Salone v USA Petitioners Reply to Respondents Brief in Opposition

    No. 81-83

I n the

Bvcptmt (Emtrt of %  Intteft States
October T erm, 1981

A n t h o n y  M. S a l o n e , Jr.,

v.

U nited States oe  A merica, et al.

Petitioner,

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE TENTH CIRCUIT

PETITIONER’ S REPLY TO RESPONDENTS’ 
BRIEF IN OPPOSITION

Jack Greenberg 
James M. Nabrit, III 
Charles Stephen Ralston* 

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

* Counsel of Record



No. 81-83

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1981

ANTHONY M. SALONE, JR.
Petitioner,

v.
UNITED STATES OF AMERICA, et al.

On Petition for a Writ of Certiorari to
The United States Court of Appeals 

For The Tenth Circuit

PETITIONER'S REPLY TO RESPONDENTS' 
BRIEF IN OPPOSITION

Petitioner, Anthony M. Salone, Jr., 
wishes to respond to some of the points 
made in the government's Brief in Opposi­
tion to the Petition for Writ of Certiorari.

1. The Government side-steps the 
legal issue raised by this case by assert­
ing that there are only questions of fact



2

involved. Petitioner reiterates that a
reading of the decisions of both the
District Court and the Court of Appeals
makes it clear that the burden of proving
entitlement to further promotions was
placed on petitioner. For example, the
Court of Appeals notes that the evidence

1/was conflicting and, indeed, the find­
ings of the District Court themselves

2/were conflicting. Nevertheless, all 
doubts were resolved against petitioner. 
In the cases cited with approval by the 
Government on page 5 of its brief, on the 
other hand, it is clear that the burden was 
on the employer to demons t r ate that a 
person discriminated against would not have

1/ Pet. App. 12a- 14a.
2/ Compare, Pet. App. at 29a, with Pet
App. at 42a.



3

advanced. Thus, this Court has held that 
doubts should be resolved against the party 
responsible for the illegal discrimination. 
Franks v. Bowman Transportation, Co., 424 
U.S. 747, 113 , n. 32 (1976).

Therefore, the legal standard applied 
by the Tenth Circuit is directly in con­
flict with the standards applied by other 
courts of appeals and announced by deci­
sions of this Court. Since it is uncon­
tested by the government that the question 
of entitlement to relief after a finding of 
discrimination is an important and recur­
ring issue in Title VII cases, this clear 
conflict between the circuits should be 
resolved by the Court.

2 . With regard to whether the
findings of fact of the district were
clearly erroneous, the Government is able
to refer to only a single record cite



4

indicating that anyone testified to diffi­
culties petitioner had in his work after 
1972 (the date when he was unlawfully 
denied a promotion). Even that testimony 
is flatly contradicted by documentary 
evidence which establishes that petitioner 
consistently received ratings of 98 to 99 
in a performance scale of 100, and was 
nominated for an outstanding performance 
rating in 1976. Moreover, as the govern­
ment itself notes, the district court in 
its original findings of fact found that 
petitioner's performance in his job was 
satisfactory. Given these clear facts, the 
district court1s later finding, in response 
to the motion to alter or amend the judg­
ment , that petitioner performed unsatisfac­
torily is clearly an after-thought with no 
support whatsoever in the record. Indeed, 
the finding was essentially overruled by



5

the Court of Appeals when it held that 
petitioner was entitled to step increases, 
since such step increases are conditioned 
upon satisfactory performance in one's job.

Conclusion
For the foregoing reasons, the peti­

tion for a writ of certiorari should be 
granted.

Respectfully submitted,

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

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397
^Counsel of Record



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