Young v. Lehman Memorandum for Respondent in Opposition

    N o . 84-1239

<3(« tlje jgtejjromo Court of t\\t JUmirfr j&atoo
October Term, 1984

M argaret Young, petitioner 

v.

John Lehman, Jr., Secretary of the N avy

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

THE FOURTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

R ex E. Lee 
Solicitor General 
Department o f  Justice 
Washington, D. C. 20530 
(202) 633-2217



Page
Cases:

Anderson v. City o f  Bessemer City,
No. 83-1623 (Mar. 19, 1985) .......................... 4, 6, 7

McDonnell Douglas Corp. v. Green,
411 U.S. 792 .........................................................  5 ,1

Pullman Standard Co. v. Swint,
456 U.S. 273 .............................................................. 4

Taylor v. Jones, 653 F.2d 1193 ................................ 5

Teamsters v. United States, 431 U.S. 324 .............  7

Texas D ep’t o f  Community Affairs v. Bur dine,
450 U.S. 248 .........................................................  5 ,7

United States v. United States Gypsum Co.,
333 U.S. 364 .............................................................  4

Wainwright v. Witt, No. 83-1427 
(Jan. 21, 1985).......................................................  5, 6

Statute and rules:

Civil Rights Act of 1964, Tit. VII, #717,
42 U.S.C. 2000e-16................................................... 1

Fed. R. Civ. P. :

Rule 5 2 ...................................................................  4

Rule 52(a) .............................................................  6

TABLE OF AUTHORITIES

(I)



(3tt Supreme Court of ttjr ̂ nitefr States
October Term, 1984

No. 84-1239

Margaret Young, petitioner

v.

John Lehman, Jr., Secretary of the N avy

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

THE FOURTH CIRCUIT

MEMORANDUM FOR THE RESPONDENT IN OPPOSITION

Petitioner seeks review of the court of appeals’ holding 
that she was not discriminated against on the basis of race in 
violation of Title VII of the Civil Rights Act of 1964, $ 717, 
42 U.S.C. 2000e-16.

1. Petitioner, a black female, applied for the position of 
Supervisory Personnel Management Specialist with the 
Navy Ship Engineering Center (NAVSEC). Six other indi­
viduals, including Christopher Iekel, a white male, also 
applied for this advertised vacancy; Iekel was detailed to the 
position on a temporary basis. Pet. App. 3a.

The selection panel convened to fill the vacancy, reviewed 
the applications, interviewed the applicants, and rated them 
according to specific job-related criteria. The panel gave 
petitioner and another applicant a “best qualified” rating, 
while Iekel and one other applicant were listed as “highly 
qualified.” The panel then delivered the recommendations

(1)



2

favoring petitioner and the rating sheets of the panel 
members to a Navy personnel specialist who was involved 
in supervising the selection process. Pet. App. 4a-7a.

Upon reviewing the recommendations and rating sheets 
returned by the panel, the personnel specialist discovered 
the notation “My guess she’s black” on a rating sheet deal­
ing with an applicant other than petitioner or Iekel, which 
had been completed by the panel chairman (himself a 
black). On the basis of this notation and her view that the 
panel had not accorded proper weight to the relevant crite­
ria, the personnel specialist recommended that the panel’s 
recommendations be rejected, and that a second panel be 
convened. The rating sheets were also reviewed by an EEO 
official, who concluded that the chairman’s notation consti­
tuted evidence of improper racial consideration sufficient to 
warrant the formation of a new panel. The personnel spe­
cialist and the EEO official reported their findings to the 
Personnel Director, who rejected the panel’s recommenda­
tion and ordered the creation of a new panel; the Command 
Deputy EEO Officer concurred in this decision. Pet. App. 
7a-8a.

The second panel used the same criteria as its predeces­
sor. It ranked Iekel “highly qualified” and recommended 
him for the position. Petitioner was ranked sixth out of 
eight applicants. Iekel was given the appointment after the 
personnel specialist and the EEO official went over the 
second panel’s rating sheets and discovered no evidence of 
impropriety. Pet. App. 8a-9a.

Petitioner thereafter filed an EEO complaint. Pet. App. 
30a. After unsuccessfully exhausting her administrative 
remedies, she commenced this Title VII action in the district 
court, alleging that she had been discriminated against on 
the basis of her race. After a trial, the district court deter­
mined that petitioner had established a prima facie case of



3

discrimination, and that the Navy’s proffered nondiscrimi- 
natory reasons for petitioner’s nonselection—i.e., the racial 
taint associated with the first panel’s decision and Iekel’s 
superior qualifications—were “unworthy of credence. ” Pet. 
App. 30a-32a. The court so held even though it had stated, 
in the course of the trial, that “there is no question but what 
the book on [petitioner] was that she wasn’t the most quali­
fied person in the world,” and that “I believe [lekel] is 
actually better qualified.” Pet. App. 17a-18an.4. The court 
did not even mention the racial notation in its findings or 
conclusions.

The government appealed, and the Fourth Circuit re­
versed. The court of appeals held that petitioner had estab­
lished a prima facie case, but that she had failed to carry her 
burden of demonstrating the Navy’s proffered reasons for 
her nonselection to be pretextual. Pet. App. 10a. The court 
stated that the racial notation “was an adequate basis to 
dissolve the first panel and convene a new one,” especially 
since the Navy personnel officials only took this step “after 
Mrs. Jones, the EEO official, insisted that the panel’s 
process was tainted by this racial comment. ” Id. at 14a-15a. 
The court further declared that the Navy’s contention that 
lekel was better qualified than petitioner “was a properly 
articulated reason which was not shown by [petitioner] to 
be pretextual.” Id. at 16a. The court noted that “the 
record indicates that lekel worked for a longer period in 
positions emphasizing classification and staffing—the 
criteria weighted most heavily by both panels,” and that 
lekel—unlike petitioner—had received several awards and 
commendations, as well as consistently above average per­
formance appraisals. Id. at 16a-17a. Accordingly, the court 
of appeals held that petitioner had failed to rebut the Navy’s 
showing of legitimate nondiscriminatory reasons for her 
nonselection.



4

2. The decision of the court of appeals is correct and does 
not conflict with any decisions of this Court or any other 
court of appeals. Thus, further review by this Court is not 
warranted.

Petitioner contends that the court of appeals engaged in 
“appellate factfinding” (Pet. 7, 9), contrary to Rule 52, 
Fed. R. Civ. P., and this Court’s decision in Pullman 
Standard Co. v. Swint, 456 U.S. 273 (1982). See also 
Anderson v. City o f  Bessemer City, No. 83-1623 (Mar. 19, 
1985). The court of appeals, however, plainly determined 
that the district court’s decision was “clearly erroneous,” 
albeit without using that specific phrase.1

In Pullman, this Court held that the district court’s 
determination with respect to the “ultimate fact” of inten­
tional discrimination is subject to review under the “clearly 
erroneous” standard of Rule 52. 456 U.S. at 286-288. The 
Court further stated that “[a] finding is clearly erroneous 
when although there is evidence to support it, the reviewing 
court on the entire evidence is left with the definite and firm 
conviction that a mistake has been committed.” 456 U.S. at 
284-285 n.14, citing United States v. United States Gypsum 
Co., 333 U.S. 364, 395 (1948). Accord, Anderson, slip op. 
7-8. Examination of the court of appeals’ opinion leads 
inescapably to the conclusion that the court was left with 
just such a “definite and firm conviction.”

The Fourth Circuit’s conviction of error derived chiefly 
from two sources: (1) the racial notation calling into ques­
tion the first panel’s selection process, which the district 
court had completely ignored in its recitation of the facts,

Nothing in Anderson v. City o f  Bessemer City, supra, this Court’s 
most recent pronouncement on this subject, suggests that an appellate 
court may correct a trial court’s manifest error in finding facts only if it 
invokes talismanically that specific phrase.



5

even though that notation had prompted an EEO official to 
insist on the formation of a new panel; and (2) the fact that 
the district court itself stated that Iekel’s qualifications were 
superior to those of petitioner. Under these circumstances, 
the court of appeals properly determined that petitioner 
had not carried her burden of demonstrating that the 
Navy’s proffered reasons for not promoting her were pre- 
textual. See Texas D ep’t o f  Community Affairs v. Burdine, 
450 U.S. 248, 256 (1981). Thus there is no occasion here to 
review this case in order to recall an errant court of appeals 
to a proper conception of its responsibilities, and this par­
ticular fact-bound determination clearly does not of itself 
warrant review by this Court.2

Petitioner’s reliance on this Court’s recent decision in 
Wainwright v. Witt, No. 83-1427 (Jan. 21, 1985), is mis­
placed. Contrary to petitioner’s assertion, this case—unlike 
Witt—does not “turn[ ] largely on the demeanor and credi­
bility” of witnesses (Pet. 9). Rather, the court of appeals 
found the district court’s error to consist of its decision to 
ignore objectively demonstrable record evidence, i.e., the 
racial comment and lekel’s superior credentials; indeed, the 
clearly erroneous character of the district court’s decision is 
demonstrated by the fact that the court itself recognized 
that Iekel’s qualifications were superior to those of peti­
tioner (Pet. App. 17a-18a n.4), but nonetheless held that

2Moreover, it is apparent that the officials involved in this case could 
not blind themselves to evidence of racial consideration by an employ­
ment panel and still remain faithful to Title VII’s policy of “fair and 
racially neutral employment and personnel decisions.” McDonnell 
Douglas Corp. v. Green, 411 U.S. 792, 801 (1973). The district court 
thus clearly erred in disregarding the Navy’s obligation not to permit 
racial considerations to taint the panel’s decisionmaking process, par­
ticularly since “[e]mployer toleration of a discriminatory atmosphere 
alone gives rise to a cause of action by the plaintiff.” Taylor v. Jones, 
653 F.2d 1193, 1199(1981).



6

petitioner had satisfied her burden of proving pretext.3 
These flaws manifestly do not turn upon witness demeanor 
and credibility. Thus, Witt is completely inapposite.

Nor is this a case, like Anderson v. City o f  Bessemer 
City, supra, in which the record would plausibly support 
either the conclusion of the district court or the court of 
appeals (see Anderson, slip op. 11-12). Instead, as the court 
of appeals pointed out, there is here “no evidence of 
improper racial motivation in forming the second panel. 
* * * In any event, the disbanding of the first panel and the 
selection of the second panel were, at most, mediate proce­
dures * * * insulated from a Title VII attack” (Pet. App. 
15a).

In sum, petitioner’s arguments could find support in 
Anderson only if one disregarded Justice Powell’s warning 
in his concurrence in that case (slip op. 1):

I am concerned that one may read the Court’s opinion 
as implying criticism of the Court of Appeals for the 
very fact that it engaged in a comprehensive review of 
the entire record of this case. Such a reading may 
encourage overburdened Courts of Appeals simply to 
apply Rule 52(a) in a conclusory fashion, rather than to 
undertake the type of burdensome review that may be 
appropriate in some cases.

Petitioner in effect urges here precisely such a conclusory 
application of Rule 52(a).

3This recognition of Iekel’s superior qualifications also sharply dis­
tinguishes this case from Anderson v. City o f Bessemer City, supra, in 
which this Court criticized the court of appeals for substituting its 
judgment for that of the district court concerning the ranking of the 
candidates (slip op. 10-12). Indeed, in addition to the district court’s 
comments reported at Pet. App. 17a-18a n.4, there is the conspicuous 
absence from the district court’s findings of any comparison of the 
qualifications of petitioner and Iekel (Pet. App. 20a-33a). Cf. Ander­
son, slip op. 3.



7

Finally, petitioner contends (Pet. 12-14) that this case 
presents the issue of whether a Title VII plaintiff must prove 
that he or she is better qualified than the successful appli­
cant; petitioner argues that such a requirement “would 
effectively repeal Title VII for the substantial number of 
positions in the United States labor market for which all of 
the qualified applicants are essentially equally qualified” 
(Pet. App. 14). Whatever the merit of petitioner’s position, 
this case does not present that issue. Here, both the court of 
appeals and the district court recognized that petitioner was 
not as well qualified as the successful applicant.4 This case 
therefore does not involve the latitude of the employer to 
choose among “essentially equally qualified” applicants, 
and the question raised by petitioner is not before this 
Court.5

It is therefore respectfully submitted that the petition for 
a writ of certiorari should be denied.

R ex E. L ee 
Solicitor General

M arch  1985

4It is clear from this Court’s decisions that an applicant must demon­
strate at a minimum that he was not rejected because of a “relative lack 
of qualifications.” Teamsters v. United States, 431 U.S. 324, 358 
n.44 (1977); see also Texas D ep’t o f  Community Affairs v. Bur dine, 450 
U.S. at 259; McDonnell Douglas Corp. v. Green, 411 U.S. at 802.

5Nor, contrary to petitioner’s suggestion, was that issue properly 
presented in Anderson, where the district court held that Anderson had 
superior qualifications, and the court of appeals believed that the 
candidate selected was better qualified (see slip op. 10-12). Accordingly, 
it is not surprising that this Court did not address in Anderson the 
situation in which two candidates are equally qualified.

D Q J-1985-04



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