St. Peter v Marsh Reply Brief in Opposition

    No. 81-917

In the

Supreme Olourt n! tljp litutpfc States
October Term, 1981

V irginia M. St. P eter,
Petitioner,

v.

J ohn 0 . Marsh, J r.,
Secretary of the Army.

o n  p e t i t i o n  f o r  a  w r i t  o f  c e r t i o r a r i  t o  t h e

U N IT E D  STATES COURT OF APPEALS 
FOR T H E  DISTRICT OF COLUM BIA C IR C U IT

REPLY TO BRIEF FOR THE RESPONDENT 
IN OPPOSITION

J ack Greenberg 
J ames M. Nabrit, III 
Charles Stephen R alston*
Gail J . W right

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

R onda L. B illig 
Mark T. W ilson

2007 Massachusetts Ave., N.W. 
Washington, D.C. 20036

Attorneys for Petitioner
’Counsel of Record



Table of Authorities
Page

Cases

Montoya v. Anderson, 511 F. Supp.
523 (D. Col. 1981) ............  7

Nanty v. Barrows Co., 660 F.2d
1327 (9th Cir. 1981 ) ..........  7

Texas Department of Community
Affairs v. Burdine, 450 U.S.
248 ( 1 981 ) ...................  2,5,6

Village of Arlington Heights v.
Metropolitan Housing Corp.,
429 U.S. 252 ( 1 977) ...........  3

l



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No. 81-917
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1981

VIRGINIA M. ST. PETER,
Petitioner,

v.
JOHN O. MARSH, JR., 
SECRETARY OF THE ARMY.

On Petition For A Writ of Certiorari To 
The United States Court of Appeals 
For the District of Columbia Circuit

REPLY TO BRIEF FOR THE RESPONDENT 
___________IN OPPOSITION__________
Petitioner wishes to reply to a 

number of contentions made by the govern­
ment in its brief in opposition to the

■ */petition for a writ of certiorari.

*_/ The decision of the court below is 
now reported at 659 F.2d 1113.



2

1. Respondent does not seriously 
argue that the central issue presented by 
this case is not one of importance to the 
enforcement of Title VII. That issue is, 
can a reason which shows a violation of 
legally mandated personnel practices be 
"legitimate", and "lawful" and thereby 
constitute a rebuttal to a prima facie case 
of discrimination? This is a question not 
addressed by Texas Department of Community 
Affairs v. Burdine, 450 U.S. 248 (1981) but 
is one that will inevitably affect the 
decisions in many individual Title VII 
cases involving federal employees. There­
fore, it deserves resolution by this court.

2. The government, at page 10 of its 
brief, misstates petitioner's argument. It 
is not contended that a failure to follow 
proper personnel procedures in and of 
itself establishes a violation of Title



3

VII.— The question rather, is once a prima 
facie case of discrimination has been es­
tablished, can an action which violates 
proper procedures be relied upon to rebut 
it. In other words, can it constitute an 
explanation that is "legally sufficient to 
justify a judgment for the defendant." 450 
U.S. at 255.

3. The government takes issue with 
petitioner's contention that the selecting 
officials did not follow the mandated pro­
visions of the Federal Personnel Manual. 
However, the language cited both by peti­
tioner and by the government, viz, para­
graph b.(2) of Chapter 335 of the Manual 
set out in the footnote on page 9 of

1/ It should be noted, however, that 
under Village of Arlington Heights v. Met­
ropolitan Housing Corp., 429 U.S. 252, 267
(1977), a failure to follow proper proce­
dures can be one element of proof of 
intentional discrimination.



4

Respondent's Brief, states with utmost 
clarity that selecting officials are to be 
provided information about the qualifica­
tions of the candidates, including their 
experience, training, and education, "to 
enable them to make a sound choice." It 
is clear beyond contradiction that this re­
quirement was followed in the present 
case. The interviewing panel and the 
selecting official did not have before 
them and, indeed, deliberately declined to 
consider, information concerning the quali­
fications of the candidates provided 
through the selection process. It is hard 
to imagine a clearer failure to follow 
procedures whose very purpose is to ensure 
a valid choice based on the relative merits 
of the candidates.

4. In this connection it is diffi­
cult to understand what Title VII is about



5

if the fact that a less qualified candidate 
is picked has, as the government seems to 
contend, no relationship to the issue 
whether discrimination has occurred. Cer­
tainly, the clear implication of Burdine is 
that the passing over of a more qualified 
female candidate could be justified only 
under the most unusual of circumstances.

5. The government never addresses 
the uncontradicted evidence in the record 
showing overt sexual bias, including 
the attempt to restrict candidates to 
persons who were graduates of West Point, 
the initial selection of a person who could 
act "buddy-to-buddy" with congressmen, and 
the final selection of a candidate because 
he had a neat "crew-cut" appearance.

6. The government seems to adopt the 
position of the district court that because 
the practices here also affected men, there



6

could have been no sex discrimination. If 
that is the rule then Title VII will cease 
to have any meaning, since it is a rare 
case indeed in which only one white or 
male has applied for a position. Rather, 
in almost all instances males will have 
been turned down also. The point is not 
that there were some males who did not get 
selected, but that the person who was 
picked was a male. Thus, the selection 
process and the result came out in favor of 
males. That fact cannot be altered by the 
circumstance that other males necessarily 
did not receive the single position avail­
able .

7. Finally, the decision below is 
inconsistent with post-Burdine decisions in 
other circuits. Since the petition for a 
writ of certiorari was filed there have 
been decisions in addition to those there



7

cited. See, Nanty v. Barrows Co., 660 F.2d 
1327, 1332 n.5 (9th Cir. 1981), noting the 
court's skepticism of reliance on subjec­
tive factors similar to those used in the 
present case. See also, Montoya v. Ander­
son, 511 F. Supp. 523 (D. Col. 1981), sim­
ilarly holding that the justification given 
to rebut a prima facie case must be "rea­
sonably related to objective management 
goals." 511 F. Supp. at 525 (emphasis
added).



8

CONCLUSION

For the foregoing reasons the petition 
for a writ of certiorari should be granted. 

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III CHARLES STEPHEN RALSTON*
GAIL J. WRIGHT

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

RONDA L. BILLIG 
MARK T. WILSON

2007 Massachusetts Ave., N.W. 
Washington, D.C. 20036

Attorneys for Petitioner
*Counsel of Record



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