Stevenson v. International Paper Company Brief for Plaintiffs-Appellants

    No. 87-1352

In The
Supreme Court of the United States

October Term, 1987

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BOARD OF TRUSTEES OF THE UNIVERSITY OF 
ARKANSAS, AND THE CHANCELLOR OF THE 
UNIVERSITY OF ARKANSAS AT PINE BLUFF,

vs.
Petitioners,

SYLVESTER LEGRAND and HENRY RAYFUS,
Respondents.

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On Petition For Writ Of Certiorari To The 
United States Court Of Appeals For The Eighth Circuit

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BRIEF IN OPPOSITION

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M arion  H u m p h r e y  
1523 Broadway 
Little Rock, Arkansas 72202 
(501) 372-2300
Attorney for Respondents

COCKLE LAW BRIEF PRINTING CO.. (800) 225-6964 
o r call collect (402) 342-2831



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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ...................................  ii
STATEMENT OF THE CASE...................................  1
SUMMARY OF ARGUMENT ...................................  5
ARGUMENT: REASONS FOR DENYING THE 

WRIT .........................................................................  6
I. THE EIGHTH CIRCUIT PROPERLY AP­

PLIED THIS COURT’S DECISION IN AN­
DERSON V. CITY OF BESSEM ER ................ 6

II. THE EIGHTH CIRCUIT CORRECTLY HELD 
THAT RESPONDENTS ESTABLISHED A 
PRIMA FACIE CASE AND THAT RULING 
IS CONSISTENT WITH THE DECISIONS 
OF THIS COURT AND OTHER CIRCUITS ... 7

CONCLUSION ..............................................................  9



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TABLE OF AUTHORITIES
Page

Ca s e s :

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir.
1973) ...........................................................................  3

Anderson v. City of Bessemer, 470 U.S. 564 (1985) ...5, 6, 7
Davis v. Califano, 613 F.2d 957 (D.C. Cir. 1979)..........  9
Lynn v. Regents of University of California, 656 

F.2d 1337 (9th Cir. 1981), cert, denied, 459 U.S.
823 (1982) ..........................   9

Magnum Import Co. v. Coty, 262 U.S. 159 (1923)........  7
McDonald v. Santa Fe Trail Transportation Co.,

427 U.S. 273 (1976) .................................................... 8
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ....................................................................2, 5, 7, 9
Pollard v. Rea Magnet Wire Company, Inc., 824 

F.2d 557 (7th Cir. 1987) ........................................... 9
Pullman-Standard v. Swint, 456 U.S. 273 (1982) ....... 6
United States v. Johnston, 268 U.S. 220 (1925) ........  7
U.S. Postal Service Board of Governors v. Aikens,

460 U.S. 711 (1983) ...................................................  9



No. 87-1352

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In The
Supreme Court of the United States

October Term, 1987

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BOARD OF TRUSTEES OF THE UNIVERSITY OF 
ARKANSAS, AND THE CHANCELLOR OF THE 
UNIVERSITY OF ARKANSAS AT PINE BLUFF,

vs.
Petitioners,

SYLVESTER LEGRAND and HENRY RAYFUS,
Respondents.

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On Petition For Writ Of Certiorari To The 
United States Court Of Appeals For The Eighth Circuit

o-

BRIEF IN OPPOSITION

o

STATEMENT OF THE CASE

This case presents two questions already decided by 
this Court: (a) whether a court of appeals has properly

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exercised its powers when reviewing a district court’s de­
cision based on incorrect legal principles and clearly er­
roneous findings of fact and (b) whether the court of 
appeals correctly held that plaintiffs had established a 
prima facie case under McDonnell Douglas Corp. v. Green, 
411 TJ.S. 792 (1973).

Legrand and Rayfus, respondents herein, are black, 
certified journeyman electricians who were employed on 
a contractual basis in the electrical department of the 
Physical Plant at the University of Arkansas at Pine 
Bluff (“ UAPB” ). Legrand had worked with UAPB 
since 1975 and Rayfus since 1974. Both testified at trial 
that they knew their contracts were subject to renewal 
every year. The only other employee in the electrical de­
partment was their supervisor, Willie Pree, who is also 
black. As their immediate supervisor, Pree had prepared 
evaluations of the two for several years.

UAPB’s Vice Chancellor Benson Otovo testified that 
in 1983 the school instituted budget cutbacks. As a result, 
UAPB slated nineteen positions in the Physical Plant, in­
cluding one of the two journeyman electrician positions, 
for elimination. On July 1, 1983,1 twenty-seven employees 
who worked in the Physical Plant, including Legrand and 
Rayfus, learned that their contracts were not being re­
newed for the fiscal year of 1983-84.

UAPB has asserted various reasons for the nonre­
newal of respondents’ contracts and their refusal to con-

1The Director of the Physical Plant at this time was Burton 
Henderson, a white male, who had held that position since 
March 1, 1983.



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sider the respondents for the remaining journeyman elec­
trician position or any other position at the school.2 Origi­
nally, UAPB cited budget cuts as the reason for both 
nonrenewal and their refusal to rehire. Appendix (App.) 
at 12, n.6. Only after respondents brought this action did 
UAPB inform Legrand and Rayfus that “ poor perform­
ance brought about the discharge as well as the refusal to 
reemploy them.” App. at 11. On appeal to the Eighth 
Circuit, UAPB raised a third explanation—the risk of 
noncompliance with the desegregation directives of Adams 
v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973). The rec­
ord, however, belies UAPB’s assertion that neither re­
spondents were qualified for “ the duties of the single 
journeyman electrician after the cut-back.” Pet. Br. at 10.

Despite UAPB’s assertion that respondents were un­
qualified, the record shows that they were veteran, certi­
fied electricians. Job evaluations indicate that both Le­
grand and Rayfus were given scores ranging from average 
to superior in dependability, responsibility, initiative and 
work capacity. App. at 10-11. Pree and James Bank­
ston, the Director of the Physical Plant prior to the cut­
backs,- testified that either respondent was qualified to 
fill the remaining electrician opening. Pree also testified 
that he knew of nothing in either respondents’ employ­
ment files to cause him not to recommend them. Id. at 13. 
Further, the record contains “ minimal evidence” of dis­
ciplinary actions against respondents for their allegedly 
unauthorized absences. Id. at 13.

2lt is unclear why the trial court solicited evidence of a 
"legitimate nondiscriminatory reason for discharging plaintiffs" 
from UAPB if, as the trial court held, respondents had failed to 
establish a prima facie case. App. at 27.



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On July 5, 1983, only four days after respondents were 
laid off, Michael Cummings, a white male, applied for the 
open journeyman electrician position, and he was hired 
on a temporary, part-time basis on July 15. At the time, 
Cummings was a student of James Bankston who recom­
mended Cummings to Pree. On August 25, 1983, Burton 
Henderson recommended that Cummings be hired per­
manently. Cummings eventually became supervisor of the 
electrical department when Pree retired. Neither respon­
dent was informed of, nor considered for, the opening filled 
by Cummings.3

In 1984, the General Assembly of the State of Arkan­
sas appropriated more funds to UAPB. The nineteen 
positions cut in 1983, including the journeyman electrician 
job, in the Physical Plant were eventually restaffed. 
Neither Legrand nor Rayfus was interviewed for these 
openings.

Legrand and Rayfus brought suit against TJAPB in 
the Eastern District of Arkansas alleging racially dis­
parate treatment in the nonrenewal of their contracts and 
in the failure to consider them for subsequent openings for 
which they applied and were qualified.

In its Findings of Fact and Conclusions of Law (App. 
at 18-27), the District Court dismissed respondents’ com­
plaint. The trial court found as fact that “ [t]he evidence 
and testimony presented leads the Court to conclude that 
race played no role in the decision to terminate the plain-

3UAPB officials testified that the selection of Cummings 
"was made outside any objective recruiting or hiring proced­
ures." App. at 13.



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tiffs’ contracts or the decision not to rehire the plaintiffs.” 
App. at 24. The trial court held that respondents had 
failed to establish a prima facie disparate treatment case 
because (a) black is the “ dominant race” at UAPB and 
(b) neither respondent was qualified for the remaining 
electrician job. App. 26-27. Respondents appealed and 
the Eighth Circuit, applying the decisions of this Court, 
reversed.

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SUMMARY OF ARGUMENT

The questions presented challenge the Eighth Cir­
cuit’s reversal of the trial court’s flawed legal conclusions 
and clearly erroneous findings of fact. The petition should 
be denied because it presents no conflict of decisions 
among the circuits and presents no conflict with the de­
cisions of this Court. Petitioner concedes that the Eighth 
Circuit’s opinion raises no important or new issues of law 
and instead requests that review be granted so this Court 
can “once again clarify” the allocations of proof in a Title 
VII disparate treatment case and to correct errors by the 
court of appeals. There is no need for such clarification 
and the Eighth Circuit correctly applied well-established 
principles from this Court’s decisions in McDonnell Doug­
las, and Anderson v. City of Bessemer, 470 U.S. 564 (1985), 
to the trial court’s mistaken legal analysis and clearly 
erroneous fact finding.

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ARGUMENT

REASONS FOR DENYING THE WRIT
I. THE EIGHTH CIRCUIT PROPERLY AP­

PLIED THIS COURT’S DECISION IN AN- 
DERSON V. CITY OF BESSEMER,

Petitioner asks this Court to review whether or not 
the Eighth Circuit paid “ lip service” only to the clearly 
erroneous rule. Petitioner does not claim that the court 
of appeals was unaware of Anderson and Pullman-Stan­
dard v. Swint. App. at 10. The court of appeals acted 
well within its sphere and refrained from substituting its 
judgment as to disputed facts. Rather, petitioner’s argu­
ment rests upon speculation concerning the possibility that 
the rule might have been avoided or erroneously applied. 
Neither assertion is supported by the record.

Petitioner concedes that the trial court erred in fail­
ing to find that respondents established a prima facie case. 
Petitioner’s attempt to minimize the impact of such legal 
error on the trial court’s fact finding is futile. As the 
Eighth Circuit stated:

When a district court erroneously fails to recognize a 
prima facie case under Title VII, a reviewing court 
cannot be certain whether this legal error colored the 
factual findings favoring the defendant. . . .  In this 
case, the trial court’s failure to recognize the plain­
tiffs’ prima facie case left the court to consider only 
the defendant’s evidence of what it claimed were the 
nondiscriminatory reasons for discharging the plain­
tiffs.

App. at 9 (cite omitted).

Petitioner makes much of the trial court’s finding 
that respondents’ testimony lacked credibility. Pet. Br.



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at 22. A factual finding based on demeanor is not im­
mune from appellate review. Anderson, 470 U.S. at 575 
(“ the trial judge may [not] insulate his findings from 
review by denominating them credibility determinations” ). 
Where, as here, a court of appeals has documentary evi­
dence, other testimony and finds inconsistencies in defen­
dant’s story, it “ may well find clear error even in a find­
ing purportedly based on a credibility determination.” Id. 
at 575.

In light of these considerations, Anderson was prop­
erly applied. Petitioner’s disagreement with the Eighth 
Circuit’s finding in favor of respondents does not warrant 
review by this Court, United States v. Johnston, 268 U.S. 
220, 227 (1925) “ We do not grant a certiorari to review 
evidence and discuss specific facts.” ); Magnum Import 
Co. v. Coty, 262 U.S. 159, 163 (1923) (“ The jurisdiction 
[of certiorari] was not conferred upon this Court merely 
to give the defeated party in the Circuit Court of Appeals 
another hearing.” )

II. THE EIGHTH CIRCUIT CORRECTLY HELD 
THAT RESPONDENTS ESTABLISHED A 
PRIMA FACIE CASE AND THAT RULING 
IS CONSISTENT WITH THE DECISIONS OF 
THIS COURT AND OTHER CIRCUITS

Holding that respondents established a prima facie 
disparate treatment case, the Eighth Circuit correctly ap­
plied McDonnell Douglas to the facts in this case. The



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trial court’s failure to find a prima facie case because re­
spondents were unqualified4 was reversible error.

The record simply does not support the trial court’s 
finding that “ neither of the plaintiffs was qualified for 
the remaining journeyman electrician position.” App. at 
26. Respondents were certified electricians and possessed 
years of experience. Further, respondents’ direct super­
visors, Pree and Bankston, testified that they were quali­
fied for the remaining electrician position. Pree, who reg­
ularly evaluated respondents, also testified that nothing 
in the work records would have caused him to not recom­
mend respondents for the position given to Cummings. 
Records indicate that both respondents received satisfac­
tory evaluations.

The trial court ignored this substantial body of objec­
tive evidence that respondents were qualified in favor of 
“ subjective evidence” that led the court to conclude that 
respondents were undependable. The court of appeals 
was correct in rejecting this evidence at the prima facie 
stage:

For the purposes of establishing a prima facie case, 
the plaintiffs need only show their objective qualifi­
cations for the job. . . . Here, the plaintiffs proved by 
a preponderance of the evidence that they were ex­
perienced, journeyman electricians, and TTAPB does 
not dispute this. . . . This is all that is required at the 
prima facie stage.

4The trial court's legal conclusion that respondents failed 
to establish a prima facie disparate treatment case because they 
were not "minorities" at UAPB was also erroneous (App. at 
26) and correctly reversed by the court of appeals. McDonald 
v. Santa Fe Trail Transportation Co., 427 U.S. 273, 278-79 (1976).



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App. at 8 (citing Lynn v. Regents of University of Cali­
fornia, 656 F.2d 1337, 1344-45 (9th. Cir. 1981), cert, denied, 
459 U.S. 823 (1982) and Davis v. Califano, 613 F.2d 957, 
964 (D.C. Cir, 1979)).

In light of this evidence, the trial court erred when it 
failed to find that respondents had met their initial bur­
den under McDonnell Douglas. The court of appeals’ de­
cision to reverse on this ground was correct and is con­
sistent with the decisions of this Court and the decisions 
of the circuits. United States Postal Service Board of 
Governors v. Aikens, 460 U.S. 711, 719 (1983) (“ we can­
not be certain that its findings of fact in favor of the Postal 
Service were not influenced by its mistaken view of the 
law.” ); Pollard v. Rea Magnet Wire Company, Inc., 824 
F.2d 557, 560 (7th Cir. 1987) (prima facie case found, but 
court of appeals reverses trial court’s finding in favor of 
plaintiff as clearly erroneous).

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CONCLUSION
For the foregoing reasons, the writ should be denied.

Respectfully submitted,

M arion  H u m p h r e y  
1523 Broadway 
Little Rock, Arkansas 72202 
(501) 372-2300
Attorney for Respondents

April, 1988.