Bouie v. City of Columbia Petition for Writ of Certiorari to the Supreme Court of South Carolina

    No. 84-1663

IN THE

Supreme Court of tfje ®mteb ibtatetf
October Term, 1984

VERNICE C. NICHELSON,
Petitioner,

vs.

QUAKER OATS COMPANY,
Respondent.

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

THE SIXTH CIRCUIT

Jeremy P. Sherman 
M ichael A. W arner*

Seyfarth, Shaw , F airweather 
& G eraldson 

55 East Monroe Street 
Chicago, Illinois 60603 
(312) 346-8000 
Counsel fo r Respondent

* Counsel of Record

Pandick Midwest, Inc., Chicago • 454-7600



Question Presented

Respondent does not accept the Questions Presented by 
Petitioner. Respondent submits only one proper Question is 
presented to this Court:

Whether, under the record evidence in this case, the 
United States Court of Appeals for the Sixth Circuit erred 
in holding the District Court’s findings of discrimination to 
be clearly erroneous.



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TABLE OF CONTENTS

PAGE

Question Presented............................................................... i
Statement Of The Case........................................................  1
A. January, 1980 Work Reassignment......................... 2

B. February, 1980, Two Day Suspension...................  3
C. Failure To Promote To Quality Assurance Super­

visor.............................................................................. 4
D. Demotion To Quality Assurance Monitor..............  5

E. Use Of A Racial Slur.................................................  5
Reasons For Denying The W rit.......................................... 6
Conclusion.............................................................................. 9



—Ill—

Table of A uthorities

page

Cases

Anderson v. Bessemer City, ____ U.S. ____ , 105
S.Ct. 1504(1985)....................................................  6 ,8 ,9

United States v. United States Gypsum Corp., 333 
U.S. 3 6 4 (1 9 8 4 )......................................................  6

Other A uthorities

Rule 19 of the Rules of the Supreme Court Of The 
United States...........................................................  9



IN THE

Supreme Court of tf)t ®ntteb States
October T erm, 1984

VERNICE C. NICHELSON,
Petitioner,

vs.

QUAKER OATS COMPANY,
Respondent.

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

THE SIXTH CIRCUIT

Statement Of The Case

Petitioner Vemice C. Nichelson filed an individual charge 
of discrimination with the Equal Employment Opportunity 
Commission ( “EEOC” ) on March 25, 1980 alleging that a one- 
week work assignment on January 11, 1980 and a two-day 
suspension for falsely reporting her time in February, 1980 
were racially motivated. Her judicial complaint, filed on June 
19, 1980, reiterated these two narrowly focused claims and



2

added a one sentence allegation generally averring denial of 
promotions and training.

The case was tried without a jury before United States 
District Court Judge Odell Horton.1 The district court ruled that 
Nichelson could prevail by showing that race was a factor in the 
Company’s action (36a-37a).2 The trial testimony and 
documentary evidence established the context in which the race 
discrimination claim arose.

Nichelson has been employed by respondent Quaker Oats 
Company’s Jackson, Tennessee plant. The plant manufactures 
frozen foods, such as waffles, pancake batter and pizza. Nichel­
son was hired in 1976 as a production worker and was 
promoted to the position of laboratory technician in the quality 
assurance department in 1977.

A. January, 1980 Work Reassignment

In January, 1980, the Company was conducting a special 
three week study of frozen waffle temperatures. During the 
week of January 14, 1980, Nichelson was assigned to work on 
this special project without a reduction in pay.

Nichelson claimed her work assignment was a punishment 
in retaliation for failing to complete her work the previous 
Friday, January 11, 1980. Her supervisor, Dale Smith, denied 
that the work assignment was disciplinary in nature. The 
District Court concluded that the one week work assignment 
was intended to be disciplinary. Nichelson further argued that 
this punishment was motivated by racial discrimination because

1 The Company argued to the Sixth Circuit that the District Court 
had prejudged the merits to the case because it made written findings 
against the Company at the close of Nichelson’s case. The Sixth 
Circuit’s decision did not reach this contention.

2 The Company argued to the Sixth Circuit that the District Court 
erred by requiring Nichelson to prove only that race was a factor 
rather than a determining factor in the challenged employment action. 
The Sixth Circuit did not reach this assignment of error.



3

Deborah Hale, a white technician, was not similarly disciplined 
for failing that Friday or over the weekend to complete the 
work Nichelson had left. Hale testified that no one told her to 
complete Nichelson’s work and that when she telephoned 
Smith on Saturday for instructions on what to do with Nichel­
son’s unfinished work, Smith gave her permission to leave the 
work undone.

The District Court, stating “Nichelson is black, and Hale is 
white” (39a) concluded that the one week work assignment 
constituted disparate racial treatment (40a).

The Sixth Circuit agreed with the District Court that 
Nichelson’s reassignment—without loss of pay—was a dis­
ciplinary measure (115a). However, since Hale had completed 
her own work and had been specifically excused from com­
pleting Nichelson’s, the Sixth Circuit held that the District 
Court had failed to point to any evidence that would justify an 
inference of disparate treatment based on race.

B. February, 1980, Two Day Suspension

Nichelson was suspended without pay for two days in 
February, 1980 for falsifying her time card to collect extra 
Saturday overtime. Although Nichelson admitted that she had 
recorded eight hours for the Saturday in question when she had 
only worked six hours on that day, she told Company officials 
that she was merely following the example of supervisor David 
Johnson. Johnson, unlike Nichelson, is exempt for purposes of 
overtime (116a). Nevertheless, the Company investigated 
Nichelson’s claim and Johnson denied overstating his time 
(116a).

Two white employees, Patsy Alexander Reed and Francis 
Morris, were similarly accused by management of overstating 
time. However, Reed and Morris, unlike Nichelson, denied the 
accusation and produced two supervisors, one black and the 
other white, who corroborated their denials (119a).



4

The District Court found that Nichelson overstated her 
time because she was following Johnson’s example and that she 
was treated differently than Morris and Reed (59a, 61a). Also, 
it found that black employee Rosa Benson had testified that 
she, too, had been instructed by Smith to report eight hours on 
weekends regardless of the time she actually worked (57a). 
The District Court held that the Company’s articulated reason 
for suspending Nichelson, falsification of time sheets, was a 
pretext for discrimination and nothing more (62a).

The Sixth Circuit, noting Johnson’s exempt status and his 
unequivocal denial of overtime falsification to management, 
ruled that his different treatment was clearly non-racially based 
(116a). Because Reed and Morris had also denied any 
falsification and had even provided corroborating witnesses to 
management, the Sixth Circuit held that there was no basis to 
ascribe a racial motive for their disparate treatment (119a). As 
for Benson’s puported testimony, the Sixth Circuit held the 
record contained no such testimony by her (118a). In fact, her 
testimony was directly contrary to the District Court’s finding 
( 1 18a-119a). Therefore, the Sixth Circuit reversed the District 
Court’s finding that Nichelson was suspended for two days 
because she is black (119a).

C. Failure To Promote To Quality Assurance Supervisor

In October, 1980, six months after the lawsuit was filed, the 
quality assurance department was reorganized. One aspect of 
the reorganization involved the creation of two quality assur­
ance supervisor positions. All quality assurance employees ( six 
blacks and ten whites) were invited to apply for the positions 
and virtually all applied. In making the selections, the Com­
pany gave preference to employees who had prior experience as 
quality assurance monitors because the quality assurance super­
visors were required to supervise monitors (120a). Two 
employees were selected, one black and the other white, both of 
whom had prior experience as quality assurance monitors



5

( 120a). It is undisputed that Nichelson had no such experience 
( 120a-12la). Yet the District Court held that the Company’s 
refusal to promote Nichelson was racially motivated (81a). 
The Sixth Circuit reversed because the testimony clearly pro­
vided a nonpretextual reason why Nichelson did not receive the 
promotion (121a).3

D. Demotion to Quality Assurance Monitor

In October 1980, as part of its reorganization, the Com­
pany introduced a pasteurizer into the quality assurance depart­
ment which reduced the amount of microbiological analysis 
performed by quality assurance technicians (121a). As a 
consequence, the Company was able to reduce the number of 
technicians from three to two. It was undisputed that the 
Company’s policy in cases of a layoff or job reduction is to 
select the least senior person within the job classification 
(121a). Nichelson was the least senior laboratory technician 
and was consequently reassigned from laboratory technician to 
monitor with no loss of pay (12 la-122a). She was restored to 
her old job as soon as the next technician vacancy became 
available ( 122a).

The District Court, noting only that the Company’s job 
reduction policy was unwritten, held that Nichelson was de­
moted because of her race (86a). The Sixth Circuit reversed 
because the reassignment was based on seniority, a neutral, 
permissible, nonracial basis (122a).

E. Use O f A Racial Slur

Several years before, Dale Smith, the manager of the 
quality assurance department, made a racial slur to another 
employee in the department ( 122a). Nichelson, who was not

3 The Sixth Circuit did not reach the Company’s argument that 
this promotion, along with the demotion claim to be discussed infra, 
were outside the scope of the EEOC charge, outside the scope of the 
complaint, and time barred.



6

present when any racial slur was made, alleged the use of such 
a slur justified the findings of racial discrimination. The Sixth 
Circuit held that an unconnected racial comment remote in time 
and circumstance does not convert the case into one of racial 
discrimination in employment.

Reasons For Denying The Writ

The Sixth Circuit’s opinion does not present the same 
problem of appellate review of trial court credibility determina­
tions presented in Anderson v. Bessemer City, ____U.S. _____ ,
105 S.Ct. 1504 (1985). Anderson preserved the “clearly 
erroneous” standard. As the Court reaffirmed,

“ [a] finding is ‘clearly erroneous’ when although there is 
evidence to support it, the reviewing court on the entire 
evidence is left with a definite and firm conviction that a 
mistake has been committed.”

105 S. Ct. at 1511, quoting United States v. United States 
Gypsum Corp., 333 U.S. 364, 394-395 (1948).

The decision of the Sixth Circuit herein is carefully written 
and fully consistent with the “clearly erroneous” standard. It is 
not contrary to the Supreme Court’s decision in Anderson.

The Fourth Circuit in Anderson applied a more stringent 
appellate review of the findings of the district court than was 
customary because of the district court’s adoption of com­
plainant’s proposed findings of fact and conclusions of law. 105 
S. Ct. at 1510-11. The Supreme Court criticized this approach 
which resulted in errors committed by the Fourth Circuit. One 
such error was what amounted to a de novo weighing of the 
evidence regarding the qualification of individuals seeking a 
contested promotion by the Fourth Circuit. A second error was 
the Fourth Circuit’s rejection of the district court’s finding that 
the complainant, alone, was asked questions regarding her



7

spouse’s feelings about her application for the position. The 
Fourth Circuit’s decision improperly characterized as serious a 
comment of one witness which the district court had dismissed 
as facetious.

The Sixth Circuit engaged neither in a de novo review of 
evidence nor in a reinterpretation of the demeanor of witnesses. 
For example, it accepted the District Court’s finding that the 
one week work assignment in January, 1980 was disciplinary 
(115a). The Sixth Circuit reversed the District Court because 
the record did not establish that similarly situated white 
employees were not punished for such workplace mistakes 
(1 15a-l 16a).

The District Court’s findings on the October, 1980 denial 
of promotion and reassignment to quality assurance monitor 
were not based on credibility resolution but rather on what the 
District Court termed “ the totality of the facts and the circum­
stances of this case” (81a, 86a). The Sixth Circuit reversed 
because the evidence in the record established legitimate 
nondiscriminatory reasons for the Company’s actions. It was 
undisputed that Nichelson lacked the experience for the promo­
tion in question and that the two candidates selected, one black 
and the other white, had such experience ( 120a). As for the 
reassignment to monitor, it was undisputed that the staff 
reduction was appropriate and that Nichelson’s seniority in the 
job made her the appropriate employee for reassignment 
( 121a-122a).

In reversing the District Court’s liability determination on 
the two day suspension, the Sixth Circuit did not, as alleged by 
Petitioner, re-evaluate whether Nichelson or Johnson was the 
more credible witness (Petition at 10-11)4 Instead, the Sixth

4 Petitioner incorrectly referes to Johnson as a “defense witness” 
(Petition at 10-11). Johnson was called to testify by Nichelson’s 
attorney during Nichelson’s case-in-chief. Johnson was never a 
“defense witness.”



8

Circuit held that Johnson was not similarly situated with 
Nichelson because he was exempt for purposes of overtime 
(116a). Furthermore, Johnson, like Reed and Morris, denied 
overstating his time when investigated by management (116s, 
119a). It is undisputed that Nichelson admitted overstating her 
time to management. Consequently, the record did not support 
the District Court’s finding that the suspension of Nichelson, 
rather than Johnson, Reed, or Morris, was racially motivated.

In only one instance did the Sixth Circuit discredit the 
testimony of a witness relied upon by the District Court. That 
witness, Rosa Benson, did not present a coherent, consistent or 
facially plausible story (1 17a-118a). The Sixth Circuit’s treat­
ment of Benson’s testimony is wholly consistent with Anderson:

This is not to suggest that the trial judge may insulate his 
findings from review by denominating them credibility 
determinations, for factors other than demeanor and in­
flection go into the decision whether or not to believe a 
witness. Documents or objective evidence may contradict 
the witness’ story; or the story itself may be so internally 
inconsistent or implausible on its face that a reasonable 
factfinder would not credit it. Where such factors are 
present, the court of appeals may well find clear error even 
in a finding purportedly based on a credibility finding.

105 S. Ct. 1512-13.
Clearly, Anderson does not constitute a mandate for the 

courts of appeal to rubber-stamp decisions of the district court. 
105 S. Ct. at 1515 (Powell, concurring). The vice of Anderson 
is appellate court rejection of the factfinder’s choice between 
two permissible views of the evidence. The Sixth Circuit in this 
case did not engage in such an exercise.

This case is distinguishable from Anderson on its facts. 
Granting the Petition under the circumstances of this case will 
chill the willingness of the courts of appeal to engage in a 
comprehensive review of the district court record. Such a 
comprehensive review is essential to the integrity of the appel­
late process.



9

Conclusion

Petitioner has not met any of the standards governing 
review on writ of certiorari. In particular, petitioner has not 
established that there is “ an important question of federal 
law”5 which is in conflict with this Court’s decision in Anderson. 
Respondent submits that the petition for writ of certiorari to the 
United States Court of Appeals for the Sixth Circuit should be 
denied.

Respectfully submitted,

Jeremy P. Sherman 
M ichael A. W arner*

Seyfarth, Shaw , Fairweather 
& G eraldson 

55 East Monroe Street 
Chicago, Illinois 60603 
(312) 346-8000 
Counsel fo r  Respondent

* Counsel of Record

5 Rule 19 of the Rules of the Supreme Court of the United States.