Lewis v. University of Pittsburgh Petition for a Writ of Certiorari

    IN THE

No.

Supreme Court of the United States

October Term, 1983

IDA MARY LEW IS,

vs.
Petitioner,

UNIVERSITY OF PITTSBURGH and 
UNIVERSITY OF PITTSBURGH BOOK CENTER,

Respondents.

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

FOR THE THIRD CIRCUIT

JA M ES H. LOGAN, ESQUIRE 
Attorney for Petitioner 
1100 Lawyers Building 
428 Forbes Avenue 
P ittsburgh, Pennsylvania 15219 
(412) 765-0960

Batavia Times Publishing Co.
Edward W. Shannon 

Pittsburgh, Pa. (412) 881-7463



1.

Statem ent of Questions Presented for Review

1. W hether the application by the Court of Appeals of 
its Internal Operating Procedures deprived Petitioner of 
her right to full appellate review, and whether such 
application by the Court of Appeals has effected a 
manifest injustice?

2. W hether a Black employee in a race discrimination 
denial-of-promotion case was improperly denied the 
opportunity to rebut the employer’s alleged legitimate 
non-discriminatory business reason defense and good 
faith defense, when the trial court refused to permit her 
to introduce evidence of nepotism which directly 
involved the white employee who received the 
promotion?

3. In a race discrimination denial-of-promotion case, 
whether the trial court improperly instructed the jury  as 
to claims brought under 42 U.S.C. Sections 1981 and 
1983, and whether the court improperly applied the law 
as to the claim brought under Title V II of the Civil 
Rights Act of 1964, when the court foreclosed the 
possibility of inferential and indirect methods of proof of 
discriminatory intent?

4. In a race discrimination denial-of-promotion case, 
whether the trial court improperly instructed the jury  as 
to claims brought under 42 U.S.C. Sections 1981 and 
1983, and itself misapplied the law as to the Title VII 
claim tried non-jury, when the court stated th a t race 
m ust be “ the determinative factor” and tha t a Black 
employee m ust prove th a t “but for" considerations of 
race, she would have received the promotion?



11.

Parties to the Proceedings

The parties to these proceedings are the same as those 
set forth in the caption of this case.



111.

TABLE OF CONTENTS.

Page
Statem ent of Questions Presented for R eview ........... i

Table of P a r t i e s .................................................................  ii

Table of C ontents...............................................................  iii

Table of A uthorities........................................................... v

Petition for W rit of Certiorari to the United States 
Court of Appeals for the Third Circuit ....................  1

I. Opinions of the Courts Below. . ............................ 1

II. Jurisdiction................................................................ 2

I I I .  C o n stitu tio n a l P rovision and S ta tu te s
Involved..............................................................   2

IV. Statem ent of the C a s e ...........................................  3

V. Reasons for Granting the W rit. . ......... .............   10

A. The Court of Appeals in Applying its
In te rn a l O perating  Procedures deprived 
Petitioner of Her Right to Full Appellate 
Review, and Such Application by the Court of 
Appeals has Effected a Manifest In justice ......... 10

B. Petitioner Was Improperly Denied the
Opportunity to Rebut the Employer’s Alleged 
L eg itim ate  N on-d iscrim inatory  B usiness 
Reason Defense and Good Faith Defense, When 
the Trial Court Refused to Permit Her to 
Introduce Evidence of Nepotism Which 
Directly Involved the White Employee Who 
Received the Promotion Sought by Petitioner. . 12

C. In this Race Discrimination Denial-of- 
Promotion Case, the Trial Court Improperly 
Instructed the Jury  as to the Claims Brought



I V .

Page

under 42 U.S.C. Sections 1981 and 1983, and 
Improperly Applied the Law as to the Claim 
Brought under Title VII of the Civil Rights Act 
of 1964, When It Foreclosed the Possibility of 
Inferential and Indirect Methods of Proof of
Discriminatory In te n t .................. ......................... .. 16

D. In this Race Discrimination Denial-of- 
Promotion Case, the Trial Court Improperly 
Instructed the Jury  as to Claims Brought under 
42 U.S.C. Sections 1981 and 1983, and Itself 
Misapplied the Law as to the Title VII Claim 
Tried Non-jury, When the Court Stated That 
Race M ust Be “The Determinative Factor’’ and 
That a Black Employee M ust Prove That “But 
For” Considerations of Race, She Would Have
Received the P ro m o tio n ................................ .. 21

VI. Conclusion...................................................................  24

Appendix:
Opinion and Order of the United States District 

Court for the W estern D istrict of Pennsylvania,
dated January 5, 1983.............................................  la

Opinion in the United States Court of Appeals for 
the Third Circuit, dated December 30, 1983 (2-1
decision).....................................................................  12a

Order and Statem ent Sur Petition for Rehearing 
in the United States Court of Appeals for the 
Third Circuit (regarding Petition for Rehearing),
dated February 9, 1984............................................ 56a

Statutes, Federal Rule of Appellate Procedure, 
and Internal Operating Procedures of the Third
Circuit Court of A ppeals.......................... .............. 62a
1. Statutes:

a. 42 U.S.C. Section 1981................................. 62a
b. 42 U.S.C. Section 1983 ..............................  62a



V .

Page

c. 42 U.S.C. Section 2000e-2(a).................... 62a
d. 42 U.S.C. Section 2000e-5(f)(l)................ 63a
e. 42 U.S.C. Section 2000e-5(f)(3)...............  65a
f. 42 U.S.C. Section 2000e-5(g)...................... 65a

2. Federal Rule of Appellate Procedure 35(a) . . 67a
3. Internal Operating Procedures of the Third

Circuit Court of A ppeals.................................  67a

Cases:

TABLE OF AUTHORITIES.

Arnold v. Eastern Air Lines, 712 F.2d 899 (4th
Cir., 1 9 8 3 )........................................................................ 11

Lewis v. University of P ittsburgh, 725 F.2d 910
(3rd Cir., 1983)....................................   passim

McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273 (1976).............................   17,19

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) .................  12,13,14,17,18

Moody v. Albemarle Paper Co., 417 U.S. 622
(1974) ..............................................................................  12

Smithers v. Bailar, 629 F.2d 892 (3rd Cir.,
1980).............     22

Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981)................. ......... .................... 13,14,18

United States v. Forness, 125 F.2d 928 (2nd Cir.,
1942), cert, denied 316 U.S. 694 (1942).....................  20,21

United States Postal Service Board of Governors
v. Aikens, _____  U.S. _____ , 103 S.Ct. 1478
(1983). . ...........................................................  13,14,15,19,22

United States v. United States Gypsum Co., 333
364 (1948).......................................................................... 20

W estern Pacific Railroad Case, 345 U.S. 247 (1953) 12 
W hiting v. Jackson State University, 616 F.2d 

116 (5th Cir., 1980)......................................................  22,23



Statutes and Rules:

28 U.S.C. §1254(1)......................................................   2
42 U.S.C. §2000e et seq., Title V II of the Civil

Rights Act of 1964.....................................................passim
42 U.S.C. §1981...........................................   passim
42 U.S.C. §1983 ..............................................................passim
Internal Operating Procedures of the United States 

Court of Appeals for the Third C irc u it.................4,10,11

Other Authorities:

Harper, “The Breakdown in Federal Appeals,’’ ABA
Journal, Feb., 1984, at 5 6 ............................................ 12

Sylvester, “W hat Does a ‘M ajority’ Mean in En 
Banc Cases?”, National Law Journal, January 16, 
1984, a t 6 ........................................................................ 12

vi.
Page



IN THE

Supreme Court of the United States

October Term, 1983

No.

IDA MARY LEWIS,

vs.
Petitioner,

UNIVERSITY OF PITTSBURGH and 
UNIVERSITY OF PITTSBURGH BOOK CENTER,

Respondents.

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

THE THIRD CIRCUIT

IDA MARY LEW IS hereby petitions tha t a W rit of 
Certiorari be issued to review the judgm ent of the 
United States Court of Appeals for the Third Circuit 
entered in this case on February 9, 1984.

I. Opinions of the Courts Below

The opinions of the Court of Appeals of which 
Petitioner seeks review are reported at 725 F.2d 910 (3rd 
Cir., 1983), and are set forth in the Appendix.

The Opinion and Order of the United States District 
Court for the W estern D istrict of Pennsylvania are not 
reported; they are set forth in the Appendix.



2

I I .  Jurisdiction

The judgm ent of United States Court of Appeals for 
the Third Circuit was entered on February 9, 1984. The 
jurisdiction of this Court is invoked under 28 U.S.C. Sec. 
1254(1).

I I I .  Constitutional Provision and Statutes Involved

The constitutional provision involved is the Fourteenth 
Amendment to the United States Constitution, Section 
1, as follows:

“All persons born or naturalized in the United 
States and subject to the jurisdiction thereof, are 
citizens of the United States and of the State 
wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or 
immunities of citizens of the United States, nor shall 
any State deprive any person of life, liberty, or 
property, without due process of law; nor deny for 
any person within its jurisdiction the equal 
protection of the laws.”

The statu tes involved are Title VII of the Civil Rights 
Act of 1964 (hereinafter “Title V II”), 42 U.S.C. Section 
2Q00e et seq., specifically Sections 2000e-2(a), 2000e- 
5(f)(1), and 2000e-5(f)(3) and 42 U.S.C. Section 2000e-5(g); 
all of such sections are set forth in their entirety in the 
Appendix.

This proceeding also involves 42 U.S.C. Sec. 1981, 
which is set forth in its entirety in the Appendix.

This proceeding also involves 42 U.S.C. Sec. 1983, 
which is set forth in its entirety in the Appendix.



3

IV. Statem ent of the Case

A. Procedural H istory

Petitioner, Ida Mary Lewis, a Black woman, filed a 
complaint in the United States D istrict Court for the 
W estern D istrict of Pennsylvania on March 29, 1979. 
She alleged th a t the Respondents, University of 
P ittsburgh and University of P ittsburgh Book Center, 
deprived her of rights secured by Title VII of the Civil 
Rights Act of 1964, and also secured by 42 U.S.C. 
Section 1981 and Section 1983, by denying her a 
promotion on the basis of race, despite her being 
qualified for the vacant position of A ssistant Buyer in 
the Trade Book Department. On December 13, 1982, a 
trial commenced on all three of the Petitioner’s claims, 
the claims under 42 U.S.C. Sec. 1981 and Sec. 1983 being 
tried before a jury, and the Title VII claim being tried 
before a D istrict Judge acting as the Finder of Fact.

On December 16, 1982, the jury returned its verdict 
regarding the Section 1981 and Section 1983 claims, in 
the form of answers to special interrogatories, in which 
the jury  found th a t Plaintiff was “qualified” in October, 
1976, for the position of A ssistant Buyer in the Trade 
Book Departm ent (answer to Interrogatory No. 1), and 
th a t Plaintiff was “more qualified” in October, 1976, for 
the position of A ssistant Buyer in the Trade Book 
Departm ent than Jean Aiello, a white individual who in 
fact received the promotion for which Petitioner had 
applied (answer to Interrogatory No. 2), but the jury 
answered “No” to Interrogatory No. 3, which was stated 
as follows:

“Would Plaintiff, Ida Mary Lewis, have been 
promoted to the position of A ssistant Buyer but for 
the fact th a t she is black?”



4

On December 16, 1982, the D istrict Court entered 
judgm ent in favor of Respondents and against Petitioner 
as to the two claims tried before the jury, i.e., the 
Section 1981 and Section 1983 claims.

Thereafter, as to the Title V II action, Petitioner filed 
her “Requested Findings of Fact and Conclusions of 
Law”, and Respondents filed a “Response to Plaintiff’s 
Requested Findings of Fact and Conclusions of Law” . 
By Opinion and Order of Court dated January 5, 1983, 
the District Court made Findings of Fact and 
Conclusions of Law as to the Title V II claim, deciding 
against Petitioner and in favor of Respondents.

Petitioner subsequently filed an appeal to the United 
States Court of Appeals for the Third Circuit. The Court 
of Appeals decided by a 2-1 majority on December 30, 
1983, in favor of Respondents and against Petitioner. 
Thereafter, Petitioner filed a timely Petition for 
Rehearing, and eight of the ten available circuit judges 
of the circuit in regular active service considered such 
petition. Two of the ten circuit judges in regular active 
service sua sponte recused themselves from voting on 
Petitioner’s Petition for Rehearing. Of the eight circuit 
judges who considered Petitioner’s Petition for 
Rehearing, five of the eight judges voted to grant the 
Petition for Rehearing; thus, a 5-3 majority of the judges 
who considering the petition, voted in favor of granting 
the Petition for Rehearing.

According to Internal Operating Procedure No. 9B(4) 
of the Third Circuit, a rehearing can be granted “only 
upon the affirmative votes of a majority of the circuit 
judges of this court in regular active service”. Circuit 
Judge Adams filed a Statem ent Sur Petition for 
Rehearing, voicing his objection, indicating th a t four of 
the circuit courts of appeal in this country (the Fourth,



5

Seventh, Eight, and Ninth) “have chosen to grant in 
banc reconsideration whenever favored by a majority of 
the non-recused ju d g e s /’ Lewis v. University o f 
Pittsburgh, 725 F.2d 910, 930 (3rd Cir., 1983). Circuit 
Judge Adams also indicated the following:

. I believe th a t the current lack of uniformity 
among the circuits on this im portant issue creates 
the  appearance  of r ig h ts  de term ined  by
happenstance. Accordingly, although I do not 
advocate tha t our court use its rule-making power to 
follow the new trend, I do record my concern with 
the intercircuit conflict over the rules for granting in 
banc reconsideration and express the thought tha t 
Congress or the Supreme Court should provide 
definitive guidance a t an early occasion.” Id.

B. F acts

This case concerns the October, 1976, denial to 
Petitioner, Ida Mary Lewis, a Black woman, of a 
promotion for which she applied, to the position of 
A ssistant Buyer in the Trade Book Department, and the 
grant of such promotion by the University of P ittsburgh 
Book Center to Jean Aiello, a white woman.

The trial court refused to allow into evidence the fact 
th a t Aiello was the niece of the Operations Manager of 
the Book Center, Angeline Bonasso, tha t Ms. Bonasso 
had supervisory authority over Dwight Fong and Russell 
Kierzkowski, the two individuals having direct 
responsibility for the selection of Aiello rather than 
Petitioner, th a t Ms. Bonasso was second in command a t 
the Book Center, and th a t Fong and Kierzkowski 
actually knew of such aunt-niece relationship in October, 
1976. Petitioner through her counsel asserted to the 
court th a t such m atters were relevant for two reasons:
(1) I t would tend to “ show the state  of mind of the 
decision makers, and the question of intent or purposeful



6

actions of the decision-makers are relevant . . and (2) 
I t  would tend to show tha t the decision to favor a 
relative of a current employee is in violation of the 
University of P ittsburgh Staff Handbook proscription 
against nepotism (Record before the Third Circuit, at 
55a-57a, 555a).

The Respondents contended a t trial th a t they selected 
Aiello rather than Petitioner for the alleged legitimate 
non-discriminatory business reason th a t Petitioner was 
not qualified for the position, whereas Aiello allegedly 
was qualified. Most of the evidence introduced by 
Respondents concerned such issue.

Respondents also raised the defense th a t in selecting 
Aiello rather than Petitioner, their agents acted “in good 
faith”, th a t they were not motivated by any 
consideration of race, and th a t they had an “honest 
belief” th a t Aiello was qualified for the position and tha t 
Petitioner was not (Record before the Court of Appeals 
a t 229a-230a, 269a-270a, 276a, 315a). The court
specifically instructed the jury  th a t the “good faith or 
honest belief” of Respondents’ agents “would be a 
legitimate non-discriminatory reason for not prom oting” 
Petitioner (Record before Court of Appeals a t 526a).

The following facts were not disputed by Respondents 
a t trial:

1. Petitioner has been a full-time employee with the 
Book Center from December, 1965, to the time of trial; 
Petitioner was a Buyer in the Trade Departm ent from 
July, 1967, continuously until February, 1975, a period 
of 7'/2 years; a t all other times during her employment at 
the Book Center, Petitioner has been a clerk;

2. In  February, 1975, the three Buyer positions in the 
Trade Department were consolidated into two positions,



7

and Petitioner’s job classification was changed from 
Buyer to clerk; the change in Petitioner’s job position 
was not in any way related to any deficiency in 
Petitioner’s job performance as a Buyer, but was 
effected by the Book Center for business reasons; in 
February, 1975, Petitioner was offered a position of 
Buyer in the Text Department;

3. In the entire period of Petitioner’s service as a 
Buyer, and in the additional periods of time when 
Petitioner was not a Buyer, she had been given no 
written warning or admonishment as to any deficiency in 
her job performance, and no written memorandum or 
evaluation of any deficiency in Petitioner’s job 
performance appeared in Petitioner’s personnel file, as of 
October, 1976;

4. Petitioner’s personnel file contained numerous 
favorable evaluations and statem ents regarding her job 
performance;

5. Petitioner had received two large pay increases in a 
six-month period in 1970, which reflected an increase in 
salary of 41.46 percent (41.46%), an unusually large 
increase;

6. Petitioner had great experience in the book field 
generally, having worked a t various retail book stores 
before coming to work a t the Book Center in 1965, and 
having worked in libraries;

7. Petitioner had obtained a Bachelor’s Degree from 
Carnegie Institu te  of Technology (now Carnegie-Mellon 
University), and had obtained a M aster’s Degree in 
History from the University of Pittsburgh and a 
M aster’s Degree in Library Science from the Carnegie 
Institu te  of Technology, Library School;



8

8. During the 7'/2 years from July, 1967, to February, 
1975, in which Petitioner held the position of Buyer of 
technical books, the gross dollar volume of sales of 
technical books increased each year with the possible 
exception of one year, the gross sales in the initial year 
of operation of this technical section being $30,000 and 
being $91,625 in the last year of the existence of such 
section; Petitioner was the Buyer of technical books 
during such period;

9. As of October, 1976, the date of the promotion 
decision challenged by Petitioner, Jean Aiello had only a 
high school degree, had about two years’ of college 
credits, had no previous experience in libraries or in the 
retail book field before coming to work with the Book 
Center (as a full-time employee, in June, 1972), and had 
no prior experience as a Buyer; her job position 
immediately prior to October, 1976, was sales clerk;

10. Assuming arguendo th a t Respondents’ agents 
Fong and Kierzkowski, who supervised Petitioner for 
several years prior to October, 1976, had been seriously 
concerned about P e titio n e r’s job  perform ance, 
Respondents’ agents had not followed the University’s 
mandatory policies and procedures for the issuance of 
admonishments, as set forth in the U niversity’s Staff 
Handbook, which states in material part the following;

All disciplinary actions m ust be in writing. An 
admonishment may be issued for a violation of 
standards of conduct, or for a lack o f job 
performance proficiency. A dm onishm ents will 
always be issued for a violation which, i f  continued, 
would result in dismissal. They will not be issued for 
constructive criticism, minor infractions, or the like. 
(Emphasis supplied).



9

As to factual m atters tha t were disputed at trial, 
Respondents’ witnesses (Fong, Kierzkowski and Aiello) 
testified th a t Petitioner's job performance as a Buyer 
had been defective in many respects, the three major 
alleged deficiencies being her not doing her book returns, 
re-orders and stock checks timely and properly; another 
allegation was th a t she did not know store procedures. 
Petitioner, on the other hand, testified th a t the 
testimony of these three individuals was not accurate, 
and tha t she did the above tasks properly and timely, 
and she knew store procedures. She testified tha t she 
could and did perform the functions of technical trade 
book Buyer as set forth in the Book Center's written job 
descriptions.



10

V. Reasons for Granting the W rit

A. The Court of A ppeals in Applying its  In ternal O perating 
Procedures deprived Petitioner of H er R ight to  Full Appellate 
Review, and Such A pplication by the  Court of A ppeals has 
E ffected  a M anifest Injustice.

If the 2-1 majority decision of the United States Court 
of Appeals for the Third Circuit is allowed to stand, 
Petitioner will have to endure an extremely harsh and 
unfair result. Although the jury  found not only tha t 
Petitioner was “qualified” for the position of A ssistant 
Buyer in the Trade Book Departm ent (Jury Answer to 
Special Interrogatory No. 1), but also th a t Petitioner was 
“more qualified” for such position than the white 
employee who actually received the promotion, Petitioner 
still did not prevail on her race discrimination and 
constitutional claims brought pursuant to 42 U.S.C. 
Sections 1981 and 1983. Moreover, the trial court’s 
findings of fact on the Title V II claim were directly at 
odds with the ju ry ’s answers to Interrogatories Nos. 1 
and 2, and the court’s findings were clearly erroneous 
and were not supported by substantial evidence. On 
appeal, although a two-member majority decided against 
Petitioner, Circuit Judge Adams in a strongly-worded 
and lengthy dissent, indicated th a t he would have 
overturned the lower court’s decision on any one of three 
independent bases. Lewis v. University o f Pittsburgh, 
725 F.2d 910, 920 (3rd Cir., 1984). The three points which 
Circuit Judge Adams raised in his dissent, are Questions 
2, 3 and 4 of the Statem ent of Questions Presented for 
Review raised in this Petition for a W rit of Certiorari.

Petitioner filed a Petition for Rehearing before the 
Court of Appeals, and as set forth heretofore, eight of 
the ten circuit judges considered such petition. Of the 
eight circuit judges who considered such petition, five



11

voted to grant rehearing and three voted not to grant 
rehearing. Of the three circuit judges who voted, against 
the Petition for Rehearing, two were the two members of 
the 2-1 panel decision. Two of the ten circuit judges had 
recused themselves sua sponte.

Circuit Judge Adams filed a Statem ent Sur Petition 
for Rehearing, voicing his objection as to the unfair and 
harsh result th a t is produced by application of the Third 
Circuit’s Internal Operating Procedures by which 
Petitioner was denied rehearing, even though a 5-3 
m ajority of the circuit judges who actually considered 
her Petition for Rehearing voted to grant such Petition. 
Id., at 928. Petitioner submits th a t the five circuit 
judges voting for rehearing would not have so voted 
unless they were going to rule in favor of Petitioner on 
the merits of her appeal, or at the very least, unless such 
judges were seriously disturbed by the import or 
reasoning of the 2-1 panel decision in favor of 
Respondents.

As Judge Adams points out, if Petitioner had resided 
geographically within the boundaries serviced by any of 
four other federal circuit courts of appeal—the Fourth, 
Seventh, E ighth and N inth—a 5-3 majority decision of 
the non-recused judges such as in this instant case would 
have resulted in Petitioner’s having received in banc 
reconsideration. Id., a t 930; Petitioner submits th a t she 
would have been awarded a favorable result.

The split of authority between the circuit courts of 
appeal on this issue is further emphasized in the Fourth 
Circuit opinion in Arnold u. Eastern A ir Lines, 712 F.2d 
899 (4th Cir., 1983), {en banc), cert, denied, 104 S.Ct. 703 
(1984). The growing controversy regarding the 
conflicting interpretations by the circuit courts of appeal 
concerning the in banc voting procedures has also been



12

commented on in various publications. See, e.g.. Harper, 
“The Breakdown in Federal Appeals," ABA Journal, 
Feb., 1984, at 56; Sylvester, “W hat Does a ‘M ajority’ 
Mean in En Banc Cases?”, National Law Journal, 
January 16, 1984, at 6.

The Supreme Court has the “general power to 
supervise the administration of justice in the federal 
courts,” Western Pacific Railroad Case, 345 U.S. 247, 
260 (1953), and this Court should not be hesitant to 
exercise such power, especially when there is such a 
sharp divergence in practice among the circuits. In 
Moody v. Albemarle Paper Co., 417 U.S. 622 (1974), the 
Supreme Court exercised its power to define some of the 
boundaries of in banc practice, when it ruled th a t senior 
judges could not participate in voting on whether to 
grant in banc rehearing. Id., at 626.

This issue is worthy of exhaustive and detailed 
briefing, and of definitive, clear guidelines being 
enunciated by the Supreme Court. Petitioner asserts tha t 
in absence of this Court’s exercise of its supervisory 
authority, she will be denied her right to full appellate 
review, and a patently unfair lower court decision will be 
allowed to stand, to Petitioner's great detriment.

B. Petitioner W as Im properly Denied the O pportunity  to 
Rebut the Em ployer’s Alleged L egitim ate Non-discrim inatory 
Business Reason Defense and Good F aith  Defense, When the 
Trial Court Refused to Perm it H er to Introduce Evidence of 
Nepotism W hich Directly Involved the W hite Employee Who 
Received the Prom otion Sought by Petitioner.

As pointed out by Circuit Judge Adams in his 
dissenting opinion, ” . . .  the evidence of nepotism was 
clearly relevant . . .” Lewis v. University o f Pittsburgh, 
725 F.2d at 927. The first reason as stated by Judge 
Adams is tha t under the analysis of McDonnell Douglas



13

Corp. v. Green, 411 U.S. 792 (1973), Petitioner met her 
initial burden of production by establishing a prima facie 
case; Respondents then satisfied their burden of 
p roduction  by a rtic u la tin g  a leg itim ate  non- 
discriminatory business reason for deciding to grant the 
promotion to Aiello and not to Petitioner, i.e., tha t 
Petitioner was not qualified for the position of A ssistant 
Buyer and th a t Aiello was qualified. Texas Department 
o f Community Affairs v. Burdine, 450 U.S. 248 (1981). 
Plaintiff thereupon attem pted to meet her burden of 
persuasion by showing either th a t Respondents’ 
legitimate non-discriminatory business reason was a 
pretext or tha t Respondents were “m otivated” by 
reasons of race in selecting Aiello over Petitioner. (See 
the discussion regarding Question 4 of the Statem ent of 
Questions Presented for Review as to the proper degree 
of “m otivation” which Petitioner should have been 
required to prove). Petitioner, however, was deprived of 
the opportunity to prove th a t nepotism and not relative 
qualifications was the reason for Aiello’s selection.

Mr. Justice Blackmum with Mr. Justice Brennan 
joining him, concurred in United States Postal Service
Board o f Governors v. Aikens, _____  U .S ._____ , 103
S.Ct. 1478 (1983), indicating th a t Petitioner did not have 
to do more than to establish th a t Respondents’ alleged 
legitimate non-discriminatory reason was a pretext, as he 
stated the following:

“ I join the Court’s opinion. I write to stress the 
fact, however, that, as 1 read its opinion, the Court 
today reaffirms the framework established by 
McDonnell Douglas Corp. v. Green [citation omitted] 
. . .  for Title V II cases. . . . [The ultim ate burden of 
persuasion tha t m ust be met by an employment 
discrimination plaintiff] may be met in one of two 
ways. First, as the Court notes, a plaintiff may



14

persuade the court th a t the employment decision 
more likely than not was motivated by a 
discriminatory reason. . . .  In addition, however, this 
burden is also carried if the plaintiff shows “ that the 
employer's proffered explanation is unworthy of 
credence." [Citing Texas Department o f Community 
Affairs v. Burdine, and McDonnell Douglas Corp. v. 
Green] . . . While the Court is correct tha t the 
ultimate determination of factual liability in 
discrimination cases should be no different from 
th a t in other types of civil suits . . . the McDonnell 
Douglas framework requires that a p laintiff prevail 
when at the third stage o f a Title V II trial he 
demonstrates that the legitimate, nondiscriminatory 
reason given by the employer is in fact not the true 
reason for the employment decision. Id.. 103 S.Ct. at 
1483. (Citations omitted) (Emphasis supplied).

With regard to the claims brought pursuant to 42 
U.S.C. Sections 1981 and 1983, Petitioner apparently 
carried such burden of proving th a t Respondents’ stated 
reason was a mere pretext, when she convinced the jury 
tha t Respondents’ articulated reason was “unworthy of 
credence," as witnessed by the ju ry ’s specific findings 
tha t she was not only “qualified" for the position, but 
also “more qualified” than the white individual who 
received the promotion. Lewis v. University o f 
Pittsburgh , 725 F.2d at 926.

However, assuming arguendo th a t Petitioner had to 
prove more with regard to the Sections 1981 and 1983 
claims, a proposition which Petitioner rejects, she should 
have been given the opportunity to prove more. I t was 
error for the court to deprive her of such opportunity.

With regard to Petitioner’s Title VII claim, the trial 
court, astonishingly, found th a t Petitioner had not 
proved tha t Respondents’ articulated legitimate non­
discriminatory reason, was a mere pretext, in th a t the 
trial court found tha t Petitioner “did have a poor work



15

record, as a buyer from 1967 until 1975, and due to tha t 
poor record, was denied the promotion.” However, 
another means of Petitioner’s rebuttal of Respondents’ 
stated  reason was Petitioner’s offer of proof as to 
nepotism. This would have provided an alternative, 
independent basis upon which a fact-finder could have 
decided th a t Respondents’ reason was a pretext, and 
th a t Petitioner, therefore, should prevail, without having 
to show more. United States Postal Service Board of 
Governors v. Aikens, Id.

Furthermore, with regard to the “good faith or honest 
belief” defense raised by Respondents, the court’s refusal 
to allow Petitioner to introduce evidence of nepotism 
involving Aiello, Fong and Kierzkowski, was a severe 
blow to Petitioner’s ability to rebut the self-serving 
remarks of Respondents’ two* key witnesses, to the effect 
th a t they were not the type who would discriminate. 
Petitioner should have been allowed to fill in the missing 
piece of the puzzle for the fact-finder, and to give the 
fact-finder some additional evidence to consider along 
with the following undisputed facts tending to disprove 
the “good faith or honest belief” of Fong and 
Kierzkowski:

1. Fong testified th a t in all the time in which either 
he or Kierzkowski were in a position to hire full-time 
employees into clerk positions in the Trade 
Department, they hired approximately 15 to 20 full­
time clerks, but none of those individuals were 
black;
2. The Personnel Departm ent of the University had 
sent to Fong and to Kierzkowski candidates for the 
clerk positions, some of the candidates were Black, 
the minimum qualifications for a position of clerk in 
the Trade Departm ent did not require so much as a 
high school degree, and yet neither Fong nor 
Kierzkowski concluded th a t any of the Black



16

applicants for a full-time clerk position fulfilled the 
minimal qualifications for a clerk, and no Black clerk 
was hired by these gentlemen.

It was gross error for the court to have excluded the 
evidence regarding nepotism. As Circuit Judge Adams 
pointed out, and as the four other members voting for 
rehearing might well have felt, such an error “ . . . would 
independently require a new trial. . . . ” Lewis v. 
University o f Pittsburgh, 725 F.2d a t 927.

C. In th is Race D iscrim ination Denial-of-Prom otion Case, 
the Trial Court Im properly In struc ted  the Ju ry  as to  the 
Claims B rought under 42 U.S.C. Sections 1981 and 1983, and 
Im properly Applied the Law as to  the Claim B rought Under 
T itle V II of the Civil R ights A ct of 1964, W hen I t  Foreclosed 
the Possibility  of Inferen tial and Ind irect M ethods of Proof of 
D iscrim inatory In ten t.

As pointed out by Circuit Judge Adams in his 
dissenting opinion, Lewis v. University o f Pittsburgh, 
725 F.2d a t 922-927, the trial court erred when it 
essentially instructed the jury as to the Section 1981 and 
Section 1983 claims, th a t Petitioner could not carry her 
ultimate burden of persuasion unless she proved by 
direct evidence th a t she was discriminated against for 
reasons of race. (See the discussion of Question 4 of the 
Statem ent of Questions Presented for Review as to the 
burden which Petitioner should have had to carry as to 
‘‘motivation”.)

Petitioner will not elaborate further on the argum ents 
raised by Judge Adams, as to the Section 1981 and 
Section 1983 claims, except to submit th a t his 
interpretations of existing Supreme Court decisions were 
glossed over if not ignored by two members of the 
majority opinion. I t should be emphasized, moreover, 
th a t the two members of the majority in the Third



17

Circuit’s panel decision were supported in the voting on 
whether to grant rehearing, by only one other judge of 
the five additional judges who considered the Petition for 
Rehearing. I t  is unclear from the record whether those 
judges voting for rehearing disagreed with the two- 
member majority in its rejection of the dissenting 
opinion’s argum ents regarding the lower court’s 
foreclosure of the indirect or inferential method of proof, 
Id., a t 919 ftn. 10, but the vote in favor of rehearing 
apparently so indicates.

As to the Title V II claim, the trial court also 
misapplied existing Supreme Court decisions when it 
stated  in its findings of fact, th a t Petitioner failed to 
meet the “but for” causation standard and tha t 
Petitioner failed to prove th a t Respondents’ articulated 
legitimate non-dfscriminafory reason was a pretext, as 
follows:

“ In all disparate treatm ent cases, the polestar of the 
inquiry is whether or not the decision on behalf of 
the employer was ‘racially premised’. . . . The 
ultim ate issue is motivation and intent. . . .  In other 
words, the plaintiff m ust prove the defendant’s 
intent by showing th a t ‘the presumptively valid 
reasons for [the] rejection were in fact a cover-up for 
a racially-discriminatory decision’. . . .  In McDonald 
v. Santa Fe Trail Transportation Co., 433 U.S. 923 
(1976), (sic) the Supreme Court interpreted the 
burden established by McDonnell as a burden on the 
plaintiff to prove tha t race was a ‘but for cause’; i.e., 
but for the fact th a t the plaintiff was black she 
would have been promoted. Ms. Lewis did not meet 
this burden. She failed to prove by a preponderance 
of the evidence th a t the reasons for the denial of the 
promotion as articulated by Messrs. Fong and 
Kierzkowski were a mere ‘cover up ' or pretext for a 
racially discriminatory intent. Ms. Lewis would have 
been denied the promotion even if she were not



18

black. Her poor work history, not her race was the 
cause or motivating factor of the denial." Slip op. at 
7. (Record before Court of Appeals at 47a).

The same confusion as was manifested in the trial 
court's instructions to the jury regarding the Section 
1981 and Section 1983 claims, is also apparent in the 
above quote from the trial court’s Findings of Fact and 
Conclusions of Law concerning the Title VII claim. 
Petitioner submits tha t the two-member majority opinion 
evidences the same confusion.

The two-member majority relies on the oft-cited 
language in Texas Department o f Community Affairs v. 
Burdine, tha t a t the third stage of the McDonnell 
Douglas analysis, “ . . . [T]he plaintiff’s burden in 
showing th a t the proffered justification is merely a 
pretext ‘merges with the ultim ate burden of persuading 
the court th a t she has been the victim of intentional 
discrimination.’ ” [Texas Department o f Community 
Affairs v. Burdine, 450 U.S. at 256], Lewis v. University 
o f Pittsburgh, 275 F.2d a t 915.

As pointed out by Judge Adams, the use of the above- 
quoted or similar language regarding the ‘coming 
together’ or ‘merging’ of Petitioner’s burden of 
production with her burden of persuasion

. . . should not obscure the importance of the 
McDonnell Douglas test. In order to arrive a t the 
p la in tiff’s u ltim ate  burden  in em ploym ent 
discrimination claims, the intermediate shifting of 
subordinate  burdens allows for in fe ren tia l 
conclusions. . . . By requiring the jury to find direct 
proof of the ultimate issue in Ms. Lewis' claim, the 
district court in effect foreclosed the indirect method 
of proof sanctioned by the McDonnell Douglas test. 
Lewis v. University o f Pittsburgh, 725 F.2d a t 924.



19

The two-member majority quotes the following 
language from M cD onald v. San ta  Fe Trail 
Transportation Co., 427 U.S. 273 (1976):

The use of the term ‘pre tex t’ in this context does 
not mean . . . th a t the Title VII plaintiff m ust show 
th a t he would have in any event been rejected or 
discharged solely on the basis of his race, without 
regard to the alleged deficiencies [in work-related 
performance]; . . .  no more need be shown than that 
race was a T u t for caused Id., a t 282 n. 10. (Quoted 
in Lewis v. University o f Pittsburgh, 725 F. 2d at 
915) (Emphasis supplied by Circuit Judges.)

Petitioner submits th a t the two-member majority then 
jumped to the illogical conclusion th a t “but for" 
causation was not merely one of at least two sufficient 
ways for a plaintiff to prove a disparate treatm ent claim, 
see, e.g., United States Postal Service Board of
Governors v. Aikens, _____  U.S. _____ , 103 S.Ct. at
1483, but was a necessary element of proof in a disparate 
treatm ent claim. As pointed out by Judge Adams in his 
dissenting opinion in Lewis v. University o f Pittsburgh, 
the m ajority’s reliance on the “no more need be shown’’ 
language from McDonald is misplaced:

The ‘no more need be shown’ phrase indicates th a t a 
showing of but for causation would be sufficient; it 
does not signify th a t such a showing is necessary to 
prevail. Id., a t 921. (Emphasis in original.)

The analytical error of the trial court, affirmed by the 
two-member circuit court majority, was compounded by 
the trial court’s clearly erroneous findings of fact, i.e.. 
th a t Petitioner was not qualified for the position of 
A ssistant Buyer, and tha t she had not proven tha t 
Respondents’ articulated legitimate non-discriminatory 
reason was a pretext.



20

The Supreme Court in United States v. United States 
Gypsum Co., 333 U.S. 364 (1948), set forth the 
following standard to be used by an appellate court to 
determine whether the findings of fact of a trial court 
sitting as jury, are “clearly erroneous” and thus subject 
to being overturned by the appellate court:

A finding is ‘clearly erroneous’ when although there 
is evidence to support it, the reviewing court on the 
entire evidence is left with the definite and firm 
conviction tha t a mistake has been committed Id  
a t 394-95.

In United States v. Forness, 125 F.2d 928 (2nd Cir., 
1942), cert, denied 316 U.S. 694 (1942), the “grave 
importance of fact-finding by the trial court was 
emphasized. The court in referring to serious problems 
caused by “facts found without due care” and “careless 
fact-finding”, stated:

. . .  I t  is sometimes said tha t the requirement th a t 
the trial judge file findings of fact is for the 
convenience of the upper courts. While it does serve 
tha t end, it has a far more im portant purpose—that 
of evoking care on the part of the trial judge in 
ascertaining the facts. For, as every judge knows, to 
set down in precise words the facts as he knows 
them is the best way to avoid carelessness in the 
discharge of th a t duty. Id., at 942-943.

The trial court and the jury  arrived a t drastically 
different findings as to Petitioner’s work record and 
qualifications. The court paid no deference whatsoever to 
the findings of the jury  as to Petitioner’s qualifications. 
Moreover, the court ignored the great weight of the 
undisputed facts as set forth in the Statem ent of the 
Case section of this Petition. For example, assuming 
arguendo tha t Fong and Kierzkowski were of the opinion 
since a t least the winter of 1972-73 th a t Petitioner had 
experienced problems with her returns and stock sheets,



21

it nevertheless is undisputed th a t they took no action to 
discipline Petitioner, they did not admonish her in 
writing, she remained in the position of Buyer, and when 
her Buyer job in the Trade Departm ent was phased out 
in February, 1975, she was offered the position of Buyer 
in the Text Department.

Moreover, as set forth in the Statem ent of the Case 
section of this Petition, the record further shows th a t in 
the 7-and-V2-year period in which Petitioner was the 
Buyer of technical books, the technical section flourished 
from being a mere experiment with a first-year gross 
sales volume of $30,000 to a gross sales volume of 
$91,625 in the last fiscal year in which Petitioner was the 
Buyer. The undisputed facts are tha t Petitioner’s gross 
sales volume increased every year except with the 
possible exception of one. The trial court’s finding tha t 
Petitioner had a “poor work record” amounts to the 
“careless fact-finding” about which the Supreme Court 
was so concerned in United States v. Forness.

Such careless fact-finding, along with the trial court’s 
incorrect application of existing Supreme Court 
decisions, clearly suggests th a t Petitioner was foreclosed 
by the trial court from proving her Title VII claim by 
indirect or inferential means.

D. In  th is  Race D iscrim ination Denial-of-Prom otion Case, 
the T rial Court Im properly In stru c ted  the Ju ry  as to  Claims 
B rought under 42 U.S.C. Sections 1981 and 1983, and Itself 
M isapplied the Law as to  the T itle V II Claim Tried Non-jury, 
W hen the Court S ta ted  T hat Race M ust Be “ The 
D eterm inative F ac to r” and T hat a Black Em ployee M ust 
Prove T hat “ B ut For” Considerations of Race, She W ould 
H ave Received the Prom otion.

Petitioner incorporates herein the argum ents raised by 
Circuit Judge Adams regarding the trial court’s 
instructions in connection with the Section 1981 and



22

Section 1983 claims, as to the extent to which racial 
considerations must have motivated Respondents' 
agents in order for Petitioner to prevail. See Lewis v. 
University o f Pittsburgh, 725 F.2d a t 921-22.

The jury instruction tha t Petitioner had to prove that 
race was “ the determinative factor" and that “but for" 
considerations of race she would have received the 
promotion, is an extremely heavy burden for any 
employee to be able to carry. Indeed, such an instruction 
places an almost insuperable burden of proof on a 
plaintiff such as Petitioner. Moreover, such instruction is 
directly at odds with the language quoted supra in the 
concurring opinion of Mr. Justice Blackmun and Mr. 
Justice Brennan in United States Postal Service Board of
Governors v. A ik e n s ,_____ U .S ._______, 103 S.Ct. at
1483, where the employee had to prove tha t the 
employment decision “more likely than not was 
motivated by a discriminatory reason." Id. (Emphasis 
supplied.) Although Circuit Judge Aldisert earlier in 
Smithers v. Bailar, 629 F.2d 892 (3rd Cir., 1980), had 
purported to deal with this issue in an age discrimination 
context, Petitioner respectfully submits that the above- 
quoted language from United States Postal Service 
Board of Governors v. Aikens, in essence overrules 
Smithers v. Bailer.

Not only should this Court grant the instant Petition 
for a Writ of Certiorari to redress the lower court’s 
failure to apply the appropriate Supreme Court 
precedent, but also this Court should grant a writ of 
certiorari to resolve a conflict among the circuits. In 
Whiting v. Jackson State University, 616 F.2d 116 (5th 
Cir., 1980), the Fifth Circuit took a different position from 
the Third Circuit in the instant case. In Whiting, the 
Fifth Circuit set forth the standard to be followed in the 
Fifth Circuit:



23

Title VII is not violated simply because an 
impermissible factor plays some part in the 
employer’s decision. The forbidden tain t need not be 
the sole basis for the action to w arrant relief, but it 
m ust be a significant factor. Id., at 121 (Emphasis in 
original).

The two-member majority in the Third Circuit in the 
instant case attem pted to distinguish Whiting when it 
stated the following:

We do not read Whiting  as departing from the ‘but 
for’ causation requirement. By definition, a 
‘significant’ factor is one which makes a difference 
in the result. Conversely, if an action would have 
been taken regardless of race, any discriminatory 
factor could hardly be called ‘significant.’ We can 
discern little difference in the result between a 
‘significant factor’ test and the ‘but for' test. Lewis 
u. University o f Pittsburgh, 725 F.2d a t 916.

The majority goes on to state  the remarkable position 
th a t the “but for” test is “the more analytically 
measurable” te s t”, and one th a t is more easily 
comprehended by a jury. Id., at 916. Petitioner submits 
th a t the two tests are not at all similar, and tha t the 
“but for” test is not readily understood or applied, and 
adds more confusion to an area where there is already 
“considerable confusion”, as pointed out by the 
dissenting opinion. Id., a t 921. A writ of certiorari should 
be granted, so tha t the lower court error can be 
redressed, and so th a t the existing conflict among the 
circuits can be resolved.

With regard to the Title VII claim, Petitioner submits 
tha t the trial court was laboring under the same view he 
expressed in his jury instructions, and a writ of certiorari 
should issue with regard to the Title V II claim for the 
same reasons as set forth as to the Section 1981 and 
Section 1983 claims.



24

VI. Conclusion

It would be difficult to conjure up a more harsh result 
than that which Petitioner until this date has had to 
suffer. After having filed a timely charge of 
discrimination challenging a denial of promotion 
occurring in October, 1976, and after having filed a 
complaint in the federal district court and having gone to 
trial on the merits, Petitioner succeeded in convincing an 
all-white jury tha t she was “more qualified" than the 
white employee who actually received the promotion, but 
Petitioner still lost. She appealed to the United States 
Court of Appeals for the Third Circuit, and by a 2-1 
majority the district court judgm ent was perm itted to 
stand. Circuit Judge Adams in his strongly-worded 
dissent, voiced his objection to the majority decision, 
stating th a t he had to dissent:

Because I do not believe th a t the majority opinion is 
sufficiently attuned to the difficulties of proof in 
this type of discrimination claim, and because of the 
errors committed at trial . . . Id., at 928.

Petitioner thereafter filed a Petition for Rehearing, and 
of the eighth circuit judges considering such Petition, a 
five-member majority would have granted rehearing. 
Petitioner respectfully submits th a t not only was the 
two-member majority not “sufficiently attuned" to the 
difficulties in this type of case, but also tha t the trial 
court was unconscious of lingering racial biases that 
have played such a “substantial" part, unfortunately, in



25

the development of our civilization. Plaintiff respectfully 
requests that a Writ of Certiorari be issued to review the 
judgm ent and opinions of the United States Court of 
Appeals for the Third Circuit.

Respectfully submitted,

JAM ES H. LOGAN, ESQ.
Attorney for Petitioner 
Suite 1100, Lawyers Building 
428 Forbes Avenue 
Pittsburgh, Pennsylvania 15219



APPENDIX

[1 ] IN THE

UNITED STATES DISTRICT COURT 

For the W estern D istrict of Pennsylvania

Opinion and Order of the U nited S ta tes  D istric t
Court for the  W estern D istric t of Pennsylvania,

D ated January  5, 1983.

Civil Action No. 79-410

IDA MARY LEWIS, 

v.
Plaintiff,

UNIVERSITY OF PITTSBURGH and 
UNIVERSITY OF PITTSBURGH BOOK CENTER,

Defendants.

Findings of Fact and Conclusions of Law

COHILL, D istrict J.

I .

Background

The plaintiff, Ida Mary Lewis, brought this suit 
against the defendants, University of P ittsburgh and 
University of P ittsburgh Book Center, claiming th a t she 
was denied a job promotion due to her race* Ms. Lewis 
sought damages and other relief pursuant to 42 U.S.C. 
§1981, 42 U.S.C. §1983 and 42 U.S.C. §2000e-2 (“Title



2a

V II”). The Book Center is not a legal entity, but rather, 
is a part of the University, and therefore we will treat 
this ease as having only one defendant—the University.

The claims under 42 U.S.C. §§1981, 1983 were tried to 
a jury beginning December 13, 1982. After a four day 
trial, the jury returned a verdict in favor of the 
University, finding th a t Ms. Lewis was not denied the 
promotion because of her race, and therefore, the 
defendant did not violate Ms. Lewis’s civil rights as 
codified in 42 U.S.C. §1981 and §1983.

[2] I t now becomes our duty to decide Ms. Lewis’s claim 
of employment discrimination under Title VII, since this 
issue m ust be tried to the Court.

Pursuant to Fed. E. Civ. P. 52, we make the following 
Findings of Fact and Conclusions of Law.

II.

Findings o f Fact

Ms. Lewis is a 58-year-old black woman with an 
extensive educational background. She graduated from 
Perry High School, Pittsburgh, Pennsylvania in 1942 
and in 1947 from Carnegie Institu te  of Technology (now 
Carnegie Mellon University) with a Bachelor’s Degree in 
History and English. She then enrolled at the University 
of Pittsburgh, receiving her M aster’s Degree in History 
in 1950. She returned to Carnegie Institu te  of 
Technology in 1961 and, in 1962, received her M aster’s 
Degree in Library Science. In the fall of 1964, Ms. Lewis 
began studying for her Ph.D. in History. However, she

Appendix-Opinion and Order of the United States
District Court for the Western District of

Pennsylvania, Dated January 5, 1983.



3a

had to abandon th a t plan due to a lack of finances and 
the ill-health of her parents.

During the time Ms. Lewis was attaining her degrees 
she held several jobs in the field of books. She worked as 
a typist in a library, an assistant librarian, a librarian 
and a salesperson in several bookstores. She spent four 
years in New York City working in two libraries, two 
bookstores and the French Em bassy during th a t period. 
No explanation was' offered by Ms. Lewis as to why she 
changed jobs so much and so often. In December, 1965, 
Ms. Lewis was hired by the University of P ittsburgh to 
work as a salesclerk in the P itt Book Center.

[3] From December, 1965, until July, 1966, Ms. Lewis 
worked as a clerk in the Text Book Department of the 
Book Center. In July, 1966, she moved to the General 
Trade Book Department, working as a clerk until July, 
1967, when she was promoted to the position of buyer of 
technical books.1 Ms. Lewis was the technical book buyer 
until February, 1975, at which time the technical book 
departm ent was merged into the general trade section 
causing her job to be phased out. After her position was 
eliminated, Ms. Lewis was offered a buyer’s position in 
the tex t book department, which she refused, stating 
th a t her interests and skills were in the technical book 
area. She then became a salesclerk in the trade 
department, the position she currently holds. 1

1 Technical books are books dealing with very specialized, narrow 
scientific or technical subjects such as physics, economics and 
engineering. Trade books are popular books and include fiction as well 
as non-fiction.

Appendix-Opinion and Order of the United States
District Court for the Western District of

Pennsylvania, Dated January 5, 1983.



4a

The incident which precipitated this lawsuit occurred 
in October, 1976. An assistant buyer’s position in the 
Trade Book Department became available. A notice of 
this opening was posted in the Book Center and five 
women applied, including Ms. Lewis. The selection 
committee consisted of Mr. Dwight Fong and Mr. 
Russell Kierzkowski, the two trade book departm ent 
buyers. Mr. Fong is a [4] Chinese-American. Mr. 
Kierzkowski is of Polish origin and married to a Mexican 
national. All five job applicants were employees of the 
Center.

The selection process was simple since Messrs. Fong 
and Kierzkowski knew all of the applicants. Each 
applicant was interviewed for five to ten minutes by the 
two men. They simply informed the prospective 
applicant of the duties and responsibilities which went 
with the job. Mr. Fong testified tha t he also had checked 
the job applications subm itted by each applicant when 
she originally had sought a job at the Book Center. Mr. 
Kierzkowski, however, did not read those applications. 
Both men believed th a t they did not need to spend time 
reviewing the personnel files of each applicant since the 
applicants already worked at the book center and the 
men had personal knowledge of the work history and 
work habits of each. Within one week after posting the 
notice of the vacancy Mr. Fong and Mr. Kierzkowski 
chose Jean Aiello.

Ms. Aiello, a 30-year-old white woman, graduated from 
high school in 1970. Following graduation, she enrolled in 
the University of Pittsburgh which she attended for two 
years. In 1972, she had to withdraw from Pitt due to 
financial problems.

Appendix—Opinion and Order of the United States
District Court for the Western District of

Pennsylvania, Dated January 5, 1983.



5a

While still a student a t P itt, Ms. Aiello had worked 
part time a t the Book Center as a sales clerk. She 
became a fulltime clerk in the Trade Book Departm ent in 
1972 after she withdrew from school. She worked as a 
salesclerk in the Tade Book Department under the 
supervision of Mr. Fong and Mr. Kierzkowski from 1972 
[5] until October, 1976, when she was chosen for the 
assistant buyer’s position. Ms. Aiello is still the 
assistan t buyer in the Trade Book Department.

Ms. Lewis contends th a t she was more qualified for the 
position of assistant buyer, than Ms. Aiello by virtue of 
her educational background and previous experience as a 
buyer; she asserts th a t she was denied the promotion 
because of her race. Mr. Fong and Mr. Kierzkowski 
testified th a t the reason she was not promoted was her 
poor and inefficient work habits. They stated th a t while 
she was a buyer of technical books, she had a history of 
not following store procedure properly, i.e., she did not 
do her book returns and stock checks, and they gave 
many examples of these deficiencies. Ms. Aiello, on the 
other hand, had learned and followed store procedure 
very well, and, according to Messrs. Fong and 
Kierzkowski, did w hat she was told to do efficiently, 
requiring only minimal supervision. We find tha t Ms. 
Lewis did have a poor work record, as a buyer from 1967 
until 1975, and due to th a t poor record, was denied the 
prom otion. There is abso lu tely  no d irec t or 
circumstantial evidence th a t she was denied the 
promotion due to her race.

Appendix—Opinion and Order of the United States
District Court for the Western District of

Pennsylvania, Dated January 5, 1983.



6a

I I I .

Conclusions o f Law

On November 15, 1976, Ms. Lewis filed a charge of 
racial discrimination against the University and the 
Book Center with the Equal Employment Opportunity 
Commission (“EEOC”). On March 27, 1978, the EEOC 
issued a determination and subsequently, on December 
29, 1978, mailed its Notice of Right to Sue. Ms. Lewis 
filed this suit in [6] federal court on March 29, 1979, within 
the 90-day limit set forth in 42 U.S.C. 2000e-5(f) (1); thus, 
we have jurisdiction to decide the merits of this Title VII 
action.

In a private, non-class action complaint under Title 
VII charging racial employment discrimination and 
disparate treatm ent, the starting  point is the Supreme 
Court decision of McDonnell Douglas Corp. v. Green, 411 
U.S. 792 (1973). In McDonnell the Court set forth the 
elements of a prima facie case which m ust be met by the 
plaintiff. There are: 1) the plaintiff belongs to a racial 
minority, 2) the plaintiff applied and was qualified for a 
position, 3) despite the plaintiff’s qualifications, she was 
rejected and 4) the defendant employer continued to seek 
applicants. We believe tha t in the case sub judice, the 
plaintiff met this initial burden. Ms. Lewis, a black 
female, was qualified for the position of assistant buyer 
and, despite possessing the basic qualifications for the 
position, she was rejected. However, the case cannot 
stop there. Once the plaintiff has met the initial burden 
of establishing a prima facie case, the burden shifts to 
the defendant employer to articulate some legitimate,

Appendix—Opinion and Order of the United States
District Court for the Western District of

Pennsylvania, Dated January 5, 1983.



7a

nondiscriminatory reason for the plaintiff’s rejection. 
McDonnell Douglas Corp. v. Green, 411 U.S. at 802. In 
the case at hand, the University met this burden. I t  was 
proven by a preponderance of the evidence tha t the 
reason Ms. Lewis was not promoted was because she had 
a poor work record when she was the Technical Book 
Buyer from 1967 to 1975. Both Messrs. Fong and 
Kierzkowski testified th a t Ms. Lewis did not 
competently perform the duties of a buyer and for tha t 
reason, was not given the promotion.

Once again, under McDonnell, the burden shifts to the 
p la in tiff who m u st prove th a t  the  s ta te d  
nondiscriminatory reason was a mere pretext. It is here 
th a t Ms. Lewis’s case falls.

In all disparate treatm ent cases, the polestar of the 
inquiry is whether or not the decision on behalf of the 
employer was “racially premised." Id. at 805 n.18. The 
ultimate issue is motivation and intent. Barbara 
Lindemann Schlei and Paul Grossman, Em ploym ent 
Discrimination Law  1154 (1976). In other words, the 
plaintiff m ust prove the defendant’s intent by showing 
th a t “the presumptively valid reasons for [the] rejection 
were in fact a cover-up for a racially discriminatory 
decision.” McDonnell Douglas Corp. v. Green, 411 U.S. 
a t 805. In McDonald v. Santa Fe Trail Transportation 
Co., 423 U.S. 923 (1976), the Supreme Court interpreted 
the burden established by McDonnell as a burden on the 
plaintiff to prove “th a t race was a ‘but for’ cause”; i.e., 
but for the fact th a t the plaintiff was black she would 
have been promoted. Ms. Lewis did not meet this

Appendix—Opinion and Order of the United States
District Court for the Western District of

Pennsylvania, Dated January 5, 1983.



8a

burden. She failed to prove by a preponderance of the 
evidence tha t the reasons for the denial of the promotion 
as articulated by Messrs. Fong and Kierzkowski were a 
mere “cover up" or pretext for a racially discriminatory 
intent. Ms. Lewis would have been denied the promotion 
even if she were not black. Her poor work history, not 
her race, was the cause or motivating factor of the 
denial.

Appendix—Opinion and Order of the United States
District Court for the Western District of

Pennsylvania, Dated January 5, 1983.

IV.

Conclusion

Based upon the foregoing Findings of Fact and 
Conclusions of Law, we hold tha t Ms. Lewis was not 
deprived of her rights under [8] 42 U.S.C. 2000e, et seq.

Since the conclusion of the trial on the §§1981 and 
1983 claims, in which the defendant prevailed, the 
plaintiff has filed motions for judgm ent notwithstanding 
the verdict, and for a new trial. These will be denied.

Plaintiff argues from the answers to the interrogatories 
tha t since the jury felt th a t Ms. Lewis was more 
qualified than Ms. Aiello for the position, this was 
inconsistent with their answer to Interrogatory 3, which 
was: “3. Would plaintiff, Ida Mary Lewis, have been 
promoted to the position of A ssistant Buyer but for the 
fact that she is black? Answer: No.”

We interpret this to mean th a t in the opinion of the 
jury Ms. Lewis was better qualified than Ms. Aiello, but 
tha t her race was not the reason she did not get the 
promotion. This is all tha t is necessary. There may have 
been many reasons tha t she did not get the promotion.



9a

Only reasons prohibited by §§1981 and 1983 would have 
been sufficient to support her claim in the jury  trial, and 
the jury  found th a t no such reason existed.

We find the remaining arguments of the plaintiff to be 
without merit, and all of her post trial motions will be 
denied.

An appropriate order will follow.

MAURICE B. COHILL, JR.
United States District Judge

Appendix—Opinion and Order of the United States
District Court for the Western District of

Pennsylvania, Dated January 5, 1983.



10a

Appendix—Opinion and Order o f the United States 
District Court for the Western District o f 

Pennsylvania, Dated January 5, 1983.

Order of Court

IN THE

UNITED STATES DISTRICT COURT 

For the W estern D istrict of Pennsylvania

Civil Action No. 79-410

IDA MARY LEWIS, 

v.
Plaintiff,

UNIVERSITY OF PITTSBURGH and 
UNIVERSITY OF PITTSBURGH BOOK CENTER,

Defendants.

AND NOW, to-wit, this 5th day of January, 1983, it is 
hereby ORDERED, ADJUDGED and DECREED th a t 
for the reasons set forth in the accompanying Findings 
of Fact and Conclusions of Law, judgm ent on the claim 
pursuant to 42 U.S.C. §2000e-2 (Title VII) be and hereby 
is entered in favor of the defendants, University of 
P ittsburgh and University of P ittsburgh Book Center 
and against the plaintiff, Ida Mary Lewis. I t is further 
ORDERED, ADJUDGED and DECREED that, with 
regard to those proceedings brought pursuant to 42 
U.S.C. §§1981 and 1983, plain tiffs motion for verdict,



11a

m otion for ju d g m en t n o tw ith s tan d in g  special 
interrogatories and/or verdict and motion for a new trial 
be and hereby are DENIED.

MAURICE B. COHILL. JR. 
United States D istrict Judge

cc: James H. Logan, Esq.
1100 Lawyers Bldg.
Pittsburgh, PA 15219

Lynn E. Wagner, Esq.
Jacques M. Wood, Esq.
Berkman, Ruslander, Pohl,

Lieber & Engel 
20th Floor Frick Bldg.
Pittsburgh, PA 15219

Appendix-Opinion and Order of the United States
District Court for the Western District of

Pennsylvania, Dated January 5, 1983.



12a

Opinion in the United States Court of Appeals
for the Third Circuit, Dated December 30,

1983 (2-1 Decision).

Ida Mary LEW IS,

v.
Appellant,

UNIVERSITY OF PITTSBURGH and 
University of P ittsburgh 

Book Center.

No. 83-5052.

United States Court of Appeals, 
Third Circuit.

Subm itted Under Third Circuit Rule 12(6) 
Sept. 14, 1983.

Decided Dec. 30, 1983.

Rehearing and Rehearing In Banc 
Denied Feb. 9, 1984.

[910] Opinion of the Court

[911] Before ADAMS, HUNTER, and GARTH,
Circuit Judges.

[912] GARTH, Circuit Judge:

Plaintiff Ida Mary Lewis b rough t suit against the 
University of P ittsburgh and its Bookstore under section 
706 of Title VII of the Civil Rights Act of 1964, 42 
U.S.C. §2000e-5 (1976), and under 42 U.S.C. §§1981, 1983



13a

(1976), claiming th a t she was denied a promotion because 
of her race. Her claims under sections 1981 and 1983 
were heard by a jury, and her Title V II claim was 
decided in a bench trial by the d istrict court judge. Both 
factfinders found for defendants on the merits. We 
affirm.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).

I .

Ida Mary Lewis, a black woman, has been employed at 
the Book Center of the University of P ittsburgh since 
1965. In 1967, she was promoted from clerk to Buyer in 
the Trade Book Departm ent. She again became a clerk in 
1975 when one Buyer position in the Trade Book 
D epartm ent was eliminated in a budgetary move.1

In October, 1976, Lewis applied for a vacant position 
as A ssistant Buyer in the Trade Book D epartm ent. The 
position instead went to Jean Aiello, a white woman who 
had been employed with the Bookstore since 1972. Lewis 
alleged th a t she was better qualified for the position than 
Aiello and th a t the reason she was denied promotion was 
because she is black.

As the d istrict court findings reveal, Lewis was 58 
years old, had graduated from Perry High School in 
1942, and from Carnegie Institu te  of Technology (now 
Carnegie Mellon University) in 1947 with a Bachelor’s 
degree in H istory and English. She then enrolled a t the 
University of P ittsburgh, receiving her M aster’s degree *

' Lewis was offered the position of Buyer in the Text Book 
Department which she rejected because of her desire to remain in the 
Trade Book Department.



14a

in History in 1950, She returned to Caftegie in 1961 and 
received a M aster's degree in Library Science. In  the fall 
of 1964, Ms. Lewis began studying for her Ph.D. in 
History. She was forced to abandon th a t plan, however, 
due to lack of finances and the illness of her parents.

Ms. Aiello, on the other hand, graduated from high 
school in 1970. Following graduation, she enrolled in the 
University of P ittsburgh  for two years, but had to 
withdraw for financial reasons. Ms. Lewis had previous 
experience as a Buyer, while Aiello worked a t the Book 
Center as a sales clerk.

The defendants contended th a t Lewis was denied the 
position as A ssistant Buyer because she had a poor 
history of work habits, bookkeeping, and inventory 
control practices. These contentions were supported by 
the testim ony of Russell Kierzkowski and Dwight Fong, 
the two current Buyers for the Trade Book Department. 
Kierzkowski stated  tha t, when Lewis had previously 
been a Buyer (prior to 1975), Lewis had neglected to 
return unused books to the publishers on time, with the 
result th a t they had to be sold at a loss. Kierzkowski 
testified th a t he personally interviewed and assigned 
Aiello to help him eliminate the backlog of unused books. 
He claimed th a t even after the backlog had been 
eliminated, Lewis again failed to complete returns 
properly, and Aiello was assigned to do the work for a 
second time.

Kierzkowski also stated  th a t Lewis had not adequately 
kept stock control cards in her files, and had not 
conducted regular inventory checks to see which books 
should be reordered. Mr. Fong testified that, at

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



15a

approximately the same time, he discovered th a t the 
paperback technical books had also not been returned or 
reordered, and th a t much of the inventory was 
discolored, worn, and dusty. The district court judge’s 
findings with respect to some of these m atters are set 
forth in the m argin.2
2 The district court found that:

During the time Ms. Lewis was attaining degrees she held 
several jobs in the field of books. She worked as a typist in a 
library, an assistant librarian, a librarian and a salesperson in 
several bookstores. She spent four years in New York City 
working in two libraries, two bookstores and the French 
Embassy during that period. No explanation was offered by Ms. 
Lewis as to why she changed jobs so much and so often. In 
December, 1965, Ms. Lewis was hired by the University of 
Pittsburgh to work as a salesclerk in the Pitt Book Center.

From December, 1965, until July, 1966, Ms. Lewis worked as 
a clerk in the Text Book Department of the Book Center. In 
July, 1966, she moved to the General Trade Book Department, 
working as a clerk until July, 1967, when she was promoted to 
the position of buyer of technical books. |footnote: Technical 
books are books dealing with very specialized, narrow scientific 
or technical subjects such as physics, economics and 
engineering. Trade books are popular books and include fiction 
as well as non-fiction.] Ms. Lewis was the technical book buyer 
until February, 1975, at which time the technical book 
department was merged into the trade section causing her job 
to be phased out. After her position was eliminated, Ms. Lewis 
was offered a buyer’s position in the text book department, 
which she refused, stating that her interests and skills were in 
the technical book area. She then became a sales clerk in the 
trade department, the position she currently holds.

The incident which precipitated this lawsuit occurred in 
October, 1976. An assistant buyer's position in the Trade Book 
Department became available. A notice of this opening was 
posted in the Book Center and five women applied, including 
Ms. Lewis. The selection committee consisted of Mr. Dwight 
Fong and Mr. Russell Kierzkowski, the two trade book 
department buyers. Mr. Fong is a Chinese-American. Mr. 
Kierzkowski is of Polish origin and married to a Mexican 
national. All five job applicants were employees of the Center.

Appendix-Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



16a

The selection process was simple since Messrs. Fong and 
Kierzkowski knew all the applicants. Each applicant was 
interviewed for five to ten minutes by the two men. They simply 
informed the prospective applicant of the duties and 
responsibilities which went with the job. Mr. Fong testified that 
he also had checked the job applications submitted by each 
applicant when she originally sought a job at the Book Center. 
Mr. Kierzkowski, however, did not read those applications. Both 
men believed that they did not need to spend time reviewing the 
personnel files of each applicant since the applicants already 
worked at the book center and the men had personal knowledge 
of the work history and the work habits of each. Within one 
week after posting the notice of vacancy, Mr. Fong and Mr. 
Kierzkowski chose Jean Aiello.

* * * * * *

While still a student at Pitt, Ms. Aiello had worked part time 
at the Book Center as a sales clerk. She became a fulltime clerk 
in the Trade Book Department in 1972 after she withdrew from 
school. She worked as a salesclerk in the Trade Book 
Department under the supervision of Mr. Fong and Mr. 
Kierzkowski from 1972 until October, 1976, when she was 
chosen for the assistant buyer’s position. Ms. Aiello is still the 
assistant buyer in the Trade Book Department.

Ms. Lewis contends that she was more qualified for the 
position of assistant buyer than Ms. Aiello by virtue or her 
educational background and previous experience as a buyer; she 
asserts that she was denied the promotion because of her race. 
Mr. Fong and Mr. Kierzkowski testified that the reason she 
was not promoted was her poor and inefficient work habits. 
They stated that while she was a buyer of technical books, she 
had a history of not following store procedure properly, i.e. she 
did not do her book returns and stock checks, and they gave 
many examples of these deficiencies. Ms. Aiello, on the other 
hand, had learned and followed store procedures very well, and, 
according to Messrs. Fong and Kierzkowski, did what she was 
told to do efficiently, requiring only minimal supervision. We 
find that Ms. Lewis did have a poor work record, as a buyer 
from 1967 until 1975, and due to that poor record, was denied 
the promotion. There is absolutely no direct or circumstantial 
evidence that she was denied the promotion due to her race.

App. at 42-45.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



17a

[913] The basic question which was presented a t trial, 
therefore, was whether, despite Lewis’ superior paper 
credentials, she was denied promotion because of her 
alleged lapses as described by Messrs. Fong and 
Kierzkowski, or whether the decision was based on race.

The ju ry ’s verdict on the section 1981 and section 1983 
claims was in the form of special interrogatories:

1. Was plaintiff, Ida Mary Lewis, qualified in 
October, 1976, for the position of A ssistant Buyer in 
the Trade Book Departm ent?

ANSWER: YES.

2. Was plaintiff, Ida Mary Lewis, more qualified in 
October, 1976, for the position of A ssistant Buyer in 
the Trade Book D epartm ent than Jean Aiello?

ANSWER: YES.

3. Would plaintiff, Ida Mary Lewis, have been 
promoted to the position of A ssistant Buyer but for 
the fact th a t she is black?

[914] ANSWER: NO.

Thus, the jury, while finding Lewis to have qualifications 
superior to those of Aiello, nonetheless found th a t Lewis 
was not denied promotion because of her race.

As required by the statu te, the district court judge 
entered separate findings of fact on the Title VII claim.3 
He concluded that:

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).

3 See supra note 2.



18a

[Lewis] failed to prove by a preponderance of the 
evidence th a t the reasons for the denial of the 
promotion as articulated by Messrs. Fong and 
Kierzkowski were a mere “cover up ’’ or pretext for a 
racially discriminatory intent. Ms. Lewis would have 
been denied the promotion even if she were not 
black. Her poor work history, not her race, was the 
cause or m otivating factor of the denial.

App. at 47 (emphasis in original). He therefore granted 
judgm ent to defendants on the Title V II claim and 
entered judgm ent for defendants on Lewis’ 1981 and 
1983 claims based upon the ju ry ’s response to 
Interrogatory No. 3.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).

I I .

[1] Lewis has raised a number of issues on this 
appeal. After carefully examining the record and her 
contentions, we conclude th a t the district court did not 
err in entering judgm ent for the defendants on all claims. 
One issue, however, requires discussion. Lewis charges 
th a t the trial judge was incorrect in instructing the jury 
as to the level of causation required for her to succeed on 
her claims. We are satisfied, as was the district court, 
th a t Title V II and sections 1981 and 1983 all require a 
showing of “but for” causation in an employment 
discrimination suit.

A.

[2] To establish employment discrimination, it m ust be 
shown th a t the employer bore a racially discriminatory 
animus against the employee, and th a t this animus 
manifested itself in some challenged action, whether it be



19a

dismissal, failure to promote, or failure to hire. See, e.g., 
International Brotherhood o f Teamsters u. United States, 
431 U.S. 324, 334-35, 97 S.Ct. 1843, 1854, 52 L,Ed.2d 
396 (1977) (“ultim ate factual issues are . . . simply 
whether there was a pa ttern  or practice of . . . disparate 
treatm ent and, if so, whether the differences were 
racially prem ised”); General Electric Co. u. Gilbert, 429 
U.S. 125, 137 n. 14, 97 S.Ct. 401, 409 n. 14, 50 L.Ed.2d 
343 (1976) (Plaintiffs “ who seek to estab lish
discrimination have the traditional civil litigation burden 
of establishing th a t the acts they complain of constituted 
discrimination in violation of Title V II”); M assarsky v. 
General Motors Corp., 706 F.2d 111, 117 (3d Cir. 1983) 
(“plaintiff alleging disparate treatm ent . . . bears the 
ultim ate burden of persuading [the trier of fact] th a t his 
treatm ent was caused by purposeful or intentional 
discrimination”).

In McDonnell Douglas Corp. u. Green, 411 U.S. 792, 93 
S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court 
announced the manner in which discrimination m ust be 
established: (1) the employee m ust show a prima facie 
case of discrimination,4 (2) once a prima facie case has 
been shown, the burden shifts to employer to articulate

4 A prima facie case may be shown in a variety of ways, and no one 
set of criteria is applicable in all situations. McDonnell Douglas, 411 
U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. The McDonnell Douglas 
Court described one method which is often useful: (1) plaintiff must 
belong to a racial minority; (2) he applied and was qualified for a job 
for which the employer was seeking applications: (3) despite his 
qualifications, he was rejected; and (4) after his rejection, the position 
remained open and the employer continued to seek applications from 
persons of the complainant’s qualifications. Id. at 802, 93 S.Ct. at 
1824.

Appendix-Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



20a

some non-discriminatory reason for the challenged 
action, (3) if such a facially legitim ate reason is proffered, 
the employee m ust then bear the burden of 
dem onstrating th a t the reason given by his employer is 
in fact merely a pretext, i.e. a fiction which obscures the 
reality of racial discrimination.

[3] I t is im portant to recognize th a t McDonnell 
Douglas does not in any way relieve the employee of his 
basic burden of [915] proof. As the Court explained in 
Texas Department o f Community Affairs v. Burdine, 450 
U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), “ [t]he 
ultim ate burden of persuading the trier of fact th a t the 
defendant intentionally discriminated against the 
plaintiff remains a t all times with the plaintiff. . . . The 
McDonnell Douglas division of intermediary burdens 
serves to bring the litigants and the court expeditiously 
and fairly to this ultim ate question.” Burdine, 450 U.S. 
a t 253, 101 S.Ct. a t 1093. A t each stage in the procedure, 
the issues are winnowed and narrowed, and the factual 
inquiry proceeds to a new level of specificity. Id. a t 255, 
101 S.Ct. a t 1094. When the litigation reaches the third 
and last stage, the p la in tiffs  burden in showing th a t the 
proffered justification is merely a pretext “merges with 
the ultim ate burden of persuading the court th a t she has 
been the victim of intentional discrimination.” Id. a t 256, 
101 S.Ct. a t 1095.

I t  is in this third step of the McDonnell Douglas 
analysis th a t the issue of causation is most directly 
posed. The Supreme Court took great pains to emphasize 
in McDonald v. Santa Fe Trail Transportation Co., 427 
U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) tha t

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



21a

nothing has altered the plaintiff’s burden in showing th a t 
intentional “but for” discrimination exists. In focusing 
on “but for” causation, the Supreme Court stated  that:

The use of the term  “p re tex t” in this context does 
not mean, of course, that the Title V II plaintiff 
m ust show th a t he would have in any event been 
rejected or discharged solely on the basis of his race, 
w ithout regard to the alleged deficiencies [in work- 
related performance]; . . .  no more need be shown 
than that race was a “but for" cause.

Id. a t 282 n. 10, 96 S.Ct. a t 2579 n. 10 (emphasis added).

[4] We find no indication in any decisions of the 
Supreme Court, or of any other court, th a t signals any 
deviation from the use of the “but for” test of 
causation.5 Accord, Mack v. Cape Elizabeth School 
Board, 553 F.2d 720 (1st Cir. 1977); see League o f United 
Latin American Citizens (LULAC) v. City o f Salinas Fire 
Department, 654 F.2d 557 (9th Cir. 1981). The effort by 
the dissent to suggest a te st other than the Supreme 
Court’s “but for” te s t is not persuasive. See Dissenting 
Opinion, Typescript at 5-6. Judge Adams, writing in 
dissent, cites to United States v. Hayes International

5 While the cases cited above do not mention actions brought under 
§1981 and §1983; such claims require the same elements of proof as a 
Title VII action. Gray v. Board of Higher Education. 692 F.2d 901, 
905 (2d Cir. 1982); Setser v. Novack Investment Co., 657 F.2d 962, 
967 & n. 5 (8th Cir.1981); Whiting v. Jackson State University. 616 
F,2d 116, 121 (5th Cir.1980); Patterson v. American Tobacco C.o., 535 
F.2d 257, 270 (4th Cir.1976); see also New York Transit Authority v. 
Beazer, 440 U.S. 568, 583-84 n. 24, 99 S.Ct. 1355, 1364-65 n. 24, 59 
L.Ed.2d 587 (1979) (Ҥ1981 provides no greater substantive
protection than Title VII).

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



22a

Corp, 6 FE P Cases (BNA) 1328 (N.D.Ala.1973), af f d  
without opinion, 507 F.2d 1279 (5th Cir. 1975), in support 
of his argument. However, th a t case was decided and 
affirmed prior to the Supreme Court’s pronouncement in 
1976 of the “but for” te st found in Santa Fe. Moreover, 
in operation, the Hayes “any p a rt” standard, although 
not artfully articulated, can be explained as part of the 
“but for” analysis. Judge A dam s’ dissent also cites to 
Brodin, The Standard o f Causation in Mixed-M otive 
Title V II Actions: A  Social Policy Perspective, 82 
Colum.L.Rev. 292 (1982). The Brodin article, however, 
concludes with a test for causation no different than the 
Supreme Court’s test, and the te st th a t we adopt here, 
since Brodin would require th a t the employee show that 
the “ same decision” would not have been reached absent 
racial animus.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).

B.

[5] Lewis argues th a t she need only show th a t race 
was a “ substan tia l” or “m otivating” factor leading to 
the defendants’ decision not to promote her to assistan t 
buyer.6 In support for this proposition, [916] Lewis cites, 
inter alia, Mt. Healthy City Board o f Education v. Doyle, 
429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) 
(alleging abridgement of first amendment rights by 
government employer).
6 The parties’ requests for jury charges, which were to have been filed 
on December 10, 1982, are for some reason not contained in the 
record before us and no notation of their filing is disclosed on the 
district court docket sheet. Thus, we do not have Lewis’ actual 
proposed charge and we have been obliged to construct Lewis’ 
argument from the in chambers colloquy in which the parties and the 
court engaged on December 15, 1982.



23a

In M t. H ealthy, however, Ju stic e  R ehnquist 
specifically rejected the proposition that, under §1983, it 
was enough to show th a t protected constitutional 
activity was a “substantial factor” leading to the 
challenged action. Id. a t 285, 97 S.Ct. a t 575. Mt. 
H ealthy  merely found that, after an initial showing tha t 
protected activity was a “ substan tia l” or “m otivating 
factor,” the burden shifted to defendants to show th a t 
the same action would have occurred even in the absence 
of such activity. Id. a t 287, 97 S.Ct. a t 576. I t therefore 
did not deviate from the requirement of “but for” 
causation; rather, its only effect was to allocate and 
specify burdens of proof. In Village o f Arlington Heigh ts 
v. Metropolitan Housing Development Corp., 429 U.S. 
252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), the Court 
stated  th a t “[p]roof th a t the decision by the Village was 
motivated in part by a racially discriminatory purpose 
would not necessarily have required invalidation of the 
challenged decision. Such a proof would, however, have 
shifted to the Village the burden of establishing th a t the 
same decision would have resulted even had the 
impermissible purpose not been considered.” Id. a t 270 
n. 21, 97 S.Ct. a t 566 n. 21.

Lewis also calls to our attention Whiting v. Jackson  
State University, 616 F.2d 116 (5th Cir.1980), and 
Niederhuber v. Camden County Vocational & Technical 
School D istrict Board o f Education, 495 F.Supp. 273 
(D.N.J.1980), aff'd 671 F.2d 496 (3d Cir. 1981), as 
support for the te st which she argues should be 
employed. Niederhuber's analysis does not differ from 
Mt. Healthy's, on which it relies. Whiting, which

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



24a

referred to Arlington Heights but not to Mt. Healthy, 
noted th a t in proving pretext under the third part of the 
McDonnell Douglas analysis, “Title VII is not violated 
simply because an impermissible factor plays some part 
in the employer’s decision. The forbidden ta in t need not 
be the sole basis for the action to warrant relief, but it 
m ust be a significant factor.” Id. a t 121 (emphasis in 
original). Lewis contends th a t this language adopts a 
test which is less stringent than the traditional “but for” 
requirement.

We do not read W hiting  as departing from the “but 
for” causation requirement. By definition, a “ significant” 
factor is one which makes a difference in the result. 
Conversely, if an action would have been taken 
regardless of race, any discriminatory factor could hardly 
be called “ significant.” We can discern little difference in 
the result between a “significant factor” test and the 
“but for” test. Indeed, as the term  “ significant factor” is 
employed in Whiting, we would deem it to be the 
functional equivalent of the “but for” test which the 
Supreme Court has preferred. For ourselves, we too prefer 
the Supreme Court’s concept of “but for,” as we regard 
it as the more analytically measurable, and a concept 
which can be employed more easily by a jury. A t any 
rate, nothing in W hiting  supports Lewis’ argum ent th a t 
race as “a substan tia l” or “a m otivating factor” has 
supplanted “but for” causation as the te st by which her 
claims m ust be measured.

Appendix-Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



25a

III.

W ith Santa Fe Trail and our understanding of Lewis' 
argum ent as a background, we turn  to a consideration of 
the instructions given to the jury  in Lewis’ case. Lewis, 
in an in chambers colloquy,7 argued th a t “ the standard is 
th a t the consideration of race m ust only be a significant 
or a contributing . . . or a substantial reason." App. at 
453. The district court judge in his causation charge, 
however, instructed [917] the jury in term s of “bu t for" 
causation, i.e. “ . . . but for the fact th a t Miss Lewis is 
black, would she have been prom oted.” App. at 531-32: 
see also App. at 522-23, 527-28. In so instructing the 
jury, the district court judge also referred to race in 
terms of “the determ inative factor.” Lewis has seized 
upon th a t expression as vitiating the court’s entire 
charge, and complains th a t the charge which should have 
been given would have required Lewis to prove th a t race 
was only a “substan tia l” or “m otivating” factor. A pp’t 
Br. at 20.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).

See supra note 6.



26a

Had the district court judge charged the jury  th a t race 
m ust be “the determinative factor” without more, Lewis’ 
position m ight have been more substantial than  we find 
it to be.8 In this case, however, the d istrict court did 
charge much more. On a t least three occasions, the judge 
stated  and restated  the basic “bu t for” test m andated by 
the Supreme Court.

The basic instruction on causation was as follows:

The defendants intended to or purposefully 
discriminated against plaintiff only if her race was 
the determinative factor in their failure to promote

8 There may be several determinative factors which lead to any given 
decision, all of which can be “but for” causes of the challenged action. 
The ultimate “but for” test, however, subsumes within its 
determination all such factors. See Loeb v. Textron, Inc., 600 F.2d 
1003 (1st Cir.1979); Laugesen v. Anaconda Co., 510 F.2d 307 (6th 
Cir.1975); Bentley v. Stromberg-Carlson Corp., 638 F.2d 9 (2d 
Cir.1981); discussed in text infra.

In an analogous situation, Judge Aldisert, writing for the Court in 
Smithers v. Bailar, 629 F.2d 892 (3d Cir.1980), dealt with a similar 
argument in the context of an age discrimination challenge. Judge 
Aldisert addressed himself to the relevant language as follows:

Appellant contends that the court erred in burdening the 
plaintiff with proving that age was “the determinative factor” 
instead of “a determinative factor” in the selection of Barry. 
This argument has a superficial appeal because obviously the 
plaintiff need only prove that age was somehow determinative 
of the Board’s decision. Perhaps the formulation by the district 
court would have been more clear if it had used the indefinite 
rather than the definite article. This difference should not be 
overemphasized, however, because important statements may 
easily and critically be altered simply by removing them from 
context. Recognizing this possibility of distortion in jury 
instructions, an appellate court reviews the charge as a whole, 
preserving context.

Id. at 896 (emphasis in original).

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27a

the plaintiff. This means that the defendants refused 
to promote the p la in tiff because she was black, and 
that but for the fact that she was black, the p la in tiff 
would have been promoted.

If the defendants failed to promote the plaintiff 
for any other reason than  her race, then you cannot 
find th a t the defendants intentionally  and 
purposefully discriminated against the defendant 
[sic] because of her race.

The consideration of race need not be the sole 
basis for the decision not to award the position to 
plaintiff, bu t it m ust be the determ inative factor in 
the decision. If you find th a t Defendants did not 
intentionally and purposefully discriminate against 
the plaintiff because of her race, by failing to 
promote her, then you m ust find for the defendant.

App. at 522-23 (emphasis added).

Later, the judge added:
In summary, you m ust find for the plaintiff if you 

find th a t the plaintiff has proved by a 
preponderance of the evidence that, one, she was 
better qualified for the position of assistan t buyer in 
the trade book departm ent than  Miss Aiello, and, 
two, th a t the determinative factor of the defendant’s 
decision to deny Miss Lewis the promotion was her 
race. In  other words, but for the fact that M iss 
Lewis is black, she would have gotten the 
promotion. . ...

App. a t 527-28.

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28a

The district court judge stressed the point one last 
time near the end of his instructions:

Remember, ladies and gentlemen, what a polestar 
is. A polestar is a conspicuous star like the North 
Star. The basic question th a t you m ust answer in 
this case is, but for the fact that M iss Leu'is is 
black, would she have been promoted. All the [918] 
rest of the case revolves around tha t polestar.

App. at 531-32.

Thus, the district court emphasized and reemphasized 
the requirement tha t, whatever else the jury  found, it 
had to decide whether Lewis would have been promoted 
“but for” the fact th a t she was black. The charge, 
therefore, although using the term “the determinative 
factor,” did not rely on either “the determinative factor” 
or “a determinative factor” as the dispositive inquiry, for 
either is subsumed within the question posed by 
Interrogatory No. 3: “Would plaintiff, Ida Mary Lewis, 
have been promoted to the position of A ssistant Buyer 
bu t for the fact th a t she is black?” Nor, understandably, 
was the jury  required to make such a determination, for 
as the charge reveals, it was the “bu t for” te st of 
causation which the district court judge commanded the 
jury  to employ.

Every mention of the term “the determinative factor” 
in the judge’s charge was accompanied by, and 
concluded with, a meticulous description of the “but for” 
test. Not only did the district court judge properly 
instruct the jury  as to the “but for” test required by the

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o f  Appeals for the Third Circuit, Dated

Decem ber 30, 1983 (2-1 Decision).



29a

Supreme Court during the liability aspect of his charge, 
bu t he also returned to the “bu t for” feature of his 
instructions after he had concluded charging on 
damages. I t was a t the end of his charge on damages 
th a t he repeated once again th a t the polestar and the 
basic question to be answered is “bu t for the fact th a t 
Miss Lewis is black, would she have been promoted. All 
the rest of the case revolves around th a t polestar.” 
Indeed, the crucial causation interrogatory was framed in 
those terms.

[6] W hether or not the district court judge used the 
term “the determinative factor,” therefore, is not so 
im portant as how he explained th a t term. I t is of course 
the substance of the instruction rather than the form 
which determines its correctness. In an analogous 
context, the F irst Circuit in Loeb v. Textron, Inc., 600 
F.2d 1003 (1st Cir.1979) (suit under Age Discrimination 
in Em ployment Act), approved use of “the determining 
factor” in a d istrict court’s charge. I t  did so by 
recognizing th a t “the determining factor” was to be 
combined with the “bu t for” te st as the correct measure 
of causation. The court stated:

[T]he court should [instruct] the jury  th a t for 
plaintiff to prevail he had to prove by a 
preponderance of the evidence th a t his age was the 
“determining factor" in his discharge in the sense 
that “but for” his employer's motive to discriminate 
against him . . .  he would not have been discharged.

Id. a t 1019 (emphasis added). See Laugesen v. Anaconda 
Co., 510 F.2d 307, 317 (6th Cir.1975) (discriminatory 
factor m ust have “made a difference in determining 
whether [employee] was to be retained or discharged”).

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December 30, 1983 (2-1 Decision).



30a

In Bentley v. Stromberg-Carlson Corp., 638 F.2d 9 (2nd 
Cir.1981), the court stated  that:

Although we . . .  saw no significant difference 
between the Laugesen formulation [discrimination 
m ust “make a difference” in the decision] and the 
“determining factor” charge enunciated in Loeb v. 
Textron, Inc. . . .  we did not mean to suggest 
approval of an instruction th a t stated  only th a t the 
jury  m ust find age to be a “determ ining” factor 
without clarifying th a t term. Instead . . .  a plaintiff 
m ust prove th a t age was a “determining factor in 
his discharge in the sense th a t ‘but for' his 
employer’s motive to discriminate against him 
because of his age, he would not have been 
discharged.”

Id. a t 11-12 (quoting Loeb, 600 F.2d a t 1019).

[7] Here, the district court not once—but a t least 
three tim es—explained and clarified the “but for” test 
and its use of “ the determinative factor.” By doing so, 
the d istrict court correctly and clearly conformed to the 
requirements and clarifications specified by Santa Fe, 
Loeb, and Bentley.9

9 Judge Adams' dissent, in discussing “the determinative factor" and 
his “illustration" (see Dissenting Opinion, at 922) mischaracterizes 
our discussion which took pains to point out that, when adequate 
“but for” instructions are given, reference to “the determinative 
factor" may not necessarily constitute error. That discussion follows 
Smithers v. Bailor, 629 F.2d 892 (3d Cir.1980); see supra note 8. Thus, 
Judge Adams' illustration would lead to the opposite conclusion than 
that which he proposes, i.e. if a black, unsuccessful plaintiff-employee 
could show that, but for his race, he would have been promoted or 
hired or not discharged, such a plaintiff would prevail, and he would 
do so whether the subsidiary instructions spoke of race as a 
determinative factor or as the determinative factor.

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31a

[919] [8] Moreover, it is well established th a t in 
framing jury  instructions, particularly where no specific 
requests are of record, the district court has wide 
latitude. E.g. United States v. Quick, 128 F,2d 832 (3d 
Cir. 1942); see also United States v. Logan, 717 F.2d 84 
at 93 (3d Cir.1983) (Garth, J., dissenting). He may accept 
the language subm itted by counsel or may substitu te  his 
own language in framing instructions, provided always of 
course th a t the substance is correct. Here, where the 
record does not reveal p la in tiffs actual requested charge 
(see supra note 6) and where the p lain tiffs requested 
charge m ust be gleaned from an equivocal colloquy with 
the court, it nevertheless is apparent th a t the district 
court judge did not err in explaining and charging the 
correct te st to be employed by the jury.

We have also examined Lewis’ other argum ents made 
on appeal and find them without m erit.10
10 The dissenting opinion would find error in the district court’s 
refusal to permit the introduction of evidence which would tend to 
show that nepotism entered into the decision to promote Aiello 
instead of Lewis. (Aiello was apparently the niece of Mary Bonasso, 
the operations manager of the Bookstore). We cannot find, however, 
that the district court abused its discretion in excluding this 
evidence. As the district court noted, whether or not nepotism 
entered into the decision to promote was not relevant to a finding of 
racial discrimination. Indeed, a showing that any other factor other 
than race was a determinative factor in the decision would actually 
buttress the University’s defense.

The dissenting opinion would also remand this case for a new trial, 
due to what it perceives to be a defective charge to the jury by the 
district court regarding inferential or circumstantial proof of intent to 
discriminate. We note at the outset, as the dissenting opinion itself 
conceded, that Lewis never requested a special charge on inferential 
proof of intent, nor did she object to the instructions in this regard. 
Normally, this would foreclose our review of any alleged insufficiency 
in the jury instructions. Fed.R.Civ.P. 51. We also note that Lewis 
never raised this issue on appeal. Although the dissenting opinion 
argues strenuously that the absence of a special instruction

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32a

constitutes plain error, we cannot agree that it is required that we 
raise this issue sua sponte.

Moreover, we believe that the charge actually given adequately 
addresses Judge Adams' concerns. We find nothing to indicate that 
the district court ever prevented Lewis from presenting proofs which 
might discredit the University’s articulated reason for not promoting 
her. We have no quarrel with the contention that proof of intent can 
be shown by either direct or indirect proof. The trial judge, however, 
gave explicit instructions in this regard, when he charged:

Now, there are, generally speaking, two types of evidence 
from which the jury may properly find the truth as to the facts 
of this case. Once is direct evidence, such as the testimony of 
any eyewitness. And both attorneys have told you, and I am 
inclined to agree with them, that there has been little or no 
direct evidence in this case with respect to the ultimate question 
involved here.

The other type of evidence is indirect or circumstantial 
evidence pointing to the existence or nonexistence of certain 
facts. . . .

As a general rule, the law makes no distinction between direct 
and circumstantial evidence, but simply requires that the jury 
finds the facts in accordance with the preponderance of all the 
evidence in the case, both direct and indirect,

App. at 515-16. Later, the district court returned to this theme:
Now, intent ordinarily may not be proved directly because 

there is no way of fathoming or scrutinizing the operations of 
the human mind. But you may infer a person’s intent from 
surrounding circumstances. You may consider any statement 
made or act done or omitted by any party whose intent is in 
issue, and all other facts and circumstances which indicate his 
or her state of mind.

You may consider it reasonable to draw the inference and find 
that a person intends the natural and probable consequences of 
acts done knowingly or knowingly omitted, but it is for you to 
determine what facts have been established by the evidence. 

App. at 523-24.
The dissent would apparently require that a new element be added 

to the McDonnell Douglas/Burdine instructions which would restate 
the instructions already given in a more emphatic manner. We find no 
support for the creation of such a requirement, nor has it ever been 
recommended in any handbook or treatise. See Devitt & Blackmar, 
Federal Jury Practice and Instructions §92.25 (Supp.1982) (proposing 
model instructions, but in ADEA context, citing in “Notes,” Burdine 
and McDonnell Douglas as authority).

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33a

[920] IV.

Our review of the d istrict court’s charge reveals tha t 
the d istrict court properly instructed the jury  in term s of 
the Supreme Court’s “bu t for” test. Thus, it was not 
error for the district court to decline to charge the 
p la in tif f’s req u ested  te s t  of “ s u b s ta n tia l” or 
“m otivating” factor. Nor did the d istrict court err in the 
use of the term  “determ inative factor” in its clarification 
of the “bu t for” test. For these reasons, the judgm ents 
of the d istrict court dated December 10, 1982 (pertaining 
to the sections 1981 and 1983 (jury) claims) and January 
1, 1983 (pertaining to Lewis’ Title V II claim) will be 
affirmed.

ADAMS, Circuit Judge, dissenting.

This appeal starkly dem onstrates the need to reaffirm 
the fundam ental policy behind statu to ry  protections 
against employment discrimination.

In the case before us, the trial court misconceived the 
substantive rights protected by the antidiscrimination 
statu tes, as well as the evidentiary burden—both 
interm ediate and ultim ate—allocated to a plaintiff by 
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 
S.Ct. 1817, 36 L.Ed.2d 668 (1973). Thus while I agree 
with the m ajority th a t all three statu to ry  claims in this 
proceeding are governed by the same legal standards, 
and while I also agree th a t Ida Mary Lewis had the 
ultim ate burden under all three claims of proving th a t 
she was denied a promotion because of her race, I cannot 
join the m ajority’s conclusion th a t the district court 
charged the jury  with, and itself applied, the proper legal

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34a

standard by which to determine whether race was the 
grounds for the U niversity’s decision not to promote Ms. 
Lewis. Nor do I agree with the exclusion of testim ony 
regarding possible nepotism in the promotion decision. 
Accordingly, I respectfully dissent.

I.

Racial discrimination in employment is a serious 
societal ill for which Congress has prescribed strong 
sta tu to ry  remedies:

W hat is required by Congress [in Title VII] is the 
removal of artificial, arbitrary, and unnecessary 
barriers to employment when the barriers operate 
invidiously to discriminate on the basis of racial or 
other impermissible classification.

Griggs v. D uke Power Co., 401 U.S. 424, 431, 91 S.Ct. 
849, 853, 28 L.Ed.2d 158 (1971). The Supreme Court has 
further noted th a t

[t]he language of Title V II makes plain the purpose 
of Congress to assure equality of employment 
opportunities and to eliminate those discriminatory 
practices and devices which have fostered racially 
stratified job environments to the disadvantage of 
minority citizens.

McDonnell Douglas, supra, 411 U.S. a t 800, 93 S.Ct. at 
1823 (1973).

Title V II case law may be divided into two discrete 
types of claims: 1) those challenging practices th a t have 
a disparate impact upon members of a protected class; 
and 2) those challenging the disparate treatm ent of

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35a

individual members of a protected class with regard to 
hiring, pay, promotions, and the like. In addressing the 
second type of claim, which is represented by the case at 
bar, this Court has declared th a t

[a] plaintiff alleging disparate treatm ent . . . bears 
the ultim ate burden of persuading the jury  th a t his 
treatm ent was “caused by purposeful or intentional 
discrimination.”

M assarsky u. General Motors Corp., 706 F.2d 111, 117
(3d Cir.1983), cert, den., _____  U.S. _____ , 104 S.Ct.
348, 78 L.Ed.2d 314 (1983), quoting Srnithers u. Bailar, 
629 F.2d 892, 898 (3d Cir.1980).

Employment discrimination claims brought under 42 
U.S.C. §1981 are governed by the same standards as 
actions brought pursuant to the disparate treatm ent 
strand  of Title VII. Wilson v. Legal Assistance o f North 
Dakota, 669 F.2d 562, [921] 563-64 (8th Cir.1982); 
W hiting v. Jackson State University, 616 F.2d 116, 121 
(5th Cir.1980); Johnson v. Alexander, 572 F.2d 1219, 
1223 (8th Cir.1978), cert, denied, 439 U.S. 986, 99 S.Ct. 
579, 58 L.Ed.2d 658 (1978): Patterson v. American 
Tobacco Comp., 535 F.2d 257, 270 (4th Cir.), cert, denied , 
429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976); 
Waters v. Wisconsin Steel Works, 502 F.2d 1309, 1316 
(7th Cir.1974), cert, denied, 425 U.S. 997, 96 S.Ct. 2214, 
48 L.Ed.2d 823 (1976). These same criteria apply to 
claims brought under 42 U.S.C. §1983 when the §1983 
action provides a parallel remedy for the transgression of

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36a

rights conferred by Title V II.1 Whiting, supra a t 121; 
Carrion v. Yeshiua University, 535 F.2d 722, 729 (2d 
Cir.1976).

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).

II.

C onsiderable confusion su rrounds the  proper 
formulation of the ultim ate issue in a disparate 
treatm ent employment discrimination claim. Although I 
believe the principal error committed at trial in this case 
was the preclusion of inferential proof, I also cannot join 
the m ajority in holding th a t the burden upon Ms. Lewis 
was to show th a t race was “the bu t for” reason for the 
U niversity’s failure to promote her.

The m ajority relies heavily upon McDonald v. Santa 
Fe Trail Transportation Co., 427 U.S. 273, 96 S.Ct. 2574, 
49 L.Ed.2d 493 (1976), for the proposition th a t the 
Supreme Court has clearly articulated a restrictive “but 
for” standard. I t  is noteworthy th a t the m ajority points 
only to one footnote in Sante Fe Trail for this 
proposition. Id. a t 282 n. 10, 96 S.Ct. a t 2579 n. 10. The 
sparse documentation is reflective of the fact th a t the 
Supreme Court has yet to address the degree of 
causation a plaintiff m ust establish to prevail on a Title 
V II disparate treatm ent claim. Indeed, the cited footnote 
states only th a t “no more need be shown than th a t race 
was a ‘bu t for’ cause.” Id. The “no more need be shown” 
phrase indicates th a t a showing of bu t for causation 
would be sufficient] it does not signify th a t such a 1

1 The question whether state action was present here for purposes of 
§1983 was not raised in the pleadings, at trial, or in the briefs.



37a

showing is necessary to prevail.2 Moreover, the footnote 
uses the article “a ” rather than  “th e ” to describe how 
determ inative a discriminatory factor m ust be to satisfy 
the requirem ents of “but for,”

The m ajority cites only two cases to support its 
interpretation of the Santa Fe Trail footnote. LU L A C  v. 
City o f Salinas, 654 F.2d 557 (9th Cir.1981); Mack v. 
Cape Elizabeth School Bd„ 553 F.2d 720 (1st Cir. 1977). 
While the F irst Circuit, w ithout substantive discussion 
or any analysis, does require th a t the discriminatory 
reasons be shown to be determinative, the Ninth Circuit 
does not support the m ajority’s position. Rather, 
LU L A C  concerns a defendant’s claim th a t the district 
court failed to require a showing th a t the discriminatory 
acts alleged “actually caused . . . [the] failure to be 
prom oted.” 654 F.2d a t 558. Significantly, the Ninth 
Circuit expressly refused to require such a showing.

A part from L U L A C  and Mack, the case law is split 
between courts holding th a t “[i]f any element of racial 
discrimination or retaliation or reprisal played any part 
in a challenged action, no m atter how remote or slight or 
tangential, the Court would hold th a t the challenged
2 In the context of an Age Discrimination in Employment Act case, 
this Court has expressed a strong preference for an “a determinative 
factor” rather than “the determinative factor” analysis. Smithers, 
supra,. 629 F.2d at 896-97. Although the Court in Smithers did not 
reverse the trial court for its inadvertent use of “the,” it clearly 
implied that absent the curative use of “a determinative factor” as 
the ultimate legal standard for weighing the employment 
discrimination claim, the verdict for the defendant could not have 
withstood scrutiny. We further note that Smithers involved a bench 
trial where the effects of an incorrect formulation of the ultimate 
issue are more easily circumscribed and evaluated than in a jury trial.

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action was in violation of . . . the law . . United States v. 
Hayes In t'l Corp., 6 FEP Cases (BNA) 1328, 1330 
(N.D.Ala.1973) (emphasis added), aff'd 507 F.2d 1279 
(5th Cir.1975), see also Brodin, The Standard of 
Causation in the Mixed-M otive Title V II Action: A  
Social [922] Policy Perspective, 82 Col.L.Rev. 292, 308 
n. 75 (citing cases for same proposition), and those cases 
th a t hold tha t the prohibited discrimination m ust be a 
significant factor. See Whiting, supra; see also Brodin, 
supra, at 309 n. 78 (citing cases following the Whiting  
analysis).3

To require an alleged victim of discrimination to prove 
th a t race was “the determ inative factor” in the 
employer's decision not to hire or promote would 
severely hamper the ability of victims of discriminatory 
treatm ent to vindicate their statu to ry  rights. At bottom, 
this standard amounts to a “ sole basis” test which finds 
little or no support in the case law or in the legislative 
history of Title VII. In fact, during the legislative 
debates on Title VII, Senator McClellan proposed an 
amendment which would have established the “ sole 
basis” test. In reply, Senator Case argued:

The Senator from Arkansas, as always, seeks to 
provide the benefit of great clarity and simplicity in

3 The majority’s reading of Whiting is unpersuasive. Acknowledging 
that the Fifth Circuit supports “a significant factor” test, the 
majority nevertheless reads this to be equivalent to a but-for test 
which, in turn, is equivalent to a determinative factor test. I cannot 
discern how a test premised on the difficulty of identifying the 
ultimate operative motivation in what is often a complex and 
involved decision can be reduced to a test requiring a plaintiff to 
prove that one identifiable factor was determinative.

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39a

his objectives and methods. The difficulty with this 
amendment is th a t it would render title V II totally 
nugatory. If anyone ever had an action th a t was 

5 m otivated by a single cause, he is a different kind of 
animal from any I know of. B ut beyond th a t 
difficulty, this amendment would place upon persons 
attem pting to prove a violation of this section, no 
m atter how clear the violation was, an obstacle so 
great as to make the title completely worthless. I 
therefore regret th a t we are obliged to oppose the 
amendment, and also to recommend th a t it be 
rejected.

110 Cong.Rec. 13,837-38 (1964). Both the proposed 
McClellan amendment and a similar proposal in the 
House were defeated prior to ratification of the Civil 
Rights Act of 1964. To perm it by judicial fiat what 
Congress specifically rejected raises a serious separation 
of powers question.

An illustration may shed additional light on my 
concern: two similarly qualified applicants apply for a 
job; one is white, the other black. After the white 
applicant is selected, the black applicant sues. The 
employer testifies th a t while race was of course a factor, 
it was not “th e ” reason for the hiring decision. He goes 
on to explain th a t race was one factor leading to the 
hiring of the white applicant, bu t not the major one. 
Under the m ajority’s analysis the black plaintiff would 
not prevail. I do not believe th a t the legislative intent 
undergirding Title V II and the other anti-discrimination 
sta tu tes may be reconciled with such a result. If these 
sta tu tes  are to have the effect sought by Congress,

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40a

namely ridding society of discrimination in employment, 
the introduction of race as any consideration in hiring 
m ust not be allowed to w ithstand judicial scrutiny. I t 
bears emphasis th a t the leading Supreme Court decision 
in this area, McDonnell Douglas, requires only th a t a 
plaintiff “persuad[e] the court th a t a discriminatory 
reason more likely m otivated the employer.” 450 U.S. a t 
256, 101 S.Ct. a t 1095 (emphasis added).

Thus I m ust respectfully dissent from the m ajority’s 
unduly restrictive reading of the “bu t for” factor.

III.

Equally im portant to the present case are the trial 
errors not addressed by the majority. In this type of 
disparate treatm ent claim, I believe th a t a “critical issue 
. . . concerns the order and allocation of proof in a private, 
non-class action challenging racial discrimination.” 
McDonnell Douglas, supra, 411 U.S. a t 800, 93 S.Ct. at 
1823. Even if the d istrict court had properly posed the 
question whether race was a significant factor in the 
hiring decision or, alternatively, whether race was a “but 
for” cause of the denial of the promotion to Ms. Lewis, 
this would not have term inated the [923] judicial inquiry. 
Of further consequence is the manner in which a plaintiff 
establishes th a t race was a significant factor in a refusal 
to hire or promote.

This Court has taken notice of the fact th a t “because 
it often will be difficult for the plaintiff to obtain direct 
evidence of the employer’s motive, the Supreme Court in 
McDonnell Douglas . . . articulated a set of rules of proof 
th a t give the plaintiff the benefit of a presum ption

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41a

operating in his [or her] favor.” Massarsky, supra, 706 
F.2d a t 117-18. This “benefit” to the plaintiff is created 
by an evidentiary shifting of the burden of production to 
allow a legally cognizable inference of discrimination to 
be created:

The McDonnell Douglas case involved an individual 
complainant seeking to prove one instance of 
unlawful discrimination. An employer’s isolated 
decision to reject an applicant who belongs to a racial 
minority does not show th a t the rejection was 
racially based. A lthough the McDonnell Douglas 
form ula does no t require d irect proof of 
discrimination, it does demand th a t the alleged 
discriminatee dem onstrate a t least th a t his rejection 
did not result from the two m ost common legitimate 
reasons on which an employer m ight rely to reject a 
job applicant: an absolute or relative lack of 
qualifications or the absence of a vacancy in the job 
sought. Elimination of these reasons for the refusal to 
hire is sufficient, absent other explanation, to create 
an inference th a t the decision was a discriminatory 
one.

In t'l Bhd. o f Teamsters v. United States, 431 U.S. 324, 
358 n. 44, 97 S.Ct. 1843, 1866 n. 44, 52 L.Ed.2d 396 
(1977).

In Fumco Construction Corp. v. Waters, 438 U.S. 567, 
577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), Justice 
Rehnquist summarized the case law providing for 
inferential proof of discriminatory intent:

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The method suggested in McDonnell Douglas . . .  is 
merely a sensible, orderly way to evaluate the 
evidence in light of common experience as it bears 
on the critical question of discrimination. A prima 
facie case under McDonnell Douglas raises an 
inference of discrimination only because we presume 
these acts, if otherwise unexplained, are more likely 
than not based on the consideration of impermissible 
factors. . . . And we are willing to presume this 
largely because we know from our experience tha t 
more often than not people do not act in a totally 
arbitrary manner, w ithout any underlying reasons, 
especially in a business setting. Thus, when all 
legitimate reasons for rejecting an applicant have 
been eliminated as possible reasons for the 
employer’s actions, it is more likely than not the 
employer, who we generally assume acts only with 
some reason, based his decision on an impermissible 
consideration such as race.

An examination of the mechanics of the McDonnell 
Douglas standard dem onstrates how the use of 
presumptions is employed to arrive at the ultim ate issue 
in an employment discrimination claim. To create a 
prima facie case, the plaintiff m ust establish:

(i) th a t he belongs to a racial minority; (ii) th a t he 
applied and was qualified for a job for w'hich the 
employer was seeking applicants; (iii) tha t, 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 com plainant’s qualifications.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



43a

McDonnell Douglas, supra, 411 U.S. a t 802, 93 S.Ct. at 
1824. Such a prima facie case creates a presumption tha t 
the employer unlawfully discriminated against the 
employee. “ If the trier of fact believes the p lain tiffs 
evidence, and if the employer is silent in the face of the 
presumption, the court m ust enter judgm ent for the 
plaintiff because no issue of fact remains in the case.” 
Texas Dept, o f Community Affairs v. Burdine, 450 U.S. 
248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).

Upon the establishm ent of a prima facie case, the 
burden of production then shifts to the defendant to 
rebut the presumption of discriminatory intent by 
producing evidence th a t the employee was rejected or 
som eone [924] else advanced  for leg itim ate , 
nondiscriminatory reasons. Id. This is accomplished by 
introducing evidence setting forth the reasons for the 
plaintiff’s rejection.

The Supreme Court has carefully detailed the purpose 
of the second step of McDonnell Douglas:

Placing this burden of production on the defendant 
thus serves simultaneously to meet the plaintiff s 
prima facie case by presenting a legitimate reason for 
the action and to frame the factual issue with 
sufficient clarity so th a t the plaintiff will have a full 
and fair opportunity to dem onstrate pretext. The 
sufficiency of the defendant’s evidence should be 
evaluated by the extent to which it fulfills these 
functions.

Burdine, supra, 450 U.S. a t 255-56, 101 S.Ct. at 1094-95. 
The plaintiff now has the full burden of establishing tha t 
race was a significant factor in the failure to promote.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



44a

This, however, can be accomplished either inferentially or 
directly:

[The plaintiff] m ust have the opportunity to 
dem onstrate th a t the proffered reason was not the 
true reason for the employment decision. This 
burden now merges with the ultim ate burden of 
persuading the court th a t she has been the victim of 
intentional discrimination. She may succeed in this 
either directly by persuading the court th a t a 
discriminatory reason more likely m otivated the 
employer or indirectly by showing th a t the 
employer’s proffered explanation is unworthy of 
credence.

Id. a t 256, 101 S.Ct. a t 1095 (emphasis added).

A t the third step, the immediate burden, th a t of 
production or going forward with the evidence, comes 
together with the burden of this or any other 
case, th a t of persuasion or proof. The use of 
these various term s should not obscure the importance 
of the McDonnell Douglas test. In order to arrive 
a t the p lain tiffs ultim ate burden in employment 
discrimination claims, the intermediate shifting of 
subordinate burdens allows for inferential conclusions. 
Thus, while I do not take issue with the m ajority’s 
assertion th a t the burden of proof rested with the 
plaintiff, I believe th a t the district court’s treatm ent of 
the intermediate burdens was flawed.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



45a

IV.

By requiring the jury  to find direct proof of the 
ultim ate issue in Ms. Lewis’ claim, the district court in 
effect foreclosed the indirect method of proof sanctioned 
by the McDonnell Douglas test. In particular, the 
d istrict court’s instruction prevented Ms. Lewis from 
prevailing by dem onstrating th a t the non-discriminatory 
reasons proffered by the University were unworthy of 
belief. Such indirect proof was especially critical to Ms. 
Lewis's case since she had succeeded in proving to the 
ju ry ’s satisfaction th a t she was “more qualified” than 
the applicant promoted in her stead. Yet, because of the 
trial court’s apparent m isunderstanding of McDonnell 
Douglas, the jury  was prevented from evaluating the 
significance of her indirect proof.

Instead of explaining the two types of proof perm itted 
a t the third stage of McDonnell Douglas, the trial judge 
instructed the jury  only on what it viewed as the 
ultim ate issue in an employment discrimination 
case—whether race was the “but-for” cause of the 
challenged decision. As the m ajority has documented, 
see Maj.Op. at 917-918, the trial judge repeatedly 
explained the concept of “but-for” causation and 
emphasized th a t this “polestar” or basic question was 
the crucial inquiry in the case. W hat the judge failed to 
explain, however, was the fact th a t the ultim ate issue in 
an employment discrimination claim need not be proven 
directly, but may also be established inferentially by a 
showing th a t the reasons offered by an employer are 
“unworthy of credence.” Burdine, supra, 450 U.S. a t 256, 
101 S.Ct. a t 1095.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 <2-1 Decision).



46a

The trial judge’s sole discussion of indirect proof in the 
context of the McDonnell Douglas te s t4 effectively 
transform ed the evidentiary steps into a requirement of 
direct proof of the ultim ate issue. He said:

The burden is on the plaintiff to prove by a 
preponderance of the evidence th a t the reasons 
stated  by the defendants were ju s t a pretext for a 
racial [sic] discriminatory reason. If the plaintiff can 
show the reasons stated  by the defendants are a 
pretext, if she proves they are not the true reasons 
th a t the plaintiff was not promoted and th a t the 
p lain tiffs race was the determ inative factor for the 
denial of the promotion . . . then your verdict m ust 
be for the plaintiff.

Tr. a t 536-37. Subsequently, the court reiterated this 
explanation:

In summary, you m ust find for the plaintiff if you 
find th a t the p lain tiff has proved by a 
preponderance of the evidence tha t, one, she was 
better qualified for the position of assistan t buyer in 
the trade book departm ent than  Miss Aiello, and, 
two, th a t the determ inative factor of the defendant’s 
decision to deny Miss Lewis the promotion was her 
race. In other words, but for the fact th a t Miss 
Lewis is black, she would have gotten a promotion. 
And, three, the reasons advanced by the defendant 
for denying her the promotion are not true, and,

4 The trial judge did mention indirect proof at two other points in the 
instructions. Tr. at 524-25, 532-33. See full quotations in Maj.Op. at 
919-920 n.10. But these general explanations of inference are, of 
course, not directly relevant to the third step of McDonnell Douglas.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



47a

four, the defendant’s reasons are merely a pretext 
for racially discriminatory reasons.

Tr. a t 536-37. Thus the judge repeatedly linked proof of 
“pre tex t” with proof th a t the actual reasons were 
“racially discrim inatory.” In so doing, he mistakenly 
incorporated a requirement for direct proof into the 
indirect approach. Ms. Lewis was not perm itted to 
succeed simply by showing th a t the U niversity’s reasons 
were unworthy of credence. Rather, the instructions of 
the court required her to show th a t the reasons were 
unworthy of belief because the real reasons were 
discriminatory.

This collapsing of the indirect and direct branches of 
proof defeats the purpose of the McDonnell Douglas test. 
The te s t’s three-step m inuet of shifting burdens of 
production is, as Justice Rehnquist explained in Furnco 
Construction, an orderly means of evaluating evidence in 
light of a presum ption th a t “otherwise unexplained” 
actions disadvantaging minorities are “more likely than 
n o t” the product of “an impermissible consideration such 
as race.” 438 U.S. a t 577, 98 S.Ct. a t 2949. If a t the 
third step of the McDonnell Douglas te s t the plaintiff is 
required to prove directly th a t discriminatory reasons 
m otivated the employer, then the plaintiff is denied the 
all-important Furnco presum ption of impermissible 
motive; the McDonnell Douglas te st is thereby reduced 
to an empty ritual. There is no reason for the parties to 
trudge through the three steps of the te st if, a t the third

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



48a

step, the plaintiff is forced to prove directly the ultim ate 
issue of the case.5

[926] V.

While mistaken instructions are ofttimes insignificant 
and therefore harmless, in the present case it appears 
very likely th a t these instructions altered the verdict. In 
response to special interrogatories, the jury  found as 
follows:
5 It bears emphasizing that the precision necessary in jury 
instructions based on McDonnell Douglas is by no means a “new 
element," as the majority has suggested. Maj.Op. at 919-920 n. 10. 
The majority's reliance on Devitt & Blackmar, Federal Jury Practice 
and Instructions §92.25 (Supp.1982), is simply misplaced. The cited 
passage of this handbook refers only to the burden on the defendant 
to rebut a prima facie case in an Age Discrimination in Employment 
Act case. This section's treatment of the elements of a bona fide 
occupational qualification defense does not address the proper 
instruction to a jury at the third stage of the McDonnell Douglas test 
when a plaintiff seeks to rebut the proffered non-discriminatory 
reason on the grounds that it is a pretext.

Only last term, the Supreme Court, per Justice Rehnquist, once 
again affirmed that a plaintiff alleging discriminatory treatment must 
be allowed to prove discriminatory intent inferentially and that the 
failure to allow such proof is reversible error. See U.S. Postal Service
Bd. of Governors v. Aikens, _____ U .S .______, 103 S.Ct. 1478, 1481
n. 3, 75 L.Ed.2d 403 (1983):

As in any lawsuit, the plaintiff may prove his case by direct or 
circumstantial evidence. The trier of fact should consider all the 
evidence, giving it whatever weight and credence it deserves. 
Thus, we agree with the Court of Appeals that the District 
Court should not have required Aikens to submit direct 
evidence of discriminatory intent. See International Brotherhood 
of Teamsters v. United States. 431 U.S. 324, 358 n. 44, 97 S.Ct. 
1843, 1866 n. 44, 52 L.Ed.2d 396 (1977)

(“[T]he McDonnell Douglas formula does not require direct 
proof of discrimination").

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



49a

Number one, was the plaintiff, Ida M ary Lewis, 
qualified in October 1976, for the position of 
assistan t buyer in the trade book departm ent? 
Answer, yes.

Number two, was the plaintiff, Ida Mary Lewis, 
more qualified in October 1976, for the position of 
assistan t buyer in the trade book departm ent than 
Jean  Aiello? The answer, yes.

Number three, would the plaintiff Ida Mary Lewis, 
have been prom oted to the position of assistan t 
buyer b u t for the fact she was black? Answer, no. 
So say you all.

Tr. 549-50. Despite its  findings th a t Ms. Lewis was 
“more qualified’’ than  the woman promoted in her place,6 
the  ju ry  nonetheless found th a t race was not the “b u t 
for” cause of the U niversity’s decision. Given th a t the 
U niversity’s defense turned on its claim th a t Ms. Lewis 
performed her job poorly—th a t is, th a t she was less 
“qualified” than  the other applicant—the special verdict 
lends critical significance to the judge’s failure to explain 
the inferential method of evaluating the evidence. 
Having found th a t Ms. Lewis was “ more qualified,” a

8 In Special Interrogatory 2, the district court incorrectly charged the 
jury on the burden of establishing a prima facie case. Ms. Lewis did 
not have to show that she was “more qualified,” but only that she 
was “as qualified” as the person eventually hired. See McDonnell 
Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824; see also Note, 
Relative Qualification and the Prima Facie Case in Title VII 
litigation, 82 Col.L.Rev. 553 11982) {analyzing case law and policy 
reasons for requiring plaintiff to show only that he/she was qualified 
at prima facie stage). Because the jury found Ms. Lewis to be “more 
qualified,” this misstatement constitutes harmless error.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



50a

properly charged jury  m ight well have inferred under 
Furnco and Burdine th a t Ms. Lewis was a victim of 
discrimination. B ut because of the incorrect instructions, 
Ms. Lewis was denied this opportunity to prevail 
through the indirect method sanctioned by McDonnell 
Douglas.

The University seeks to avoid the implications of the 
special verdict by hypothesizing th a t the jury  believed 
Ms. Lewis to have superior paper credentials, bu t inferior 
job performance. This theory, however, appears to have 
been foreclosed by the judge’s careful instructions 
explaining the meaning of “qualifications:”

Education, training and experience are factors to  be 
considered in determining the relative qualifications 
of the plaintiff and Jean  Aiello if they are relevant 
to the person’s ability to perform the job. Not all 
education, training or experience is relevant to the 
ability to perform every job. However, on-the-job 
performance is always relevant to a person’s ability 
to perform in a similar or higher job.

Tr. a t 534. Thus in answering “yes” to Interrogatory 2, 
the jury  appears to have rejected the legitimate, 
nondiscriminatory reason advanced by the University. 
Under these circumstances, the erroneous instruction on 
inferential proof would normally require the g rant of a 
new trial.

VI.

Although Ms. Lewis’ attorney repeatedly objected to 
the judge’s instruction on causation, he did not request 
th a t the judge explain to the jury  the inferential method

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



51a

of proof m andated a t the third step of McDonnell 
Douglas. Instead, he focused on the instruction th a t race 
m ust be “th e” determ inative factor, rather than  “a ” 
significant factor. Tr. a t 456, 459, 460. Thus, in order to 
review the trial court’s explanation of inferential 
proof—an error independent of the one specifically 
identified by Ms. Lewis’ counsel—an appellate court 
m ust determ ine th a t the m istaken instructions 
constituted “plain error.” Sm ith u. Coy, 460 F.2d 1226, 
1227 (3d Cir.1972).

Our Court, like others, will not find plain error except 
when the m istake is so funda- [927] m ental and 
prejudicial th a t it results in a miscarriage of justice. Paluch 
v. Erie Lackawanna RR., 387 F.2d 996, 999-1000 (3d Cir. 
1968); Ratay v. Lincoln Nat. Life Insur. Co., 378 F.2d 209, 
212 (3d Cir. 1967). See 9 W right & Miller, Federal Practice 
and Procedure §2558 (1971). We have, however, been willing 
to review unobjected-to instructions, even in a civil case, 
if they preclude an accurate understanding of an entire 
element of a lawsuit. Choy v. Bouchelle, 436 F.2d 319, 
325 (3d Cir.1970) (plain error found because instructions 
failed to provide guidelines for applying law to facts); Ratay, 
supra, 378 F.2d a t 212 (plain error found because judge 
incorrectly instructed jury  on the burden of proving 
elements of fraud); Pritchard v. L iggett & Myers, 350 F.2d 
479, 484-86 (3d Cir. 1965) (plain error found because the 
judge gave incorrect instruction on assumption of risk). In 
the present case, the judge’s instructions negated the 
“ suspicion” th a t Justice Rehnquist referred to in Furnco 
and the “inference” th a t Justice Powell referred to in 
Burdine, thereby foreclosing the inferential path  to a 
dem onstration of but-for causation. Given th a t the whole

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



52a

purpose of McDonnell Douglas rests on the fundamental 
importance of inferential proof, and given th a t such 
proof was particularly critical to Ms. Lewis’ case, I am 
persuaded th a t this is one of those unusual situations 
calling for use of the plain error doctrine in a civil 
context. On this basis alone, I believe th a t the plaintiff 
should be granted a new trial.7

VII.

The trial court committed a third error th a t was 
properly objected to and th a t would independently 
require a new trial; the exclusion of evidence showing 
nepotism. Ms. Lewis sought to introduce evidence 
indicating th a t nepotism influenced the decision to 
promote Jean Aiello in her place. In particular, Ms. 
Lewis asked to introduce testim ony th a t Ms. Aiello was 
the niece of Mary Bonasso, operations manager of the 
bookstore and the second-highest ranking member of 
management. See Transcript of In-Chambers Conference 
(Dec. 13, 1982) a t 6. Additionally, Ms. Lewis sought to 
introduce testim ony th a t the two men who were 
immediately in charge of the promotion decision knew 
th a t their supervisor was Ms. Aiello’s aunt.8 Id. Ms. 
Lewis argued th a t this evidence would indicate th a t the
7 Although Ms. Lewis did not focus precisely on inferential proof at 
the third step of the McDonnell Douglas test, in her briefs she made 
clear her contention that the trial court had erroneously explained the 
evidentiary burden imposed on a plaintiff in a statutory employment 
discrimination case. Accordingly, 1 cannot agree with the majority’s 
suggestion that it is inappropriate to consider this issue on appeal. 
See Maj.Op. at 919-920 n. 10.
8 Ms. Lewis also intended to show that the University of Pittsburgh 
Staff Handbook prohibits nepotism.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



53a

decision was improperly motivated. Id. a t 6-7. Over 
objection, the judge denied the admission of the 
evidence, reasoning th a t the evidence would be 
“confusing, and I do not think it is relevant to why we 
are here.” Id. a t 8.

The evidence of nepotism was clearly relevant to the 
present case for two distinct reasons. First, under 
McDonnell Douglas the burden upon Lewis a t the third 
step was to show th a t the proffered legitimate, non- 
discriminatory reasons were not worthy of credence. If 
Lewis could establish th a t family relations were the 
controlling consideration in promotions a t the bookstore, 
the U niversity’s defense th a t the individual chosen for 
promotion was the m ost qualified would be undermined. 
Thus, evidence of nepotism would contribute to the 
inferential proof of discrimination a t the third step of the 
inquiry. Under Rule 401 of the Federal Rules of 
Evidence, such evidence was clearly admissible as having 
a “tendency to make the existence of any fact th a t is of 
consequence to the determination of the action more 
probable or less probable than it would be without the 
evidence.”

Second nepotism is by its nature a nonobjective 
consideration in hiring or promotional decisions th a t has 
the effect of locking in the racial and ethnic sta tu s quo. 
If a workforce is racially segregated and hiring [928] is 
based on kinship to the workforce in place, the pattern  of 
segregation will not be altered. Thus, in ascertaining 
whether purportedly legitimate reasons were the actual 
grounds for the employment decision, evidence th a t the 
decision-makers sought to advance “one of their own”

Appendix-Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



54a

bears im portant inferential weight. The evidence th a t 
Lewis is sought to introduce was therefore fully relevant 
to the ju ry ’s task  of determ ining under Fumco  and 
Burdine whether she was a victim of discrimination.

V III.

The incorrect formulation of the ultim ate burden of 
proof to be borne by the plaintiff, combined with 
presence of the plainly erroneous instructions on 
inferential proof under McDonnell Douglas and the 
exclusion of the nepotism evidence, requires th a t Ms. 
Lewis be given a new trial.

Beyond the immediate trial errors, however, this case 
points to the difficulty of protecting the sta tu to ry  rights 
of minorities and women not to be subjected to 
discrimination in the hiring procedures utilized in our 
society. Necessarily, choices m ust be made in allocating 
a limited number of jobs and promotions. Decision­
makers m ust assess abilities, ambitions, and a number of 
often indeterm inate and non-quantifiable factors. 
Because in our society employment decisions are 
generally private, the ability of the courts to review 
these m atters for evidence of discrimination is 
circumscribed. The time when applicants were turned 
down directly and openly on the basis of race, sex, 
national origin, and the like is fortunately drawing to a 
close. This does not mean, however, th a t there is no 
longer any discrimination or th a t the task  of the courts 
in this regard has been simplified. Today we m ust 
address the less easily recognizable form s of

Appendix-Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



55a

discrimination th a t may be present in closed-door 
decisions to employ or promote individuals. W ithout 
sufficient a tten tio n  to  the need to elim inate 
considerations of race from any role in the hiring process 
and without sensitivity to inferential proof of 
discrimination, we would in effect retard  the process of 
eradicating discriminatory practices and the advances 
th a t have been made in this area over the last several 
decades.

Because I do not believe th a t the m ajority opinion is 
sufficiently attuned to the difficulties of proof in this 
type of discrimination claim, and because of the errors 
committed a t trial, I m ust respectfully dissent.

Appendix—Opinion in the United States Court
of Appeals for the Third Circuit, Dated

December 30, 1983 (2-1 Decision).



56a

Order and Statement S u r  Petition for Rehearing in the 
United States Court of Appeals for the Third Circuit 
(Regarding Petition for Rehearing), Dated February 9, 
1984.

SUR PETITIO N  FOR REH EA RIN G

Before SEITZ, Chief Judge, ADAMS, GIBBONS, 
HUNTER, GARTH, HIGGINBOTHAM , SLOVITER 
and BECKER, Circuit Judges.

GARTH, Circuit Judge.

The petition for rehearing filed by Appellant Ida M ary 
Lewis in the above entitled case having been subm itted 
to the judges who participated in the decision of this 
court, and to all the other available circuit judges of the 
circuit in regular active service, and no judge who 
concurred in the decision having asked for rehearing, and 
a m ajority of the circuit judges of the circuit in regular 
active service not having voted for rehearing by the 
court in banc, the petition for rehearing is denied.

ADAMS, GIBBONS, HIGGINBOTHAM , SLOVITER 
and BECKER, Circuit Judges, would grant the petition 
for rehearing.

Statem ent Sur Petition for Rehearing

ADAMS, Circuit Judge.

Although I do not wish to comment further on the 
substantive issues in this case, I am constrained to note 
my uneasiness about a procedural dilemma illustrated by 
the rejection of Ida Mary Lewis’ petition for rehearing in 
banc. Under the Third Circuit’s longstanding practice, a 
judge who is disqualified in a particular case is in effect



57a
A ppendix—Order and Statem ent Sur Petition for

Rehearing in the United States Court o f Appeals for
the Third Circuit (Regarding Petition for Rehearing),
D ated February 9, 1984.

counted as a vote against rehearing.1 Con- [929] 
sequently, a panel decision supported by only a small 
minority of our Court may, because of recusals, be 
insulated from reconsideration in banc.

Today, as the foregoing order reveals, two of the ten 
active judges on our Court have recused themselves from 
voting on Ms. Lewis’ petition for rehearing. Thus her 
appeal may not be reheard unless six of the eight 
participating judges—th a t is, every judge not in the 
original panel m ajority—vote to reconsider her case. The 
vote is only 5-3 in favor of rehearing, and so the petition 
is denied. To Ms. Lewis, I fear, this result of our Court’s 
in banc voting rule m ust appear quite unfair.

The main reason for our procedure is th a t it insures 
th a t major developments in the law of the Circuit reflect 
the participation of all members of the Court. If, for 
example, five of the ten judges are disqualified from a 
p a rticu la r case, our ru le abso lu tely  p recludes 
reconsideration of the panel decision. Were the rule 
otherwise, we could g rant a petition for rehearing 
favored for example by a vote of 3-2. Then the “in banc 
panel would consist of only five judges and the settled 
law of our Circuit could be overturned by as few as three 
members of the Court. Such a result would be a t odds
1 The Third Circuit’s published rule requires that “rehearing in banc 
shall be ordered only upon the affirmative votes of a majority of the 
circuit judges of this court in regular active service.” Internal 
Operating Procedure 9B(4). By well-established custom, our Court has 
interpreted this rule to mean that participating as well as recused 
judges be counted in determining the number of judges constituting a 
majority. See Maris, Hearing and Rehearing Cases in Banc, 14 F.R.D. 
91, 95 (1953).



58a
A ppendix—Order and S tatem ent Sur Petition for 

Rehearing in the United States Court o f Appeals for 
the Third Circuit (Regarding Petition for Rehearing), 
Dated February 9, 1984.

with the goal of intracircuit uniformity underlying 
Congress’ decision to authorize in banc proceedings, see
H . R.Rep. No. 1246 (to accompany H.R. 3390), 77th 
Cong., 1st Sess. (1941); Hearings on S. 1053 Before a 
Subcommittee o f the Senate Judiciary Committee, 77th 
Cong., 1st Sess. 14-16 (1941),2 a goal clearly embodied 
throughout our Court’s Internal Operating Procedures 
(I.O.P.’s),3 and especially emphasized by the Third 
Circuit’s strict rule of stare decisis in I.O.P. 8C.4

2 Congress did not enact the in banc statute, 28 U.S.C. §46(e), until 
1948, seven years after the legislative materials cited in the text. But 
as the Supreme Court explained in Western Pac. R.R. Corp. v. W. 
Pac. R.R. Co., 345 U.S. 247, 251-57, 73 S.Ct. 656, 658-61, 97 L.Ed. 
986 (1953), the subsequent history of §46(c) reveals no change in the 
purpose of the in banc statute after its original introduction in 1941, 
and therefore it is appropriate to look to these older legislative 
materials.
3 The I.O.P. introductory explanation of policy makes clear that our 
Court’s procedures are designed:

1. To insure the opportunity for contributions by every 
active member of the court to every decision of precedential or 
institutional significance.

2. To insure decisional stability of the court by providing a 
means for the panel system to operate efficiently and at the 
same time provide that a published opinion of the court 
expressed by a panel may not be overruled without the approval 
of a majority of the full court.

I. O.P.’s at iii.
4 I.O.P. 8C provides:

It is the tradition of this court that reported panel opinions 
are binding on subsequent panels. Thus, no subsequent panel 
overrules a published opinion of a previous panel. Court in banc 
consideration is required to overrule a published opinion of this 
court.



A ppendix—Order and S ta tem ent Sur Petition for 
Rehearing in the United States Court o f Appeals for 
the Third Circuit (Regarding Petition for Rehearing), 
D ated February 9, 1984.

Our approach, however, is by no means required by the 
wording of the in banc statu te , 28 U.S.C. §46(c) (Supp. V 
1981), or by the Supreme Court’s interpretation of th a t 
statu te . Indeed, a straightforw ard parsing of §46(c) 
arguably suggests th a t disqualified judges should not be 
counted in determining what constitutes a m ajority vote 
for rehearing. The in banc sta tu te  provides in relevant
part:

Cases and controversies shall be heard and 
determined by a court or division of not more than 
three judges, unless a hearing or rehearing before 
the court in banc is ordered by a m ajority of the 
circuit judges of the circuit who are in regular active 
service. A court in banc shall consist of all circuit 
judges in regular active service.

28 U.S.C. §46(c) (Supp. V 1981) (emphasis added). 
Presumably, the drafters of §46(c) intended th a t “judges 
. . .  in regular active service” have the same meaning 
both times it is used. Since a court in banc cannot 
include recused judges, a consistent interpretation of the 
phrase “judges . . .  in [930] regular active service” would 
support our construing it to mean judges . . .  in regular 
active service [who are not disqualified in a particular 
case].”6 B ut despite the logical force of this construction, 
the Supreme Court has declined to endorse a particular

5 This construction is reinforced by the fact that §46(c), as originally 
drafted in 1941, distinguished between the two usages of “active 
judge”: “the majority of the circuit judges may provide for a court of 
all the active and available circuit judges of the circuit to sit m 
banc___” See H.R.Rep. No. 1246 (to accompany H.R. 3390), 77th
Cong., 1st Sess. (1941).

59a



60a

A ppendix—Order and Statem ent Sur Petition for 
Rehearing in the United States Court o f Appeals for 
the Third Circuit (Regarding Petition for Rehearing), 
Dated February 9, 1984.

view of §46(c), holding instead th a t each Court of 
Appeals “is left free to devise its own adm inistrative 
machinery to provide the means whereby a m ajority may 
order such a hearing.” Shenker v. Balt. & Ohio R.R. Co., 
374 U.S. 1, 5, 83 S.Ct. 1667, 1670, 10 L.Ed.2d 709 (1963) 
(quoting Western Pac. R.R. Corp., supra, note 2, 345 U.S. 
a t 250, 73 S.Ct. at 657).6

Until recently, most Courts of Appeals followed the 
same in banc vote-counting rule th a t our Court employs. 
Of late, however, a new trend has developed. As of now, 
four circuits—the Fourth,7 the Seventh,8 the E ighth,9 and

6 Because Shenker was decided some 11 years before Congress 
imposed a strict new rule of disqualification codified at 28 U.S.C. 
§§455(b)(4), (d)(4) (1976), it might be appropriate for the Supreme 
Court to re-evaluate Shenker's broad grant of discretion to interpret 
§46(c). That provision was enacted in an era when recusals were far 
less common, and when Congress probably could not have foreseen 
the effect of frequent recusals on the in banc voting procedure. So far, 
however, the Supreme Court has chosen not to re-examine §46(c)'s 
interpretation by the circuits. See In re American Broadcasting
Companies,--------U.S. ______, 104 S.Ct. 538, 78 L.Ed.2d 718 (1983)
(denying writ of mandamus to compel rehearing in banc after the 
Sixth Circuit refused a rehearing, despite a 5-4 vote by participating 
judges in favor of an in banc with one recusal).

7 Arnold v. Eastern Air Lines, 712 F.2d 899, 901-906 (4th Cir.1983).
8 Announcement of Amended Seventh Circuit Operating Procedures 
(April 18, 1983) (“A simple majority of the voting active judges is 
required to grant a rehearing”).

9 Eighth Circuit Local Rule 16(a) provides in relevant part:
A majority of the judges . . . who are not disqualified in the 
particular case or controversy may order a hearing or rehearing 
en banc.



61a
A ppend ix—Order and S ta tem ent Sur Petition for 

Rehearing in the United States Court o f Appeals for 
the Third Circuit (Regarding Petition for Rehearing), 
D ated February 9, 1984.

th e  N in th 10 11—have chosen to  g ra n t in banc
reconsideration whenever favored by a m ajority of the 
nonrecused judges.11

While I acknowledge th a t sound reasons have been 
advanced to  support th is new trend, I am not persuaded 
th a t it represents the ideal accommodation of the 
conflicting demands of fairness to  the individual litigant 
and stability in a circuit’s decisional law. W hatever may 
be the best solution, I believe th a t the current lack of 
uniform ity among the circuits on this im portant issue 
creates the appearance of rights determined by 
happenstance. Accordingly, though I do not advance 
th a t our Court use its  rule-making power to follow the 
new trend, I do record my concern with the intercircuit 
conflict over the  rules for g ran ting  in banc 
reconsideration and express the thought th a t Congress 
or the Supreme Court should provide definitive guidance 
a t  an early occasion.

10 Ford M otor Co. v. FTC, 673 F.2d 1008, 1012 n. 1 (9th Cir.1981) 
(Reinhardt, J., dissenting on other grounds). Significantly, under the 
Ninth Circuit’s “limited” en banc rule, only 11 of the 23 active 
members of that Court sit on an en banc panel. Therefore, unlike our 
Court where participation by all ten active judges is the norm, en 
banc decisions in the Ninth Circuit are necessarily the product of a 
minority of that Court’s members.

11 For a recent discussion of this trend, see Harper, The Breakdown in 
Federal Appeals, 70 A.B.A.J. 56 (Feb,1984).



62a

42 U.S.C. Section 1981:

All persons within the jurisdiction of the United 
States shall have the same righ t in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal 
benefit of all laws and proceedings for the security 
of persons and property as is enjoyed by white 
citizens, and shall be subject to like punishment, 
pains, penalties, taxes, licenses, and exactions of 
every kind, and to  no other.

42 U.S.C. Section 1983:

Every person who, under color of any statu te , 
ordinance, regulation, custom, or usage, of any State 
or Territory, subjects, or causes to be subjected, any 
citizen of the United States or other person within 
the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the 
Constitution and laws, shall be liable to  the party  
injured in an action a t law, suit in equity, or other 
proper proceeding for redress.

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

(a) Employers. I t  shall be unlawful employment 
practice for an employer—

(1) to fail or refuse to hire or to discharge any 
individual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s race, color, religion, sex, or 
national origin; or

S tatu tes, Federal Rule of Appellate Procedure,
and Internal Operating Procedures of the

Third Circuit Court of Appeals.



63a

(2) to limit, segregate, or classify his employees or 
applicants for employment in any way which would 
deprive or tend to deprive any individual of 
employment opportunities or otherwise adversely 
affect his s ta tu s  as an employee, because of such 
individual’s race, color, religion, sex, or national 
origin.

42 U.S.C. Section 2000e-5(f)(l):

(f) Civil action by Commission, A ttorney General, or 
person aggrieved.

(1) If within th irty  days after a charge is filed with 
the Commission or within th irty  days after 
expiration of any period of reference under 
subsection (c) or (d), the Commission has been unable 
to  secure from the respondent a conciliation agreement 
acceptable to the Commission, the Commission 
may bring civil action against any respondent 
not a government, governm ental agency, or political 
subdivision named in the charge. In  the case of a 
respondent which is a government, governmental 
agency, or political subdivision, if the Commission 
has been unable to  secure from the respondent a 
conciliation  ag reem en t accep tab le  to  th e  
Commission, the Commission shall take no further 
action and shall refer the case to the A ttorney 
General who m ay bring a civil action against such 
respondent in the appropriate United States d istrict 
court. The person or persons aggrieved shall have 
the right to intervene in a civil action brought by 
the Commission or the A ttorney General in a case 
involving a government, governmental agency, or

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Procedure, and Internal Operating Procedures

of the Third Circuit Court of Appeals.



64a

political subdivision. If a charge filed w ith the 
Commission pursuant to subsection (b) is dismissed 
by the Commission, or if within one hundred eighty 
days from the filing of such charge or the expiration 
of any period of reference under subsection (c) or (d), 
whichever is later, the Commission has not filed a 
civil action under this section or the A ttorney 
General has not filed a civil action in a case 
involving a government, governmental agency, or 
political subdivision, or the Commission has not 
entered into a conciliation agreement to  which the 
person aggrieved is a party , the Commission or the 
A ttorney General in a case involving a government, 
governmental agency, or political subdivision, shall 
so notify the person aggrieved and within ninety 
days after the giving of such notice a civil action 
may be brought against the respondent named in 
the charge (a) by the person claiming to  be 
aggrieved or (b) if such charge was filed by a 
member of the Commission, by any person whom 
the charge alleges was aggrieved by the alleged 
unlawful employment practice. Upon application by 
the complainant and in such circumstances as the 
court may deem ju st, the court may appoint an 
attorney for such complainant and may authorize 
the commencement of the action w ithout the 
paym ent of fees, costs, or security. Upon timely 
application, the court may, in its  discretion, perm it 
the Commission, or the A ttorney General in a case 
involving a government, governmental agency, or 
political subdivision, to intervene in such civil action 
upon certification th a t the case is of general public

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of the Third Circuit Court of Appeals.



65a

importance. Upon request, the court may, in its 
discretion, stay  further proceedings for not more 
than sixty days pending the term ination of S tate or 
local proceedings described in subsections (c) or (d) 
of this section or further efforts of the Commission 
to obtain voluntary compliance.

42 U.S.C. Section 2000e-5(f)(3):

(3) Each United S tates d istrict court and each 
United States court of a place subject to the. 
jurisdiction of the United States shall have 
jurisdiction of actions brought under this title. Such 
an action may be brought in any judicial d istrict in 
the State in which the unlawful employment practice 
is alleged to have been committed, in the judicial 
d istrict in which the employment records relevant to 
such practice are maintained and administered, or in 
the judicial district in which the aggrieved person 
would have worked bu t for the alleged unlawful 
employment practice, bu t if the respondent is not 
found within any such district, such an action may 
be brought within the judicial district in which the 
respondent has his principal office. For purposes of 
sections 1404 and 1406 of title  28 of the United 
S tates Code, the judicial district in which the 
respondent has his principal office shall in all cases 
be considered a district in which the action m ight 
have been brought.

42 U.S.C. Section 2000e-5(g):

(g) Injunctions; affirmative action; equitable relief.

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of the Third Circuit Court of Appeals.



66a

If the court finds th a t the respondent has 
intentionally engaged in or is intentionally engaging 
in an unlawful employment practice charged in the 
complaint, the court may enjoin the respondent from 
engaging in such unlawful employment practice, and 
order such affirmative action as may be appropriate, 
which may include, bu t is not limited to, 
reinstatem ent or hiring of employees, with or 
without back pay (payable by the employer, 
employment agency, or labor organization, as the 
case may be, responsible for the unlawful 
employment practice), or any other equitable relief 
as the court deems appropriate. Back pay liability 
shall not accrue from a date more than  two years 
prior to the filing of a charge with the Commission. 
Interim  earnings or am ounts earnable with 
reasonable diligence by the person or persons 
discriminated against shall operate to reduce the 
back pay otherwise allowable. No order of the court 
shall require the admission or reinstatem ent of an 
individual as a member of a union, or the hiring, 
reinstatem ent, or promotion of an individual as an 
employee, or the paym ent to him of any back pay, if 
such individual was refused admission, suspended, 
or expelled, or was refused employment or 
advancement or was suspended or discharged for 
any reason other than  discrimination on account of 
race, color, religion, sex, or national origin or in 
violation of section 704(a) [42 U.S.C. Sec. 2000e-3(a)].

Appendix—Statutes, Federal Rule of Appellate
Procedure, and Internal Operating Procedures

of the Third Circuit Court of Appeals.



67a

Federal Rule of Appellate Procedure 35(a):

(a) When Hearing or Rehearing in Banc Will be 
Ordered.

A m ajority of the circuit judges who are in regular 
active service may order th a t an appeal or other 
proceeding be heard or reheard by the court of 
appeals in banc. Such a hearing or rehearing is not 
favored and ordinarily will not be ordered except (1) 
when consideration by the full court is necessary to 
secure or m aintain uniformity of its decisions, or (2) 
when the proceeding involves a question of 
exceptional importance.

Internal Operating Procedure 8B of the United States 
Court of Appeals for the Third Circuit:

B. Rehearing in Banc.

Rehearing in banc is not favored and ordinarily will 
not be ordered except

(1) where consideration by the full court is necessary 
to secure or m aintain uniformity of its decisions, or

(2) where the proceeding involves a question of 
exceptional importance.

This Court does not ordinarily grant rehearing in 
banc where the panel’s statem ent of the law is 
correct and the controverted issue is solely the 
application of the law to the circumstances of the 
case.

Internal Operating Procedure 9B-1 through 9B-4 of the 
United S tates Court of Appeals for the Third Circuit:

B. Petition by Party.

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Procedure, and Internal Operating Procedures

of the Third Circuit Court of Appeals.



68a

1. Petition for Rehearing.

Where a petition for rehearing before the panel or in 
banc has been filed by a party  as provided by 
F.R.A.P. 35(b) or 40(a), unless the petition for panel 
rehearing under 40(a) states explicitly it does not 
request in banc rehearing under 25(b), it is presumed 
th a t such petition requests both panel rehearing and 
rehearing in banc.

2. D istribution of petition.

“A petition for rehearing may be filed within 14 
days after entry of judgm ent unless the time is 
shortened or enlarged by order.” F.R.A.P. 40(a). 
When a petition for rehearing is filed, a copy of the 
petition is transm itted  by the Clerk to each member 
of the panel which heard and decided the case and to 
each of the other active judges of the court with a 
request th a t they respond and address responses to 
the opinion-writing judge.

3. Panel rehearing: g rant or deny.

Each member of the panel constituting the m ajority 
upon receipt of a petition for panel rehearing, has 
the right to require rehearing before the panel. Thus, 
a senior judge of this court or a justice or a visiting 
circuit or district judge sitting  by designation who 
was a concurring member of the panel has the right 
to require rehearing before the panel.

a. Answer

Upon the circulation of a petition for rehearing each 
member of the panel which originally heard and 
decided the case may inform the judge who filed the

Appendix—Statutes, Federal Rule of Appellate
Procedure, and Internal Operating Procedures

of the Third Circuit Court of Appeals.



69a

original opinion in writing, within 10 days after the 
Clerk’s letter forwarding the petition for rehearing, 
whether he votes to grant or deny the petition or 
whether he desires th a t an answer be filed before so 
voting. If a panel member does not so notify the 
opinion-writing judge within 10 days from the date 
of the Clerk’s letter forwarding the petition, his 
inaction will be taken as an indication th a t he does 
not desire panel rehearing or the filing of an answer. 
Any member of the panel may vote for the filing of 
an answer to assist him in determining whether 
there should be rehearing before the panel. If a 
single judge of the panel who concurred in the 
decision desires the filing of an answer, an answer 
will be requested.

b. Order.

The panel or any one of its concurring judges may 
require a rehearing before the panel, otherwise 
rehearing before the panel shall be denied. The 
opinion-writing judge or the judge first in 
precedence enters the order granting panel 
rehearing. Should the request for rehearing be 
explicitly limited to panel hearing and such 
rehearing is not requested by a concurring member 
of the panel, the opinion-writing judge or the judge 
next in precedence enters the order of denial.

4. Rehearing in banc: grant or deny.

28 U.S.C. Sec. 46(c) provides th a t only active judges 
of this court may vote on questions of rehearing in 
banc. Therefore, rehearing in banc shall be ordered 
only upon the affirmative votes of a m ajority of the 
circuit judges of this court in regular active service.

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Procedure, and Internal Operating Procedures

of the Third Circuit Court of Appeals.



70a

a. Time schedule.

Each of the active judges who does not sit in the 
original panel may notify the judge who filed the 
opinion or judgm ent order of his desire as to 
rehearing in banc. Such notification is to be received 
within eight days after the date of the Clerk’s letter 
forwarding the petition  for rehearing. The 
notification should state: (a) th a t he does not vote 
for rehearing in banc; (b) th a t he requests the filing 
of an answer; or (c) th a t he votes for rehearing in 
banc. A circuit judge voting for rehearing in banc 
thereby indicates th a t he does not desire the filing 
of an answer.

b. Effect of non-response.

If an active judge does not notify the opinion­
writing judge by letter, received within 8 days after 
the date of the Clerk’s letter, tha t he votes for 
rehearing in banc or for the filing of an answer; such 
inaction will be taken as indication th a t he does not 
desire rehearing in banc and th a t he does not desire 
the filing of an answer.

c. Extension of time.

If, after a judge has voted for rehearing, another 
judge desires more time to consider or reconsider 
the petition for rehearing in banc, he shall timely 
circulate a letter asking th a t the time for voting be 
extended for a period not to exceed five working 
days beyond the time period set forth in a. This 
request resu lts  in an autom atic extension. 
Irrespective of the number of such requests, the

Appendix—Statutes, Federal Rule of Appellate
Procedure, and Internal Operating Procedures

of the Third Circuit Court of Appeals.



71a

voting time automatically will be extended this one 
period only. Further extensions of time may be 
granted only by the Chief Judge upon application.

d. Order.

If a m ajority of the active judges of the Court 
inform the opinion-writing judge th a t they vote for 
rehearing in banc, he will request the ranking active 
judge of the m ajority to enter an order which grants 
rehearing, vacates the panel’s opinion and the 
judgm ent entered thereon and assigns the case to 
the calendar for rehearing in banc.

Internal Operating Procedure 9B-6 of the United States 
Court of Appeals for the Third Circuit:

6. Order denying rehearing.

a. If a m ajority of the active judges of this court 
do not inform the opinion-writing judge th a t they 
vote for rehearing in banc, th a t judge, a t the 
expiration of the appropriate time period, enters an 
order denying rehearing before the panel and 
denying rehearing in banc.

b. The following language shall be the tex t of the 
printed standard form of order ordinarily used in 
denying petitions for rehearing:

The petition for rehearing filed by (appellant or 
appellee) in the above entitled case having been 
subm itted to the judges who participated in the 
decision of this court and to all the other available 
circuit judges of the circuit in regular active service, 
and no judge who concurred in the decision having

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Procedure, and Internal Operating Procedures

of the Third Circuit Court of Appeals.



72a

asked for rehearing and a m ajority of the circuit 
judges of the circuit in regular active service not 
having voted for rehearing by the court in banc, the 
petition for rehearing is denied.

By the Court:

c. Where the court so desires, a per curiam or 
signed opinion sta ting  reasons for denying 
rehearing, may accompany the order.

d. If there is a dissent from the denial of rehearing 
and no dissenting opinion is filed, a notation will be 
added to the standard dispositive order, a t the 
affirmative request of the dissenting judge, th a t 
“Judge—would grant rehearing by the court in 
banc.” Any active judge may file an opinion sur 
denial of the petition and direct its publication.

Appendix—Statutes, Federal Rule of Appellate
Procedure, and Internal Operating Procedures

of the Third Circuit Court of Appeals.





P. 2 1st 

p.24 7th

PARTIAL ERRATA SHEEP 

pgh, 1. 1: "of the United" 

1. fr. bottom: "eight"