Bernard v. City of Dallas Respondent's Brief in Opposition

    No. 94-46

In The

Supreme Court of the United States
October Term, 1994

-----------------♦ -----------------

CLEMENT BERNARD, 

vs.
Petitioner,

CITY OF DALLAS,
Respondent.

-----------------♦ -----------------

On Petition For Writ Of Certiorari 
To The United States Court Of Appeals 

For The Fifth Circuit
----------------- ♦ ------------------

RESPONDENT'S BRIEF IN OPPOSITION
-----------------♦ -----------------

S am  A. L indsay 
City Attorney 
F ra n cisc o  J avier G arza  
Assistant City Attorney 
Counsel o f Record 
City Hall 7DN 
1500 Manila Street 
Dallas, Texas 75201 
(214) 670-3510
Attorneys fo r  Respondent

August 9, 1994

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

QUESTIONS PRESENTED

1. Should this Court grant a writ of certiorari where 
the Fifth Circuit Court of Appeals has correctly applied 
this Court's standards on whether an individual has suf­
fered actionable racial harassment and whether the 
Respondent took immediate and corrective action?

2. Should this Court grant a writ of certiorari where 
the Fifth Circuit Court of Appeals has correctly applied 
this Court's standard on whether an individual has suf­
fered racial discrimination in promotions?



ii

TABLE OF CONTENTS
Page(s)

QUESTIONS PRESENTED......... ..............................   i

TABLE OF CONTENTS..................................................... ii

TABLE OF AUTHORITIES.......................     iii

JURISDICTION....................................................................  2

STATEMENT OF THE CASE...............................   2

A. Course of Proceedings and Disposition in
Court Below ............................................................  2

B. Statement of Facts................................................... 4

SUMMARY OF THE ARGUMENT...............................  7

ARGUMENTS SUPPORTING DENIAL OF THE 
W RIT..................................................................................  8

I. HOSTILE WORK ENVIRONMENT AND 
REMEDIAL MEASURES UNDER TITLE VII. . 8

A. STANDARD UNDER TITLE V II...............  8

B. PROMPT AND REMEDIAL ACTION . . . .  10

II. PETITIONER FAILS TO ESTABLISH A PRIMA 
FACIE CASE OF RACIAL DISCRIMINATION 
IN PROMOTIONS UNDER TITLE VII.............. 16

A. STANDARD UNDER TITLE V I I ...............  16

B. NO DENIAL OF TRAINING.......................  18

CONCLUSION....................................................................  21



Ill

TABLE OF AUTHORITIES
Page(s)

C a ses

Clement Bernard v. City o f Dallas, No. 90-1783, 
Memorandum Opinion and Order (N.D. Tex.
June 23, 1993).................................................................. 3, 13

Clement Bernard v. City o f Dallas, No. 93-1651 (5th
Cir. April 7, 1994).......................................................... 3, 12

Daniels v. Essex Group, Inc., 740 F.Supp. 553 (N.D.
Ind. 1990), aff'd, 927 F.2d 1264 (7th Cir. 1991)........10

Davis v. Monsanto Chem. Co., 858 F.2d 345 (6th Cir.
1988), cert, denied, 490 U.S. 1110 (1989).....................  11

Harris v. Forklift Sys., 114 S. Ct. 367, 126 L.Ed.2d
295 (1993).......................................................................... 9, 10

Henson v. City o f Dundee, 682 F.2d 897 (11th Cir.
1982)...................................................................................... 10

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)....................................................................................  17

Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986) 
.............................................................................. 9, 10, 11, 14

Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989) . . . .  15

Rogers v. EEOC, 454 F.2d 234 (5th. Cir. 1971), cert.
denied, 481 U.S. 957 (1972)....................................3

Valdez v. San Antonio Chamber o f Commerce, 974 
F.2d 592 (5th Cir. 1992).......................    16

Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990).................  16

Washington v. Electrical Joint Apprenticeship and 
Training Comm., 845 F.2d 710 (7th Cir. 1988), cert, 
denied, 488 U.S. 944 (1988)................................  17

Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987)........ 15



IV

TABLE OF AUTHORITIES -  Continued
Page

S tatutes a n d  R egulations

28 U.S.C. §1254(1)................................................................... 2

42 U.S.C. §2Q00(e)...................................................... 2, 7, 16

42 U.S.C. §2000(e)-2............................................................. 17

29 C.F.R. §1604.11(c).............................................................10

29 C.F.R. §1606.8 (c)...............................................................10



No. 94-46
------ ♦ -------

In The

Supreme Court of the United States
October Term, 1994

-----------------♦------------------

CLEMENT BERNARD,

vs.
Petitioner,

CITY OF DALLAS,
Respondent.

----------------- ♦ —  -------- —

On Petition For Writ Of Certiorari 
To The United States Court Of Appeals 

For The Fifth Circuit
-----------------♦ ----- ------------

RESPONDENT'S BRIEF IN OPPOSITION
-----------------♦ -----------------

TO THE UNITED STATES SUPREME COURT:

The City of Dallas ("City") files this Brief in Opposi­
tion to this Petition for Writ of Certiorari to the United 
States C ourt of A ppeals for the Fifth  C ircuit 
("Response"), asking this Court to deny the Petition for 
Writ of Certiorari ("Petition") to review the opinion 
issued on April 7, 1994, by the United States Court of 
Appeals for the Fifth Circuit. In support of this request, 
the City respectfully shows the Court as follows:

-----------------♦ -----------------

1



2

JURISDICTION

The Court's jurisdiction of this appeal is based on the 
judgment and opinion of the Fifth Circuit Court of 
Appeals entered on April 7, 1994. This Court has jurisdic­
tion to review the judgment of the Fifth Circuit under 28 
U.S.C. §1254(1).

-----------------+-----------------

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition in 
Court Below

Petitioner Clement Bernard (Bernard) filed this case 
on July 31, 1990, claiming the Respondent City of Dallas 
(City) had discriminated against him in violation of 42 
U.S.C. §2000(e) et seq. (Title VII). Petitioner claimed he 
suffered racial discrimination because he was denied 
training in trying to achieve a promotion, he was retali­
ated for having filed an Equal Employment Opportunity 
Commission (EEOC) charge, and he claimed he was a 
victim of a hostile racial environment.

Respondent filed a Motion for Summary Judgment 
on April 2, 1993. On June 23, 1993, the district court 
granted the Respondent's motion on all issues. The dis­
trict court specifically held that Bernard had failed to 
establish a prima facie case of disparate treatment with 
respect to promotions. As to the hostile work environ­
ment, the district court held that Bernard had failed to 
meet the hostile work environment standard set out in



3

Rogers v. EEOC.1 The district court also ruled that Bernard 
had failed to show any adverse employment action to 
support his allegation of retaliation.2

Bernard filed a timely appeal, and on April 7, 1994, 
the Fifth Circuit issued its decision. Although the Fifth 
Circuit's analysis differed from the district court on the 
issue of hostile work environment, it affirmed the grant­
ing of summary judgment.3 On the promotional issue, the 
appeals court agreed with the district court and held that 
Petitioner did not present sufficient evidence of any racial 
animus in his claim that he suffered discrimination in his 
attempts to be promoted to the rank of T-9 Instrument 
Technician. The circuit court held that Bernard did not 
pass the required promotional exam, and thus did not 
adduce sufficient evidence to create a genuine fact issue 
concerning this claim. This holding is consistent with this 
Court's previous decisions and the decisions of the other 
circuits.

On the issue of a hostile work environment, the Fifth 
Circuit held that while the circumstances imply that a 
hostile working environment may have existed, the evi­
dence showed that management took prompt remedial 
action when informed that Bernard found any conduct 
offensive. The circuit court held that management's han­
dling of the situation after Bernard complained never

1 454 F.2d 234 (5th Cir. 1971), cert, denied, 481 U.S. 957 
(1972). See, Clement Bernard v. City o f  Dallas, No. 90-1783, Mem­
orandum Opinion and Order (N.D. Tex. June 23, 1993).

2 Petitioner has not appealed the issue of retaliation.
3 See Clement Bernard v. City o f  Dallas, No. 93-1651 (5th Cir. 

April 7, 1994).



4

suggested that any of the alleged offensive conduct was 
tolerable or excusable, nor did management ever advise 
Bernard to ignore the behavior. The circuit court ruled 
that management's uncontroverted actions constituted a 
prompt remedial response to Bernard's complaint. This 
holding is consistent with this Court's previous decisions 
and the decisions of the other circuits.

B. Statement of Facts

On March 12, 1986, Bernard, an African-American 
male, began working as an Apprentice Water Instrument 
Technician T-7 at the Southside Wastewater Treatment 
Plant's Instrument Section (SSWWTP) for the Dallas 
Water Utilities (DWU). Harry B. Ketter (Ketter), a white 
male, was also an employee of DWU. Ketter was hired as 
a Water Instrumentation Technician T-9 on December 10, 
1980 by DWU. In September 1987, Bernard was assigned 
to work with Ketter. At no time during Bernard's employ­
ment with DWU did Ketter have the authority to fire, 
promote or otherwise directly affect Bernard's employ­
ment. R. pp. I l l ,  212.

In October 1988, Bernard verbally complained of Ket­
ter for the first time to Ted Kilpatrick, SSWWTP Manager. 
The verbal complaint involved ongoing disagreements 
Bernard had with Ketter, allegedly regarding race, poli­
tics and religion. Bernard alleged that Ketter had made 
derogatory statements concerning his race. Bernard fur­
ther alleged Ketter had posted derogatory drawings and 
pictures at the SSWWTP on the walls of the Instrument 
Section work area. Ted Kilpatrick immediately directed 
Don Perez, SSWWTP Assistant Manager, to investigate



5

the incidents, and to monitor the employees of the Instru­
ment Section for inappropriate activities. R. pp. 44, 213. 
Approximately one week later, Perez reported to 
Kilpatrick that he had counseled with Ketter and Ber­
nard, and each party was committed to going forward 
and working harmoniously. R. pp. 44-45. As plant man­
ager, Kilpatrick also had a long standing policy of main­
taining the work place free of inappropriate literature. 
The investigation did find some pictures of a sexual and 
religious connotation and Kilpatrick ordered that they be 
removed immediately. R. pp. 116-118. On December 14, 
1988, Kilpatrick met with Bernard to determine the status 
of his grievance. According to Bernard, the concerns 
expressed in the complaint were resolved. R. p. 126.

On or about December 22, 1988, Kilpatrick held a 
counseling session with Bernard, Ketter and Don Pierce, a 
white male, who then was the supervisor of both Bernard 
and Ketter. Kilpatrick again discussed his policy of main­
taining the work place free of inappropriate literature 
and the responsibility of each employee to work cooper­
atively. All three pledged that they would work cooper­
atively in the work place. Also, on December 22, 1988, 
Kilpatrick conducted a separate counseling session with 
Pierce concerning his responsibilities in overseeing the 
Instrumentation Group. Kilpatrick directed Pierce to 
monitor the employees and document any misconduct. R. 
pp. 127-128, 214.

On December 28, 1988, Bernard again verbally com­
plained with Kilpatrick. Bernard alleged that the inci­
dents of harassment by Ketter were continuing. In 
response Kilpatrick directed that another investigation be 
conducted. On or about January 9, 1989, Kilpatrick



6

ordered that the Instrument Section be reorganized and 
that Bernard and Ketter be assigned to different areas of 
the plant and to not work together. Kilpatrick also 
ordered that Ketter not be left in charge as acting super­
visor should the supervisor Pierce not be on duty. Within 
three months of Bernard's original complaint, Kilpatrick 
took decisive action by removing Ketter from any posi­
tion with authority. Bernard did not appeal Kilpatrick's 
response to his complaint. R. pp. 121-125, 214.

Bernard alleged racial discrimination and/or intim­
idation on January 23, 1989 in his first EEOC complaint 
(#310-89-0858). The EEOC determination on these charges 
found that there was no evidence that Bernard was ever 
denied proper training because of his race. More speci­
fically, no evidence existed that Bernard was denied 
training received by other employees. The EEOC deter­
mination also concluded that the City of Dallas took 
prompt remedial action once made aware of harassment 
by a fellow employee, and that no additional relief was 
necessary. R. pp. 85-87.

Dallas Water Utilities management had a longstanding 
policy of maintaining all work areas free of inappropriate 
literature. Each incident involving inappropriate literature 
was investigated promptly, and the responsible employee 
was disciplined accordingly. Ketter was disciplined each time 
he was found to have violated that policy. On or about 
December 9, 1988, Kilpatrick discovered several Playboy- 
type magazines in Ketter's desk area. Kilpatrick confiscated 
these magazines and verbally reprimanded Ketter for having 
inappropriate material in the work place. R. p. 216. When 
questioned about the magazines, Ketter acknowledged he 
had read the magazines, but denied ownership. Ketter



7

received written reprimands for possessing inappropriate 
literature in the workplace on March 21, 1989, and again on 
August 8, 1989. R. pp. 130, 216. After counseling sessions 
proved unsuccessful, Kilpatrick ordered the permanent 
transfer of Ketter from SSWWTP in September, 1989. R. pp. 
131, 216.

Bernard took the Water Instrument Technician T-9 
exam on four occasions. The first occasion was on May 1, 
1987. (Prior to being assigned to work with Ketter.) Ber­
nard failed the exam on all four occasions. R.p. 99. Ber­
nard did take and pass the Mechanic Technician T-9 
exam. Bernard received tutoring assistance to pass this 
exam from Jessie Beard, a white male supervisor. Bernard 
testified that he would not have passed this exam without 
the assistance of Beard. R. pp. 81-83.

On July 31, 1990, Bernard filed this lawsuit against 
Defendant City of Dallas alleging racial discrimination in 
training, racial harassment and retaliation under 42 
U.S.C. §2000(e). R. pp. 3, 7.

-----------------♦ -----------------

SUMMARY OF THE ARGUMENT

The Fifth Circuit's decision in the present case does 
not warrant review by this Court because the appeals 
court decision correctly applies this Court's precedent 
and applicable law, and there is no conflict among the 
circuits. The Fifth Circuit applied the proper standard by 
finding that Respondent's actions constituted a prompt 
remedial response each and every time they were notified



8

of alleged offensive conduct. Within three months of Ber­
nard's first complaint to management, Ketter was trans­
ferred to another part of the plant. Counseling sessions 
and disciplinary actions with Ketter proved unsuccessful 
that after the in-plant transfer, Ketter was transferred to 
another plant. Moreover, the Fifth Circuit ruled that Peti­
tioner's summary judgment evidence did not contest the 
facts concerning the city's handling of Ketter's mis­
behavior.

The Fifth Circuit also applied the proper standard by 
finding that Petitioner did not establish a prima facie case 
of discrimination or disparate treatment with respect to 
promotions. Petitioner failed to produce sufficient evi­
dence of a racial animus with respect to this claim. The 
appeals court held that Ketter, a co-worker, could not 
directly influence the decision as to who was trained or 
promoted. Furthermore, Bernard never passed the 
required civil service exam to be promoted, and he pro­
vided no evidence that his failure was the result of the 
City denying him training. Nor did Bernard show that 
other individuals of other races were provided training to 
pass the civil service exams.

-----------------♦ -----------------

ARGUMENTS SUPPORTING DENIAL OF THE WRIT

I. HOSTILE WORK ENVIRONMENT AND REME­
DIAL MEASURES UNDER TITLE VII

A. STANDARD UNDER TITLE VII

How hostile must an atmosphere be, or how severe 
must the effect be on an employee, to be actionable under



9

Title VII? In Meritor, this Court stated that, to constitute 
actionable harassment, the conduct must be "sufficiently 
severe or pervasive to alter the condition's of the victim's 
employment and create an abusive working environ­
ment."4 After Meritor, most courts undertook a dual 
inquiry: first, would the condition in question be offen­
sive to a reasonable person, and second, what was the 
actual impact on the individual harassed? As to the latter 
point, the required effect on the individual was unclear 
until the court in Harris5 decided the issue.

"Title VII comes into play before the harassing 
conduct leads to a nervous breakdown . . . the 
very fact that the discriminatory conduct was so 
severe or pervasive that it created a work envi­
ronment abusive to employees because of their 
race, gender, religion or natural origin offends 
Title VII's broad rule of workplace equality."6

The Seventh Circuit developed a six step test to analyze 
harassment cases. These steps are that: (1) the employee 
belongs to a protected group; (2) the employee was sub­
ject to unwelcome harassment; (3) the harassment com­
plained of was based on race; (4) the harassment 
complained of affected a term, condition or privilege of 
employment; (5) the plaintiff must be able to prove that the 
employer knew or should have known of the harassment and 
fa iled  to take prompt and remedial action; and (6) the

4 M eritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986).
5 Harris v. Forklift Sys., 114 S. Ct. 367, 126 L.Ed.2d 295 

(1993).
6 Id. at 114 S. Ct. 367, 372.



10

employee acted reasonably under the circumstances.7 
This Court confirmed the fact that "mere utterance of an 
epithet which engenders offensive feelings in an 
employee does not sufficiently affect the conditions of 
employment to implicate Title VII. A  plaintiff must show 
that the hostile environment altered the conditions of 
his/her employment."8

B. PROMPT AND REMEDIAL ACTION

Under what conditions will the employer be held 
responsible for a hostile work environment? It is clear 
that an employee must do more than merely avoid 
actively creating a racially, ethnically or sexually intim­
idating environment.9 This Court offered some guidance 
on this issue in Meritor.10 The Court stated that tradi­
tional EEOC principles shall be used for guidance. It 
quoted from the agency's brief in which the Commission 
suggested an examination of the following factors:

• whether an employer has a policy forbidding 
harassment;

• whether it has in place a system to respond 
to complaints of harassment;

7 Daniels v. Essex Group, Inc., 740 F.Supp. 553 (N.D. Ind. 
1990), aff'd, 927 F.2d 1264 (7th Cir. 1991). (Emphasis added). See 
also Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

8 Harris, 114 S.Ct. at 372.
9 See 29 C.F.R. §§1604.11(c) and 1606.8(c).
10 See N.2 Supra. Although this court was asked to rule on 

employer responsibility, it declined to do so, finding that the 
record was not w ell developed on this issue.



11

• whether the alleged victim availed himself of 
that system;

• whether the system was reasonably respon­
sive to the complaints; and

• whether the employer had actual notice of 
the harassment.11

If an employer has actual or constructive notice of a 
racially hostile work environment and fails to take active 
and effective steps to remedy it, the employer may have 
violated Title VII. If the employer takes prompt and reme­
dial action, however, he will be relieved of liability.12

The Petitioner argues that the Fifth Circuit's ruling in 
this case removes the employer's obligation to eliminate 
racial harassment until the victim complains about the 
harassment. Petitioner goes on to argue that the Fifth 
Circuit's view gives no duty to the employer to end 
known harassment. The Fifth Circuit made no such rul­
ing. Petitioner's argument is wholly contrary to the con­
clusions of the appeals court, district court and the EEOC.

The Fifth Circuit found that a racially hostile work 
environment may have existed in this case because Ketter 
"engaged in racially insulting conduct and displayed

11 M eritor, 477 U.S. at 71, quoting  Brief for the United States 
and the Equal Em ploym ent Opportunity Commission as Amici 
Curiae at 26.

12 Davis v. M onsanto Chem. Co., 858 F.2d 345 (6th Cir. 1988), 
cert, denied, 490 U.S. 1110 (1989). The court found that the 
em ployer took quick and appropriate rem edial m easures in 
response to racially derogatory graffiti, therefore, the employer 
was not liable for tolerating racial harassment.



12

materials derogatory of blacks (and religion) in the work­
place."13 But, the court also found that the evidence 
clearly showed that the managers of the water plant took 
prompt remedial action when informed that Petitioner 
found Ketter's conduct offensive. Moreover, the appeal 
court stated that management's handling of the Ketter 
situation never suggested that Ketter's offensive conduct 
was tolerated or excusable. Petitioner's summary judg­
ment evidence,14 fails to contest the facts concerning the 
handling of Ketter's misbehavior. The City's uncon­
troverted actions constituted a prompt remedial response 
to Bernard's complaints.15

The district court also looked very closely at the 
reaction of the City to Bernard's complaints. It found that 
in retrospect, Ketter's supervisors should probably have 
taken decisive action against Ketter in a more expeditious 
manner, however, "they cannot be fa u lted  fo r  taking the 
course they fo llow ed ."  Ketter was afforded every oppor­
tunity to improve his behavior; when all the City's efforts 
failed, he was transferred away from Petitioner within 
three months of the first complaint, and transferred to

13 Clement Bernard v. City o f Dallas, No. 93-1651, slip op. at 2 
(5th Cir. April 7, 1994).

14 P e titio n e r 's  R esponse to C ity 's  Sum m ary Judgm ent 
M otion consisted prim arily of four Affidavits, all of which dis­
cussed the transgressions of Harry Ketter. R. 222. Petitioner 
provided no evidence which suggests that the City's actions 
were not reasonable.

15 Clement Bernard v. City o f Dallas, No. 93-1651, slip op. at 3 
(5th Cir. April 7, 1994).



13

another plant several months later,16 The EEOC also 
investigated Petitioner's complaint and it also found that 
the City took prompt remedial action and that no addi­
tional relief was necessary.17

Petitioner's argument that the City, more specifically 
SSWWTP Management, was aware of the hostile work 
environment long before Bernard complained is baseless 
and without merit. Petitioner makes the following con- 
clusory statements:

"Although plant managers had earlier failed to 
act on misconduct known to all . . . " 18

16 Clement Bernard v. City o f  Dallas, No. 90-1783, M emoran­
dum O pinion and O rder at 11 (N.D. Tex. June 23, 1993). 
(Emphasis added).

17 EEOC's D eterm ination Letter specifically stated: The evi­
dence obtained during the investigation substantiates that the 
w ork en vironm ent w as not free from  sexual harassm ent, 
racially discrim inatory literature and drawings, and intim ida­
tion. This was reported to Respondent in October 1988, and Respon­
dent took action to remedy the situation, i.e., the person creating the 
hostile environm ent was transferred to another work site.
Section 706(b) of Title VII requires that if the Commission deter­
m ines that there is reason to believe that v iolations have 
occurred, it shall endeavor to elim inate the alleged unlawful 
em ploym ent practices by inform al methods of conference, con­
cilia tion , and persuasion . How ever, since the Respondent 
undertook rem edial action, the Commission, accordingly, deems 
that no additional relief is necessary, and the harassment and intim­
idation issue is hereby considered resolved. R. p. 86 (Emphasis 
added).

18 P etitioner's Petition for Writ of Certiorari, p. 9.



14

"The undisputed evidence made clear that man­
agement had known about the harassment long 
before October 1988." 19

Both these statements are not supported by the 
record that is before this court. No evidence has ever 
been presented that SSWWTP Management was ever 
aware of the actions of Ketter. The Fifth Circuit does state 
in its decision that Ketter's activity apparently went on 
for some time, but it never found that management had 
either actual or constructive knowledge of Ketter's 
actions. Moreover, Ketter and Bernard only worked 
together fourteen (14) months prior to Bernard filing his 
first complaint. No evidence exists that Bernard was a 
victim of any type of harassment during the early part of 
this relationship. In fact, the record shows that Petitioner 
and Ketter voluntarily engaged in acrimonious conversa­
tions with each other about various racial, religious and 
sexual issues. R. p. 221. The record does reflect, however, 
that once Kilpatrick was made aware of the problems 
caused mostly by Ketter, he promptly acted to eliminate 
the hostile environment.

The Fifth Circuit's decision applies the standard rec­
ognized by all the circuit courts, that an employer is 
responsible for acts of harassment in the workplace where 
the employer (or its agents) knows or should have knoivn 
of the conduct, unless it can show that it took immediate 
and appropriate corrective action. "Every circuit which 
has addressed this issue has agreed with this standard."20

19 Id.
20 M eritor State Bank v. Vinson, 477 U.S. 57, 67 (M arshall, ]., 

concurring).



15

Petitioner claims that the Fifth Circuit's decision in 
this case is expressly rejected by the Fourth and Sixth 
Circuits. A closer look at the cases cited by Petitioner as 
being similar to the present case reveals glaring differ­
ences. In Yates, two female employees filed sexual harass­
ment allegations against their supervisor in the fall of 
1983. Evidence was offered to indicate that the supervisor 
had harassed women as early as 1980, and the employer 
had notice of the supervisor's tendencies at this earlier 
date. Three other women had in one way or another, 
notified management of the supervisor's harassment 
since 1980.21

In Paroline, the Fourth Circuit reversed a decision 
granting motion for summary judgment in favor of the 
employer because evidence showed that there had been 
prior complaints to management by other employees 
about sexual harassment by the individual who vic­
timized the plaintiff. Moreover, the employer only took 
nominal measures in response to the known harass­
ment.22

Both of the cases cited are distinguishable from the 
present case. No evidence was ever presented by Peti­
tioner that SSWWTP Management was aware of Ketter's 
actions before October 1988. No evidence was presented

21 Yates v. Avco Corp., 819 F.2d 630 (6th Cir. 1987). The court 
specifically found that the evidence established that Avco knew, 
or should have known, that the supervisor was sexually harass­
ing the plaintiffs and other females. Moreover, it found that it 
had a sexual harassm ent policy that did not function properly. 
Id. at 636.

22 Paroline v. Unisys Corp., 879 F.2d 100, 106 (4th Cir. 1989).



16

that they should have been aware of Ketter's actions. The 
only evidence on the record, before this Court is that 
immediately upon being notified of Ketter's actions, 
Kilpatrick, Manager of SSWWTP, took action. Initially, 
counseling sessions, then reprimands against Ketter, then 
transferring Ketter to a different work group, and then 
within ten (10) months of Petitioner's first complaint, 
Ketter's transfer to another location. It is because of these 
facts that the district court, appeals court, and this Court 
should find that the City took immediate and appropriate 
corrective action to eliminate the hostile work environ­
ment.

II. PETITIONER FAILS TO ESTABLISH A PRIMA 
FACIE CASE OF RACIAL DISCRIMINATION IN 
PROMOTIONS UNDER TITLE VII

A. STANDARD UNDER TITLE VII

Under the disparate treatment theory in a Title VII 
action, existence of a pattern or practice of discrimination 
must be proved, and such theory requires proof of dis­
criminatory intent, which must be established by either 
direct or circumstantial evidence.23 A plaintiff must show 
that the defendants intentionally treated him unfairly 
because of his race.24

23  42 U.S.C. §2000(e), et. seq.
24 Valdez v. San Antonio Chamber o f  Commerce, 974 F.2d 592, 

596 (5th Cir. 1992), Vaughn v. Edel, 918 F.2d 517, 521 (5th Cir. 
1990).



17

In a typical disparate treatment case, a plaintiff must 
prove a prima facie case of discrimination by showing that 
(1) he is a member of a protected group; (2) he was 
qualified for the job he held; (3) he was discharged; and 
(4) after his discharge, his employer filled the position 
with a person who is not a member of the protected 
group.25 This case allegedly involves the denial of proper 
training needed for promotion.

Discrimination in access to training or retraining pro­
grams is illegal under a special provision of Title VII,26 
although the same result may well follow from Title VII's 
more general provisions requiring non-discrimination in 
all terms and conditions of employment. 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, or was not given 
training as good as that given to others, and that discrim­
ination was the reason for the lack of promotion.27 To

25 M cD onnell D ouglas Corp. v. Green, 411 U.S. 792, 802 
(1973).

26 42 U.S.C. §2000(e)-2(2) states: It shall be an unlawful 
em ploym ent practice for any employer, labor organization, or 
joint labor-m anagem ent committee controlling apprenticeship 
or other training or retraining, including on-the-job training 
program s to discrim inate against any individual because of his 
race, color, religion, sex, or national origin in admission to, or 
em ploym ent in, any program established to provide apprentice­
ship or other training.

27 Washington v. Electrical Joint Apprenticeship and Training 
Comm., 845 F.2d 710 (7th Cir. 1988), cert, denied, 488 U.S. 944 
(1988).



18

show discrimination in training opportunities, the plain­
tiff must show either he was provided inadequate train­
ing because of d iscrim ination , or that training 
opportunities were given out in a discriminatory man­
ner.28

B. NO DENIAL OF TRAINING

Petitioner argues that the decision of the Fifth Circuit 
conflicts with decisions of other circuits because it allows 
an employer to deny black workers promotions by not 
providing the necessary training. Bernard asserts that the 
Fifth Circuit's decision circumvents Title VII protections 
based solely on an employee's geographical location. This 
is not the finding of the Fifth Circuit. Furthermore, there 
is ample evidence in the record that Bernard was not 
denied a promotion based upon his race.

Contrary to Petitioner's arguments, the record does 
not have any evidence, direct or indirect, of statements by 
Ketter or Petitioner's supervisor that they were deter­
mined to prevent any black worker from promoting into a 
T-9 position. Notably absent in Petitioner's brief are cites 
to the record of these preposterous findings. Petitioner 
also exaggerates that Ketter was responsible for provid­
ing the needed training in order to be promoted. The 
Fifth Circuit correctly found that Ketter, a co-worker, 
could not directly influence the promotional decision. 
The record does show that Bernard sought promotion 
from a T-7 Apprentice Instrument Technician to a T-9 
Instrument Technician. The T-9 promotion was based

28 Id.



19

upon an objective Civil Service Exam. Bernard had 
knowledge of what was to be covered on the T-9 exam 
since he took and failed the exam on May 1, 1987, prior to 
being assigned to work with Ketter. Bernard also took 
and failed the exam on three other separate occasions. R. 
p. 99. No evidence exists that these failures occurred 
while Bernard and Ketter worked together. Moreover, no 
evidence exists to show that the exams had a disparate 
impact on minorities.

Petitioner did take and pass the Mechanic Technician 
T-9 test on November 3, 1988. R. p. 99 (during the time he 
worked with Ketter). Bernard states that he was tutored 
by Jessie Beard, Maintenance Supervisor, who is a white 
male, to prepare for that exam. The fact that Bernard 
passed this exam with the assistance of a white male 
demonstrates that the City did not practice racial discrim­
ination in training. Furthermore, Petitioner stated he 
would not have passed that exam if it had not been for 
the help of Jessie Beard. R. pp. 81-83.

The evidence, or lack of evidence in this case, which 
is fatal to Petitioner's argument is the fact that it fails to 
show that any white employee received training which 
Petitioner was denied. No evidence exists that Ketter or 
any other supervisor was training non-minorities to pass



20

the Instrument Technician T-9 exam.29 In fact, the only 
evidence of someone receiving special training was Peti­
tioner in the help he received from Beard to pass the 
Mechanic Technician exam.

Petitioner fails to make out a prima facie case because 
he never was qualified for an Instrument Technician T-9, 
having failed the test every time he took it. Moreover, 
Petitioner provides no evidence to show that a similarly 
situated non-minority who failed the Instrument Techni­
cian T-9 exam was promoted to that position.

----------------- ♦ -----------------

29 EEOC specifically found the lack of this evidence to be 
fatal. The EEOC's Determ ination Letter specifically stated: "The 
evidence shows that Charging Party received some training, but 
that training was not form alized. He was denied a two-year 
college program  because of lack of funds. Others of different 
races were also denied this training. There is no evidence to sup­
port that CP [Bernard] was denied training because o f  his race, 
Black." R. p. 85. (Emphasis added).



21

CONCLUSION

None of the issues Bernard presents is of precedential 
value that warrants review by this Court. Additionally, 
there is no conflict among the circuits regarding any of 
the issues presented. The Fifth Circuit meticulously 
reviewed the facts and applied the correct legal standards 
in reaching its conclusions. For these reasons stated 
herein, this Court should deny Petitioner's Petition for 
Writ of Certiorari.

Respectfully submitted,

Office of the City Attorney 
City of Dallas, Texas 
S a m  A. L indsay 
City Attorney 
F ra n cisco  J avier G arza  
Assistant City Attorney 
Counsel o f Record 
City Hall 7BN 
1500 Marilla Street 
Dallas, Texas 75201 
(214) 670-3510

Attorneys for Respondent