Young v. Lehman Petition for Writ of Certiorari

    No.

I n the

^trprrmr (tort nf %  Imtrfc Butrs
October Term, 1984

Margaret Y oung,

v.
Petitioner,

J ohn L ehman

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

FOR THE FOURTH CIRCUIT

J oan W ilbon 
Wilbon & Killingham 

Suite 405
1511 K  Street, N.W. 
Washington, D.C. 20005 
(202) 737-7458

J. L eV onne Chambers 
R onald L. E llis 
E rio S chnapper*

NAACP Legal Defense & 
Educational Fund, Inc. 

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Petitioner 

* Counsel of Record



QUESTIONS PRESENTED

1 .  * Did the court of appeals exceed 

its a u t h o r i t y  under Rule 52, F.R.C.P., by 

re ve rsi ng  a factual finding of in tentional 

d i s c r i m i n a t i o n  mere ly because it "d i s a ­

greed" with the distri ct court and without 

even pu rp or ti ng  to find "clear error"?

2 .  * D o e s  R u le  5 2 ( a ) ,  F . R . C . P . ,

f o r b i d  the c o u r t s  of appeals from r e v i e w ­

ing the c r e d i b i l i t y  findings of a trial 

judge? \

3 .  ** Did the c o u r t  of a p p e a l s

c o r r e c t l y  hold that Title VII permits an 

e m p l o y e r  to d i s c r i m i n a t e  on the basis of 

race among egua lly  gualifi ed appli can ts?

*A s i m i l a r  qu es ti on  is already pending 
b e f o r e  t h is  Court in Anderson v. City of 
B e s s e m e r  C i t y , No. 83-1623, and Miller v . 
Mercy H o s p i t a l , No. 83-1629.

**A s i m i l a r  q u e s ti on  is already pendinq 
b e f o r e  th i s  Court in Anders on v. City of 
B e s s e m e r  City, No. 83-1623, Brief for 
P e t i t i o n e r ,  p. 47-49. The court of 
a p p e a l s  in the instant case e x pr es sl y 
relied on its earlie r de cis ion  in Anderson 
( 1 8 a ) .

l



PARTIES

The parties to this pr oc ee di ng are

M a r g ar et  Young and John Lehman, Se cr et ary , 

De p a r t m e n t  of the Navy.



TABLE OF CONTENTS

Page

Que st ion s Presented .........................  i

Parties ................................    ii

Table of A u th or it ie s .......................  iv

Op in io ns  Relow ...............................  1

J u r i s d ic ti on  .................    2

S t a t u t e  and Rule Involved ................  2

S t at em en t of the Case ................  3

Reasons for Granting the Writ ........... 7

Co nc lu si on  ....................................  15

APPENDIX

Opin ion  of the Court of Appeals,
Novemb er 5, 1984 .....................  1a

Distri ct Court Findin gs of fact 
and C o nc lu si on s of Law,
May 20, 1983 ............................. 20a

i i i



TABLE DF AUTHORITIES

Oases Paqe

An de rs on  v . City of Be sse mer  City,
No.83-1623 . . . . . . i, 7, 0, 14

A n d e rs on  v. City of Bessem er City,
717 F .2d 149 (4th Cir. 1983 ) 12 , 1 3

Brown v. P a r k e r - H a n n i f i n  Corp.,
436 F .2d 1407 (10th Cir. 1984) 14

Casill as v .United States, 335 F.2d
78 (9th Cir. 1 9 8 4 ) .............  14

C o l o n - S a n c h e z  v. Marsh, 733 F.2d
78 (10th Cir. 1 9 8 4 ) ........... 14

EEOC v. Federal Reserve Board, 698
F .2d 633 (4th Cir. 1983 ) . . .  12

Mason v. Conti nen tal  Illinois
National Bank, 704 F.2d 361
(7th Cir. 1 9 8 3 ) ................  14

Miller v. Mercy Hospital,
No. 83-1629 ................  1 , 7 , 10

Pullman St an da rd  Co. v. Swint,
456 IJ.S. 273 (1 981 ) . . . .  3, 8, 9

Texas De pa rtm ent  of Communi ty
Affa irs  v. Burdine, 450 U.S.
248 ( 1 9 8 0 ) ...................... 6 , 1 3

Wa in wr iq ht  v. Witt, 53 U.S.L.W.
4108 ( 1 9 8 5 ) ...................  11, 12

IV



Other Au th or i t i e s  Page

28 U.S.C. § 1 254( 1 ) ...................  2

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

Title VII, Civil Rights Act
of 1964 . . . . . i, 11, 12, 13, 14

Rule 52, Federal Rules of
Civil Procedu re . . . .  i, 3, 8, 9

v



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1984

MARGARET YOUNG,

Petitioner, 

v .

JOHN LEHMAN

PETITI ON FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

P e t i t i o n e r  Margaret Young r e s p e c t ­

f u l l y  p r a y s  that a Writ of Cert iorari 

i s s u e  to r e v i e w  the judgme nt and opinion 

of the U n i t e d  Sta tes  Court of Appeals for 

the fo ur th  circuit entered in this 

pr oc ee din g on November 5, 1984.

OPINIONS RELOW

The decisi on of the court of appeals 

is r e p o r t e d  at 748 F.2d 194, and is set 

out at pp. Ia-19a of the Appendix. The

No. ____



2

d i s t r i c t  co ur t' s Fi ndi ngs  of Fact and 

C o n c l u s i o n s  of Law, which are not r e p o r ­

ted, are set out at pp. 20 a- 33a  of the 

Append ix .

JU R I S D I C T I O N

The judgme nt of the court of appeals 

wa s e n t e r e d  on No vem ber  5, 1984. J u r i s ­

d i c t i o n  of this Court is invoked under 28 

U.S.C. § 1254(1).

STAT UTE  AND RULES INVOLVED

Se c t i o n  703(a) of Title VII of the 

1 9 6 4  Civil Rights Act, 42 U.S.C. § 

20 00 e-2 (a ), pr ovi des  in per tin ent  part:

It shall be an unlawful empl oy men t 
pra c ti ce  for an em pl oy er  -

(1) to ... d i s c r i m i n a t e  against 
any individual with respect to 
his co mp en sat io n, terms, 
c o n d i t i o n s ,  or pr iv ile ge s of 
e m pl oy me nt , becau se of such 
in di v i d u a l ' s  race, color, 
religion, sex, or national 
o r i g i n . . .



3

Rule 52(a), Federal Rules of Civil 

Pr oced ure, provides in pertine nt  part:

I n all action s tried upon the facts 
w i t h o u t  a jury ... the court shall 
find the facts spe ci a ll y and state 
s e p a r a t e l y  its c o nc lu si on s of law 
thereon.... Findin gs of fact shall 
not be set aside unless clearl y 
e r r o n e o u s ,  and due regard shall be 
given to the op po rt u n i t y  of the trial 
c o u r t  to judge of the cr ed ib i l i t y  of 
the witnesses ....

ST ATE MEN T OF THE CASF 

This case presen ts pre cis el y the sort 

of n a r r o w  is s u e  of hist orical fact which 

Rule 52 and Pullman St and ard  Co. v. Swint, 

45 6 U.S. 273 (1981), con te m pl at e will

o r d i n a r i l y  be resolved by a district 

c o u r t .

In November, 1976, Navy Dep ar tme nt 

o f f i c i a l s  a n n o u n c e d  the existen ce  of the 

v a c a n t  s u p e r v i s o r y  position which is the 

s u b j e c t  of this dispute. Dn the same day 

as t h i s  an n o u n c e m e n t ,  and without any 

p r e t e n s e  of c o n s i d e r i n g  other possible



4

a p p l i c a n t s ,  the po si ti on  was given on a 

" t e m p o r a r y "  basis to Ch ri st o p h e r  Iekel, a 

white de pa rt me nt  employee. Iekel remained 

in t h i s  t e m p o r a r y  position, in admitted 

v i o l a t i o n  of Civil Se rv ic e regulations, 

for a p p r o x i m a t e l y  4 months. Iekel and 

s e v e r a l  o t h e r s  applied for a permane nt 

p r o m o t i o n  to the position. Among the 

a p p l i c a n t s  was pet itioner, a black Navy 

D e p a r t m e n t  e m p l oy ee  with several years 

more ex pe ri en ce  than Iekel.

A s e l e c t i o n  panel was duly co nv ene d 

to c o n s i d e r  these applica ti ons , and in 

J a n u a r y ,  1977, the panel re co mm en de d that 

p e t i t i o n e r  be given the promotion. 

A p p l i c a n t  Iekel was rated no better than 

t h i r d .  R a t h e r  than ap po in ti ng pe ti ti one r 

to the position, Navy De pa rt men t off ic i al s 

t o o k  the a p p a r e n t l y  un p r e c e d e n t e d  step of 

r e j e c t i n g  all of the re co mm end ed  ratings, 

and d i s b a n d i n g  the original panel. A 

s e c o n d  panel was then c o ns ti tu te d to 

review the same app lic ati ons . this second



5

panel if:sued ratings c o m p le te ly  different 

t h an  its pr ed ec es so r,  ranking I ekel 

f i rs t,  and l o w e r i n g  p e t i t i o n e r ’s rankinq 

to s i x t h  out of eight applicants. The

s a m e  o f f i c i a l s who had rejected the

r e c o m m e n d a t i o n s o f the first panel

p r o m p t l y  a c c e p t e d  the r e c o mm en da ti on s of 

the second panel, and awarded the position 

to Iekel .

P e t i t i o n e r  c o mm en ce d this Title VII 

a c t i o n  in the United Stat es district 

c o u r t ,  a l l e g i n g  that she was denied the 

d i s p u t e d  p r o m o t i o n  becau se of her race. 

The c e n t r a l  qu es ti on  at trial was why the 

d e f e n d a n t  o f fi ci al s had chos en to hire 

Ie k e l  r a t h e r  than petitioner. The Navy 

urqed that the original panel ratings were 

d e f e c t i v e ,  and that Iekel was ulti ma tel y 

s e l e c t e d  b e c a u s e  he was better qua lified 

t h a n  p e t i t i o n e r .  The district judge 

r e j e c t e d  th is ex pl an a t i o n  as "unwort hy  of 

c o n c l u d e d " .  (32a). The district court

f o u n d  that the rec ommend at ion of the



6

o r i g i n a l  p a n e l  had been reject ed be ca use  

N a v y  o f f i c i a l s  had de cid ed in advanc e to 

g i v e  the p o si ti on  to Iekel. (28a) The 

t r i a l  c o u r t  c h a r a c t e r i z e d  the official 

e x p l a n a t i o n  for the rej ection of that 

f i r s t  r e c o m m e n d a t i o n  as "a poorly d i s ­

g u i s e d  e f f o r t  to cover the sel ec t in g 

o f f i c i a l ' s  desir es to have Mr. Iekel 

app oi n te d to the po si ti o n . . . . "  (29a)

The fourth circuit reversed. The 

a p p e l l a t e  co ur t did not find any mi st ake  

of law in the di str ict  court opinion, 

i n s t e a d  c o m m e n d i n g  the trial judge for 

c o r r e c t l y  applyi ng the sta nda rds  announc ed 

i n T e x a s  D e p a r t m e n t  of Com mu n it y Affairs 

v. B u r d i n e , 450 U.S. 248 (1980). (9a) Nor 

did the a p p e l l a t e  court hold that the 

tr i a l  j u d g e ' s  factual findings were clear 

e r r o r .  Rather, the app el lat e panel, 

h a v i n g  c o n d u c t e d  its own review of the 

r e c o r d ,  s t a t e d  simply that it "disa gre ed"  

w i t h  the trial court 's finding of d i s ­

cr im in at io n.  (10a, 14a).



7

REASONS FOR GR ANT ING  THE WRIT

This case presen ts the most recent

e x a m p l e  of the practi ce of app ellate

fa ct fin di ng which in ex pl ic ab ly  remains

(the n o r m  in the fourth circuit and which

is d e s c r i b e d  in detail in the cert io rar i

p e t i t i o n s  in Anders on v. City of Bessem er

C i t y , No. 83-1623, and Miller v. Mercy

H o s p i t a l , No. 83-1629. Here, as in

A n d e r s o n , Miller and at least 10 other

c a s e s  in the last three years, the fourth

c i r c u i t  r e v e r s e d  a trial court finding of
1

inte nt ion al  dis cri mi na ti on . Here, as in 

M i l l e r , the fourth circuit exp re ssl y 

o v e r t u r n e d  a trial judge 's de te rm i n a t i o n  

as to whether defense testimony was worthy 

of c r e d e n c e .  Here, as in Anders on the 

f o u r t h  c i r c u i t  based its reversal in part 

on the do ctrine, adhered to in that 

c i r c u i t  only, that the pl ai nt if f in a 

T i t l e  VII case must prove that he or she 

-
Petiti on for Writ of Certiorari, Anders on 
v. City of Bessemer C i t y , p p . 14-17.



8

is b e t t e r  q u a l i f i e d  than the su cc es sf ul

a p p l i c a n t .  The panel in this case

e x p r e s s l y  c i t e d  and relied on the fourth

c i r c u i t ' s  e a r l i e r  de ci si on  in An de rso n 
2

itself. (18a)

In An de rs on  the fourth circuit gave 

at l e a s t  lip se rvi ce to the limited 

s t a n d a r d  of rev i ew  which res tr ict s 

a p p e l l a t e  r e c o n s i d e r a t i o n  of di st ric t 

court fa ct finding. Here there was no such 

p r e t e n s e .  The panel in the instant case 

did not p u r p o r t  to comp ly either with the 

s t r i c t u r e s  of Rule 52 or with the 

c o m m an ds  of Pullman S t a n d a r d  Co. v. S w i n t , 

45 6 U.S. 273 (1982). The court of

a p p e a l s  op in ion  in the instant case

In this case, as in A n d e r s o n , the panel 
concluded that the pl ai n t i f f  was rejected 
for a "reason" never ac tua ll y a r ti cu la te d 
by any defense witness at trial. The 
Fourth Circuit here sug ges te d pe ti ti on er  
was less qualified be cau se she was guil ty 
of " n e a r l y  30% ab se nte eis m in 1976." 
(17a). Pe ti ti on er  had sus ta ine d a work 
related injury in 1976, and the def en d an t 
n e v e r  s u g g e s t e d  at trial the re sul ti ng 
medical leave was or could r e a s on ab ly  have 
been amonq the j u s t i f i c a t i o n s  for de ny ing  
her the promotion.



9 -

c o n t a i n s  not a single ref erence to S wint 

or R u le  52, and does not assert that the 

d i s t r i c t  c o u r t ' s  factual findings are 

c l e a r l y  er ro ne ou s.  The phrase "clear 

e r r o r "  a p p e a r s  nowhe re in the opinion 

b e l o w .  The fourth circuit reversed the 

f a c t u a l  findings in this case solely 

b e c a u s e  it " d i s a g r e e [ d ] "  with the trial 

j u d g e .  (10a, 14a) The de ci si on  of the 

c o u r t  of appeals here is not merely 

i n c o n s i s t e n t  with Rule 52 and S w i n t ; i t 

s t a r k l y  i l l u s t r a t e s  the sort of app ellate 

f a c t f i n d i n g  which has become an accepted 

practi ce in the fourth circuit.

The re soluti on of this case n e c ­

e s s a r i l y  t u r n e d  largely on the demean or 

and c r e d i b i l i t y  of the Navy off ic i al s who 

t o ok  the stand to explain why they had 

rejected the original panel re co mm en da ti on  

that pe tit io ne r be promoted. The district 

j u d g e  fo un d t h e i r  e x p l an at io ns  "unworthy 

of credence". (32a) The court of appeals 

" d i s a g r e e f d ] " with t. ti a t assessment,



10

i n s i s t i n g  " [ w ]e per c ei ve  no su ff ic ie nt

reason to su bs ti tu te  our ju dg men t for that

of the N a v y . . . . "  (14a) The district

j u d g e ,  h a v i n g  heard the te sti mo ny of the

o f f i c i a l  r e s p o n s i b l e  for con ve n in g a

s e c o n d  p a n e l ,  co nc l u d e d  that his story

" w a s  a p o o r l y  d i sg ui se d effort to cover

the s e l e c t i n g  o f f i ci al 's  desi res  to have

Hr. Ie ke l a p p o i n t e d " .  (29a) The court of

a p p e a l s ,  h a v i n g  review ed the cold record,

c o n c l u d e d  there was "a valid reason" for

r e p l a c i n g  the origin al panel. (15a) The

appe al s panel 's action was co ns is te nt  with

the p l e n a r y  de novo review of c r e d i b i l i t y

d e t e r m i n a t i o n s  that are now c o mm on pl ac e in
3

the f o u r t h  c i r c ui t.  The extent to which 

s u c h  d e t e r m i n a t i o n s  are subject to 

a p p e l l a t e  rev i ew  is an important issue 

a b o u t  w h i c h  the courts of appeals are

3
See Pe tit ion  for Writ of Cer tiorari, 
Mill er v. Mercy H o s p i t a l , pp. 9-10.



w i d e l y  d i v i d e d ,  and which is among the

i s s u e s  n o w  pe nd ing  before this Court in
5

An de rs on  v. City of Be sse mer  C i t y .

Th is Court recent ly e m p h as iz ed  the 

r o l e  of tr i a l  court c r e d i b i l i t y  d e t e r m i n ­

a t i o n s  in W a i n w r i q h t  v. W i t t , 53 U .S .L .W . 

4 1 0 8  (1985). In the instant case the

c o u r t  of a p p e a l s  believed that the cold 

t r a n s c r i p t  co nt ai ne d "no clear-c ut 

i n d i c a t i o n  that race played a part" in 

r e s p o n d e n t ' s  actions. (13a). Witt

r e j e c t e d  a similar argument that a 

t r a n s c r i p t  m u s t  de mo n s t r a t e  with " u n m i s ­

t a k a b l e  c l a r i t y "  the c o rr ec tn es s of a 

t r i a l  c o u r t ' s  decision. "Despite [any] 

l a c k  of c l a r i t y  in the printed record,

. . . t h e r e  will be si tu ati ons  where the

t r i a l  j u d g e  is left with the de fin it e im­

p r e s s i o n "  that the c i r c u m st an ce s are as 

c l a i m e d  by a party. 53 U.S.L.W. at 4112.

4

4

5

_Id.l, pp. 10-35.

See Brief for Petitioners, pp. 58-75.



1 2

A l t h o u g h  some Title VII cases present 

c o m p l e x  le ga l ques tions, the issue here 

was largely one of whethe r the trial judge 

b e l i e v e d  the e x p l a n a t i o n  given by of the 

of fi c i a l s  who chose Iekel over petit ion er.  

C l e a r l y  he did not. "Face to face with 

l i v i n g  w i t n e s s e s  the origin al trier of 

facts holds a po sit ion  of adv an tag e from 

w h i c h  a p p e l l a t e  jud ges  are ex cl ude d 

. . . . How can we say the judge is wrong?

We n e v e r  sa w the wit n es se s. " 53 U.S.L.W. 

at 4114.

In reversi ng the di st ri ct court 's

finding of int e nt io na l di s c r i m i n a t i o n ,  the

c o u r t  of a p p e a l s  e x p r e s s l y  relied on the
6

f o u r t h  c i r c u i t  rule that a p l a i n t i f f  in 

a T i t l e  VII d i s p a r a t e  tre atment case must 

p r o v e  th at he or she is "better q u a l i ­

fi e d "  t h a n  the suc ces sf ul applicant. 

(1 8a)  In the fourth circuit a Title VII

^ That rule was ea rl ier  applied in Anders on 
v. City of Be sse mer  City, 717 F.2d 149,
'153 (4th Cir. 1983) and EEOC v. Federal 
Reserve Board, 698 F.2d 633, 672 (4th Cir. 
“1983 ) .



action in a case in which several candi­

d a t e s  we re eq ual ly qua lif ied  is as a 

m a t t e r  of law doomed to failure. Since 

the p l a i n t i f f  in such a case cannot prove 

th at he or she is better qualified, the 

courts must in every instance rule for the 

d e f e n d a n t ,  r e g a r d l e s s  of the presen ce of 

d i s c r i m i n a t o r y  motiv ati on.  As ca nd id ly  

e x p l a i n e d  by the fourth circuit in 

A n d e r s o n , " among e g u a l 1 y gua li fie d 

c a n d i d a t e s ,  an employ er has d i s c re ti on  to 

choose the person he prefers", 717 F .2d at 

154, r e g a r d l e s s  of whether the reason for 

that pr ef ere nce  may be race.

The fourth circuit rule applied here 

and in A n d e r s o n  was exp re s sl y rejected by 

this Court in Texas De pa rtm ent  of C o m m u n i ­

ty A f f a i r s  v. B u r d i n e , 4 5 (1 11.5 . 2 4 R 

( 1 9 8 1 ) .  B u r d i n e  held that an employ er is 

not free to d i s c r i m i n a t e  on an oth er wis e 

i m p e r m i s s i b l e  basis among equally q u a l i ­

fied i n d i v i d u a l s .  "[T]he employer has 

d i s c r e t i o n  to choose among equally



14

q u a l i f i e d  can d id at es , provid ed_____the

d e c i s i o n  is not based upon unlawful 

c r i t e r i a " . 450 U.S. at 259 (Emphas is 

a d d e d ) .  A re qu ir e m e n t  that a Title VII 

p l a i n t i f f  pr ov e that he or she was better 

q u a l i f i e d  t h a n  the successful applicant 

for a p o s i t i o n  would e f f e c t i v e l y  repeal 

T i t l e  VII for the su bs tan ti al number of 

p o s i t i o n s  in the United Sta t es  labor 

m a r k e t  for which all of the qua li f ie d 

a p p l i c a n t s  are e s s e n t i a l l y  equall y 

q u a l i f i e d .  The fourth circuit rule is in

c l e a r  c o n f l i c t with the pr ev ai li ng

c o n s t r u c t i o n  of Title VII in o t he r
7

circuits.

Brown v. P a r k er -H an ni fi n Corp., 436 F.2d 
1407, 1410 n. 4 (10th Cir. 1984) ( p l a i n ­
tiff need only be eq ua ll y q ual ifi ed  as the 
successful applicant); Ca si lla s v. United 
States N a v y , 335 F.2d 338, 344 (9th Cir. 
19 84 ) (c h oi ce  amona eq ua ll y qu al if ie d 
c a n d i d a t e s  may not be based on race); 
C o l o n - S a n c h e z  v. Marsh, 733 F.2d 78, 82 
( 1 0 t h C i r . 19 84) (choice among equall y 
qualified ca n d i d a t e s  may not be based on 
r a c e ) ;  Mason v. Co nt ine nta l Illinois 
National B a n k , 704 F.2d 361 , 366 (7th Cir. 
1 9 8 3 )  (c h o i c e  among eg ua ll y qua li f ie d 
ca n d i d a t e s  may not be based on race).



CONCLUSION

For the a b o v e  r e a s o n s  a wr i t  o 

c e r t i o r a r i  should issue to review the 

j u d q rn e n t and o p inion of the F o u r t. h 

C i r c u i t .  In the alternative, the Court 

m a y  w i s h  to d e f e r  action on this petition 

u n t i l  the d e c i s i o n  in Anders on v. City of 

Bessem er City.

Re sp ec tf ul ly  submitted,

JOAN WILBON
Wilbon & Killing!)am 
Suite 405
1511 K S t r e e t , N.W. 
Washington, D.C. 20005 
(202) 737-7458

J. LeVONNE CHAMBERS 
RONALD L. ELLIS 
ERIC SCHNAPPE R*

NAACP Legal Defense & 
E d uc at io na l Fund, Inc. 
16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Peti tio ne r

Counsel of Record



A P P E N D I X



UNITED STATES COURT OP APPEALS

FOR THE FOURTH CIRCUIT

No. 83-1903

Margaret Young,

Appellee,

versus

John Lehman, Secretary, 
Department of the Navy,

Appellants.

Appeal from the United States District 
Court for the Eastern District of Virginia 

at Alexandria. Richard L. Williams, 
District Judge. (C/A 82-1089).

Argued: August 27, 1984 
Decided: November 5, 1984

Before WINTER, Chief Judge, SPROUSE, 
Circuit Judge, and BUTZNER, Senior 

Circuit Judge.

George E. Lawrence, Jr., Special Assistant 
United States Attorney (Elsie L. Munsell, 
United States Attorney; Pamela A. Smith, 
Assistant Counsel, Dept, of the Navy on



2a

brief) for Appellant; Joan M. Wilbon 
(W i l b o n , Killingham & Green; Robert 
Alexander on brief) for Appellee.

SPROUSE, Circuit Judge:

John Lehman, as Secretary of the 

Department of the United States Navy, 

appeals from the decision of the district 

court which held that Margaret Young was 

denied a promotion in one of the Navy 

commands on the basis of racial discrimi­

nation. The district court concluded that 

Young presented a prima facie case of 

discrimination and that the Navy's 

proffered non-discriminatory reasons were 

pretextual in that they were "unworthy of

credence . " We reverse .



3a

I

The Navy Ship Engineering Center 

(NAVSEC) issued vacancy announcements on 

November 1, 1976, and November 11, 1976,

each advertising the position of Supervi­

sory Personnel Management Specialist. The 

ultimate duty stations were to be Arling­

ton, Virginia.

Margaret Young, a black female, 

submitted an application for the Supervi­

sory Personnel Management Specialist 

position along with six other applicants, 

including Christopher Iekel, a white male, 

who was ultimately selected.

Some three weeks after the first
1

vacancy announcement, Iekel was detailed 

from Hyattsville, Maryland to Crystal

 ̂ The two positions announced in the 
November 1 and November 11 advertisements 
were identical but the second vacancy was 
never filled. It is the position adver­
tised on November 1 that is in issue in 
this appeal.



4a

City, Virginia to serve temporarily in the 

position of Supervisory Personnel Manage­

ment Specialist— the job for which both he 

and Young applied. He was employed in 

that capacity until the end of March 1977.

John McCabe, Personnel Director of 

the Naval Sea Systems Command (NAVSEA), 

supervised the selection of the applicant 

who would receive the permanent promotion 

to the position. He was assisted by Nancy 

Panella and William Fordyce, who was later 

replaced by Rosina McWhirter. McCabe, 

Panella, and McWhirter are Navy personnel 

specialists and are all white.

Following the announcement of the two 

vacancies, Panella conducted interviews 

of a number of the applicants, including 

lekel and Young. This action contravened 

Navy regulations which require that a 

selection panel be used to fill all 

supervisory positions. When Panella's



5a

violation of the regulations became known, 

the interviews were terminated and a 

selection panel was convened by Fordyce to 

evaluate and rank the applicants for the 

vacancies.

The panel consisted of Raye J. 

Montague, who had served on approximately 

thirty selection panels, Arthur L. Fuller, 

who had also served on numerous panels 

during his twenty-two years with the Navy, 

and Louis H. Howard, who was qualified by 

his background to serve on such panels. 

Fuller was designated as chairman and as 

the Equal Employment Opportunity (EEO) 

representative. Montague and Fuller are 

black.

The panel, after consulting with 

McWhirter and Panella, established a 

procedure for evaluating and rating the 

applicants. It was determined that the 

panel would meet three times for rating



6a

purposes: first, to review the individual 

applicant, and rate the candidates on that 

basis; next, to conduct interviews and 

rate the applicants again; and finally, to 

meet as a group to discuss their results 

and rate the candidates a third time. The 

panel used six criteria to rate each 

applicant with a weight assigned to each 

element: (1) understanding of systems 

method and administrative machinery 

(weighted 1); (2) ability to organize 

problems and apply sound judgment (weight­

ed 1); (3) oral and written communications 

skills (weighted 1); (4); capacity to 

employ knowledge and abilities in resolv­

ing problems (weighted 1); (5) supervisory 

potential (weighted 2); and (6) substan­

tive classification and staffing knowledge 

(weighted 1).



7a

The panel, on January 24, 1977, 

completed the Merit Promotion Certificate 

which reflected their final recommenda­

tions. Young and another applicant were 

rated best qualified for the two vacan­

cies, while Iekel and one other candidates 

were listed in a second group as being 

highly qualified. The panel delivered the 

Merit Promotion Certificate and rating 

sheets to McWhirter.

McWhirter scrutinized the recommenda­

tions and ratings of the panel and 

discovered the notation "My guess she's 

black" on a rating sheet which had been 

completed by panel chairman Fuller. This 

rating sheet dealt with an applicant other 

than Young or Iekel. McWhirter also felt 

that the panel members had incorrectly 

inflated their assessment of Young's 

experience, and had not properly evalu­

ated supervisory performance appraisals.



8a

Mc Wh ir te r thus concluded that the panel's 

work was improper, and she recommended 

that the Navy reject the recommendations 

and form a new panel.

The panel's rating and ranking sheets 

were also reviewed by Yvonne Jones, a 

black EEO official, who concluded that the 

comment made by Puller constituted 

evidence of improper racial consideration 

sufficient to warrant a new selection 

panel. McWhirter and Jones reported their 

findings to McCabe who ultimately rejected 

the panel's recommendation and directed 

that a new panel be formed. The Command 

Deputy EEO Officer concurred in McCabe's 

decision.

A new panel was then formed, consist­

ing of Mertina Monk, Harry Stoutmeyer and 

Wi ll ia m DaRosa. This panel, using the 

same criteria as those employed by their 

predecessors, ranked Iekel highly quali­



9a

fied, and recommended him for the avail­

able position on March 18, 1977. Young, on 

the other hand, was ranked sixth out of 

eight applicants. Iekel was appointed on 

March 25, 1977, after McWhirter and Jones 

reviewed the second panel's rating and 

ranking sheets and found no evidence of 

impropriety.

II.

The district court correctly con­

sidered the evidence developed during the 

trial of the case under the standards 

announced in Texas Department of Community 

Affairs v. Burdine, 450 U.S. 248 (1980). 

The initial burden was upon Young to prove 

by a preponderance of the evidence that 

she was not promoted to the position under 

conditions which, more likely than not, 

were based upon impermissible racial 

considerations. Burdine, 450 U.S. at



2 5 4 ; International Brotherhood of Team­

sters v. United States, 431 U.S. 324 

(1977). After Young established her prima 

facie case, the Navy was required to 

articulate a legitimate non-discriminatory 

reason for its promotion choice. Young 

was then obligated to demonstrate that the 

Navy's reasons were pretextual. Burdine, 

450 U.S. at 256; Cuthbertson v. Biggers 

Bros. y Inc. , 702 F . 2d 454, 458 (4th Cir. 

1983).

We agree with the district court that 

Young established a prima facie case of 

discrimination. We disagree, however, 

with the court's conclusion that the 

proffered non-discriminatory reasons 

advanced by the Navy for choosing Iekel 

over Young and others were pretextual in 

that they were "unworthy of credence."



Young contends, and the trial court

agreed, that there was evidence from which

it could be concluded that the Navy

preselected Iekel for the promotion and

tailored the selection process to obtain

the desired result. She argues that

Iekel's detail to the position in question
2

for longer than the regulations provide, 

the improper applicant interview conducted 

by Panella, McWhirter's concern with 

personal conflicts between Young and 

Panella, and the extraordinary scrutiny 

given to the first panel's recommendations 

and ratings, amply support this conclu­

sion .

Naval Naterial Command Instruction 
12 340.4A § 7a(4) (September 28, 1972) 
provided that details of more than sixty 
days to a higher grade position should be 
made by competitive procedures. As states 
previously, Iekel's detail, which was not 
made using competitive procedures, began 
on November 30, 1976 and terminated with 
his appointment in March, 1977.



12a

The Navy counters by asserting that

but for the rejection of the first panel's

conclusions, Iekel's detail would have
3

ended within the 60-day limit. It 

ch ar ac te ri ze s Panella’s interviews as a 

"mix-up," arguing that there was no 

evidence that they were conducted to 

assist or hinder any applicant. The Navy 

also argues that there is no evidence that 

race played any part in McWhirter's 

concern about the Young-Panella work 

relationship. With respect to the process 

employed in reviewing the work of the 

first panel, it contends that McWhirter's 

actions were in accordance with standard 

Navy personnel procedures. The Navy also

The first panel made their recommendation 
on January 24, 1977, fifty-five days after 
Iekel's detail.



13a

points to EEO official Yvonne Jones' 

independent discovery of Fuller's nota­

tion .

We agree with the Navy that there is 

no clear-cut indication that race played a 

part in choosing the successful applicant. 

In Burd i n e , however, the Supreme Court 

indicated that the burden of establishing 

a prima facie case is not a heavy one. It 

may be satisfied by showing that a 

qu al if ie d applicant "was rejected under 

circumstances which give rise to an 

inference of unlawful discrimination." 

B u r d i n e , 450 U.S. at 253. We feel that 

the evidence detailing the activities of 

the selection personnel is sufficient to 

establish a prima facie case of racial 

discrimination under this relatively easy 

test. However, the Navy articulated valid



- 1 4 a -

non-discriminatory reasons for Iekel's 

selection which were not proven to be pre- 

textual.

The Navy's first asserted non-dis- 

criminatory reason was that Iekel had been 

nominated by a properly chosen and 

impartial second panel. The trial court 

concluded that this explanation was 

unworthy of credence. We disagree. We 

perceive no sufficient reason to substi­

tute our judgment for that of the Navy in 

concluding that there was an adequate 

basis to dissolve the first panel and 

convene a new one. The chairman wrote on 

an evaluation sheet that one of the 

candidates was apparently black. The Navy 

selection officials did not unilaterally 

disband the panel on this basis, but took 

action only after Mrs. Jones, the EEO 

official, insisted that the p a ne l’s 

process was tainted by this racial



15a

comment. Likewise, there is no evidence 

of improper racial motivation in forming 

the second panel. Panel member Monk is 

black, Stoutmeyer is white, and DaRosa is 

Asian. While it is obvious that the first 

panel was at least technically tainted (a 

technicality that matured into a valid 

reason for disbanding the panel when the 

EEOC identified the racial notation as 

sufficient reason for disregarding the 

panel's work), it is clear that the second 

panel was correctly selected. In any 

event, the disbanding of the first panel 

and the selection of the second panel 

were, at most, mediate procedures that 

are insulated from a Title VII attack by 

our decision in Page v. Bolger, 645 F . 2d 

227, 233 ( 4th Cir. 1981), cert. denied, 

454 U.S. 892 (1982).



16a

As its second non-discriminatory 

reason for selecting Iekel, the Navy 

asserts that he was better qualified than 

Young. Again, we agree that this was a 

properly articulated reason which was not 

shown by Young to be pretextual. Although 

Young worked for the Navy for twelve 

years, while Iekel was employed for only 

nine years, the record indicates that 

Iekel worked for a longer period in 

positions emphasizing classification and 

staffing-~the criteria weighted most 

heavily by both panels. Iekel received 

two personal awards, a special achievement 

award for outstanding performance as an 

acting supervisor of a personnel group, 

and a letter of appreciation for personnel 

team leadership work. Iekel also consis­

tently received above-average performance 

appraisals. On the other hand, Young, 

although awarded one performance commen­



17a

dation, received only average performance

ratings that included negative comments

citing personal clashes, conflicts, and

her poor attitude towards her supervisor.

Young's leave record indicated nearly 30%

absenteeism during 1976, the year for

which she was last evaluated.

Implicit in the district court's

opinion is a finding that Young is

qualified for the promotion. The evidence

sustains that opinion. The record,

however, demonstrates that Iekel is more
4

qualified than Young. The rule in this

The district court apparently agreed with 
this assessment, stating at one point:

I took careful notes here to day, 
and there is no question but what 
the book on Mrs. Young was that she 
wasn't the most qualified person in 
the world.

I am going to have to consider that 
on their using this remark that 
Fuller put on his report as being a 
pretextual reason for hiring



18a

circuit is that where relative qualifica­

tions are advanced as the non-discrimina- 

tory reason for an employment decision, 

the plaintiff has the burden of establish­

ing that she was better qualified than the 

successful applicant. Anderson v. City of 

Bess me r C i t y , 717 F.2d 149, 1 53 (4th Cir. 

1 983) , c e r t . granted, 52 U.S.L.W. § 3906 

(June 19, 1984); EEOC v. Federal Reserve

Bank of R i c h m o n d , 698 F .2d 633, 672 (4th 

Cir. 1983). Once the Navy's evidence 

showed that its reason for promoting Iekel 

was based on relative qualifications, 

Young had the burden of proving the reason 

pretextual, i.e., that she was better 

qualified. She failed to accomplish this 

task, and the district court erroneously 

concluded that the reason was "unworthy of 

credence."

somebody [Mr. Iekel] , who I believe
is actually better qualified.



19a

In view of the above, the judgment of 

the district court is reversed.

REVERSED



20a

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

Alexandria Division 

CIVIL ACTION NO. 82-1089-A

MARGARET YOUNG,

P l a i n t i f f , 

v.

JOHN LEHMAN, Secretary, 
Department of the Navy,

Defendant.

FINDINGS OF FACT 
AND CONCLUSIONS OF LAW

This action is brought by Margaret 

Young (plaintiff), a black female and a 

federal employee, against the Secretary of 

the Navy, because she was not selected for 

a position as Supervisory Personnel 

Management Specialist in 1977. She claims



21 a

that denial to this promotion violated her 

rights under §717 of the Civil Rights Act 

of 1964 (Title VII), 42 U.S.C. §20Q0e-16.

1 . Plaintiff is a black female 

citizen of the United States who resides 

in Capitol Heights, Maryland; she com­

menced her employment with the Department 

of Navy on May 17, 1971 as a GS-9, she was 

promoted to GS -11 in September of 1971 and 

to GS-12 in September of 1972; she is 

presently employed as a Personnel Staffing 

Specialist, GS-12, with Naval Material 

Command (NAVMAT).

2. In late 1976 and early 1977, the

Naval Sh ip Eng ineering Center (NAVSEC),

which had been located in Hyattsville,

M a r y l a n d , merged with and moved to be

co-located with NAVSEA in Arlington,

Virginia.



22a

3. On November 1, 1976 and November 

11, 1976, NAVSEC issued vacancy announce­

ments, each advertising a single position 

of Supervisory Personnel Management 

Specialist GS-201-13. The duty station of 

these two positions was to be Hyattsville, 

Maryland and then in Arlington, Virginia, 

after NAVSEC moved.

4. Plaintiff, who was then a 

Personnel Management Specialist GS-210-12, 

submitted an application for the Supervi­

sory Personnel Management Specialist 

positions along with six other applicants.

5. John McCabe, Personnel Director 

of NAVSEA, was the selecting official for 

the two positions in question.

6. Nancy Panella was Acting Director 

of the NAVSEC Civilian 1 Division.



23a

7. William Fordyce, a Personnel 

Specialist, was designated to assist 

Panella and McCabe in the selection 

process.

8. Rosina McWhirter, a Personnel 

Ma na ge me nt Specialist, replaced William 

Pordyce as the assistant in the selection 

process.

9. Yvonne T. Jones, an EEO Special­

ist GS-13, was assigned to the NAVSEA 

headquarters EEO office.

10. In October 1976, Nancy B. 

Panella, the then Acting Director of the 

NAVSEC Civilian Personnel Division, sent 

Margaret Young to Crystal City, 20 miles 

away from any type of supervision, 

together with a trainee to be supervised 

and directed by Mrs. Young.

1 1 . Christopher lekel was detailed 

from Hyatts ville, Maryland to Crystal 

City, Virginia in the position of Supervi­



24a

sory Personnel Management Specialist from 

Nove mb er 1, 1976 until the end of March, 

1977. This detail was contrary to Navy 

Regulations, as Regulation 335 requires 

that a detail of more than 60 days to a 

position with known promotion potential be 

competitive to enable all eligible 

candidates to apply for the detailed 

position.

12. Following announcement of the 

two Supervisory Personnel Management 

Specialist positions and contrary to Navy 

Regulations, Nancy B. Panella conducted 

interviews of the job applicants. When 

this violation of regulations became known 

the interviews ceased. The applicable 

regulations required a selection panel to 

be used to fill all supervisory positions 

regardless of grade.



-  25a

13. After Ms. Panella's interviews 

were terminated, a selection panel was 

established by William Fordyce to evaluate 

and rank applicants for the position in 

question.

14. The panel consisted of Raye J. 

Montague (Raye Parratt at the time), 

Arthur L . Fuller and Louis H. Howard. Mrs. 

Montague had served on approximately 

thirty selection panels for numerous 

positions. Mr. Fuller during his twenty- 

two years of service with the Navy had 

served on numerous selection panels and 

Mr. Howard by background was qualified to 

be on the panel. Mr. Fuller served as 

chairman of the panel and was designated 

to be the EEO representative.

15. Preliminarily, the panel estab­

lished a plan for evaluating and rating 

all applicants. Each panel member was 

given the position description for the



26a

vacancy, the standard Form 171 for each 

applicant and the vacancy announcement. 

Each panel member completed an initial 

rating sheet based on the Form 171 and a 

form based upon the results of a discus­

sion among the panel members.

16. The procedures followed by the 

panel were not adopted until after 

discus si on s among the panelists and with 

Ms. Panella and had received her approval.

17. After the panel was formed, one 

member, Raye Montague, learned from the 

standard Form 171 application that her 

name had been added as a reference to 

plaint if f' s application. Mrs. Montague 

had known Mrs. Young in the former's 

capacity of Federal Women's Program 

Coordinater. This matter was called to 

the attention of the panel chairman, and 

he in turn contacted Rosina McWhirter, who 

informed Ms. Panella. Thereafter, Ms.Pane 1la.



27a

Panella contacted M r s . Montague, and 

instructed her to serve on the panel 

anyway and indicated that the reference 

designation did not matter. The panel 

evaluated the seven job applicants 

pursuant to the system developed by Nancy 

Panella and the panel members. On January 

24 , 1 977 the panel completed the Merit 

Promotion Certificate which reflected the 

final conclusions of the panel. Plaintiff 

and a second job applicant were listed by 

the panel as the best qualified applicants 

for the two Supervisory Personnel Manage­

ment Specialist positions. Christophe 

Iekel and one other applicant were listed 

in a second grouping as being highly 

qualified for the two positions.

18. The panels Merit Promotion 

Ce rtificate listing the qualified appli­

cants and their rating sheets were 

delivered to Rosina McWhirter on January



28a

24, 1977. I find that Rosina McWhirter 

and Nancy Panella were disappointed in the 

panels recommendation because there had 

been a predetermination to give the 

position in question to Christopher Iekel, 

a white male.

19. Supportive of this predetermi­

nation are the following facts: (1) the 

unauthorized interviews by Ms. Panella 

after the vacancies were announced; (2) 

the detailing of Iekel to one of the 

positions for a period in excess of that 

permitted by Navy Regulations; (3) the 

extraordinary scrutiny given to the first 

panels recommendations and ratings; (4) 

exchanges between McWhirter and Panella 

concerning what would happen if the 

plaintiff was selected for the position.

20. A series of events transpired 

after the original panel's Merit Promotion 

Certif ic at e listing the qualified candi­



29a

date that resulted in a decision to 

disregard the panel's recommendations and 

to create a new panel.

21. Notwithstanding the first panel's 

findings, a procedure existed whereby John 

McCabe, the selecting official, could have 

disregarded the panel's recommendation and 

appointed someone else from the applicant 

list. This required a letter explaining 

why the panel's recommendations were not 

being followed. The failure to write such 

a letter was due in part to a fear that 

the present plaintiff would bring a 

lawsuit, but in effect it was a poorly 

disguised effort to cover the selecting 

official's desires to have Mr. Iekel 

appointed to the position in question.

22. After a new panel was consti­

tuted, it established new procedures for 

reviewing applicants and ultimately made a 

determination that Mr. Iekel was the best



30a

qualified person for the position and the 

plaintiff was ranked number six out of 

eight applicants.

23. In time, the second panel's 

recommendations were followed and lekel 

was appointed to the disputed position.

24. Since the second panel ranked 

lekel as the best qualified, their work 

sheets were never given the scrutiny that 

the first panel's findings were subjected 

to. Christopher lekel was selected to the 

position in question on March 25, 1 977, 

and thereafter, the plaintiff commenced an 

EEO complaint. This did not rectify her 

grievances, and on June 1 , 1982, she 

received official notice that her com­

plaint of discrimination was rejected and 

was given authority to commence the 

present action.



31a

25. The second position, for a 

Supervisory Personnel Management Special­

ist GS-13, referred to in earlier find­

ings, has never been filled.

26. Plaintiff has not been promoted 

to a higher grade level

CONCLUSIONS OP LAW

1 . This court has jurisdiction 

pursuant to 42 U.S.C. §2000e-16, Title 

VII, of the Civil Rights Act of 1964 as 

amended. This act provides the exclusive 

remedy for federal employees' claims of 

discrimination based on race. Brown v. 

G S A , 425 U.S. 820 (1976).

2. Plaintiff established a prima 

facie case by showing that the selecting 

officials, on a predetermined basis, had 

decided to hire a white male for the 

position in question. This created a



32a

rebuttable presumption that the employer 

discriminated against her. Texas Depart­

ment of Community Affairs v. Burdine, 450 

U.S. 248 (1981); McDonnell Douglas

Corporation v. Green, 441 U.S. 792 

(1973) .

3 After the court denied d e f e n ­

dant's motion to dismiss at the conclusion 

of the plaintiff's evidence, the case took 

on a new dimension. As the court then, 

from all the evidence, had to determine 

whether plaintiff's rejection was dis­

criminatory within the meaning of Title 

VII. United States Postal Service Board 

of Govenors v. Aikens, No. 81-1044

(decided April 4, 1983).

4. Plaintiff has carried her burden 

of persuasion by convincing the court that 

defendant's proffered explanation for the 

action taken is unworthy of credence 

(Burdine and Aikens)



33a

5. That as the prevailing party the 

plaintiff is entitled to the following 

relief

(1) Retroactive promotion to GS-13,

effective February 15, 1977 (court allows

19 days for selecting official to act on 

first panel's findings).

(2) Back pay from February 15, 1977 

to the time plaintiff is promoted to 

GS-13.

(3) Attorneys fees and costs. 42 

U.S.C. §2000e-5

An order is this day being entered 

granting the above relief and setting a 

schedule for disposition of the fee and 

cost issues.

DATE: s/s May 20, 1983

UNITED STATES DISTRICT JUDGE



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