Bernard v. City of Dallas Water Department Petitioner's Response to Brief in Opposition

    No. 94-46

In The

S u p re m e  C o u r t  o f tfje S ta te s ;
October Term, 1994

Clement Bernard,
Petitioner,

v.
City of Dallas Water Department, et al,

Respondents.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 

for the Fifth Circuit

PETITIONER’S RESPONSE TO BRIEF IN OPPOSITION

E laine R. J ones 
Director Counsel 

Theodore M. Shaw 
Associate Director Counsel 

Charles Stephen Ralston 
J udith Reed 
E ric Schnapper*
NAACP Legal Defense & 

Educational F und, Inc. 
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Counsel for Petitioner
* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208



No. 94-46

In The

S u p re m e  C o u r t  ot tfje ® n tteb S t a t e s
October Term, 1994

CLEMENT BERNARD,
Petitioner,

v.

CITY OF DALLAS WATER DEPARTMENT, et al.
Respondents.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 

for the Fifth Circuit

PETITIONER’S RESPONSE TO BRIEF IN 
OPPOSITION

ARGUMENT

Respondent, rather than defending the actual 
reasoning of the Fifth Circuit, urges that alternative grounds 
may exist for affirming the decision below. The fact-based 
alternative grounds advanced by respondent are clearly 
insubstantial.

Respondent now urges that summary judgment was 
appropriate on petitioner’s harassment claim because [n]o 
evidence has ever been presented that . . . management was 
ever aware" of the harassment prior to petitioner’s October



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1988 complaint. (R. Br. Opp. 14). In fact, as is quoted at 
length in the petition, there was extensive evidence both that 
management knew of the systemic harassment long before 
October 1988 and that management refused to take any 
steps to end it. (Pet. 4-5). The affidavits proffered by 
petitioner on this issue were never disputed in the courts 
below.

With regard to petitioner’s claim of racial 
discrimination in training, respondent now asserts "the 
record does not contain any evidence direct or indirect, of 
statements by Ketter or Petitioner’s supervisor that they 
were determined to prevent any black worker from 
promoting into a T-9 position". (R. Br. Opp. 18). In fact, an 
affidavit recounting precisely such statements is in the 
record, and is quoted at p.6 of the Petition. Respondent 
asserts that "Ketter . . . could not directly influence the 
decision as to who was trained". (R. Br. Opp. 8). The only 
evidence on this issue, however, is an uncontradicted 
affidavit to the contrary that Ketter himself was actually 
responsible for the training. (Pet. 6).

Respondent candidly disavows the actual reasoning 
of the Fifth Circuit. The court of appeals insisted that the 
relevant legal issue was whether the employer had acted 
promptly "after Bernard complained". (Pet. App. 25a) 
(Emphasis added). In this Court, however, respondent now 
acknowledges that it was legally obligated to act once it had 
from any source "actual or constructive notice of a racially 
hostile work environment." (R. Br. Opp. 11).

Similarly, respondent acknowledges that the 
gravamen of petition’s promotion claim is an allegation of 
discriminatory "denial of proper training needed for 
promotion", (R. Br. Opp. 17). In this Court respondent now 
concedes that Title VII would be violated if a worker were 
denied a promotion due to discrimination in training:



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Discrimination in access to training . . .  is 
illegal under . . . Title VII . . .. The issue of 
discrimination in training usually arises in 
promotion cases in which an employee 
contends that he or she was not offered 
training available to others . . . and that . . . 
was the reason for the lack of promotion.

(R. Br. Opp. 17). The Fifth Circuit below, however, held 
otherwise, insisting that Ketter’s discriminatory refusal to 
train petitioner was legally irrelevant so long as Ketter 
himself did not make the subsequent promotion decision. 
(Pet. App. 23a).

Had the Fifth Circuit below applied the legal 
standards now endorsed by respondent, petitioner would 
have prevailed in the court of appeals. Since respondent no 
longer defends the legal standard on which the Fifth 
Circuit’s opinion was based, the appropriate disposition here 
may be to grant the petition, vacate the decision below, and 
remand for reconsideration in light of the position presently 
asserted by the respondent City of Dallas in its brief filed 
August 9,1994. See, e.g., Wells v. United States, 62 U.S.L.W. 
3704 (April 26, 1994); Green v. United States, 62 U.S.L.W. 
3471 (January 18, 1994); Woodward v. United States, 62 
U.S.L.W. 3318 (November 2, 1993); Knox v. United States, 62



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U.S.L.W. 3318 (November 2, 1993); McGinley v. United 
States, 62 U.S.L.W. 3243 (October 5, 1993).

Respectfully submitted,

ELAINE R. JONES
Director Counsel 

THEODORE M. SHAW 
Associate Director Counsel 

CHARLES STEPHEN RALSTON 
JUDITH REED 
ERIC SCHNAPPER*
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner 
*Counsel of Record