Simmons v Brown Reply Brief for Plaintiffs Appellants

    UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

No. 78-1709

JAMES E . SIMMONS, et al. ,
Plaintiffs-Appellants,

v.
HAROLD R. BROWN, et al.,

Defendants-Appellees.

IN THE

On Appeal From The United States District Court 
For The Eastern District of Virginia 

Norfolk Division

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE 
GAIL J. WRIGHT 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

HENRY L. MARSH, III 
STEPHANIE J. VALENTINE 
RANDALL G. JOHNSON 
HILL, TUCKER & MARSH

509 North Third Street 
Post Office Box 27363 
Richmond, Virginia 23261

Attorneys for Plaintiffs-Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 
No. 78-1709

JAMES E. SIMMONS, et al.,
Plaintiffs-Appellants, 

v.
HAROLD R. BROWN, et al.,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Eastern District of Virginia 

. Norfolk Division

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS 
PRELIMINARY STATEMENT

In their brief, the defendants-appellees urge two 
points: first, that the district court properly dismissed
the class action on the ground the named plaintiffs were not 
proper class representatives; and second, that the district 
court in fact made a full Rule 23 determination in reaching 
its finding that the requirements for class certification had 
not been met. Both of these assertions are patently incorrect.

ARGUMENTS
1. Plaintiffs in their motion for summary reversal 

and in their main brief present an exhaustive discussion which



TABLE OF CONTENTS

preliminary Statement...............................  1
Argument.............................................  1
Conclusion...........................................  12

Table of Authorities
Cases:
Allen v. Likins, 517 F.2d 532 (8th Cir.1975)...... 10
Arkansas Educ. Assn. v. Bd. of Educ. of Portland

446, F . 2d 763, 767 (8th Cir. 1971)................ 9
Barnett v. W.T. Grant Co., 518 F.2d 543 (4th

Cir. 1975).................................................... 10
Barrett v. united States Civil Service Comm.,

14 FEP Cases 1007 (D.D.C. 1977)................. 10
Basil v. Knebel, 551 F.2d 395, 397 (D.C. Cir. 1977) 7
Baxter v. Savannah Sugar Refining Corp., 495 F.2d

437, 442 (5th Cir. 1974).......................  12
Berman v. Narragansett Racing Assn., 414 F.2d 311,

317 (1st Cir. 1969).............................. 9
Brown v. Gaston Dyeing Machine Co., 457 F.2d 1377

(4th Cir. 1972)cert, denied, 409 U.S. 982 (1972) 11
Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th

Cir. 1973)........................................ 4
Chrapliwy v. uniroyal, Inc., ____  F.Supp.____ , 7

FEP Cases 343, 345 (N.D. ind. 1974).............  12
Donaldson v. pillsbury, 554 F.2d 825, 832-834

(8th Cir. 1977) (plaintiffs' Brief 12-13).......  4,8

Page

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East Texas Motor Freight v. Rodriguez, 431 U.S. 395
(1977)............................................  3,6

Ellis v. Naval Air Newark Facility, 404 F.Supp.
391 (N.D. Ca., 1975).............................. 10

Franks v. Bowman Transp. Co., 423 U.S. 814 (1976). 5,6'
Geraghty v. united States parole Commission, 579

F.2d 238, 245-254 (3rd Cir. 1978)................ 7
Goodman v. Schlesinger, 584 F.2d 1325 (4th Cir.

1978)..................   2
Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973) 4
international Brotherhood of Teamsters v. united

States, 431 U.S. 324............................. 5,6
Johnson v. Georgia Highway Express, 417 F.2d 1122

(5th Cir. 1969)................   11
Lamphere v. Brown university, 553 F.2d 714, 719

(1st Cir. 1977)......    5
Lasky v. Quinlan, 558 F.2d 113, 1136-37 (2nd Cir.

1977).....      7
Leisner v. N.Y. Telephone Co., 358 F. Supp. 359

(S.D.N.Y. 1973)...............    9
Long v. Sapp, 502 F.2d 34 (5th Cir. 1974)......... 11
McDonnell Douglas Corp. v. Green, 411 U.S. 792,

805 (1973)........................................ 5
Pettway v. American Cast iron pipe Co., 494 F.2d

211, 257-258 (5th Cir. 1974).................... 4
Phillips v. Klassen, 520 F.2d 362, 366 (D.D.C. Cir.

1974).............................................  8
price v. Lucky Stores, Inc., 501 F.2d 1177, 1179

(9th Cir. 1974)..................................  3
Rowe v. General Motors Corp., 457 F.2d 348 (5th

Cir. 1972)....   12

Page

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Page

Satterwhite v. City of Greenville, 578 F.2d 987
(5th Cir. 1978)................................ . 5,6

Senter v. General Motors Corp., 532 F.2d 511 (6th
Cir. 1976)........................................ 12

Sperry Rand Corp. v. Larson, 554 F.2d 868 (8th Cir.
1977)...............    9

United States Transportation union, Local 574 v.
Norfolk & Western Ry„, 532 F.2d 336 (4th Cir. 1975) 4

V.Jo Rockier & Co., v. Graphic Enterprises, Inc.,
52 F.R.D. 335 (D. Minn. 1971)...................  8

Walker v. World Tile Group, 563 F.2d 918, 921
(8th Cir. 1977).... .............................  7,8

Wells v. Ramsey Scarlett and Company, Inc., 506 F.2d
436 (5th Cir. 1975)..............................  9

Wetzel v. Liberty Mutual ins. Co., 508 F.2d 239
(3rd Cir. 1975)..................................  8

White v. Nassau County Police Dept., 15 FEP Cases
266 (S.D.N.Y. 1977)..............................  10

Williams v. City of New Orleans, ____  F.Supp.____
18 FEP 347 (E.D0 La. January 14, 1978)......... 10

Winokur v. Bell Federal Sav. & Loan Ass'n., 560
F. 2d 271, 274 (7th Cir. 1977)................... 10

Zurak v. Regan, 550 F.2d 113, 1136-37 (2nd Cir. 1977) 7
Secondary Authorities
Manual for Complex Litigation, part I §1.40........  4

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demonstrates that the lower court failed to comply with this 
Court's mandate. Plaintiffs rely on this Court's recent decision 
in Goodman v. Schlesinger, 584 F.2d 1325 (4th Cir. 1978), and 
submit that at least this case should be remanded to the district 
court so that the other class members will have the opportunity 
to come forward. The defendants make a futile attempt to dis­
tinguish Goodman on grounds which do not withstand analysis.
In Goodman, the district court decided the question of class 
action certification prior to class discovery being conducted. 
Accordingly, the Court of Appeals found that there was not enough 
evidence in the record to make a proper determination. In the 
instant case the facts which lead to a Goodman ruling are even 
more compelling. Here, there was no Rule 23 determination at 
all! Class certification was denied on the grounds that the named 
plaintiffs were not proper representatives because of the deter­
mination on the merits of their individual claims that they had 
not been discriminated against. Assuming, arguendo, that the 
Court below was correct in not reconsidering the individual 
claims, the posture of the present case now is even less favor­
able to the government than in Goodman, since there the Court had 
decided the Rule 23 issues, albeit prematurely. Both Goodman 
and the instant case involve the same essential elements:
(1) a failure to properly decide class certifications; and
(2) a decision on the merits of the individual claims. In both 
cases, a remand is required.

2



2. Defendants contend that the district court's
cryptic statement, in its order denying reconsideration of 
its denial of a class action, that "the pleadings and facts 
presented fail to establish any basis for certifying a class 
action," was a decision on the merits of the Rule 23 issues. 
We submit that if such was the lower court's intention, then 
it failed to comply with the requirements of Rule 23, viz., 
that it make specific findings and explain in what way the 
requirements of Rule 23 were not met. With all due respect 
to the Court below, it appears to us that the one sentence 
pronouncement is no more than an afterthought. The basis for 
both the original order denying a class action and the order 
denying reconsideration was clearly the Court's reading of 
East Texas Motor Freight v, Rodriguez, 431 U.S. 395 (1977).

The Court's determination which fails to describe 
the material facts or disclose the reasons on which the 
decision is based is insufficient. Price v. Lucky Stores, 
Inc,, 501 F .2d 1177, 1179 (9th Cir. 1974). Although defend­
ants contend that "the lower court considered and weighed 
the pleadings and facts," it is clear that they have no basis 
for supposing that such was the case, and in fact even if it 
were the court certainly did not consider all of the class­
wide evidence which plaintiffs had not discovered nor pre­
sented. (Defendants'Brief, p. 11).

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3. The defendants in their argument attempt to 
camouflage the fact that plaintiffs were not provided an 
opportunity to conduct or present classwide discovery by 
stating that the "doors to the Civilian Personnel Office 
were opened ..." (Defendants' Brief, p. 5). This discovery' 
which defendants describe as being extensive and inclusive 
of various personnel papers, was conducted for class certifi­
cation purposes, and is not to be confused with the broad 
scope of discovery which would be needed to prove the merits 
of classwide discrimination. See, e.g., Burns v. Thiokol 
Chemical Corp., 483 F.2d 300 (5th Cir. 1973). See also, Huff 
v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973). The courts 
have held that although limited discovery could be conducted 
for pre-certification purposes, broader discovery should be 
subsequently conducted pertaining to the merits of the allega­
tions of classwide discrimination. See, e.g., United States 
Transportation Union, Local 574 v. Norfolk & Western Ry., 532 
F.2d 336 (4th Cir. 1975); Pettway v. American Cast Iron Pipe 
Co. , 494 F.2d 211, 257-258 (5th Cir. 1974). This practice is 
not only sanctioned by the courts, but the Manual for Complex 
Litigation recommends that discovery be conducted in "sequential 
waves"; the first wave limited to the class question followed 
by discovery on the merits. See Manual for Complex Litigation, 
Part I § 1.40. Had this process been followed, the individual 
named plaintiffs could have presented their claims in light of 
the classwide evidence. See, e.g., Donaldson v. Pillsburv, 554 
F.2d 825, 832-834 (8th Cir. 1977) (Plaintiffs' Brief 12-13).

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The Supreme Court has recognized that an individual
claim of discrimination cannot be decided without first de­
ciding whether there is a classwide pattern or practice of 
discrimination. See, e.g., International Brotherhood of Teamsters 
v. United States, 431 U.S. 324; Franks v. Bowman Transp. Co.,
423 U.S. 814 (1976); McDonnell Douglas Corp v. Green, 411 U.S. 
792, 805 (1973). The circuit courts in following this prin­
ciple have expressly required that the plaintiff be permitted 
to establish the classwide issue prior to a determination of 
the individual claim. See, e.g., Lamphere v. Brown University, 
553 F.2d 714, 719 (1st Cir. 1977); Burns v. Thiokol, supra at 
306; Donaldson v. Pillsbury, supra at 832-33.

4. Defendants in their brief cite Satterwhite v.
City of Greenville, 578 F.2d 987 (5th Cir. 1978) for the pro­
position that the individual named plaintiffs had no continuing 
interest in the litigation and did not have the necessary nexus 
to the proposed class because their claims were adjudged merit­
less. (Defendants Brief, p. 9). The facts which led to the 
court's denial of class certification in Satterwhite are dis­
tinguishable from this case. In Satterwhite the named plain­
tiff had never been an employee although she complained of 
specific employee oriented discriminatory employment practices 
affecting numerous classes of employees, nor had she suffered 
from the defendant employers' acts; and therefore did not re­
tain a personal stake in the outcome of the litigation. Plain­
tiffs here, are and were employees with a vested interest in 
the outcome of the lawsuit; they will continue to be affected 
by defendants' employment policies and procedures. Defendants' 
simplistic conclusion that they had "no nexus" because their

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claimshad been negatively determined totally ignores that 
portion of Satterwhite which states that Long v. Sapp is still 
good law:

"The lack of merit of representative's 
claim is not determinative in and of itself 
of the adequacy of his representation for 
Rule 23 purposes. ... a plaintiff without a 
viable claim may in appropriate circumstances, 
act as a class representative, provided he or 
she is a member of the class and maintains a 
sufficient homogenity of interests ...." at 993.

As previously stressed, plaintiffs were denied a review of the 
classwide evidence which would demonstrate that their claims 
were homogenous with those of the class.

5. Defendants reliance on East Texas Motor Freight 
Systems, Inc, v. Rodriquez, 97 S.Ct. 1891, 1986 (1977) is fac­
tually misplaced. In that case the Supreme found that the 
individual claims lacked merit and that the plaintiffs had 
failed to appropriately request a certification hearing and 
that the plaintiffs failed to present class issues.

In this action the Court considered the individual 
claims only and did not consider evidence of classwide pattern 
and practice discrimination, which plaintiffs here, contrary 
to those in Rodriguez, definitively desired to have considered. 
In addition, unlike plaintiffs in Rodriquez plaintiffs requested 
a class certification hearing during which they would have pre­
sented evidence of classwide discrimination which had affected 
the individual named plaintiffs. See, e.g.. International 
Brotherhood of Teamsters v. United States, supra; Franks v. 
Bowman Transp. Co., supra; McDonnell Douglas Corp. v. Green.

supra.

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6. As these factors point out and as plaintiffs 
have discussed in their main brief and need not discuss to 
the point of being redundant, whether or not a motion for 
reconsideration had been filed was irrelevant to the outcome 
of the determination due to the fact that it was the prac­
tical unavailability of classwide evidence of discrimination 
that precluded a complete finding on the individual claims 
and not a premature technical pleading.

7. Defendants purport that Walker v. World Tile 
Group, 563 F.2d 918, 921 (8th Cir. 1977) is comparable to 
the instant lawsuit. First, it should be noted that other 
circuits have taken a position contrary to Walker and held 
that an erroneous failure to certify can be reviewed and 
corrected by an appellate court; and that such review 
"relates back" to the date on which the lower court failed 
to certify the class. See, e.g., Lasky v. Quinlan, 558 F.2d 
113, 1136-37 (2nd Cir. 1977); Zurak v. Regan, 550 F.2d 86,
91-92 (2nd Cir. 1977); Geraghty v. United States Parole 
Commission, 579 F.2d 238, 245-254 (3rd Cir. 1978); Basil
v. Knebel, 551 F.2d 395, 397 (D.C. Cir. 1977).

It is our position that a careful reading of Walker, 
where the appellate court in fact stated that it did not approve 
of the lower court's convoluted certification procedure, reveals

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that that case is inapplicable here. In Walker the plaintiff
was given an opportunity to present pattern and practice evi­
dence but then did not prove that he was adversely affected by 
the alleged discriminatory practices. The court specifically 
determined that the case therefore was not controlled by 
Donaldson v. Pillsbury, supra. As plaintiffs have previously 
set forth, the remand order of the court of appeals required 
the development of classwide discovery which had not been con­
ducted or considered, and ordered that the named individuals
claims were to be determined in light of such evidence. The 
distinction between the two cases is obvious.

We do however, rely on defendants reference to 
Walker for another proposition which they omitted from their 
discussion, which is that:

The District Court must have before it 
"sufficient material ... to determine the 
nature of the allegation and rule in com­
pliance with the Rule's requirement. Blackie 
v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975) 
cert, denied. 429 U.S. 816 (1976)," at 921.
8. Finally, defendants cite Phillips v. Klassen,

520 F .2d 362, 366 (D.D.C. Cir. 1974) in a futile attempt to 
show that the named plaintiffs' claims are significantly 
antagonistic to those of the class they represent. Rule 23(a)(4), 
Federal Rules of Civil Procedure, is uniformly interpreted as re­
quiring a lack of antagonism between the representative and the 
class, Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3rd Cir. 
1975), and freedom of conflict between the named plaintiffs' 
interests and those of the class, V.J. Rockier & Co. v. Graphic 
Enterprises, Inc., 52 F.R.D. 335 (D. Minn. 1971). The courts

-8-



have firmly held that antagonism between the plaintiffs 1 
interests and those of the class which would defeat claims 
of adequacy must go to the heart of the subject matter of the 
discrimination. See Sperry Rand Corp. v. Larson, 554 F.2d 
868 (8th Cir. 1977); Berman v. Narragansett Racing Assn.,
414 F.2d 311, 317 (1st Cir. 1969); and Arkansas Educ. Assn, 
v. Bd. of Educ. of Portland, 446 F.2d 763, 767 (8th Cir.
1971. Defendants' assertions fail to meet this test.

Plaintiffs' interests in eliminating historic racially 
discriminatory practices can in no way conflict with the in­
terests of other, similarly-situated black persons. This is 
not a case where there are unionized and non-unionized employees 
which commonly involve conflicts of interest due to collective 
bargaining agreements and must include the union as an addi­
tional defendant. See, e.g., Wells v. Ramsey Scarlett and 
Company, Inc., 506 F.2d 436 (5th Cir. 1975). The former status 
of plaintiffs as past wage grade system employees and their 
current status as general schedule employees does not indicate 
any actualized antagonism between their interest and those of 
other class members. See Leisner v. N.Y. Telephone Co., 358 
F. Supp. 359 (S.D.N.Y. 1973).

Defendants suggest that the named individuals whom 
they finally decided to promote subsequent to the institution 
of the lawsuit cannot now adequately represent the class. To 
accept their "timely decision" to promote the named individuals 
as an action which removed the named plaintiffs from the class 
would be inequitable and unjust. Such a procedure would permit 
the defendant to deliberately preclude a class certification and

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which would result in a denial of certification in the vast 
majority of cases. See, e.g., Allen v. Likins, 517 F.2d 532 
(8th Cir. 1975); Winokur v. Bell Federal Sav. & Loan Ass'n.,
560 F.2d 271, 274 (7th Cir. 1977). A recent court ruling 
on the very issue presented here held that named plaintiffs 
who were promoted to the positions they requested were still 
adequate representatives. Williams v. City of New Orleans,
____ F. Supp. ____  18 FEP 347 (E.D. La. January 14, 1978).
Furthermore, in actions challenging federal government agencies 
which involve various job classifications, categories, posi­
tions, and wage systems, the courts have not found the interests 
of the groups to be antagonistic. Ellis v. Naval Air Newark 
Facility, 404 F. Supp. 391 (N.D. Ca., 1975); Barrett v. United 
States Civil Service Commission, 14 FEP Cases 1007 (D.D.C. 1977); 
see also, White v. Nassau County Police Dept., 15 FEP Cases 266 
(S.D.N.Y. 1977).

The requirement of adequacy of representation has also 
been frequently treated as an adjunct of the requirement of 
typicality. Rule 23(a)(2) and (3) require respectively that 
there exist common question of fact or law and that the named 
plaintiffs' claims be typical of those of class members. Most 
employment discrimination decisions have viewed the two re­
quirements as closely related, illegal discrimination being 
both the common thread and the typical claim. The governing 
law in this circuit was declared in the Fourth Circuit's decision 
in Barnett v. W.T. Grant Co., 518 F.2d 543 (4th Cir. 1975).
There the Court of Appeals disapproved an unduly narrow class
certification limited to class claims factually similar to 
those of the individual plaintiffs. It declared the approach

-10-



taken by the Fifth Circuit in Johnson v. Georgia Highway Express,
417 F.2d 1122 (5th Cir. 1969).

"more consonant with the broad remedial 
purposes of Title VIT"

and held
"that the district court's less chari­
table view, under which Barnett could 
as a class representative challenge 
only those specific actions taken by 
the defendants toward him, would under­
cut those purposes." Barnett, supra 
518 F.2d at 548. (Emphasis in text).

The Fourth Circuit proceeded to declare itself in agreement with 
the Fifth Circuit's more recent decision in Long v. Sapp, 502 
F.2d 34 (5th Cir. 1974) where that court reversed the refusal of 
a district court to allow a plaintiff whose individual claim 
involved discriminatory discharge to represent a class includ­
ing rejected applicants.

Like the plaintiff in Long, Barnett 
directed his attack at discriminatory 
policies of defendants manifested in 
in various actions, and as one who has 
allegedly been aggrieved by some of 
those actions he has demonstrated a 
sufficient nexus to enable him to 
represent others who have suffered 
from different actions motivated by 
the same policies." Barnett, supra 
518 F .2d at 548.

In this case plaintiffs make an across the board attack 
alleging that employment decisions at all steps of the employment 
process have been left to the uncontrolled discretion of white 
personnel. Historically such pervasive practices have been uni­
formly held illegal by the Fourth Circuit as well as other Courts 
of Appeals where they have an adverse impact on black employees.

Brown v. Gaston Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972),

-11-



cert, denied, 409 U.S. 982 (1972); Rove v. General Motors 
Corp.. 457 F.2d 348 (5th Cir. 1972); Senter v. General Motors 
Corp., 532 F.2d 511 (6th Cir. 1976); Baxter v. Savannah Sugar 
Refining Corp., 495 F.2d 437, 442 (5th Cir. 1974). The basing 
of employment decisions at all stages of employment on the un­
fettered discretion of predominately white officials and 
intermediate and higher supervisory personnel provides a nexus 
which amply satisfies the commonality and typicality require­
ments .

Plaintiffs reasoned opinion as based on the case 
law is that the individual named plaintiffs are appropriate 
class representatives. However, should there be any questions, 
the courts have held that such doubts concerning the potential 
conflicts should be resolved in favor of upholding the class.
See Chrapliwy v. Uniroval, Inc., ____ F. Supp. ___ , 7 FEP
Cases 343, 345 (N.D. Ind. 1974); and Sperry Rand Corp. v. 
Larson, supra.

CONCLUSION
For the reasons presented in their Brief, Motion 

for Summary Reversal and as set forth herein, plaintiffs 
respectfully urge this Court to reverse the lower courts 
order, and remand the case and in accordance with the original

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remand order which required that a decision be made as to 
whether a Rule 23 class action is maintainable; and for 
reconsideration of the named plaintiff's individual claims 
in light of classwide evidence.

Respectfully submitted,

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE 
GAIL J. WRIGHT 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

HENRY L. MARSH, III 
STEPHANIE J. VALENTINE 
RANDALL G. JOHNSON 
HILL, TUCKER & MARSH 

509 North Third Street 
Post Office Box 27363 
Richmond, Virginia 23261

Attorneys for Plaintiffs-Appellants

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CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of January, 

1979, copies of the preceding Reply Brief for Plaintiffs- 

Appellants were served on counsel for defendants-appellees 

by depositing same in the United States mail, first class 

postage prepaid, addressed as follows: Peter B. Lowenberg,

Esq., Department of the Navy, 1735 North Lynn Street, 

Rosslyn, Virginia 22209.

-  /
/  '

Attorney for Plaintiffs-Appellants



CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the attached
Memorandum Amicus Curiae on the parties by depositing the same in 
the United States mail, first class postage prepaid, addressed 
as follows:

John H. Harwood, II 
1666 K Street, N.W.
Washington, D.C. 20006

Attorney for Plaintiffs-Appellees
John A. Terry 
William D. Pease 
Neil I. Levy
Assistant United States Attorneys 
Room 3830
United States Courthouse 
Washington, D.C. 20001

Attorneys for Defendant-Appellant

Dated: December , 1978.
Attorney for Amicus Curiae

11



70
CONCLUSION

In 1972 Congress was dissatisfied with the uncertain
and ineffective enforcement of guarantees against employment dis­
crimination in federal departments and agencies.. Morton v.
Mancari, 417 U.S. 535, 546-47 (1974); Roger v. Ball, supra, at 
704-06. As a result, Congress enacted 42 U.S.C. §2000e-16 "to 
make the courts the final tribunal for the resolution of contro­
versies over charges of discrimination." Roger v. Ball, supra, 497 
F. 2d at 70 6;. see also Alexander v . Gardner-Denver Co. , supra, at 
60 n. 21. Proper resolution of the fundamental questions in this 
appeal - the availability of class actions, access to discovery 
of systemic discrimination, and the application of Title VII 
law to federal agencies - will in large measure decide if 
Title VII's broad pronouncement of rights is to become a 
reality for federal employees.

For the foregoing reasons, the decision of the court 
below on the questions presented should be reversed.

Respectfully submitted

h e ;
RANDALL G. JOHNSON 
STEPHANIE J. VALENTINE 
HILL, TUCRER & MARSH

214 East Clay Street 
P. 0. Box 27363 
Richmond, VA 23261

JACR GREENBERG 
CHARLES STEPHEN RALSTON 
MELVIN R. LEVENTHAL 
BARRY L. GOLDSTEIN 
BILL LANN LEE

Suite 2030
10 Columbus Circle
New York, New York 10019

Counsel for Appellants



C^c
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