St. Peter v Alexander Brief Amicus Curiae

    IN THE

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-2066

VIRGINIA M. ST. PETER,
Plaintiff-Appellant, 

- v -
CLIFFORD ALEXANDER,

Defendant-Appellee.

MOTION FOR LEAVE TO FILE BRIEF OF THE 
NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AS AMICUS CURIAE, AND 

BRIEF AMICUS CURIAE

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 

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

Attorneys for Amicus Curiae.



INDEX

Page

Motion For Leave To File Brief
Amicus Curiae .......................  1

Argument:
The District Court Failed To Follow
Properly The Decisions Of The Supreme
Court In McDonnell Douglas v. Green
and Furnco Construction Co. v. Waters 1

Conclusion ..............................  9

Certificate of Service .................  10

Table of Cases
Alexander v. Louisiana, 405 U.S. 625 (1972) 6
Arlington Heights v. Metropolitan Housing

Authority, 429 U.S. 252 (1977)   6
Castaneda v. Partida, 430 U.S. 482 (1977) 6
Davis v. Califano, ___F.2d ___, 21 F.E.P.

Cases 272 (D.C. Cir. 1979) 8
Dothard v. Rawlinson, 433 U.S. 321 (1977) 5
Furnco Construction Co. v. Waters, 438 

U.S. 567 (1978) passim



Page

Griggs v. Duke Power Co., 401 U.S. 424 
(1971) ............................

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

Olson v. Philco-Ford, 531 F.2d 474
(10th Cir. 1974) ................

Personnel Administrator of Massachusetts 
v. Feeney, U.S. , 600
L. Ed. 2d 870 (1979) ............

Teamsters v. United States, 431 U.S. 324 
(1977) ...........................

4

passim

5

8

2, 3



IN THE
UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-2066

VIRGINIA M. ST. PETER,
Plaintiff-Appellant,

- v -
CLIFFORD ALEXANDER,

Defendant-Appellee.

MOTION FOR LEAVE TO FILE BRIEF AMICUS 
CURIAE ON BEHALF OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC.

Movant NAACP Legal Defense and Educational Fund,
Inc., respectfully move^ the Court, pursuant to Rule 29 F.R.A. 
Proc., for permission to file the attached brief amicus curiae, 
for the following reasons. ( The reasons assigned also disclose 
the interest of the amicus.

(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 render­
ing legal aid gratuitously to Blacks suffering in­
justice by reason of race who are unable, on account 
or 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 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. 747 (1976). They have 
appeared before this Court in a variety of Title VII 
cases involving 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

2



amicus curiae, Hackley v. Roudebush, 520 F.2d
108 (D.C. Cir. 1975); Davis v. Califano, ____
F - 2d ______ , 21 F.R.P. Cases 272 (D.C. Cir.1979).

(3) Through their extensive participation in Title VII
cases, attorneys for amicus have acquired substantial 
expertise in issues concerning the burden of proof 
and the application of the standards for deciding 
individual 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 the Court will be help­
ful in their resolution.
WHEREFORE, for the foregoing reasons we move that the 

NAACP Legal Defense and Educational Fund, Inc. be given leave 
to file the attached brief amicus curiae.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON

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

Attorneys for Amicus Curiae

3



IN THE
UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-2066

VIRGINIA M. ST. PETER,
Plaintiff-Appellant, 

-v-
CLIFFORD ALEXANDER,

Defendant-Appellee.

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

ARGUMENT
The District Court Failed to Follow Properly The 
Decisions of the Supreme Court in McDonnell Douglas 
v. Green and Furnco Construction Co. v. Waters.

As indicated in the motion of leave to file this 
Brief, the Legal Defense Fund is concerned that the proper 
legal standards be applied to the decision of Title VII cases, 
whether individual or class action, so that the district courts 
are consistent in their treatment of these important cases.
Only in this way will Title VII continue to be a meaningful 
remedy against employment discrimination. Simply put, the 
decision of the district court in the present case, if allowed



to stand, would emasculate Title VII by erecting an absolute 
defense in virtually all hiring or promotion cases. Moreover, 
the decision fails to properly apply the standards developed 
by the Supreme Court in McDonnell Douglas Corp, v. Green, 411 
U.S. 792 (1973), and Furnco Construction Company v. Waters,
438 U.S. 567 (1978), by which employment discrimination cases 
are to be decided.

Although the district court cited McDonnell Douglas
Corp. v. Green, it totally failed to apply that case properly
by confusing the making of a prima facie case of discrimination
with what constitutes a valid rebuttal to such a case. McDonnell
Douglas established basic principles for deciding an individual
case of discrimination in a Title VII case involving a claim of
disparate treatment, as opposed to disparate impact. As explained
by the Court in Teamsters v. United States, 431 U.S. 324, 335,
n.15 (1977), a disparate treatment case requires proof of dis-

1/criminatory motive, while a disparate impact case does not.

1/ 'Disparate treatment* * such as alleged in the present 
case is the most easily understood type of discrimina­
tion. The employer simply treats some people less 
favorably than others because of their race, color, 
religion, sex, or national origin. Proof of discrimi­
natory motive is critical, although it can in some 
situations be inferred from the mere fact of differences 
in treatment. See, e.g., Village of Arlington Heights 
v. Metropolitan Housing Dev. Corp. 429 U.S. 252, 265- 
266.

* * * *
Claims of disparate treatment may be distinguished 

from claims that stress 'disparate impact.' The latter 
involve employment practices that are facially neutral 
in their treatment of different groups but that in fact

2



The Court has also made clear, however, that a finding of a
discriminatory motive does not require evidence of overt or
subjective racism or sexism. Rather, it can be based on
objective evidence from which an inference of discrimination

2/
may be drawn.

McDonnell Douglas used these principles to establish 
a method for analyzing individual disparate treatment cases.
First, the plaintiff has the burden of establishing a prima 
facie case of discrimination. Second, the burden then shifts 
to the employer to prove "that he based his employment decision 
on a legitimate consideration, and not an illegitimate one such 
as race " (Furnco Constrution Corp. v. Waters, 438 U.S. at 577), 
or, in other words, the employer must "articulate some legitimate, 
nondiscriminatory reason for the . . . rejection " (McDonnell
Douglas v. Green, 411 U.S. at 802). Third, if this burden is 
met, the plaintiff then has the opportunity to show that the

1/ (cont'd)
fall more harshly on one group than another and cannot 
be justified by business necessity. Proof of discri­
minatory motive, we have held, is not required under 
a disparate impact theory. Compare, e.g., Griggs v. 
Duke Power Co., 401 U.S. 424, with McDonnell Douglas 
Corp. v. Green, 411 U.S. 792, 802-806.

2/ As the Supreme Court said in Teamsters:
Although the McDonnell Douglas formula does not 
require direct proof of discrimination,it does demand 
that the alleged discriminatee demonstrate at least 
that his rejection did not result from the two most 
common legitimate reasons on which an employer might 
rely to reject a job applicant: an absolute or relative 
lack of qualifications or the absence of a vacancy in

3



proffered reason is a pretext for discrimination.
McDonnell Douglas further articulated the elements 

of a prima facie case in the context of the facts of that
37hiring case. The plaintiff must show that: (1) he belongs

to a minority; (2) he applied for an available job for which
he was qualified; (3) he was rejected; and (4) the position
remained open and the employer continued to seek applicants.

The present case is basically a disparate treatment 
4/

case, and therefore should be analyzed under McDonnell Douglas 
-Furnco standards. As noted in Teamsters, the plaintiff was 
required only to show that there was a position for which she

2/ (cont'd)
The job sought. Elimination of these reasons for 
the refusal to hire is sufficient, absent other 
explanation, to create an inference that the 
decision was discriminatory.

431 U.S. at 458, n.44.
3/ The Court was careful to point out that:

The facts necessarily will vary in Title VII 
cases, and the specification above of the 
prima facie proof required ... is not necessarily 
applicable in every respect to differing factual 
situations.

411 U.S. at 802, n.13.
4/ Teamsters notes that either a disparate treatment or 
disparate impact theory "may ... be applied to a particular 
set of facts." 431 U.S. 335 n.15. The present case has 
elements of a disparate impact case. The original requirement 
that the selectee be a West Point graduate would clearly have 
had a disparate impact on women, making the case like Griggs 
v. Duke Power Co., 401 U.S. 424 (1971) and Dothard v. Rawlinson,

4



applied, and that she had the basic qualifications necessary 
for the job and was not less qualified than the male selectee,
i.e., that there was not "an absolute or relative lack of

5/
qualifications" (431 U.S. 358, n.44). Put in McDonnell 
Douglas terms, once plaintiff showed that: (1) she belonged
to a protected class; (2) she applied and was qualified for 
an available job; (3) she was rejected; and (4) a male was 
chosen, the burden to come forward with a legitimate, nondis- 
criminatory reason shifted to defendant. Indeed, plaintiff 
did more than required, since she demonstrated, and the dis­
trict court so held, that she was more qualified than the 
male selected.

Thus, the district court was in clear error when it 
held that a prima facie case had not been made. As a result 
it failed to apply the proper standard for evaluating the 
defendant's explanation for its action. As stated in Furnco

4/ (cont'd)
433 U.S. 321 (1977). Moreover, the selecting officials' 
criteria that the selectee be "clean-cut" and be able to 
deal with Congressmen "buddy-to-buddy" would necessarily 
favor men over women.
5/ Thus, the holding of the decision relied upon by the 
Court below, Olson v. Philco-Ford, 531 F.2d 474 (10th Cir.
1974),holding that it is not enough for the woman to show that 
she was equally qualified as the male selectee is inconsistent 
with McDonnell Douglas as explained by Teamsters.

5



there must be "proof of a justification which is reasonably-
related to the achievement of some legitimate goal." 438 U.S.

6/
at 578. The employer-defendant here totally failed to meet 
this burden. The district court itself found that there was 
a failure to follow proper procedures and that "the selection 
process . . . resembled nothing so much as the game of "enie, 
meenie, minie, moe; with the results being of about that qua­
lity." Certainly, the arbitrary selection of the least quali­
fied person for an important position can hardly be related to 
any "legitimate goal" of an employer.

The district court's failure to apply a proper 
McDonnell Douglas analysis led it to a number of incorrect 
conclusions. First, it failed to recognize that a failure to 
follow proper procedures and a bad substantive result are in 
themselves indicia of discriminatory intent. See, Arlington

6/ The test for evaluating the sufficiency of a rebuttal of a 
prima facie case has been stated in a variety of contexts.
Thus, in jury discrimination cases it must be shown that "per­
missible racially neutral selection criteria and procedures" have 
been used. Alexander v. Louisiana, 405 U.S. 625, 632 (1972) 
(emphasis added), or by "evidence in the record about the way 
in which the commissioners operated and their reasons for 
doing so." Castaneda v. Partida, 430 U.S. 482, 500 (1977). 
However phrased, it is clear that the reasons must be permis­
sible and legitimate hs well as nondiscriminatory.

6



Heights v. Metropolitan Housing Authority, 429 U.S. 252,,267 
(1977), Thus, such factors necessarily cannot rebut a prima 
facie case.

Second, and most important, the reasoning that 
because some males ware also adversely affected by the defend­
ant's arbitrariness, there was no discrimination, would completely 
destroy the effectiveness of Title VII. In virtually all hiring 
or promotion situations, particularly in the federal government, 
white males in addition to the one selected apply for positions. 
Under the logic of the district court, in every one of those 
cases there would be an absolute defense to a charge of discri­
mination since there would be some white males denied the job 
along with women or racial minorities. The problem with the 
district court's approach is that it failed to focus on the 
rights of the members of the protected class. While it is true 
that the two white males denied the job were not discriminated

7 / “Departures from the normal procedural sequence also 
might afford evidence that improper purposes are 
playing a role. Substantive departures too may 
be relevant^ particularly if the factors usually 
considered important by the decision maker 
strongly favor a decision contrary to the one 
reached." Ibid.

7



against because of their sex, that in no way leads to the
9/

conclusion that the woman was not.
Finally, the district court's conclusion that there 

was nothing wrong with the use of subjective criteria in this 
case is completely inconsistent with the recent decision of 
this Court in Davis v. Califano, ___ F.2d ____ , 21 F.E.P.

8/

Cases 272, 279 (D.C. Cir. 1979). There, this Court noted that 
the employer's:

... promotion procedures are highly suspect and must 
be closely scrutinized because of their capacity for 
masking unlawful bias. The "lack of meaningful

8/ Another aspect of the case that was overlooked by the dis­
trict court indicates that there may indeed have been a discri­
minatory reason for the failure to give proper consideration 
to one of the highly qualified males. As brought out during 
the trial, the original position announcement specified that 
the person to fill the position should be a West Point graduate 
under 40 years of age. Because those requirements were recog­
nized by the Personnel Department to be discriminatory on the 
grounds of both sex and age, they were struck from the announce­
ment itself. However, the person selected for the position was, 
in fact, a male under the age of 40. Ms. St. Peter and one of 
the male applicants were both over 40. Thus, it is possible 
that his non-selection was also based on a reason that was not 
non-discriminatory, and that therefore could not be the basis 
for a rebuttal of a prima facie case of discrimination. The 
other male applicant testified that he did not have a strong 
interest in the position in question.
9/  The district court's reliance in Personnel Administrator of 
Massachusetts v. Feeney, U.S. , 60 L.Ed.2d 870 (1979),
is completely misplaced. That case in no way purports to hold 
that the simple fact that some whites or males have been adverse­
ly affected by an employment practice along with blacks or women 
means that there can be no discriminatory intent. To give the 
clearest example, if an employee deliberately adopted a college 
degree requirement knowing it would prevent a great number of 
blacks from obtaining a job, it would be no defense to a Title 
VII case to show that some whites were also eliminated.

8



standards to guide the promotion decision, 
whereby there is some assurance of objec­
tivity ... encourage[s] and foster[s] 
discrimination."

Ibid. As the Supreme Court held in McDonnell Douglas, the 
overriding purpose of Title VII is:

efficient and trustworthy workmanship 
assured through fair and [sexually] neutral 
employment personnel decisions. In the 
implementation of such decisions, it is 
abundantly clear that Title VII tolerates 
no ... discrimination [based on sex], subtle 
or otherwise.

411 U.S. at 801. The net result of the decision below is to 
tolerate discrimination by permitting arbitrary, standardless, 
and manifestly unfair personnel decisions that can mask unlawful

For the foregoing reasons, the decision of the

bias.
Conclusion

district court should be reversed.
Respectfully submitted

JACK GREENBERG 
JAMES M. NABRIT, III
CHARLES STEPHEN RALSTON 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Amicus Curiae

9



CERTIFICATE OF SERVICE

I hereby certify that I have served copies 
of the foregoing Brief Amicus Curiae by depositing 
copies of the same in the United States mail, first 
class postage prepaid, addressed 'to counsel for the 
appellant and appellee as follows:

February j

Ronda L. Billig, Esq.
Mark T. Wilson, Esq.
2210 R. Street, N.W.
Washington, D.C. 20008
John A. Terry, Esq.
Assistant United States Attorney 
3rd. & Constitution Avenue 
Washington, D.C. 20001
1980