Marie v Eastern Railroad Assoc Motion and Brief Amicus Curiae and Petition Rehearing

    UNITED STATES COURT OF APPEALS dam
FOR THE SECOND CIRCUIT 
Docket No. 80-9013

THERESA J. STE. MARIE, et al.,
Plainitffs-Appellees,

-against-

EASTERN RAILROAD ASSOCIATION and 
TRAFFIC EXECUTIVE ASSOCIATION,

Defendants-Appellants.

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
and

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE 

IN SUPPORT OF PETITION FOR REHEARING

JACK GREENBERG CHARLES STEPHEN RALSTON CLYDE E. MURPHY 
O. PETER SHERWOOD10'Columbus Circle 

Suite 2030New York, New York 10019 
(212) 586-8397

Attorneys for Amicus Curiae 
NAACP Legal Defense and Educational Fund, Inc.



UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT 

Docket No. 80-9013

THERESA J. STE. MARIE, et al.,
Plaintiffs-Appellees, 

-against-
EASTERN RAILROAD ASSOCIATION and 
TRAFFIC EXECUTIVE ASSOCIATION,

Defendants-Appellants.

MOTION FOR LEAVE TO FILE 
BRIEF AMICUS CURIAE

The NAACP Legal Defense and Educational Fund, Inc., 
(hereinafter "LDF"-) respectfully move the court, pursuant to 
Rule 29 F.R.A. Proc., for permission to file the attached 
brief amicus curiae, for the following reasons:

(1) The NAACP Legal Defense and Educational Fund,
Inc., is a non-profit corporation, incorporated 
under the laws of the State of New York in 1939.
It was formed to assist Blacks to secure their 
constitutional rights by the prosecution of 
lawsuits. Its charter declares that its purposes 
include rendering legal aid gratuitiously to 
Blacks suffering injustice by reason of race 
who are unable, on account of poverty, to employ

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legal counsel on their own behalf. The 
charter was approved by a New York court, 
authorizing the organization to serve as 
a legal aid society. The NAACP Legal Defense 
and Educational Fund, Inc., (LDF), is inde­
pendent of other organizations and is 
supported by contributions from the public.
For many years its attorneys have represnted 
parties and has participated as amicus curiae 
in the federal courts in cases involving many 
facets of the law.

(2) Attorneys employed by LDF have represented
plaintiffs in many cases arising under Title 
VII of the Civil Rights Act of 1964 in both 
individual cases, e.g., McDonnell Douglas Corp. 
v. Green, 411 U.S. 792 (1973); and in class 
actions, e.g., Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975); Franks v. Bowman Transp.
Co. 424 U.S. 747 (1976). Furnco Construction Co. 
v. Waters, 438 U.S. 567 (1978). They have appeared 
before this court in a variety of Title VII cases 
as well. See, e.£., Kirkland v. N. Y. State Dept. 
Corr. Service, 628 F.2d 796 (2nd Cir. 1980). The 
Fund also has many years of experience in related 
areas of the law involving the standards for 
making and overcoming a prima facie case of dis­
crimination on the basis of statistical evidence. 
See, e.g., Alexander v. Louisiana, 405 U. S. 625 
(1972)

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(3) The Fund's participation as Amicus Curiae in
support of appellant is desirable because of 
its unique expertise in the area of discrimination 
litigation and can be useful to this Court in 
deciding the issue of the relative burdens of 
proof in a Title VII case.

WHEREFORE, for the foregoing reasons amicus moves that 
the NAACPLegal Defense and Educational Fund, Inc., be given 
leave to file the attached brief amicus curiae in support of 
appellant's petition for rehearing.

Respectfully submitted,

JACK GREENBERG
0. PETER SHERWOOD
CLYDE E. MURPHY

10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397

Attorneys for Amicus Curiae

June 2̂ , 1981

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Page
Table of Contents 
Table of Authorities
Introduction ......................................... 1
Argument

I. The Establishment of A Prima Facie Case by 
Statistical Evidence in A Pattern And
Practice Case 2

II. The Fact That The Burden of Persuasion Remains 
with The Plaintiff Does Not Eliminate the Need 
of The Defendant to Establish As Fact The 
Reason for His Conduct If His Reasons Are not
To Be Considered Pretextual 6

Conclusion.............................................  10

Table Of Contents



Page
Table of Cases

Alexander v. Louisiana, 405 U.S. 625 (1972)..........  4,5
Castenada v. Partida, 430 U.S. 482 (1977)........  3, 4, 5
Hazlewood School Dist. v. United States, 433 U.S. 299

(1977)   3McDonnell Douglas v. Green, 411 U.S. 792 (1973) Passim
Neal v. Delaware, 103 U.S. 370 (1880)................ 4
Patton v. Mississippi, 332 U.S. 463 (1947)..........  4
Smith v. Texas, 311 U.S. 128 (1940).................. 4Teamsters v. United States, 431 U.S. 324 (1977) . . . .  3
Sweeny v. Bd. of Trustees of Keene State College, 604

F. 2d 106 (1st Cir. 1979)...................................6
Turner v. Fouche, 396 U.S. 346 (1970)................ 4
Texas Dept, of Community Affairs v. Burdine, ____U .S.
, 67 L.Ed.2d 207 (1981) Passim
Whach v. Peabody & Wind Engineering Co., 595 F.2d 190 

(3rd Cir. 1979).............................................. 1

Table of Authorities



UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT 

Docket No. 80-9013

THERESA J. STE. MARIE, et al.,
Plaintiffs-Appellees, 

-against-
EASTERN RAILROAD ASSOCIATION and 
TRAFFIC EXECUTIVE ASSOCIATION

Defendants-Appellants.

BRIEF AMICUS CURIAE IN SUPPORT OF 
PETITION FOR REHEARING

INTRODUCTION
On May 29, 1981, this Court entered an order reviewing 

three separate decisions of the District Court in these pro­
ceedings, 72 F.R.D. 443 (1976) (class certification), 498 
F. Supp. 1147 (1978) (liability), and 497 F. Supp. 800 (1980) 
(remedy). These cases involve plaintiffs' allegations of 
violations by the defendants of Title VII of the Civil Right 
Act of 1964, 42 U.S.C. §§2000e, et seq., because of sex 
discrimination against a class of women employees.

This Court reversed and remanded the District Court's 
holding that the defendants were liable for a pattern and 
practice of discrimination, and held inter alia that the
District Court had imposed an improper burden of proof upon



the defendant; that the facts of the case could not be con­
sidered under a theory of disparate impact; and that the 
factual conclusions of the District Court, particularly those 
based on the plaintiffs' statistical case, were erroneous.

While amicus curiae express no view regarding this Court's 
interpretation of the record developed below, it is our view 
that the Court's opinion on the relative burdens of the parties, 
particularly after Texas Dept, of Community Affairs v. Burdine,
___ U.S. ___, 67 L.Ed.2d 207 (1981), and the application
of the disparate impact theory, demand clarification for the 
benefit of the development of the law in this Cirucit, and 
that therefore the Petition For Rehearing should be granted.

I .

The Establishment of A Prima Facie 
Case by Statistical Evidence in A 

Pattern And Practice Case

This Court's decision suggests that the McDonnell 
Douglas - Burdine analysis governs in class-type pattern and 
practice Title VII cases where disparate treatment is sought 
to be shown through statistical evidence. Amicus respectfully 
urges that the Court's opinion should be amended to make it 
clear that long-standing rules regarding proof of discrimination 
through statistics were not affected by Burdine. Indeed, both 
McDonnell Douglas and Burdine points out that the elements of 
proof set out therein are "not necessarily applicable in every 
respect to differing factual situations." 411 U.S. at 802,

2



n. 13; 67 L.Ed.2d at 215, n. 6.
In a pattern or practice case there are two points at which 

an employer may meet a statistical showing. First, the employer 
may attempt to rebut the statistics themselves by showing that 
they are unreliable or that they are not relevant to the issue.
The Supreme Court, however, has clearly indicated that the courts 
are not to impose unreasonable burdens on the party attempting to 
prove discrimination. Thus, for example, in a fair employment 
case the Court has noted that while actual applicant flow data is 
relevant, if available, other means of measuring relative hiring 
rates may be used. Hazlewood School Dist. v. United States, 433 
U.S. 299, 308, n. 13 (1977)

Once a statistical showing that indicates disparate treatment 
has been made, the employer may attempt to overcome it also. In 
such a case, however, it is clear that the employer's burden is a 
heavy one, and goes beyond the Burdine requirement that only a 
"legitimate, nondiscriminatory" reason need be "articulated." Jury 
discrimination cases are instructive, —^ since it was in such

1/ The rules developed for making and rebutting statistical 
showings in 14th amendment intentional discrimination cases have 
oftent been applied by the Supreme Court in employment disparate 
treatment cases. See, Teamsters v. United States, 431 U.S. 324,
339 (1977) and Hazlewood School District v. United States, 433 U.S. 
299, 311, n. 17 (1977), citing Castenada v. Partida, 430 U.S.
482 (1977).

3



cases that the concept of establishing a prima facie case of
2/discrimination through statistical evidence originated. — In 

case after case, once a showing of exclusion had been made, the 
Supreme Court has rejected a variety of preferred explanations 
for the disparity. Thus, it has refused to accept presumptions 
either that Blacks were not qualified (Neal v. Delaware, 103 U.S. 
at 397; Patton v. Mississippi, 332 U.S. 463 (1947), or that 
Mexican-American jury officials "would not discriminate against 
their own kind" (Castenada v. Partida, 430 U.S. 482, 500 (1977)). 
Testimony by jury commissioners that they did not discriminate 
has uniformly been rejected (Alexander v. Louisiana, 405 U.S.
625, 632 (1972), cited in Teamsters v. United States, 431 U.S.
324, 342, n. 24 (1977), as has the excuse that commissioners did 
not know enough Blacks in the community (Smith v. Texas, 311 U.S. 
128 (1940)).

In short, the Court has historically imposed a heavy burden 
on the alleged discriminator to move "in with sufficient evidence 
to dispel the prima facie case of discrimination." —^ established

2/ As early as 1880, the Supreme Court held that "a prima facie 
case of denial" of Fourteenth Amendment rights had been established 
by a showing that there were qualified Blacks in the relvant 
population but that no Blacks had served as jurors. Neal v. 
Delaware, 103 U.S. 370, 397 (1880).

3/ Turner v. Fouche, 396 U.S. 346 , 361 (1970) , and cases cited at 
notes 21 and 22.

4



by statistical evidence of underrepresentation. The burden must 
be met by evidence concerning the "way the [alleged 
discriminators] operated and their reasons for doing so." 
(Castaneda v. Partida, 430 U.S. at 500). Thus, "the burden of 
proof shifts to the State to rebut the presumption of uncon­
stitutional action by showing that permissible racially neutral 
selection criteria and procedures have produced the monochromatic 
result." Alexander v. Louisiana, 405 U.S. at 632.

That this burden is different and heavier than that imposed 
by Burdine for an individual case is evident. The reason for the 
difference lies in the nature of plaintiffs' showing. As Burdine 
noted, the burden imposed by McDonnell Douglas on the plaintiff 
is not "onerous;" the situation is quite different in a class 
action or a pattern and practice suit. The demonstration of an 
overall pattern of discrimination in making employment (or other) 
decisions is difficult. It creates a strong presumption that 
racism or sexism has infected all such decisions that can only be 
dispelled by similarly strong evidence.

5



II.
THE FACT THAT THE BURDEN OF PERSUASION 
REMAINS WITH THE PLAINTIFF DOES NOT 
ELIMINATE THE NEED OF THE DEFENDANT TO 
ESTABLISH AS FACT THE REASON FOR HIS 
CONDUCT IF HIS REASONS ARE NOT TO BE 

_________CONSIDERED PRETEXTUAL_________

In overruling Judge Carter's decision below, this Court 
expressed its concern that the District Court had interpreted 
the McDonnell Douglas v. Green, 411 U.S. 792 (1973) requirement 
that the defendant "articulate some legitimate, non-discriminatory 
reason for the [minority] employee's rejection", 411 U.S. at 802, 
as being synonymous with the requirement that the defendant 
establish such defenses as business necessity or a bona fide 
occupational qualification for its challenged actions. This 
Court, citing the Supreme Court's recent opinion in Burdine, 
supra, was anxious to note that the "articulation" requirement 
of McDonnell Douglas, supra, was not so broad. However, in so 
holding the Court leaves the impression that the defendant has 
neither obligation nor incentive to prove either the factual 
basis for his articulated reason, or more broadly that a 
business necessity or bona fide occupational qualification 
justifies his actions. This we think is not an appropriate 
reading of McDonnell Douglas, or Burdine.

In Burdine, the Court moved to make plain the limited 
nature of its second stage "articulation" requirement. Thus, 
the Court held that the burden which shifts to the defendant is 
to rebut the presumption of discrimination by "producing

6



evidence" that the disputed employment action was made for a 
"legitimate, nondiscriminatory reason." This is accomplished, 
the Court held, through the introduction of admissible 
evidence of the reasons for the employment action.

Underlying both the Court's limited articulation 
requirement, as well as its stated reasons for adopting it, 
was the clear assertion that while the defendant is not 
required to prove the factual basis for its articulation, 
absent such proof, the likelihood that the Court will find 
that articulation "pretextual" is significantly enhanced.
The Supreme Court recognized that "'[i]f an employer need only 
articulate —  not prove —  a legitimate, nondiscriminatory 
reason for his action, he may compose fictitious, but 
legitimate, reasons for his action.' Turner v. Texas 
Instruments, Inc., supra, at 1255." Burdine, supra, 67 L.Ed. 
2d at 218.

The Court addressed this concern 
several safeguards existed to facilitate 
to establish an unproven articulation as 
the fact that:

by noting that 
plaintiff's effort 
pretextual, including

. . . although the defendant does not
bear a formal burden of persuasion 
the defendant nevertheless retains an 
incentive to persuade the trier of 
fact that the employment decision was 
lawful. Thus, the defendant normally 
will attempt to prove the factual 
basis for its explanation.

Burd ine, supra, 67 L.Ed.2d at 218.

7



It is equally important to note in this regard that 
the defendant's satisfaction of the articulation requirement 
does not mean that he has refutted the plaintiffs' prima 
face case. Indeed as Burdine states, the showing required 
is not one that, "in the absence of any evidence of pretext, 
would persuade the trier of fact that the employment action 
was lawful" (emphasis in original). Burdine, supra, 67 L.Ed. 
2d at 218.

Rather, as the Court indicates, the defendant's
showing is sufficient if the evidence raises a genuine issue
of fact as to whether the employer discriminated against the
plaintiff. Thus in this particular context the presumptions,
articulations and shifting of burdens are primarily concerned
with insuring that the issues are drawn and the evidence
presented in a manageable way to the trier of fact.

[A]ssessing the burden of production helps 
the judge determine whether the litigants 
have created an issue of fact to be decided 
by the jury. In a Title VII case, the 
allocation of burdens and the creation of a 
presumption by the establishment of a 
prima facie case is intended progressively 
to sharpen the inquiry into the elusive 
factual question of intentional 
discrimination.

Burdine, supra, 67 L.Ed.2d at 216.
It follows that notwithstanding the fact that the 

defendant may have successfully "articulated" a legitimate 
reason, the Court is still free to hold, even on the basis 
of plaintiff's prima facie case, that that articulation was

8



pretextual.
In saying that the presumption drops from the 
case, we do not imply that the trier of fact no 
longer may consider evidence previously intro­
duced by the plaintiff to establish a prima 
facie case. A satisfactory explanation by the 
defendant destroys the legally mandatory 
inference of discrimination arising from the 
plaintiff's initial evidence. Nonetheless, this 
evidence and inferences properly drawn therefrom 
may be considered by the trier of fact on the 
issue of whether the defendant's explanation is 
pretextual. Indeed, there may be some cases where 
the plaintiff's initial evidence, combined with 
effective cross-examination of the defendant, 
will suffice to discredit the defendant's 
explanation.

Texas Dept, of Community Affairs v. Burdine, supra, 67 L .Ed. 
2nd at 216. See also Sweeny v. Bd. of Trustees of Keene 
State College, 604 F.2d 106 (1st Cir. 1979).

Accordingly, assuming arguendo the correctness of 
the District Court's factual findings in holding that plain­
tiff's had established a prima facie case based on 
statistical and other evidence, its ultimate holding that 
plaintiff "met the ultimate burden of persuasion", is 
entirely consistent with Burdine.

The District Court's error was in incorporating the 
defendant's failure to prove the factual basis for its 
articulation into the articulation requirement itself. 
However, if the defendant failed to establish that factual 
basis —  for example failed to establish a business necessity 
or bona fide occupational qualification —  the Court might 
reasonably hold that even if the defendant had been found to

9



have articulated a legitimate nondiscriminatory reason, the 
evidence adduced at trial was sufficient to establish those 
reasons as pretextual. Whack v. Peabody & Wind Engineering 
Co., 595 F.2d 190, 193 (3rd Cir. 1979).

Conclusion
For all the foregoing reasons Amicus Curiae respectfully 

request that the Petition for Rehearing be granted.
Respectfully submitted

JACK GREENBERG '
CHARLES STEPHEN RALSTON 
CLYDE E. MURPHY 
0. PETER SHERWOOD

10 Columbus Circle 
Suite 2030
New York, N.Y. 10019 
(212) 586-8397

Attorneys for Amicus Curiae

10



CERTIFICATE OF SERVICE

I hereby certify that on this 23rd day of June, 1981, 
copies of the MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
and BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, 
INC., AS AMICUS CURIAE IN SUPPORT OF PETITION FOR REHEARING 
were served on counsel for the parties by United States 
mail, postage prepaid, addressed to:

SUE WIMMERSHOFF-CAPLAN 
250 West 94-th Street 
New York, New York 10025
TEITLEBAUM & HILLER P.C.
1140 Avenue of the Americas 
New York, New York 10036
MYRON D. COHEN 
DAVID REES DAVIES
Conboy, Hewitt, O'Brien & Boardman
20 Exchange Place
New York, New York 10005

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