United States Postal Service Board of Governors v. Aikens Brief for Petitioners

    -

■) • • No. 8M0 I4

i n  tlje Supreme Court of tije UnItelJ ^tates^
' October Term, 1981 ■ ,

'; rV ;;, ■ U nited States Postal Service;
* Governors, petitioner

'■ •' ■' :v.: . ' .

Louis H. A ikens

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(iUPiSTION PRESPiNTEI)
Whether a Postal Service emj)loyee who showed only 

that he was black, that he had applied for a promotion for 
which he possessed the minimum qualifications, and that 
the Postal Service selected another, non-minority, api)li- 
cant, established a prima facie case of employment dis­
crimination in violation of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. 2000e et seq.

(I)



TABLE OF CONTENTS
Paf>:e

Opinions below .............................................................................. ^

Jurisdiction ....................................................................................  ^

Statute involved ............................................................................ ^

Statement ...................................................................................... ^

Summary of argument ...............................................................  ^

Argument:
An employer’s selection of a ((ualified white applicant for 
a position instead of a qualified black a))plicant does not, 
without more, establish a prima facie case of employ­
ment discrimination ...........................................................  11

A. Such a selection does not raise an inference of
racial discrimination.................................................  H

B. Requiring more than a showing that a qualified 
nonminority applicant was chosen over a (lualified 
minority applicant is not unfair to plaintiffs and 
avoids placing unwarranted burdens on employ-

21ers ................................................................................
1. A plaintiff has ample alternative means of

establishing a prima facie c a s e ..................... 21

2. A defendant should not be required to pre­
sent a defense in an employment discrimina­
tion action unless the plaintiff shows more
than the court of appeals required ............  30

Conclusion ......................................................................................

TABLE OF AUTHORITIES
Cases: Page

\ Alexander v. Gardner-Denver Co., 519 F.2d 503, cert.
denied, 423 U.S. 1058 ......................................................  1̂

Bolling v. Sharpe, 347 U.S. 497 ..........................................  24
Brown v. General Services Administration, 425 U.S.

^  820 .................................................................................. 24

(III)



IV

Cases—Continued Page

Bundy v. Jackson, 641 F.2d 934 ..................................... 14, 20
Burdine v. Texas Depaiiment of Connnnniti/ Affairs,

647 F .2 d 5 1 3 ................................................... ..................  33
Causey v. Ford Motor Co., 516 F.2d 4 1 6 ......................  25
Chandler v. Roudehush, 425 U.S. 840 ........................... 4
Chavez v. Temple Union High School District No. 2U,

565 F.2d 1087 .................. '...............................................  17
Contractors A.ssociation of Eastern Pennsylvania v. 

Secretary of Labor, 442 F.2d 159, cert, denied, 404
U.S. 854 ...........................................................   22

Crawford v. Western Electric Co., 614 F.2d 1300 . . . .  25
Davis V.  Califano, 613 F.2d 957 ................................. 24

-  Daye v. Harris, 655 F.2d 258 ........................................... 14, 16
Dinnan, In re, 661 F.2d 426, cert, denied. No. 81-1714

(June 7, 1982)...................................................................  29
Donaldson v. Pillsbnry Co., 554 F.2d 825, cert, denied,

434 U.S. 856 .....................................................................  24
East V .  Rornine, Inc., 518 F.2d 332 ..............................  32-33
EEOC V.  Associated Drif Goods Corj)., 449 U.S. 590 . 27
Flowers v. Crouch-Walker Cot'p., 552 F.2d 1277 . 18, 23, 28 
Fumco Construction Corp. v. Waters, 438 U.S.

567 .........................................................................  19, 20, 23, 29
Griggs v. Duke Power Co., 401 U.S. 424 ......................  21
Hagans v. Andrus, 651 F.2d 622, cert, denied, 454 U.S.

859 ...................................................................................... 14, 25
Hazelwood School District v. United States, 433 U.S.

299 ...................................................................................... 24
International Brotherhood of Teamsters v. United

States, 431 U.S. 324 ........ ................................  13, 15, 17, 24
International Union of Electrical Workers v. NLRB,

648 F.2d 1 8 ..............  25
I Johnson v. University of Pittsburgh, 435 F. Supp. 1328 32, 33

Jordan v. Dellway Villa, 661 F.2d 588 ........................  16
Kunda v. Muhlenberg College, 621 F.2d 532 ..............  25
Kyriazi v. Western Electric Co., 465 F. Supp. 1141 ..  16
Lieberman v. Gant, 630 F.2d 60 ........................  17, 28, 32, 34
McDonald v. Sante Fe Trail Transportation Co., 427

U.S. 273 ...........................................................................  16

Cases—Continued Page

McDonnell Douglas Coryr. v. Gr'een, 411 U.S.
792 .............. '..................... 6, 9, 20, 22, 23, 24, 29, 30, 31, 32

Meyer v. Missouri State Highway Connnission, 567
F.2d 804, cert, denied, 435 U.S. 1013 ......................  17

Moriensen v. Callaway, 28 Eni])l. Prac. Dec. (CCH)
24352 ...................... ........................................................... 14

Morion v. Mancari, 417 U.S. 535 ................................... 24
Olson V.  Philco-Ford, 531 F.2d 474 ............................... 14
Parker v. Baltinrorr, &• 0 . R.R., 652 P'.2d 1012 ..  14, 16, 18
Peters v. Jefferson Chemical Co., 516 F.2d 447 ..........  17
Pettit V.  Urr'ited States, 488 F.2d 1026 ..........................  14, 25
Pond V.  Bmniff Airways, Inc., 500 F.2d 161 ..............  29
Powell V.  Syr'acuse University, 580 F.2d 1150, cert, de­

nied, 439 U.S. 984 ...........................................................  23
Scott V.  University of Delawar-e, 601 F.2d 76, cert, de­

nied, 444 U.S. 9 3 i ...........................................................  29
Shack V.  Sorrthworilr, 521 F.2d 51 .................................................. 29
Taylor v. Philips Industries, Inc., 593 F.2d 783 ........  28

.■Te.ras Deparirnent of Cornrrrunity Affairs v. Burdine,
450 U.S. 248 ..................................................................... passim

United States v. Lee Way Motor Fr-eight, Inc., 625 F.2d
918 .....................................................................................  28

Valentino v. United States Postal Sernice, 674 F.2d
56 .................................................................................. 14, 23, 24

Village of Arlington Heights v. Metr-opoUtan Housing
Developrrrerrt Cory}., 429 U.S. 252 ................................  24

Vuyanich v. Republic National Bank, 505 F. Supp. 224 33
Wright v. National Archives & Recor'ds Senice, 609

F.2d 702 ...........................................................................  25

Statutes, regulations and rule:

Civil Rights Act of 1964, Title VII, 42 UfS.C. 2000e et
seq. 2

Section 717(a), 42 U.S.C. 2000e-16(a) ..................... 2, 4
Section 717(b), 42 U.S.C. 2000e-16(b)....................  2
Section 717(c), 42 U.S.C. 2000e-16(c) ....................  4

Equal Employment Opportunity Act of 1972, Section 11,
Pub. L. No. 92-261, 86 Stat. 111 (42 U.S.C. 2000e-16) 24



VI

Statutes, regulations and rule—Continued Page

5 U.S.C. (Supp. Ill) 7201(b) .............................................  24
5 C.F.R. 713.214 (1974) .....................................................  2

29 C.F.R.:

Section 1613.213...........................................................  26
Section 1613.216...........................................................  26
Section 1613.216(a) .....................................................  27
Section 1613.216(b) .....................................................  27
Section 1613.217...........................................................  27
Section 1613.218...........................................................  26
Section 1613.218(c)(2) .................................................  27
Section 1613.218(e) .....................................................  26
Section 1613.221 ...........................................................  26
Section 1613.221(b)(2) .................................................  27
Section 1613.222 ...........................................................  27
Sections 1613.231-1613.236 .......................................  26

Fed. R. Civ. P. 41(b) .........................................................  31, 33

Miscellaneous;

Bartholet, Application of Title VII to John in High
Places, 95 Harv. L. Rev. 947 (1982) ........................  13, 33

Cleary, Presiwiing and Pleading: An Essay on Jusris-
tic Immatnrity, 12 Stan. L. Rev. 5 (1959) ..............  26

Fiss, A Theory of'Fair Employment Laws, 38 U. Chi. L.
Rev. 235 (i971) ...............................................................  22

H.R. Rep. No. 92-238, 92d Cong., 1st Sess.................... 24
McCormick’s Handbook of the Laiv of Evidence, (2d ed.

E. Cleary 1972) ........ '.....................................................  18, 26
Waintroob, The Developing Laiv of Equal Ernployment 

Opportunity at the White Collar and Professional 
Level, 21 Wm. & Mary L. Rev. 45 (1979)................  13

9 J. Wigmore, Evidence:

(3d ed. 1940) .................................................................  18
(J. Chadbourn ed. 1981) ............................................. 18, 26

Hn tijt Supreme CouU of tlje IlnitcD S ta tes
October Term, 1981

No. 81-1044
U nited States Postal S ervice 

Board of Governors, petitioner

Louis H. A ikens

ON WRIT or CERTIORARI TO THE I'NITEI) STATES COURT 
OF AITEALS FOR THE DISTRICT OF COEUMIHA CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW
The opinion of the district court (Pet. App. 49a-59a) is 

not reported. The initial opinion of the court of appeals 
(Pet. App. 17a-40a) is reported at 642 F.2d 514. The 
opinion of the court of appeals on petitions for rehearing 
(Pet. App. 43a-48a) is not reported. The order of this 
Court vacating the initial judgment of the court of appeals 
and remanding for reconsideration (Pet. App. 10a-14a) is 
reported at 453 U.S. 902. The opinion of the court of 
appeals on remand (Pet. App. 2a-9a) is I’eported at 66o 
F.2d 1057.

JURISDICTION
Thejudgm entofthe court of appeals (Pet. App. la) was

entered on September 8, 1981. The petition for a writ of 
certiorari was filed on December 4, 1981, and granted on 
March 22, 1982 (J.A. 12). The jurisdiction of this Court 
rests on 28 U.S.C. 1254(1).

( 1 )



STATUTE INVOLVED

Section 717(a) of the Civil Rights Act of 19G4,42 U.S.C. 
2000e-16(a), provides in relevant part:

All personnel actions affecting employees or appli­
cants for employment * * in executive agencies 
* * *, in the United States Postal Service and the 
Postal Rate Commission, * * shall be made free
from any discrimination based on race, color, reli­
gion, sex, or national origin.

STATEMENT

1. Respondent, a black man and a retired employee of 
the United States Postal Service in Washington, D.C., 
charged that the Postal Service denied him certain pro­
motions and details because of his race, in violation of 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e 
et seq. He fded an administrative complaint with the 
Postal Service in 1974. The Postal Service conducted an 
extensive investigation that included several informal 
efforts at conciliation and a three-day hearing before a 
Complaints Examiner (Pet. App. 51a). The Complaints 
Examiner received evidence from the Postal Service offi­
cials who made the decision to deny respondent the four 
promotions and details at issu e ,' and he summarized their

' At the time respondent filed his charge, Civil Service regulations 
issued under Section 717(b) of the Civil Rights Act, 42 U.S.C. 2000e- 
16(b), required that an administrative complaint be filed within :10 
days of an alleged violation. 5 C.F.R. 713.214 (1974). The district 
court ruled that respondent filed a timely complaint only with regard 
to details and promotions to four positions—Mail Proce.ssing Officer, 
Acting Mail Processing Representative, Director of the Operations 
Division, and Customer Services Representative (Pet. App. 50a). 
Although much of the evidence presented at the trial concerned 
respondent’s allegation that he was discriminatorily denied a promo­
tion to the position of Postmaster, and the district court made find­
ings on the merits of this claim and resolved it adversely to

3

explanations in his report (The Findings and Recom­
mended Decision in the Discrimination Complaint of: 
Louis H. Aikens at 5 (Nov. 12, 1975)):-

The alleged discriminating officials, Messrs. Beall 
and Rapee, both stated that the reason that com­
plainant was not detailed and/or promoted * * * was 
that he indicated to each of them at various times 
that he was only interested in an administrative 
services position * ’’’ which was continuously occu­
pied, or the Postmaster’s position, and that he was 
not interested in such positions as Director of Fi­
nance, Director of Personnel and Tour Superintend­
ent * * *. lAJccording to Mr. Beall, serving in these 
positions would have enhanced complainant’s career 
and future recompense because he wouW have ac­
quired a broader background in postal affairs. ' ' '■ 
A broader background would have stood com­
plainant in good stead, in Mr. Beall’s opinion, lor 
selection to other details and/or promotions.

respondent—noting, for e.xample, that a black candidate was 
selected (Pet. App. 54a-57a)—the district court apparently con­
sidered this claim time-barred as well (id. at 50a). The district court 
also noted that respondent “was aware of the * * * comiilaints proc­
ess (because h)e was chairman of the Postmaster’s E.E.O. |E(|uaI 
Em])loyment Opportunity] Committee for a period of three years, 
and at the time he filed his complaint he had been the E.El.O. 
Administrative Officer for the District of Columbia F̂ o.st Office for 
appro.ximately two years” (id. at 50a-51a).

The court of appeals affirmed the district court’s ruling that re­
spondent filed a timely complaint only with regard to the four posi­
tions (Pet. App. 19a-20a & nn.l, 2). This Court declined to review 
that aspect of the court of appeals’ decision. 453 U.S. 912 (1981).

^In the record this document is appended to the Decision of the 
United States Civil Service Commission Appeals Review Board 
(Jan. 13, 1977).



The Complaints Examiner recommended a findinj  ̂that 
respondent had not been discriminated aijainst; the Post­
al Service accepted his recommendation. Respondent 
appealed to the Civil Service Commission, and the Com­
mission’s Appeals Review Board affirmed the decision of 
the Postal Service. Its opinion similarly stated that re­
spondent’s refusal to accept certain positions that would 
have broadened his experience “played a major role in the 
minds of the selecting officials” (Decision of the United 
States Civil Service Commission Appeals Review Board 
at 4 (Jan. 13, 1977)).

2. Respondent then sued the Postal Service in the 
United States District Court for the District of Columbia. 
See 42 U.S.C. 2000e-16(c); Chandler v. Roudebnsli, 425 
U.S. 840 (1976). He alleged a violation of Section 717(a) of 
the Civil Rights Act, 42 U.S.C. 2000e-16(a), and sought 
retroactive promotions, back pay, and other relief (Pet. 
App. 50a).

After a two-day trial at which both sides presented 
evidence, the district court entered judgment against 
respondent (Pet. App. 61a). The Postal Service did not 
deny that respondent, along with several other em­
ployees, had the qualifications needed to be eligible for 
the promotions and details in issue. There was also no 
dispute that the Postal Service selected white employees 
for those promotions and details instead of respondent. 
The district court found, however, that during the period 
covered by respondent’s complaint, “there was a con­
siderable increase in the number of black employees 
occupying high level positions in the District of Columbia 
Post Office” (id. at 53a). The court also found that during 
that period, “other blacks as well as whites were pro­
moted or detailed to positions above” respondent’s 
(ibid.). At the time of the district court’s opinion— 
February 1979—“almost all high level positions [were] 
held by blacks” (ibid.).

The district court also found (Pet. App. 51a-52a)—and 
the court of appeals specifically agreed (id. at 18a)— that 
from 1952 to 19(56 respondent advanced steadily through 
a succession of supervisory positions in the Post Oifice. 
Between 1966 and 1973, respondent was offered, but 
declined, several promotions and lateral transfers that 
would have helped him obtain jiromotions (id. at 52a-53a). 
Nonetheless, by March 1973, respondent was the fifth 
highest ranking official in the Washington, D.C., Post 
Office (id. at 52a). Moreover, the district court found that 
respondent introduced “no evidence of specific acts of 
discrimination against him” (id. at 54a) and no other 
direct “evidence that he was treated any differently be­
cause of his race” (id. at 53a). Finally, the district court 
found that respondent “produced no credible evidence 
that he was as qualified or more qualified than other 
individuals who were detailed or promoted during the 
period in question” (id. at 54a). For this reason, the 
district court held that respondent had “failed to jiresent 
a prima facie case of racial discrimination” (id. at 59a). ’

’The district court’s finding that respondent failed to establish a 
prima facie case differed from its initial view. During the trial, at the 
close of respondent’s ca.se, the Postal Service moved to dismiss the 
complaint on the gi'ound that resj^ondent had failed to establish a 
prima facie case. Tr. 256; see Pet. App. 47a. The di.strict court denied 
this motion, saying that “while it certainly is not the strongest case I 
have ever heard, I think he just gets under the wire” (Tr. 259). The 
government then introduced its evidence. When the district court 
entered its formal findings of fact, however, it had apparently recon­
sidered, and it explicitly ruled that respondent failed to establish a 
prima facie case.

Certain portions of the di.strict court’s oi)inion can plausibly be read 
to hold that even if respondent did establish a indma facie case, the 
government rebutted it and respondent did not carry his ultimate 
burden of proving racial discrimination. See Pet. App. 58a-59a; id. at 
47a-48a (opinion of Wilkey, J., on petitions for rehearing). But the



6

3. The court of appeals did not overturn any of the 
district court’s findings of fact, but by a 2-1 vote it re­
versed. The panel majority quoted the elements of a Title 
VII prima facie case first specified in McDonnell Douglas 
Corj). V. Gree7i, 411 U.S. 792, 802 (1973) (Pet. App. 21a):

[A] prima facie case of racial discrimination [may be 
established] by showing (i) that [the plaintiff] be­
longs to a racial minority; (ii) that he applied and was 
qualified for a job for which the employer was seek­
ing applicants; (iii) that, despite his qualifications, he 
was rejected; and (iv) that after his rejection, the 
position remained open and the employer continued 
to seek applicants from persons of complainant’s 
qualifications.

The court of appeals then declared that “it is clear that 
[respondent] met the first, third and fourth elements of 
the test set forth in McDonnell Douglas: he is a black 
man; he sought promotion to higher level positions that 
became available; and white Post Office employees re­
ceived the positions” (Pet. App. 21a-22a). The court of 
appeals therefore addressed only the question whether 
respondent was qualified for the positions in issue. The 
court of appeals concluded that the district court 
erroneously believed the second element of the McDon­
nell Douglas test to require a claimant to show that he 
was as qualified or more qualified than the persons hired 
in his stead. In fact, the court of appeals said, all that was 
required was that a claimant be qualified; and the court 
ruled, on the basis of its examination of the record, that 
respondent had shown that he was qualified for the posi­
tions in issue (Pet. App. 22a-26a).

court of appeals expressly rejected this reading of the district court s 
opinion {id. at 44a-45a) and instead interpreted the opinion as holding 
simply that respondent failed to establish a prima facie case. We do 
not now challenge this interpretation of the district court’s holding.

The court of api)eals accordingly held that respondent 
had established a i)rima facie case (Pet. App. 28a). It 
remanded for further proceedings at which “the govern­
ment is * * * to be given the opportunity to offei the 
required proof concerning the legitimacy of the ))romo- 
tion decisions here in issue” (id. at 27a).'

This Court then granted our petition for a writ of 
certiorari, vacated the judgment of the court of a[)peals, 
and remanded the case to that court for furthei considei a- 
tion in light of Texas Department ofConimunitg Affairs 
V. Burdine, 450 U.S. 248 (1981). Two Justices dissented 
(Pet. App. 10a-14a). On remand, the court of a[)peals 
again proceeded from the premise that only the second 
element of the McDonnell Douglas test—requiring re­
spondent to show that he was qualified for the position he 
sought—was in issue (id. at 6a). ’’ The court of api)eals also 
adhered to its ruling that the district court erred in hold­
ing that respondent failed to establish a prima facie case

 ̂Judge Wilkey, in dissent, criticized the majority for considering 
only “minimal objective criteria for qualifications” (Pet. App. J7a) 
instead of “comparative criteria” {id. at Jfia); the latter, he .said, 
were more suited to evaluating employers’ decisions to hire and 
promote managerial employees {id. at 38a). He would have remanded 
the case to the district court for a finding on respondent’s qualifica­
tions “based on relative as well as absolute criteria of qualification 
{id. at 40a).

In our petition, we acknowledged that respondent possessed the 
minimum qualifications for the positions in issue (80-17.)7 Pet. 1,4,7, 
9). We argued that the court of appeals’ error was finding a ]irima 
facie case when respondent failed to show any circumstance compai a- 
ble to the fomih element of the McDonnell Donc/lm̂  test (80-1737 
Pet. 5, 7)—that is, any “ ‘circumstances which give rise to an in­
ference of unlawful discrimination’ ” {id. at 7, quoting 7’c.ra.s Depa rt- 
vienlof Comrnunity Affairs v. Burdine, supra, 450 U.S. a t253). The 
court of appeals did not request briefing or argument after this 
Court’s remand.



(ibid.), although it modified its earlier opinion by stating 
that in order to establish a prima facie case, a plaintiff 
must show more than that he “possesses the absolute 
minimum qualifications for a job *;ifthe employer has 
indicated that certain additional qualifications are 
necessary or preferred, the plaintiff must demonstrate 
that he has those qualifications as well” (ibid.).'' Instead 
of finding that respondent had established a prima facie 
case, the court of appeals concluded that the district court 
“did not make findings on [respondent’s] qualifications 
clear enough to permit us to determine if a prima facie 
case was established” (id. at 8a). The court of appeals 
accordingly ordered a remand to the district court (id. at 
9a).

SUMMARY OF ARGUMENT

A. Respondent showed only that he was a qualified 
black applicant for a position, and that a white applicant 
who was at least as qualified was selected instead. The 
court of appeals held, both before and after this Court’s 
remand, that such a showing is sufficient to establish a 
prima facie case of employment discrimination. This hold­
ing produces unacceptable results and is inconsistent 
with the principle that, in order to establish a prima facie 
case, a plaintiff must introduce evidence that “give[s] rise 
to an inference of unlawful discrim ination” (Texas 
Department of Community Affairs v. Burdine, 450 U.S. 
248, 253 (1981)).

1. Frequently, an employer will fill a vacancy by 
selecting from a group of qualified applicants. Whenever 
that group includes persons of different races—or sexes.

In this opinion, the court of appeals repeatedly referred to the 
district court’s “grant of summary judgment” in favor of the Postal 
Service (Pet. App. 2a; see id. at 3a, 9a). In fact, the district court 
entered judgment only after a full trial. See pages 5-6 note 3, supm.

religions, or national origins—at least one disappointed 
applicant will be able to show what respondent showed 
here; that he was qualified for the position he sought, and 
that a person of a different group received the position 
imstead. Certainly if the disapjwinted applicant is a mem­
ber of a minority group, and perhaps even if he is not, he 
will, under the court of appeals’ approach, be able to 
establish a prima facie case of discrimination. Thus if the 
court of appeals’ ruling stands, every employment deci­
sion made by selecting from a heterogeneous group of 
qualified applicants will automatically give rise to one— 
and frequently to more than one—prima facie case of 
employment discrimination.

2. This result, undesirable on its face, is also in­
consistent with this Court’s previous decisions. This 
Court has specified that in order to prove a prima facie 
case, a plaintiff must show circumstances giving rise to an 
inference of discrimination. But employers who do not 
discriminate can legitimately choose a qualified white 
over a black who is equally or less qualified; such a 
choice—unaccompanied, as it was here, by any suspicious 
circumstances—does not suggest that a discriminatory 
purpose was at work. The most that can be said of such a 
choice is that it leaves open the possibility that the em­
ployer may have discriminated; it falls markedly short of 
the showing of a probability of discrimination needed to 
establish a prima facie case.

B. 1. A plaintiff who has in fact been discriminated 
against is likely to have many other ways of establishing a 
prima facie case. For example, a prima facie case would 
be established by a qualified minority applicant who 
showed that the decision to reject him was economically 
irrational—either because it left open a vacancy (as in 
McDonnell Douglas Coiy. v. Green, 411 U.S. 792 (1973)) 
or because the employed chose a less qualified candidate



10

instead (as respondent unsuccessfully attempted to show 
here). Statistical evidence that an employer has con­
sistently selected disproportionately few members of a 
minority group can also establish a prima facie case, as 
can a history of discrimination or anecdotal evidence 
showing racial prejudice. While some of this evidence will 
usually be in the possession of the employer, that is not a 
reason to excuse the plaintiff from introducing it as part of 
his prima facie case; the plaintiff can obtain it readily 
through discovery, or through the extensive administra­
tive investigation to which he is entitled. Respondent, 
however, did not show either a pattern of discrimination 
or particular discriminatory acts.

In addition, respondent was told the Postal Service’s 
reasons for not promoting him during the administrative 
investigation of his case. In general. Title VII plaintiffs 
will be able to ascertain the reason for the allegedly 
discriminatory decision either through the administra­
tive process or by discovery. Once they learn that reason, 
they can establish a prima facie case by showing that it is a 
pretext. Moreover, in some circumstances, an employer’s 
unjustified failure to provide a reason when it is properly 
requested during discovery or the administrative in­
vestigation may itself complete a qualified minority appli­
cant’s prima facie case. But respondent was provided a 
reason well before trial, and he failed to show that it was a 
pretext.

2. The court of appeals’ approach also imposes ex­
cessive burdens on Title VII defendants, and on the 
courts that try Title VII actions. As a practical matter, if 
a plaintiff is held to have established a prima facie case—  
and thus survives a motion to dismiss made after his 
case-in-chief—the defendant must do more than articu­
late a reason for its action; the defendant must instead 
present all the evidence that supports its decision, in

11

order to protect against the possibility that the judge will 
find its reason to be a pretext. This evidence will often 
consist of a detailed examination of the comparative qual­
ifications of the plaintiff and the successful candidate. 
Particularly when, as in many managerial, professional, 
or government jobs, the basis for the selection is not 
easily quantified, the defense of the employment decision 
can be laborious and time-consuming. These burdens can 
be avoided, however, only if the plaintiff is held not to 
have established a prima facie case.

If the plaintiff has genuinely raised an inference of 
discrimination, the employer should of course be required 
to defend its action. But an employer should not be sub­
ject to being compelled to present a full-scale defense of 
its decision every time it chooses from a heterogeneous 
gi’oup of qualified applicants; and that is what the court of 
appeals’ decision effectively re(}uires.

ARGUMENT

AN EM PLOYER’S SELECTION OF A QUALIFIED  
WHITE APPLICANT FOR A POSITION INSTEAD OF A 
QUALIFIED BLACK APPLICANT DOES NOT, WITH­
OUT MORE, ESTABLISH A PRIMA FACIE CASE OF 
EMPLOYMENT DISCRIMINATION

A. Such a Selection Does Not Raise an Inference of Racial 
Discrimination

1. Respondent established that he was a qualified 
black applicant for the positions in issue, and that a white 
applicant received each position instead. But respondent 
established nothing more. He did not show, for example, 
that the Postal Service systematically treated whites 
more favorably than blacks; on the contrary, the district 
court explicitly found that the number of blacks in high- 
level positions at the Washington, D.C. Post Office in­
creased during the period of the alleged discrimination



12

against respondent. The district court also found that 
both blacks and whites were promoted to positions above 
respondent’s during that time. Nor did respondent show 
a history of discrimination at the Post Office; respondent 
himself had been promoted (or offered promotions or 
other new positions) steadily after 1952. The court of 
appeals, although ruling in respondent’s favor, similarly 
found “no indication that [respondent] was adversely 
affected by an employment policy or practice that con­
sistently operated to hold him, or blacks as a class, in the 
lower echelons of employment’’ (Pet. App. 19a-20a n.l).

The district court also found no direct evidence of racial 
discrimination by the officials responsible for denying 
respondent the positions he sought; that finding, too, was 
undisturbed on appeal. ’ Respondent did not show that 
the white employees who received the promotions he 
sought were less qualified than he. Finally, the officials 
responsible for the challenged promotions and details 
provided reasons for their actions even before the trial 
began; those reasons were reflected in the Postal Serv­
ice’s explanation of its decision not to gi’ant relief to 
respondent, and respondent did not show that those prof­
fered reasons were implausible or a pretext for racial 
discrimination.

In short, respondent showed only that he was a qual­
ified black applicant, and that white applicants who were 
no less qualified received the positions he sought. The 
district court correctly held that this showing was in­
sufficient to establish a prima facie case. But the court of

7 While respondent has asserted that there was evidence of racially 
derogatory remarks by a supervisor (Br. in 0pp. 3), the district 
court’s findings reflect no such evidence, and the court of appeals did 
not rely on—or even mention—any such evidence in overturning the 
district court’s holding that respondent failed to establish a prima 
facie case.

appeals disapproved that holding, both before and alter 
the remand from this Court. The court of appeals’ opin­
ions obscure the issue somewhat, because they focus on 
respondent’s qualifications; the opinion issued after this 
Court’s remand unaccountably comjilicates the “qualifica­
tions” element of the McDoujiell Dovfflns prima facie 
case." But what is at issue here is not respondent’s 
qualifications— which the Postal Service does not

” In it.s opinion after the remand from thi.s Court, the court of 
appeals a])peared to hold that, in order to establish a prima facie case, 
respondent would have to “demon.stratel | that hi.s i ejection did not 
result from ‘an absolute or relative lack of (lualifications’ ” (I’et. Ajip. 
8a, quoting Ititeniatimial Hrotherhood oj TeniiiaterH v. Ihiitcd 
St'afea, 431 U.S. 324, 358 n.44 (1977)). But the district court found 
that respondent was not as well qualified or better (|ualified than the 
successful applicants (Pet. App. 54a, .59a), and the court of appeals 
did not declare that finding to be clearly erroneous. It is therefore 
unclear why the court of appeals thought further proceedings were 
needed to determine if respondent was rejected becau.se of a “relative 
lack of qualifications.”

At another point in its second opinion, however, the court of 
appeals indicated that it was modifying its earlier opinion only to the 
extent of holding that a plaintiff “may be reciuired to go beyond a 
showing of minimum qualifications to demonstrate that he posse.sses 
whatever qualifications or background experiences the employer has 
indicated are important” (Pet. App. 8a; .see id. at fia). This passage 
appears to refer not to the di.stinction between absolute and relative 
qualifications but to a separate distinction between objective and 
subjective qualifications.

We agree with the court of appeals (Pet. App. 7a) that defining the 
qualifications for professional and managerial positions raises diffi­
culties often not encountered in defining the qualifications of blue- 
collar workers. See generally Pet. App. 32a-40a (Wilkey, J. dis­
senting); Bartholet, Application of Title Vfl to John in High Places, 
95 Harv. L. Rev. 947 (1982); Waintroob, The Developing Law of 
Equal Employment Opportunity at the White Collar and Profes­
sional Level, 21 Win. & Mary L. Rev. 45 (1979). But the.se que.stions



14

question—but the court of appeals’ adherence to its view, 
apparently now well established in the District of Co­
lumbia Circuit, ” that a qualified black applicant estab-

are not presented here because, as the case comes to this Couit, 
respondent’s qualifications, however defined, are not in issue; we do 
not contend that respondent was unqualified for the positions he 
sought, and respondent has failed to show that he was better qual­
ified than those who were selected. See also page 23 note 18,

«In Bundy v. Jackson, 641 F.2d 934, 951 (1981), for example, the 
District of Columbia Circuit stated:

[T]o make out a prima facie case the plaintiff must show that she 
belongs to a protected gi'oup, that she was qualified for and 
applied for a promotion, that she was considered for aiul denied 
the promotion, and that other employees of similar qualifications 
who were not members of the protected group were indeed 
promoted at the time the plaintiffs request for promotion was 
denied.

Accord, Valentino v. United States Postal Service, 674 F.2d 56, 63 
(D.C. Cir. 1982); Daye v. Harris, 655 F.2d 258, 262 n .l l  (D.C. Cir. 
1981);/’arfcerV. Baltimore&0. R.R.,652F.2d 1012,1017(D.C. Cir. 
1981).

The court of appeals of at least two circuits have rejected the 
District of Columbia Circuit’s approach. Hagans v. Andrus, 651 F.2d 
622,626(9thCir.), cert, denied, 454 U.S. 859(1981);Olsonx. Philco- 
Ford, 531 F.2d 474 (10th Cir. 1976). But see Mortensen v. Callaivay, 
28 Empl. Prac. Dec. (CCH) 24352, 24353 (10th Cir. Mar. 18, 1982). 
The Court of Claims has also specified that a qualified minority 
applicant proves a prima facie case by showing that “the supervisory 
level employees having responsibility to exercise judgment under 
the promotion system betrayed in other matters a predisposition 
towards discrimination against members of the involved minority. 
Pettit V.  United States, 488 F.2d 1026, 1033 (1973). In Olso7i, the 
Tenth Circuit remarked (531 F.2d at 478): “To make a prima facie 
case in a situation such as that before us something more is needed 
than proof that a qualified male was chosen over a qualified female. If 
nothing more is needed, we have indeed opened Pandora s box.

15

lishes a prima facie case merely by showing that a no less 
qualified white applicant was preferred for the position.

2. This case, therefore, concerns the common situa­
tion in which an employer has one vacancy to fill and 
chooses from among several qualified applicants. The 
facts of this case provide a typical example: an employer 
intends to fill a position by promotion, and several em­
ployees who apply for the promotion have performed 
adequately in their jobs and otherwise have the necessary 
experience and qualifications for the promotion. In 
another common situation, an employer first compiles a 
list of several applicants, all of whom are qualified, and 
then chooses one applicant from the list on the basis of a 
more detailed inquiry into the candidates abilities.

In any such situation, the court of appeals would re­
quire a finding of a prima facie case whenever a black, a 
woman, or a member of another racial, religious, or ethnic 
minority was among the qualified applicants, and a per­
son of a different race or sex was selected. The disap­
pointed applicant would be able to show that he was 
qualified, that he applied for an available position, and 
that a member of a different group was selected instead, 
that is the court of appeals’ definition of a prima facie case. 
See page 14 note 9, supra. If an employer’s pool of qual­
ified applicants is large and heterogeneous, a single em­
ployment decision will, therefore, automatically enable 
many disappointed applicants to establish a prima facie

Respondent alleged that he was the victim of intentional dis­
crimination, and both the district court and the couit of appeals 
viewed this case as one of “disparate treatment,’’ not “disparate 
impact.’’ See Texas DepaHnmit ofCommmiity Affairs v. Burdme, 
supra 450 U.S. at 252 n.5; hitemational Brotherhood of Teamsters 
V.  United States, supra, 431 U.S. at 324,335-336 n.l5. We according­
ly intend our discussion of the definition of a prima facie case to apply 
only to claims of disparate treatment.



16

case ." And since non-minority employees are a l^  pro­
tected by Title VII {McDonald v. Sante Fe Trail Trans- 
poHation Co., 427 U .S. 273 (1976)), it is at least arpiable 
that every time an employer makes a selection from a 
h etero g en eo u s  group of q u alified  ap p lican ts, i 
automatically establishes a number of prima facie cases ol 
employment discrimination against itself, no mattei
whom it selects. ^  ^

These results—and the court of appeals definition of a 
prima facie case, which necessarily spawns them—canno

courts apparently would permit each applicant whose 
prima facie case was not rebutted to receive a fu 1 back awaul 
even if there were only one vacancy. See, e.g., Jordan v. Delhi j  
Villa 661 F.2d 588, 594-595 (6th Cir. 1981); Kynaz, v. We.stern 
Electric Co., 465 F. Supp. 1141, 1146 (D.N.J. 1979).

In Daye v. Harris, 655 F.2d 258, 262 n .l l  (1981), the District of 
Columbia Circuit held, on the basis of McDonald v. Santa JeTrad  
Transportation Co., that a white applicant could prove a prim̂ a facie 
case of racial discrimination by showing “that she w-as qualified fo 
the position, that she was rejected, and that the defendant chose a 
similarly qualified applicant of another race. That she is wh'te is^io 
impediment to this suit * * *.” But in Parker v. Baltimore *  a  R.R., 
652 F.2d 1012 (1981), the District of Columbia Circuit ruled that this 
holding of Daye would apply only “when background circumstances 
support the suspicion that the defendant is the unusual employer who 
discriminates against the majority" (id. at 1017) The 
several such circumstances—a disproportionately large number 
minority promotions; a “racially discriminatory
“unlawful consideration of race as a factor in hiring in the pa.

1017-1018).
In our view, it is reasonable to require any plaintiff to show 

comparable background circumstances. See pages 21-30. 
Moreover, Title VII prohibits the federal government from dis­
criminating on the basis of “race, color, religion, sex, or national 
origin ” M ^y plaintiffs will be able to show that they be ong to a 
“mhiority”- t h a t  is, a group that has been historically disadvan­
taged—with respect to one of these criteria.

17

be correct. “An employer’s isolated decision to reject an 
applicant who belongs to a racial minority does not show 
that the rejection was racially based ’
Brotherhood of Teamsters V. United States, m  U .b. 324
358 n.44 (1977). In Texas Depaiiment of Commn.nity 
Affairs V. Burdine, supra, the
tial attribute of a prima facie case as follows (4o0 U .b. at 
253; emphasis added):

The plaintiff must prove by a
evidL ce that she apnlied for an pos tion for
which she was qualified, but was rejected itnde 
circumstances which give nse to an iiiference of un­
lawful discrimination.

The court of appeals’ approach essentially ignores the 
italicized phrase in this definition. ■' If abilities are dis­
tributed randomly through society, there will be a sub 
stantial number of cases in which an applicant who is not a 
member of a minority group can legitimately be preferrec 
to a member of such a group. Of course, if an employer 
selects disproportionately few minority applicants, a re­
jected applicant should be able to establish a prima facie 
case. See pages 23-24, infra. But the most that can be said 
about the selection of a qualified non-mmority applicant 
o v e r  a m in o r ity  a p p lic a n t  in a s in g le  c a se  
unaccompanied by any suspicious circumstances—is that

''EveiTbefore Burdine, the courts of appeals generally understood 
that the elements specified in McDonnell Douglas constitute a pnma 
facie case because S e y  give rise to an inference of ^
See, e.g., Liebemmn v. Gant, 630 F .2d 60, 63 <2d Cik 1980)
Mever v Missouri State Highway Commission, 567 F.2d 804, 808 
S c i r  1977) cert denied, 435 U.S. m S C m y ,  Chavez ^.Temple 

DistrJi No. n s .  565 F.2jl 1087. (Olh C .,
1977). See generally Alexander '[■
503,505 (10th Cir. 1975), cert, denied, 423
Jefferson Chemical Co., 516 F.2d 447, 449-450 (5th Cir. 1975).



18

it is not inconsistent with the hypothesis that the employ­
er has discriminated. Such a selection merely makes it 
possible— not probable—that the employer has dis­
criminated; by itself, it cannot be said to “give rise to an 
inference of ” discrimination. There is no sufficient reason 
for requiring the inference that every employment action 
that could possibly be discriminatory, is discriminatory. " 

The premise of the court of appeals’ approach appears 
to be that “in our present society,” racial discrimination is 
so pervasive that every choice of a white applicant over a 
qualified black—even if the white is as qualified or more 
qualified— “justifies an inference of prejudice” (Parker v. 
Baltimore O.R.R., 652 F.2d 1012, 1017 (D.C. Cir. 
1981)). We are not convinced that discrimination is so 
prevalent that “experience has proved that in the absence

'^The McDouuell Donglaft prima facie case is “a legally mandato­
ry, rebuttable presumption.” Texas Departaienf of Coiiniiiniifii 
Affairs v. Bnrdhie, supra, 4f)0 U.S. at 254-255 nn.7, 8, citing 9.J. 
Wigmore, Evidence 2491, 2494 (3d ed. 1940); see Flowers v. 
Crouch-Walker Corp., 552 F.2d 1277, 1283 n.4 (7th Cir. 1977). But 
“(a) presumption is based * * * upon the probative strength, as a 
matter of reasoning and inference, of the evidentiary fact.” 9 J. 
Wigmore, Evidence § 2491, at 304 (.1. Chadbourn ed. 1981). “|T|he 
most important consideration in the creation of presumptions is 
probability. Most presumptions have come into existence primarily 
because the judges have believed that proof of fact B renders the 
inference of the existence of fact A so probable that it is sensible and 
time-saving to assume the truth of fact A until the adversary dis­
proves it.” McCormick's Handbook of the Laiv of Evidence 807 (2d 
ed. E. Cleary 1972). Here, fact A is intentional discrimination; fact 
B—the prima facie case—should therefore be evidence making dis­
crimination probable, not merely possible. Otherwise, there is no 
proper basis for concluding that “(i|f the trier of fact believes the 
plaintiffs evidence, and if the employer is silent in the face of the 
presumption, the court must enter judgment for the plaintiff because 
no issue of fact remains in the case.” Texas DepaHment of Comniuni- 
fy Affairs v. Bnrdine, snpm, 450 U.S. at 254.

19

of any other explanation it is more likely than not that” 
the choice of a qualified white over an equally or less 
qualified black is “bottomed on impermissible con­
siderations” (Furnco Construction Corp. v. Waters, 438 
U.S. 567, 580 (1978)).

Even if discrimination were that pervasive, however, 
unrefined generalizations about the level of discrimina­
tion in society would not justify finding a prima facie case 
of discrimination in a particular case solely because the 
bare possibility of discrimination had been established. 
All employers are not equally likely to discriminate, and 
complete reliance on a society-wide generalization is not 
justified when evidence bearing on whether a particular 
defendant tends to discriminate—or whether a particular- 
decision was discriminatory—can be introduced instead. 
As we discuss (see pages 25-30, infra ), where such evi­
dence exists, it will generally be available to Title VII 
plaintiffs. A prima facie case should, therefore, be defined 
in a way that attempts to identify those particular deci­
sions which are more likely to have been discriminatory. 
The court of appeals did not even attempt to construct 
such a definition.

Moreover, while the court of appeals’ approach is pre­
mised on its perception of the prevalence of discrimina­
tion, the court’s approach would operate most harshly 
against those employers who have made efforts to bring 
minorities into their work force. As we have said, under 
the decision below, an employer who fills a vacancy from a 
racially (or sexually, etc.) diverse list automatically en­
ables some disappointed applicant—certainly any minor­
ity applicant not from the group of the successful 
candidate— to prove a prima facie case of employment 
discrimination. An employer can avoid a prima facie case 
only if the pool of qualified applicants available to it is 
racially (and sexually, etc.) homogeneous. But frequently



20

it is those employers who have made the greatest efforts 
to combat the effects of discrimination—by actively 
recruiting minorities, by hiring minorities into positions 
in which they will gain the skills and experience needed 
for promotions, or by establishing special training pro­
grams for minorities—who will create a heterogeneous 
gi-oup of qualified applicants from which to choose.

3 The court of appeals relied on McDonnell Douglas 
Coiy. V. Green, supra, but the contrast between McDon­
nell Douglas and this case is instructive, and supports our 
position. The fourth element of the McDonnell Douglas 
test identified a circumstance that gave rise to an in­
ference of d iscrim in ation -“after [the complainants] 
rejection, the position remained open and the employei 
continued to seek applicants from persons of com­
plainant’s qualifications” (411 U.S. at 802). Ih e  employ­
er’s decision to carry a vacancy rather than hire a qua - 
ified black or female applicant was also central to the 
prima facie case established by the plaintiffs in Funico 
Construction Corp- v. Waters, supra (see 438 U.b. at 
576) and Texas DepaHnient of Community Affairs v. 
Burdine, supra (see 450 U.S. at 254 n.6).

The court of appeals, without addressing the issue, 
unjustifiably equated a decision to select a qualified white 
applicant over a qualified black with the decision to carry 
a vacancy instead of hiring a qualified b la c k .A n  employ­
er who seeks employees with certain qualifications tor a 
position has presumably decided that it is to his advan­
tage to fill the position with such an employee. Leaving

In addition, in Burdine the plaintiff was denied a promotion in 
favor of a person who had been under her supervision. 450 U . b. at ̂ .>4
n.6.

"'The court of appeals made this equation explicit in Bioidy v. 
Jackson, supra, 641 F.2d at 951.

21

the position vacant after a qualified candidate has applied 
is, on the surface, contrary to the employer’s economic 
interests. Since ordinarily businesses do not knowingly 
act against their own economic interests, such behavior 
gives rise to a suspicion that other factors besides those 
that properly influence employment decisions played a
role. _ 1 - 1

But an employer who chooses one qualified applicant
over another who is equally or less qualified does nothing 
contrary to its economic interests. Even when the disap­
pointed applicant is a member of a minority group, this is 
the kind of choice that an employer who does not dis­
criminate will routinely make. See Texas Department of 
Community Affairs v. Burdine, supra, 450 U.S. at 259 
(“[T]he employer has discretion to choose among equally 
qualified candidates, provided the decision is not based 
upon unlawful criteria.”); Griggs v. Duke Power Co., 401 
U.S. 424, 436 (1971) (“Congress has not commanded that 
the less qualified be preferred over the better qualified 
simply because of minority origins.”). Unless there is 
some other circumstance that gives rise to an inference of 
discrimination, such a choice, standing alone, does not 
create a prima facie case of employment discrimination.

B. Requiring More Than a Showing That a Qualified Non- 
Minority Applicant Was Chosen Over a Qualified Minor­
ity Applicant Is Not Unfair to Plaintiffs and Avoids Plac­
ing Unwarranted Burdens on Employers

1. A plaintiff has ample alternative means of establishing 
a prima facie case.

1. As we have suggested, a plaintiff who is in fact a 
victim of discrimination is likely to have many ways of 
establishing a prima facie case. A plaintiff can, for ex­
ample, take advantage of the fact that discrimination is, 
in general, economically irrational; it is contrary to [t]he



22

broad, overriding interest, shared by employer, employ­
ee, and consumer, [in] efficient and trustworthy work­
manship assured through fair and racially i^eutral em­
ployment and personnel decisions.” McDonndl Douglas 
Corn. V. Green, supra, 411 U.S. at 801. See Contractors 
Association of Eastern Pennsylvania v.
Labor, 442 F.2d 159, 170-171 (3d Cir.), cert, denied, 404 
U S 854 (1971); Fiss, A Theory of Fair Employnient 
Laics, 38 U. ck i. L.’ Rev. 235, 249-253 (1971). Con­
sequently, a victim of discrimination will sometimes be 
able to show that the decision he challenges was contrary 
to the employer’s economic interests, and—as we have 
discussed in connection with McDonnell Douglas itself 
such a showing should generally be sufficient to raise an

t
inference of discrimination.^Respondent, for examp e,
might have established a prirfia facie case if he had shown 
that he was better qualified than the successfu white 
applicants; a decision to hire a less well-qualified apph- 
^ t  is, on its face, economically disadvantageous to the

Although the district court understandably empha- 
steed respondent’s failure to show that he was more qua - 
Tified than the successful a p p lica n ts ,w e  have never sug­
gested that this is the only way in which a plaintiff migh 
L v e  'a prima facie case. There are "‘her poss.b e 
[pproaches, one or more of which should prove fruitful to

>' Respondent’s credentials (detailed by the court of appeals (Pet 
App 22a-24a» are impressive (although not all necessardy pertinent 
to his ability to perform the Postal Service jobs in issue), and the 
district court may have considered them to be 
method of attempting to show a prima
court found {id. at 54a, 59a) that respondent did not show that he was 
more qualified than those who were selected, and the court of appea 
did not overturn this finding.

23

a plaintiff who has in fact been discriminated against.
For example, discriminatory bias is, as the term itselt 
suggests, generally a trait or tendency possessed by a 
decisionmaker—whether the decisionmaker is an institu­
tion or a particular supervisory employee—and therefore 
tends to be manifested with some regularity. As a 
a victim of discrimination should generally be able to 
point to other decisions or actions, besides the one he is 
challenging, that evidence racial prejudice. Thus statis­
tical “[elvidence of longlasting and gross disparity be­
tween the [racial] composition of a work force and that ol

For this reason, we believe it promotes clarity to confine the 
second element of the McDonnell Donqlan definition (referring to 
whether the plaintiff was qualified) to minimal, absolute qualifica­
tions, not relative qualifications. See pages 13-14 note 8 supra, h oi 
purposes of that element, an applicant is qualified if he cros.se  ̂ a 
certain “threshold” (Valentino v. United States Postal Service 674
F 2d 56 71n.24(D.C.Cir. 1982)); one might say that he is qualified so
long as’he is not unqualified. Many applicants ^
qualified. See, e.g., Powell v. Syracuse University, 580 h .2d 1150, 
1155 (2d Cir.), cert, denied, 439 U.S. 984 (1978); f  lowers ^^Cronch- 
Walker Corp., 552 F.2d 1277, 1283 (7th Cir. 1977). The Court ha.s 
consistently used the term in this way. See, ® 
of Community Affairs v. Burdine, supra, 450 U^S at 2;̂  ̂n.(i 2^ ,  
Fumco Construction Corp. v. Waters, siqira, 438 U.S. at 576 & n.8, 
McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802-«0.i.

By the same token, a plaintiff who attempts to establish a prima 
facie case by showing that he is more qualified than the successful 
candidate cannot rely solely on the qualifications specified by the 
employer at the time the employer seeks applications. An employer 
may select among eligible (that is, minimally qualified) applicants on 
some basis different from those specified by the eligibility cn tem , it 
is unrealistic to expect an employer to enumerate, when he adver­
tises a vacancy, all the reasons he may have for ultimately preferring 
one candidate. Indeed, an employer might realize that a particular 
quality or attribute would be desirable for the position he is filling 
only when he sees that quality in an applicant.



24

■* * * the pool of qualified job applicants” {International 
Brotherhood of Teamsters v. United States, supra, 4dl 
U.S. at 340 n.20) is frequently used to establish a prima 
facie case of discrimination against individual applicants. 
See id at 359 & n.45; Hazelwood School District v. 
United States, 433 U .S. 299, 308 n .l3  (1977); McDonnell 
Donqlas Cojp. v. Green, supra, 411 U.S. at 804-805; 
Davis V. Califano, 613 F.2d 957, 962 (D.C. Cir. 1979); 
Donaldson v. Pillsbnry Co., 554 F .2d 825, 833 (8th Cir.), 
cert, denied, 434 U .S. 856 (1977). “If race or sex bias in 
fact infects selection across-the-board it should not 
be impossible to assem[bjle the evidence from which a 
pattern of discrimination can be inferred.” Valentino y. 
United States Postal Service, 674 F .2d 56, 73 (D.C. Cir. 
1982) (Ginsburg, J.). Moreover, since Title VII was not 
enacted until 1964, a victim of discrimination will often be 
able to show a history of more overt discrimination by an 
em ployer;w hen  coupled with a showing that “relevant 
aspects of the decisionmaking process had undergone 
little change” {Hazelwood School District v. United 
States, supra, 433 U.S. at 309-310 n.l5), this too may be 
enough to establish a prima facie case. See ibid.; Village 
of Arlington Heights v. Metropolitan Housing Develop­
m en t Corp., 429 U.S. 2b2, 2G7 {1911). .

Nor does this exhaust the ways in which a victim ol 
discrimination might be able to establish a prima facie

'’•Congress extended the protections of Title VII to federal em­
ployees in 1972. Equal Employment Opportunity Act Section
11 Pub L No. 92-261, 86 Stat. I l l ,  codified at 42 U.S.C.2000e-l(),
see MoHon v. Mancari, 417 U.S. 535. 547 (1974). Although racia 
di.scrimination in federal employment had previously been unlawfu
(see Bollivg v. Sharpe, 347 U.S. 497 (1954); 5 U ^C^(Su,qi. 11 ) 
7201(b)), Congi-ess found it to be “entrenched (H.R. Rep. No.
2;i8. 92d Cong., 1st Sess. 24 (1971)) and pervasive. See Bimvn v. 
General Services Administration, 425 U.S. 820, 825-828 (1976).

25

case. Anecdotal evidence has often been used to show 
that “the supervisory employees having responsibil­
ity [for the challenged decision] •'= * betrayed in other 
matters a predisposition towards discrimination against 
members of the involved minority {Pettit v. United 
States ', 488 F.2d 1026, 1033 (Ct. Cl. 1973)), although 
inevitably the district court will have to evaluate the 
import of such evidence. A typical showing might consist 
of remarks that betray prejudice or stereotyped thinking 
{e.g., id. at 1028; Crawford v. Western Electric Co., 614 
F.2d 1300, 1314 (5th Cir. 1980)), inconsistent actions in a 
supervisory role that suggest discrimination (see, e.g., 
Kunda v. Muhlenberg College, 621 F .2d 532, 540, 546 (3d 
Cir. 1980); Causey v. Ford Motor Co., 516 F.2d 416, 423 
(5th Cir. 1975)), or a failure to correct the discriminatory 
acts of subordinates (compare Hagans v. Andrus, 651 
F.2d 622, 626-627 (9th Cir. 1981), cert, denied, 454 U.S. 
859 (1981), with Wright v. National Archives and Rec­
ords Service, 609 F.2d 702, 715-716 & n .l6  (4th Cir. 
1979)).

We recognize that some of these kinds of evidence may 
be more readily available to the employer than to a plain­
tiff. The extent to which this is true should not be over­
stated; anecdotal evidence, for example, is likely to be 
more readily available to an employee, and the employee 
may be able to obtain much other information through his 
union. See International Union of ElectHcal Workers v. 
NLRB, 648 F.2d 18 (D.C. Cir. 1980). But even if the 
information were in the sole possession of the employer, 
that would not be a sufficient reason to excuse the plain­
tiff from having to introduce it as part of his prima facie 
case. Plaintiffs’ prima facie cases in other areas of the law 
frequently include elements that can more easily be dem­
onstrated by the defendant; in some tort actions, for



2( )

example, plaintiffs must prove facts about the defen­
dant’s state of mind or about the reasonableness of vai i- 
ous practices in the defendant’s business or i)rofession. 
See McCormick’s Handbook of the Law of Evidence m  
(2d ed. E. Cleary 1972). Commentators have recognized 
that the importance of the parties’ relative access to 
information can easily be overstated as a factor in defin­
ing a prima facie case. See, e.g., 9 J. Wigmore, Evidence 
§ 2486, at 290-291 (J. Chadbourn ed. 1981); Cleary, 
Presuming and Pleading: An Essay on Jiisristic Im- 
ma/ri,n7?/,’l2Stan . L. Rev. 5,12(1959). Indeed, evidence 
of several of the undisputed elements of a McDonnell 
Douglas prima facie case— such as the e.xistence of a 
vacancy and the claimant’s qualifications—is under the
immediate control of the employer.

Like any other plaintiff, a Title VII plaintiff can, of 
course, invoke the discovery provisions of the Federal 
Rules of Civil Procedure. See Texas Department of Com­
munity Affairs V. Bnrdine, supra, 450 U.S. at 258. “Ex­
panded pretrial discovery would seem to have diminished 
greatly [the] importance’’ of placing the burden of produc­
tion on the party in possession of the information. McCor­
mick’s Ha ndbook on the Law of E vidence, supra, at 787.

Moreover, T itle VII plaintiffs in particular have 
another means of ready access to information held by the 
employer. Federal employees who allege discrimination 
are entitled to an elaborate administrative process, con­
sisting of conciliation efforts by an Equal Employment 
Opportunity Counselor (29 C .F.R . 1613.213), an in­
vestigation by an agency official (29 C.F.R. 1613.216), a 
hearing before a Complaints Examiner (29 C .F .R . 
1613.218), and review by the agency and then the Equal 
Em ploym ent Opportunity Commission (29 C .F .R . 
1613.221, 1613.231-1613.236). The investigation must be 
“a thorough review of the circumstances under which the

27

alleged discrimination occurred, the treatment of mem­
bers of the complainant’s group ”= compareil with the 
treatment of other employees in the organizational seg­
ment in which the alleged discrimination occurred, and 
any policies and practices related to the work situation 
which may constitute, or appear to constitute, dis­
crimination even though they have not been expi ess y 
cited by the comjilainant’’ (29 C.F.R. 1613.216(a)).

Witnesses giving testimony in the investigation are 
sworn, and agency employees are required to cooperate 
with the investigation (29 C.F.R. 1613.216(a), (b)). Any 
witnesses whom the complainant seeks to have apiiear at 
the hearing must do so unless the Complaints Examinei 
gives the complainant reasons, on the record, for dis­
approving the request, or the witness’s appearance is 
administratively impractical; in the latter case, the wit­
ness is to provide testimony by written interi ogatoi les 
(29 C F R. 1613.218(e)). The witnesses are subject to 
cross-examination, and “lijnformation having a bearing 
on the complaint or employment policy or practices rele­
vant to the complaint shall be received in evidence” (29 
C.F.R. 1613.218(c)(2)). Thus the administrative record 
the documents compiled in the investigations, the records 
of the hearings, as well as the recommendations and 
findings of the reviewing officials—may well contain the 
evidence the plaintiff needs to prove a prima facie case. 
This record is made available to the complainant (29 
C.F.R. 1613.217,1613.221(b)(2), 1613.222). ^eeEEOCv. 
Associated Di~y Goods Corp., 449 U.S. 590 (1981).

In sum, it should not be “onerous” [Texas DepaHment 
of Community Affairs v. Burdine, supra, 450 U .S. at 
253) for a clainiant to obtain the evidence he needs to raise 
an inference of discrimination—if that evidence exists.

2. The employer’s reason for rejecting the claimant’s 
application will ordinarily be ascertained during the in-



28

vestigation. InclGed, oiig of the virtues of the aclministia- 
tive in(}uiry is that it is likely to cause the responsible 
officials to give an account of their actions in a setting less 
artificial than a trial months or years after the event. In 
this case, for example, the Complaints Examiner in­
vestigated and then specifically described the reasons 
given by the responsible officials for denying resjjondent 
the promotions and details at issue here. If the reason for 
the employer’s action is not ascertained during the 
administrative process, a plaintiff can always inquire into 
it during discovery.

Once an employer has given a reason, the plaintiff will 
be able to explore other ways of raising an inference of 
discrimination. See Flowers v. Crouch-Walker Coip., 
552 F.2d 1277, 1282 (7th Cir. 1977). For examine, he may 
show that the reason is based on a factual premise that the 
employer did not really believe or “was so ridden with 
error that [the employer] could not honestly have relied 
upon it” {Liebermau v. Gant, 630 F .2d 60, 65 (2d Cir. 
1980)), or that the employer acts according to the prof­
fered reason only when employees of a certain race or sex 
are involved (see, e.g., Taylorv. Philips Industries, hic., 
593 F.2d 783, 786 (7th Cir. 1979); United States v. Lee 
W ay Motor Freight, Inc., 625 F.2d 918,930-931 (10th Cir. 
1979)). Such a showing, when made by a qualified minor­
ity applicant, should be sufficient to establish a prima 
facie case. Thus respondent might have had a prima facie 
case if he had shown that his supervisors did not believe 
that the transfers and promotions he rejected would 
make him better suited for the positions he unsuccessfully 
sought, or that similarly situated white employees’ rejec­
tions of such opportunities did not count against them. 
R espondent had an opp ortunity  to make such a 
showing—because he learned the reason for his rejection

29

during the administrative proceedings, at the latest—but 
he failed to do so.

Moreover, while the question is not presented here, we 
suggest that, at least in some circumstances, an employ­
er’s unjustified failure to provide a reason for his action, 
when asked to do so during discovery or an administra­
tive investigation, may itself complete the prima facie 
case of a qualified minority applicant. “[MJore often than 
not people do not act in a totally arbitrary mannei, with­
out any underlying reasons, especially in a business set­
ting.” Furnco Construction Coty. v. Waters, supra, 438 
U.S. at 577. Of course, an employer who has a reason for 
his action may have a legitimate explanation for not 
divulging it. Since respondent was provided with a 
reason, it is unnecessary to consider in this case what 
possible justifications might excuse an employer’s failure 
to provide a reason. See generally In re Dinnan, 661 F.2d 
426 (5th Cir. 1981), cert, denied. No. 81-1714 (June 7, 
1982). But in the absence of such a justification, since 
most employers can be expected to have a reason for their 
employment decisions, a refusal to supply a reason in 
response to a proper request suggests that the true 
reason is an impermissible one.

2" The Court has made it clear that an employer need not provide a 
reason that is somehow objective or quantifiable; an employment 
decision may rest on the employer’s .subjective evaluation of the 
candidates’ attributes. See McDonnell Donglas Coiy. v. Green, sup­
ra, 411 U.S. at 803-804. “[Wjhere * * * the employer in the best of 
faith merely weighed each person’s talents then (chose) the man ovei 
the woman (or the woman over the man), no case is made out under 
Title VII.”Pond V.  Braniff Ainvays, /nc., 500 h".2d 161,165(5th Cir. 
1974). See also Scott v. University of Delaware, 601 F.2d 76, 81 (3d 
Cir.), cert, denied, 444 U.S. 931 (1979) (applicant for faculty position 
rejected because faculty believed he “would not develop into an 
acceptable permanent professional colleague”); Shack v. Sonth- 
woHh, 521 F.2d 51, 55 (6th Cir. 1975) (applicant not hired because of 
his “attitude” and “lack of desire”).



80

3. A victim of employment discrimination should, 
therefore, have abundant opportunities to establish a 
prima facie case. He can show that he was better qualified 
than the applicant who was selected, or that the chal­
lenged employment decision appears in some othei i e- 
spect to be economically irrational. He can show statisti­
cal or other evidence of a discriminatory bias that man­
ifests itself in a pattern of conduct or in other particular 
instances. The information he needs to make these show­
ings should be readily available through discovery or in 
the administrative investigation. Finally, the claimant 
can ask the reason for his rejection. If a reason is sup­
plied, he can attempt to show that it was a pretext. If a 
reason is unjustifiably not supplied, that alone may com­
plete the prima facie case. In short, if there exists evi­
dence that gives rise to an inference of discrimination— 
instead of just creating a bare possibility of discrimina­
tion—a plaintiff should be able to obtain it and introduce it 
as part of his prima facie case. There is accordingly no 
need to adopt the court of appeals’ approach m order to 
ensure that a plaintiff with a good claim of employment 
discrimination will be able to establish a prima facie case.

2. A defendant should not be required to present a defense 
in an employment discrimination action unless the 
plaintiff shows more than the court of appeals required.

In Texas Depayiment of Comyyiwiity Affairs v. Bur- 
dine, supra, the Court held that when a plaintiff estab­
lishes a prima facie case of disparate treatment, the c e- 
fendant need only articulate, not prove by a preponcler- 
ance of the evidence, a legitimate reason for the chal­
lenged employment decision. Burdiyie described the basic 
order of proof in a disparate treatment case (450 U.S. at

31

252-253, quoting McDonnell Douglas Corp. v. Green, 
supy'u, 411 U.S. at 802, 804):

First, the plaintiff has the burden of proving by the 
preponderance of the evidence a pnma facie case ol 
discrimination. Second, if the plaintiff succeeds in 
proving the prima facie case, the burden shifts to the 
defendant “to articulate some legitimate, nondis- 
criminatory reason for the employee s rejection.
-.1= * * Third, should the defendant carry this burden, 
the plaintiff must then have an opportunity to prove 
by a preponderance of the evidence that the legiti­
mate reasons offered by the defendant were not its 
true reasons, but were a pretext for discrimination.

Out of context, this passage could be read to suggest 
that the only consequence of a plaintiffs establishing a 
prima facie case is that the employer must articulate a 
reason for the challenged action. As we have said, this 
will ordinarily not be difficult for an employer who has not 
discriminated. It might therefore be argued that the 
court of appeals’ approach, even if erroneous in some 
sense, is not unduly burdensome to a defendant.

This argument is incorrect, and is indeed belied by 
Burdiyie itself. Ordinarily in Title VII litigation, the de­
fendant will, at the close of the plaintiffs case, make a 
motion to dismiss under Fed. R. Civ. P. 41(b). If the 
plaintiff has established a prima facie case, this motion 
must be denied. But if the motion is denied, the defendant 
ordinarily will not just articulate a reason; as the Court 
said in Burdine, “the defendant * * * retains an incentive 
to persuade the trier of fact that the employment decision 
was lawful, [and therefore] the defendant normally will 
attempt to prove the factual basis for its explanation” (450 
U.S. at 258). In other words, the defendant not only will 
articulate the reason for its decision but will attempt to 
show that its reason was not a pretext.



32

In doing so, the deferalanl will, for example introduce 
evldJnce thai the plaintiff in fact had fHe 
assigned as the reason for his rejection, that the success 
ful cLdidate did not have that shortcoming or 
wise better qualified; or that its practices genei 
no sign of discrimination. See McDomidl Donum Cmp. 
T .g Z I  supro.. 411 U.S. at 804-805. That - .^ h - l e  en- 
dant will ordinarily present its entire “  m“f
becauseoncethemotiontodismisste^^^^^
is always some risk that the uiai couil 
defendant’s proffered reason ““"''"'■‘>’5' " n ' jX w  
{Texas Depnrtmeut oj CommnmUj . ; j j ;
supra, 4.50 U .S. at 25(1), or will conclude that  ̂fh* 1 “
t i f f s  initial ev id en ce, combined with ,t u t s  in iua f„„,i„rit =1= =1= =>=sufficeldl to discredit
examination of the defendant, ' However
the defendant’s explanation (id. at  ̂ |
weak the plaintiffs case may appear to be, the defenda 
cannot prudently offer less than all the available evidenc 
in support of its explanation.

This is often a very burdensome 
litigation. See Lieberman v. Gant supra, F^^d at 6 
n 1- Johnson v. University of Pittsburgh, 435 . «. II-
1328 1332 (W.D. Pa. 1977). Not only may the defendant 
introduce statistical and other ta'kK™™'' 
but the court and the parties w.ll
examine in detail the employment f e w
plaintiff and those who were hired m h,s place. - See bast

government was to inti ocl p evidence comparing

the positions he sought (Pet. App. 27a). , ,.9 n IV

r X 7 s t f  a minority group that must be made each year are

33

V. IComine, Inc., 518 F.2d 332, 33<l (5lh Cir. 11175) 
(“[C]omparative evidence lies at the heart of a rebuttal ol 
a prima facie case of employment discrimination. ’). Par­
ticularly when the employees work m a bureaucracy, 
many criteria may be used to evaluate them, and the 
judgments and impressions of the large number ot people 
who come into contact with them can be relevant; one can 
imagine, for example, the evidentiary inquiry needed to 
determine if the employer’s explanation that a candidate 
was selected because he was more compatible with his 
co-workers—a common and ordinarily reasonable ex­
planation (see, e.g., Burdine v.̂  Texas 
Community Affairs, 647 F .2d 513, ol4 (oth Cii .198 )) 
was a pretext. See also page 29 note 20, sujma. In 
al the only way to avoid such inquiries is a dismissal of the 
complaint under Rule 41(b) (or a grant of summary judg­
ment) on the gi-ound that the plaintiff has failed to prove a
prima facie case. . i

We of course recognize that if a plaintiff has genuinely 
raised an inference that he was discriminated against, the 
defendant should be required to present the appropriate 
evidence in response. But as we have explained, the court

regularl7takeu to court and entail burdens such as those here in­
curred.’’ In Johnson, after a f.ve-day hearing to determine whether 
the plaintiff had a prima facie case, the trial lasted 74 days. 43o K  
Supp. at 1332. At its conclusion, the complaint wiis Oismisscft Se 
also Vuyanich v. Republic National Bank, o05 h . Supp. 224, 232 
(N D 'Tex 1980) “It is little wonder that some courts have ex­
pressed concern at the spectacle of trials lasting for weeks followmg 
years of discovery, and involving a multitude of statistical and ot er 
experts and seemingly endless testimony about the credentials of a 
single candidate. These cases are just not worth it, from the point of 
view of litigants, courts, or society generally, unless broad issues 
related to the legality of entire job systems are to be 
Bartholet, Application of Title VII to Jobs m High Places, 95 Harv.
L. Rev. 947, 1002 (1982).



M

of appeals’ approach would enable a plaintiff to establish a 
prima facie ca se-an d  thereby force an employer to pre­
sent an extensive defense of its action—whenevei any 
disappointed qualified applicant was of a diffeient .e  , 
race, religion, or national origin from the successful apph- 
cant. In other words, the effect of the court of appeals 
approach is to compel employers to mount a full-scale 
defense, in court, of routine employment decisions that 
show no sign of being discriminatory. We do not believe 
Title VII was intended to have that efiect. -

« An alternative way of resolving the problem created by he com t 
of appeals’ approach would be to divide into two subsidiary stages the 
thir^Utage of litigation identified in the passage in Burdme quoted at 
page T Z r a .  disparate treatment litigation would then have four 
stages: (1) the plaintiff must introduce some quantum of e^'^nce 
sufficient to require the employer to articulate a reason foi the 
challenged decision; (2) the employer must articulate a reason (if e
has not already done so in discovery or the ‘J;
(3) the plaintiff then must adduce evidence (or point to evidence he 
has already adduced) sufficient to show that the employer « ^xp an - 
“  H X f ,  ami (4) the employe.- then hao an o p ,«  um t, lo
rebut that evidence. See Liehennan v. Gaid, 'j’;
65-r.f, The fourth stage is the most burdensome for the f’̂ fendant 
Jhe crucial question, therefore, is what the plainti f must show to be 
entitled to survive a Rule 41(b) motion at the end of stage (3)  ̂()u 
discussion of a prima facie case in this brief is intended to answer
question.

Such a four-stage process-w ith motions to dismiss in onler at two 
separte ^ n 's -w m ^  be unconventional, however, and quite un- 
r  he — y civil auit In which the l■lainll;r 

ca.se-in-chief followed by the defendant’s 
itself seems to contemplate only two cases-ni-chiefi 
have said, the defendant’s explanation is often available (and 
should be made available) before the trial even begins.

CONCLUSION

The judgment of the court of appeals should be re­
versed.

Respectfully submitted.

Rkx E. Lkk 
SolicUor General

Pmii, McGkath 
Avyifttanf Attorney General

Lawkknck G. Wallace 
Deputy Solicitor General

David A. Strauss 
Afisistant to the Solicitor General

Rohert S. Greenspan 
Marleigh D. Dover 

Attorneys

.June 1982

o  S  O O V eU N M E N T  P R IN T IN G  O FF IC E : 1 9 0 2