his educational 
degree. Plaintiff may demonstrate that the 
proffered reason was not the true reason 
she was not selected either (1) directly, 
by persuading the court that a discrimina­
tory reason more likely motivated the 
defendant; or (2) indirectly, by showing



-26a-

that the defendant's proffered reason is 
pretextual. Burdine, 450 U.S. at 256; 
McDonnell-Douglas, 411 U.S. at 804-805.

5. The court concludes that the 
defendant's explanation is pretextual 
for the reasons set forth fully in the 
findings of fact. Plaintiff was more 
qualified than Kincaid to perform the 
broad range of duties required of a 
Recreation Director. The male members 
of the committee were biased toward 
selecting a male for the position as 
inferred from the questions about night 
work and reaction of her spouse asked 
only of the plaintiff, the failure to 
solicit qualified women to apply for the 
position, the perception that a woman 
would have difficulty in the position, and 
the emphasis on tractitionaily male-domina-



-27a-

ted sports to the exclusion of recreational 
activities for all ages and both sexes. 
The male members of the committee empha­
sized either experience or education, 
depending on which criteria justified the 
choice of a particular male candidate.

The plaintiff carried the burden of 
persuasion throughout and convinced this 
court that but for the discrimination 
on the basis of sex, she would have been 
hired as Recreation Director. The gender 
biases of the male members of the committee 
played a substantive and decisive role in 
the hiring decision. Mt. Healthy City 
Board of Ed. v. Doyle, 429 U.S. 274, 287
(1977).

6. Close scrutiny is required where 
a hiring decision is made on subjective, 
unarticulated criteria. In Coble v. Hot 
Springs School District No. 6 , 6 8 2 F .2d
721 (8th Cir. 1982), the court reversed



- 28a

the finding of a district court that 
plaintiff was not discriminated against on 
the basis of sex in the selection of a 
director of a teacher's center and remand­
ed to the lower court with instructions to 
grant appropriate relief. The Eighth 
Circuit found that defendant's proffered 
explanation of lack of experience and 
absenteeism was pretextual and that the 
school district made the decision on the 
basis of a gender stereotype that the 
female teacher's family responsibility 
would interfere with her work performance. 
The court said:

Although not illegeal per se, sub­
jective promotion procedures are 
to be closely scrutinized because of 
their susceptibility to discrimina­
tory abuse. The mere fact that the 
subjective process is intended to 
recognize merit does not necessarily 
alleviate its susceptibility to 
discriminatory abuse. When the eval­
uation is in any degree subjective 
and when the evaluators themselves 
Ji— — — —— — — m e m bers of the protected



-29a-

criminatory basis of the articulated 
reason for the decision should be 
subject to particularly close scrut­
iny by the trial judge. Royal v . 
M issouri Highway & Transportation 
Comm'n. , 655 F.2d 159 , 16 4 ( 8th
Cir. 1981) .

682 at 726 (emphasis added).
7. Defendant may not base its 

employment decision on gender stereotypes 
or sexual bias. In Los Angeles Dept, of 
Water and Power v. Manhart, 435 U.S. 702 
(1978), the Supreme Court says, "It is now 
well recognized that employment decisions 
cannot be predicated on mere 'sterotyped' 
impressions about the characteristics of 
males or females. Myths and purely 
habitual assumptions about a woman's 
inability to perform certain kinds of work 
are no longer acceptable reasons for 
refusing to employ qualified individuals, 
or for paying them less." 435 U.S. at 
707. Defendant's decision not to hire the 
more qualified applicant for Recreation



-303-

Director is based on such stereotyped 
impressions of the sexes as indicated in 
the questions asked the plaintiff during 
the interview and the testimony of the 
male committee members at trial. Other 
examples of discrimination by employers 
based on gender stereotypes which have been 
found to violate Title VII are found in 
Muntjn v. California Parks and Rec. Dept,, 
671 F.2d 360 (9th Cir. 1982) (woman denied 
position as a deckhand); Williams v. 
Hoffmeister, 520 F. Supp. 521 (E.D. Tenn.
1981) (woman denied position as a school
principal); EEOC v . Spokane Concrete 
Products, 534 F. Supp. 518 (E.D. Wash.
1982) (woman denied position as a truck
driver); Woody v. City of West Miami, 477 
F. Supp. 1073 (S.D. Fla. 1979) (woman
denied position as a police officer).



- 3 1 a -

8. As a matter of law, the court 
concludes that plaintiff has been discrim­
inated against because of her sex in 
violation of Title VII, and is entitled to 
be made whole. Albermarle Paper Co. v . 
Moody , 422 U.S. 405 (1975); W h J. t. e_ v .
Carolina Paperboard Corp., 564 F.2d 1073
(4th Cir. 1977). Plaintiff is entitled to 
back pay based on the difference between 
her earnings and Kincaia's earnings in the 
Recreation Director position. See EEOC v. 
Korn Industries, Inc., 662 F.2d 256 (4th 
Cir. 1981). Consistent with the "make 
whole" purpose of Title VII, plaintiff is 
also entitled to interest on this amount 
at the rate of 8%, compounded semiannually, 
from the day the position of Recreation 
Director was filled in 1975 to the date of 
trial. Although plaintiff would normally
also be entitled to receive the Recreation



-32a-

Director position, plaintiff requested at 
trial that, given the passage of time, 
Kincaid not be "bumped" and the job given 
to her. Plaintiff is also entitled to 
receive interest on the amount awarded as 
required by 28 U.S.C. § 1961, as amended, 
from this date until the sum is paid.

9. Plaintiff, as prevailing party, 
is entitled to recover her costs and 
expenses, including reasonable attorneys' 
fees. A separate order is being entered 
herewith concerning fees, costs, and 
expenses.

10. Plaintiff is entitled to injunc­
tive relief prohibiting future discrimina­
tion by the defendant on the basis of sex 
in its hiring practices.

A judgment will be entered based upon 
these findings of fact and conclusions of

This 16 day of February, 1983.

James B. McMillan 
United States District Judge

law.



-33a-

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

Charlotte Division 
C-C-81-204-M

PHYLLIS A. ANDERSON, )
)Plaintiff, )
)

-VS- ) J U D G M E N T
)CITY OF BESSEMER CITY, )

NORTH CAROLINA, )
)Defendant. )

In accordance with the findings of 
fact and conclusions of law and order 
concerning fees entered herewith,

IT IS ORDERED, ADJUDGED AND DECREED:
1. That defendant is hereby enjoined 

from discriminating against the plaintiff 
and other females in hiring or in other 
terms and conditions of employment because 
of sex.

2. That the plaintiff have and 
recover from the defendant back pay in the 
sum of $30,397.00, with interest at the 
nate of 8%, compounded semiannually, from



-34a-

the date defendant filled the position of 
Recreation Director in 1975 to the date of 
trial. Defendant is also directed to pay 
interest at the rate specified by 28 
U.S.C. § 1961, as amended, from this date 
until paid.

3. That plaintif is allowed the 
costs of this action, including reason­
able attorneys' fees and expenses, in the 
amount of $16,971.59, plus interest as 
required by 28 U.S.C. § 1961, as amended, 
from this date until paid.

This 16 day of February, 1983.

James B. McMiiXan ~~
United States District Judge



-35a-

Phyllis A. ANDERSON, Appellee, 
v.

C I T Y  O F  B E S S E M E R  C I T Y ,  N O R T H  C A R O L I N A ,  
A p p e l l a n t .

No. 83-1278.
United States Court of Appeals,

Fourth Circuit.
Argued July 22, 1983.
Decided Sept. 19, 1983.

Philip M .  Van Hoy, Hartford, Conn. 
(Siegel, O'Connor & Kainen, P.C., Hartford, 
Conn., Arthur C. Blue, III, Whitesides, 
Robinson & Blue, Gastonia, N.C., on brief), 
for defendant.

Jonathan Wallas, John T. Nockleby, 
Charlotte, N.C. (Chambers, Ferguson, Watt, 
Wallas, Adkins & Fuller, P.A., Charlotte, 
N.C., on brief), for appellee.

Before RUSSELL, WIDENER and HALL, 
Circuit Judges.

K.K. HALL, Circuit Judge:



-36a-

Phyllis A. Anderson filed this 
suit pursuant to Title VII of the Civli 
RTghst Act of 1964, 42 U.S.C. §2000e et 
seq. Anderson alleged that defendant, 
City of Bessemer City, North Carolina (the 
City), discriminated against her on the 
basis of sex when it failed to hire her as 
its Recreation Director. Following a 
bench trial, the district court, 557 
F.Supp. 412, entered judgment in favor of 
Anderson and ordered back pay and costs, 
including attorney's fees. From this 
judgment, the City appeals. We reverse.

I.
In the spring of 1975 , the City 

began seeking applicants for the position 
of Recreation Director. A committee of 
five persons was appointed by the mayor to 
make the selection. The mayor appointed 
Leona Auddie Boone, the selection commit-



-373-

tee's only female member, to be its 
chairperson. The record reveals that no 
specific prehiring guidelines for the 
position had been established.1

1. A letter from Wiliam E. Metcalf, City 
Manager, sent to the succesful applicant, 
Donald Kincaid, after he was hired, 
describes the duties of the position of 
Recreation Director as follows:

The duties of the recreation 
director of Bessemer City will 
endeavor [sic] to develop a well 
rounded recreation program for the 
use and benefit of the citizens 
of Bessember City. His duties are 
expected to encompass and include, 
but not limited [sic] to, the follow­
ing:

1) To manage all recreation 
facilities in the City of Bessemer 
City.

2) To d e v e l o p  r e c r e a t i o n  
programs to serve the needs of all 
age groups and both sexes.

3) Organize a program of com­
petitive sports in a comprehensive 
program.

4) Manage the Bessemer City 
Community Centers.

5) D i r e c t  the o p e r a t i o n s  
of the swimming facilities.

6) Develop facilities and 
planning and proposed methods of 
financing the plans for improve­
ment in addition to the city recrea­
tion facilities.



-38a-

eight persons applied for the job 
and submitted their resumes, including 
Anderson, who was the only female appli­
cant. All eight applicants were inter­
viewed by the selection committee on the 
same day. Following the interviews, the 
committee members determined that only 
three of the applicants were qualified 
for the job. They were Bert Broadway, 
Donald Kincaid, and Anderson.

For the two years immediately preced­
ing his application, Broadway, who was a

1. (continued)
7) Perform other related duties 

as may be assign by the City Manager.
8} The Recreation Director 

is under direct supervision and 
control of the City Manager and 
is expected to work together with, 
and receive advise [sic] from the 
Bessemer City recreation committee.

9) The Recreation Director 
is hereby delegated the authority 
to hire and fire all employees 
in the recreation department.



-39a-

licensed recreator, had been the Recreation 
Director for Cramerton, North Carolina, a 
town located in the same county as Bessemer 
City. Broadway was not a college graduate, 
although he had taken college-level classes, 
includng five electives in physical educa­
tion. Because of his experience, Broadway 
was the first choice of all the committee 
members, including Boone, the only female 
member. During his interview, however, 
Broadway had indicated that he was unwill­
ing to move to Bessemer City to accept the 
job. For that reason, the committee members 
eliminated him from further consideration 
and proceeded to decide between Kincaid 
and Anderson. Four members voted in favor 
of Kincaid because, as they testified at 
trial, they believed he had a superior 
educational background. Boone was the 
only member to vote for Anderson. Kincaid 
was hired for the position.



-40a

When he applied for the job, Kincaid 
was twenty-four years old. A year earlier 
he had received a Bachelor of Science 
degree in health and physical education. 
In connection with his college experience, 
Kincaid had listed on his resume the 
following "method and activity courses": 
basketball, football, baseball, volleyball, 
track soccer, swimming, tennis, skiing, 
badminton, and golf. He also indicated 
that he had participated in college 
intramural sports. Included as other 
interests on Kincaid's resume were coach­
ing, reading, and music.

At trial, Kincaid testified that 
as part of this college training, he 
had taken courses in how to teach and 
evaluate sports and physical eduaction. 
He also testified that his course work 
included organizing and administering



-41a-

physical education programs, with an 
emphasis on planning and developing 
facilities, budgeting, purchasing, main­
tenance, and insurance. Finally, Kincaid 
stated that he had taken courses in 
first-aid and public speaking. Kincaid 
had played various sports as a high school 
student in Bessemer City and had served as 
a little league sports coach before 
applying for the job with the City.

Kincaid had been a student teacher 
of physical education at a high school 
in Tennessee during 1973-1974 and in 
1974 received his teacher's certification 
after passing a national examination. 
When he applied for the position of City 
Recreation Director, he was employed in 
the finance department of a credit company, 
where he had some experience in dealing 
with the public.



-42a-

At the time of her interview, Anderson 
was thirty-nine years old. In 1973, she 
received a Bachelor of Arts degree in 
elementary education. She had also taken 
additional courses, including a Dale 
Carnegie course and a class in decoupage.

Around 1956-1957, Anderson had worked 
approximately one year at a North Carolina 
state mental hospital, where she had 
instructed patients in recreational 
activities, including sports, dancing, and 
signing. In connection with this position, 
Anderson had obtained a state certificate 
as a Recreation Director. Although her 
duties at the hospital may have included 
some supervision of employees, she had no 
authority to hire, fire, or discipline. 
Anderson's job experience also included 
being a receptionist in a doctor's office 
in 1959 and working as a part time depart­
ment store clerk in the early 1960's.



-43a-

Before applying for the job of Recreation 
Director, Anderson had been a substitute 
elementary school teacher for about ten 
years and had taught a third grade class in 
1973-1974.

At trial Anderson testified that her 
duties as an elementary school teacher 
included oeing responsible for physical 
education and organizing and supervising 
children's games. She testified that she 
attended sports events in which her two 
sons participated and that she had played 
softball and basketball.^Anderson had 
also participated in various civic activi­
ties, which involved fund raising and 
Public speaking. Her resume further 
indicated that she played the piano and 
had been a music director.

2* At oral argument, Anderson's counsel 
stated that her experience playing 
basketball occurred in the mid-1950's.



-44a-

There was conflicting testimony at 
trial with respect to whether all of the 
candidates had been questioned about their 
amenability to travelling and working at 
night and about their spouses' reactions 
to these aspects of the job. Anderson 
claimed that one of the male selection 
committee members had posed a single 
question to her on these subjects, but she 
coula not identify which committee member 
it haa been. Boone, the committee's 
chairperson and only female member, 
testified that sne did not recall other 
candidates being asked such questions. 
Boone admitted , however, that she had 
commented to Kincaid, "and your new bride 
won't mind." Another committee member 
testified that the inquiry about night 
work was asked of all applicants. Accord­
ing to the testimony of a third committee 
member, both Kincaid and Anderson had been



-45a-

questionea aoout their willingness to work 
at night. Kincaid testified that, al­
though he could not pinpoint the question, 
he recalled communicating to the committee 
his understanding that the job would 
require after hours work.

When the committee failed to hire 
her for the position, Anderson filed a 
charge of sex discrimination with the 
Equal Employment Opportunity Commission 
ana, after receiving notice of her right 
to sue, brought this Title VII action. 
The City defended on the ground that 
Kincaid was hired because of his superior 
educational credentials. After hearing 
the evidence, the district court issued a 
Memorandum of Decision, concluding tht the 
City's reason for hiring Kincaid was 
pretextual and that Anderson had been 
denied the job because of her sex. The 
district court then directed plaintiff's



-46a-

counsel to submit proposed findings of 
fact, conclusions of law, and an appropri­
ate judgment. The City filed a motion, 
objecting to the delegation of this 
function to plaintiff and requesting the 
trial judge to write his own opinion. 
This motion was denied, but the City was 
invited to and did in fact respond to 
plaintiff's findings and conclusions after 
they were filea. The substance of plain­
tiff's submission was adopted by the trial 
court as the final opinion in the case.

In this opinion, the trial judge 
concluded that the male committee members 
were biased toward selecting a male, 
particularly one who was versed in tradi­
tionally male-dominated sports. Further­
more, in reaching his conclusion that 
Anderson had been discriminated against 
because of her sex, the trial judge 
specifically found that Anderson was "more



-47a-

qualified than Kincaid to perform the 
broad range of duties required of a 
recreation director." He further found 
that Anderson was the only candidate who 
had been asked any "serious question about 
night work or reaction of spouses."

II.
On appeal, the City contends that 

these two critical findings of the trial 
court were clearly erroneous and require a 
reversal of the judgment in favor of 
Anderson. The City also challenges the 
trial court's conclusion that the City's 
refusal to hire Anderson was based on 
gender stereotypes and sexual bais. 
Finally, the City argues that the trial 
court unlawfully delegated to plaintiff's 
counsel the judicial function of writing 
the opinion in the case. We agree with 
each of these contentions.



-48a-

As we recently stated in Lewis v. 
Central Piedmont Communtiy College, 689 
F.2d 1207, 1209 (4th Cir. 1982):

In McDonnell Douglas Corp. v. 
Green, 411 U.S. 792, 93S.Ct. 1817,
26 L.Ed.2d 668 (1973), the Supreme
Court established the basic alloca­
tion of the burdens and order of 
p r esentation of proof in cases 
alleging discriminatory treatment. 
[Footnote omitted] First, the 
plaintiff has the burden of estab­
lishing a prima facie case of dis­
crimination. Then the burden shifts 
to the employer to articulate a 
legitimate, non-discrimnatory reason 
for rejecting the plaintiff. The 
burden of proving discrimination, 
however, remains with the plaintiff, 
and, therefore, if the employer 
presents legitimate reasons for 
plaintiff's rejection, it is the 
plaintiff's burden to prove that 
those reasons were actually a pretext 
for discrimination.

In order to establish a prima 
facie case, ” [t]he plaintiff must 
prove by a preponderance of the 
evidence that she applied for the 
available position, for which she was 
qualified, but was rejected under 
circumstances which give rise to an 
inference of unlawful discrimination." 
Texas Dept, of Community Affairs v. 
Burdine, 450 U.S. 248, 253, 101 S.Ct. 
1089, 67 L .Ed.2d 207 (1981).

That Anderson met her initial burden of



-49a-

establishing a prima facie case of discrim­
ination is not seriously contested. Any 
inference of discriminatory intent, 
however, was dispelled by the City's clear 
explanation that Kincaid had better 
qualifications for the job. Our review, 
therefore, is focused on whether or not 
Anderson met her remaining burden of 
showing that the City's articulated 
nond is.cr im iniatory reason for selecting 
Kincaid was in fact pretextual, as the 
district court found. As stated previously, 
the district court's conclusion that 
Anderson had been the victim of intentional 
discrimination depended in large part on 
its findings that Anderson was both better 
qualified than Kincaid and also had been 
subjected to disparate selection treatment.

I I I .

Directing our attention first to the 
matter of qualifications, we note that it



-50a-

is not enough for Anderson to show that 
she ws just as qualified as Kincaid to 
perforin the job. Her burden is to estab­
lish that she was better qualified than 
the successful applicant. EEOC v. Feaeral 
Reserve Bank of Richmond, 698 F.2d 633,
672 (4th Cir. 1983). The record in this 
case simply fails to support the district 
court's finding that between the two 
candidates, Anderson had the superior 
credentials.

Although the selection committee had 
not established prehiring guidelines for 
the Recreation Director's position, it is 
clear that athletics was a significant and 
legitimate concern of all the committee 
members, both male and female. This is 
obvious from the fact that Broadway was 
considered the most qualified of all the 
candidates by all selection committee 
members, including Boone. Broadway's 
resume, which was admitted into evidence,



- 5 1 a -

emphasizes his background in athletics, 
equipment, and games, including football, 
baseball, and basketball. Thus, although 
the position also involved other aspects 
of recreation, the entire committee per­
ceived knowledge of athletics and sports 
to be an important and integral part of 
the Recreation Directors responsibilitiy.

Moreover, there is simply nothing 
in the record to support Anderson's claim 
that the selection committee manipulated 
the requirements of the job to favor 
Kincaid over Anderson. Contrary to 
Anderson's assertion, the four male 
committee members were not inconsistent in 
ranking Kincaid as their second choice, 
because of his college degree, when their 
first choice, Broadway, was not a college 
graduate. Of the three applicants consid­
ered to be qualified for the job, Broadway,



-52a-

who was already a recreation director in 
another city, clearly had the most current 
and directly relevant job-related experi­
ence, which the committee was seeking, 
despite the fact that he had no college 
degree. Similarly, it is clear that 
Kincaid, who was a recent college graduate, 
holding a degree in a specific academic 
discipline related to recreation, had the 
most directly relevant work experience. 
Anderson, on the other hand, had neither 
the current job-related experience of 
Broadway, nor the current job-related 
education of Kincaid. Anderson held 
merely a college degree in an unrelated 
field, elementary education, and had 
practical experience which, with one
exception, was only indirectly related to 

3recreation.

3. The exception was the job Anderson 
had for one year at a state hospital 
around 1957, in connection with



-53a-

Unlike Kincaid, Anderson's own parti­
cipation in sports was primarily limited 
to her basketball experience some twenty 
years previously. This experience, even 
when considered in conjunction with her 
exposure to team sports as a mother of 
two sons and as an elementary school 
teacher, is simply not comparable to 
Kincaid's personal involvement and formal 
training in athletics. Neither candidate 
had specific experience in budgeting or in 
employee supervision. Anderson's budgetary 
experience was limited to collecting money 
for school lunches and trips and her super­
visory experience, if any, at her state

3. (continued)
which she had obtained her license as 
a recreator. These events, however, 
occurred some eighteen years before 
Anderson applied for the position with 
the City and hardly overcome Kincaid's 
recent job-related training to make 
her better qualified for the position 
than Kincaid.



-54a-

hospital job was too remote in time to
merit serious consideration.

There is no question that Anderson
was qualified for the job. Nevertheless,
the evidence shows that Kincaid's overall
training was superior to Anderson's
training and experience for the demand of 

4this job. Even among equally qualified

4. When asked about particular, individ­
ual comparisons in qualifications 
between Anderson and Kincaid, even Boone 
specifically denied that Anderson was 
better qualified.

Q Did you personally conclude that 
the plaintiff, Ms. Anderson, would 
be better qualified than Mr. Kincaid 
to institute a dance program?
A No. I think Mr. Kincaid would be fine.
Q You do not believe in that
sense Ms. Anderson's qualifications
were superior?
A No, indeed.
Q How about art, do you believe 
either one pf them had qualifications
superior to the other ___  As to the
subject of art specifically?
A NO.



-55a-

candidates, an employer has discretion to 
choose the person he prefers. "The fact 
that a court may think that the employer 
misjduged the qualifications of the 
applicants does not in itself expose him
to Title VII liability--- " Burdine, 405
U.S. at 259 , 101 S.Ct. at 1 09 7 . In
finding Anderson better qualified than 
Kincaid, the district court impermissibly 
substituted its own judgment for that of 
the selection committee. Because, after 
reviewing the entire evidence, we are "left

4. (continued)
Q As to the subject of dramatics?
A No, a rounded program, sir.
Q As to the subject of public
speaking, specifically?
A No, sir.
Q As to the subject of team sports,specifically?
A No.



-56a-

with the definite and firm conviction that 
a mistake has been committed," United 
States v. United States Gypsum Co., 333
U.S. 364, 68 S.Ct. 525, 92 L.Ed. 74 6

(1948), the district court's finding that 
Anderson was better qualified than Kincaid 
is clearly erroneous. Fed.R.Civ.P.52(a).

IV.
We next consider the district court's 

finding that Anderson was the only appli­
cant seriously questioned about night 
work, travel, and her family's reaction to 
these job requirements. This finding was 
based in substantial part on Boone's 
testimony, including the following excerpt 
from the City's cross-examination of 
Boone:

Q You testified about the famous 
question about the family's reaction 
to the job. Who on the committee 
asked Ms. Anderson that question?
A I don't recall.



-57a-

Q S o ,  l i k e  M s ,  A n d e r s o n ,  y o u  k n o w  
i t  w a s  a s k e d ,  b u t  y o u  d o n ' t  r e m e m b e r  
w h o  a s k e d  i t ?

A I t  w a s  e i t h e r  T i m  H e l m s  - -  T i m ,  
I ' m  n o t  g o i n g  t o  p u t  y o u  o n  t h e  
s p o t .  L e t  m e  s a y  I  d o n ' t  r e c a l l .  I ' m  
n o t  g o i n g  t o  s a y  b e c a u s e  i t  w o u l d  b e  
j u s t  l i k e  p i c k i n g  a  n a m e  o u t  o f  a  
h a t .

Q D o  y o u  d e n y  t h a t  t h e  o t h e r  
a p p l i c a n t s ,  a s i d e  f r o m  t h e  p l a i n t i f f ,  
w e r e  a s k e d  a b o u t  t h e  p r o s p e c t  o f  
w o r k i n g  a t  n i g h t  i n  t h a t  p o s i t i o n ?

A  N o t  t o  m y  k n o w l e d g e .

Q A r e  y o u  s a y i n g  t h a t  t h e y  w e r e  n o t  
a s k e d  t h a t ?

A T h e y  w e r e  n o t  a s k e d ,  n o t  i n  
t h e  c o n t e x t  t h a t  t h e y  w e r e  a s k e d  o f  
P h y l l i s .  I  d o n ' t  k n o w  w h e t h e r  t h e y  
w e r e  w o r r i e d  b e c a u s e  J i m  w a s n ' t  
g o i n g  t o  g e t  h i s  s u p p e r  o r  w h a t .  Y o u  
k n o w ,  t h a t  g o e s  b o t h  w a y s .

Q D i d  y o u  t e l l  P h y l l i s  A n d e r s o n  
t h a t  D o n n i e  K i n c a i d  w a s  n o t  a s k e d  
a b o u t  n i g h t  w o r k ?

A H e  w a s n ' t  a s k e d  a b o u t  n i g h t  w o r k .

Q T h a t  a n s w e r s  o n e  q u e s t i o n .  
N o w ,  l e t ' s  a n s w e r  t h e  o t h e r  o n e .  D i d  
y o u  t e l l  P h y l l i s  A n d e r s o n  t h a t ,  t h a t  
D o n n i e  K i n c a i d  w a s  n o t  a s k e d  a b o u t  
n i g h t  w o r k ?



-58a~

A ^ e s ' after the interview —  Ithink the next day or sometime, and 
I know -- may I answer something?
Q If it's a question that has been 
asked; otherwise, no. It's up to the Judge to say.
A You asked if there was any 
question about -- i think Donnie 
was just married, and I think I 
made the comment to him personally -- 
and your new bride won't mind.
Q So, you asked him yourself about his own wife's reaction?
A No, no.
Q That is what you just said.
The evidence in this case, even 

including Boone's testimony, amply demon­
strate that a substantially similar 
question concerning after-hours work and
family reaction was posed both to Anderson 
and Kincaia, if not to all candidates. 
Nor are we convinced by the district 
court's characterization of Boone's remark 
to Kincaid, "and your new bride won't 
mind," as facetious and asked merely out



-59a-

of annoyance or frustration. The record 
does not indicate the sequence of the 
interviews and thus fails to provide the 
requisite support for this theory, which 
presumes that the six unsuccessful male 
candidates were interviewed first, fol­
lowed by Anderson, and then Kincaid. 
Moreover, the record clearly demonstrates 
that night work and travel were antici­
pated functions of the position. Thus, 
any question on these subjects to any of 
the candiates were certainly job-related.

The district court's finding that 
Anderson was the only candidate seriously 
questioned about these matters represents 
another instance in which the trial court 
impermissibly interjected its own judgment 
into the case. The finding is without 
evidence to support it and is, therefore, 
clearly erroneous. Fed.R. Civ.P.52(a).



- 6 0 a -

V .

N e x t ,  w e  a d d r e s s  t h e  d i s t r i c t  c o u r t ' s  

c o n c l u s i o n  t h a t  t h e  m a l e  c o m m i t t e e  m e m b e r s  

w e r e  b i a s e d  i n  f a v o r  o f  h i r i n g  a  m a l e  a n d  

t h a t  t h e  C i t y ' s  " d e c i s i o n  n o t  t o  h i r e  t h e  

m o r e  q u a l i f i e d  a p p l i c a n t  [ i . e .  A n d e r s o n ]  

f o r  R e c r e a t i o n  D i r e c t o r  i s  b a s e d  o n  s u c h  

s t e r e o t y p e d  i m p r e s s i o n s  o f  t h e  s e x e s  a s  

i n d i c a t e d  b y  t h e  q u e s t i o n s  a s k e d  t h e  

p l a i n t i f f  d u r i n g  t h e  i n t e r v i e w ?  a n d  t h e  

t e s t i m o n y  o f  t h e  m a l e  c o m m i t t e e  m e m b e r s  a t  

t r i a l . "  We  h a v e  a l r e a d y  d e t e r m i n e d  t h a t  

t h e  d i s t r i c t  c o u r t ' s  f i n d i n g s  w i t h  r e s p e c t  

t o  A n d e r s o n ' s  q u a l i f i c a t i o n s  a n d  h e r  

t r e a t m e n t  i n  t h e  s e l e c t i o n  p r o c e s s  w e r e  

c l e a r l y  e r r o n e o u s .  W i t h o u t  t h e s e  c r i t i c a l  

f i n d i n g s ,  t h e  r e m a i n i n g  e v i d e n c e  r e l i e d  o n  

b y  t h e  d i s t r i c t  c o u r t  i s  s i m p l y  i n s u f f i c ­

i e n t  t o  s u p p o r t  t h e  d i s t r i c t  c o u r t ' s  

c o n c l u s i o n  t h a t  t h e  m a l e  c o m m i t t e e  m e m b e r s



-61a-
5were biased.

The district court placed special 
emphasis on the fact that the City's 
hiring decision was made on the basis of 
subjective, unarticulated criteria. The 
use of subjective criteria to hire employ­
ees is not, however, illegal per se. As 
the Supreme Court pointed out in McDonnell 
Douglas v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L . Ed. 2d 668 ( 1973 ), "the mere

5. The district court concluded that bias 
was inferred from the failure of one of 
male committee members to solicit appli­
cations from two female school teachers 
he knew and from remarks made by another 
committee member that it would be "real 
hard," in his opinion, for a woman to 
serve as Recreation Director. This evi­
dence, however, is inadequate to support 
a finding of bias, and is dispelled by 
other portions of the record. For ex­
ample, there is nothing to show the male 
committee members had a bias against 
working women. All four testified 
that their wives had worked and were 
accustomed to being away from home during 
evening hours. The wife of one committee 
member had worked a night shift for ten 
years and the wife of another had per­
formed night works as a Registered 
Nurse.



-62a-

fact that subjective criteria are involved 
in the reason articulated by an employer 
does not prevent according it sufficient 
rebuttal weight to dispel the prima facie 
case." Page v. Golger, 645 F.2d 227, 230
(4th Cir. 1981). We have previously 
discussed the legitimate importance which 
all the committee members attributed to 
athletics and team sports in the Recrea­
tion Director's role (see Part III of this 
opinion). Suffice it to say that our 
review of the entire record leads us to 
conduce that Anderson failed to carry her 
burden of demonstrating sex-based bias on 
the part of the male committee members. 
Likewise, given this record, she failed to 
fulfill her overall burden of proving 
intentional discrimination because of her 
sex. Thus, the district court's judgment 
in her favor must be reversed.



-63a-

VI.
Our close scrutiny of the record in

this case is justified by the manner in
which the opinion was prepared. In this
regard, we remind the district court of
our recent admonitions, condemning the
practice of adopting the prevailing
party's proposed findings of fact and
conclusions of law. See, e .g ., Cuthbert-
son v. Biggers Bros., Inc., 702 F.2d 454,
458-59, 465-66 (4th Cir. 1983); EEOC v .
Fedreal Reserve Bank of Richmond, 698 F.2d
633, 640-41 (4th Cir. 1983); Holsey v .
Armour & Co., 683 F.2d 864 (4th Cir.1982).

In Chicopee Manufacturing Corp. v .
Kendall Company, 288 F.2d 719 (4th Cir.
1961), we recognized that:

[tjhere is authority for the submis­
sion to the court of proposed find­
ings of fact and conclusions of law 
by the attorneys for the opposing 
parties in a case, and the adoption of 
the proposed findings and conclusions 
as the judge may find to be proper...



-64a-

But there is no authority in the 
federal courts that countenances the 
preparation of the opinion by the 
attorney for either side. That prac­
tice involves the failure of the trial 
judge to perform his judicial func­
tion. .. .

Id. at 724-25. In Chicopee, we specific­
ally held that such a practice justified 
reversal of the judgment and a remand 
for further proceedings. See al s o , 
Cuthbertson, 702 F.2a at 465.

Anderson contends that the procedure 
employed in this case was appropriate 
because defendant's counsel had an oppor­
tunity to respond to plaintiff's proposed 
findings and conclusions, and because the 
trial judge made some changes in plain­
tiff's submission. We disagree. Although 
in this case the district court did not 
adopt verbatim Anderson's proposed find­
ings and conclusion, it did adopt the 
substance of her submission, with certain 
rewording and additions. Furthermore,



-65a-

t h e  t r i a l  j u d g e  h a d  a l r e a d y  i s s u e d  h i s  

M e m o r a n d u m  o f  D e c i s i o n  i n  f a v o r  o f  p l a i n ­

t i f f  w h e n  h e  d i r e c t e d  p l a i n t i f f ' s  c o u n s e l  

t o  s u b m i t  p r o p o s e d  f i n d i n g s  a n d  t h e n  

p e r m i t t e d  d e f e n d a n t ' s  c o u n s e l  t o  r e s p o n d .  

T h i s  p r o c e d u r e  i s  s u b s t a n t i a l l y  d i f f e r e n t  

f r o m  r e q u e s t i n g  a t t o r n e y s  o n  o p p o s i t e  

s i d e s  t o  s u b m i t  p r o p o s e d  f i n d i n g s  a n d  

c o n c l u s i o n s  b e f o r e  a  j u d g m e n t  i s  r e n d e r e d .  

W e ,  t h e r e f o r e ,  c o n c l u d e  t h a t  t h e  m e t h o d  

e m p l o y e d  b y  t h e  t r i a l  j u d g e  i n  p r e p a r i n g  

h i s  o p i n i o n  i n  t h i s  c a s e  c o n t i n u e s  t o  

v i o l a t e  t h e  i n t e n t  o f  o u r  e a r l i e r  d e c i ­

s i o n s ,  i n c l u d i n g  C h i c o p e e ,  a n d  c a n n o t  b e  

s a n c t i o n e d .

V I I .

F o r  t h e  f o r e g o i n g  r e a s o n s ,  t h e  j u d g ­

m e n t  e n t e r e d  b y  t h e  d i s t r i c t  c o u r t  i n  f a v o r  

o f  A n d e r s o n  i s  h e r e b y  r e v e r s e d .

R E V E R S E D .



- 6 6 a -

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

No. 83-1278 FILED
NOV. 4 1983 

U.S. Court of Appeals 
Fourth Circuit

P h y l l i s  A .  A n d e r s o n ,

A p p e l l e e ,

versus
City of Bessemer City, 
North Carolina

A p p e l l a n t .

ORDER

U p o n  c o n s i d e r a t i o n  o f  t h e  a p p e l l e e ' s  

p e t i t i o n  f o r  r e h e a r i n g  a n d  s u g g e s t i o n  f o r  

r e h e a r i n g  e n  b a n c  a n d  a p p e l l e e ' s  m o t i o n  t o  

e x c e e d  t h e  p a g e  l i m i t a t i o n  i n  p e t i t i o n  f o r  

r e h e a r i n g  a n d  s u g g e s t i o n  f o r  r e h e a r i n g  e n  

b a n c ,  a n d  n o  j u d g e  h a v i n g  r e q u e s t e d  a  p o l l  

o n  t h e  s u g g e s t i o n  f o r  r e h e a r i n g  e n  b a n c ,



67a-

IT IS ORDERED that the motion to 
exceed the page limitation in petition 
for rehearing and suggestion for rehear­
ing en banc is GRANTED.

IT IS FURTHER ADJUDGED and ORDERED 
that the petition for rehearing is denied.

Entered at the direction of Jucsge 
Hall for a panel consisting of Judge 
Russell, Judge Widener and Judge Hall.

For the Court,
______/s/Wiliam K.Slate, II

CLERK
JAN 4 1984



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