Hackley v. Johnson Brief Amicus Curiae

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE
DISTRICT OF COLUMBIA CIRCUIT 

No. 73-2072

RALPH M. HACKLEY,
' Plaintiff-Appellant,
* -vs-

DONALD E. JOHNSON, et al.,
Defendants-Appellees.

On Appeal From The United States District Court 
For The District of Columbia

BRIEF FOR NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AS AMICUS CURIAE

JACK GREENBERG 
JAMES M. NABRIT, III MORRIS J. BALLER10 Columbus Circle 

New York, New York 10019

Attorneys for the NAACP Legal 
Defense and Educational Fund, Inc.

Of Counsel:
DAVID CASHDAN1712 N Street, N.W. 

Washington, D.C.



I N D E X

Page

Table of Authorities.........................  1
Statement of the C a s e ........................  1
Statements of Facts ..........................  3
ARGUMENT

Title VII Affords To Persons Claiming To Be Aggrieved By Racial Discrimination In 
Federal Employment The Right To A Civil 
Action Which Encompasses A Trial De. Novo 3
A. Statutory Language and Structure 3
B. Legislative History: Congress's

Intent..............................  7
C. The Policy Behind the Con­

gressional Intent..................  12
D. The Denial of a Trial De Novo to Appellant Hackley Deprived Him of 

Opportunity For a Full and FairHearing Consistent With Title VII . . 15

CONCLUSION....................................  19
Certificate of Service



TABLE OF AUTHORITIES

Cases
Page

Beverly v. Lone Star Lead Construction, 437
F . 2d 1136 (5th Cir. 1971)................  5

Cooper v. Philip Morris, Inc., 464 F.2d 9
(6th Cir. 1972)..........................  14

Culpepper v. Reynolds Metals, 421 F.2d 888
(5th Cir. 1970)..........................  12

Fekete v. U.S. Steel, 424 F.2d 331 (3rd
Cir. 1970)...............................  5

Flowers v. Local 6, Laborers International 
Union of North America, 431 F.2d 205 
(9th Cir. 1970)..........................  5

Franklin v. Laird, No. 2127-72. (D.C. Cir.)......  2
Green v. McDonnell Douglas Corp., 411

U.S. 792 (1973)..........................  5,10,15
Griffin v. United States Postal Service,_____

F.Supp._____ (M.D. Fla. No. 72-487
Civ.-J-T, Rb 7, 1973)......................  11

Griggs v. Duke Power, 401 U.S. 424.............. 17
Grubbs v. Butz, 6 FEP Cases, 432 (D.D.C.

1973)....................................  13
Handy v. Gayler, ______ F.Supp.____, 6 FEP Cases

597 (D. Md. 1973)........................  11
Long v. Ford Motor, _____ F.Supp. ______, 5

FEP Cases 246 (D. Mich. 1972 )............  18
Parham v. Southwestern Bell, 433 F.2d 421

(8th Cir. 1970)..........................  15

ii



Robinson v. Lorillard Corp., 444 F.2d 791
(4th Cir. 1971)........................... 5

Rowe v. General Motors Corp., 457 F.2d 348
(5th Cir. 1972)........................... 17

Smith v. Universal Services, 454 F.2d 154
(5th Cir. 1972)........................... 15

Spencer v. Richardson, C.A. No. 716-73
(D.D.C.)...................................... 13

Thompson v. United States Department of Justice,
360 F.Supp. 255 (N.D. Cal. 1973)............... 11

United States v. Hayes International Corp.,
456 F.2d 112 (5th Cir. 1972)............. 15

U.S. v. Local 189, Paper Makers, 416 F.2d 980
(5th Cir. 1969)............................... 18

Statutes and other Authorities
Executive Order 11478 ..........................  7
Federal Rules of Civil Procedure, Rule 53 . . .  . 4
Senate Labor and Public Welfare Subcommittee,

Legislative History of Equal Employment
Opportunity Act of 1972 ......................  7,9, 10

Title VII, Equal Employment OpportunitiesAct of 1964, as amended in 1972 ..........  passim
§706, 42 U.S.C. §2000e-5..................  3,6,9,10
§706 (f)-(k), 42 U.S.C. §2000e-5 (f )-(k) . . . . 4,5,7,12
§706 (j ) , 42 U.S.C. §2000e-5 (j )............  4

Page

iii



(Cont*d)
§717, 42 U.S.C. §2000e-16 ................  5,6,7,11,14
§717 (a), 42 U.S.C. §2000e-16(a)..........  3
§717 (b), 42 U.S.C. §2000e-16(b)..........  3
§717 (c), 42 U.S.C. §2000e-16(c)..........  3,6,12
§717 (d), 42 U.S.C. §2000e-16(d)..........  4,12
5 U.S.C. §7151............................  7
28 U.S.C. §1291 ..........................  4
28 U.S.C. §1292 ..........................  4
118 Cong. Rec. §176 (daily ed. Jan.

20, 1972)............................  9
119 Cong. Rec. §1219 (daily ed.

Jan. 23, 1973)......................  10

Page

IV



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE
DISTRICT OF COLUMBIA CIRCUIT 

NO. 73-2072

RALPH M. HACKLEY,
Plaintiff-Appellant,
-vs-

DONALD E. JOHNSON, et al.,
Defendants-Appellees.

On Appeal From The United States District Court 
For The District of Columbia

BRIEF FOR NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., AS AMICUS CURIAE

1/STATEMENT OF THE CASE

This appeal involves claims of racial discrimination 
in federal employment and raises a novel question of law 
concerning the nature of the judicial enforcement provided

1/ The Statement of Issues Presented for Review, Rulings 
Below, and Parties are set forth in the Appellant's brief 
at pp. 1-2. We adopt those sections here.



by the recently enacted amendments to Title VII, the Equal 
Employment Opportunity Act of 1964, 42 U.S.C. §§2000e 
et seq. As acknowledged by the lower court, the issue 
raised herein "will have a far reaching effect on litiga­
tion involving alleged Title VII discrimination in federal 
government" (App. 4).

Appellant, after exhausting his administrative remedies 
before the Veteran's Administration (VA) and the Civil 
Service Commission (CSC), filed a civil action in the Dis­
trict Court alleging that his supervisors had engaged in 
racial discrimination in assigning him to work, in evaluat­
ing his work, and denying him a promotion to a GS-13 posi- 

2/tion. After ruling that the 1972 amendments to Title VII 
apply "retroactively" to administrative charges pending 
before an agency or the CSC at the time the amendment be­
came effective, the lower court held that "trial de novo 
is not required in all cases" under Title VII and would not

3/be allowed in the instant case (App. 7). In denying appel­
ant a trial cte novo, the lower court noted that the "Federal 
Courts are free to act in whatever manner may be appro­
priate, case by case, consistent with experience and 
precedent" (id.) .

2/ The administrative processing included an investigation 
by the VA, a hearing before an examiner with recommended 
Findings which were subsequently adopted by the VA and 
affirmed on Appeal by the CSC, Board of Appeals and Review (BAR).
3/ in the same opinion, the lower court also refused to 
permit a "trial de novo" in another case, Franklin v. Laird,No. 2127-72, presently pending appeal before this Court.

-2-



STATEMENT OF FACTS
For the convenience of the Court, the amicus adopts 

as its own the Statement of Facts set forth in Appellant's 
brief, pp. 4-11.

A R G U M E N T
Title VII Affords To Persons Claiming To Be 
Aggrieved By Racial Discrimination In Federal 
Employment The Right To A Civil Action Which 

Encompasses A Trial Dê  Novo

A . Statutory Language and Structure.
Under the 1972 amendments to Title VII of the Civil 

Rights Act of 1964, prohibitions against racial discrimi­
nation in employment were extended to "all personnel actions 
affecting employees. . . in executive agencies" of the

4/United States. The amendments provide for administrative 
enforcement of the amendment by the agencies and the Civil

5/Service Commission. Regarding enforcement of the amend­
ments by private individuals, Congress stated in §717 (c),
42 U.S.C. §2000e-16 (c), that such a person . . . "if 
aggrieved by the final administrative disposition of his 
complaint, or by the failure to take final action on his 
complaint, may file a civil action, as provided in §706".

4/ §717(a),42 U.S.C. §2000e-16 (a) .
5/ §717(b), 42 U.S.C. §2000e-16(b).

-3-



In further reference to litigation brought by private 
persons, the amendments provide in §717(d), "the provisions 
of §706 (f) through (k), as applicable, shall govern civil 
actions brought hereunder."

Examination of §706(f)-(k), which permit private employ­
ment discrimination civil actions against private employers 
and state and local governments, reveals that the civil 
action permitted thereunder entitles a plaintiff to a trial 
de novo. The subsections of §706, in referring to the pro­
ceeding before the district court, make specific reference 
to a "civil action" as distinguished from an appeal.
Further, §706 (j) clearly suggests that the proceeding be­
fore the district court is not merely a matter of appellate 
review of an agency determination; that subsection provides 
that any civil action or proceeding before the district 
court is "subject to appeal" under 28 U .S.C.§§1291 and 1292 
to the Federal Court of Appeals. Finally, §706 (f), in 
urging expedited handling of the litigation by the Court, 
authorizes the Court to appoint a master if the Court has 
not "scheduled the case for trial within one hundred and
twenty days after issue has been joined". (emphasis

6/supplied)

6/ This latter provision does not permit the District Court 
to treat, as the lower Court did in this case, the findings 
of the agency as a "master's report" under Rule 53 of the 
Federal Rules of Civil Procedure. Indeed Rule 53 indicates 
that assignment to a master is to be an exception and not regular procedure. Under the standard followed by the Court 
below Rule 53 would be turned on its head; i.e. denial of a 
trial de novo would apparently become the rule and not the 
"exceptional condition".

-4-



The statutory language of §706(f)-(k) is unconditioned,
and therefore creates a non-restricted cause of action.
Once the jurisdiction of the district court has been pro­
perly invoked by satisfying the administrative exhaustion 
of the requirements of §717, the person claiming to be 
aggrieved is entitled to the full benefits of a dê  novo 
trial. Clearly statutory changes made in the language in 
§706(f) by the 1972 amendments do not on their face bestow 
upon this district court a freedom to condition or take 
away the aggrieved person's right to a dê  novo trial. In 
fact, the Supreme Court has indicated that Courts are not 
to "engraft on the statute a requirement which may inhibit 
the review of claims of employment discrimination 
in the federal courts". McDonnell Douglas Corp. v. Green, 
411 U.S. 792, 798-99 (1973) (emphasis supplied). In re­
fusing to hold, in a case involving a private employer, that 
a finding by the Equal Employment Opportunity Commission of 
no reasonable cause would interfere with the individual's 
right to judicial relief under Title VII, the Supreme Court 
affirmed the unanimous ruling of all Courts of Appeals which 
had previously considered the issue and cited with approval
the finding that "court actions under Title VII are die novo

1/proceedings. . . ", id. at 799.

7/ See, e.g., Robinson v. Lorillard Corp., 444 F.2d 791, 800 
(4th Cir. 1971); Beverly v. Lone Star Lead Construction, 437 
F .2d 1136 (5th Cir. 1971); Flowers v. Local 6, Laborers 
International Union of North America, 431 F.2d 205 (9th Cir. 
1970); Fekete v. U.S. Steel, 424 F.2d 331 (3rd Cir. 1970).

-5-



As is the case with the §706(f)-(k), a review of the 
statutory language in §717 which details the various stages 
in administrative processing at which the individual may 
activate his or her right to judicial relief under §706 
supports the conclusion that the individual is to receive 
a trial de_ novo before the District Court. Under §717 the 
person claiming to be aggreived may file a civil action at 
any time 180 days after filing a complaint with the agency 
or at any time 180 days after filing a complaint with the 
CSC on appeal. But there is no compulsion under §717 for 
the individual to file upon the expiration of the 180 day 
period; instead he or she may await final agency or CSC 
action. After such final action by either the agency or its 
CSC the individual may bring suit in District Court. Thus 
under the provisions of §717 the individual has available 
several options, one of which is the right to bring suit 
prior to the holding of any agency or CSC hearing (if, as 
frequently occurs, no hearing is provided within 180 days). 
Surely in these situations where the civil action precedes 
the holding of an agency or CSC hearing, there can be no 
question as to the individual's entitlement to a de novo 
trial before the Court. Since §717 makes no distinction 
between the rights afforded to the individuals electing to 
bring suit at the various stages of the administrative pro­
ceedings, it follows that the right to a judicial hearing 
and relief is the same at all stages. In short, the decision

-6



to seek judicial relief is left to the charging party and 
the language of §717 does not require that the employee 
who elects to take full advantage of his administrative 
remedies, including opting for an administrative hearing,can 
be required to do so at his peril. To construe §717 in 
this manner would threaten or diminish the right of judicial

8/relief and a trial de novo assured under §717 and 706(f)-(k).

B. Legislative History: Congress's Intent.
The omission of federal employees from the protections 

afforded under Title VII of the Civil Rights Act of 1964 was
9/viewed by Congress as a major deficiency. However, legis-

8/ The unfairness of such a penalty is magnified by the fact that current regulations implementing §717 provide no notice 
as to any consequences which might flow from the individual1s 
willingness to work within the administrative procedures 
before exercising the right to institute a civil action in 
the District Court. That severity is compounded when one 
considers that the appellant's option to have a hearing before an examiner preceded the 1972 amendments to Title VII 
and he was therefore not in a position to waive any such 
rights before the district court to a de_ novo trial which by statute were retroactively conferred upon him.

• 9/ H.R.Rep. No. 72-238,92nd Cong. 1st Session at 24 (1974), 
Senate Labor and Public Welfare Subcommittee, Legislative 
History of Equal Employment Opportunity Act of 1972, 92nd 
Cong. Session (hereafter History) at 84. The existing system 
for rectifying invidious race discrimination in federal 
employment was viewed as woefully inadequate, with the criticisms including lack of expertise and the dependency 
upon procedures with built-in conflict of interests wherein 
the agency charged with discrimination was both defendant and judge. It was recognized that these deficiencies has a 
"chilling effect" upon employees and nurtured the "cynicism" 
of the persons who supposedly were protected by 5 U.S.C.
§7151 and Executive Order 11478. Senate Labor Committee 
Report, 92nd Cong., No. 92-415, History, pp. 422-425.

-7-



lative correction of that statutory gap became embroiled
in controversy over which agency (EEOC or CSC) would enforce
these rights, and what form of enforcement machinery would
be conferred upon the government (i.e. through traditional
cease and desist authority or through de novo government suit

10/in the district court). The amendments as finally enacted, 
while leaving to the CSC enforcement responsibility over 
federal employees, retained the private civil action for 
federal employees. The private civil action for federal 
employees was virtually the same as that proposed initially 
by the House Subcommittee on Labor. While the legislative 
course which the 1972 amendments followed produced continual 
controversy, one point of consensus recurs throughout: the 
notion that there was a clear intention to confer upon fed-

10/ Thus the Hawkins Bill, H.R. 1746, reported out of the House 
Labor Committee gave EEOC jurisdiction over federal employees 
and conferred upon EEOC cease and desist authority. Su d- sequent House Amendment (H.R. 9247) resulted ^substituting 
EEOC suits in district court for the cease and desist authority 
but the coverage of federal employees was omitted. Senator 
Williams sponsored a bill, S2515, which tracked the Pro­
visions of H.R. 1746 as proposed by the House Labor Committee 
with both EEOC coverage of federal employees and cease an desist authority. The Senate Labor Committee however reported 
out a version of S2515 retaining cease and desist authority 
in the EEOC but substitutee CSC authority over federal 
employees instead of the EEOC. The Senate subsequently, after prolonged debate, amended the Senate Committee version 
bv passing a Senator Dominick amendment which withdrew cease 
a£d desis? from the EEOC gave it instead the ability to bring 
suit in the district court, leaving to the CSC the respon 
sibilities for enforcing federal employment rights.

The bill that was finally enacted after House-Senate 
Conference for the most part followed the scheme passed by 
the Senate.

-8-



eral employees the same right of private civil action that 
had been previously given to individuals in private employ­
ment under §706 of Title VII.

Thus the House Education and Labor Committee in ex­
plaining its proposal urged "a vigorous effort to accord 
Federal Employees the same rights and impartial treatment
which the law seeks to afford employees in the private sector".

11/History at 83. Similarly Senator Dominick, in discussing 
a compromise amendment that he and Senator Cranston jointly 
sponsored, and that was ultimately approved by the Senate, 
stated at p. 1527, History, 118 Cong. Record §177 (daily ed.
Feb. 15, 1972):

It seems to me that where we are dealing 
with job discrimination, it makes no 
difference what type of job you have, you 
should be entitled to the same remedies anyone else in the situation has, and this 
is a right to have the Federal Court 
determine whether or not you have been discriminated against, (emphasis supplied)

The lower court attempts to cast aside the legislative 
consensus for the same civil action for private and federal 
employees, by relying upon comment of Senator Williams in­
dicating that a federal employee may file for "review of 
the administrative record", History at 1727, and that 
aggrieved employees will also have "the full rights of re­
view available in Courts", History at 1730 (App. 6-7).

11/ Senator Williams expressed the same thought. See Senate 
Report at 16, History, p. 425, 118 Cong. Rec. §176 (daily 
ed. Jan. 20, 1972), History, p. 680-81. See also his comments 
at p. 1727, History.

-9-



Yet these comments by Senator Williams do not detract 
from the fact that the review for federal employees was 
to be the same as that for private employees. In relying 
upon the term "review" the lower court leans upon a slender 
reed. For reference to the term "review" does not fore­
close the right to a de novo trial. For example, consider 
the Supreme Court's refusal to inhibit judicial "review" of 
employment discrimination claims in McDonnell-Douglas v. 
Green, supra, at 799, involving de novo litigation against 
private employers under §706.

The lower court also relied upon comments of Senator
Cranston, §2287 (daily ed. Feb. 22, 1972), History at 1730
(App. 7); however, those remarks certainly provide little
support for the lower court's construction, since they were
subsequently corrected by the Senator and as corrected
emphatically support the construction urged by Appellant.
Senator Cranston explained as follows at 119 Cong. Rec.
§1219 (daily ed. Jan. 23, 1973):

Unfortunately, Mr. President, the work "not" 
was misplaced. . . the bound Volume of the
Congressional Record. . . will set forth
this sentence in the correct manner as follows:

As with other cases brought under 
Title VII of the Civil Rights Act 
of 1964, Federal District Court re­
view would not be based on the 
agency and/or CSC record and would be 
a trial de_ novo.

I hope that this correction will . . . avoidany misplaced reliance upon the incorrect 
version as originally printed in the Con­
gressional Record of February 22, 1972.

-10-



Two district courts that have reviewed the legislative 
history of §717 have concluded that the recent 1972 amend­
ments create an independent cause of action which encom­
passes a right to a trial de novo. See, e.g., Griffin v.
United States Postal Service. _____F.Supp. ____ (M.D. Fla.
No. 72-487-Civ.-J-T, Feb. 7, 1973); and Thompson v. United 
States Department of Justice. 360 F.Supp. 255 (N.D. Cal. 1973)^ 

The legislative history of the 1972 amendments shows 
that with §717 Congress intended to confer the right to a 
trial de novo.

12/ Thompson held:
If a litigant is entitled to a trial de novo as a jurisdictional matter, he is also entitled 

to plenary review of the alleged discrimination 
absent an express limitation in the law which 
creates the cause of action. Neither the 1964 
Act nor the 1972 Act contains such a provision.
To the contrary, the legislative history of the 1972 Act indicates that Congress rejected a com­
parable provision initially reported to the 
Senate in S.2515 by the Committee on Labor and 
Public Welfare.

Since the Act of 1972 extends the same rights 
to federal employees as previously existed for non­
governmental employees, the Court concludes that federal employees are entitled to a trial de novo 
under 42 U.S.C. §2000e-16.

360 F.Supp. at 258. Contra, Handy v. Gayler. _____F.Supp.
_____, 6 FEP Cases 597 (D. Md. 1973).

-11-



c. The Policy Behind the Congressional Intent.
In addition to the plain language of Section 717(c) 

and (d) and §706 (f)-00 and the apparent intent of its 
framers, there are obvious policy considerations for adopting 
a construction of Title VII which affords the federal em­
ployees a right to a trial dê  novo. In giving to the CSC 
a "beefed up" administrative responsibility for enforcing 
Title VII1s provisions against racial discrimination and in 
establishing the administrative exhaustion requirements set 
forth in §717, congress clearly hoped that employees would 
swallow past cynicism and pursue relief internally through

full range of the administrative process (notwithstanding 
the escape value after 180 days to the courts). However, 
if the employee is put to the choice between hearing before 
Ills or h.er own agency, with the final decision resting in 
the hands of the head of that agency, or a full hearing be­
fore a federal court, it can be anticipated that employees 
who have not heretofore obtained relief through adminis­
trative process will opt for federal court remedy, which 
will be perceived as more prestigious, impartial and re—  ̂
sponsive to the abridgement of equal employment opportunity.

13/ Compare similar concern expressed in Culpepper v. Revnolds Metals. 421 F.2d 888, 892 (5th Cir. 1970) that an 
employee would abandon remedies pursued through grievance 
machinery "for fear that he will waive those [Title VII] 
remedies if he follows the rules of the shop .

-12-



In view of the fact that federal employees are already
expressing an unwillingness to take full advantage of their

14/
administrative remedies, it can be anticipated that the 
lower court's construction of Title VII will only accelerate 
that trend. If affirmed, the decision will have the effect 
of catapulting into federal court claimants who are just 
now beginning to utilize the administrative remedies re­
furbished by Congress under the Title VII 1972 amendments.

Nor can the possible duplication of effort, between 
an administrative hearing and a trial before the court, about 
which the lower court frets, compel a rewriting of Title 
VII depriving federal employees of a right to a trial de 
novo. As explained by the Court of Appeals for the Fifth 
Circuit in upholding the admissibility of an EEOC finding 
of fact, Smith v. Universal Services, 454 F.2d 154, 157 
(5th Cir. 1972):

This is not to say, however, that the 
report is inadmissible. A trial de novo 
is not to be considered a trial in a 
vacuum. To the contrary, the district 
court is obligated to hear evidence of 
whatever nature which tends to throw 
factual light on the controversy and 
ease its fact finding burden.

Thus while the Court may permit the record of the proceeding

14/ See Spencer v. Richardson, C.A. No. 716-73 (JD.D.C.) 
denying remand to the administrative agency where the 
employee after 180 days sought a judicial hearing, and 
Grubbs v. Butz, 6 FEP Cases, 432 (D.D.C. 1973), presentlypending appeal before this Court No. 73-1955 (D.C. Cir. 1973).

-13-



before the administrative agency to be admitted as part of 
the evidence, that procedure clearly does not foreclose 
the right of the plaintiff to shed new evidentiary light 
upon his case. By this reading of §717, the Court may 
encourage claimants to attempt appropriate resort to the 
administrative procedures established by the Title VII amend­
ments, as Congress intended, without compromising their full 
rights to be heard in federal court, which Congress preserved.

Finally, we consider the effect of affirmance of the 
lower court's ruling upon those claimants who still decide 
to pursue an administrative hearing. Knowing that their 
ultimate federal court remedy may depend entirely on the 
administrative record, without possibility of evidentiary 
proceedings before the court, they will be compelled to intro­
duce all the evidence even remotely likely to assist them in 
their later, as yet only vaguely defined potential claim in 
court - regardless of its relevance or propriety in the admin­
istrative setting. Any inclination to attempt to resolve 
complaints by a relatively simple airing of the basic facts 
at the hearing stage, short of full and elaborate trial—like 
proceedings, will be snuffed out. Any thought to proceed without 
the expense of an attorney at the hearing stage will be cast
aside, in the knowledge that the only record for a future court

15/
action is then being made.

15 / And this, in turn, may even discourage the complainant 
from invoking the hearing procedure at all.

14



D. The Denial of a Trial De Novo to Appellant
Hackley Deprived Him of Opportunity For a Full and Fair Hearing Consistent With Title VII.

The practical force and importance of the foregoing 
general principles are well illustrated by the present appeal. 
In the instant case, there appears to be substantial reason 
for appellant to want a trial c3e novo.

Contrary to the ruling of the district court, the ad­
ministrative record upon which it relied to find no discrimi­
nation raises as many questions as it resolves. The record 
reveals an absence of minority investigators at the VA until 
after the arrival of a black director, George Holland. In 
cases of racial discrimination substantial importance attaches 
to such statistics. See Green v. McDonnell Douglas, supra; 
Parham v. Southwestern Bell, 433 F.2d 421 (8th Cir. 1970)? 
(finding a per se violation of Title VII based upon statistics 
alone)t United States v. Hayes International Corp.. 456 F.2d 
112, 120 (5th Cir. 1972) (indicating that under Title VII 
statistics make a prima facie case, shifting the burden to 
the alleged discriminator). The record nowhere indicates 
that the CSC examiner or the BAR review, or the district 
court in narrowly reviewing their findings, gave any weight 
to this statistical evidence, as surely would have been done 
in a trial dê  novo.

The record also established that appellant's Supervisor, 
prior to and after Mr. Holland's tenure, openly expressed 
his racially biased attitudes to other employees; and the

-15-



record further indicated that several supervisors' managerial
decisions would, notwithstanding the qualifications of black
investigator, be controlled by "unfavorable reaction to a16/
Negro on the part of V.A. field personnel". The admin­
istrative fact-finders determined that despite these facts, 
appellant's non-promotion was based on other factors. It 
is difficult to see how, on a dry and partial administra­
tive record, a district judge could with complete confidence 
agree. Similarly, the fact that Mr. Holland may have im­
posed substantial affirmative pressures to correct or muffle 
the racial prejudice of officials under his supervision who 
were responsible for the appellant's training, work assign­
ments and evaluations, is not surprising in view of the 
fact that Mr. Holland came to that position from the EEOC 
where he was Director of Compliance. This evidence goes to 
the heart of appellant's case, cf. App. 9, but the admin­
istrative decisions utterly disregarded it; and the lower 
court's refusal to allow appellant to put on his evidence 
as to that issue before the trier of fact effectively doomed 
appellant's action.

As the court admitted, "discrimination is a subtle fact, 
difficult to identify" (App. 7). Facts such as the crucial 
ones involving the real reason for the appellant's inability

16/ The existence of prejudice is supported by the 
testimony that Mr. Maiers frequently characterized blacks as 
"burr heads". Tr. 266, 320, and App. 36; confirmed by 
BAR, App. 16.

-16-



to gain promotion to GS-13 and the difference in appellant's 
treatment at the hands of black and white supervisors are 
surely subtle, and the appellant should have the oppor­
tunity to present all the evidence thereon to a court which 
is in a position to evaluate its credibility.

Under well established judicial precedent, a promo­
tional system which entrusts the unfettered discretionary 
responsibility for evaluating a black employee's quali­
fications and for determining the readiness of that employee 
for promotion to supervisors like the VA’s here, will not 
withstand scrutiny under Title VII of the Civil Rights Act 
of 1964, Rowe v. General Motors Corp., 457 F.2d 348 (5th 
Cir. 1972) . The administrative tribunals did not ade­
quately deal with this consideration; and how could the 
judge, without any opportunity to observe the supervisors 
and place their testimony in the proper evidentiary focus, 
have been a position to make a different independent 
judgment? The fact that white investigators in the past have 
been kept in the GS-12 position for periods longer than 15 
months before being promoted to GS-13, does not, as the 
lower court concluded, negate a finding of discrimination.
For, an employer which has in the past excluded blacks from 
various positions cannot impose upon the advancement oppor­
tunities of blacks now entering into those positions criteria 
which are not valid measures of the job performance in the 
higher grade jobs. Griggs v. Duke Power, 401 U.S. 424 (1971); U.S.

-17-



v. Local 189, Paper Makers. 416 F.2d 980 (5th Cir. 1969)
17/

cert. den. 397 U.S. 919. Nowhere in the administrative 
record has the VA demonstrated the validity of the criteria 
for promotion. Moreover, it is incumbent upon an employer, 
particularly one that in the past has excluded blacks from 
investigator positions, to at least provide training com­
parable to that given whites in the past. Long v. Ford
Motor, ____ F.Supp. ____, 5 FEP Cases 246, 299, 251 (D. Mich.

18/1972 )• In simply reviewing the administrative record, the

17/ In U.S. v. Local 189,Paper Makers, supra. the Court struck down a job seniority system, explaining that black employees 
need only occupy the positions for periods of time needed to 
acquire the skill required of the higher paying job on the line of progression. Additional time and experience in a 
particular job, beyond the period needed to acquire the needed 
skill was discounted, because it continued the exclusionary 
discriminatory practices of the past. The Court and the BAR 
noted that whites frequently spent 2-3 years in a GS-12 position before moving to a GS-13 position. The validity of 
the 2-3 year time spent on the job by many white employees 
as a criterion is certainly questionable since even the 
limited discovery conducted by the BAR, sua sponte, un­
covered an investigator who was promoted since 1967 from 
GS-12 to 13 after 14 months. The fact he was a Mexican- 
American who moved to a GS-13 after 14 months ahead of white 
employees who had been in the GS-12 grade for longer periods 
does not, as the lower court ruled, sustain a finding of no discrimination. Instead that fact merely condemns any 
validity which might attach to a 2-3 year experience re­
quirement. See also Tr. 55-56, 557-59.
18/ The lower court also recognized that Hackley had not 
been assigned a variety of cases while GS-12 which would 
make his assignments comparable to those of whites who were 
GS-12's. (App. 10)

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court below deprived itself - and appellant - of the 
opportunity to include evidence going to this point for 
the court's deliberations.

■the foregoing analysis of the administrative record 
exposes several facets of enquiry which undermine the lower 
court's affirming of the BAR’s finding of no discrimination. 
Obviously it is the same line of enquiry which appellant 
should be allowed and is entitled to pursue in a trial de 
novo.

C O N C L U S  I O N
For the reasons set forth in the above discussion, we 

urge the Court to reverse the determination of the lower 
court, as prayed for by the appellant.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
MORRIS J. BALLER10 Columbus Circle 

Suite 2030New York, N.Y. 10019

Attorneys for the NAACP Legal 
Defense and Educational Fund, Inc.

Of Counsel:
DAVID CASHDAN1712 N Street, N.W. Washington, D.C.

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CERTIFICATE OF SERVICE

I hereby certify that on the day of December
1973, I served a copy of the foregoing BRIEF FOR NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC., AS AMICUS CURIAE upon 
counsel for Defendants-Appellees as listed below by placing 
a copy of same in the United States mail, adequate postage 
prepaid.

John Terry, Esq.
Assistant United States Attorney 
United States Court House 
Constitution & John Marshall Place 
Washington, D. C.
David Saylor, Esq.815 Connecticut Ave., N.W. 
Washington, D.C. 20006

Attorney for Plaintiff-Appellant