Valentino v. United States Postal Service Motion for Leave to File Brief and Brief Amici Curiae

    IN THE
UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA

No. 81-1202

MARY P. VALENTINO, et al.
Plaintiffs-Appellants 

v.
UNITED STATES POSTAL SERVICE,

Defendant-Appellee

Appeal From the United States District 
Court for the District of Columbia

MOTION FOR LEAVE TO FILE BRIEF OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, Inc. and FEDERALLY 
EMPLOYED WOMEN'S LEGAL AND EDUCATION FUND, INC.
AS AMICI CURIAE, AND.BRIEF AMICI CURIAE IN SUPPORT 
OF PETITION FOR REHEARING AND SUGGESTION OF REHEAR­

ING EN BANC

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

NAACP Legal Defense and
Educational Fund,Inc. 

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

Attorneys for Amicus Curiae
VALERIE V. AMBLER

Federally Employed Women's 
Legal and Education Fund, 

Inc.
National Press Building 
Washington, D.C. 20045 
(202) 638-0579

Attorney for Amicus Curiae



INDEX

Page
Motion for Leave to File Brief Amici Curiae ... 1

Brief Amici Curiae ............................ 1
I. The Practical Impact of the

Panel Decision .....................  2

II. The Decision Conflicts With The 
Decision of Another Panel of 
This Court, With Other Courts of 
Appeals, and Is Inconsistent With 
The Legislative History of The 
Act .................................. 8

A. The Decision Relating 
to The Applicable
Time Period ................. 8

B. The Standard for Establish­
ing a Prima Facie Case .....  10

C. The Legislative History
of The 1972 Act .. .......... 11

Conclusion ..................................... 13

Certificate of Service 14



Table of Authorities

Page
Cases;
Barrett v. United States Civil Service Commission,

69 F.R.D. 544 (D.D.C. 1975) ....................  9
Chewning v. Schlesinger, 471 F.Supp 767

(D.D.C.1979) ................................... 9
*Chisholm v. United States Postal Service,
665 F. 2d 482 (4th Cir. 1981)...................  9,10

Clark v. Chasen, 619 F.2d 1330 (9th Cir. 1980) ... 13
*Davis v. Califano, 613 F.2d 957(D.C. Cir. 1980) 6,8,10
EEOC v. American National Bank, 652 F.2d 1176

(4th Cir. 1981)   11
Franks v. Bowman Transportation Co., 495 F.2d

398 (5th Cir. 1974)............................. 10
Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir. 1975) 13
Hill v. Texas, 316 U.S. 400 (1942)   7
Luevano v. Campbell, 27 FEP Cases 721 (D.D.C.1981) 4
Morton v. Mancari, 417 U.S. 535 (1974)   12
*Neal v. Delaware, 103 U.S. 370 (1881)   7
Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977) 7
Teamsters v. United States, 431 U.S. 324 (1977) 8,10
Wilkins v. University of Houston, 654 F.2d 388

(5th Cir. 1981) ................................ 5
Williams v. T.V.A., 552 F.2d 691 (6th Cir. 1977).. 9

* Cases Principally Relied Upon.



Pa^e

Other Authorities
Bartholet.Application of Title VII to Jobs 

in High Places, 95 Harv. L. Rev. 947
(1982) ...............................  8

Federal Personnel Manual, Chapter 335 .... 3

5 C.F.R. § 713.251 (1977)   9

H. Rep. No. 92-238 (92nd Cong., 1st Sess.,
1971)   12

S. Rep. No. 92-415 (92nd Cong., 1st Sess.
1971)   12



IN THE
UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA

No. 81-1202

MARY P. VALENTINO, et al.
Plaintiffs-Appellants,

v.
UNITED STATES POSTAL SERVICE,

Defendant-Appellee.

Appeal From the United States District 
Court for the District of Columbia

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE ON BE­
HALF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC. and THE FEDERALLY EMPLOYED WOMEN'S LEGAL 

AND EDUCATION FUND, INC.

Movants NAACP Legal Defense and Educational 
Fund, Inc. and Federally Employed Women's Legal 
and Education Fund, Inc. move the Court for permission to 
file the attached brief amicus curiae, in support of the 
petition for rehearing and suggestion for rehearing en 
banc for the following reasons. The reasons assigned 
also disclose the interest of amici.

(1) Movant NAACP Legal Defense and Educational 
Fund, Inc. is a non-profit corporation,



incorporated under the laws of the State of 
New York in 1939. It was formed to assist 
Blacks to secure their constitutional rights 
by the prosecution of lawsuits. Its charter 
declares that its purposes include rendering 
legal aid gratuitously to Blacks suffering 
injustice by reason of race who are unable, 
on account of poverty, to employ legal counsel 
on their own behalf. The charter was approved 
by a New York Court, authorizing the organization 
to serve as a legal aid society. The NAACP 
Legal Defense and Educational Fund Inc. (LDF), 
is independent of other organizations and is 
supported by contributions from the public.
For many years its attorneys have represented 
parties and has participated as amicus curiae 
in the federal courts in cases involving many 
facets of the law.

(2) Attorneys employed by movant LDF have represented 
plaintiffs in many cases arising under Title VII 
of the Civil Rights Act of 1964 in both individual 
cases, e.g., McDonnell Douglas Corp. v. Green, 411 
U.S. 792 (1973); Furnco Constitution Corp. v. 
Waters, 438 U.S. 567 (1978); and in class actions, 
e.g., Albermarle Paper Co. v. Moody, 422 U.S. 405 
(1975); Franks v. Bowman Transp. Co., 424 U.S.

2



747 (1976). They have appeared before this 
Court in a variety of Title VII cases involv­
ing agencies of the federal government both 
as counsel for plaintiffs, e.g. , Foster v .
Boorstin, 561 F.2d 340 (D.C. Cir. 1977), and 
as amicus curiae, Hackley v. Roudebush, 520 
F.2d 108 (D.C. Cir. 1975); Davis v. Califano,
613 F.2d 957 (D.C. Cir. 1980).

(3) Staff attorneys for movant have represented 
plaintiffs in Title VII class action litigation 
pending decision in the District Court for the 
District of Columbia. Thus, they both have a 
direct interest in the standards by which such 
cases are decided and experience and familiarity 
with the issues raised in federal Title VII cases.

(4) Movant Federal Employed Women's Legal and 
Education Fund, Inc. is a non-profit organization, 
incorporated in 1977 under the laws of the District 
of Columbia. It was established to undertake 
legal, educational, and research activities in 
order to eliminate unlawful discrimination in the 
federal government on the basis of race, sex, 
religion, national origin, age, handicap, and 
lawful political affiliation.

3



(5) Movant FEW LEF was established because of the 
special problems federal employees were encounter­
ing in eliminating unlawful employment discrimina­
tion. Faced with myriad laws, rules, and 
regulations,persons complaining had difficulty 
bringing their claims and finding representation.

(6) The Board of Directors of movant FEW LEF 
consists of federal attorneys, EEO officials, 
complainants, other federal employees, and 
attorneys not federally employed who have 
extensive experience in the area of federal equal 
employment opportunity. These Directors have 
been involved in the various aspects of federal 
employee complaint processing and litigation.

(7) Through their extensive participation in Title VII 
cases, amici have acquired substantial expertise 
in issues concerning the burden of proof and the 
application of these standards for deciding Title VII 
class actions, the issues in the present case 
addressed by the attached brief. Therefore, we 
believe that our views on the important questions 
before this Court will be helpful to their resolution.

WHEREFORE, for the foregoing reasons we move that the 
NAACP Legal Defense and Educational Fund, Inc. and the Federally

4



Employed Women's Legal and Education Fund, Inc. be given 
leave to file the attached brief amici curiae.

Respectfully submitted

CHARLES STEPHEN RALSTON 
NAACP Legal Defense and 
Educational Fund, Inc. 
Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Attorneys for Amicus Curiae

VALERIE V. AMBLER
Federally Employed Women's 
Legal and Education Fund,Inc. 

National Press Building 
Washington, D.C. 20045 
(202) 638-0579

Attorney for Amicus Curiae

5



IN THE
UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA

No. 81-1202

MARY P. VALENTINO, et al.,
Plaintiffs-Appeallants, 

v.
UNITED STATES POSTAL SERVICE,

Defendant-Appellee.

Appeal From the United States District 
Court for the District of Columbia

BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC. and the FEDERALLY EMPLOYED WOMEN'S 
LEGAL AND EDUCATION FUND, INC. AS AMICUS CURIAE 
IN SUPPORT OF PETITION FOR REHEARING AND SUGGES­

TION OF REHEARING EN BANC

As discussed in the motion for leave to file 
this brief, amici are civil rights organizations with 
a particular interest in the litigation of class action 
Title VII suits against federal government agencies in 
the District of Columbia and elsewhere. Attorneys 
employed by or associated with amici have been involved 
in cases which have either gone to trial or are in pre­
paration for trial. Thus, the standards they must meet
to establish a prima facie case of disparate treatment



are of particular importance to them.
We urge that the present case be reheard because the 

rules laid down in the panel decision impose nearly insurmount­
able burdens on plaintiffs in light of the typical job structure 
in most federal agencies and the data reasonably available 
to plaintiffs. We also believe that its rules are inconsistent 
with those of prior decisions of the Court, the decisions of 
other courts of appeals, and, indeed, with the legislative 
history of Section 717 of the Equal Employment Opportunity 
Act of 1972 which made Title VII applicable in full to federal 

agencies.
I.

The Practical Impact of the Panel Decision

The panel is critical of all of plaintiffs' evidence 
on the ground that it does not control for qualifications 
related to specific jobs at the Postal Service. It notes 
that the matching up of qualifications to jobs may impose 
an onerous or difficult burden and acknowledges that here 
the burden "was especially difficult to meet." Amici 
respectfully suggest that this was an understatement.
If the intention of the Court is that persons' qualifications 
be matched up job—by—job, then for most federal agencies the 
burden imposed just to make out a prima facie case would 
be so onerous as to make it unfeasible to successfully litigate 

these cases.

2



While it is true that in a typical federal agency there 
are some specialized jobs, such as attorneys, engineers, 
economists, etc., the large bulk of GS, white collar jobs 
are substantially different. They are general professional, 
administrative, and managerial positions for which no specific 
training or educational standards are imposed as minimal 
qualifications. If one examines Manual X-118, which contains 
the qualification standards for jobs in the federal government 
as developed by the Office of Personnel Management, the entry 
level for many of such jobs requires only a general education.

For example, the Multi-Group Standard for Administrative 
Positions, which is used to fill many types of jobs depending on 
the agency, has both general experience and specialized 
experience requirements depending on the grade level at which the 
individual is to be found eligible. Education can substitute 
for general experience so that a person with a college degree 
in any field has the minimum qualifications to enter such a job 
at the GS-5 level with no other experience, education, or train­
ing required. The individual then may progress through accumulat­
ing experience on the job all the way to the GS-15 level both 
without competition, if he or she is in a career ladder series,

1/or with competition if he or she reaches the top of a career ladder.

— Whether or not an agency establishes a career ladder and
how high up it goes (often to the GS-12 level) is totally within 
the agency's discretion. Seev Federal Personnel Manual, Chapter 
335.

3



Many of the jobs in the federal sector have such minimal 
2/

requirements. Thus, in a typical agency a comparison of GS 
level by educational level, i.e., whether or not someone has a 
bachelor's degree, higher than a bachelor's degree, high school 
education, etc., will provide a valid comparison of those persons 
having the minimal qualifications for a large proportion of the 
jobs.

If, then, the Court here is merely indicating that there 
should be some generalized division in a statistical analysis 
between positions which may require specialized degrees (in those 
instances where there are a substantial proportion of such 
positions at an agency)and those that do not, then that may be 
done simply by looking at such job categories independently of 
other jobs. Such an approach would not be particularly burden­
some, could be done when necessary, and, indeed, was done by plaintiff 
here, as explained in the petition for rehearing.

Unfortunately, however,' the Court's decision hints at 
much more. By citing the Fifth Circuit's decision in Wilkins v.

2/ Thus, for supervisory and management positions in areas
involving no specific technical requirements, there are no 
specific education or training qualifications. Rather the 
minimum qualifications are in terms of broadly stated "supervisory 
or managerial abilities" and experience.

Similarly, the 118 jobs covered by the PACE examination have 
as the minimum qualifications for entry at the GS-5 level a college 
degree in any one of many fields, three years professional 
experience, or a combination of experience and education less then 
a degree. The job fields include, inter alia, bond sales _
promotion (GS-011), outdoor recreation specialist (GS-023), history 
(GS-170), personnel management (GS-201), computer specialist trainee 
(GS-334), administrative officer (GS-341), budget and accounting 
(GS-504), paralegal specialist (GS-950), and a variety of claims 
examiners (GS-990-997). See,Luevano v. Campbell, 27 FEP Cases 
721 (D.D.C. 1981) .

4



University of Houston, 654 F.2d 388 (1981), it suggests that
statistical analysis, where there are a large number of dif­
ferent jobs, is inappropriate unless there is a close matching 
of the specific qualifications of each group to the myriad of 
different jobs. In a typical class action against a federal 
agency, however, this would be difficult, to the point of near 
impossibility, to do without unlimited resources on the part 
of plaintiffs.

The usual starting point in one of these cases is to serve 
extensive interrogatories asking for a variety of information.
A typical response of the agency is to proffer computer tapes on 
which have been entered employee data. What is on those tapes 
varies from agency to agency, but it is unusual to find on them 
anything like the particularized information the Court here seems 
to require. Rather, educational information will be limited to 
number of years or level of education, viz., completion of high 
school, some college, college degree, graduate degree, etc.

The use of these tapes by the litigants has obvious, 
advantages, since it expedites greatly discovery and the eventual 
trial of the case. Moreover, many agencies retain on computer 
tapes information relating to employees after they have left. 
Therefore, the tapes provide much data not currently available in 
the employer's personnel files since, unlike private employers, 
federal agencies do not retain the personnel records of departed 
employees. If employees go to another federal agency their 
official personnel files go with them and tracking them down

5



may be difficult in the extreme. If they leave the federal 
service, their OPF's are sent to the federal record center and 
their retrieval also takes time.

It is only from these official personnel files that, in
most instances, the type of data which the Court seems to contemplate

3/
in Valentino may be available, since many agencies also do not 
retain for long periods of time application forms (Standard Form 
171s) on which detailed information relating to type of degree, 
subjects studied, etc., is found, except insofar as copies are 
placed in OPFs.

Assembling this information, organizing it, key punching it, 
computerizing it, and then matching it all up would be a job of 
staggering proportions, and one far beyond anything that plaintiffs 
may be expected to do to establish a prima facie case of discrimina­
tion. If such data can disprove a prima facie case (e.g., if 
the agency can show that it has indeed carefully matched up persons 
with their qualifications), then the employer, with its easier 
access to the data, its ability to retrieve it, and its responsibility 
for it not being present, should bear that burden. Davis v.
Califano, 613 F.2d 957, 964 (D.C. Cir. 1980). Put bluntly, 
the decision here can be read to impose obligations on plaintiffs 
that would price them out of class action litigation against 
federal agencies. If merely establishing a prima facie case,

3/ This type of data is not necessarily to be found even in
OPFs, since agencies do not routinely survey their employees to 
update education data. In one case recently tried by counsel 
for amici, the computer data base had no information regarding 
the education of more than 10% of its employees.

6



let alone being prepared to meet its rebuttal, would cost upwards
of $100,000. or more, neither private plaintiffs nor civil rights
organizations of limited resources will be able to bring more than

4/
a handful of cases.

In short, amici urge strongly that these Title VII cases 
be governed by the same principles laid down by the Supreme Court 
over a hundred years ago when it first established the principle 
of the prima facie case. In Neal v. Delaware, 103 U.S. 370 (1881), 
the Court rejected the state's argument that a defendant challeng­
ing the exclusion of blacks from juries had the burden of showing 
that the pattern shown by the statistical evidence was the result of 
discriminatory actions by the selecting officials. Once the pattern 
had been shown, a prima facie case had been made out, and it was 
the state's burden to prove its contention that the reason for 
the disparities was because blacks were less qualified for 
jury service. 103 U.S. at 397. Indeed the Court has rejected 
reliance on generalized population data that tended to show that 
blacks had higher crime rates, etc., to explain statistical 
disparities on the ground that blacks were less qualified. Hill 
v. Texas, 316 U.S. 400 (1942).

4/ By using existing computer data bases, plaintiffs can
reasonably expect to prepare and present a case at costs of 
up to $50,000, including expert witness fees. If they must 
search out, assemble, and computerize large amounts of additional 
data, expenses could easily double. Of course, as noted by 
this Court in another context, court enforcement of Title VII 
against federal agencies is solely up to private litigants.
There is no EEOC,Department of Justice, or OFCCP to act as 
public attorney-general. Parker v. Califano, 561 F.2d 320,
331 (D.C. Cir. 1977).

7



In Title VII cases also, plaintiffs are entitled to rely 
on the presumption underlying the statute — that in a fair,sex 
or race neutral employment situation, women or minorities would 
be equitably distributed throughout the workforce. Davis v . 
Califano, 613 F.2d at 965; Teamsters v. United States, 431 U.S. 
324, 339 n. 20 (1977). If they are not, the burden should shift 
to the employer to come forward with a legally sufficient 
explanation for the phenomenon. As a recent commentator has 
persuasively argued, these principles apply with the same force 
to higher level white collar positions as they do to blue collar 
industrial jobs. There is no basis in either the statute or the 
realities of the work force to apply different or more stringent 
standards of proof to the former compared to those that have long 
applied to the latter. See, Bartholet, Application of Title VII 
to Jobs In High Places, 95 Harv. L. Rev. 947 (1982).

II.

The Decision Conflicts With The Decision 
nf another Panel of this Court, With Other 
Courts of Appeals,and Is Inconsistent With 
The Legislative History of the Act.

A. The Decision Relating to The Applicable 
Time Period.

The panel opinion applies decisions governing the private 
sector relating to the appropriate time period for filing an 
administrative complaint to federal sector cases. (SI. op., 
pp. 11-12). In so going, it conflicts with the approach taken

8



by the Fourth Circuit in Chisholm v. United States Postal Service,
665 F.2d 482 (4th Cir. 1981). In Chisholm the Court pointed out 
that there is no statutory time established for the filing of an 
administrative complaint for federal employees. Rather, the 
time periods that are established are administrative, and, there­
fore, the court held that the two-year period set out in the 
statute for calculating back pay should govern. See also,
Chewning v. Schlesinger, 471 F. Supp. 767 (D.D.C. 1979). The 
conclusion that the 30-day administrative time period should not 
control the scope of a class action is particularly appropriate 
in light of the history of the federal regulatory scheme. When 
plaintiff here went to an EEO counsellor in June of 1976, there 
was no provision for filing a class discrimination claim 
administratively. See, Barrett v. United States Civil Service 
Commission, 69 F.R.D. 544 (D.D.C. 1975); Williams v. T.V.A.,
552 F.2d 691 (6th Cir. 1977). Despite the order in Barrett it 
was not until April, 1977, that the Civil Service Commission
promulgated regulations allowing the filing of class discrimination 

5/
claims. Therefore, it is inappropriate in a class action case 
to apply a limitation which under the existing regulations governed 
only individual claims.

The panel decision is also inconsistent with the many 
cases in which courts have relied on historical evidence to find

5/ The procedures permitted class-type claims to be raised
by organizations as "third-party" allegations of discrimimation, 
5 C.F.R. § 713.251 (1977). There were no time limits in which 
such claims had to be filed. Back pay and other corrective 
action could be obtained.

9



class-wide discrimination. See, e.g., Teamsters v. United
States, 431 U.S. 324, 337-338, 341, n.21 (1977)(in case filed 
in 1971, evidence relating to hiring practices as far back as 
1950 introduced, including hiring patterns beginning in 1965 
(n. 21), and testimony of individual minorities going back to 
1967; Franks v. Bowman Transportation Co., 495 F.2d 398, 410-11 
(5th Cir. 1974), rev'd on other grounds, 424 U.S. 747 (1976) (EEOC 
complaint filed 1968; evidence going back to July 1965 —  the 
effective date of Title VII —  relied upon); Chisholm v. U.S.P.S., 
516 F. Supp. 810, 819-822, 824-25, 852-857 (W.D.N.C. 1980), aff'd, 
665 F.2d 482 (4th Cir. 1981) (complaint filed 1972; evidence going 
back to 1962 relied upon).

B. The Standard for Establishing a Prima 
Facie Case.

Amici urge that the approach taken by the panel in this 
case is fundamentally at odds with that taken in Davis v. Califano, 
613 F.2d 957 (D.C. Cir. 1980). The Court focuses on one phrase 
in Davis, but fails to follow its general approach, which is that 
a detailed explanation of differences in promotion rates, etc., 
should be the burden of the employer, which has full access to the 
information bearing on such issues. 613 F.2d at 964. As we 
have discussed above, the imposition of the burden on plaintiff at 
the point of establishing a prima facie case is both inequitable 
and unrealistic.

-10



The panel decision here essentially holds that the statistical 
evidence showing a maldistribution among grades of men and women 
at the Postal Service is entitled to little or no weight. This is 
also contrary to Davis, which specifically holds that such statis­
tics, which it terms "Category One," are probative and relevant, 
even when specialized occupations are combined with other jobs.
613 F.2d at 960, 963, 964, n. 43, and 964-965. It is only for 
the "Category Two" promotion statistics that Davis holds it was 
necessary to compare those with "minimal objective qualifications.
The panel decision's approach is also inconsistent with decisions 
of other circuits such as EEOC v. American National Bank, 652 
F.2d 1176 (4th Cir. 1981), which holds that such statistics establish 

a prima facie case.

C. The Legislative History of the 1972 Act.

The panel's denigration of general grade distribution data 
also fails to recognize that it was precisely this type of evidence 
that led Congress to conclude that Title VII had to be amended by 
the inclusion of § 717 in the first place. Thus, Congress found 
in the concentration of blacks and women in the lower grade levels 
evidence both of employment discrimination and of failure of 
existing programs to bring about equal employment opportunity.

The House Report stated:

Statistical evidence shows that minorities 
and women continue to be excluded from large 
numbers of government jobs, particularly at the 
higher government levels . . . .

11



This disproportionate distribution of 
minorities and women throughout the Federal 
bureaucracy and their exclusion from higher 
level policy-making and supervisory positions 
indicates the government's failure to pursue 
its policy of equal opportunity.

H. Rep. No. 92-238 (92nd Cong., 1st Sess., 1971) p. 23. The
House Report went on to refer to the "entrenched discrimination
in the Federal Service," based on these same statistics. Id.
at 24.

The Senate report also included statistics which showed 
the concentration of women and minorities in the lower grade 
levels, and concluded that this indicated "that their ability
to advance to the higher grade levels has been restricted."6/
S. Rep. No. 92-415 (92nd Cong., 1st Sess.) pp. 13-14. The 
Supreme Court cited the language of the House Report quoted 
above in its discussion of the reasons why § 717 was passed.
Morton v. Mancari, 417 U.S. 535, 546, at n. 22 (1974).

As this Court has itself held, in 1972 Congress was 
deeply concerned with the "government's abysmal record in minority

6/ Thus, the Senate Report set out a table with data strikingly
¥imilar to that discounted here, showing the distribution by 
percentages of women by grade level in federal agencies:

GS-1 through GS-6 ..................  76.7%
GS-7 through GS-12 .................  21.7%
GS-13 and above ....................  1.1%

A similar table was set out giving the grade distribution of 
minorities. Id. at 13.

12



employment" and with the "rooting out of every vestige of
employment discrimination within the federal government." 
Hackley v. Roudebush, 520 F.2d 108, 124, 136 (D.C. Cir. 1975). 
See also, Clark v. Chasen, 619 F.2d 1330, 1332 (9th Cir. 1980). 
These concerns sprung directly from the statistics this Court 
now rejects. Surely if such evidence was sufficient to 
convince Congress that § 717 was necessary in the first place, 
it cannot now be held irrelevant or of little weight to the 
proof of a violation' of the same law.

Conclusion
For the foregoing reasons,rehearing should be granted 

and the decision below reversed.

CHARLES STEPHEN RALSTON
NAACP Legal Defense and Educational 

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

Attorneys for Amicus Curiae

VALERIE V. AMBLER
Federally Employed Women's 
Legal and Education Fund,Inc. 
National Press Building 
Washington, D.C. 20045 
(202) 638-0579

Attorney for Amicus Curiae

13



Certificate of Service

I hereby certify that copies of the foregoing 
motion and brief have been served on all the parties 
herein by depositing the same, first class postage pre­
paid, in the United States mail addressed as follows:

Stephen N. Shulman, Esq.
11 Dupont Circle, N.W. 
Washington, D.C. 20036
William H. Briggs, Jr.
Assistant United States Attorney 
U.S. Courthouse
3rd and Constitution Ave., N.W. 
Washington, D.C. 20001

Done this 26th 
day of April,1982.