Brief for the United States and the Equal Employment Opportunity Commission as Amici Curiae Supporting Petitioner

    #*e,*

-l r.

QUESTIONS PRESENTET)

1. Whether the aourt of appeals misapplied the
standard of review prescribed by Fed. R. Civ. P.
52(a) in reversing the district eourt's findings of
fact in this case.

2. Whether the court of appeals erred in eonelud-
ing that the fact that male selection committee mem-
bers were married to women who had been employed
dispelled inferences frorn other evidence in the record
that those members were biased in favor of hiring a
male for the position of Recreation Director.

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,-i:,

TABLE OF CONTENTS

Interest of the Unit€d States

Page

1

2

7

Statament

Summarry of a.rgument.-------------- ------------------.--

Argummt:

I. Ihe court of appeals misapplied the standard of
review prescribed by Fed- R- Civ. P. 52(a) in
rweusing the district court's findings of fact in
this cese

II. The court of appeals ered in eoncluding that
the fact that male selection committee members
were married to wome,n who had been employed
dispelled inferences from other evidence in the
record ttrat those members were bia.sed in favor
of hiring a male for the position of Recreation
Diretor

Conclusion

TABLE OF AUTHORITIES
Ca.ses:

Alerand,er v. Gardner-Denaer Co., 416 U.S. 36--.----. I
Bogd. v. BoAd,252 N.Y. 4n, 169 N.E. 632 16
Castnnedav. Parti.da,430 U.S. 482..--.--..-.- 9,19
Coble v. Hot Springs School Distri.ct No. 6, 682

F.^ 72r 16
Daai,s v. Mu.rphy, 587 F.zd 362 .---...----. 15
Graaer Mf g. Co. v. Lind.e Co.,336 U.S. 271 16
Inwood Laboratori,es, Inn. v. Itses Laboratories,

Inr., 66 U.S. 844 I
Pullman-Stondnrd. v. Suint, 456 U. S. n g ...... -.......7, 10, 11
United Statesv. Crescent Amusement Co., 323 U.S.

173 ...-_.-.... 16-17
United Sta,tes v. El Paso Natural Gas Co,,376 U.S.

651 ..-.-.._-... 16

(m)

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$
Cases.-Continued: Page

tlnitnd States v. Natiam) Associntion of Real Da-
tnte Boorils, 839 U.S. 485 -----..--- 10

Uni,teil Stntes Y. Oregon State Meilicd Soci'etu,88
u.s. 8zi 16

Iltuited Stntes v. Uni.ted States Ggpsum Co., 888

u.s. 8M I
Weiner v. Countg of Oaklnn'il, 14 Fair Empl. Prac'

Cas" (BNA) S80 16

Zeni.th Rad,i,o Corp. v. Haaeltine Resewch, Inc.,
895 U.S. 100 -.-...----- I

Statute and mle:
Civil Rights Act of 1964, fiL YII, 42 U.S.C. (&

Supp. V) 2000e et seq. 1,8

42 U.S.C. 2000e5 1

42 U.S.C. (& Supp. V) 2000e-16 ------------------------ 2

Fed. R. Civ. P. 62(a) -----------passi,m

Miscellaneous:

9 C. Wright & A. Millerr, Federal, Pratbice aN Pro-
ceihne (19?1) - 10,16

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0n lhp Fuprunr gmnJ uf lhp lflnitril Ftutrs
Ocrosun Trnu, 1984

No. 83-1623

Pryllts A. ANonnsoN, PETTTIoNEB

a.

Crrv or Bpssruon Crrv

ON WRIT OF CERTIORARI TO THE UNITED STATES
COART OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AND TIIE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICI CURIAE SUPPORTING PETITIONEB

INTEREST OF TIIE UNITED STATES

Title VII of the Civil Rights Aet of 1964, 42 U.S.C.
(& Supp. V) 2000e et seq., prohibits, inter alia, dis-
crimination on the basis of sex in employrnent. The
Equal Employment Opportunity Commission and the
Attorney General are responsible for the enforncement
of federal emploSrment discrimination statutes, in-
cluding Title VII. Title VII is also enforced through
private lauauits, 42 U.S.C. 2000e5, u,hich provide an
imporfant complement to federal enforcement effods.
Sere, e.9., Akrand,er v. Gardner-Deywqr Co., 415 U.S.
36, 45 (L974). The federal government therefore has

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2

an interest in the development and even-handed ap-
plication of proper standards to govern Title VII
actions. In addition, sinee the government as an em-
ployer is subjeet to private suit under Title yII, 42
U.S.C. (& Supp. V) 2000e16, the decision in this
case may affect the federal government as a Title VII
defendant.

STATEMENT

1. In early 1975, respondent, the City of Bessemer
City, North Carolina, began the process of filling the
position of Recreation Director for the City. The
mayor appointed a seleetion committee consisting of
four men and one woman. Leona "Auddie" Boone,
the female member of the committee, was appointed
chairperson by virtue of her position as a member of
the City Council. Although the City did not establish
any formal educational or experience requirements
for the position, the members of the selection clom-

mittee testified that they vi'ere seeking the person
who had the best background to perform the duties
of the position. The committee members also agreed
informally that the Recreation Director should reside
in the City. The position was advertised in the local
newspaper and by word+f-mouth. Pet. App. 9a, 36a-
B7a; J.A.68a-69a, 78a, 106a-108a, 109a, 116a-117a,
L40a-l4La, L44a-145a, L49a, 153a, 157a-160a, 164a,
165a-167a.

Eight persons, including petitioner, applied for the
position of Recreation Direetor. Petitioner u,as the
only female applicant. After intcrvierring all the
candidates, the selection committee concluded that
three applicants-Burt Broadway, Donald Kincaid,
and petitioner-were qualified for the position. All
of the commitbee member^s agreed that Broadway,
who was then Recreation Director of Cramerton,



I

North Camlina, was the most qualified. Ilowever,

Broadway indicatcd during his intenriew that he

would not relocate to Bessemer City. The committee

then voted 4-1 to offer the position to Kineaid' The

four male cnmmittee members voted for Kineaid,
while Boone, the female member, voted in favor of
petitioner. Pet. App. 9a-11a, L}a-t4la, 38a-39a; J'A'
tbZa-fOga, 119a-120a, 132a-133a, 139a-141a, 144a,

147a, 153a, 157a, 163a-164a.
Boone subsequently informed petitioner that she

believed petitioner was more qualified for the position

of Recreation Director than Kincaid and that Kincaid
was hired because he was a man. Boone told peti-

tioner that the selection committee did not consider

all the qualifieations of the candidates and that only
petitioner had been asked by the committee about her
aUitity to nrcrk at night. Pet. App. t(a-Lla; J.A.
82a, 96a, t?La.

2:. Petitioner filed a charge of discrimination with
the Equal Employnent Opportunity Commission.
The Commission determined that there was reason-

able cause to believe that respondent had failed to
hire petitioner beeause of her sex and issued a notice
of right to sue to petitioner. Pet. App. 15a; J.A. 63a'

64a-67a,82a-83a. Petitioner then brought this suit
in the United States Distriet Court for the 'Western

District of North Carolina, alleg"ing that respondent
had diseriminated against her on the basis of sex, in
violation of Title VII of the Civil Rights Act of 1964'
42 U.S.C. (& Supp. V) 2000e et seq. Following a

bench trial, the district eourt eoncluded that respond-
ent had violated Title VII by intentionally diserimi-
nating against petitioner because of her sex when it
failed to hire her for the position of Recreation
Direetor (Pet. App. La-BZa). The district court en-



4

joined respondent frrom discriminating on the basis

9f se* in employment and awarded petitioner $B0,Bg?
in back pay plus interest (id,. at BBa-B4a)

The district eourt based its finding of intentional
discrimination on three subsidiary findings of fact.
First, the court found that only petitloner was
seriously questioned by eommittee members about
whether she knew the position of Recreation Direetor
involved working at night and travel to meet with
other recreation directors and about her husband,s
reaction to her application for the job (pet. App.
l?a-lla). Seeond, the oourt found that petitioner
was better qualified than Kincaid to perform the
broad range of duties required of a Recreation Di-
twtor and that the subjective decisionmaking process
allowed committee members to make a selection for
their own reasons (id. at l5a-lga).

Finally, the district eourt found that the male
selection crmmittee member"s were biased toward se
lecting a male for the position of Recreation Direc-
tor, partieularly someone versed in the traditionally
maledominated spofts. The court inferred bias frum
evidenee that (1) only petitioner was seriously ques-
tioned about after-hours work and her spouse;s 

"e".-tion to the job; (Z) one male eommiltee member
solicited applieations from qualified men but not
from two women whom he eonsidered qualified; ,
(3) another male eommittee member testified that
it would be "real hard" for,,a lady" to be the Reerea-
tion Director and that he thought his wife should
be at home at night (J.A. lbga, iOfa) ; (4) the male

l That committee mermber testified that he believed the two
women r*'ould not ha'e ben interested in the position of Rec-
reation Director becsuse it paid less than what he a.ssumed they
already were earaing in their teaching positions. See J.A.
148a-149a-



5

oommittee members testified that Kincaid was more
qualified than petitioner because he had , *ri"gl aogree in health and physical education, aitfrough
,Brgadwaq (the eommittee,s first ehoice fo" A* jo[l
had no oollege degree; (5) two of the mar-J ***itt""
meg.bers emphasizS F. importance of *gr"Ling
traditionally mare-dominated rpo"tr reagues 

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aianot mention the other activities for wi'ich tt"-n 
"-reation Director ygrlq}" responsibt.; 

"nJ t6i-ti,.""was no substantiar difference in the overai 
"*"""-lion-al p.ograms presented by petitioner and- Kirrcaiaduring their interviews. pei. App. Zla _28a.

3. The court of appeal, 
".rr.-r{.d 

(pA App. BEa_65a). It held that eLrtain of the airtrici-clr"t,,
subsidiary findings of fact, as well as its ultimatefinding of intentionar diserimination, *."" 

"1"""tyerroneous. The court of appeals weighed tf,. 
"0u."_tion. and_ experielce of pelitioner and Kincaid and

coneluded that, while petitioner was quarified for theposition of Recreation Director, "Kineaid,s overatttraining was superior to [petitione",*1 t"airing ,"a
experience for the demand[i] ot trris 5ot;7ii-."it sq^(footnote omitted) ). The court of appearJ ,r*-rrbathat there was no evidence to support the distrietegurt's findings that only petitioner was questioned
about after-hours_ work,- travel, and her iirrUrra,.reaction to the iob. Although it acknowl*O*J-lir"t
there was cunflicting -dd;;;- ", this point, theegurt-of appeats found that Kineaid had i;;lr;r_
tioned in a similar manner. pet. App. SOr-SgJ."
^ 

Following its conelusion that the'airt"i"t 
-.*.t,,

findings of fact w_er_e clearly erroneous with respeetto petitioner's and Kincaidis quarificalio".-'"nJ'tr,.
questions posed to the two appticants, the court ofappeals held that the remaining eviden. 

"ai.o o, uvthe district eourt was insufrcient to support iL ind-



. t(.

6

ing that the male cummittee members were biased

toiard selecting a male as Becreation Director. Pet.

epp. 60a-62a. tt e court of appeals noted that the

aisitict court had inferred bias from the facts that
one of the male committee members had failed to

solicit applieations for the position from two admit-

teclly qrrtin"a females and that another male com-

mitiee'member testified that he believed it would be

"real hard" for a woman to serve as Recreation Di-
rector. The court of appeals concluded that any in-
ferencrcs of bias from this evidencrc were dispelled by

the fact that all of the male eommittee members were

married to women who had worked and were a@us-

tomed to being away from home during evening

hours. Iit. at 61a n.5. The ourt of appeals also

rejected the district court's emphasis on the fact that
tnl niring decision had been made on the basis of
subjective-, unartieulated eriteria, since "[qh9 use

of subjective criteria to hire employees is not t * '
illegal per se" (id,. at 61a).

fhe court of appeals concluded by asserting that
its close scrutiny of the rectrd in this case was
justified by the manner in which the district eourt
prepared its nndings of fact and conclusions of law'
The court of appeals expressed its disapproval of the

district eourt's practiee of itself preparing a memo-

randum decision and then requesting that the pre-

vailing party submit more detailed proposed findings
and conclusions, followed by an opportunity for re-

sponse by the opposing parby. The cturt of appeals

referred-to earlier decisions, in which it had stated

that a district eourt should request proposed findings
of faet and conclusions of law from both parties be'

fore it reaches a judgnrent and should accept what'
ever it deems appropriate from each submission'
Pet. App. 63a-65a.

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OFSUMMABY ABGT,MENT

I.A. Fed. R. Civ. P.52(a) provides that "[f]ind-
ings of fact shall not be set aside [on appeall unless
clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the eredibil-
ity of the witnesses." Under the "clearly erroneous"
standard an appellate court should not weigh the
evidence de novo and supplant the district eourt's
determinations with its own. The "clearly erroneous,,
standard applies to appellate review of the district
court's finding of discriminatory intent in this ease.
fu PullmnruStnrldndv. Swint,456 U.S. Z7B (L}BZ).

In our view, the oourt of appeals misapplied the
Rule 52(a) standard of review in this case. In re
versing the distriet crurt's finding of discriminatory
intent, the court of appeals appears to have engaged
in a de novo review of the evidence. In the course of
doing so, the court of appeals disrqgarded significant
evidence that supports the district eourt's findings
and second-guessed the eredibility determinations of
the distriet ourt in eonnection with eonflicting
testimony.

B. The court of appeals misapplied the ,,clearly
erroneous" standard of Rule 52(a) in reversing the
district court's finding that petitioner $'as better
qualified to perform the duties of Recreation Direetor
than Donald Kincaid, who was hired for the position.
The court of appeals disregarded record evidence of
petitioner's relevant work experience and skills; in
addition, it made no referenee to Kincaid,s laek of
experience in eertain areas. It was the district court,s
responsibility to weigh all the evidence; and its find-
ing that petitioner was mone qualified than Kincaid
lras amply supported by the rccord. The eourt of



8

appeals erred in oonducting a de novo review of the
evidence on this question.

C. The court of appeals also misapplied RuIe
52(a) when it reversed the distriet court's finding
that petitioner \Mas the only applieant rvho was seri-
ously questioned by the selection committee about
aftcr-hours work, travel, and her spouse's reaction
to her application for the position of Recreation
Director. There was cunflicting testimony about what
questions had been asked of the various applicants.
The district crurt, after considering the credibility of
the witnesses, rresolved the cunflicts in favor of peti-
tioner. The district court, unlike the court of appeals,
heard the testimony of the witnesses about the ques-
tioning of applicants and was able to evaluate it in
light of factors such as demeanor and tone of voice.
The court of appeals' failure to grve due regard to
the district court's credibility determinations on this
subject is clearly contrary to the command of Rule
52(a).

II. The court of appeals erred in concluding that
inferencrs of bias from record evidence were dispelled
by the fact that the male selection commitbee mem-
bers were married to u,omen who had been employed
and were accustomed to being away from home in the
evenings. There vi,as significant evidence that the
male committee members were biased in favor of
selecting a male as Recreation Director. For exam-
ple, one male committee member acknowledged that
he had solicited applications from qualified men, but
not from qualified women, while another testified
that he believed it would be "real hard" for a "lady"
to serve as Recreation Director and that he would
not want his rryife to hold the job. The inference of
bias the district cpurt drew from this and other evi-



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dence in the neeord is not rebutted by the mere faet
that the wives of the male cpmmittee members had
been employed. As this Court reeognized in C*sta,
npda v. Partida, 430 U.S. 482, 499-500 (19??), an
individual's personal cirrcumstances will not neces-
sarily prevent him from harboring discriminatory
intent in other contexts. The court of appeals there.
fore erred in relying on the personal eircumstances
of the male committee members as the basis for re-
jecting the district court's finding that those members
were biased in favor of seleeting a male as Recrea-
tion Director.

ARGUMEI{T

I. THE COURT OF APPEALS MISAPPLIED TIIE
STANDARD OF REVIEW PRESCRIBED BY FED.
R. CIV. P. 52(a) IN REYERSING THE DISTRICT
COURPS FINDINGS OF FACT IN TIIIS CASE

A. Fed. R. Civ. P.52(a) provides that "[f]indings
of fact shall not be set aside [on appeall unless
elearly erroneous, and due regard shall be given to the
opportunity of the trial oourt to judge of the credibil-
ity of the v'itnesses." A finding of fact is "clearly
erroneous" when the reviewing court, on the basis of
all the evidence, is left with the definite and firm
conviction that an error has been made. Inwood
Laborafurtes, hw. v. Iues Labwatori.es, lrw.,456 U.S.
844, 855 (1982) ; United States y. Untted States
Gypsum Co., 333 U.S. 364, 395 (1948). It is well
settled, however, that an appellate court should not
consider and weigh evidence de novo and supplant
the district court's judgment with its ornrr. Irutsood
Laboratortes, Itw., 456 U.S. at 856; Zenith Radi,o
Corp. v. Hazeltine Researclr, Irrc.,3gb U.S. 100, 128
(1969). "The mere fact that on the same evidence

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the appeilat€ court might have reached a different
result does not justify it in setting the findings aside.

It may regard a finding as clearly erroneous only if
the finding is without adequate evidentiary support
or induced by an erroneous view of the law." I C.

Wright & A Miller, Fed,eral Pro,ctice and, Procedtte
$2585, at 732-734 (19?1) (footnotes omitted). See

also tlni.ted Stntes v. Nq,tiortnL Associntbn ol Real
Estate Boards,33g U.S. 485,495-496 (1950).

This case turas on the question whether respond-
en! through its selection eommittee, acted with dis-
eriminatory intent when it hired a male applicant,
rather than petitioner, for the position of Recreation
Director. Tn Pu,llmnrustanlnrd, v. Swint, 456 U.S.
273 (1982), this Court held that the existence of
discriminatory intent is an issue of fact to be deter-
mined by the trial court. "Thus, a eourt of appeals
may only neverse a district coult's finding on dis-
criminatory intent if it concludes that the finding is
clearly erroneous under Rule 52(a)." 456 U.S. at
290.

Here the district cpurt found as a matter of faet
that respondent had acted rryith discriminatory intent
when it failed to hire petitioner. The court of ap-
peals correctly recognized (Pet. App. 55a-56a, 59a)
that it should apply the "clearly errroneous" standard
of Rule 52(a) in revierring the district cout't's find-
ings of fact. But in our view the court of appeals
misapplied the Rule 52 (a) standard by engaging in
a de novo review of t^he record and making an in-
dependent determination of whether respondent acted
with discriminatory intent.u In the course of its re'

2 An appellate court's r.ecitation of the correct etandard of
revien' is not deisive of the question whether the court
actually followed that etandard. Instead, it is necessary to



11

view, the court of appeals disregarded much of the
reeord evidence that supports the district eourt,s
fi-ndings; moreover, the court of appeals gave insuffi-
cient deferenee to the credibility determinations made
by the district court, in contravention of the express
command of Rule 52(a).

B. The district eourt found exprcssly that peti-
tioner was better qualified to perform- the ,,b-rload

range of duties required of a Recreation Direetor,,
(Pet. App. 26a) than Donald Kincaid, the applicant
who was hired. In making that finding, the district
court considered the backgrounds of petitioner and
Kincaid and the testimony of the cummittee members
that they were looking for the person with the best
bT-kgryuld to perform the duties of the position,
which included development of a well rounded reere-
ati_onal program for all ages and both sexes (see J.A.
108a, 160a, L64a; and see id,. at 56a, 70a-7La).

There is substantial evidence in the record to sup-
port the district court's finding that petitioner was
better qualified for the position of Ree-reation Diree-
tor than Kincaid. Petitioner was a college graduate
with a B.S. degree in elementary education. Stre nad
also earned an associate degree and had taken addi-
tional co:urses in guidanee, logic, government, history,
3nd {ecoupag€, as well as a @urse in public speak-
ing. Petitioner had more than 20 years of wort ex_
perience. She had been a substitute teacher in the
publie schools for ten years and had taught a third
grade class during lgTg-1974. petition"ihad taken
course-s in supervising physical edueation activities,

examine the opinion and the entire record in order to deter-
mine whether the appellate court improperly engaged in an
independent re'iew of the record. w pultman-sianitarit v.
Swint, 456 U.S. at 290-29L.



t2

had taught her own physical edueation elasses, had
herself played softball, basketball, and soccer, and
had a basic knowledge of all sports. In addition, she
had taught art and musie to her students. During
1956 and 1957 petitioner had worked in the recrea-
tion department of Broughton Hospital, where she di-
rected ball games, dances, and erafts for patients and
supervised some employees in connection with these
activities. She had also worked as a receptionist/
bookkeeper and as a sales clerk in a department
store. Petitioner had gained experience in public
speaking in the clurse of her work in civic aetivities,
and she had some experienee with budgeting, plan-
ning activities, and recruiting people to work on
projects. Pet. App. 16a-18a; J.A. 58a-60a, 86a-91a,
92a-93a, 98a-99a, 100a, 103a-104a.

Kincaid had earned his B.S. degree in health and
physical education approximately ten months before
he applied for the position of Recreation Director.
During college he had completed student teaching.
After graduation, Kincaid had worked in the finance
department of a credit bureau and had sold insur-
ance for tw-o months. He had played various sports
during high school and college and had helped or-
ganize little league basketball games in Bessemer
City. Pet. App. 18a-19a ; J.A. 62a.

The couri of appeals concluded, contrary to the
district court's finding, that Kineaid was better quali-
fied for the po,sition of Recreation Director (Pet.
App. 49a-54a). Although the City had not formally
articulated requirements for the position, the court
of appeals found, on the basis of the selection com-
mittee's initial decision that Burt Broadway u'as the
best qualified applieant, that the eommittee members

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13

were particularly coneerned about athletics.' The
eourt of appeals concluded that Kincaid was better
qualified for the position because he had more formal
training and life experienc€s in athletics than peti-
tioner. The court made no reference to petitioner's
experience, and Kincaid's lack of experience, in other
areas, such as arts and crafts, music, and dance.
The eourt of appeals eorreetly noted (id,. at 53a-54a)
that petitioner's experienee in supervision, budgeting,
and recreation was limited in various respects, but
it made no reference to the fact that Kineaid had
no experienee at all in these areas. The eourt of
appeals also disregarded the testimony of cpmmittee
chairperson Boone that petitioner was the best all-
around candidate for the job.'

It is elear from this summary that the court of
appeals engaged in a de novo review of the evidence
relating to the relative qualifications of the candi-

s We note, however, that while all four male committee mem-
bers testified that Broadway wa.s their first choice for Recre
ation Director, none refemed to his e:rperience with athletics
as tlre nea-son for preferring him' See J.A l4}a-747a" l4/.u
l4t a-748a, 1 53a, 154a-755a, 157 u 1 59a, 1 63a-1 64a, 1654 170a.

In his resume Broadway noted specifically that he wa-s "c&p-
able of organizing prograrns tailo,red to Bessemer City not
only in athletics but other proErrarns, also" (id. at 734).

{ As petitioner notes (Pet 19-21), the court of appeals
quoted only a part of the transcript of B@ne's testimony
rnhen it suggested (PeL App. 54p.55a n.4) that Boone ac-

knowledged that petitioner wa.s not more qualified than Kin-
caid in particular respects. A reading of the entire line of
questioning (J.A. 109a, 11?a) euggests not that Boone believed
Kincaid was a.s qualified a.s, or more qualified than, petitioner
in each specific area mentioned, but that Boone *'as resisting
the attempt of the cro$s4x&rniner to get her to modify her
expressed judgrneort that petitioner was the best all-around
candidate.



Eil$Efj

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datcs. In doing so, the court of appeals ignored eon-

siderable .uid.rc.'th'1 suppotts the district court's

ffiil'th"i-p.titio"er was more qualffied f91 the

p.Jlit-" "t liecreation Direetor than Kincaid' In

addition, tt e cou* of appeals appears to have substi-

t"t"J iti ;"Agrnent for- that o{ the district eourt'

ffi;.dr"ly ii'..'.f"'ting the eviden* of what quali-
'ficatiorrs a Recreation Direetor was expeeted P P9-
sess.Theeourtot-'ppt'tswascorreetinconcluding
that some pr**"oiit" r""ord support-respondent's

claim that it cf,ot" Kineaid because of his qualifica-

tions for the position' Ilowever' there was also sub

stantial evidence to tuppo't petitioner's version of

the facts. It was ttre dis[rict eourt's iesponsibility to

;fi;ii the evitlence and to reach a finding coneern-

i;;iil;t1"tiu.' q"urintations .of the applicants' The

."iJ ,t appeals'' de novo review of the evidence ex-

ceeds tf,. ,r*o***"pt ol t!9. "clearly erroneous"

standard Preseribed bY Rule SZ(a\'

C. The distd;;;#"t fo"td that onlv petitioner

"; 
questionA't.tio"tv by qe selection eommittee

about after-hou^ *ott, travel, and her spo.ttse's re-

action to her apptieation for the job. (P-et' App' 12a-

13a). The testiin""' i' the recnrd includes varytng

aecounts of tt,e qu.ulion' that were addressed to peti-

tioner and the iif't' applicants' There is some evi-

;;;;; (see J.A. lii^, raoa) tha.t during Kincaid's in-

terview Boone h;a-;*""ittd """d y-our new. bride

won't mind." tt,. aitttict eourt stated expressly (id'

ii iz"-tga) thai it had ,,car.efully considered,the eon-

flictingtestimony-***and***lhecredibilityofthe
different rn'itnesJes" in concluding that only netlltioner

was asked ,.[*t questions about night wqrk or

her spous.', *r.iion to her application for the job

and that n*r.C""-ark to Kineaid was meant to be



15

facetious and the rcsult of her annoyane that only
petitioner was asked sueh questions. Although it ae-

knowledged that there was conflicting testimony on

the subject, the court of appeals nevertheless con-
eluded that there was no record support for the
district court's chara.cterization of Boone's remark
and that petitioner and Kincaid in fact had been

asked substantially similar questions (id. at 56a-
59a).

Rule 52(a) requires that an appellate eourt give
due regard to the credibility determinations of the
trial court. An appellate court "must be especially
reluctant to set aside a finding based on the trial
judge's evaluation of eonflieting oral testimony, and
will do so only under most unusual circumstances."
9 C. Wright & A. Miller, ffiWa, $ 2586, at 737 (foot-
notes omitted). See also, e.g., Graner Mtg. Co. v.

Lindp Co., 336 U.S. 27L, 275 (1949) ; Daais v.

Mur?W,587 F.zd 362, 364 (?th Cir. 1978). Here
there are no unusual eirreumstances that would war-
rant setting aside the district court's finding of faet.

It is tme that two of the male committee members
testified in a manner that supporfed rrespondent's
claim that petitioner was not singled out for speeial
questioning. See J.A. l45a-L46a, 151a, 157a-158a.
However, that testimony was neither specific nor en-
tirely oonsistent. Kincaid himself tcstified that he

eommented about night work during his intenriew,
but he declined to agree that he had been questioned
on that subject by any committee member. See J.A.
129a. Boone testified that the questions about night
vrork and reactions of spouses were not asked of any-
one but petitioner and characterrzed her own state
ment to Kineaid as a eomment rather than a ques-

tion (J.A. 108a, l20a-121a). The district court, un-



16

like the court of appeals, was present during Boone's
testimony about her statement during Kincaid's in-
terview and may have interpretd her tone of voice
or mannerisms as indicating that she had not asked
him a serious question.o Cf. United States v. Oregan
State Medinol, Society, 343 U.S. 326, 339 (1952)
(quoting Boyd v. Boyd,252 N.Y. 422, 429, 169 N.E.
632, 634 (1930)). It was the district court's re
sponsibility to resolve the conflicting testimony con-
cerning the questions addressed to petitioner and
Kineaid. Under Rule 52(a), the court of appeals
should not have second-guessed that resolution.s

6 The distriet court referred specifically to the fact that it
had heard live testimony concerning the questions a"sked of
the applicants. See Pet. App. 13a

The court of appeals stated that since night work and

travel were part of the duties of the Recreation Director, "any
question on these subjects to any of the candidates were

[sic] certainly job'related" (Pet. App. 59a). But an infer-
ence of discrimination may be creted when jobrelated ques-

tions are not addressed to all candidates, especially when the
questions reflect en assumption that family responsibilities
might interfere with a female applicant's ability to perform
a job. See, e.9., Coble v. Hot Springs School Distri'ct No. 6,

682 F.zd 727,7?r1,726-727 (8th Cir. 1982) ; Wei,ner v. Countv
of Oaktonil., 14 Fair Empl. Prac. Cas. (BNA) 380 (E.D' Mich.
1e76).

6 The court of appeals stated (PeL App. 63a45a) that its
close scrutiny of the record in this ca-se was justified by the
manner in which the district eourt prepared its opinion. See

page 6, supra. We do not believe such actions by a district
court n'ould warrant a court of appeals' undertaking to
ma^ke de novo factual determinations in disregard of the def-
erence a court of appeals should give to findings of fact and

credibility determinations under Rule 52(a). Cf. United,

States v. El Paso Natural Gas Co.,376 U.S. 651, 656 (1964) ;

tlni,ted States \. Crescent Amusement Co-, 38 U.S. 173, 184-

..,8*

..3r.iii

:a.*,.



t7

II. THE COUBT OF APPEAI^S ERRED IN CONCLUD.
ING THAT THE FACT TTIAT MALE SELECTION
COMMIITEE MEMBERS WERE MARRIED TO
WOMEN WIIO IIAD BEEN EMPLOYED DIS.
PELLED INFERENCES FROM OTHEB EVIDENCE
IN TIIE RECORD THAT THOSE MEMBERS WERE
BIASED IN FAVOR OF HIRING A MALE FOR THE
POSITION OF RECREATION DIBECTOR

After finding elearly erroneous the distriet court,s
findings 

-that petitioner was better qualified than
Kincaid for the position of Recreation Dire.t"" ,"0

,, -;j;.>t..;
'r', '- *.1?..lii'1 '::'.,.,--i .:
.- i -r'. :'t. ;'

r85 (1944). In any even! in the circumstances of this caseit is evident ttrat the findings and concrusions of the district
court were the product of its own independent judgment

Ttre district court initialry issued & memoria,dum of deci-
sion that described in some detail the evidence on which fthad
flid. See Peit App. la-ba- Ttrat memorandum included the
findings that petitioner was better qualified than Kincaid and
that only petitioner wa.s a-sked qrertio* "which impried sub.
stantial doubt that a worran ought to have a job ifri"f, "*quired night work and which suggested ttrat a *o*r, ought
to be at home instead of working,, (pet. App. 4a). firus, the
district court both deided the ultimate isgues in the case and
made the critical findings of subsidiary facts before it r*quested submission of proposed findings of faet and concru-
eions of law.

Following unsuccessful efforts at setflemenf petitionerrs
cou_nsel filed proposed findings of fact and concrusiorx of law,
and 

'espondent's 
submitted a detailed response. see J.a 11a-

33a 36a-47a Ttre findings and concrusions urtimaterv i"srea
by the district court differ in a number of respects t*o, p"ti-
tioney's propeals, apparenfly as a result of the d.istrict 

"ou"t,,own rewording and its incorporation of comments submitted
by respondenl .8.g., compare J.A l3a with pet App. 11a;
compare J.A. 13a,I4a with pet. App. I2a_l3a; complre J.A.l7a-l9a with Pet. App. 16a-19a; compare J.A. ZZa,_Zaa witn
Pet. App. 2la-23u And contrast J.A. 1?a (1116(a)) vdth
J.A. 40a and Pe,t" App. 16a t8a; contrast J.A iZ. i,iliSfUllwi& J.A.45aand Pet App. l?a 1ga-19a

.; a;+.Ii,i+-"!;' - :-;,'. -

.,
l'rt[
$h



18

that only petitioner was seriously questioned about

night *o"k, travel, and her spouse's r-eaction to the

5o6, the eourt of appeals held..(Pet' App. 60a-62a)

lnrt tt. remaining evidence relied on by the district
court was insufficient to support its finding that the

male selection c:ommittce members were biased in
favor of selecting a male for the job' The eourt of

appeals noted that there was evidence that one male

committee member solicited applications from quali-

fied males but not from qualified females and that
another male committee member had testified that
he preferred Kincaid over petitioner for the job in
part te"ause it would be "real hard" for a woman

t sen/e as Reereation Director (see J'A' 158a,

161a).' The courb of appeals concluded, howevcr,

that this direct evidence of discrimination was "in-
adequate to support a finding of bias, and is dispelled

by ottrer po*ions of the record" (Pet' App' 61a

n.S;." The court stated (ibid,.):

For example, there is nothing to *h.o* the male

eommittrs members had a bias against working
*o*.". AII four t€stified that their wives had

worked and were accustomed to being away
from home during evening hours. The wife of
orr" .o**ittee member had worked a night shift

7 The court of appeals failed to mention certain other evi-

dence relied on by the district court in support of its finding

that the male committee members were biased in favor of

choosing a male for the iob' See pages 4'5, supra'

s This court need not decide whether this evidence, stand-

ingalonqwouldhavebeenadequatetosupportthedistrict
*i.t'" ultimate finding of discrimination, sincg a"s we have

shown in point I,nupra, the court of appeals erred in setting

aside additional factual findings on which the district court'e

ultimate finding was premised. Se also uote'1, supra'

ar-



.'+'.
-,.;i

t:-':\" - '
' '-l:ir ' i

.{--"r -r5-;.r'*ffi
'* --'*U{-!'T:'

r! -1(< L

+ t..\-i

. . .:J.l'.r i;

19

{or te1 yearc and the wife of another ha.d per_
formed night workffi as a Registered Nursi.

The cuurt of appeals disregarded certain rccord
evidenee in its description of the perconal eircum_
stances of the male eommittee memberc.o But, at all
events, the court of appeals rclied on a presumption
that is flawed-f .e., the presumption that a *"r'*r"-
ried to a woman who is employed will not discriminate
against women seeking employment. This court heldin C*stonpda v. partida., +BO U.S. 4gZ, 4gg_S00
(L977), that evidence that the majority of countyjury eommissioners were Mexiean 

-Americans 
was

insufficient to rebut a prima facie case of discrimina-
tion against Mexican Americans in the grand jury
sglrytion process. The Court notcd that;,[b]ecause
of the many facets of human motivation, it-would be
unwise to prresume as a matter of law that human
beings of one definable group will not discriminate
against other members of their gmup.', kt. at 4gg.
Likewise, in this case it cannot be assumed that the
perconal circumstances of the male cpmmittee mem_
bep -would prevent them fircm harboring any dis-
criminatory intent in other eontexts. thl court ot
appeals therefore erred in coneluding that the district
eourt was r=quired to find that the clear and direct

o For e:rample the court of appears did not mmtion the tes-
timony of one of ttre male committee memberg expressly re
lied on by the dishict court (pet. App. Zta), that fre Ue
lieved that his "wife should be at home at night,, (J.A. l61a).
fire same committee member acknowledg€d that he would not
have wanted his wife to have the position of Recreation Di-retor (ibid.). The court of appeals also failed to note that
only one committe mernbet's wife was working at the time
crf trial, while hro of the other committee members, wives had
not worked for a number of years (id. at 14fu_l4la,,l53a_
f54s" 169a, 167a).



20

evidenee of discriminatory intent on the part of the
male committee members was rebutted by the faet
that their wives had been employed-

CONCLUSION

The judgment of the court of appeals should be

reversied.

Respectfully submitted.

Rp1 E. T.rm

Solici,tor General

LAwnsNcE G. Wu,ucn
Deputu Soli.citor Gmeral

C^morYu F. ConwrN
AssiEtant to the Soli,citor

GeneroJ

JonNNv J. Buu,m
G enpr al C ouns el ( A cting )

Puu,rp B. Sruorm
A s s o ci.ate G eneral C ouw el

VrwcsNr Br,lcrwoou
A s sis t ant G ett er al C ott rx el

InoNsHu,r
Attorneg

E qrnl E m,plag ment OPP ortuni.tg
Commission

Aucust 19M

* r, r. tortrr:3n ttttttla o?rlcli leea 
'zlezt 

too29