Opposition — Fitzpatrick v. Kirkland

ee ee

No. 80-992 ’ |

JAN 23 18)

ALE RK Addo sh bo bak

In THE eS

Supreme Court of the United States

Ocrosen Texum, 1980

Dennis Firvzpatruick, et al.,

Petitioners,

v.

Epvwanp L. Kuikuanp, eft al.,

Respondents.

ON WRIT OF CEKTIONAKL TO THE UNITED STATES

COURT UF APPEALS FOK THE SECOND CIRCUIT

BRIEF IN OPPOSITION

Jack GREENBERG

O. Peren Sttexwoovp*

JupirH Rerep

10 Columbus Circle

Suite 2030

New York, New York 10019

(212) 586-8397

Attorneys for Respondeuts

Edward L. Kirkland,

Nathaniel Hayes, and the

Plaintiff Class

*Counsel of Reeord

TABLE OF CONTENTS

Page

Table of Authorities .......... stbeeonees ii

Statement of the Case ........ evcccecese 1

CUNT OE GEOORE occccccncecccsscesse 6

Argument: Reasons for Denying the

Writ oeeeeeeeeweeneeneeeeeeee 6

I. IN UPHOLDING THE DISTRICT COURT'S

APPROVAL OF EXAMINATION NO. 36-435,

THE SECOND CIRCUIT PROPERLY

AFFIRMED AN APPROPRIATE REMEDY FOR

A SETTLED CONSTITUTIONAL

VIOLATION o*eeeeeneeneteeeeeeeeeeeee 6

II. THE DECISION OF THE COURT OF

APPEALS IS CONSISTENT WITH THE

DECISIONS OF THIS COURT ....... 9

Conclusion ..... (eicesecbweudene Skobaeen 15

TABLE OF AUTHORITIES

Page

Ci ses:

Albemarle Paper Company v. Moody,

OOS Dus. OOS Casi a) a hie bo5404 000 Re ey Oe

Blake v. City of Los Angeles,

595 F.2d 1367(9th Cir. 1978), cert.

denied, U.S. , 1005. 4,

[UEP GEOUET ctnes ners ec ccccccccccce 10

Boston Chapter N.A.A.C.P., Inc.

v. Beecher, 504 F.2d 1017 (lst Cir. 1974),

cert. denied, 421 U.S. 910 (1975) .. 10

Detroit Edison Company v.

NLRB, 440 U.S. 301 (1979) ..cccceees 10

Donnell v. General Motors Corp.,

576 F.2d 1292 (8th Cir. 1978) ..... 10

Dothard v. Rawlinson, 433 U.S.

Pee ROGEEe bean date w ken Fees se KO we 10

Douglas v. Hampton, 512 F.2d 976

Ce ht ee Peer ee eee ee ere 10

Franks v. Bowman Transportation Co.,

Ree. OB, FOF SEO eP 2 ssk005 00 peeve 7,14

Fullilove v. Klutznik, U.S. .

65 L.Ed.2d 902 (1980)

LEO) suscvaseescones TTT TTT TET TTT 14

Griggs v. Duke Power Company

ie ee ee eee eee ee eee 11

~ it «

Johnson v. Railway Express Agency,

421 U.S. 454 (1975) wccccccccvccvecs

Louisiana v. United States,

360 U.8. 145 C1965) cosvvcccsvvveees

Rogers v. International Paper

Co., 510 F.2d 1340 (8th Cir.

See icc cue resensen ‘a Pere rr eet

Sims v. Sheet Metal Workers

International Assn., 489 F.2d 1023

of eo ) ear ee

Stamps v. Detroit Edison

Co. 365 F.Supp. 87 (E.D. Mich. 1973),

modified, 515 F.2d 201 (6th Cir.

fo a Peete rere TT ee eee

Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S. 1

EGF) 660 066 ce FO CREC EDO KD OSS eH eee eEe

United States v. City of Chicago,

549 F.2d 415 (7th Cir. 1977),

cert. denied, 434 U.S. 875 (1978)

United States v. City of Miami,

614 F.2d 1322 (5th Cir. 1980) ......

United Steelworkers of America

v. Weber, 443 U.S. 193 (1979) ......

- iil -

Page

10

10

10

10

10

14

Page

University of California Regents

v. Bakke, 438 U.S. 265 (1978) ... 9,12,13,14

Washington v. Davis, 426 U.S. 229

CUGTS) cowcvcnccernerdvevnessaeenrews 9,13

Federal Regulations

Uniform Guidelines on Employee Selection

Procedures, 29 CFR § 1607.1,

ST Ce soeeuws yee ee

-iv-

No. 80-992

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1980

DENNIS FITZPATRICK, et al.,

Petitioners,

Vv.

EDWARD L. KIRKLAND, et al.,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Second Circuit

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Petitioners’ statement of the Question

Presented inaccurately reflects what they seek

this Court to review. This case presents no

questions concerning federal constitutional or

statutory provisions. Petitioners simply dis-

agree with the lower courts’ construction of a

particular section of the Uniform Guidelines on

Employee Selection Procedures, 29 CFR §16.071., et

seq., as promulgated by the Equal Employment

Opportunity Commission ("EEOC") in 43(166) Fed.

Reg. 38290 et seq. (hereafter the Guiédciiogs a

Petitioners themselves concede the narrowness

of the issue: "it is the manner of the application

of the EEOC Guidelines in the particular facts of

this case as they have developed since the first

Court of Appeals decision to which petitioners

object." Pet. at 15 (emphasis added). Although

petitioners allude to questions regarding the

underlying liability issue, they themselves

recognize that the Liability issue was finally

determined long ago by the first opinion of the

Court of Appeals (520 F.2d 420), and no review of

that finding was ever sought. See Pet. at 14,

The full history of this 10-year-old litiga-

tion and many of the pertinent facts are set forth

1/ The section at issue is § 16.07.14B(8)(d).

The text of this section and the related section,

14B(8)(a), is set forth in the petition. Pet. at

10, 11 and Pet. App. M-5, 6.

in the two reported opinions of the Second Cir-

cuit. See, 520 F.2d 420, 422-423; 426 (1975); 628

F.2d 796, 797-98 (1980)(Pet. App. H-7 to 11; A-3

to 9) .2/ The remainder of this section of the

brief discusses the posture of the instant case.

By order of the district court, dated

July 31, 1974, Examination No. 34-944 was declared

unconstitutional and dotentente™ wore ordered to

develop an examination validated in accordance

with the Guidelines. July 31, 1974 Order, 44 1

and 3(b), 8 EPD 99675 at 5838 (Pet. App. F-2, F-3

to 4). The validation was to be of the type

known as "criterion validity" to the extent it was

feasible. July 31, 1974 Order, 4% 3(c), 8 EPD at

5838 (Pet. App. F-4). Pursuant to that directive,

defendants developed Examination No. 36-435.

Defendants presented the criterion validity

2/ Citations in this form refer to the appendix

to the petition.

3/ Respondents include the New York State De-

partment of Correctional Services and the New

York State Civil Service Commission, as well as

the original pleintiffs. In order to distinguish

between the two sets of respondents, we refer to

the respondents as plaintiffs and defendants.

study to the district court for its approval, and

plaintiffs consented to the entry of an order

granting the approval sought. 482 F.Supp. at 1181

(Pet. App. B-3). Petitioners filed a proposed

complaint in intervention (Pet. App. K). Plain-

tiffs and defendants moved for summary judgment,

and the district court granted that motion. 482

F.Supp. at 1181 (Pet. App. B-6).

The district court first found that no

triable issues of material fact barred the motion

(Pet. App. B-6 to 7). At no point in the proceed-

ings had petitioners provided, or offered to

provide, affidavits or other proof to oppose the

technical aspects of the study or the opinions of

plaintiffs' and defendants’ experts. 482 F. Supp.

at 1182 (Pet. App. B-9 to 10) .2/

The district court then held that the

proposed addition of only 250 points out of a

maximum of 8830 (Pet. App. L-7), to the scores

of minority candidates conformed with the Guide-

4/ Only at this late hour do petitioners raise

such issues by urging this Court to "evaluate the

[defendants'] methodology" (Pet. at 11); however,

even here they offer no additional facts. Cf. 628

F.2d at 797 n.1.

lines. Id. (Pet. App. B-9). It assured com-

patibility between the probability of successful

job performance and the probability of being

selected. Id., quoting Guidelines. It was

not a quota in violation of the Second Circuit's

prior decision (520 F.2d at 427-30), since it did

not establish a fixed ratio of minority appoint-

ments without regard to test and job performance.

482 F. Supp. at 1181 (Pet. App. B-8).

The Second Circuit affirmed the district

court's grant of summary judgment. 628 F.2d at

798 (Pet. App. A-6). Agreeing with the district

court that petitioners had raised no triable

issues of material fact, it held the 250-point

adjustment was neither a quota nor forbidden

reverse discrimination, but, rather, was a proper

and necessary method of implementing the relief

previously ordered. 628 F.2d at 799, 801 (Pet.

A-9, 13). Petitioners do not question the pro-

priety of deciding the remedy issue on a motion

for summary judgment; hence, like the liability

determination, the facts involved are not in

dispute.

o§ =

SUMMARY OF ARGUMENT

The petition for a writ of certiorari should

be denied for two reasons. (1) The Court of

Appeals properly affirmed the district court's

exercise of discretion in implementing a remedy

for a previously found consitutional violation.

(2) The decision of the Court of Appeals is

consistent with the decisions of other circuits

and of this Court.

ARGUMENT

Reasons For Denying The Writ

I. IN UPHOLDING THE DISTRICT COURT'S APPROVAL

OF EXAMINATION NO. 36-435, THE SECOND

CIRCUIT PROPERLY AFFIRMED AN APPROPRIATE

REMEDY FOR A SETTLED CONSTITUTIONAL

VIOLATION,

In affirming the district court's decision

Sanctioning examination no. 36-435, the Second

Circuit Court of Appeals approved an appropriate

remedy, while properly acknowledging the inherent

power of the district court to implement a decree

remedying a constitutional violation.

—

ww.

The duty of a district court upon a finding

of unconstitutional racial discrimination is

settled by decisions of this court:

Once a right and a violation have been

shown, the scope of a district court's

equitable powers to remedy past wrongs is

broad, for breadth and flexibility are

inherent in equitable remedies.

Swann _v. Charlotte-Mecklenburg Board of Educa-

tion, 402 U.S. 1, 15 (1971). This principle has

been held to be equally applicable to cases

involving the framing of remedies for illegal

employment discrimination:

Where racial discrimination is con-

cerned, ‘the district court has. not

merely the power but the duty to render

a decree which will so far as possible

eliminate the discriminatory effects of

the past as well as bar like discrimina-

tion in the future.’

Albemarle Paper Company v. Moody, 422 U.S.

405, 418 (1975), quoting Louisiana v. United

States, 380 U.S. 145, 154 (1965). See also,

Franks v. Bowman Transportation Co., 424 U.S. 747,

764 (1976), and Johnson v. Railway Express Agency,

421 U.S. 454, 460 (1975).

The earlier opinion of the Second Circuit

upheld the finding that the examination for

promotion to the position of Correction Sergeant

administered in 1972 (examination no. 34-944) was

discriminatory, in violation of the Constitution.

520 F.2d at 426 (Pet. App. H-10). Petitioners

concede that they do not challenge this finding

(Pet. at 14). The earlier opinion also approved

in its entirety the remedy ordered by the district

court as it related to the development of a new,

validated selection procedure. Id. (Pet.

App. H-1l1).

The district court's order merely implemented

that remedy, and it provided for no more than:

would be necessary to effect present compliance

with Title VII “and to prevent future discrimina-

tion of the kind found to have existed earlier in

this case." 628 F.2d at 798 (Pet. App. A-6).

Albemarle Paper Co v. Moody, supra. The appellate

court's task was thus simply that of examining the

implementation of the remedy, and, after consider-

ing all objections, determining that the district

court had carried out its mandate and had not

abused its discretion. There is, therefore, no

question for this Court to review.

Il. THE DECISION OF THE COURT OF APPEALS

IS CONSISTENT WITH THE DECISIONS OF

THIS COURT.

Despite their recognition that all this

case involves is interpretation of an adminis-

trative regulation, petitioners vainly attempt

to set forth reasons for a grant of certiorari.

Petitioners argue that this Court should

grant certiorari because of an asserted "expan-

sion" of the scope of Albemarle v. Moody, supra

(Pet. at 21) or a misapplication of the princi-

ples of Washington v. Davis, 426 U.S. 229 (1976)

(Pet. at 26), and based on their mistaken conten-

tion that the 250-point adjustment constitutes a

minority preference or quota that contravenes the

holding in University of California Regents v.

Bakke, 438 U.S. 265 (1978)(Pet. at 24). None of

these implied conflicts exiete.o

5/ Petitioners do not assert any conflict

among the circuits (Sup. Ct. R. 17.1(a)).

Indeed, most courts of appeals have cited the

- 10 =

Recent decisions of this Court have endorsed

the Guidelines, see Detroit Edison Company v.

NLRB, 440 U.S. 301, 313 (1979), Dothard v. Rawlin-

5/ continued

Guidelines with approval and often have en-

dorsed the concept of differential validity.

See, e.g., Boston Chapter N.A.A.C.P., Inc. v.

Beecher, 504 F.2d 1017, 1026 (lst Cir. 1974),

cert. denied, 421 U.S. 910 (1975); United States

v. City of Miami, 614 F.2d 1322, 1344 (Sth Cir.

T1980); Sims v. Sheet Metal Workers International

Assn., 489 F.2d 1023, 1025 (oth Cir. 1975); United

States v. City of Chicago, 549 F.2d 415, 433 (7th

Cir. 1977), cert. denied, 434 U.S. 875 (1978);

Donnell v. General Motors Corp., 576 F.2d 1292,

1299-1300 (8th Cir. 1978); Blake v. City of Los

Angeles, 595 F.2d 1367, 1379 (9th Cir. 1978),

cert. denied, U.S. », 100 S. Ct. 1865

(1980); Douglas v. Hampton, 512 F.2d 976, 986-87

(D.C. Cir. 1975). In United States v. City of

Chicago, supra, the court noted ™. . . che EEOC

Guidelines require that an examination be validat-

ed for both minorities and whites. . . . We do not

consider this requirement a mere technicality."

See also, Rogers v. International Paper Co., 510

F.2d 1340, 1350 (8th Cir. 1975); Stamps v. Detroit

Edison Co., 365 F.Supp. 87, 117 (E.D. Mich. :

modified, 515 F.2d 201 (6th Cir. 1975)(". . . it

- ll =-

son, 433 U.S. 321, 332 (1977) and Albemarle Paper

Co. v. Moody, supra. In Albemarle, this Court

expressly approved differential validation of

employment tests, noting that the Guidelines were

entitled to "great deference". 422 U.S. at 431,

quoting from Griggs v. Duke Power Company, 401

U.S. 424, 433-34 (1971). The Court of Appeals has

not expanded the concept of differential valida-

tion; it has merely affirmed the district court's

interpretation of the provision in the Guidelines

that covers the steps that may be taken once a

differential validity study shows the existence of

6

"un feirness" Were defendants to have ignored

5/ continued

becomes [defendant's] burden to prove that these

test batteries are valid predictors of job perfor-

mance for blacks as a separate group where feasi-

ble. . . ."), concept approved on appeal, 515 F.2d

at 313.

6/ As the Court of Appeals noted,

» « »« omce the results of .. .a [differen-

tial validity] comparison indicate a dis-

crepancy, the responsible authorities have a

choice. They can return to the drawing board

and design a new test meant to correlate to

job performance ratings; or they can adjust

- 12 -

the evidence of unfairness and used the results

of the examination without modification, "whites

with a particular level of job performance would

be selected at a higher rate than blacks and his-

panics with the same measured job performance."

(Pet. App. L-6, 7). Thus, contrary to peti-

tioners' assertions, it is only in the absence of

the 250-point adjustment that a racial preference

occurs, since in that case lesser qualified whites

would have teen selected over better qualified

minorities. The action taken here by defendants

is clearly within the contours of Albemarle, as

, ; ; 7

five members of this Court recognized in Bakke.—

6/ continued

the test to bring the results into conformity

with those ratings. See 29 C.F.R. § 1607.-

14(8)(d). In this case, they chose the

latter course of action, an alternative

clearly foreseen by our prior opinion.

628 F.2d at 799 (Pet. App. A-8, 9).

7/ After describing an example of differential

validity, in a concurring opinion Mr. Justice

Brennan noted the following:

By implication, were it determined that a

test score of 50 for a minority corresponded

= tt =

Nor does Washington v. Davis, supra, forbid

adherence to the Guidelines in developing a

non-discriminatory selection procedure, even in

a non-Title VII case. That decision holds only

that no one type of validation is mandated by

the Constitution. 426 U.S. at 250-51. Petitioners

do not contend it was error for the defendants to

follow the Guidelines in developing the latest

examination. Nor are they able to demonstrate

any error in the District Judge's "sensible

construction" of Section 14B (8)(d) of the Guide-

lines. Cf. 426 U.S. at 251-52.2/

7/ continued

in "potential for employment" to a 60 for

whites, the test could not be used consis~

tently with Title VII unless the employer

hired minorities with scores of 50 even

though he might not hire non-minority ap-

plicants with scores above 50 but below 60.

Id., 438 U.S. at 364 n.37 (opinion joined by

Mr. Justice White, Mr. Justice Marshall and Mr.

Justice Blackmun). See also Id. at 306 n.43

(opinion of Mr. Justice Powell).

8 / Petitioners appear to object only to the

district court's reliance on a communication with

the General Counsel of the very agency that draft-

ed the Guidelines and the lack of judicial prece-

dent for the precise interpretation (Pet. at 12).

=. 14 =

While petitioners correctly note that

this Court has shown a "concern regarding racial

preference." Pet. at 25, in each instance where

this Court has been presented with such questions,

it has approved the use of racial distinctions, as

an appropriate equitable remedy. See, e.g.,

Bakke, supra; United Steelworkers of America v.

Weber, 443 U.S. 193 (1979), Fullilove v. Klutznik,

__ U.S. » 65 L.Ed.2d 902, 927 (1980) and

Franks v. Bowman Transportation Co., supra. Here,

however, as Mr. Justice Powell recognized in

Bakke, the issue is not a quota or a preference

for ome group over another, but the perfection of

a testing instrument within the limits of the

current state of the art:

To the extent that race and ethnic

background were considered only to

the extent of curing established

inaccuracies in predicting academic

performance, it might be argued that

there is no "preference" at all. 438

U.S. supra, at 306 n. 43 [emphasis

added J.

- 15 -

CONCLUSION

For the foregoing reasons, the petition

for a writ of certiorari should be denied.

Respectfully submitted,

Or

O. PETER SHERWOOD*

JUDITH REED

10 Columbus Circle

Suite 2030

New York, New York 10019

Attorneys for Respondents

Edward L. Kirkland,

Nathaniel Hayes and the

Plaintiff Class

*Counsel of Record

January, 1981