Townsend v. Nassau County Medical Center Brief for Respondents in Opposition to Petition for Writ of Certiorari

    Bnpnmt (Emtrt of Mntteft States
O ctobeb T eem , 1977 

No. 77-718

I n  t h e

M abgaeet T ow nsend ,
Petitioner,

—against—

N assau C ou nty  M edical C enter , et al.,

Respondents.

BRIEF FOR RESPONDENTS IN OPPOSITION TO PETITION 
FOR A WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE SECOND CIRCUIT

W illiam  Gttelm an

County Attorney of Nassau County
Attorney for Respondents
Nassau County Executive Building
Mineola, New York 11501
(516) 535-4406

November 30, 1977

N atale C. T edone

Senior Deputy County Attorney

W illiam  S. N oeden

Deputy County Attorney

Of Counsel



TABLE OF CONTENTS

Opinions B elow .................................................................... 1

Jurisdiction ..........................................   2

Questions Presented ...... .... ..... ............ -......... -................  2

Statutes and Regulations Involved ............ .................   3

Statement ........................... ..............................—- ......... ....  3

A rgu m en t—

Petitioner Failed to Make a Prima Facie Case 
of Racial Discrimination and the Complaint Was 
Properly Dismissed ..................-..... -.......... ..... ...... . 6

I. The Decision Below is Clearly Correct ............... 9

II. There Is No Conflict of Decision ........... ........... . 16

III. There Is No Substantial Question Affecting the
Enforcement of a Pervasive Federal Law _____ 19

Conclusion ..........................................    20

Appendix—

Milson v. Leonard, #74 C 904 (E.D.N.Y., Dooling,
./.. 1975) _______ ________ ____ _______ _______ ____ 1A

Citations
Cases:

Berger v. Board of Psychologist Examiners, 521 F. 2d
1056 (D.C. Cir. 1975) ........ ..................... ....... ............ 12,13

Bishop v. Wood, 426 U.S. 341, 48 L. Ed. 2d 684 (1976) 13

PAGE



11

Dothard v. Ratvlinson, 53 L. Ed. 2d 786, 97 S. Ct. 2720 
(1977) ..... .......................... ...................... 2,6,7,16,17,18,19

Equal Employment Opportunity Commission v. Local 
638, 532 F. 2d 821 (2d Cir. 1976) ................................  15

Gallagher v. Codd, 407 Fed. Supp. 956 (S.D.N.Y. 1976) 13
Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 

158, 91 S. Ct. 849 (1971) ................ ............... .............  11

Haroon v. Board of Education of City of New York,
411 Fed. Supp. 61 (E.D.N.Y 1976) .......... ....................  13

Hazelwood School District v. United States, 53 L. Ed.
2d 768 (1977) .............................................. ...................  7

Hodgson v. Greyhound Lines, Inc., 499 F. 2d 859 (7th 
Cir. 1974) ........................... ........ ............ ..................... . 11

Kirkland v. New York State Department of Correc­
tional Services, 520 F. 2d 420 (2d Cir. 1975) ......... 14,15

Koso v. Greene, 260 N.Y. 491 (1933) ............. ....... .........  13

McDonald v. Santa Fe Trail Transportation Co., 427 
U.S, 273, 49 L. Ed. 2d 493 (1976) ................ ....... ......  15

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 
L. Ed. 2d 668, 93 S. Ct. 1817 (1973) ..........................  11

Milson v. Leonard, ------  Fed. Supp. ------ , E.D.N.Y.
Docket No. 74C 904 (1975, Dooling, J.) ................. 14,15

National League of Cities v. Usery, 426 U.S. 833, 49 
L. Ed. 2d 245 (1976) ...... ................ ............... ...... . 13

Russell y . Hoclges, 470 F. 2d 212 (2d Cir. 1972) .........  13

Spurlock v. United Airlines, Inc., 475 F. 2d 216 (10th 
Cir. 1972)

PAGE

10



PAGE

iii

Teamsters v. United States, 52 L. Ed. 2d 396 (1977) .... 
Townsend v. NCMC,------ Fed. Supp.-------  (U.S.D.Ct.,

E. D.N.Y. #75 C 294 decided 12/8/75), remanded 538
F. 2d 314 (2d Cir. 1976),------ Fed. Supp.-------  (TJ.S.
D.Ct., E.D.N.Y. #75 C 294 decided 9/27/76, judg. 
confirmed), reversed 558 F. 2d 117 (2d Cir. 1977),
pet. for rehearing denied------  F. 2d ------  (2d Cir.
1977, 8/24/77) ......................................................9,16,17,

Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597
(1976) ............................... ................................................5,

Matter of Wirsberger v. Watson, 305 N.Y. 507 (1953)

Statutes and Rules Involved:

28 U.S. Code §1254(a) ................ ..... ................................

42 U.S. Code §2000e et seq...............................................5,

Rule 40, Fed. Rules of Appellate Procedure.................

29 C.F.R. 1607.5(c) (2) (iii) .............................................. 3,

New York State Civil Service Law §20, subd. 1 (Mc­
Kinney’s Consol. Laws of New York Anno.) ...........

New York State Civil Service Law §52, subd. 2 (Mc­
Kinney’s Consol. Laws of New York Anno.) ______

7

20

16
13

2

19

17

10

13

13



I n  t h e

IhtpmuF Qhmrt of tip? HttUrii States
O ctober T eem , 1977

No. 77-718

M argaret T ow nsend ,
Petitioner,

—against—

N assau C ou nty  M edical C enter , et al.,

Respondents.

BRIEF FOR RESPONDENTS IN OPPOSITION TO PETITION 
FOR A WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE SECOND CIRCUIT

Opinions Below

The opinion of the District Court, which is not reported, 
is set out in petitioner’s appendix, pp. la-18a. The order 
of the Court of Appeals vacating the District Court judg­
ment and remanding for reconsideration, is reported at 
538 P. 2d 314, and is set out in petitioner’s appendix, pp. 
19a-20a. The judgment of the District Court confirming 
its original judgment, which is not reported, is set out in 
petitioner’s appendix, pp. lla-22a. The opinion of the 
Court of Appeals, is reported at 558 F. 2d 117, and is set 
out in petitioner’s appendix, pp. 23a-34a. The order of the 
Court of Appeals denying rehearing, which is not yet re­
ported, is set out in petitioner’s appendix, pp. 35a-36a.



2

Jurisdiction

The jurisdiction of this Court is invoked pursuant to 
28 U.S. Code §1254(a).

Questions Presented

1. Whether petitioner made a prima facie case of dis­
crimination under Title V II of the Civil Rights Act 
of 1964 in light of this Court’s decision in Dothard v. 
Rawlinson, 97 S. Ct. 2720, 53 L. Ed. 2d 786?

2. Whether statistics relating only to the general pop­
ulation and not to the employment practices of re­
spondents is sufficient to raise a presumption of 
discrimination against a Bachelor of Science degree 
or an AS CP certification requirement in the sciences, 
as required for a Medical Technologist I position in 
the various medical laboratories of a large county 
hospital ?

3. Whether an analysis of the characteristics of actual 
applicants is appropriate considering the facts and 
circumstances of the instant case?

4. Whether petitioner was denied any “ substantive due 
process” right when she was unable to comply with 
a newly implemented requirement that a medical 
technologist I be required to have a Bachelor of 
Science degree, or an ASCP certification, in order 
to take a civil service examination notwithstanding 
the fact that she had been the beneficiary of a “grand­
father clause” , and had taken and failed said exam­
ination in 1971?



3

Statutes and Regulations Involved

The pertinent provision of the statute involved is set 
forth in the petition at p. 3 thereof. The pertinent provi­
sion of the regulation involved is 29 C.F.R. 1607.5(e)(2) 
(iii) at p. 10 of respondents’ brief in opposition to the 
petition for certiorari.

Statement

On June 22, 1965, petitioner Margaret Townsend (here­
inafter “ petitioner” ) commenced work at the Nassau 
County Medical Center (hereinafter “ NCMC” ) (A. 65).* 
Petitioner was appointed to the position of laboratory 
technologist I (A. 66-67). As a result of an evaluation 
survey conducted by the firm of Cresap, McCormick & 
Paget, petitioner was reclassified as a provisional medical 
technologist I in July 1967 (A. 68, 95). The aforementioned 
evaluation study, which commenced in 1965, was an under­
taking to reclassify all civil service positions within Nas­
sau County (A. 195-196, 200-201).

As a result of the Cresap, McCormick and Paget survey, 
the new job specifications and qualifications for the posi­
tion of medical technologist I became effective in July of 
1967 (A. 200). A  bachelor of science degree or certification 
by the American Society of Clinical Pathologists (herein­
after “ASCP” ), in addition to passing a competitive ex­
amination, became prerequisites for the position of med­
ical technologist I (A. 250). Although petitioner had 
neither a bachelor of science degree, nor ASCP certifica­
tion, by virtue of a “grandfather clause” she was permitted 
to take the competitive examination for the position of 
medical technologist I which was given on December 4,

Refers to page numbers in Joint Appendix.



4

1971 (A. 80). Had petitioner passed this examination, she 
would have been accorded permanent status as a medical 
technologist I, as was Mr. Allen Scimeca (A. 161-162), re­
gardless of whether or not she possessed any formal de­
grees or certification (A. 168). However, petitioner failed 
the examination and now seeks to be reinstated as a pro­
visional medical technologist I.

There is no doubt that petitioner performs her work in 
the blood bank laboratory in a competent manner. She is 
highly regarded by the supervisor of the blood bank labor­
atory, Mr. Frank Applewaite, who like petitioner, is black 
(A. 131, 142). Specifically, petitioner works as a phleboto- 
mist in the blood bank laboratory (A. 138). Of the fourteen 
persons who work in the blood bank laboratory under the 
supervision of Mr. Applewaite, only three or four persons 
have a medical technologist title (A. 133, 144). It appears 
that all the persons in the blood bank laboratory, except for 
the supervisor and assistant supervisor, perform the same 
duties, regardless of title (A. 133, 151, 174).

Even though she did not pass the examination in Decem­
ber, 1971, petitioner was permitted to continue in the posi­
tion of provisional medical technologist I because the eli­
gible list promulgated as a result of the 1971 examination 
did not contain a sufficient number of names to fill all the 
vacancies (A. 292).

A  second examination for medical technologist I was held 
in April, 1973 (A. 293). Petitioner’s application to take 
this examination was rejected by respondent Nassau 
County Civil Service Commission (hereinafter “ Commis­
sion” ) because she lacked the prerequisites (i.e. bachelor of 
science degree or ASCP certification) for the position (A. 
82). Petitioner was discharged on December 31, 1973 with 
three other provisional medical technologists, all of whom



5

were white (A. 34), as a result of the promulgation of a 
medical technologist eligible list based upon the 1973 exam­
ination (A. 293). Within three months petitioner was re­
hired by NOMC in March 1974 as a laboratory technician 
II, a lower graded classification than medical technologist 
I (A. 86).

The position of medical technologist I is utilized in all 
laboratories within NCMC, and is not limited to the blood 
bank laboratory (A. 148, 350). The job specification for 
medical technologist I, which came into being as a result 
of the Cresap, McCormick & Paget survey, was intended by 
those taking part in the survey to encompass duties in each 
and every laboratory within NCMC (A. 222).

Petitioner brought this action pursuant to 42 U.S.C. 
20Q0e et seq. by summons and complaint dated February 
25, 1975 (A. 5). Petitioner’s motion for a preliminary in­
junction was denied by order dated May 9,1975 (A. 2). By 
decision and order dated December 8,1975 (A. 289-308), the 
District Court found that the prerequisites for the position 
of medical technologist I (i.e. bachelor of science degree 
or ASCP certification), while they do not operate to dis­
criminate against blacks generally have operated to dis­
criminate against petitioner solely because of her race in 
violation of 42 U.S.C. 2000e et seq.

Respondents appealed to the United States Court of Ap­
peals for the Second Circuit from the order dated Decem­
ber 8, 1975 and a judgment dated February 26, 1976 (A. 
331-332) of the District Court. By order dated June 21, 
1976 (A. 427), the United States Court of Appeals, Second 
Circuit, vacated the judgment of the District Court and 
remanded for further hearing in light of Washington v. 
Davis, 426 U.S. 229, 48 L. Ed. 597 (1976). On remand, the 
District Court wholly failed to enunciate either verbally or 
otherwise, its reasons for confirming its original order



6

(A. 331) and subsequent judgment (A. 433-440). A  judg­
ment was made on September 27, 1976 (A. 441) adverse to 
respondents. Respondents served and filed a notice of ap­
peal (A. 443) to the United States Court of Appeals for 
the Second Circuit, requesting a review of the District 
Court order and decision of December 8,1975, the judgment 
of February 26, 1976 and the judgment of September 27, 
1976.

On June 30, 1977, the Court of Appeals unanimously re­
versed the judgment with directions to dismiss the com­
plaint on the ground that petitioner failed to make a prima. 
facie case of racial discrimination. Petitioner filed a peti­
tion for rehearing on or about July 14, 1977 in light of 
Dothard v. Rawlinson, 53 L. Ed. 2d 786, 97 S. Ct. 2720 
(1977). The petition was denied without opinion on August 
24, 1977. Petitioner thereafter brought on the instant peti­
tion for a writ of certiorari in this Court which was re­
ceived by respondents on November 21, 1977.

ARGUMENT

Petitioner Failed to Make a Prima Facie Case of 
Racial Discrimination and the Complaint Was Prop­
erly Dismissed.

Petitioner relies on Dothard v. Rawlinson, 53 L. Ed. 2d 
786, 97 S. Ct. 2720 (1977) for the proposition that general 
population statistics proffered in the case at bar warrant 
the conclusion that the plaintiff has made a prima facie 
case. Furthermore, petitioner relies upon Dothard v. Raw­
linson, supra, for the proposition that there is no require­
ment that a statistical showing of disproportionate impact 
must always be based on analysis of the characteristics of 
actual applicants.



7

Respondents submit that the holding in Dothard, supra, 
does not demonstrate inconsistency with the holding in the 
case at bar for the following reasons.

Firstly, as far as the prima facie case of discrimination 
is concerned, petitioner adduced no evidence whatsoever of 
intentional discrimination, past or present, by respondents.

Secondly, statistics relating to the general population, 
and not to the employment practices of the respondents are 
not sufficient to raise a presumption against a college de­
gree requirement, particularly in the sciences. The instant 
case does not concern itself with height and weight require­
ments as did Dothard, cited supra.

Thirdly, if bare census statistics concerning the number 
of blacks in the general population who have college degrees 
establishes a prima facie case of discrimination, every em­
ployer with a college degree requirement would have the 
burden of justifying the degree requirement as job related. 
Respondents cannot agree that this was the intent or pur­
pose of the Civil Rights Act.

Fourthly, bare figures on college degree distribution in 
the general population do not, in themselves, prove dis­
crimination in fields of scientific training in which risks of 
human life are involved.

Fifthly, the trilogy of cases, Dothard v. Rawlinson, supra, 
Hazelwood School District v. United States, 53 L. Ed. 2d 
768 (1977) and Teamsters v. United States, 52 L. Ed. 2d 
396 (1977) on the use of statistics does not point to a differ­
ent conclusion in the case at bar. The usefulness and rele­
vancy of statistics depends on all of the surrounding facts 
and circumstances. Teamsters v. United States, 52 L. Ed. 
2d 396, 418 (1977). It is clear as a matter of law, that the 
statistics relied upon in the case at bar are irrelevant, and 
not sufficiently probative with respect to the Bachelor of



8

Science Degree requirement, or ASCP certification, in the 
field of scientific endeavor involving human health and life 
in a hospital.

Sixthly, the case at bar in all candor is not a Civil Rights 
case at all, although petitioner would have this Court view 
it as such. The case at bar in its proper prospective is 
simply a Civil Service case wherein no substantial Federal 
claim is involved. The Court is respectfully referred to re­
spondents’ brief, Point I thereof, and their reply brief in 
the Appellate Court below rather than a repetition of said 
argument.

At this point respondents are constrained to point to the 
attempt by petitioner to curry sympathy with this Court. 
At pp. 5, 6 of petitioner’s brief, petitioner uses the word 
“fired” on three successive occasions. However, while peti­
tioner was terminated in December 1973 because she failed 
to have the required college degree or ASCP certification, 
she was grandfathered in and did take the test in December 
1971 and failed it, but was not terminated until December 
1973. Additionally, petitioner was rehired by NCMC in 
March 1974, three months later, as laboratory technician 
II, albeit at a lower salary, and is employed to date by 
NCMC, whom she now accuses of discrimination.

Additionally, petitioner at page 7 of the petition for 
certiorari, footnote 7, refers to a memorandum dated 
August 8, 1977 from the Nassau County Civil Service Com­
mission to Florence Turner, Personnel Officer of NCMC. 
Petitioner has gone outside the record on a memorandum 
not before the Court, nor in the record, and this should be 
frowned upon. However, contrary to petitioner’s asser­
tions, the said memorandum actually tightened the require­
ment by requiring only ASCP certification. ASCP certifi­
cation requires a Bachelor of Science Degree plus 
laboratory training as well. The request was made by



John L. Duffy, M.D., Associate Chairman, Department of 
Pathology at NCMC, who was of the considered opinion 
that the Medical Technologist I should have training in 
most, if not all, areas of the laboratory. Consequently, the 
memorandum of August 8, 1977 can be construed only as a 
means of upgrading Medical Technologist I.

Petitioner’s further attempt at page 13 of her brief to 
characterize her termination to be akin to a dismissal “be­
cause she had brown eyes or was born under the wrong- 
sign of the Zodiac” flies in the face of reason and legal 
analysis and should be disregarded by this Court. Further­
more, as the Appellate Court correctly noted below, there 
was no violation of petitioner’s rights under a “ substantive 
due process” theory. Townsend v. NCMC,, 558 F. 2d p. 121.

I

The Decision Below Is Clearly Correct

Respondents, in the Argument previously set forth, have 
amply demonstrated that general population statistics to 
establish a prima facie case of discrimination are not 
sufficiently relevant, when they do not relate to the em­
ployment practices of the respondents. The requirement 
of a college degree in the sciences is a neutral requirement 
protecting the public. The fields of scientific knowledge 
are too disparate, and cover too many disciplines, for the 
mere existence of a general college degree statistics in the 
general population, without more to sustain a presumption 
of racial discrimination. Townsend v. NCMC, et al., 558 F. 
2d 117, 120 (2d Cir. 1977).

Clearly, the position of medical technologist in a hospital 
involves specialized skills and is considered to be a “pro­
fessional” position (A. 350, 407-422). One possessing the 
Civil Service title of medical technologist I is required to



10

be skillful in clinical chemistry, microbiology, blood-bank­
ing, serology and hematology in more than one laboratory, 
not just in the blood bank laboratory. The corresponding 
human risk factor for such a position is relatively high. 
For example, a mistake by a medical technician who is 
working in the blood bank laboratory can be the cause of 
a patient’s disease or fatality (A. 58). Where a hospital 
job, such as medical technologist, involves a high human 
risk factor, the Equal Employment Opportunity Commis­
sion has determined that an employer’s burden to prove 
that its qualification is job related is significantly less than 
where the job involves little or no human risk. 29 C.F.R. 
1607.5(c) (2) (iii) states as follows:

“ (in) The smaller the economic and human risks in­
volved in hiring an unqualified applicant relative to 
the risks entailed in rejecting a qualified applicant, 
the greater the relationship needs to be in order to be 
practically useful. Conversely, a relatively low 
relationship may prove useful when the former risks 
are relatively high.”

The Tenth Circuit in Spurlock v. United Airlines,, Inc., 
475 F. 2d 216 (1972) has explained the employer’s burden 
of persuasion of job-relatedness in cases such as the 
present as follows:

“When a job requires a small amount of skill and train­
ing and the consequences of hiring an unqualified 
applicant are insignificant, the courts should examine 
closely any pre-employment standard or criteria 
which discriminate against minorities. In such a case, 
the employer should have a heavy burden to demon­
strate to the court’s satisfaction that his employment 
criteria are job-related. On the other hand, when the 
job clearly requires a high degree of skill and the



11

economic and human risks involved in hiring an un­
qualified applicant are great, the employer hears a 
correspondingly lighter burden to show that his em­
ployment criteria are job-related.” 475 F. 2d at 219.

See as well, Hodgson v. Greyhound Lines, Inc., 499 F. 2d 
859, 862 (7th Cir. 1974).

Analysis of the District Court’s decision clearly and 
unmistakably reveals thj,t Judge Weinstein of the District 
Court used the statistics introduced by petitioner as a 
vehicle to create a special position at NCMC for peti­
tioner. This can be discerned by the conclusion reached by 
the District Court because while it found that the college 
degree requirement has a “ discriminatory impact” on 
blacks, the District Court did not declare the job require­
ment at issue to be invalid or discriminatory as against 
any black person except for this petitioner (A. 304; Memo­
randum, p. 16). If “ discriminatory impact”, or “ adverse 
racial effect” has any application at all, once such impact 
is found it must apply to all members of the adversely 
affected minority, and not only to one of those members to 
the exclusion of all others. The District Court was clearly 
erroneous in its memorandum decision in finding, on the 
one hand, that the educational requirement at issue has a 
“ discriminatory impact” on blacks, yet on the other hand 
holding that the degree requirement is valid as to any 
black person seeking to be a medical technologist at NCMC 
except this petitioner. (Griggs v. Duke Power Go., 401 TT.S. 
424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971); McDonnell 
Douglas Corp. v. Green, 411 TT.S. 792, 36 L. Ed. 2d 668, 
93 S. Ct. 1817 (1973).

The District Court was able to achieve this anomalous 
result by reliance upon a due process case decided by the



Washington, D.C. Circuit Court of Appeals.1 In declaring 
the educational requirement at issue to be invalid only as 
to this petitioner, it is evident beyond cavil that the basis 
for this erroneous conclusion by the District Court is peti­
tioner’s satisfactory performance of her job in the blood 
bank laboratory, and not because of any job requirement 
that simultaneously has a discriminatory effect upon blacks, 
yet is not discriminatory against blacks.

It is respectfully submitted that doing a good job as a 
provisional employee within a municipal civil service sys­
tem is not a ground for relief within the purview of Title 
VII, or any federal statute. Furthermore, if the educa­
tional requirement has a “discriminatory racial impact” , 
then it must necessarily have an adverse discriminatory 
impact upon all blacks, and not solely upon petitioner who, 
it is conceded, does a good job in the blood bank laboratory.

Under all the facts and circumstances of this case, the 
Civil Service Law of the State of New York is the only 
applicable law, and the District Court abused its discre­
tion and improperly applied T itle VII to this case.

1 Berger v. Board of Psychologist Examiners, 521 F. 2d 1056 
(1975). Berger is clearly inapplicable to a Title VII ease. In 
Berger, plaintiff sought to have a local Washington, D.C. licensing 
statute declared unconstitutional as against the Due Process Clause 
of the Fifth Amendment. The D.C. Circuit Court of Appeals 
found this statute to be unconstitutional because, inter alia, it 
denied current practitioners of psychology “grandfather rights” 
(i.e. permission to take the licensing examination) and because the 
Court found psychology to be an inexact science and a graduate 
degree, therefore, does not necessarily demonstrate competence. 
In the ease at bar, ostensibly a Title VII case, the Nassau County 
Board of Supervisors passed a resolution (Besolution No. 1063- 
1968) 'which specifically accorded grandfather rights to petitioner 
and all other civil service employees similarly situated (A. 424). 
Furthermore, medical technology is an exact science and a bachelor 
of science degree is surely indicative of competence in this field. 
Finally, petitioner has no Due Process right to be reinstated as a 
provisional medical technologist I.



13

Reliance upon Berger v. Board of Psychologist Ex­
aminers, 521 F. 2d 1056 (D.C. Cir. 1975), that the educa­
tional requirement for medical technologist I, which the 
District Court simultaneously found has a “discriminatory 
impact” on blacks, but invalid only as to the petitioner, 
demonstrates beyond question that its decision was based 
upon petitioner’s performance in the blood bank laboratory, 
and not upon any employment practice of respondents that 
has a discriminatory effect upon blacks. The facts and 
circumstances of this case do not justify this inconsistency, 
nor warrant intrusion by the federal courts pursuant to 
Title VII. Further abuse of the District Court’s discretion 
was committed by unwarranted encroachment upon local 
sovereignty when it ordered that appellee be reinstated 
as a medical technologist I. National League of Cities v. 
Usery, 426 U.S. 833, 49 L. Ed. 2d 245 (1976); Bishop v. 
Wood, 426 U.S. 341, 48 L. Ed. 2d 684, 693 (1976).

Petitioner, by reason of her provisional status, has no 
cognizable federal right to be retained as a medical tech­
nologist I. The fact that she has or has not been perform­
ing her job creditably is of no consequence and proffers no 
federal right to relief upon petitioner. Russell v. Hodges, 
470 F. 2d 212 (2d Cir. 1972); Gallagher v. Codd, 407 Fed. 
Supp. 956 (S.D.N.Y. 1976); Haroon v. Board of Education 
of City of New York, 411 Fed. Supp. 61 (E.D.N.Y. 1976).

New York law gives the power to determine qualifica­
tions of applicants for promotional examination to the 
local Civil Service Commissions. Civil Service Law §20, 
subd. 1 and §52, subd. 2 (McKinney’s Consol. Laws of New 
York A nno.); Matter of Wirsberger v. Watson, 305 N.Y. 
507 (1953). It is equally clear, under New York law, that 
a provisional employee, such as petitioner, has no vested 
rights or tenure in her position. Koso v. Greene, 260 N.Y. 
491 (1933). No facts were presented by petitioner that



14

would be sufficient to remove the instant proceeding from 
the application of the foregoing principles of New York 
law.2

It is respectfully submitted that this Court follow the 
general principle enunciated by it in Kirkland v. New 
York State Department of Correctional Services, 520 F. 2d 
420, 429 (2d Cir. 1975):

“It seems to us that the judiciary should act with great 
reluctance in undermining traditional civil service con­
cepts; and, if a decision is to be made to subordinate 
the social purposes of civil service to those of equal em­
ployment opportunity, that decision should be made 
by the people speaking through their legislators.”

While it is clear that federal courts are empowered to 
examine and pierce state laws in the framework of federal 
civil rights enactments, the case at bar does not present 
such a factual situation that justifies or warrants such a 
confrontation. It is respectfully submitted that the Court 
should defer to the classification for medical technologist I 
established by respondent Civil Service Commission.

By its strained and erroneous interpretation in applying 
Title V II to the case at bar, the District Court has, in 
effect, created reverse discrimination within the NCMC. 
In Milson v. Leonard, ------  Fed. Supp. ------ , E.D.N.Y.

2 The original impression of the District Court, i.e. that this 
case presented only a “bureaucratic” problem, is the correct im­
pression of the case at bar. The District Court noted:

“But, my problem is not whether individuals are crushed by 
the machinery or bureaucracy, because that happens all the 
time. That is not what the court is here for, to rectify every 
injustice. There must be an injustice as to whites as well as 
blacks in that hospital. My problem is whether you have made 
out a case based on race.” (A. 182).

See, as well the dialogue between the District Court and Mr. Allen 
Scimeea, at A. 154-155.



15

Docket No. 74 C 904 (1975, Dooling, J.), (App. 1A) plain­
tiff, a white female, brought suit against the Nassau County 
Civil Service Commission (hereinafter “ Commission” ) to 
be reinstated provisionally, as a medical technologist III 
at NCMC, and to be accorded an opportunity to take the 
April 1973 examination for permanent status in that posi­
tion. (Slip Op., at pp. 1-2). The Commission excluded plain­
tiff from the April 1973 examination on the ground that she 
lacked the educational requirements for the position (Slip 
Op., at p. 3). The court, in Milson, id., dismissed plaintiff’s 
complaint pursuant to Fed. E. Civ. P. 56, finding that plain­
tiff did not and could not present a claim for relief that is 
cognizable by a federal court. The court, in Milson, id., 
also noted that “questions of jurisdiction are troublesome.” 
(Slip Op., at p. 5).

The decision of the District Court left NCMC and the 
Commission in a position where a white woman who, like 
petitioner, was a provisional employee, and who, like peti­
tioner, was performing competently in her provisional posi­
tion, yet who, unlike petitioner, has no right to be reinstated 
in her provisional position with full back pay. The decision 
of the District Court constitutes nothing more than re­
verse discrimination and should be reversed. McDonald v. 
Santa Fe Trail Transportation Co., 427 US 273, 49 L. Ed. 
2d 493 (1976); Kirkland v. New York State Board of Cor­
rectional Services, supra. This is particularly true in the 
case at bar, where the effect of the decision of the District 
Court will not be diffused among an unidentifiable group 
of persons, but will and does affect a small number of 
readily identifiable persons. Equal Employment Oppor­
tunity Commission v. Local 638, 532 F. 2d 821, 828 (2d Cir. 
1976).

Eespondent is also compelled to note that the District 
Court wholly failed to reconsider its original decision in



1G

light of Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 
597 (1976) as instructed by the United States Court of 
Appeals, 2d Circuit (R. 19a, 20a) Townsend v. Nassau 
County Medical Center, et al., 538 F. 2d 314 (2d Cir. 1976). 
The Court is respectfully referred to Point III of respon­
dents’ brief in the Appellate Court below for a full dis­
cussion of this issue.

In sum, it is clear that petitioner failed to prove a prima 
facie case of racial discrimination and the complaint was 
properly dismissed.

II

There Is No Conflict o f  Decision

Petitioner alleges at pp. 8, 9 of her brief that Townsend 
v. Nassau County Medical Center, et al., 558 F.2d 117 (2d 
Cir. 1977) with respect to the prima facie case is contrary 
to Dothard v. Rawlinson, cited supra, and the Appellate 
Court below’s decision conflicts with the decisions of three 
other circuits. Petitioner also contends that as a practical 
matter, the Appellate Court below could not have been 
aware of Dothard v. Rawlinson, cited supra, because it was 
decided just three days prior to the decision in the case at 
bar.

At the outset, it should be noted that petitioner submitted 
a petition for rehearing in Townsend on or about July 14, 
1977 to the United States Court of Appeals for the Second 
Circuit. The petition for rehearing was denied on August 
24, 1977 (35a, 36a), over a month later. The touchstone of 
petitioner’s rehearing motion was precisely Dothard v. 
Rawlinson. It may fairly be presumed that the United 
States Court of Appeals thoroughly reviewed all aspects 
of Dothard and found no merit whatsoever to petitioner’s



17

Dothard contention since the petition was denied without 
the Court requesting an opposing brief from respondents, 
(Rule 40, Federal Rules of Appellate Procedure).

Petitioner’s proffered argument that the Second Circuit’s 
holding in Townsend v. Nassau County Medical Center, 
swpra, conflicts with three other circuits is groundless.

In Townsend v. Nassau County Medical Center, supra, 
the Court stated:

“Neither Griggs, supra, nor Johnson v. Goodyear Tire 
& Rubber Co., 491 F. 2d 1361 (5th Cir. 1974), or United 
States v. Georgia Power Co., 474 F. 2d 906 (5th Cir. 
1973), relied upon by appellee, support the proposition 
that statistical evidence concerning only the general 
population is sufficient to demonstrate that a job pre­
requisite ‘operates to exclude’ minorities. In all of 
these cases plaintiffs established that virtually no 
blacks were in fact able to satisfy the challenged job 
qualification and obtain employment with the defen­
dant.

If we were to hold that a bare census statistic con­
cerning the number of blacks in the general population 
who have college degrees could establish a prima facie 
case of discrimination, every employer with a college 
degree requirement would have the burden of justify­
ing the degree requirement as job-related. See Alber- 
marle Paper Co. v. Moody, 422 IT.S. 405, 95 S. Ct, 2362, 
45 L. Ed. 2d 280 (1975). The burden of showing job­
relatedness cast upon the employer does not arise until 
the discriminatory effect has been shown. General 
Electric Co. v. Gilbert, 429 U.S. 125, at 137 n. 14, 97 S. 
Ct. 401, 408-09, 450 L. Ed. 2d 343 (1976). ‘This burden 
arises, of course, only after the complaining party or 
class has made out a prima facie case of discrimina­
tion.’ Albermarle Paper Co. v. Moody, 422 U.S. 405,



18

425, 95 S. Ct. 2362, 2375, 45 L. Ed. 2d 280 (1975). We 
do not believe that a statistic relating only to the 
general population, and not to the employment prac­
tices of the particular defendant, should be sufficient to 
raise such a presumption against a college degree re­
quirement.” (558 F. 2d p. 120)

The Court is respectfully referred to footnote 6 at 558 
F. 2d p. 120 for a further detailed commentary by the 
United States Court of Appeals for the Second Circuit.

In retrospect, the Appellate Court below’s analysis 
squarely meets petitioner’s arguments broached in her peti­
tion (pp. 9, 10).

Finally, petitioner relies on Dothard v. Rawlinson, cited 
supra, for sustaining her position that she sustained her 
prima facie case. Respondents reiterate each and every 
argument submitted to this Court contained in the Argu­
ment previously stated. Respondents also point out that 
the very language quoted by petitioner (petitioner’s brief 
pp. 8, 9) does not offer any succor or sustenance for her 
prima facie argument.

In Dothard v. Rawlinson, supra, this Court stated:

“ There is no requirement, however, that a statistical 
showing of disproportionate impact must always be 
based on analysis of the characteristics of actual ap­
plicants.” (53 L. Ed. 2d p. 798).

This court did not mandate that an analysis of the char­
acteristics of actual applicants is barred. On the contrary 
such analysis may be relevant depending upon the facts 
and circumstances of a particular case. For this reason, 
respondents’ arguments contained in Point II of their brief 
in the Appellate Court below is most appropriate and ap­



19

plicable under the factual pattern in the case at bar. 
Furthermore, petitioner’s statistics do not reflect those col­
lege graduates having Bachelor of Science degrees.

The Appellate Court below stated:

“ There were no statistics for the B.S. degree in 
particular.” (558 F. 2d p. 120)

Therefore, petitioner’s proffered statistics fall short in 
terms of germaneness and relevancy. In Dothard v. Raw- 
linson, cited supra, this court, by virtue of the “moreover” 
statement (53 L. Ed. 2d p. 798) that reliance on general 
population demographic data was not misplaced does not 
work adversely to respondents. Simply stated in the case 
at bar, we are dealing with a medical technologist I who is 
required to be competent in different scientific laboratories 
of a hospital, and there is reason and justification for a 
high level of expertise and competency. It is clear that 
petitioner’s evidence on its face fails to demonstrate con­
spicuously a job requirement’s grossly discriminatory im­
pact.

Ill

There Is No Substantial Question Affecting the En­
forcement of a Pervasive Federal Law

Respondents contend that under all the facts and cir­
cumstances in the case at bar, petitioner has failed to raise 
a cognizable claim within the ambit of Title VII of the 
Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) Respon­
dents also argue that the District Court erred in its analysis 
of the applicability of Title V II to the facts of this case. 
The District Court’s unwarranted intrusion into a situation 
that presented itself as nothing more than the internal ad­
ministration of a local civil service matter justified a



20

reversal and dismissal of the complaint by the United 
States Court of Appeals for the Second Circuit.

As the United States Court of Appeals, Second Circuit, 
correctly and unanimously noted in Townsend v. NCMC, 
558 F. 2d 117:

“We feel constrained to say that, on these facts, were 
the District Court judgment to stand, this hard case 
would make bad law . . . .  In any event, should a college 
degree requirement ever he interposed as a prerequi­
site simply as a pretext for disqualifying members of 
the black community, the courts will be alert to deal 
with violations of Title VII. But we cannot say that 
this is such a case.” (558 F. 2d p. 122).

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that this petition for a writ of certiorari should be denied.

Respectfully submitted,

W illiam  G-itelm a x

County Attorney of Nassau County
Attorney for Respondents
Nassau County Executive Building
Mineola, New York 11501
(516) 535-4406

November 30, 1977

N atale C. T edone

Senior Deputy County Attorney

W illiam  S. N obden

Deputy County Attorney

Of Counsel



APPENDIX

UNITED STATES DISTRICT COURT 

E astern D istrict oe N ew  Y ork 

74 C 904

Memorandum and Order for Judgment

J ean  M ilson , 

— against—
Plaintiff,

A dele L eonard, as Executive Director o f  the Nassau 
County Civil Service Commission, and the N assau 
C ou nty  Civil  S ervice Comm ission ,

Defendants.

A p p e a r a n c e s :

J ames N. G allagher, Esq. ( J ohn  F. O’ S h augh n essy , 
Esq., County Attorney, of Counsel), for defendants

A llen  R . M organstern, Esq. (R ichard  H artm an , Esq., 
of Counsel), for plaintiff

D ooling, D.J.

Plaintiff sues to be reinstated, provisionally, in the job 
of medical technologist III at Meadowbrook Hospital until 
she is accorded a chance to take the civil service examina­
tion necessary to attain recognized permanency in that 
position. She has been since May 1974 (as of January 1, 
1974) a medical technologist II at the Meadowbrook Hos­
pital; she has recognized permanency in that position by 
virtue of her having passed the April 1973 examination

1A



2A

for the position. Plaintiff’s complaint is that she was 
wrongfully denied admission to the April 1973 examina­
tion for medical technician III, and so was denied a fair 
chance to gain permanency in her provisional employment 
as a medical technician III, a position she had held on a 
provisional basis from July 7, 1967 until the end of 1973. 
At that time, she had to yield the provisional position to 
an appointee who had passed the April 1973 test. The 
difference in annual salary between the two positions is 
nearly $5,500.

The controversy grows out of a reclassification of jobs 
in July 1967. Plaintiff was then working as a “ senior 
microbiologist.” County records show that she had not 
been awarded permanent but only provisional status in 
that job. She did, however, have permanency as a micro­
biologist. When the jobs were reclassified, a microbiologist 
became a “medical technician I” and a senior microbiolo­
gist became a “medical technician II.” A “principal micro­
biologist” became a “medical technician III.” Although 
plaintiff had never held the position of senior microbiolo­
gist with permanency, she nevertheless jumped to a pro­
visional medical technician III on July 7, 1967, a job two 
promotion steps above the new titular position to which 
her permanent status as a “microbiologist” entitled her.

Pursuant to a special resolution of the County Super­
visors plaintiff was permitted, as an actual “ incumbent” 
of a medical technician III position to take the 1969 test 
for medical technician III without satisfying the training 
and experience requirements established for that position. 
She took and failed the test. She was, through error, 
allowed to take the next test for the III job in December, 
1971, and again she failed to pass the test. During all this 
time she continued in the job as a provisional III.

Memorandum and Order for Judgment



3A

Plaintiff was, however, excluded from the next III test 
given on April 1973, on the ground that she did not meet 
the educational or training requirements for medical tech­
nician III. She also could not qualify to take the examina­
tion as a person in direct line of promotion because she 
only had permanency as a medical technician I, two grades 
below medical technician III. She did, however, take and 
pass the test for medical technician II, given in April 1973, 
and she now has permanency in that job classification. 
Plaintiff’s present permanent position as II entitles her 
to take the next examination for medical technician TIT, 
however no examination is in immediate prospect.

Plaintiff asserts that her 1967 reclassification was in 
error, but her roster card refutes her assertions of fact, 
and bears out the County’s contentions. It appears, more­
over, that plaintiff was notified under date of July 7, 1967, 
that her then present title was medical technician III, that 
she had permanent status appropriate for medical techni­
cian I, and that to retain the III title she would have to 
take an examination.

On the facts, then, no ground of complaint appears. 
Plaintiff does not make out a case of deprivation of right 
because she is, simply, wrong in her assertion that she was 
entitled to take the April 1973.

Plaintiff does not bring hereself within 42 U.S.C. 1320a-2. 
The section, added to Title 42, by Public Law 92-603 of 
October 30, 1972, requires the Secretary to establish a 
program “ to determine the proficiency” of academically 
unqualified persons to perform the duties and functions 
of laboratory technicians, the program to include the em­
ployment of procedures for formal testing of proficiency 
of such persons. The statute provides that no person may 
be denied a rating for which he or she has actual pro-

Memorandum and Order for Judgment



4A

fieiency solely because of the person’s failure to meet 
formal educational or professional requirements. The pro­
gram is related and, evidently, limited to 42 U.S.G. 1395-
1395 p p ------ subchapter (or “ Title” ) XVIII, dealing with
Health Insurance for the Aged and Disabled. And, quite 
apart from that, the testing procedures here involved do 
not evince the characteristics which the Secretary is au­
thorized, in effect, to eliminate as conditions upon pro­
ficiency determination.

The questions of jurisdiction are troublesome, under 42 
U.S.C. 1983 as under 28 U.S.C. 1331, but it can at least be 
said with some assurance that the Court may entertain the 
case as one for injunctive relief against the defendant 
Leonard under 42 U.S.C. § 1983 and its jurisdictional coun­
terpart 28 U.S.C. § 1343.

Defendants’ motion, first made under Eule 12, has be­
come a motion under Eule 56, and, since there is no genuine 
issue of fact, defendants are entitled to summary judgment.

It is, accordingly,

Ordered that defen dan ts ’ m otion  fo r  sum m ary judgm ent 
is gran ted  and the Clerk is d irected  to enter judgm ent 
that p la in tiff take noth ing and that the action  is dism issed 
on the m erits w ithout costs.

Brooklyn, New York 
September 17,1975.

Memorandum and Order for Judgment

/ s /  J ohn  F. D ooling, J r .
IT. S. D. J.



L ex P rinting Co., I nc,, 451 Greenwich St., N.Y. 10013—-966-4300