Caffey v. West Brief for Appellant

    ORAL ARGUMENT SCHEDULED FOR JANUARY 26.1998

IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Case No. 97-5092

Sherryl S. Caffey,

Appellant,

v.

Togo D. West, Jr.,
Secretary of the Army,

Appellee.

Appeal from the United States District Court 
for the District of Columbia

BRIEF FOR APPELLANT

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman Chachkin 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013

Janell M. Byrd 
NAACP Legal Defense & 

Educational Fund, Inc.
1275 K Street, N.W., Suite 300 
Washington, DC 20005 
(202) 682-1300

Daniel G. Jarcho 
Kurt J. Hamrock 
McKenna & Cuneo, L.L.P.
1900 K Street, N.W.
Washington, DC 20006 
(202) 496-7500

James E. Coleman, Jr.
Duke University School of Law 
Towerview Road & Science Drive 
Durham, NC 27707 
(919)613-7057

Counsel for Appellant 
Sherryl S. Caffey



I

CERTIFICATE AS TO PARTIES. RULINGS. AND RELATED CASES 

Pursuant to D.C. Circuit Rule 28(a)(1), counsel for appellant Sherryl S. Caffey certify as 

follows:

A. PARTIES AND AMICI

The following parties appeared below: Sherryl S. Caffey-h and the Secretary of the

Army. The same parties are before this Court. No intervenors or amici appeared below or have 

appeared before this Court.

B. RULINGS UNDER REVIEW

At issue in this Court is the district court's Judgment of February 28, 1997 (App. 96), 

entered in accordance with the district court's Memorandum and Order of February 23, 1993 

(App. 93), which incorporates by reference the district court's Order of November 20, 1985 

(App. 17). These decisions do not appear as published opinions. The Honorable Thomas 

Penfield Jackson, United States District Judge for the District of Columbia, issued each of the 

decisions.

C. RELATED CASES

This case was previously before this Court as Goffer v. West, No. 95-5259. The 

U.S. Supreme Court vacated that decision on January 6, 1997, in Goffer v. West, Supreme Court 

Docket No. 96-461. This case also was before this Court as Goffer v. Marsh, No. 85-6193, and 

on a petition for mandamus, In re Goffer. No. 93-5025. Counsel for Ms. Caffey are not aware of 

any other related cases currently pending before this Court or in any other court.

\ l  Ms. Caffey's name at the time she filed the complaint was Sherryl Goffer. Many of the 
documents in the record refer to her by that name.

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Page

STATEMENT OF THE CASE...................................................................................................2

A. Introduction......................................................................................................2

B. Nature Of The Case And Course Of Proceedings Below.................................3

C. Statement Of Facts............................................................................................ 5

1. Reorganization Of The EEO Office...................................................... 5

2. Adverse Actions Following Ms. Caffey's Challenge To
The Reorganization..............................................................................7

3. Ms. Caffey's EEO Complaint.............................................................. 8

SUMMARY OF ARGUMENT................................................................................................ 10

ARGUMENT............................................................................................................................13

I THE COURT SHOULD REVERSE THE DECISION OF THE MERIT
SYSTEMS PROTECTION BOARD........................................................................ 13

A. The Army Failed As A Matter Of Law To Meet Its Burden Of 
Proving The Validity Of The Performance Standard Under Which
Ms. Caffey Was Terminated.......................................................................... 14

1. The Army Did Not Introduce Any Evidence That The
Standard Was Reasonable.................................................................. 14

2. The MSPB Improperly Shifted The Burden Of Proof....................... 15

3. The Army Failed To Refute Evidence That The Standard
Was Unreasonable............................................................................. 16

B. The Army Did Not Meet Its Burden Of Proving That The
Performance Standard Gave Adequate Notice Of Necessary 
Performance Factors...................................................................................... 19

C. The Decision To Terminate Ms. Caffey Was Not Supported By
Substantial Evidence..................................................................................... 21

1. The Army Improperly Denied Ms. Caffey Credit For 
Several Of The Drafts She Submitted For Review During
The Performance Improvement Period..............................................21

2. The Army Did Not Give Ms. Caffey A Reasonable
Opportunity To Improve Her Performance........................................24

TABLE OF CONTENTS

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II. THE COURT SHOULD REVERSE THE DISTRICT COURT'S
JUDGMENT WITH RESPECT TO MS. CAFFEY'S TITLE VII CLAIM.............26

A. The District Court's Findings Are Clearly Erroneous................................... 26

1. Ms. Caffey Established A Prima Facie Case That Her
Termination Was An Act Of Retaliation..........................................27

2. The Performance Issues Raised By The Army As 
Justification For Its Treatment Of Ms. Caffey Were
Pretextual...........................................................................................29

a) Ms. Caffey Was Treated Differently Than Other
Employees Who Were Having Similar Difficulties 
Meeting The Performance Standards.....................................29

b) The Army Took Ms. Caffey To Task For Practices 
That Were Tolerated Or Accepted In Other
Employees..............................................................................30

c) Continued Disparate Treatment Ultimately Led to
Ms. Caffey's Termination......................................................31

3. The Surrounding Circumstances Establish Pretext........................... 32

B. The District Court Misapplied The Elements Of A Title VII
Retaliation Claim...........................................................................................33

C. The District Court Failed To Make Findings Of Fact And 
Conclusions Of Law Sufficient To Satisfy The Requirements Of
Rule 52(a)......................................................................................................35

CONCLUSION........................................................................................................................ 36

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TABLE OF AUTHORITIES

Cases

Adorador v. Department of Air Force, 38 M.S.P.R. 461 (1988) ................................................. 24

Anderson v. Bessemer Citv. 470 U.S. 564 (1985)....................................................................... 26

Rames v. Small. 840 F.2d 972 (D.C. Cir. 1988).......................................................................... 13

Bennun v. Rutgers State Univ.. 941 F.2d 154 (3d Cir. 1991).......................................................33

Betters v. Federal Emergency Management Agency. 57 M.S.P.R. 405 (1993) .......................... 24

Bishopp v. District of Columbia. 788 F.2d 781 (D.C. Cir. 1986) ................................................26

Blain v. Veterans Admin.. 36 M.S.P.R. 322 (1988) .....................................................................17

Blumenson v. Department of Health and Humans Services. 27 M.S.P.R. 259 (1985).................22

Borrell v. United States Int'l Comm. Agency. 682 F.2d 981 (D.C. Cir. 1982)............................35

Brown v. Veteran's Admin.. 44 M.S.P.R. 635 (1990) .............................................................19,22

Burrus v. United Tel. Co. of Kansas. Inc.. 683 F.2d 339 (10th Cir. 1982)...................................28

Eibel v. Department of N aw . 857 F.2d 1439 (Fed. Cir. 1988) ....................................................20

F.telson v. PPM. 684 F.2d 918 (D.C. Cir. 1982) ..........................................................................13

Giersvold v. Department of Treasury. 68 M.S.P.R. 331 (1995) ...................................................25

Grubka v. Department of Treasury. 858 F.2d 1570 (Fed. Cir. 1988) ...........................................26

Flarrison v. Nashville. 80 F.3d 1107 (6th Cir. 1996) .............................................................. 28,31

Ffunt-Gollidav v. Metropolitan Water Reclamation Dist.. 104 F.3d 1004 (7th Cir. 1997).......... 32

Johnson v. Department of Army, 44 M.S.P.R. 464 (1990)...........................................................14

Kimm v. Department of Treasury. 61 F.3d 888 (Fed. Cir. 1995) .................................................21

Lyles v. United States, 759 F.2d 941 (D.C. Cir. 1985).................................................................35

Mattes v. Department of Army. 24 M.S.P.R. 477 (1984).............................................................16

*/ Authorities upon which Appellant chiefly rely are marked with asterisks.



*McKenna v. Weinberger. 729 F.2d 783 (D.C. Cir. 1984) ................................................26.27,28

* O'Neal v. Department of the Army, 47 M.S.P.R. 433 (1991)............................................... 19.21

* Parker v. Baltimore & Ohio R.R.. 652 F.2d 1012 (D.C. Cir. 1981) ...........................................33

Polcover v. Secretary of Treasury. 477 F.2d 1223 (D.C. Cir. 1973) ............................................13

*Rocheleau v. SEC. 29 M.S.P.R. 193 (1985)...............................................................................17

Rogers v. Department of Defense Dependents Sch.. 814 F.2d 1549 (Fed. Cir. 1987) ...........14.20

*Sandland v. General Serv. Admin.. 23 M.S.P.R. 583 (1984) .................................................... 24

Schuck v. Frank. 27 F.3d 194 (6th Cir. 1994) ..............................................................................13

Spurlock v. Department of Justice. 894 F.2d 1328 (Fed. Cir. 1990) ...........................................25

I Inited States v. Abdul-Saboor. 85 F.3d 664 (D.C. Cir. 1996)....................................................33

United States v. Singer Mfg. Co.. 374 U.S. 174(1963) ..........................................................34,35

Walker v. Department of Treasury, 28 M.S.P.R. 227 (1985) .......................................................18

Williams v. Department of Treasury. 35 M.S.P.R. 432 (1987) ................................................... 16

* Wilson v. Department of Health and Human Services. 770 F.2d 1048 (Fed. Cir. 1985) .....19,20

7.ang v. Defense Investigative Serv,, 26 M.S.P.R. 155 (1985) .................................................... 25

Federal Statutes and Rules

5 U.S.C. § 1101 (1994)...........................................................................................................passim

5 U.S.C. § 4302(b)(1) ..............................................................................................................18’ 20

5 U.S.C. § 7703 ..............................................................................................................................14

5 U.S.C. § 7703(c) .........................................................................................................................13

5 U.S.C. § 7703(c)(2).....................................................................................................................14

5 U.S.C. § 7703(c)(3).................................................................................................................... 21

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4. Did the district court err by holding that the government's adverse personnel 

actions against, and ultimate termination of, Ms. Caffey did not violate Title VII?

STATEMENT OF THE CASE

A. Introduction

In this appeal, appellant Sherryl S. Caffey seeks final resolution of a twelve-year odyssey 

to redress her unlawful termination from her position as an analyst in the Equal Employment 

Opportunity ("EEO") Office of the Department of the Army ("the Army"). At the time of her 

termination, the Army had promoted her to the GM-15 level, following a distinguished fifteen- 

year career during which her supervisors had rated her performance as "exceptional." Her 

fortunes changed after she challenged a reorganization of the EEO Office as discriminatory, and 

her supervisors promptly took retaliatory actions against her that ultimately led to her termination 

from federal service.

When Ms. Caffey filed this action under the Civil Service Reform Act ("CSRA") and 

Title VII to challenge her termination, her unfair treatment in the federal system had only just 

begun. During a bench trial on the Title VII claims, the district court expressed the erroneous 

view that Title VII did not protect Ms. Caffey from retaliation for her challenge to the 

reorganization, unless she also could prove that the reorganization itself was unlawful. After the 

trial ended, the district court took almost five years to consider the case before it ruled against 

Ms. Caffey, prompting one media observer to characterize the case as "a classic example of what 

can go wrong when a judge fails to perform his duty within a reasonable period of time." Justice 

Really Delayed, The Washington Post, Jan. 14, 1997, at A16.

Although the district court had more than ample time to craft a careful decision, it instead 

issued a three-page memorandum opinion rife with conclusory language. And the district court 

caused substantial additional delay by failing to enter judgment in a separate document as 

required by Fed. R. Civ. P. 58. Ms. Caffey appealed this violation of Rule 58 to this Court and 

then to the U.S. Supreme Court, which granted Ms. Caffey's petition for certiorari and remanded

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the case for proper entry of judgment. When the district court finally entered judgment, four 

years had passed since the time of the memorandum opinion and order, and nine years had 

passed since the conclusion of the trial. Ms. Caffey now seeks a prompt final resolution on the 

merits of her case in this Court.

B. Nature Of The Case And Course Of Proceedings Below

On March 6, 1984, Ms. Caffey filed a complaint with the Merit Systems Protection Board 

("MSPB") challenging the reorganization of the Army EEO Office as retaliatory and 

discriminatory. App. 1194. The MSPB held a hearing on May 7, 1984, denied her request for 

relief on June 8, 1984, and denied her petition for review on November 15, 1984. The Equal 

Employment Opportunity Commission ("EEOC") issued a "no cause" determination on 

October 23, 1985. App. 13.

On September 4, 1985, less than two years after the reorganization, the Army proposed to 

terminate Ms. Caffey from federal service. Ms. Caffey filed the complaint in this action on 

September 5, 1985, alleging unlawful discrimination and retaliation in violation of Title VII and 

the CSRA. In an October 15, 1985, order, the district court denied Ms. Caffey's request for a 

temporary restraining order barring the termination, and the Army promptly terminated her. 

Subsequently, after hearing two days of evidence, the district court denied Ms. Caffey's request 

for a preliminary injunction requiring the Army to reinstate her to her position during the 

pendency of this litigation. See App. 17.

On October 18, 1985, Ms. Caffey appealed her termination to the MSPB under the 

CSRA. App. 2329. Following a February 6, 1986 hearing, the MSPB denied the appeal, and the 

MSPB denied Ms. Caffey's subsequent petition for review on August 13, 1986. An appeal to the 

district court from the MSPB decision then was incorporated into the present case.

In August 1987, the parties filed dispositive cross-motions in the district court with 

respect to Ms. Caffey's CSRA claims on review from the MSPB. The district court then held a 

bench trial over five days in September and December 1987 on the merits of Ms. Caffey's Title

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VII claims. On March 29, 1988, both parties submitted proposed findings of fact and 

conclusions of law on the Title VII claims.

Almost five years passed without a decision by the district court, despite the repeated 

efforts of Ms. Caffey's counsel to obtain an earlier ruling. Finally, on February 8. 1993, 

Ms. Caffey filed a petition for a writ of mandamus in this Court seeking an order directing the 

district court to rule within 30 days. In an order dated April 8, 1993, this Court denied the 

mandamus petition but encouraged the district court to "attend to the resolution of this case as 

promptly as feasible." In re Goffer. No. 93-5025.

Unbeknownst to counsel for Ms. Caffey and, it appears, this Court, the district court had 

in fact issued a decision dated February 23, 1993 — approximately two weeks after the filing of 

the mandamus petition. Just over two pages in length, the decision found for the Army on both 

the Title VII and CSRA claims. The district court disposed of the CSRA claims in a single 

sentence. Its analysis of the Title VII claims did not specifically address any of the instances of 

retaliatory conduct raised by Ms. Caffey, and the district court credited in full the testimony of 

two government witnesses in finding that "no employment decision by any of her superiors was 

ever taken during her term of service on the basis of her race or sex, or in retaliation for any EEO 

activity she had undertaken, either on her own behalf or generally in the course of her duties." 

App. 94.

The district court never served counsel for Ms. Caffey with a copy of this decision,^ and 

the district court did not set forth the judgment on a separate document as required by 

Fed. R. Civ. P. 58.

Counsel for Ms. Caffey learned of the district court's decision some two years later during 

the preparation of yet another mandamus petition, and they requested that the district court enter

2/ The docket entry for the decision, unlike the entries for every other written order, omits 
the notation ("n") that would have indicated that it was mailed to counsel. See App. at 10.

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judgment in accordance with Fed. R. Civ. P. 58. The district court denied that request in an order 

dated July 21, 1995. Ms. Caffey appealed to this Court, which summarily affirmed on June 24, 

1996. Ms. Caffey then filed a petition for a writ of certiorari in the U.S. Supreme Court, which 

the Solicitor General's Office agreed should be granted to correct the violation of Rule 58. The 

Supreme Court granted the petition, vacated the judgment of this Court, and remanded for further 

proceedings. The case was then remanded to the district court, which entered a final judgment 

for the Secretary on February 28, 1997. App. 96. Ms. Caffey filed a timely notice of appeal on 

April 2, 1997. App. 12.

C. Statement Of Facts

Ms. Caffey began working for the United States Army in 1970 in the field of personnel 

management. See App. 1461. For the first fifteen years of her Army career, Ms. Caffey received 

excellent performance evaluations. See, e.g., App. 1463-1502; 171-73 (indicating exceptional 

performance ratings for the years 1980 through 1984). She steadily assumed positions of 

growing responsibility and eventually became Assistant Deputy for Civilian Personnel Policy 

and Equal Opportunity in the Army's EEO Office in 1982. See App. 161, 164. The EEO Office 

was charged with formulation of Army EEO policy and impartial adjudication of discrimination 

complaints against the Army. App. 162-68. The following year, Ms. Caffey assumed the 

additional responsibilities of the Director of the Civilian Personnel Policy and Equal Opportunity 

Review and Evaluation Agency. App. 165-66; 2226. At the time, she served as the deputy to 

Marion Bowden, who as Deputy for Civilian Personnel Policy and Equal Opportunity was the 

top EEO official at the Army. App. 161-63.

1. Reorganization Of The EEO Office

During the early 1980s, Delbert Spurlock served as General Counsel for the Army. 

Conflicts developed between his office and the EEO Office over the handling of EEO 

complaints. Ms. Dolores Symons, who served in the EEO Office, testified that disagreements

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between the Office of General Counsel and the EEO Office regarding the outcome of particular 

cases "created a certain amount of bad feeling between the two offices." App. 406.

In one instance, Mr. Spurlock attempted to issue a decision under his own signature 

reversing the EEO Office's final finding of reprisal. The EEOC reversed Mr. Spurlock's 

decision, because it conflicted with the Army's own regulations. App. 2184. 2201-02. In a 

subsequent case, the two offices clashed over the question whether to hold a hearing in Korea 

(where the alleged discrimination occurred and where the complainant's witnesses and the 

alleged discriminating officials were located) or in Washington, D.C. App. 3619. Mr. Bowden 

determined that the hearing would be held in Korea, contrary to Mr. Spurlock's suggestion. 

App. 1134. When he learned of Mr. Bowden's decision, Mr. Spurlock replied: "MB — You are 

silly and myopic and your program suffers from the same — The matter had been greased!" Id.

In July 1983, Mr. Spurlock became the Assistant Secretary of the Army for Manpower 

and Reserve Affairs. Mr. Spurlock used his new position to direct a reorganization of the EEO 

Office. Before he even had assumed the position formally, Mr. Spurlock decided to eliminate 

Mr. Bowden's position and told Mr. Bowden to look for another job. App. 801. The elimination 

of Mr. Bowden's position necessarily required the elimination of Ms. Caffey's position, because 

she was his deputy. App. 714.

Mr. Spurlock's decision to eliminate the positions of the Army's two top EEO officials 

was not based on any formal study of the way the EEO Office operated. App. 800. 

Mr. Spurlock asked Clinton Fields, his special assistant, to develop plans for the proposed 

reorganization. App. 706. Col. Fields developed six different proposals that all presumed that 

the positions for both Mr. Bowden and Ms. Caffey would be eliminated. App. 712-13; 2235- 

2277. Mr. Spurlock took the unfinished proposals and developed his own final plan over the 

course of a single weekend. App. 718; 3746. The final plan included the elimination of 

Ms. Caffey's existing position and her demotion to a GS-13 position. App. 174-78.

Mr. Bowden, Ms. Caffey, and Ms. Symons all opposed the reorganization, arguing, inter 

alia, that it was a reprisal for prior conflicts between the EEO Office and the Army General

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Counsel's Office during Mr. Spurlock's tenure as General Counsel. App. 655, 657; 840-43; 

1141. The Director of Equal Opportunity Programs for the Department of Defense also opposed 

the reorganization and recommended its cancellation. App. 1146. The reorganization ultimately 

was implemented, and Ms. Caffey was demoted two grade levels to a GS-13 Equal Employment 

Specialist complaints analyst working for her former subordinates, Ms. Symons and 

Ms. Stowbridge. App. 2279, 2286. As an EEO analyst, Ms. Caffey was responsible for 

reviewing EEO complaints made by Army personnel, together with the accompanying 

investigation files, and drafting proposed final agency decisions and accompanying analyses. 

Ms. Caffey accepted the new position on February 16, 1984. App. 188. Ms. Caffey was the only 

employee placed at a lower grade, rank, or pay because of the 1983 reorganization.

2. Adverse Actions Following Ms. Caffey's 
Challenge To The Reorganization

Even before Ms. Caffey had accepted her new position, John Matthews, who under the 

reorganization was assigned direct supervision of the EEO complaints review agency, began 

questioning her work. In December 1983, Mr. Matthews instructed Ms. Symons to assign 

Ms. Caffey cases to review. App. 413. According to Ms. Symons, Mr. Matthews wanted to 

"test" Ms. Caffey to see if she would do the work. App. 415.

Less than two weeks after Ms. Caffey reported to her new position, Mr. Matthews placed 

her on absent without leave ("AWOL") status. On February 23, 1984, Ms. Caffey coordinated a 

program for Black History Month in her capacity as president of Blacks in Government —  an 

activity she had received permission to conduct. The next day, Ms. Caffey called her first-line 

supervisor, Ms. Stowbridge, to report that she was ill. She volunteered to call in again, but there 

was no agency or office requirement that employees check in daily when they were out of the 

office for an illness. App. 1110. However, when Ms. Caffey did not call in again by 

February 29, 1984, Mr. Matthews placed her on AWOL status. App. 1187. Her supervisors did 

not remove her from AWOL status until she produced a written medical excuse. App. 1095.

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3. Ms. Cafffey's EEO Complaint

In November 1984, Ms. Caffey was counseled by Ms. Symons at the direction of Mr. 

Matthews for not meeting an internal case processing deadline. App. 433. The Army had 

adopted the deadline during a period when Ms. Caffey was on leave, and her supervisors did not 

inform Ms. Caffey of the deadline until after they criticized her for not meeting it. App. 221-23. 

Ms. Caffey subsequently contacted an EEO officer about initiating a complaint against 

Mr. Matthews and Ms. Symons for discrimination and retaliation against her because of her 

opposition to the reorganization. App. 236.2/

Shortly thereafter, Mr. Matthews directed Ms. Symons to counsel Ms. Caffey for 

reporting late to work. In addition, he ordered Ms. Caffey to report each morning in person to 

Ms. Symons. App. 445. Although two other employees in the EEO Office also had been 

counseled for being late, neither of them was required to report to Ms. Symons each morning. 

Id. Even Ms. Symons had a well-known reputation for being late and abusing leave. App. 1266.

On Friday, February 1, 1985, Ms. Symons attempted to counsel Ms. Caffey again. 

Ms. Caffey told her that she wanted to have an EEO representative present at any counseling 

session, because she had filed an EEO complaint against Ms. Symons. App. 458. Ms. Symons 

denied Ms. Caffey's request, and the counseling did not take place. App. 458-59.

The following Monday, February 4, 1985, Ms. Symons confronted Ms. Caffey because 

she arrived at work approximately five minutes late. App. 455. Because of the stress created by 

the confrontation and the other tactics adopted by her supervisors, Ms. Caffey sought medical 

assistance from the Pentagon dispensary. The doctor advised Ms. Caffey to take a week's sick 

leave to alleviate the stress, and Ms. Caffey ultimately obtained permission for an additional 

three weeks of sick leave. App. 231-32; 1291-94; 1312. In discussing the requirement for

3/ On March 6, 1984, Ms. Caffey had filed a complaint with the MSPB challenging the 
reorganization as retaliatory and discriminatory.

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additional leave with the personnel office, Ms. Symons was advised that they "could go for a 

fitness for duty" —  a mechanism to remove an employee from service. App. 1280.

On February 5, 1985, within several days after Mr. Matthews learned about Ms. Caffey's 

EEO complaint against him, he sent a memorandum to Mr. Spurlock stating that Ms. Caffey 

probably would be terminated:

The good news is that we have only one examiner who is not meeting standards.
The bad news is that the examiner is Ms. [Caffey] and is appreciably below 
standards to the extent that if her present performance continues, we will, in all 
probability, be looking at involuntary termination of her employment.

App. 1277. He made this statement notwithstanding the fact that, during the years 1980 through

1984, Ms. Caffey repeatedly received rankings of "exceptional" in her performance evaluations.

App. 172-73; 1463-1502.

In the same memorandum to Mr. Spurlock, only a few lines below his discussion of 

Ms. Caffey's anticipated termination, Mr. Matthews acknowledged his awareness of Ms. Caffey's 

pending EEO complaint:

Ms. Symons was to counsel her on her performance last week but Ms. [Caffey] 
refused to be counseled because (a) she had filed a complaint. . . .

I talked with Charlie White and confirmed that Ms. [Caffey] had approached his 
office about filing a complaint concerning Ms. Symons and my harassment of her.

App. 1277. Mr. Matthews subsequently reviewed the complaint and tried to contact witnesses

listed therein. App. 510-11.

On March 4, 1985, the day Ms. Caffey returned from sick leave, Ms. Symons presented 

her with a notice of proposed suspension for four days, because she had arrived for work five 

minutes late on February 4, 1985. App. 459-60; 1303. Mr. Matthews approved the suspension 

on March 21, 1985. App. 1332. On March 21, Ms. Symons also gave Ms. Caffey written notice 

that she had 90 days to improve her performance or Ms. Symons would take steps to terminate 

her. App. 1335. This was the first time Ms. Symons had ever informed Ms. Caffey that the 

quality of her work was unsatisfactory. App. 891.

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During the 90-day performance improvement period ("PIP"), Ms. Caffey was required to 

finalize twelve EEO cases in accordance with the applicable quality standard. App. 2409-10. 

She completed and submitted 16.5 cases during the PIP, well above the required number. App. 

2040, 2045, 2083, 2409. Although the cases could not be deemed "finalized" until Ms. Symons 

and other supervisors reviewed them, App. 26, Ms. Symons did not critique the cases during the 

PIP; instead, she held most of the cases and did not review them until after the end of the PIP. 

App. 486. During the PIP, Ms. Symons gave Ms. Caffey feedback on only one case. App. 869. 

To account for the fact that the cases had not been reviewed during the PIP, the Army evaluated 

Ms. Caffey on the cases submitted during the PIP, without regard to when they were finalized. 

App. 2410.

At the conclusion of the PIP, Ms. Symons reviewed Ms. Caffey's cases and also gave 

some of them to another supervisor, Stanley Kelley, for his review. App. 903-04; 955. Upon 

reviewing the cases, Ms. Symons reported that only 8.5 of the cases met the applicable 

qualitative performance standard. App. 1408-10. Consequently, on September 4, 1985, 

Ms. Symons proposed to terminate Ms. Caffey. 14 Ultimately, Mr. Matthews approved 

Ms. Caffey's unsatisfactory performance appraisal and proposed termination. See App. 1397, 

1445. Ms. Caffey was terminated from the Army effective October 18, 1985. App. 1453. The 

termination was based solely on Ms. Caffey's alleged failure to meet the performance standard 

requirements and not on any other personnel issue. App. 1063.

SUMMARY OF ARGUMENT

The district court erred when it entered judgment against Ms. Caffey. Both its review of 

the MSPB proceedings and its adjudication of Ms. Caffey’s Title VII retaliation claim suffer from 

a number of errors that warrant reversal.

The Court should reverse the decision of the MSPB, because the Army failed to meet its 

burden of proof in the MSPB proceeding to show: (1) that the performance standard under which 

Ms. Caffey was terminated was objective, reasonable, and attainable; (2) that Ms. Caffey did not

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meet the standard; and (3) that Ms. Caffey was given a reasonable opportunity to improve her 

performance under the standard.

The Army first failed to meet its burden of proving the validity of the performance 

standard. The Army presented no evidence to show that the quantitative requirement of one 

finalized case per week was reasonable. The Army also did not adequately refute evidence that 

the quantitative requirement was unreasonable because it did not account for variations in case 

size and complexity, and because the ability to finalize cases within a given time frame was 

beyond the control of the EEO analysts subject to the standard. In addition, the Army did not 

adequately refute evidence that the standard created a conflict between the analysts' obligations 

to provide objective review of cases and their obligations to meet their quota of finalized cases. 

Finally, the Army did not adequately refute evidence that the standard was unreasonable because 

it was inconsistent with past practice in the EEO Office.

The Army also failed to prove that the performance standard gave adequate notice of the 

actions necessary to obtain a satisfactory performance rating. As applied by the Army, the 

"qualitative" component of the performance standard meant little more than a requirement for the 

analyst to agree with the ultimate disposition of the case, even though the Army's own witness 

admitted that disagreement with the Army's ultimate decision did not necessarily mean that the 

analyst's work was incorrect.

The Army also failed to show by substantial evidence that Ms. Caffey failed to meet the 

performance standard. The Army improperly denied Ms. Caffey credit for several of the drafts 

she submitted for review; if credit had been given properly, she would have met the standard. 

The Army also failed to show that it gave Ms. Caffey a reasonable opportunity to improve her 

performance to meet the standard. Unlike other analysts, Ms. Caffey received no oral assistance 

or feedback from her supervisors. Furthermore, the few written comments she received failed to 

indicate whether Ms. Caffey was meeting the performance standard. Consequently, the Army 

failed to meet its burden of proof, and the Court should reverse the decision of the MSPB.

- 11 -



The Court also should reverse the district court's judgment with respect to Ms. Caffey's 

Title VII retaliation claim. The district court's findings are clearly erroneous, because they fail to 

acknowledge uncontested evidence of retaliation presented at trial. First, the supervisors took 

action against Ms. Caffey for practices that they tolerated or accepted in other employees. 

Second, other analysts, working in the same office under the same supervisors, failed to meet the 

same performance standards as Ms. Caffey, but the Army did not threaten them with termination. 

Third, the supervisors provided guidance and assistance to the other analysts, but not to 

Ms. Caffey. Fourth, the supervisors did not give Ms. Caffey credit for all of the cases on which 

she worked, although the treatment of the other analysts in the EEO Office was more lenient 

during the same time period. The district court addressed none of these instances of disparate 

treatment in its opinion.

The district court also erred by. stating that Ms. Caffey had not engaged in protected 

activity within the meaning of Title VII. The district court stated several times that Ms. Caffey 

would have to prevail on the merits of her EEO complaint in order to prevail on her retaliation 

claim. This erroneous application of the governing law of retaliation requires reversal of the 

district court's judgment.

Finally, this Court should reverse the district court judgment, because its superficial 

three-page bench opinion contains only conclusory language and fails to make the findings 

necessary to support the district court's decision in accordance with the requirements of 

Fed. R. Civ. P. 52(a).

- 12-



ARGUMENT

I. THE COURT SHOULD REVERSE THE DECISION 
OF THE MERIT SYSTEMS PROTECTION BOARD

The Court of Appeals should reverse the MSPB decision affirming Ms. Caffey's 

termination, because the Army failed to establish: (l)that the performance standard against 

which it measured Ms. Caffey's performance complied with applicable legal requirements; 

(2) that Ms. Caffey failed to meet such a standard; or (3) that Ms. Caffey had a reasonable 

opportunity to demonstrate improved performance under that standard.

In a single line of its opinion, the district court affirmed the MSPB's decision on the 

CSRA claims pursuant to 5 U.S.C. § 7703, which gives any person "adversely affected or 

aggrieved by a final order or decision of the Merit Systems Protection Board" the opportunity for 

judicial review. Although the Court of Appeals for the Federal Circuit typically conducts such a 

review, id  § 7703(b)(1), "mixed" cases that involve both Title VII and CSRA claims are 

reviewed by the district court, which has jurisdiction both to consider Title VII claims de novo 

and review the MSPB decision on the MSPB record. See Bames v. Small, 840 F.2d 972, 979 

(D.C. Cir. 1988).

In an appeal from the district court's judgment in such a "mixed" case, this Court

conducts an independent review of the MSPB record, giving no deference to the holding of the

district court.d In its review of the MSPB record, the Court should:

hold unlawful and set aside any agency action, findings, or conclusions found to 
be—

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in 
accordance with law;

4/ See Schuck v. Frank, 27 F.3d 194, 197 (6th Cir. 1994) (noting that MSPB administrative 
record should be reviewed de novo, with no deference given to the decision of the district court). 
See also Etelson v. PPM. 684 F.2d 918, 926 (D.C. Cir. 1982); Polcover v. Secretary of Treasury, 
477 F.2d 1223, 1226 (D.C. Cir. 1973).

-13 -



(2) obtained without procedures required by law, rule, or regulation having
been followed; or

(3) unsupported by substantial evidence.

5 U.S.C. § 7703(c). Under these standards, this Court should reverse the decision of the MSPB 

and enter judgment for Ms. Caffey.

A. The Army Failed As A Matter Of Law To Meet
Its Burden Of Proving The Validity Of The Performance 
Standard Under Which Ms. Caffey Was Terminated

The MSPB's decision was "obtained without procedures required by law. rule, or

regulation" (5 U.S.C. § 7703(c)(2)), because the Army failed to meet its burden of proving the

validity of the performance standard under which Ms. Caffey was terminated. The Army had the

burden to demonstrate that it terminated Ms. Caffey under a performance standard that was

reasonable, realistic, and attainable. See Johnson v. Department of Army, 44 M.S.P.R. 464, 466-

67 (1990). The Army failed, as a matter of law, to meet its burden, because it presented no

evidence at the MSPB hearing regarding the reasonableness of the performance standard. The

MSPB nonetheless affirmed Ms. Caffey's termination, improperly shifting the burden of proof to

her to prove that the applicable performance standard was unattainable or unreasonable. See

App. 61, 67. Because the reasonableness of performance standards is a legal question reviewed

de novo by the Court of Appeals (see Rogers v. Department of Defense Dependents Sch.. 814

F.2d 1549, 1553 (Fed. Cir. 1987)), this Court should reverse the MSPB decision and enter

judgment for Ms. Caffey.

1. The Army Did Not Introduce Any
Evidence That The Standard Was Reasonable

The Army terminated Ms. Caffey for her alleged failure to meet both the "qualitative" and 

"quantitative" components of the Equal Employment Specialist performance standard. See App.

- 14-



2409.^  Prior to October 1984, the quantitative component of the performance standard required 

analysts to submit an average of three cases each month in draft form. App. 2401. On October 

4, 1984, the Army raised the standard to "one final draft decision per week." App. 2406>/ By- 

March 4, 1985, the day Ms. Caffey was placed on the 90-day PIP, the Army articulated the 

standard as "one finalized case per week." See App. 2407.27

The Army presented no evidence at the MSPB hearing to establish that the requirement 

applicable during the PIP —  finalization of one case per week —  was reasonable or attainable. 

Although the Army presented evidence that it increased the requirement from three finalized 

cases per month to one finalized case per week, it did not present evidence concerning the 

reasonableness of any version of the quantitative' standard. See App. 32 (Symons); 51-52 

(Matthews); 53 (Harris)? ~ This failure of proof alone warrants reversal of the MSPB decision, 

because -the termination was implemented under a performance standard that was not shown to 

be valid.

2. The MSPB Improperly Shifted The Burden Of Proof

The defects in the MSPB's reasoning are illuminated by its statements affirming the 

reasonableness of the quantitative component of the performance standard. See App. 67. The 

MSPB reached its conclusion by improperly shifting the burden of proof from the Army to 

Ms. Caffey:

5/ Section I.B. infra discusses the Army’s failure to justify the validity of the qualitative 
component.

6/ A "final" draft decision was a draft decision that had been approved by a supervisor,
typed in final form, proofread by the analyst, assembled with any accompanying documents into 
a decisional package, and otherwise prepared for forwarding to the appropriate decision-making 
official for signature. See App. 26.

7/ See App. 888 (analysts received credit for only those cases signed by signatory 
authority).

- 15 -



[N]o evidence in the record establishes or suggests that the quantity standard of 
four (4) finalized cases per month was unattainable. The mere presence of 
[factors outside the control of the analyst], absent some evidence that the standard 
was in practice unreasonable, is not, I find, sufficient to establish a violation of 
section 4302(b)(1).

Id. (emphasis added). As explained above, the Army had the burden to justify the standard, and 

its failure to do so warrants reversal.

3. The Army Failed To Refute Evidence 
That The Standard Was Unreasonable

The MSPB's analysis also was defective, because it ignored the Army's failure to refute 

evidence that the standard was unreasonable. First, the Army failed to explain a0;:tysts 

could meet the quantitative standard for finalized cases within the rea-*r£a time frame when the 

power to finalize cases was beyond their control. jr»v,(R Lfiree t0 s x̂ Persons were required to 

review and approve an analvst'= •■nitjjective analysis before a case could be finalized. See 

App 26-27’ 31; supra n.4. The Army's own witnesses testified that the finalization process could 

take weeks or months. See App. 54-55. Indeed, Ms. Symons admitted that during the 90-day 

PIP, she could not have reviewed and approved the cases submitted by Ms. Caffey because of the 

backlog of case drafts awaiting review. See App. 39. Because the finalization process was 

beyond the control of analysts such as Ms. Caffey, linking the performance standard to deadlines 

in that process prevented the standard from being reasonable and rendered it invalid. See Mattes 

v Department of Army. 24 M.S.P.R. 477, 481 (1984) (em ployee wrongfully denied opportunity 

to demonstrate acceptable performance during warning period when timely submission of report, 

was not within sole control of employee); cf. Williams v. Department of Treasury, 35 M.S.P.R. 

432, 436 (1987) (removal could not be sustained when based on performance standard the 

attainment of which depended upon nature of assignments received). Although the Army failed 

to refute this evidence adequately, the MSPB affirmed by improperly shifting the burden of proof

to Ms. Caffey. App. 67.
Second, the Army failed to refute the fact that the blanket requirement of one finalized 

case per week did not account for variations in case size and complexity. Ms. Symons

- 16-



acknowledged that the size of the records reviewed by analysts varied substantially, App. 29-30, 

but the Army introduced no evidence explaining why every Title VII case could be processed on 

an "assembly line" without taking into account variations in factual and legal allegations. The 

Army also provided no evidence justifying the reasonableness of the quantities of cases the 

standard required to be processed. The record reveals that for the five-month period from 

January 1, 1984, to June 12, 1984, the entire EEO Office finalized only 39 cases. App. 1219. 

1229. By contrast, under the standard applied to Ms. Caffey, 115 would have to have been 

finalized^ — an increase of almost 200%.

In affirming the termination, the MSPB overlooked its rejection of similarly 

unsubstantiated performance requirements in other cases. In Rocheleau v. SEC, 29 M.S.P.R. 193 

(1985), for example, the MSPB rejected the validity of an unsubstantiated performance standard 

requiring SEC compliance examiners in the Boston regional office to conduct 30 examinations of 

investment advisors per year. No one in the Boston office had ever previously conducted 30 

examinations in one year. Id. at 195. The SEC attempted to demonstrate the reasonableness of 

the standard by referring to the average of 40 examinations conducted per year by SEC 

examiners nationwide. Id  at 195-96. Rejecting this argument, the MSPB pointed out that the 

SEC failed to show that the size and complexity of the examinations conducted nationally were 

comparable to the size and complexity of the cases assigned in the Boston regional office to the 

examiner challenging his dismissal. Id at 196.

Similarly, in Blain v. Veterans Admin.. 36 M.S.P.R. 322 (1988), the MSPB rejected as 

unreasonable a requirement that a file clerk charged with retrieving medical records could 

commit no more than five errors each quarter. When compared with the number of records 

actually retrieved each quarter, that requirement translated into a 99.91% accuracy level. Id. at

8/ The Office's five GS-13 analysts were required to produce 4 finalized cases per month. 
The Office's one GS-12 analyst was required to produce 3 finalized cases per month.

- 17-



324. The MSPB held that such a standard was unreasonable in light of the hectic pace of the 

understaffed office environment in which the file clerk had to work. Id. at 325-26.

The MSPB erred by failing to conclude that the performance standard was similarly 

deficient in this case, given that the Army failed to demonstrate: (1) the "average" complexity of 

cases handled by the EEO Office; (2) the length of time needed to process such an "average" 

case; (3) the attainability of a requirement of one finalized case per week with cases of "average" 

complexity; and (4) the ability of the EEO Office to ensure that each analyst had a caseload of 

"average" complexity.

Third, the Army failed to address the fact that the quantitative component created an 

inherent conflict between the analysts' fundamental duty to conduct fair and impartial analysis of 

EEO complaints and their ability to satisfy the performance standard. Ms. Symons confirmed 

that an analyst's recommended finding of "no discrimination" required three levels of supervisory 

review, whereas a finding of "discrimination" required six levels of review. See App. 27, 31. 

The performance standard made no accommodation for the time required for the substantial 

additional review of a discrimination finding. The easiest route to satisfactory performance 

therefore was to recommend a finding of "no discrimination," regardless of the merits of a case. 

The MSPB erred by affirming the termination in the absence of any evidence justifying the 

reasonableness of this incentive to recommend findings of "no discrimination," in conflict with 

the fundamental purpose of the EEO Office.

Finally, the Army failed to justify the reasonableness of a quantitative standard that was 

inconsistent with actual practice in the EEO Office. Before the Army adopted the requirement of 

one finalized draft per week, only one of the office's seven analysts was meeting that standard. 

See App. 1228. In January of 1985, two months after the adoption of this standard, the Army 

concluded that three of the five analysts were failing to meet the standard. See Symons App 24- 

25. The Army's sole justification for the heightened standard — reduction of case backlogs (see 

App. 44, 46-47) — does not speak to the standard's reasonableness or attainability. See Walker 

v. Department of Treasury, 28 M.S.P.R. 227, 229 (1985) (invalidating increased performance

- 18 -



standard that lacked justification and which was not met by the only other employee working 

under the same increased standard). This Court should reverse the MSPB decision, because the 

Army failed to prove the validity of the performance standard under which Ms. Caffey was 

terminated.

B. The Army Did Not Meet Its Burden Of
Proving That The Performance Standard Gave 
Adequate Notice Of Necessary Performance Factors

This Court also should reverse the MSPB decision, because the Army failed to meet its

burden of proving that the performance standard would, "to the maximum extent feasible, permit

the accurate evaluation of job performance on the basis of objective criteria.. . ."

5 U.S.C. § 4302(b)(1); see also Brown v. Veteran's Admin.. 44 M.S.P.R. 635, 640 (1990)

(agency had burden of proving it gave notice of performance standards prior to terminating

employee). In order to be objective, "performance standards must be reasonable, sufficient in the

circumstances to permit accurate measurements of the employee's performance, and adequate to

inform the employees of what is necessary to achieve a satisfactory or acceptable rating."

Wilson v. Department of Health and Human Services, 770 F.2d 1048, 1052 (Fed. Cir. 1985).

The performance standard must contain some objective methodology for determining whether an

employee is performing satisfactorily and adequately convey that methodology to the employee:

[A]n agency must communicate to the employee performance standards that are 
sufficiently specific to provide the employee with a firm benchmark toward which 
to aim his performance, and not an elusive goal which the agency may find the 
employee met or failed to meet at its pleasure.

O'Neal v. Department of the Army. 47 M.S.P.R. 433, 441 (1991).

In Wilson, the Federal Circuit held that the objectivity requirement applies to both

quantitative and qualitative elements of a performance standard. See Wilson, 770 F.2d at 1052-

53. In the present case, the Army failed to prove that the qualitative component of the

performance standard was objective. The qualitative component imposed the following

requirements:

- 19-



In all but the simplest cases . . .  the analyst fails to consider significant issues in 
no more than 5% of the analyses submitted. In the simplest cases, no significant 
issues are omitted. . . .  In no more than 5% of the analyses submitted has analyst 
misapplied or failed to consider relevant policy issuances.

App. 2401. The objectivity of qualitative standards such as the one at issue here depends upon

whether "compliance vel non with those standards [can] be verified in the particular instance by

others than the official appraisers of the employee's performance." Wilson. 770 F.2d at 1052

(emphasis added). This court should conclude that the MSPB misapplied Wilson in upholding

the objectivity of the performance standard. See App. 66-67.

The Army's witnesses at the MSPB hearing conceded that an analyst's compliance with

the qualitative component could not be verified without reference to the subjective beliefs of the

supervisors who appraised the analyst's work. Mr. Matthews testified that if an analyst's draft did

not reach the same conclusion about discrimination as the Army's ultimate decision in the case,

the analyst did not meet the performance standard. See App. 50. At the same time,

Mr. Matthews conceded that an analyst's disagreement with the Army's ultimate decision did not

necessarily mean that the analyst's work was incorrect. App. 49-50. In fact. Mr. Matthews

agreed that the qualitative component of the performance standard was subjective. App. 49. At

the MSPB hearing, the Army also admitted that whether an analyst met the standard depended

upon whether Ms. Symons had "a problem with the way [an analyst] analyzed a file." See

App. 34 (emphasis added). Applied in this manner, the qualitative component of the

performance standard was inherently subjective.

Because the Army failed to meet its burden of proving that the qualitative component

could "be verified or found to exist apart from the appraiser's own subjective evaluation," the

performance standard was invalid under 5 U.S.C. § 4302(b)(1). Wilson. 770 F.2d at 1054;

accord Eibel v. Department of Navy, 857 F.2d 1439, 1443-44 (Fed. Cir. 1988) (reversing

removal based on failure to meet standard linked to subjective opinion of supervisor). This

Court therefore should reverse the MSPB. See Rogers. 814 F.2d at 1553 ("In cases challenging

the reasonableness and objectivity of performance standards, this court independently determines

-20-



whether the standards adequately comply with the statute."); O'Neal. 47 M.S.P.R. at 441 (agency 

failed to present evidence to show that performance standard was sufficiently objective).

C. The Decision To Terminate Ms. Caffey
Was Not Supported Bv Substantial Evidence

This Court also should reverse the MSPB, because the Army's decision to terminate Ms. 

Caffey was not supported by substantial evidence on the record taken as a whole. 5 

U.S.C. § 7703(c)(3); Kimm v. Department of Treasury. 61 F.3d 888, 891 (Fed. Cir. 1995). The 

discussion below explains that the Army neither demonstrated that Ms. Caffey failed to meet 

performance standards nor proved that the Army provided her a reasonable opportunity to 

improve performance.

1. The Army Improperly Denied Ms. Caffey Credit 
For Several Of The Drafts She Submitted For 
Review During The Performance Improvement Period

This Court should conclude that the Army did not demonstrate that Ms. Caffey failed to 

meet the performance standard; in fact, the evidence shows that the Army improperly denied her 

credit for numerous drafts submitted during the PIP.

As noted above, the quantitative component of the performance standard required 

Ms. Caffey to prepare twelve finalized cases during the three-month PIP. See App. 2409-10.27 

Ms. Caffey submitted 16.5 draft decisions for review during the PIP. App. 2040, 2045, 2083, 

2409M  Because Ms. Symons chose not to review most of the drafts until after the PIP expired, 

see App. 486, the Army elected not to evaluate Ms. Caffey for the number of cases finalized

9/ At the time the PIP began, the quantitative component of the performance standard 
required Ms. Caffey to complete one finalized case per week, App. 2407, which Ms. Symons 
interpreted as four finalized cases per month. App. 32.

10/ The "half' case was a "short form" case, for which she was given .5 credit in accordance 
with Ms. Symons' March 5, 1985 memorandum. See App. 2407.

-21 -



during the PIP as the standard required. Instead, the Army changed the standard, evaluating 

Ms. Caffey on the quality of all of the drafts she submitted for review during the PIP, without 

regard to when they were finalized. See App. 2409. This change, which to Ms. Caffey's 

detriment accommodated the Agency's decision not to return cases to Ms. Caffey with comments 

during her PIP, was not allowed under the CSRA. Brown. 44 M.S.P.R. at 643 (agency cannot 

change performance standard during PIP).

Of the 16.5 cases submitted during the PIP, Ms. Symons gave Ms. Caffey credit for only 

8.5. According to Ms. Symons, the other cases "did not meet the analysis standard with respect 

to application of policy because your legal and/or factual analyses and/or conclusions were 

incorrect in some cases and in others your analysis was insufficient to support the conclusions." 

App. 2410; see App. 70. According to Ms. Symons, therefore, Ms. Caffey failed to meet her 

"quota" by 3.5 cases.

The Army failed to meet its burden to prove by substantial evidence that Ms. Caffey's 

analysis was deficient in the cases for which Ms. Symons denied her credit. See Blumenson v. 

Department of Health & Human Serv.. 27 M.S.P.R. 259, 262 (1985) ("[A]gency bears the burden 

of proving, by substantial evidence, that appellant did not meet the performance standard.") The 

MSPB properly held that Ms. Caffey should have received credit for the Northerner and Rabago 

cases, two of the 3.5 she needed to meet her quota. See App. 71-72. The Court therefore should 

reverse the MSPB if it concludes that the Army did not justify its denial of credit for 1.5 

additional cases.

The Army did not justify denying credit for one of the remaining cases (Keith), in which 

Ms. Symons claimed there was an erroneous legal formulation relating to the establishment of a 

prima facie case of discrimination. See App. 37-38. Although she denied Ms. Caffey credit in 

the Keith case for using this formulation, Ms. Symons approved the same formulation in other 

final opinions. See App. 1661, 1666 (Northerner); 2665, 2670-71 (Graves); 2972, 2980 (Ward). 

This Court should conclude that the Army did not support the denial of credit for Keith with

-22-



substantial evidence. As a result, this Court should reverse the MSPB if it concludes that the 

MSPB improperly denied Ms. Caffey credit for a single additional case.

The record establishes that the Army did not support with substantial evidence its denial 

of credit in at least four of the remaining five cases. Ms. Symons rejected drafts in two 

cases — Hood and Mason — for no apparent reason other than her disagreement with the 

ultimate conclusions reached by Ms. Caffey. See App. 1852-1922; 2593-2605 (Hood); 2763- 

2869 (Mason). With respect to each of these cases, the Army failed to show how Ms. Caffey 

misapplied or omitted relevant case law, or in what way Ms. Caffey's drafts lacked the requisite 

quality. Instead, the only comments on the drafts reflect simple disagreements regarding the case 

outcome and fail to identify with any specificity any misapplication of law that rendered the 

drafts unacceptable under the performance standard. Furthermore, the Mason case settled prior 

to the issuance of a final decision. Under the standard practice of the EEO Office, Ms. Caffey 

should have received credit for a settled case. See infra at 33. The Court should conclude that 

the Army's denial of credit for these cases was not supported by substantial evidence, and that 

Ms. Caffey not only met but exceeded the minimum number of case drafts required during the 

PIP.

Finally, for two of the remaining three cases, — Neal and Daniels — the Army presented 

no evidence justifying its failure to give Ms. Caffey credit, although it was uncontroverted that 

she submitted them during the PIP. See App. 57; 2040, 2045, 2083. Taking into account these 

cases, the cases in which Ms. Symons merely disagreed with the ultimate outcome without 

identifying specifically the deficiencies of Ms. Caffey's analyses, and the case for which 

Ms. Symons denied credit for using a legal standard used in other approved cases, the MSPB's 

decision was not supported by substantial evidence, because Ms. Caffey should have received 

credit for at least 15.5 cases, more than enough to meet the performance standard. The Court 

therefore should reverse the MSPB decision.

-23 -



2. The Army Did Not Give Ms. Caffey A Reasonable 
Opportunity To Improve Her Performance

Even assuming arguendo that the Army had shown that Ms. Caffey had failed to meet the 

performance standard, the Army failed to meet its burden of establishing, by substantial 

evidence, that it afforded Ms. Caffey a reasonable opportunity to improve her performance. See 

Sandland v. General Serv. Admin., 23 M.S.P.R. 583, 587 (1984) (”[T]he opportunity to 

demonstrate acceptable performance is an element of the agency's case which must be proven by 

the requisite substantial evidence standard for all actions brought pursuant to 5 

U.S.C. Section 4303."); Betters v. Federal Emergency Management Agency, 57 M.S.P.R. 405, 

408 (1993) ("[A]gency must establish by substantial evidence, inter alia, that it gave the 

employee a reasonable opportunity to demonstrate acceptable performance.").

The Army presented no evidence that Ms. Symons or anyone else provided feedback to, 

or otherwise assisted, Ms. Caffey during the PIP in drafting her cases in a manner acceptable to 

the Army. During the same period that Ms. Caffey was subjected to adverse personnel actions, 

another analyst, Tyrone Harris, was also having difficulty meeting the same performance 

standard discussed above. Ms. Symons worked with him in weekly sessions until she felt 

satisfied with his work product.i-h App. 33. Ms. Caffey received no such assistance, providing 

strong evidence that the Army did not afford her a reasonable opportunity to improve. Cf 

Adorador v. Department of Air Force. 38 M.S.P.R. 461, 466-67 (1988) (finding no opportunity 

to improve when supervisor failed to provide promised counseling sessions) J27

j j J In contrast to Ms. Caffey, Mr. Harris was not threatened with termination because of his
failure to meet the performance standard. See discussion infra at 30-31.

12/ In place of guidance sessions, Ms. Symons made an inadequate written offer of assistance 
in her counseling memorandum. See App. 2400 ("I remain available to discuss with you any 
problems you are having with your cases.") On the same page, only two paragraphs later, 
Ms. Symons threatened to begin removal proceedings unless Ms. Caffey's performance 
immediately improved. Id. The proximity of these two statements undermined the credibility of 
the written offer of assistance.

-24-



Furthermore, Ms. Caffey received no measurable written guidance during the PIP. 

Although detailed written guidance can substitute for oral critiques, see Giersvold v. Department 

of Treasury, 68 M.S.P.R. 331, 336 (1995), Ms. Symons did not provide it. She returned only one 

of the drafts submitted by Ms. Caffey during the entire PIP. See App. 28, 35.i l 7

The Army's failure to critique Ms. Caffey's work properly supports the conclusion that 

her supervisors had determined to terminate her regardless of her performance during the PIP. 

Indeed, even before the PIP began, Mr. Matthews wrote Mr. Spurlock a memorandum stating 

that "we will, in all probability, be looking at involuntary termination of [Ms. Caffey's] 

employment." See App. 1277. This preconceived notion that termination would likely occur, 

prior to any notice to Ms. Caffey of dissatisfaction with the quality of her performance, strongly 

suggests that the Army never gave Ms. Caffey a reasonable opportunity to improve. See Zang v. 

Defense Investigative Serv.. 26 M.S.P.R. 155, 157 (1985) (prejudgment by government 

employee's supervisor effectively denied meaningful opportunity to improve).

In the proceedings before the MSPB, the Army did not meet its burden of proving that 

Ms. Caffey failed to satisfy a performance standard that was reasonable and attainable after 

having been given a reasonable opportunity to meet that standard. Consequently, the MSPB 

erred by affirming the Army's termination of Ms. Caffey. The Court should reverse the MSPB 

decision and remand with instructions to award back pay, front pay, and any other relief to which 

she may be entitled. See Spurlock v. Department of Justice. 894 F.2d 1328, 1332 (Fed. Cir. 

1990) (reversing and remanding decision of MSPB with instructions for cancellation of

13/ Had Ms. Symons returned Ms. Caffey's drafts during the PIP with edits indicating 
whether they met the performance standard, Ms. Caffey would have had a fair opportunity to 
correct the alleged deficiencies. However, Ms. Symons admitted that her actual edits and notes 
(only available after the PIP) failed to indicate whether an analyst was meeting the performance 
standards. App. 43. Cf Giersvold. 68 M.S.P.R. at 335 (adequate written comments on work 
product noted "both where the appellant had satisfied performance standards and where 
performance deficiencies remained").

-25 -



suspension, reinstatement to former position, the award of back pay, and any other appropriate 

relief); Grubka v. Department of Treasury, 858 F.2d 1570, 1576 (Fed. Cir. 1988) (reversing and 

remanding decision of MSPB with instructions for reinstatement to former position, the award of 

back pay and other appropriate benefits, and the removal of the charges and proceedings from 

employee's record).

II, THE COURT SHOULD REVERSE THE DISTRICT COURT'S
JUDGMENT WITH RESPECT TO MS. CAFFEY’S TITLE VII CLAIM

The Court also should reverse the district court's judgment with respect to Ms. Caffey's 

Title VII claim for retaliation. The findings of the district court are insufficient to meet the 

requirements of Fed. R. Civ. P. 52(a) and are clearly erroneous in light of the evidence presented 

at both trial and the preliminary injunction hearing. Furthermore, the transcripts of both 

proceedings demonstrate that the district court labored under a mistake of law with respect to the 

scope of "protected activity" under Title VII.

A. The District Court’s Findings Are Clearly Erroneous

This Court may set aside the district court's findings of fact upon a showing that they are 

clearly erroneous. See Fed. R. Civ. P. 52(a). The Court will not take such action lightly, 

deferring to the district court's better opportunity to judge the credibility of the witnesses. See, 

e.g., Bishopp v. District of Columbia. 788 F.2d 781, 785-86 (D.C. Cir. 1986); McKenna v. 

Weinberger, 729 F.2d 783, 789 (D.C. Cir. 1984). Given that five years elapsed between the time 

of trial and the district court's decision, however, there is a substantial question whether the 

district court was truly in a better position to judge the credibility of the witnesses in this case at 

the time it issued its decision. A trial judge may not, of course, "insulate his findings from 

review by denominating them credibility determinations . . .." Anderson v. Bessemer City. 470 

U.S. 564, 575 (1985). And in any event, Ms. Caffey's burden of showing that the district court's 

findings are clearly erroneous does not depend fundamentally upon the credibility of her

- 26 -



witnesses. Most of the evidence upon which Ms. Caffey relies to demonstrate retaliatory animus 

is either provided by, or undisputed by, the Army's own witnesses.

1. Ms. Caffey Established A Prima Facie Case
That Her Termination Was An Act Of Retaliation

Title VII prohibits employers from retaliating against employees who engage in activities

protected by Title VII:

It shall be an unlawful employment practice for an employer to discriminate 
against any of his employees . . .  because he has opposed any practice made an 
unlawful employment practice by this subchapter, or because he has made a 
charge . . .  in an investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a). This Court has articulated previously the order of proof for retaliation

claims:

In order to establish a prima facie case of retaliation, a plaintiff must show:
1) that she engaged in a statutorily protected activity; 2) that the employer took an 
adverse personnel action; and 3) that a causal connection existed between the two.
As in a case of disparate treatment, this initial burden is not great. Plaintiff 
merely needs to establish facts adequate to permit an inference of retaliatory 
motive. Once this burden has been met, defendants must articulate a legitimate, 
nondiscriminatory reason for the personnel action. At that point, plaintiff must 
prove by a preponderance of the evidence that the proffered reason was but a 
pretext for retaliation.

McKenna. 729 F.2d at 790 (applying the framework of McDonnell Douglas v. Green. 411 U.S. 

792 (1973)).

There can be no question that Ms. Caffey met her burden of establishing a prima facie 

case of retaliation. It is undisputed that Ms. Caffey filed a complaint at the MSPB charging that 

the reorganization of the Army's EEO Office was racially discriminatory. See App. 13-15. It 

also is undisputed that Ms. Caffey filed an EEO complaint alleging retaliation arising from the 

pursuit of her original challenge to the reorganization. See App. 1273; 1353; 1457. The pursuit

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of such complaints falls squarely within the concept of "protected activity."M7 See McKenna. 

729 F.2d at 791. In addition, the Army took an adverse personnel action when it placed 

Ms. Caffey on a 90-day PIP, threatened her with termination, and ultimately carried through with 

that threat.

Moreover, there is compelling evidence of the causal connection between the protected 

activity and the adverse personnel action. In a memorandum dated February 5, 1985, 

Mr. Matthews discussed the likelihood that the Army would need to terminate Ms. Caffey. See 

App. 1277. Mr. Matthews predicted Ms. Caffey's termination even before the Army provided 

any notice that her performance was allegedly sub-standard or that her job was at risk. See 

App. 891 (Caffey told in March 1985 for the first time that she was not meeting the performance 

standard). In the same memorandum, Mr. Matthews referred to Ms. Caffey's pending EEO 

complaint against Ms. Symons and himself, the existence of which Ms. Caffey had revealed to 

Ms. Symons only four days earlier. See App. 458, 496.H7 By the next month, Ms. Caffey found 

herself at risk of losing her job. The close temporal proximity of the discovery of the EEO 

complaint by Ms. Caffey’s supervisors and their move to terminate her is strong evidence of a 

causal connection. See Hamson v. Nashville. 80 F.3d 1107, 1118-19 (6th Cir. 1996) (examining 

the temporal proximity of the protected conduct and the adverse employment action); see also 

Burrus v. United Tel. Co. of Kansas. Inc., 683 F.2d 339, 343 (10th Cir. 1982). Thus, Ms. Caffey 

easily met her initial burden of establishing a prima facie case of retaliation.!^

14/ Certain comments made by the court during the preliminary injunction hearing and trial 
indicate that the district court did not recognize this activity as "protected." See infra at 34-36.

15/ Mr. Matthews had a particular interest in Ms. Caffey's EEO complaint. After receiving a 
copy of it, Mr. Matthews reviewed it and tried to contact witnesses listed in the report, raising 
questions of improper interference with the EEO process. See App. 510-11.

16/ Indeed, even the MSPB acknowledged that Ms. Caffey had proved a prima facie 
retaliation case on the MSPB record. See App. 73.

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2. The Performance Issues Raised By The Army As
Justification For Its Treatment Of Ms. Caffey Were 
Pretextual

For the reasons set forth below, this Court should reject as clearly erroneous the district 

court's finding that the adverse personnel actions against Ms. Caffey were not pretextual.

App. 20.

a) Ms. Caffey Was Treated Differently Than Other 
Employees Who Were Having Similar Difficulties 
Meeting The Performance Standards

The Court should reject the Army's proffered justification for Ms. Caffey's 

termination — the alleged failure to meet performance standards — as pretextual. Before she 

challenged the reorganization and her treatment by the EEO Office, Ms. Caffey's supervisors 

considered her to be an excellent employee. Her previous employment record reflected not 

merely satisfactory — but superior — evaluations. See, e.g., App. 171-173; 1463-1502. 

Ms. Caffey's troubles began when she acted on her good-faith belief that the EEO Office 

reorganization was a violation of Title VII. At that point, the Army began treating her differently 

from other similarly situated employees. The evidence shows that during the period that it 

terminated Ms. Caffey, the Army failed to take similar action against other case analysts with 

similar (or worse) performance records.

During the same mid-year evaluation that ultimately resulted in Ms. Caffey's termination, 

two other analysts also failed to meet the same performance standard described above. App. 469. 

One of those individuals was Tyrone Harris, App. 470, who performed the same responsibilities 

as Ms. Caffey. App. 982. Unlike Ms. Caffey, however, Mr. Harris had been counseled twice 

previously for earlier performance problems. App. 987-88. On those occasions, the Army 

neither placed Mr. Harris on a 90-day PIP nor threatened him with termination. App. 988. After 

the mid-year evaluation in 1985, Ms. Symons did place Mr. Harris on a PIP, but she did not raise 

the spectre of termination. Mr. Harris then failed to meet the same performance standards during 

the third quarter of 1985, but received no threat of termination. App. 988-89, 2127. Another

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EEO analyst, Douglas Huemmer, also failed to meet the same performance standard at this same 

time, App. 922, but the Army took no action against him. Id.

Other similarly situated analysts in the EEO Office had failed to meet the performance 

standards previously. For example, Chester Jones prepared no drafts during one entire service 

year. App. 2125. Instead of threatening him with termination, Ms. Symons extended the 

evaluation period for 90 days to give Mr. Jones a chance to improve before she completed the 

annual performance appraisal. Id. Similarly, Lee McCain was unable to meet the quantitative 

performance standard, and his work required substantial rewriting. See App. 2133. Rather than 

terminate Mr. McCain or place him on 90-day PIP, however, the supervisors agreed to work with 

him to develop an alternative procedure for improving his work. IcL

Difficulties in meeting the performance standards were not limited to the analysts 

mentioned above. Mr. Spurlock testified that in 1983 he believed that the EEO Office had only 

one good writer. App. 287, 316-17. Yet Ms. Caffey was the only analyst threatened with 

termination. App. 922. Because the district court did not even address these substantial issues of 

disparate treatment in its findings, this Court should conclude that the findings were clearly 

erroneous and reverse the judgment below.

b) The Army Took Ms. Caffey To Task For Practices
That Were Tolerated Or Accepted In Other Employees

This Court also should reject the district court's findings regarding pretext as clearly 

erroneous, because they did not discuss significant evidence that Ms. Caffey's supervisors treated 

her differently than other similarly situated EEO analysts on issues of office policy. For 

example, Ms. Caffey was placed on AWOL status when she took sick leave for several days and 

only reported in only once, even though the EEO Office had no general policy that individuals on 

sick leave had to report in each day they were absent. See App. 1110; 1187-88. The Director of 

Personnel testified that he was not aware of any history of leave abuse by Ms. Caffey during her 

tenure with the Army, and that he knew of no other person with no history of leave abuse who

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was placed on AWOL under similar circumstances. App. 1121-22. The district court did not 

even address this disparate treatment of Ms. Caffey in its findings.

The evidence at trial also showed that the Army applied the EEO Office's "late" policy 

with more vigor to Ms. Caffey than to other similarly situated employees. After Ms. Caffey 

arrived late to a meeting, Mr. Matthews directed Ms. Symons to counsel her and to require her to 

report to Ms. Symons in person each morning. App. 444-45; 1267, 1268. Ms. Symons did not 

impose a similar reporting requirement on two other employees whom she had previously 

counseled for tardiness. App. 445. As an explanation for this disparate treatment, Ms. Symons 

claimed that the other employees' tardiness was not as severe as Ms. Caffey's. Ms. Symons could 

not explain why, if this were the case, she did not previously counsel Ms. Caffey at the same 

time she had counseled the other two employees. Id  In any event, Ms. Symons had her own 

extensive reputation for tardiness that had never required her to be counseled. See App. 1266 

("[Ms. Symons] has twenty years service and virtually no sick or annual leave accrued. She has 

the reputation of continually being late."). Although such disparate disciplinary action for 

similar infractions tends to show pretext, see Harrison. 80 F.3d at 1116, the district court did not 

address this issue.

c) Continued Disparate Treatment
Ultimately Led to Ms. Caffey’s Termination

The district court's findings regarding pretext also are clearly erroneous, because they do 

not mention Ms. Caffey's disparate treatment during the PIP. Unlike other analysts, Ms. Caffey 

did not receive assistance and a critique of her work product. App. 471-72; 317-18. Ms. Caffey 

ended up receiving written feedback on only one of her drafts during the PIP. App. 869.

Furthermore, as explained above, Ms. Caffey did not receive proper credit for all of the 

cases she submitted during the PIP. Obviously, if she had, she would have satisfied the 

requirements of her performance standard. However, she did not receive credit for a number of 

the cases that other individuals edited. Yet two witnesses confirmed that the regular practice in

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the EEO Office was to give analysts credit for all of the cases they processed, regardless of 

whether they needed editing. App. 958-59, 965-66; 984.

Ms. Caffey also did not receive credit for at least one case — the Mason case — that 

settled while Mr. Kelley was revising her draft. Mr. Kelley testified that the usual practice at the 

EEO Office was that when a case was withdrawn or otherwise resolved, the analyst to whom it 

was assigned got credit for the case. Id  at 962-63. Yet Ms. Caffey received no credit for Mason. 

The district court's findings were clearly erroneous, because they failed even to address the extent 

to which this disparate treatment of similarly situated analysts rendered the justification for 

Ms. Caffey's termination pretextual. See Hunt-Gollidav v. Metropolitan Water Reclamation 

Dist., 104 F.3d 1004, 1015 (7th Cir. 1997) (denying summary judgment for defendant because 

plaintiff contended that supervisor's instructions were developed especially for her and not for 

the rest of the work force).

3. The Surrounding Circumstances Establish Pretext

The district court's findings regarding pretext also are clearly erroneous, because they 

ignore a number of other facts, all uncontroverted by the Army, which establish that the Army 

treated Ms. Caffey differently from other similarly situated EEO analysts. This disparate 

treatment contradicts the Army's assertion that it dealt neutrally with Ms. Caffey in attempting to 

resolve her "performance problems."

For example, in November 1984, Ms. Caffey was counseled for her failure to adhere to 

certain internal deadlines in the processing of "30-day" cases. See App. 1260. Yet no one even 

told Ms. Caffey about the deadlines until after they had passed. App. 215-16; 221-22.

In March 1985, a full year after she began her duties as EEO analyst, Ms. Caffey received 

her first performance appraisal, App. 237-38, which provided her first notice that the Army 

considered her performance to be deficient. App. 239-40; 465; 891. By this time, however, 

Mr. Matthews already was predicting Ms. Caffey's termination. App. 1277.

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Given the substantial omissions for the district court's findings described above, its 

conclusory findings regarding pretext are clearly erroneous. The weight of the evidence shows 

that Ms. Caffey's supervisors did not give her credit for case drafts to the same extent that they 

gave such credit to other analysts in the same office; that her supervisors singled her out for 

termination based upon a failure to meet performance standards that other analysts failed to meet 

as well (see Bennun v. Rutgers State Univ.. 941 F.2d 154, 179 (3d Cir. 1991) ("evaluation based 

on objective criteria requires all those criteria to be objectively applied")); and that in other 

instances, her supervisors treated her differently than the other EEO analysts. This Court should 

conclude that the district court's findings are clearly erroneous, find that the Army retaliated 

against Ms. Caffey in violation of Title VII and reverse the judgment of the district court.

B. The District Court Misapplied The
Elements Of A Title VII Retaliation Claim

This Court also should reverse the district court's judgment, because it relied upon a 

mistake of law regarding the scope of protected activity under Title VII. This Court reviews 

such "application^] of legal standards to the facts of the case" de novo. See United States v. 

Abdul-Saboor, 85 F.3d 664, 667 (D.C. Cir. 1996) (internal citation omitted).

Title VII protects individuals from retaliation "if they made a charge, testified, assisted, 

or participated in any manner in an investigation, proceeding, or hearing" within the scope of 

Title VII. 42 U.S.C. § 2000e-3(a). The statute "speaks in clear, absolute terms, and has 

accordingly been interpreted as shielding recourse to the EEOC, regardless of the ultimate 

resolution of the underlying claim on its merits." Parker v. Baltimore & Ohio R.R., 652 F.2d 

1012, 1019 (D.C. Cir. 1981). By protecting all EEOC activity, regardless of its success on the 

merits, the statute prevents the "chilling effect" that might otherwise keep an employee from 

fully protecting Title VII rights. Id

The district court nonetheless made a number of statements on the record demonstrating 

that it believed that Ms. Caffey could succeed on her retaliation claim only if the court found that

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the underlying conduct Ms. Caffey originally challenged violated Title VII. During oral 

argument at the conclusion of the preliminary injunction hearing, the district court discussed the 

retaliation issue with counsel for Ms. Caffey:

The Court: IF THEY WERE TO RETALIATE AGAINST HER,
IRRESPECTIVE OF RACE OR SEX, IF YOU WANT TO USE THE WORD 
"RETALIATION," WHICH IS PEJORATIVE —  BUT IF THEY WERE TO 
TAKE PERSONNEL ACTIONS, WHICH AFFECTED HER ADVERSELY, 
BECAUSE SHE WAS OPPOSED TO THE REORGANIZATION, THAT 
WOULD, NEVERTHELESS, BE LEGAL. THAT'S LAWFUL.

Mr. Coleman: WELL, THAT WOULD NOT BE LEGAL IF THEY TAKE THE 
PERSONNEL ACTIONS AGAINST HER BECAUSE SHE OPPOSES THE 
REORGANIZATION ON THE GROUND THAT IT VIOLATES TITLE 
SEVEN, OR ON THE GROUND THAT IT IS INTENDED TO DENY TITLE 
SEVEN COMPLAINANTS OF THEIR RIGHTS UNDER THE STATUTE.

The Court: I AM NOT SURE THAT I AGREE WITH THAT. I THINK YOU 
HAVE TO GO BACK TO THE FIRST-PERSON MOTIVATION.

App. 555.

The district court made similar statements during the trial. See App. 995 (district court 

states that retaliation against Ms. Caffey because of her opposition to the reorganization "is not 

actionable under Title VII"); App. 996 (district court suggests that, if government officials 

believed that the reorganization was carried out for purposes of efficiency, it "exonerates them 

from liability under this [retaliation] claim"). When counsel for Ms. Caffey stated that the 

retaliation claim depended upon whether the adverse action was taken "against her because of her 

opposition to the reorganization based on her good faith belie[f] that the reorganization was 

intended to violate Title VII," the district court responded: "I disagree. I don't believe that's 

actionable. It's only actionable if what they intended to do was to thwart equal opportunity." 

App. 997.

Because of this substantial evidence that the district court did not apply the proper legal 

standard, this Court should reverse the judgment below and correct it as a matter of law by 

applying the proper legal standard to the uncontroverted facts. See United States v. Singer Mfg.

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Co.. 374 U.S. 174, 195 n.9 (1963) ("Insofar as [a] conclusion derive[s] from the court's 

application of an improper standard to the facts, it may be corrected as a matter of law.").!!/

C. The District Court Failed To Make Findings Of Fact And
Conclusions Of Law Sufficient To Satisfy The Requirements Of Rule 52(a)

Fed. R. Civ. P. 52(a) requires the district court to "find the facts specially and state 

separately its conclusions of law thereon." A district court's findings and conclusions must go 

beyond superficial conclusory language and reach the subordinate factual findings that support 

the court's decision. See, e.g.. Lvles v. United States. 759 F.2d 941, 944 (D.C. Cir. 1985) 

("Where the trial court provides only conclusory findings, unsupported by subsidiary findings or 

by an explication of the court’s reasoning with respect to the relevant facts, a reviewing court 

simply is unable to determine whether or not those findings are clearly erroneous."); Borrell v. 

United States Int'l Comm. Agency. 682 F.2d 981, 993 (D.C. Cir. 1982).

The findings and conclusions made by the district court in this case are wholly 

inadequate. The district court reduces five days of testimony to little more than two pages of 

discussion. See App. 93-95. More importantly, the conclusory statements contained therein 

regarding retaliatory animus and the credibility of government witnesses simply fail to address 

any of the underlying bases for Ms. Caffey's claim of retaliation. As explained above, the record 

is replete with uncontroverted facts, most of which the government witnesses credited in 

documentary or testimonial form. The district court's opinion does not accept or reject these 

facts — it simply ignores them in favor of generic pronouncements regarding the ultimate issues

17/ In the alternative, the Court should vacate the judgment below and remand for the district 
court to apply the proper legal standard to the case. Given the extraordinary delay already 
endured by Ms. Caffey in securing the first judgment from the district court, and in light of the 
significant and material facts that are not controverted, however, Ms. Caffey respectfully urges 
this Court to resolve this case without a remand.

- 3 5 -



in the case.l£/ Because the findings and conclusions fail to meet the requirements of Rule 52(a). 

this Court should reverse the judgment of the district court.

CONCLUSION

For the foregoing reasons, the Court should reverse the district court's judgment and enter 

judgment for Ms. Caffey.

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman Chachkin 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013

Janell M. Byrd 
NAACP Legal Defense & 

Educational Fund, Inc.
1275 K Street, N.W., Suite 300 
Washington, DC 20005 
(202) 682-1300

Respectfully submitted,

laniel G. J archil 
Kurt J. Hamroc
McKenna & Cuneo, L.L.P. 
1900 K Street, N.W. 
Washington, DC 20006 
(202) 496-7500

James E. Coleman, Jr.
Duke University School of Law 
Towerview Road & Science Drive 
Durham, NC 27707 
(919)613-7057

Counsel for Appellant 
Sherry 1 S. Caffey

Dated: November 12, 1997

1_8/ The district court's incorporation by reference of the findings from the 1985 preliminary 
injunction hearing does not remedy the defects in the findings. The preliminary injunction 
decision is not measurably more detailed, and in any event it cannot account for the five days of 
additional testimony during the 1987 trial.



CERTIFICATE OF LENGTH

Pursuant to D.C. Circuit Rule 28(d), I hereby certify that the foregoing brief does not 

exceed 12,500 words.

vc 4r

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Brief for Appellant was served by hand 

delivery this 12th day of November, 1997, upon:

Kimberly Brown, Esq.
Assistant United States Attorney 
555 Fourth Street, N.W.
Room 10-810 
Washington, D.C. 20001

) Wl Vi.
)aniel G. Jarcho