Petition — Williams v. Boorstin

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IN THE Re

Supreme Court of the United States

OctToBER TERM 1980

JOSLYN N. WILLIAMS,

Petitioner,

DANIEL J. BOorstIn,

Librarian of the Library of Congress,

Respondent.

————————

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

JERRY S. COHEN

MicHakEL D. HAvusFecLp

STEVEN J. ToL

KoxHn, Mitstern & CoHEN

1776 K Street, N.W.

Washington, D.C.

(202) 293-7110

Counsel for Petitioner

Of Counsel:

Harotp E. Konn

Kouwn, Savett, Marton & Grar, P.C.

1214 IVB Building

1400 Market Street

Philadelphia, PA 19103

Press oF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D. C.

a a _ re

: = —© :

et aie Ne Le ea IS tll a

QUESTIONS PRESENTED

1. Whether ina retaliatory dismissal

action brought under Title VII of the Civil

Rights Act of 1964, the "but for" standard of

causation is to be applied; that is, that an

employer can prevail by showing that the

complainant would have been dismissed in the

absence of his protected activity, even

though the decision to terminate was motivated

in substantial part by complainant's protected

activity?

2. Whether an individual's "qualifica-

tions" for employment are, under the guide-

lines of McDonnell Douglas Corp. v. Green, an

indispensable element of a prima facie

retaliatory dismissal case brought under

Title VII?

£43

TABLE OF CONTENTS

Page

1. Opinions Below . ....+ + « « « « 2

2. Jurisdiction ..«. «© «x«e«*e#e##teee 3

3. Statutory Provision Involved .... . $

4. Statement of the Case .....«. -«

5. Reasons for Granting the Writ... 20

I. THE WRIT SHOULD BE GRANTED TO

RESOLVE A CONFLICT BETWEEN THE

COURTS OF APPEALS OVER THE

STANDARD OF CAUSATION IN A TITLE

VII RETALIATORY DISMISSAL CASE.

THE MOST ANALOGOUS FEDERAL

STATUTE TO TITLE VII OF THE

CIVIL RIGHTS ACT PRESCRIBES A

LESSER STANDARD OF PROOF THAN

THE "BUT FOR" STANDARD UTILIZED

BY THE DISTRICT OF COLUMBIA

CIRCUIT. THE IMPOSITION OF THE

STRICT STANDARD IMPOSED BY THE

DISTRICT OF COLUMBIA CIRCUIT

IS CONTRARY TO THE CONGRES-

SIONAL PURPOSE OF THE 1964

CIVIL RIGHTS ACT AND PLACES AN

UNDUE BURDEN UPON PERSONS

ATTEMPTING TO PROVE THAT THEY

HAVE BEEN DISCRIMINATED AGAINST

FOR ENGAGING IN PROTECTED

ACTIVITY ...... see 20

PREVIOUS PAGE WAS BLANK

II.

Page

THE WRIT SHOULD BE GRANTED TO

CORRECT THE DISTRICT OF

COLUMBIA CIRCUIT'S INTERPRE-

TATION OF McDONNELL DOUGLAS

CORP. v. GREEN AS REQUIRING

A PARTY TO ESTABLISH HIS "QUAL-

IFICATIONS" AS AN INDISPENSABLE

ELEMENT OF A PRIMA FACIE RETAL-

IATORY DISMISSAL CASE BROUGH'I'

UNDER TITER VIE... kt tees

ee ——————————————————EE— EEE

TABLE OF AUTHORITIES

Cases : Page

Bostick v. Boorstin, 617 F.2d 871

(D.C. Cir. 1980) cert. denied,

No. 79-2030, 49 U.S.L.W. 3270

(October 14, 1980) ..... Terr rer cree ree Ss sae

Bradington v. IBM, 360 F.Supp.

845 (D. Md. 1973), aff'd,

492 F.2d 1240 (4th Cir.

LSTA) cvccevcscces eeccccece cece ceseeceses 25

Brown v. Biglin, 454 F.Supp.

394 (E.D. Pa. 1978) ecccccccccvcccccccecs 30

Edgewood Nursing Center, Inc.

v. NLRB, 581 F.2d 363

(3d Cir. 1978) «--eee- TVYrrreeee eee et oe 27

EEOC v. Kallir, Philips, Ross,

Inc., 401 F.Supp. 66

(S.D.N.¥. 1975), ati'd

559 F.2d 1203 (2d Cir. 1977),

cert. denied 434 U.S. 920

has SAPP rr ee er ore eT eee eee ee 25,246,247

EEOC v. Locals 14 and 15,

International Union of

Operating Engineers, 438

F.Supp. 876 (S.D.N.Y.

Legs Or errr ree ey wee one ee ee ee ee 30

Cases Page

Falkowski v. Perry,

464 F.Supp. 1016

(N.D. Ala. 1978), vacated,

Perry v. Golub, 599 F.2d

2052 (Sth Cir. 1979) wccccccccccccces 25,30

Godwin v. City of Pittsburgh,

480 F.Supp. 627 (W.D. Pa.

BPOD esececesceccccccccecccccccceseccs 2-24

Gonzalez v. Bolger, 486 F.Supp.

Me Gilets Ge SSOC) cccccccce eecccccces wry +.

Griggs v. Duke Power Co., 401

DTT SEMPLE cicccccccoccccccesceceees 33

Head Division, AMF, Inc. v.

NLRB, 593 F.2d 972 (10th

DEEITITEE ceccccccscocccscccccecceecnce 27

Hochstadt v. Worcester

Foundation for Experimental

Biology, 425 F.Supp. 318

i, meee.) , att*'ad, 545

F.2d 222 (lst Cir. 1976) ......... 25,28,29

International Brotherhood

of Teamsters v. United

States, 431 U.S. 324

DT eit ce bene e ee eecccecccencecsceceose 31

Kornbluth v. Stearns and Foster

Co., 73 F.R.D. 307 (S.D. Ohio

Dike < ce ee bee eeee ee cet eseceeees 24,25

Vil

Cases Page

McCarthy v. Cortland County

Community Action Program,

487 F.Supp. 333 (N.D.N.Y.

RD SBE RSS eB eee cec ce eeccserceces TeeCrrery t,

McDonald v. Santa Fe Trans-

portation Co., 427 U.S. 273

(1976) ecccccccccccscccccecre a aes be 660-08 6 6 31

McDonnell Douglas Corp. v.

Green, 411 U.S. 792

EES OEP e eee ee eee 18,19,30,

31,32

Mead v. United States Fidelity

and Guarantee Co., 442 F.Supp.

Bee See Pees L977) occ cone Toh eee ene e hae 24

Monteiro v. Poole Silver Co.,

Same Ppeaa 4 (ist Cir.

(jj ]}]' ee eek kk bee seeew cb ccececceccec 21

Mt. Healthy City Board of

Education v. Doyle, 429

PE CPE TTD css eseeseesccsecsecccees 42,43

Neptune Water Meter Company

v. NLRB, 551 F.2d 568 (4th

DCMT CSS UE Swe Seeeecsecocceccccccors 27

Pettway v. American Cast Iron

Pipe Co., 41l F.2d 998 (5th

DCCC SSeS SSS SSE C esc o se cee oeeseces 28

Stone and Webster Engineering

Corp. v. NLRB, 536 F.2d 461

PEC SUPERS pease escrscccssvecececocs 27

Cases Page

Sutton v. National Distillers

Products Co., 445 F.Supp. 1319

(BcD. GAAS ESTE) oc cccvcscdeccesececseses 26

Tidwell v. American Oil Co., 332

F.Supp. 424 (D. Utah |

BPULL cececvser ene 6s ere rer rrr TTC rT Te 25

Washington v. Davis, 426 U.S.

BE SROTOD 664d 4660 0006 CoRR Cee eee REeES 23

Western Exterminator Company

v. NLRB, 565 F.2d 1114

[eee MRS BPO! Cette er duces eck sannebiees 27

Williams v. Mumford, 5ll

F.a6 363 (0.6. Cit.),

rehearing en banc denied,

cert. denied, 423 U.S. 828

Sp Ee are ae aes ne ee ee 5

Womack v. Munson, 619 F.2d

Dae, Ce a 5 Be wa kat eke teen oe a4,;90

Statutes

Civil Rights Act of 1964,

Section 704(a), 42 U.S.C.

Se a hee abe Rab 6 OO 6 Ree bee ween ee 3,28

National Labor Relations

Act, Section 8(a) (3), 29

Fae Oh tr See) eee ere eee eee 23,24,26,

27,28

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1980

No.

JOSLYN N. WILLIAMS,

Petitioner,

Vv.

DANIEL J. BOORSTIN,

Librarian of the

Library of Congress,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioner, Joslyn N. Williams (herein-

after "Petitioner" or "Williams"), respect-

fully prays that a Writ of Certiorari be

issued to review the judgment and opinion of

the United States Court of Appeals for the

District of Columbia Circuit entered in this

proceeding on October 3, 1980 and the order

denying Petitioner's Motion for Rehearing and

Suggestion for Rehearing En Banc entered on

December 9, 1980.

OPINIONS BELOW

The majority and concurring opinions of

the Court of Appeals are reported at 24

E.P.D. 431,283 (D.C. Cir. 1980) and are set

forth in Appendix A at pp. la-52a. The

Opinion of the United States District Court

for the District of Columbia granting judgment

to Petitioner Williams is reported at 45l

F.Supp. 1117 (D.D.C. 1978) and is set forth

in Appendix B at pp. 1b-40b. The orders of

the Court of Appeals denying Petitioner's

timely Petition for Rehearing and Suggestion

for Rehearing En Banc are set forth in

Appendix C at pp. lec=- 3c.

JURISDICTION

The judgment of the Court of Appeals for

the District of Columbia Circuit was entered

on October 3, 1980. A timely Petition for

Rehearing and Suggestion for Rehearing En

Banc was denied on December 9, 1980. This

Petition was filed within ninety (90) days of

that date. Jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

Section 704(a) of the Civil Rights Act

of 1964, 42 U.S.C. §2000e-3 provides in

pertinent pact:

"(a) It shall be an unlawful employ-

ment practice for an employer to

discriminate against any of his

employees .. . because he has

opposed any practice made an unlaw-

ful employment practice by this

subchapter, or because he has made

a charge, testified, assisted, or

participated in any manner in an

investigation, proceeding, or

hearing under this subchapter."

o «=

STATEMENT OF THE CASE

Petitioner commenced this action in the

United States District Court for the District

of Columbia on August 14, 1972 innkeiiaee

that the termination of his employment with

the Library of Congress (hereinafter "Library")

was for racially discriminatory reasons and

for his challenges to the employment discri-

mination which existed at the Library. In an

amended complaint, Robert Bostick, another

black employee at the Library, joined Williams

as Plaintiff and together they sought to

represent all black persons who had worked or

applied to work at the Library since 1960.

On behalf of the class, they sought relief

for a wide variety of employment practices

dealing with recruitment, hiring, promotion,

and termination alleged to violate Title VII

of the Civil Rights Act of 1964. On August

= S$ «

20, 1973, the District Court per Judge William

B. Jones, denied Plaintiffs" Motion for Class

Certification and severed the claims of

Williams and aac”

Petitioner Joslyn Williams was a symbol

-- a "leader of black employees of the

Library" (App. B, p. lb.). He was their

advocate for equal employment opportunities.

This position, however, caused great

embarassment to the Library. See App. B,

*/ In Williams v. Mumford, 51ll F.2d 363

(D.C. Cir.), rehearing en banc denied, cert.

denied, 42. U.S. 828 (1975), the Court of

Appeals dismissed the appeal challenging the

District Court's refusal to certify the case

as a class action.

The issue in the Bostick case was whether

the Library's refusal to reclassify Bostick's

position constituted a violation of Title VII

The District Court determined that the Li-

brary's conduct was not a pretext for racial

discrimination and its ruling was affirmed by

the Court of Appeals. See Bostick v. Boorstin,

617 F.2d 871 (D.C. Cir. 1980), cert. denied,

No. 79-2030, 49 U.S.L.W. 3270 (October 14, 1980).

- 6 =

p.12b. For example, in April 1970, a peti-

tion addressed to the Librarian was circulated

at the Library, urging the selection of

Barbara Ringer (who is white) as the next

conceived, prepared and promulgated by black

leaders in the Copyright Office including

Petitioner. The signers of the petition were

both black and white, supervisory and non-

Supervisory, professional and non-professional

employees. The petition focused primarily on:

"The fact that the Copyright Office

is in the midst of crises. The

drastic drop in morale at the

Office, of which our administrative

and personnel problems are sympto-

matic, has taken its toll on both

rank, file and management. The

former are increasingly distrust-

ful of their leaders and the latter

have found it steadily more diffi-

cult to lead. To work out the

problems in the Copyright Office

a distinctive kind of administrator

is needed."

- 7 «

The petition represented a protest against

the proposed appointment of Mr. George Cary,

and support for the appointment of Ms.

Ringer, as Register of Copyrights.

Petitioner, then President of Local 1826

of the American Federation of Government

Employees (AFGE), pointed out in a memorandum

to Ms. Ringer on June 16, 1970, that:

"'The problem of discrimination in

the Copyright Office is so serious

that unless it is dealt with from

within, this office will lose con-

trol of the situation and it will

become a public matter.

""In my opinion the question of

equal opportunity is the most

explosive of the issues which

confront you.'"

Qn June 18, 1970, Ms. Ringer, who then

occupied the position of Assistant Register of

Copyrights, submitted a memorandum to the

tence of what, in her opinion, appeared to be

racially discriminatory policies and practices

- § -

at the Copyright Office. Mr. Ringer called

for a recognition of the problem and a

solution to the effects that it had caused.

As a result of this memorandum, Ms. Ringer

was chastised by the Librarian, L. Quincy

Mumford, for admitting error that should not

have been admitted. The Librarian indicated

to Ms. Ringer that other division chiefs, all

of whom were white, had told him that Ringer

was making trouble, that she was trying to

"stir up a hornet's nest". Thereafter, the

Librarian removed Ms. Ringer from any admin-

istrative responsibilities with regard to

the Copyright Office.

In June 1971, Petitioner presented a

resolution to the American Library Associa-

tion ("ALA") requesting the ALA to invest-

igate the Library to ascertain the existence

of racially discriminatory employment policies

and practices. Present at that meeting were

- 9 -

management representatives of the Library,

including John Lorenz (who is white), then

Deputy Librarian for the Library. The

Library was very disturbed over the prospect

of an ALA inquiry. See App. B, p.1llb. The

Librarian sought the intervention of the

Joint Congressional Committee overseeing the

Library, and as a result Congressman Wayne

Hays, the Chairman of that committee, attempt-

ed to prohibit any outside nongovernmental

organization to make any inquiries into the

employment policies and practices of the

Library.

During the summer of 1971, Williams came

into further conflict with the Library admin-

istration in the course of assisting black

employees of the Stack and Reader Division

of the Library who were requesting immediate

action to resolve their grievances concerning

illegal employment policies and practices.

- 10 «

Williams sought to assist those persons

protesting, virtually all of whom were black,

while all managerial supervisors of that

Division were white. As a result of his

assistance to these black employees, Williams

received a letter of reprimand from a Library

supervisor. Upon receipt of the letter of

reprimand, Williams confronted the supervisor

informing him that the letter was in vio-

lation of the Library's regulations and was a

blatant attempt to silence him and prevent

him from assisting his fellow black employees

who were protesting what they believed to be

racial discrimination at the Library. The

letter of reprimand was subsequently with-

drawn.

The ALA fact finding inquiry team's

report was due to be published at the Asso-

ciation's mid-winter convention in January of

1972. Prior to that time, Williams had

- ll -

requested administrative leave to attend the

conference, and was told by his Division

Chief, Mr. Richard Glasgow, that it would be

in his best interest to "tone down" his

activities; that he was sitting on a "keg of

dynamite" that could explode. Mr. Glasgow

told Williams that someone who was in as much

"hot water" as he was should not attend the

mid-w nter conference in Chicago. Glasgow

advised Williams that if he did attend, it

would not be to his benefit.

Subsequently, the Library found out that

Petitioner was not a graduate of Georgetown

Law School and that the educational back-

ground information he provided on his employ-

ment application was inaccurate. When

confronted with this, Williams admitted the

inaccuracies, recognizing that he would be

subject to some form of punishment, and that

he was willing to accept some form of

- 12 -

punishment short of termination. He told

then Register of Copyrights, George Cary,

that the Library had at no time been misled

to their detriment as a result of his state-

ments, and that he had adequately and satis-

factorily performed all his job duties.

Cary, however, intimated to Williams

that it would be in his best interest not to

attend the January convention of the ALA, and

that it would be beneficial for Williams to

curtail his activities within the Library.

Cary stated that he did not think a union was

an appropriate vehicle to resolve the differ-

ences within the Library, and that the

Library's choice of punishment might be

determined by Williams' actions within the

Library.

The ALA Inquiry Team later concluded

that there was institutional discrimination

in Library employment practices. On

- 13 =

January 31, 1972 the Library issued a condem-

nation of the ALA Team, its report, and

Williams.

In April 1972, Petitioner, against the

advice of Cary and Glasgow, testified as a

principal w tness on behalf of Ms. Barbara

Ringer, the white female Assistant Register

of Copyrights who claimed to be discriminated

against because of her attempts to eradicate

racial discrimination at the Library. The

hearing examiner issued a decision in favor

of Ms. Ringer, and ordered the Library to

take corrective action. Ms. Ringer later

became the Register of Copyrights, succeeding

- 14 -

Mr. Cary, who had been found to have a demon-

strable anti-black es

From January through June 1972, the

Library was attempting to determine what

action, if any, should be taken with regard

to Williams' misrepresentations of his

educational qualifications and in so doing

efforts were mide to ascertain from other

federal agencies what procedures they followed

in situations involving falsifications. Each

agency responded that "each case

*/ It was Mr. Cary who subsequently first

recommended that Williams be terminated. With-

Out proper competition or posting Cary impro-

perly assumed the position of Register of

Copyrights. See App. B., p.8b. At trial,

Cary testified that while he recognized the

union had a place, Williams spent too much

time on union activities and that persons

like Williams were "troublemakers who should

be punished, not promoted". See App. B,

p.9b.

- 15 -

[must be] judged on its own merits." It was

thus clear that termination was not at all

mandated as a result of Petitioner's actions.

The form and severity of punishment, if any,

was a matter left to the discretion of

Library officials.

This is consistent w th the testimony of

Cary who stated that had Williams shown any

remorse, Shame or regret for his actions,

Cary would have overlooked the matter and

recommended no punishment. However, Peti-

tioner's union activities and his efforts to

achieve equal employment opportunities for

blacks, had unquestionably embarrassed and

disturbed the Library's white management.

The District Court found that Petition-

er's union activities and efforts to promote

equal employment were a substantial factor in

the decision to terminate Williams. The

Court was persuaded in part by the testimony

- 16 =

of Ms. Ringer who stated that Petitioner was

of "very high character and that his reputa-

tion with other employees had been...

exemplary." She testified that in her

experience as Register of Copyrights there

were closely related incidents of conspicuous

advocacy of equal employment opportunities

and punishment by the Library administration.

Ms. Ringer testified that she was aware there

were people in the Copyright Office who were

generally opposed to racial equality and had

been promoted specifically on the basis of

that opposition. She also testified that

there were black employees in the Office who

should have been promoted but who were not

because of their advocacy of equal employment

opportunities.

Ms. Ringer further testified that "under

ordinary circumstances" the Library adminis-

tration would not have recommended termination

- 17 -

of Williams' employment. She testified that

Williams' circumstances were other than

ordinary:

"He was, in my opinion, a very

effective, militant but completely

honorable, proponent of equal

equality. He, in my opinion,

told a lot of things like they

were. And it did seem to me

that this was just unacceptable

to some people and was the ulti-

mate cause of the events that led

to his separation."

Weighing all the circumstances and given

the credibility of the witnesses, the Court

concluded that "the Library decision to

terminate Williams was motivated in substan-

tial part by hostile management reaction to

his leadership of the minority employees'

protests against discrimination, in violation

of Section 704(a) of the Civil Rights Act of

1964." App. B, p.&#Z2 Bb.

On appeal, the Court of Appeals obviously

incensed by Williams' misrepresentations on

- 18 -

his employment applications, reversed,

finding that the District Court misapplied

the standards enunciated by this Court in

McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973).

The Court of Appeals ruled that ina

case alleging employer discrimination under

Title VII, the "but for" test is to be

applied (App. A, p.35a);_ the Court also

*/ Under that standard, the Court of Appeals

determined that the Librarian could have done

nothing else but discharge Petitioner (App. A,

p.40a). That conclusion is clear error. First,

it is in direct contradiction with the testi-

mony Of Mr. Cary, who indicated that Petition-

er would not have been terminated had he

shown remorse. Second, the Court of Appeals'

conclusion represents an unwarranted factual

finding, a finding which can only be made by

the trial court. Third, this conclusion

effectively rewrites the federal statutory

and regulatory scheme. There is nothing com-

pelling dismissal of an employee for falsifi-

cation of employment records. What action to

take in such cases is a matter committed to

an agency's discretion.

- 19 -

determined that the "qualifications" of a

complainant are, under this Court's decision

in McDonnell Douglas Corp. v. Green, supra,

an essential component of a prima facie

retaliatory dismissal case (App. A, p.3l

a).

*/ At the time Williams applied for the job

of copyright examiner in 1967, the job posting

required a legal degree. This requirement,

however, was never job validated, nor was it

job related. Although the posting required

that applicants be law school graduates the

Library had a subjective, nonposted excep-

tion for law school students or other appli-

cants ‘with equivalent training whom they

would consider for the position. Indeed, as

of 1967, the copyright office had a sub rosa

practice of hiring persons in the examining

division who only had a Bachelor's degree and

with no previous experience. In fact, after

Williams served in that position he personally

observed persons being selected for the

position of copyright examiner who only had a

high school diploma or Bachelor's degree. All

such persons were white. As indicated, infra,

this legal degree requirement was subsequently

abolished.

- 20 -

Judge Bazelon, although concurring in

the result, disagreed with the majority's

determination that an employee's qualifica-

tions are a critical element of a retaliatory

dismissal claim. He also expressed the view

that adoption of a "but for" standard of

causation in a Title VII retaliation case is

both "unexplained and unnecessary". App. A,

p.50a.

REASONS FOR GRANTING THE WRIT

I. THE WRIT SHOULD BE GRANTED TO RESOLVE

A CONFLICT BETWEEN THE COURTS OF APPEALS OVER

THE STANDARD OF CAUSATION IN A TITLE VII

RETALIATORY DISMISSAL CASE. THE MOST ANALOGOUS

FEDERAL STATUTE TO TITLE VII OF THE CIVIL

RIGHTS ACT PRESCRIBES A LESSER STANDARD OF

PROOF THAN THE "BUT FOR" STANDARD UTILIZED BY

THE DISTRICT OF COLUMBIA CIRCUIT. THE IMPOSI-

TION OF THE STRICT STANDARD IMPOSED BY THE

DISTRICT OF COLUMBIA CIRCUIT IS CONTRARY TO

THE CONGRESSIONAL PURPOSE OF THE 1964 CIVIL

RIGHTS ACT AND PLACES AN UNDUE BURDEN UPON

PERSONS ATTEMPTING TO PROVE THAT THEY HAVE

BEEN DISCRIMINATED AGAINST FOR ENGAGING IN

PROTECTED ACTIVITY.

« 29

The Court of Appeals determination to

employ a "but for" standard of causation in

Title VII retaliatory dismissal cases is in

direct conflict with the decisions of another

Circuit Court and numerous District Courts.

In Monteiro v. Poole Silver Co., 615 F.2d 4,

9 (lst Cir. 1980), the First Circuit stated

that where motives for termination in a

retaliatory dismissal case are mixed, the

impermissible motive must be a "determinative

factor" in the employer's decision if plain-

tiff is to prevail. It is this standard

which the District Court applied in determin-

ing that the Library's decision to terminate

Williams was motivated in "substantial part"

«22 =

by his protected activity. App. B, p. 22b.

The Court of Appeals unexplicably decided

that the "but for" standard is applicable in

retaliatory dismissal cases under Section

704(a), citing three of its previous decisions,

none Of which involved retaliatory dismissals.

The majority also referred in a footnote to

this Court's decision in Mt. Healthy City Board

of Education v. Doyle, 429 U.S. 274 (1977).

*/ On the other hand, in Womack v. Munson, 619

F.2d 1292 (8th Cir. 1980), pet. for cert. filed

Augus: 21, 1980, No. 80-278, the Eighth

Circuit applied the "but for" standard ina

retaliatory dismissal claim, while at the same

time recognizing that a lower standard of

causation is applicable in cases challenging

adverse employment actions as racially discrim-

inatory under Section 703(a), 42 U.S.C. §2000e-

2(a). See 619 F.2d at 1296, n.7. There is no

justification for applying a harsher standard

in a retaliatory dismissal case. If anything,

the standard to be applied in such cases

should at least be equal to, if not more

lenient than, that in a Section 703(a) case.

» 2% «

App. A, p.37a, n.51. This Court's decision

in Mt. Healthy, however, was rendered in the

context of a refusal to rehire where consti-

tutional principles were at stake rather than

interpretation of a Congressional determina-

tion to eradicate employment discrimination.

This Court has previously recognized, albeit

in different circumstances, that constitu-

tional standards for adjudicating claims of

racial discrimination are not the same as

standards applicable under Title VII. See

Washington v. Davis, 426 U.S. 229, 239 (1976).

Moreover, the majority of District

Courts considering this issue have applied a

standard of proof analogous to that utilized

in cases brought pursuant to Section 8(a) (3)

of the National Labor Relations Act, 29

U.S.C. §158(a)(3) for terminations as a

-~ 22m

result of engaging in protected activity.

See Godwin v. City of Pittsburgh, 480 F.Supp.

627, 633 (W.D. Pa. 1979); (there is violation

of §704(a) as long as retaliatory motive

played a part in the adverse action even if

not the sole reason); Mead v. United States

Fidelity and Guarantee Co., 442 F.Supp. 114,

131 (D. Minn. 1977) (need not show retalia-

tory discrimination was sole or principal

reason for discharge, only that it contributed,

among Other things, to cause discharge) ;

Kornbluh v. Stearns and Foster Co., 73 F.R.D.

*/ 29 U.S.C. §158(a) (3) provides in pertinent

part as follows:

(a) It shall be an unfair labor practice

for an employer -..

(3) by discrimination in regard to

hire or tenure of employment or any

term or condition of employment to

encourage or discourage membership

in any labor organization...

~ 28 =

307, 312 (S.D. Ohio 1976) (it is sufficient

for plaintiff to show that retaliatory motive

played any cause in dismissal); Falkowski v.

Perry, 464 F.Supp. 1016, 1020 (N.D. Ala.

1978), vacated, Perry v. Golub, 599 F.2d 1052

(5th Cir. 1979) (only need show retaliation

for engaging in protected activity was a

factor in the decision to take adverse

action); Hochstadt v. Worcester Foundation

for Experimental Biology, 425 F.Supp. 318,

324 (D. Mass.), aff'd, 545 F.2d 222 ‘(lst Cir.

1976) (statute is violated if retaliatory

discrimination by employer contributed, among

Ll j

Other things, to cause discharge; EEOC v.

*/ The District Court in Hochstadt cites, in

support of this principle, Bradington v. IBM,

360 F.Supp. 845 (D. Md. 1973), aff'd, 492 F.2d

1240 (4th Cir. 1974), and in addition cites

Tidwell v. American Oil Co., 332 F.Supp. 424,

430 (D. Utah 1971), for the proposition that

Plaintiff should prevail if retaliation is the

"principal reason" for a discharge.

~ 26 «

Kallir, Philips, Ross, Inc., 401 F.Supp. 66,

72, n.17 (S.D.N.Y. 1975), aff'd 559 F.2d 1203

(2d Cir. 1977), cert. denied 434 U.S. 920

(1977). But see, Sutton v. National Distillers

Products Co., 445 F.Supp. 1319, 1327-28 (S.D.

Ohio 1978).

The overwhelming weight of authority in

this area is against the "but for" standard

imposed by the District of Columbia Circuit

below. Moreover, analogizing to the similar

provisions of the National Labor Relations

Act dictates that the "but for" standard is

too strict a standard to apply in this cir-

cumstance. Cases applying §8(a)(3) of the

National Labor Relations Act, the analagous

provision of Section 704(a), have ruled that

an employee must demonstrate either that his

dismissal is "partially motivated" by

i : a

retaliatory conduct in order to render it

unlawful, or that the retaliatory conduct is

the "predominate" or "moving" cause for

dismissal. See e.g., Western Exterminator

Company v. NLRB, 565 F.2d 1114, 1118 (9th

Cir. 1977) (test is whether business reason

or protected activity is "moving cause" for

discharge); Stone and Webster Engineering

Corp. v. NLRB, 536 F.2d 461, 466-467, n.8

(lst Cir. 1976) (Discharge is improper if

discriminatory motive predominates). The

similarities of purpose of Section 8(a) (3) of

*/ See cases cited in EEOC v. Kallir, supra,

401 F.Supp. at 72, n.17. See also, Head

Division AMF, Inc. v. NLRB, 593 F.2d 972

(10th Cir. 1979); Edgewood Nursing Center, Inc.

v. National Labor Relations Board, 581 F.2d

363 (3d Cir. 1978); and Neptune Water Meter

Company v. National Labor Relations Board, 55l

F.2d 568 (4th Cir. 1977) (it is enough that

a discriminatory motive was a factor).

- 28 -

the National Labor Relations Act and Section

704(a) of the Civil Rights Act are apparent.

See Pettway v. American Cast Iron Pipe Co.,

411 F.2d, 998, 1005-1007 (5th Cir. 1969) and

Hochstadt, supra, 425 F.Supp. at pp. 231-234.

The standard of causation to be applied

in Title VII retaliation cases should be

similar to that utilized in retaliation cases

under the National Labor Relations Act, not

those cases seeking protection under the

Constitution of the United States. The writ

should be granted to resolve this discrepancy.

II. THE WRIT SHOULD BE GRANTED TO

CORRECT THE DISTRICT OF COLUMBIA CIRCUIT'S

INTERPRETATION OF MCDONNELL DOUGLAS CORP. v.

GREEN AS REQUIRING A PARTY TO ESTABLISH HIS

"QUALIFICATIONS" AS AN INDISPENSABLE ELEMENT

OF A PRIMA FACIE RETALIATORY DISMISSAL CASE

BROUGHT UNDER TITLE VII.

- 29 -

The Court of Appeals imposed the require-

ment that a person alleging discrimination as

a result of a retaliatory dismissal must

establish his or her qualifications for the

job. App. A, p.38 a. No other Court has

ever characterized an employee's qualifica-

tions as an essential element of a prima

facie retaliatory dismissal case. Rather,

the requirements of a prima facie retaliatory

dismissal case under Section 704(a) include:

1. Engaging in a protected activity;

2. Advercse employer action;

3. Causal connection.

See concurring opinion of Judge Bazelon, App.

A, p. 48 a, n.4; Hochstadt v. Worcester

Foundation For Experimental Biology, supra,

425 F.Supp. at 324; McCarthy v. Cortland

County Community Action Program, 487 F.Supp.

333, 340 (N.D.N.Y. 1980); Gonzalez v. Bolger,

= 30 -

486 F.Supp. 595, 601 (D.D.C. 1980), per Judge

Gesell; Womack v. Munson, supra, 619 F.2d at

1296, n.6; Brown v. Biglin, 454 F.Supp. 394,

399 (E.D. Pa. 1978); Falkowski v. Perry,

supra, 464 F.Supp. at 1020; EEOC v. Locals 14

and 15, International Union of Operating

Engineers, 438 F.Supp. 876,. 881 (S.D.N.Y.

1977).

Although this Court has indicated that a

Complainant in a Title VII action may estab-

lish a prima facie case by showing "that he

applied and was qualified for a job for which

the employer was seeking applicants", | the

Court explicitly stated that the facts to be

established in Title VII cases will neces-

sarily vary and the specification of the

*/ McDonnell Douglas Corp. v. Green, supra,

411 U.S. at 802.

ae : ee

prima facie proof suggested in McDonnell Douglas

is not necessarily applicable in every respect

to differing factual situations. McDonnell

Douglas Corp. v. Green, supra, 411 U.S. at

of 3

802, n.13. No Court applying the guidelines

established by this Court in McDonnell Douglas

has ever imposed a qualifications element as

part of a retaliatory dismissal claim under

Title VII until the Court of Appeals did so

in this case.

The majority indicated that qualifica-

tion of an employee relates to performance

requirements, which it believed to be part of

*/ The suggested guidelines in McDonnell

Douglas offer only a sample pattern of proof,

not an indication of substantive limits or the

only means of establishing a prima facie case.

See International Brotherhood of Teamsters v.

United States, 431 U.S. 324, 358 (1977);

McDonald v. Sante Fe Transportation Co.,

427 U.S. 273, 279 As6 tid7s) .

=» 32 «

a prima facie case. It also indicated that

pretext, on the other hand, relates to a

comparison between an employer's treatment of

the complaining employee versus the employer's

treatment of other employees in like sit-

uations. App. A, p.33a.

This artificial distinction misapplies

the purpose and intent of Section 704(a). A

person's job qualifications should not be

part of a prima facie retaliation case. It

is only in the second stage of proof outlined

in McDonnell Douglas when the employer can

respond to a prima facie retaliation claim by

offering a legitimate reason for dismissal

that the issue of an employee's qualifica-

tions becomes a factor. A person terminated

because Of retaliatory conduct is not claim-

ing he was qualified for a certain position,

but rather that he was terminated for engag-

ing in protected activity. There is no just

» 32 «

reason why an employee's qualifications need

be established as part of a prima facie case

in a retaliatory dismissal claim.

*/ This problem is especially pertinent here

where there was a serious question over the

Library's "purported" requirement that an

employee have a legal degree to obtain the

position of copyright examiner. Having a

legal degree was not required for one to

properly and capably perform the job of copy-

right examiner as evidenced by Williams’

excellent job performance as well as the

performance of many other white copyright

examiners who did not have a legal degree.

This requirement was confronted by Ms. Ringer

who stated at trial that she felt the legal

requirement was a mistake and she caused it

to be done away with sometime around 1973-

1974. There is reason to believe that the

legal degree requirement was just a facade

for discriminatory conduct, and if the issue

had been put to a test in the lower court, it

is unlikely that the Library could have met

the standard imposed by Griggs v. Duke Power

Co., 401 U.S. 431 (1971), that to avoid a

finding that the requirement was an unlawful

barrier, the employer must show that the

requirement bear a demonstrable relationship

to successful job performance.

» 34 <

CONCLUSION

For all of the foregoing reasons Peti-

tioner prays that a Writ of Certiorari issue

to review the judgment of the United States

Court of Appeals for the District of Columbia

Circuit.

Dated: March 9, 1981 Respectfully submitted,

Jerry S..Cohen

Michael D. Hausfeld

Steven J. Toll

Kohn, Milstein & Cohen

1776 K Street, N.W.

Washington, D.C. 20006

(202) 293-7110

Attorneys for

Petitioner

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1980

JOSLYN N. WILLIAMS,

Petitioner

DANIEL J. BOORSTIN,

Librarian of the

Library of Congress

Respondent

CERTIFICATE OF SERVICE

This is to certify that a copy of the

foregoing Petition for a Writ of Certiorari

was mailed, first class postage prepaid, on

this 9th day of March, 1981, to:

Office of the Solicitor General

Room 5614

Department of Justice

10th Street and Pennsylvania Ave., N.W.

Washington, D.C. 20530

be, TE

Len. LL’ JME

Steven J. foll

Kohn, Milstein & Cohen

1776 K Street, N.W.

Washington, D.C. 20006

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1684

JOSLYN N. WILLIAMS

DANIEL J. BOORSTIN, Librarian of the

Library of Congress, APPELLANT

Appeal from the United States District

Court for the District of Columbia

(D.C. Civil Action No. 1633-72)

Argued 11 June 1980

Decided 3 October 1980

Mark N. Mutterperl, Attorney, Department

of Justice with whom Alice Daniel,

Assistant Attorney General, Charles F. C. Ruff,

United States Attorney, and Robert E. Kopp,

Attorney, Department of Justice were on the

brief, for appellant. John A. Terry,

Assistant United States Attorney and

William Kanter, Attorney, Department of

Justice also entered appearances for

appellant.

Michael D. Hausfeld with whom Jerry S.

Cohen and Herbert E. Milstein were on the

brief, for appellee.

Before: BAZELON, Senior Circuit Judge,

TAMM and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit

Judge WILKEY.

Opinion filed by Senior Circuit Judge

BAZELON, concurring in the result.

WILKEY, Circuit Judge: We have before

us the case of a man who engaged in an

elaborate masquerade as a purported law

student, applicant for the bar, then

lawyer in order to obtain and keep a job

whose specific required qualifications

called for a lawyer. Unmasked, his de-

ception exposed, he was discharged, and

immediately thereafter brought suit against

his former employer, the Librarian of

Congress, alleging racial discrimination

under Title VII.

It is not disputed that the plaintiff

had lied on his job application where he

misrepresented his academic credentials;

it is not disputed that he lied on occasion

during his employment to carry out his mas-

querade; it is not disputed that he contin-

ued to lie even after his superiors con-

fronted him. The only issue is whether the

plaintiff was fired in violation of his

civil rights. The district court held that

Title VII of the Civil Rights Act of ory

was violated by the Library of Congress when

it terminated the plaintiff. We reverse the

district court on the ground that the

employment discrimination standard laid

down by the Supreme Court in McDonnell

1 42 U.S.C. §2000e et seq. (1976).

2 Williams v. Boorstin, 451 F.Supp.

aay (B.0.C.. 1978}.

Douglas Corp. v. Green is utterly incon-

sistent with a finding of discrimination in

this case.

I. FACTS

The appellee, Joslyn Williams, who was

not a lawyer, held a lawyer's job as a

GS-11 copyright examiner at the Library of

Congress. As of 11 August 1972 the

Library terminated his employment upon

learning of his lack of qualification and

misrepresentation of that fact. It was in

June 1972 that Williams received notice of

removal, but he was allowed to submit a

letter of resignation in lieu of termina-

tion by the Library. Two days before the

resignation was to become effective, he

attempted to rescind his resignation.

3 411 U.S. 792 (1973).

The Library refused to accept the withdrawal

of the letter of resignation, so Williams

was forced to leave the Library on 11 August.

The Director of Personnel, Robert W.

Hutchison, wrote a letter to appellee,

dated 11 August 1972, stating the Library's

reasons for continuing to insist on his

resignation:

As you know the Librarian had

already approved removal action

against you to be effective

July 21, 1972. You received

ample notice of the specific

charges with right to reply,

and written notice of final

decision. . . . The Acting

Librarian accepted your resig-

nation with a departure date

agreed upon three weeks past

July 21, 1972, specifically

August 11, 1972, because of

your desire to effect an orderly

transition and set in order

4 certain employee union business

in which you were engaged.

This new date of August 1l, 1972

was agreed to by the Library

solely because of your involve-

ment in these union matters,

and because the agency considered

it to be in its best interests to

resolve these union matters with

your assistance.

Williams then filed suit under Title VII of

the Civil Rights Act, 42 U.S.C. section

2000e-16, asserting that racially dis-

criminatory reasons motivated the Library

to terminate his employment and force him

to resign.

4 Reprinted in Joint Appendix (J.A.) at

206-07.

5 In a related case, Bostick v. Boorstin,

617 F.2d 871 (D.C. Cir. 1980) a panel of

this court heard the appeal of another em-

ployee of the Library of Congress who sued

for employment discrimination. Bostick

claimed that his job's "GS" classification

was too low. Another panel of this court

rejected the argument that impermissible

racial factors were responsible for the

Library's job classification scheme.

In Williams v. Mumford, 5ll F.2d 363

(D.C. Cir.) (rehearing en banc denied),

cert. denied, 423 U.S. 828 (1975), this

court dismissed the appeal pressed by

Joslyn Williams and Bostick challenging

District Judge Jones' refusal to certify

their lawsuit as a class action. Subse-

quently, the complaints of plaintiffs

Williams and Bostick were severed by the

district court. Memorandum and Order filed

on 20 August 1973, reprinted in J.A. at 80.

Williams started out at the Library in

1967 as a GS-4 in the law section. Ina

few months he moved up into a GS-7 slot

where he was an examiner in the Library's

6 ;

become a GS-1l and he applied for the GS-12

position of Senior Copyright Examiner. He

did not win this last spot.

Our exposition of the remaining factual

considerations will quickly highlight three

sets of facts: first, it is imperative

to appreciate the depth and persistence of

6 See Williams v. Boorstin, 451 F. Supp.

Lii7, L413-23 (D.D.C; 1978). After a trial

Judge Oberdorfer made findings of fact

which charted Williams' progression through

the Library, and catalogued his various

misrepresentations. We rely entirely on

Judge Oberdorfer's factual findings. We do

not, however, draw the same inferences he

did.

Mr. Williams' lies and their material

relation to his original job and later pro-

motions. Second, we will note Mr. Williams’

genuine talent and impressive role as an ad-

vocate of employee, especially black-

employee, rights. Third, we will look at

the factual basis for the trial judge's

inference that the Library retaliated

against Williams, wrongfully removing him

because of his advocacy.

A. LIES AND MISREPRESENTATIONS

Williams is part of that too broad

fellowship of educated men and women

everywhere who "pad" their resumes in-

flating their apparent strengths. Un-

fortunately, Williams went beyond simple

puffery and actually lied about his

educational accomplishments. These false

statements were criminal.

Directly under a warning in bold type

that "[a] false or dishonest answer to any

question in this application may be grounds

for rating you ineligible for Federal

employment, or for dismissing you after

appointment, and may be punishable by fine

or ee (U.S. Code, Title 18,

Sec. 1001)," Williams certified in his

27 January 1967 application that his

7 #18 U.S.C. § 1001 (1976). The penalty

for "false, fictitiovs or fraudulent" mis-

representations to an agency of the United

States is a fine of up to $10,000, or im-

prisonment for not more than five years,

or both.

8 Reprinted in J.A. at 135.

9 See id. at 132-35 (Application for

Federal Employment (Form SF 71).

10a

statements were true. In fact, they were

false--and materially so. He had success-

fully completed only one year at Dalhousie

University Faculty of Law, after which he

was not permitted to return because of aca-

demic detiues. This contrasts with

Williams' representation of two years of

successful law studies at Dalhousie. Fur-

thermore, because he believed that the Copy-

right Division preferred to hire lawyers and

law students as examiners, Williams

fabricated three years of law training at

Georgetown University. The truth, however,

10 See Stipulation of Facts, reprinted in

J.A. at 47; see also J.A. at 159-61,

231-32.

ll Id. at 47-48, 132-36.

12 Trial Transcript at 7, reprinted in J.A.

at 224.

13 See J.A. at 47-48, 132-36.

lla

is that Williams never enrolled in, at-

tendec or audited classes at ion.

He also misrepresented somewhat his college

studies at Howard University, thus en-

hancing the number of credit hours he suc-

cessfully tenes. To be sure, he did

actually receive a Bachelor of Arts degree

from iets. but this alone would not

have entitled him to any consideration

whatsoever for the position for which he

applied in 1967, and Williams knew this.

Williams perpetuated false represen-

tations about his education throughout

subsequent job applications for promotions

to levels GS-7 and GS-1ll, and in an un-

successful applicaticen for a GS-12 job.

14 See Defendant's Request for Admissions

and Plaintiff's Responses, reprinted in J.A.

at 66, 76; see also J.A. at 147, 232.

15 See J.A. at 156, 189, 230-31.

l2a

Though the opinion below reflected more-or-

less the plaintiff's falsifications, the

district court took a rather curious approach

toward them. We are at a loss to under-

stand the casual attitude evinced by the

district court in the following quotation:

By 1971, Williams had per-

formed at least satisfactorily

as an examiner and had risen to

Grade GS-1ll. When a position

as Senior Copyright Examiner

GS-12 became vacant, Williams

applied. He did not win the

position despite his taking

the calculated risk of represent-

ing (falsely) that he had at-

tended Georgetown from 1966

through 1970 and had received a

J.D. degree there. 7

16 (see p. lla) The degree was awarded

10 June 1960. See id.

17 Williams v. Boorstin, 451 F. Supp.

1117, 1119 (D.D.Cc. 1978) (emphasis added).

l3a

The court continued in this curious vein,

stating

soon after his employment at the

Library, Williams began to ex-

hibit lawyer-like skills far ex-

ceeding those normally found in a

law student or a novice lawyer.

He was accepted at the Library

as if he had credentials as a

lawyer, and represented employees

with grievances about unfair em-

ployment most effectively. 18

Since Williams was not a lawyer and did not

have the legal training he calimed, the

"calculated risk" he took was nothing less

than intentional deception. Williams' job

called for a lawyer but was occupied in-

stead by a mountebank; like all mountebanks

successful for a time he had talent in the

role he attempted, and probably could have

been equally successful in a related field

not requiring repeated falsifications had he

18 Id.at 1119-20 (emphasis added).

l4a

chosen to pursue his career honorably.

There is ample evidence in the record

that Mr. Williams was hired for lawyers’

jobs, because among all the applicants he

appeared to be relatively better qualified on

the scale of legal odiceeaee In fact,

when his application for a promotion to a

full-time job at GS-7 in the Copyright

Office was considered, the Personnel Action

Recommendation recited in detail his

(purported) academic credentials, stating

that Williams "will receive his LL.B.

degree [from Georgetown] in June 1969."

19 It was gaps in his claimed educational

background which were eventually noticed by

his superiors, resulting in the inquiry

which unmasked him.

20 See Personnel Action Recommendation,

reprinted in J.A. at 137-38.

21 Reprinted in J.A. at 139-40.

l5a

The Recommending Officers were impressed with

Williams. They wrote:

Although Mr. Williams does not en-

tirely meet the posted qualifications

in that he does not yet have a law

degree, we believe that his varied

experience and his overall qualifi-

cations make him an unusually

promising applicant. We therefore

request that an exception be made to

the posted qualifications. 22

In a later memorandum, one of the Recom-

mending Officers confirmed that "[i]t was

principally because of his alleged past

and continuing law school experience that

we decided to recommend Mr. Williams'

23 As

appointment as a Copyright Examiner."

noted above, Williams perpetuated his story

in each of four job applications including

the entry-level one. He perpetuated his

22 Id. at 140 (emphasis added).

23 Id. at 155.

l6a

ruse by “acting like a lawyer"--in the words

of the district court, "[leading] his friends

and his critics to believe him to be a

trained and effective lawyer"24~-~ana re-

questing leave in 1970 and again in 1971 sup-

posedly to study and sit for the Maryland bar

examination. ?>

Naturally--or, at least reassuringly--

it was discovered eventually that Williams

as a lawyer was a fake. In a Library

training session on copyright law, Williams

apparently did not quite "think like a

lawyer," thereby arousing the suspicion of

the instructor. This suspicion prompted an

investigation. The complete record of

24 Williams v. Boorstin, 451 F. Supp. 1117,

L121 (8.0.0. i976).

25 Trial Transcript at 146, reprinted in

J.A. at 234.

Ree OO Pe it A em

l7a

continuous deceit was then revealed, and,

after a period of stubborn false denials,

subsequently conceded by Williams. An

egregious record like this one hardly poses

the ideal case for a whisper of a racial

discrimination complaint, let alone an em-

ployment discrimination lawsuit.

B. WILLIAMS AS ADVOCATE AND EMPLOYEE

REPRESENTATIVE

In the words of the district court,

Williams "was a 'leader,'" he "was a

"symbol to blacks. '"6

The record supports

this characterization, and we accept it.

Neither these accomplishments, nor the

personal tragedy exemplified in Williams'

rise and fall, however, convert this un-

successful masquerade into a valid Title VII

26 Williams v. Boorstin, 451 F. Supp. 1117,

Aid. (B.DiC. 2978).

18a

discrimination claim. Obviously, Williams

was talented and articulate. He would have

to be. He was, after all, promoted on var-

ious occasions and had gained the respect of

his superiors and fellow workers. He was

elected in 1970 as president of Local Em-

ployees Union AFGE Local 1826, and as

general counsel of the "Black Employees of

the Library of Congress" organization.?/

Williams led several personal appeals rais-

ing questions about employment practices in

the Library. In one extramural appeal,

Williams presented a resolution to the

American Library Association Council

“calling for an inquiry into alleged dis-

crimination in recruitment and promotion at

27 Id. at 1120.

19a

n28

the Library. The inquiry was undertaken

over the Library's objection, and with the

29 The rec-

diligent assistance of Williams.

ord easily supports the view that Williams

was a skillful and effective advocate; one

whose efforts to combat alleged prejudice

might have been described as "militant. ">?

C. FACTS RELATING TO THE DISTRICT

COURT'S INFERENCE OF RETALIATION

We have noted in the preceding section

that Williams was a powerful proponent of

the rights of black employees at the

Library. There is also some evidence to

28 a. at il2l.

29 Id. It appears that "[t]he inquiry

team later concluded that there was insti-

tutional discrimination (albeit inadver-

tent) in Library employment practices." Id.

30 See id. at 1123; Brief for Appellee at

39.

20a

support an inference that Williams' initiative

and participation in the American Library

Association Council ("ALA") inquiry may have

embarrassed the Library. 31 The district

court's next step in the chain of inference,

however, was something of a post hoc, ergo

propter hoc conclusion. The Court wrote:

So, aS was inevitable, it happened...

when Williams' ALA activity was

reaching a crescendo, an instructor

in the Copyright Division, re-

flecting about Williams' awkward

responses to some technical legal

problems in copyright training

sessions, began privately to_ques-

tion Williams' credentials.

Simply concluding tnat "there was

evidence that the Library did not always

cooperate enthusiastically" in administrative

31 Williams v. Boorstin, 451 F. Supp. 1117,

Skah (1.0.6. 1978).

32 Id.

2la

proceedings, the court was impressed with

the testimony of “one witness. .. that

part of the problem in resolving discrim-

ination complaints relates to the absence

of people who are willing and, more im-

portantly, able to stand up for employees

who have grievances; Williams was the only

really efficient, effective person avail-

able."33 The court found that since

Williams' antidiscrimination pursuits were

not entirely unfounded, the "Library. . .

had understandable reasons for reacting

Significantly to Williams' anti-discrimin-

n34

ation activities. Furthermore, the court

33 Id. at 1122.

34 Id.

22a

was persuaded that there was

threat and provocation inherent in

Williams' efforts with respect to

Library employment practices. It

would have required saintly dis-

Ccipline for these particular

Library managers not to be in-

fluenced in deciding to terminate

him by hostility against his

efforts to aygose discrimination at

the Library. 3

Again, we see signs of post hoc, ergo propter

hoc in the court's inferences which it couched

in the subjunctive language underscored above.

What "could have been" is never alone a

sufficient foundation for a finding of what

really "was," and what "could have been" is

the language of the district court on this

point. The district court recites no act,

word or deed hostile or discriminatory to

Ja Id. at 1123.

— —-

23a

Williams, either in his presence or among

Williams' superiors in private, prior to

their discovery of his career of complete

deception.

Though the court below somehow found

that the Library management was "hostile" to

Williams' leadership role,

[t]he Court fully accepts the

testimony of the Library officials

that they were without prejudice or

bias against minorities, in gengr-

al, or Williams in particular."

This conclusion, we agree, is easily warranted

by noting Williams' rapid rise through the

GS levels at the Library as well as re-

calling an exception made to the posted

qualifications that had opened up a job for

him. > What the record plainly demonstrates

36 Id.

a7 See note 22 & accompanying text supra.

24a

is that Williams' superiors were always

favorably impressed with his ability, his

poise and articulateness, and that they

were convinced of his promize as a continu-

38 This is what "was,"

ing Library employee.

and this obviously refutes speculation as to

discrimination which only "could have been."

38 E.g., Personnel Action Recommendations,

reprinted in J.A. at 139-40, 142-43;

United States Government Memorandum, re-

printed in J.A. at 198-200.

We realize that the district court may

have been influenced by some evidence of

discriminatory practices by the Library

with regard to other Library employees.

In fact, the court's decision can really

only be explained in the context of broad-

based discrimination which was strongly

argued to the district court by the plain-

tiffs, and to this court on appeal. This

suit is not a class action. See Williams v.

Mumford, supra note 5, 51ll F.2d 363.

Consequently, in this case, evidence of

systematic or general instances of dis-

crimination can only be collateral to

evidence of specific discrimination

against the actual plaintiff. We deplore

whatever instances of discrimination have

25a

38 (footnote cont. from preceding page)

occurred at the Library. We applaud any

efforts, including those of Williams, to

redress each violation of civil rights.

But the case at bar concerns Williams only

and we are unavoidably constrained by the

facts pertaining directly to his case. At

the very least, it is inappropriate to rely

on extrapolation from general evidence of

discriminatory episodes when there is avail-

able specific evidence directly relevant to

the particular plaintiff.

The district court was evidently

ambivalent; it has provided us with a

contradicto:y message regarding discrimin-

ation against Williams himself. The court's

inferences are in contrast with undisputed

facts. For example, we have quoted in text

where the district court explicitly accepts

that the Library management was without

animus toward Williams. The specific evi-

dence here does not support an inference of

discrimination against one Joslyn Williams.

This, of course, explains in part why the

district court held for the plaintiff but

declined to reinstate him in his position

at the Library. The court ordered instead

a “unique remedy" requiring the Library "to

establish and contribute financially to the

maintenance of a [legal fund] service for

the benefit of Library employees with bona

fide discrimination grievances." 451 F. Supp.

at 1127. In light of our holding that there

was no violation of Title VII and after

26a

38 (footnote cont. from preceding page)

Congress's Act of September 30, 1978,

Pub. L. No. 95-391, § 308,92 (Stat. 789,

barring public expenditures by agencies

for legal representation of employees

(unless authorized by Congress), the

remedy is as moot as it is "unique."

27a

II. ANALYSIS

Williams' undetected lies induced the

Library of Congress to hire him just as the

revealed lies later induced the Library to

fire him. This is the admitted lawful motive

for the discharge. The question in this case,

then, is only whether the Library terminated

him also in unlawful retaliation for (a) his

opposition to alleged discrimination by the

Library and (b) his participation in anti-

discrimination efforts, both protected

activities under Title VII. We reverse and

39. Specifically, the provision reads:

(a) It shall be an unlawful employ-

ment practice for an employer to

discriminate against any of his

employees or applicants for employment,

for an employment agency, or joint labor-

management committee controlling ap-

prenticeship or other trianing or

retraining, including on-the-job training

28a

hold that the district court's analysis of its

own factual findings misapplied the appli-

cable legal standard enunciated in McDonnell

Douglas Corp v. Green, 411 U.S. 792 (1973).

(footnote continued)

programs, to discriminate against

any individual, or for a labor

Organization to discriminate against any

member thereof or applicant for mem-

bership, because he has opposed any

practice made an unlawful employment

practice by this subchapter, or

because he has made a charge, testified,

assisted, or participated in any manner

in an investigation, proceeding, or

hearing under this subchapter.

42 U.S.C. § 2000e-3 (1976).

29a

A. The McDonnell Douglas Standard

The McDonnell Douglas standard prescribes

the sequence of proof which a rejected job-

applicant must offer to establish an instance

of discrimination in the workplace under

Title VII. Likewise, McDonnell Douglas

applies in retaliation cases where employers

discharge or fail to promote employees who

have engaged in activities fighting discri-

nation. The McDonnell Douglas approach

directs a Title VII plaintiff to make out a

prima facie case of retaliation, thus

40. For Title VII retaliation cases

applying McDonnell Douglas, see, e.g.,

Womack v. Munson, 619 F.2d 1292, 1296 (8th

Cir. 1980) (rehearing and rehearing en banc

denied); Williams v. Bell, 587 F.2d 1240,

1245-46 n.45 (D.C. Cir. 1978); Rogers v.

McCall, 488 F. Supp. 689, 699 (D.D.C. 1980).

30a

shifting to the detendent employer the burden

of rebuttal. The employer then may demon-

strate a legitimate and nonretaliatory reason

for discharging or not promoting the plaintiff.

Such a reason would dispel the inference of

retaliation. Classic examples of legitimate

reasons might be the plaintiff employee's

lack of qualifications or subsequent dis-

qualification, or, the elimination of the job

for other business purposes. If the em-

ployer adduces a lawful reason for his

41. See International Brotherhood of

Teamsters v. United States, 431 U.S. 324, 358

n.44 (1977).

We recognize that the issue of

"qualifications" is relevant at each stage of

McDonnell Douglas analysis. It arises first

in the context of a prima facie case, but as

the crucial factor in employer-employee

relations qualifications are as important at

the "rebuttal" stage and at the "pretext"

stage. See notes 42-45, 54-55 & accompanying

text infra.

3la

adverse act, the employee may show, in the

final step of McDonnell Douglas analysis, that

the employer's reason is merely a "pretext"

covering up unlawful retaliation through the

guise of innocent business planning.

McDonnell Douglas is thus more like a map of

shifting burdens than it is like a substance-

laden rule. "Rather, it is merely a sensible,

ord?rly way to evaluate the evidence in light

of common experience as it bears on the

critical question of discrimination."

In the guidelines for a prima facie case

McDonnell Douglas suggested one critical

element for evaluating Title VII claims of

employment discrimination. That factor is

one of adequate qualification for the job on

42. Furnco Construction Corp. v. Waters,

438 U.S. 567, 577 (3978).

32a

the part of the complaining employee.

Qualification on the part of the employee,

then, would seem to be almost indispensable

to a Title VII violation. Title VII imports

no suggestion that the less qualified shall

be favored over the more qualified simply by

virtue of their connection with some protected

43. McDonnell Douglas, 411 U.S. at 802.

Other elements of the prima facie case include:

membership in a racial minority, application

and rejection from an available job, applica-

tions for same job entertained by employer,

qualifications of other applicants equivalent

to those of complainant. Id.

McDonnell Douglas is to be flexibly applied

to different circumstances, of course. See

McDonald v. Santa Fe Trail Trans. Co., 427

U.S. 2/3, 379 n.6 (1976).

44. See Womack v. Munson, 619 F.2d 1292, 1296

(8th Cir. 1980) (rehearing and rehearing en

banc denied) (applying McDonnell Douglas in

case of retaliatory termination).

33a

antidiscrimination activity. No good reason

exists for allowing a non-qualified employee

to invoke Title VII to cure deficiencies in

his or her qualifications, or to immunize

potentially serious defects in the worker's job

profile. It would be incongruous--and

certainly not required by law--to give any

employee, even one engaged in exemplary efforts

to vindicate the law of the land, a strangle-

hold on a job irrespective of that employee's

material, work-related flaws.

The prima facie showing relates qualifi-

cations of the particular employee to per-

formance requirements of the particular job.

A demonstration of pretext, on the other hand,

relates the employer's actual treatment of the

particular employee with his or her actual

45. See Griggs v. Duke Power Co., 401 u.S.

424, 436 (1971).

34a

treatment of other employees in like

situations. This line of inquiry may bring

out comparative evidence tending to show that

the official employment policy regarding the

availability of jobs was just a sham--in other

words, that an employer treated one group

differently from another and was drawing

impermissible race distinctions by granting

ad hoc variances to the "policy" which

allegedly fixed performance requirements.

If the pretext state of McDonnell

Douglas analysis is reached at all, it is then

that the question of mixed causation--i.e.,

retaliation plus legitimate business purpose--

must be pondered. Appellant Librarian has

argued that a Title VII violation is made out

only if the employee would have retained his

job but for any retaliatory motive. Appellee

46. Brief for Appellant at 53.

35a

Williams, on the other hand, argues that a

"hint" of retaliation would suffice to make a

showing of pretext and thereby prove a Title

VII violation under McDonnell Douglas. The

cases cited to us by appellee imply, mostly by

analogy, that adverse action against employees

partially undertaken for lawful purposes and

partially undertaken for unlawful retaliatory

purposes constitutes a violation of Title

ie The law in this circuit, however, is

clear. The but for test applies.

47. Brief for Appellee at 44.

48. E.g., Pettway v. American Cast Iron Pipe

Co., 411 F.2d 998 (5th Cir. 1969); EEOC v.

Kallir, Phillips, Ross, Inc., 401 F.Supp. 66

(S.D.N.¥. 1975).

49. See Weahkee v. Perry, 587 F.2d 1256

(D.C. Cir. 1978); Rogers v. EEOC, 551 F.2d

456 (D.C. Cir. 1977); Day v. Mathews, 530

P.ae £9603 (D.C. Cit. i976).

36a

Adapting the language of Day v.

Matthews to this case, the but for test

might be stated as follows: If the plaintiff

has made a showing of "pretext," the defendant

employer must then demonstrate by clear and

convincing evidence that the plaintiff would

have lost his job anyway absent retaliation

for the plaintiff's participation in protected

conduct. This standard is plainly correct, as

it not at all precludes a finding of a Title

VII violation when an employer acts from mixed

motives. The mere presence of a legitimate

purpose underlying the discharge will not

sterilize unlawful retaliation, where the

latter is in fact the dispositive cause. The

but for standard simply compares the adversity

faced by the plaintiff employee (who had

engaged in conduct protected by Title VII)

50. 530 F.2d at 1086.

37a

with conditions imposed on similarly situated

employees who did not engage in protected

conduct.

SL. CE. Mt. Healthy City Board of Ba. ¥.

Doyle, 429 U.S. 274, 286 (1977) ("But that...

[marginal] candidate ought not to be able, by

engaging in such conduct, to prevent his

employer from assessing his performance

record and reaching a decision not to rehire

on the basis of that record, simply because

the protected conduct makes the employer more

certain of the correctness of its decision.")

(Justice Rehnquist writing for a unanimous

Court considering a First Amendment con-

stitutional challenge against an unfavorable

tenure decision).

38a

B. THE STANDARD APPLIED

When the facts found by the district

court and McDonnell Douglas are juxtaposed,

it is plain that no Title VII offense has

occurred here. Mr. Williams or any other

Library employee, civil rights advocate or

otherwise, could simply never be entitled to,

nor expect to retain, his or her job after

establishing such a formidable record of

lying to his employer. Trustworthiness,

reliability, veracity, good judgment -- these

are all material qualifications for any job,

including one as a Copyright Examiner, a

job also requiring of the office holder a

law degree.

As noted above in Part A of this section,

qualification of the complainant is the

pivotal component of the McDonnell Douglas

39a

prima facie case. It is clear that from the

Outset Williams was not qualified for the job

which he held. He was not a lawyer; the

fact that his work product was respected by

his superiors does not remedy the credentials

gap. (It is significant that, as a practical

matter, the absence of legal training showed

up in Williams' responses to technical

inquiries; the absence of credentials meant

more than the lack of a piece of paper.) A

lawyer is a lawyer -- a non-law school grad-

uate, who is not admitted to the bar, may

attempt, with some success, to do a lawyer's

job, but it will only be a deception and a

fraud. The analogy to medicine is telling.

A quack doctor may be acknowledged as pro-

viding some relief to some patients, yet

once the lack of license is discovered, the

40a

liberty to practice is foreclosed, absolutely.

A second defect in Mr. Williams' prima

facie case can be characterized as’ disquali-

fication. The lying itself, also from the

outset, made him an unfit employee of the

Library of Ccngress, wholly apart from the

question of his not being a lawyer or his

serving well in assigned tasks. The district

court totally failed to appreciate the real-

life decisions that an employer must con-

front. How could Mr. Williams have been

retained? Could a responsible Librarian of

Congress overlook the before, during, and

after chain of falsehoods employed by Williams

ro keep his government job? What would have

52 See Aikens v. United States Postal

Service Board of Governors, No. 79-1574,

slip op. at 6-7 (D.C. Cir. 31 July 1980)

(Wilkey, %., dissenting) (dissent filed 9

September 1989).

4la

been the morale of the other employees of

the Library, their view of the standards

of honesty, probity, good judgment required

by (and of) their superiors to hold a posi-

tion of trust and responsibility at the

Library? (In this respect, Mr. Williams’

achieved prominence made it even more diffi-

cult for a conscientious administrator to do

anything but discharge him.) We must agree

with appellant that

Since it is a criminal offense

to make false statements on federal

employment applications and termin-

ation of employment is a univer-

sally accepted disciplinary action

in cases of this sort, it is clear

that plaintiff would have been fired

notwithstanding any retaliatory

motive which may have existed. 53

Under all the admitted circumstances, we

think it virtually impossible for the

Librarian to have acted other than to dis-

53 Reply Brief of Appellant at 12.

42a

charge Williams.

Though not required, it is sensible to

double-check at this stage our holding of no

prima facie case by considering the pretext

question. There are, of course, illuminating

interrelations among all of the Title VII

considerations. We see that the but for

test is easily satisfied in favor of the

employer appealing to this court. The

district court made no explicit finding that

the Library's admittedly legitimate reasons

for firing Williams were "pretextual." The

employee's falsification, he admits and the

district court found, was knowing and will-

ful. It was also criminal - a compelling

54 See Trial Transcript at 158-59,

reprinted in J.A. 237-38.

3a 55

factor in any employee retention decision.

Not only is there no evidence that the

Library was "just waiting" for an opportunity

to invoke some spurious "legitimate" reason

to sack Williams for embarrassing the

25tn the McDonnell Douglas case itself,

the Court indicated that there was no statu-

tory need for the defendant employer to hire

a plaintiff employee who engaged in unlawful

disruptive activity against the employer.

411 U.S. at 803 & n.17, 804. The disruption

in McDonnell Douglas was tainted and dis-

qualified even though it implicated efforts

to combat discrimination. The illegality

in the instant case bears no relation to an

affirmation of civil rights. Lying on appli-

cation forms and in interviews is reprehen-

sible and without justification as part of

an antidiscrimination arsenal. If the appel-

lee truly sought to topple what he may have

believed were differential educational

requirements for black and white Library

employees, he could have challenged the

allegedly invidious rule in an Equal Employ-

ment Opportunity Commission proceeding. A

complainant with "cleaner hands" would have

been a persuasive Opponent of any veiled

employment practices at the Library.

44a

Library by his vocal opposition of discrimi-

mation, but it is quite clear that, com-

paratively speaking, Williams received only

his due. In previous instances of falsifi-

cation by Library employees, four were removed

and one was demoted and transferred. The one

who was not discharged was black, the race

of the others is not known, The district

court inevitably recognized that the con-

56In fact, the evidence is to the contrary.

Williams had received various promotions and

favorable ratings. See notes 6, 20-22 &

accompanying text supra.

S57see J.A. at 162, 214-16, 243, 267;

Brief of Appellant at 15-22.

45a

tinued employment of Williams was untenable;

presumably, the district court did not order

Williams reinstated because of the anomaly

and injustice to do so. The district court

faulted the Library for disciplining an

errant employee, but would not itself reward

the mendacious plaintiff. Williams was

not a victim at all. He was the responsible

agent in his own termination, "generat[ing]

his own fate" by choosing an unlawful route

to employment opportunity.

58c¢. williams v. Boorstin, 451 F.Supp.

1117, 1126 (D.D.c. 1978) ("But Williams also

falsely represented himself to be first a

law student and then a law graduate. No

court should take such calculated falsehoods

lightly.") (footnote omitted).

"see Rogers v. McCall, 488 F.Supp. 689,

699 (D.D.C. 1980).

46a

CONCLUSION

We believe that appellee was reasonably

and lawfully discharged for his admitted

falsifications and demonstrated failure

of integrity. Consequently, the judgment

below finding a Title VII violation is

REVERSED.

47a

BAZELON, Senior Circuit Judge, concurring

in the result: In view of the compelling

legitimate reason for the defendant's action,

the record does not support the finding

that retaliation was a

of dismissal. I therefore join the court's

judgment. I am not prepared, however, to

agree with two problematic propositions of

law unnecessary to the result.

First, neither precedent nor reason

explains why an employee's qualifications

must be a "critical element" of a discrimi-

natory dismissal claim. Contrary to the

1 Williams v. Boorstin, 451 F.Supp. 1117,

Baas {0-0.C. 1976).

2 Majority Opinion (Maj. Op.) at 15.

48a

majority's suggestion, the Supreme Court in

McDonnell Douglas v. Green did not intend

to define the elements of every employment

4 -

discrimination claim; that case involved a

3 411 U.S. 792 (1973).

4among the elements of a prima facie case

listed in McDonnell Douglas was "that [the

plaintiff] belongs to a racial minority."

411 U.S. at 802. In McDonald v. Santa Fe

Trail Trans. Co., 427 U.S. 273 (1976), the

Court found that Title VII prohibited dis-

crimination against all races. The Court

noted;

Our discussion in McDonnell Douglas

Corp.v. Green ... of the means by

which a Title VII litigant might

make Out a prima facie case... is

not contrary. There we said that

a complainant could establish a

prima facie case by showing [that

he belonged to a racial minority;

applied and was qualified for a job

for which he was rejected; and,

the position remained qen]. As we

particularly noted, however, this

"specification...is not necessarily

applicable in every respect to

differing factual circumstances."

Id., at 802 n. 13.

49a

refusal to hire. The qualifications issue

here, on the other hand, seems to be an

427 U.S. at 279 n.6 (emphasis supplied).

McDonnell Douglas offered only a "sample

pattern of proof," which was "not...an indi-

cation of any substantive limitation..."

427 U.S. at 279 n.6.

The majority contends that Womack v.

Munson, 619 F.2d 1292, 1296 (8th Cir. 1980),

and Rogers v. McCall, 488 F.Supp. 689, 699

(D.D.C. 1989), support application of

McDonnell Douglas to retalitory dismissal

clainis, see Maj. Op. at 13-14 & n.40. But

in neither case did the court make "qualifi-

cations" an element of retaliation; instead,

these courts applied the standard found in

B.SCHLEI & P. GROSSMAN, EMPLOYMENT DISCRIMI-

NATION LAW 436 (1976) (prima facie case

includes: (1) protected activity; (2)adverse

employment action; (3) causal connection;

burden then shifts to employer to show legiti-

mate reason for dismissal). See Gonzalez v.

Bolger, 486 F.Supp. 595, 601 (D.D.cC. 1980).

Outside this case law, no substantial

reason is suggested why qualifications must

be an element of a retalitory dismissal

claim. The majority's concern that a "non-

qualified employee [will] invoke Title VII

to cure [his] deficiencies," Maj. Op. at 15,

seems to Overlook the second stage of proof

Outlined in McDonnell Douglas. At that stage,

the employer can respond to a prima facie

50a

arbitrary barrier to consideration of the

merits; the plaintiff was fired not because

he lacked qualifications, but because he

lied about them.

Second, the adoption of a "but-for"

standard of causation is both unexplained

and unnecessary to the decision i The

majority finds that "[{t]Jhe law in this

circuit...is clear." Although retaliation

has been recognized as a dangerous threat

retaliation claim by offering a legitimate

reason for dismissal, which might include

lack of qualifications.

SMaj. Op. at 16.

5la

"to the effectiveness of the Act," none of

the cases relied upon by the majority involved

retaliation. Nor is any other explanation

offered for this standard. Moreover, in view

of the court's ruling on the qualifications

issue, its discussion of causation must be

7EEOC v. Kallir, Phillips, Ross, Inc.,

401 F.Supp. 66, 72 (S.D.N.Y. 1975), (Weinfeld,

J), atf'd,559 F.2@ 1203 (28 Circ.), cert.

denied, 434 U.S. 920 (1977). See Pettway v.

American Cast Iron Pipe Co., 411 F.2d 998

(Sth Cir. 1969). Retaliation represents more

than a discreet act of discrimination; it

also threatens to chill enforcement of the

Act's guarantees. See Gonzalez v. Bolger,

486 F.Supp. 595, 691 (D.D.C. 1980).

8see Ma}. Op. at n. 49 (Weakhee v. Perry,

587 F.2d 1256 (D.C. Cir. 1978); Rogers v.

Eroc, 551 F.2@ 456 (D.C. Cir. 1977)3 Day Vv.

Mathews, 530 F.2d 1083 (D.C.Cir. 1976).

%The Eighth Circuit did apply the but-for

standard to a retaliation claim in Womack v.

Munson, 619 F.2d 1292 (8th Cir. 1989). Cf.

Monteiro v. Poole Silver Co., 615 F.2d 4, 9

(lst Cir. 1989) (retaliatory motive must be

"determinative factor" of dismissal). But

52a

considered dicta.

a lower causation standard was applied in

EEOC v. Kallir, Philips, Ross, Inc., 40l F.

Supp. 66, 72 n.17 (S.D.N.Y.), where Judge

Weinfeld rested a Title VII violation on a

finding of "partial" retaliatory motivation.

In Gonzalez v. Bolger, 486 F.Supp. 595, 692

(D.D.CcC. 1989), the court considered whether

the employer's claimed justification was

"in fact a pretext for retaliatory animus...."

I do not suggest which of these standards

is appropriate. These facts do not require

us to choose a standard for this circuit; the

evidence did not support the finding below

that retaliation was a "substantial" cause

of dismissal. I believe majority to adopt

a higher standard than the one applied by

that under these circumstances it is inappro-

priate for the trial court.

APPENDIX B

Joslyn N. WILLIAMS, Plaintiff,

Vv.

Daniel J. BOORSTIN, Defendant.

United States District Court,

District of Columbia,

Civil Division.

April 4, 1978.

Jerry S. Cohen, Michael D. Hausfeld, Kohn,

Milstein & Cohen, Washington, D.C., for

plaintiff.

Earl J. Silbert, U. S. Atty., Robert N.

Ford, Asst. U. S. Atty., James G. Hergen, U. S.

Dept. of Justice, Washington, D.C., for

defendant.

MEMORANDUM

OBERDORFER, District Judge.

Plaintiff, Joslyn N. Williams, is a

leader of black employees of the Library of

Congress. He brought this suit in 1972 charg-

ing that on August 11l of that year, the

Library deprived him of his job as Senior

criminatory reasons and for exercising his

First Amendment right of free speech in chal-

lenging what he saw as employment discrimina-

tion at the Library. The Library claims Wil-

liams' employment was terminated because he

made material misstatements about his employ-

ment qualifications.

In ar amended complaint, Robert L. Bos-

tick joined Williams as plaintiff, and to-

gether they sought to represent all black per-

sons who worked or applied to work at the Li-

brary since 1960. On behalf of the class,

they sought relief for a wide variety of em-

ployment practices dealing with recruitment,

hiring, promotion, and termination alleged to

violate Title VII of the Civil Rights Act of

a as well as the First and Fifth Amend-

ments to the Constitution. On August 20, 1973,

Chief Judge William B. Jones denied plaintiffs'

motion for class certification and severed the

ha 42 U.S.C. § 2000e et seq.

claims of Williams and Bostick. Our Court of

Appeals dismissed plaintiffs' appeal of that

eee and on February 12, 1976, Chief Judge

Jones denied plaintiffs' motion for reconsider-

ation of the class action determination. This

memorandum deals. only with the claims of

Williams.

Initial pretrial proceeded under the su-

pervision of Judge Jones until November of

1977, when the case was reassigned. There

followed additional elaborate pretrial pro-

ceedings and a trial to this Court extending

over seven days. At the trial, plaintiff,

some Library employees friendly to him, and

the principal Library officials involved in

his case, appeared and testified at length;

Zs Williams v. Mumford, No. 1633-72 (D.D.C.,

August 20, 1973).

iF Williams v. Mumford, 167 U.S.App.D.C.

125, 511 F.2d 363 (1975) (rehearing en banc

denied), cert. denied, 423 U.S. 828, 96 S.Ct.

47, 46 L.Ed.2d 46 (1975).

voluminous documentation was received in evi-

dence. In the course of the pretrial and of

the trial, the Court denied plaintiff's re-

newed motion for class action certification

and refused to receive in evidence plaintiff's

proffers of expert and other testimony about

employment discrimination at the Library gen-

erally. On the basis of the relevant evidence

of record, as summarized in the narrative be-

low, the Court will enter judgment for Wil-

liams. Injunctive relief appropriate to the

special circumstances of this case will be

granted, and Williams' prayer for back pay

will be denied.

Williams' Activities at the Library of Congress

Williams obtained his first job at the

Library in 1967 as a GS-4 in the law library.

He had graduated from Howard University and

had earned one year's credit for legal studies

at the Dalhousie Faculty of Law, Halifax, Nova

Scotia. Believing, with some reason, that the

Library preferred law students for positions

in the law library, Williams falsely stated on

his application that he was attending "George-

town," leaving the erroneous impression by

this and other statements and by his conduct

that he was in the process of completing law

school. A few months later, Williams obtained

a GS-7 position as an examiner in the Library's

son, that the Copyright Division preferred

examiners who were law students or lawyers,

Williams falsely represented that he was then

attending law school.

By 1971, Williams had performed at least

satisfactorily as an examiner and had risen to

Grade GS-1l. When a position as Senior Copy-

right Examiner GS-12 became vacant, Williams

applied. He did not win the position despite

his taking the calculated risk of representing

(falsely) that he had attended Georgetown from

1966 through 1970 and had received a J.D.

degree there.

Meanwhile, soon after his employment at

the Library, Williams began to exhibit lawyer-

like skills far exceeding those normally found

in a law student or a novice lawyer. He was

accepted at the Library as if he had creden-

tials as a lawyer, and represented employees

with grievances about unfair employment most

effectively. In 1970, Williams was elected

president of Local Employees Union AFGE Local

1826, and general counsel of an organization

known as the Black Employees of the Library of

Congress. Appearing for his union at a meet-

ing with Library officials about employment

practices, he attracted the favorable atten-

tion of Robert W. Hutchinson, Director of Per-

sonnel at the Library. To Hutchinson, Williams

showed great promise as a leader. Hutchinson

noted Williams' ability to articulate the pro-

blems, viewpoints, and concerns of union mem-

bers, to deal reasonably, to see the manage-

ment side, and to act with integrity in deal-

ing with the concerns of others. Hutchinson

described Williams as a leader and ad hoc law-

yer who was “needed at the Library."

In 1971, minority employees in the Li-

brary's Stack and Reader Division chose to ex-

press their dissatisfaction with Library em-

ployment practices by conducting a work stop-

page. After consultation with the Department

of Justice, the Library discharged a number of

the participating employees. Williams inter-

ceded on their behalf, and represented them in

an unsuccessful attempt to regain their jobs

by appeal through the Library's administrative

process.

In the wake of the Stack and Reader epi-

sode, Williams made a presentation about Li-

brary employment practices to some Library of-

ficials, including Ms. Barbara Ringer, then

Assistant Register of Copyrights. Williams'

presentation alerted Ms. Ringer to the depth

of the feeling of minority employees and what

she came to see as the justice of their griev-

ances about recruitment and promotion of

minority employees. She obtained authority

from her superios, Register of Copyrights,

Abraman Kaminstein, to attempt some adminis-

trative redress of these grievances. In the

process she wrote a memorandum to the Li-

brarian. The memorandum was not well received

by the Librarian; he strongly criticized her

for it. About one month after Ms. Ringer be-

gan her effort to improve administration to re-

lieve some of the minority employee grievances,

Ms. Ringer's administrative authority was re-

voked by Kaminstein pursuant to a directive by

the Librarian. Thereupon, the Librarian re-

tired Kaminstein from his office as Register,

and, without proper competition or posting,

persuaded George Cary, another Assistant Reg-

ister, to take Kaminstein's place as Register.

4. Ms. Ringer subsequently brought an action

before Chief Judge Jones in which she success-

fully challenged the procedure followed by the

Librarian in the appointment of Cary, Ringer v.

Mumford, No. 2042-72 (D.D.C. 1972) (Jones, C.J.)

(footnote continued)

SS. ee aa Vee

Williams actively and publicly opposed the ap-

pointment of Cary as Register and circulated a

controversial petition supporting Ringer for

the position. Cary testified here that he con-

sidered himself to be an "old fashioned" per-

son who believed in merit promotion for people

who do their job, but who did not believe in

promoting people who "spend their time making

a lot of noises which is distractive to the

efficiency of any office." He testified that

while he had recognized that the union had a

place, Williams spent too much time on union

activities.

When Congress was considering legislation

to extend Title VII to employees of the exec-

utive branch of the federal government,

(footnote continued)

Thereafter, on August 10, 1972, a Library

hearing officer determined that there had been

discrimination in the decision to select Mr.

Cary instead of Ms. Ringer as Register. Fol-

lowing the correct procedure, the Library se-

lected Ms. Ringer Register, replacing Cary,

who retired. She holds that position now.

10b

Williams drafted and successfully advocated le-

gislation to include employees of the Library

of Congress within Title VII.

In 1971, as Cary was replacing Kaminstein

and Ms. Ringer was becoming occupied outside

the Copyright Division in international copy-

right affairs at the United Nations Educa-

tional, Scientific and Cultural Organization,

Williams undertook and pursued a personal ap-

peal to the American Library Association

Counsel about employment practices at the

ete In June 1971, he presented to the

Counsel a resolution calling for an inquiry

into alleged discrimination in recruitment and

promotion at the Library. Al*hough John G.

Lorenz, Deputy Librarian, personally spoke in

Se The American Library Association is a

private association of institutional members,

including the Library of Congress, and pri-

vate members, including Williams, well re-

spected by the American Library community. It

maintains a Standing Committee for the pur-

pose of investigating employment policies and

practices for its member institutions.

llb

opposition to the resolution and denied the

existence of discrimination at the Library,

the Counsil adopted the Williams resolution

and commenced the inquiry. The Librarian him-

self, in response to an ALA request, formally

ruled against Library cooperation with the ALA

inquiry on the stated ground that it would be

"unprecedented action for a professional as-

sociation to investigate a Federal agency."

The decision not to cooperate with the ALA in-

quiry was considered by the Librarian to be so

important that he obtained the written approval

of it from then Congressman Wayne Hays and

Senator B. Everett Jordon, Chairman and Vice

Chairman, respectively, of the Congressional

Joint Committee which had oversight responsi-

bility for the Library.

Despite the reaction of the Librarian,

and of the leaders responsible for congres-

sional oversight, Williams persisted in as-

Sisting the inquiry. The inquiry team later

12b

concluded that there was institutional dis-

crimination (albeit inadvertent) in Library em-

ployment practices. The inquiry and report,

originated and assisted by Williams, was high-

ly publicized locally, nationally, and inter-

nationally. Many employees testified that

Williams' role in the inquiry embarrassed the

Library.

During all this time, Williams' falsifi-

cation about his legal education had remained

undiscovered. His work and his manner as an

advocate and as a leader led his friends and

his critics to believe him to be a trained and

effective lawyer. Hutchinson's assistant,

Eugene Powell, testified, for example, that

Williams effectively represented not only

blacks at the Library, but also employees

generally. As Herbert Belmaer, the Library's

Employee Relations Specialist and Fair Em-

ployment Practices Officer, testified, Wil-

liams had legal expertise to cope with the

Library system. He had an understanding of

13b

law and regulations. He was available to em-

ployees who couldn't hire a lawyer. And, as

Belmaer and others testified, Williams was a

"symbol to blacks." He was a "leader."

so, aS was inevitable, it happened: in

late 1971 or early January 1972, when Williams'

ALA activity was reaching a crescendo, an in-

structor in the Copyright Division, reflecting

about Williams' awkward responses to some

technical legal problems in Copyright Divi-

sion training sessions, began privately to

question Williams' credentials. The instruc-

tor, on his own initiative, checked at George-

town Law Center. There was no record there of

Williams. The instructor reported his find-

ings to his superiors. Confronted with this

discovery, Williams confessed that in spite of

his many statements and representations as to

his status as a law student and later as a

lawyer, he in fact was not a lawyer.

There ensued a protracted period of in-

vestigation during which Cary, Hutchinson, and

14b

Lorenz met with Williams on a number of oc-

casions to discuss his misrepresentations and

the appropriate course of action for the Li-

brary. Williams attempted, without effective

assistance of counsel, to explain his misrepre-

sentations and protect his job. For example,

he attempted to explain away his falsehoods in

terms of the obstacles which confronted his

early job applications, the tangled web which

ensued, and his original (erroneous) assumption

that he would be too obscure to be worth de-

tecting. Meanwhile, he also persisted in his

union work and his public opposition to Li-

brary employment practices, including the ALA

investigat.on.

By March 1972, Cary had expressed his

opinion to Hutchinson by memorandum that the

proper sanction for Williams’ misrepresenta-

tions was termination. In June, having tried

to make certain that the decision was correct

and based on precedent, Hutchinson finally

gave his formal recommendation that Williams

15b

be terminated, which recommendation was ac-

cepted by the Librarian. As stated by Lorenz,

Library management had made every effort to

ensure that their action "could not be inter-

preted as a discriminatory action." Williams

was notified that his employment would be ter-

minated effective July 21, 1972.

On July 20, 1972, on the last day before

termination, Williams was permitted to resign

effective August 1l, 1972. During this hiatus,

Williams and friends tried unsuccessfully to

arrange a demotion and transfer instead of ter-

Mmination. On August 9, he requested to with-

draw his resignation. His request was denied

and his job ended, requiring Williams to re-

sign as president of Local Employees Union

AFGE Local 1826, and as general counsel of the

Black Employees of the Library of vine’ aut

An administrative grievance complaint and this

_suit followed

6. The report of the EEO officers concluded:

"The evidence submitted by Mr. Williams, the

(footnote continued)

16b

The Effect of Williams' Termination

Since his termination, Williams has re-

mained active in Library of Congress employee

affairs. He has been serving as executive di-

rector of the union at a salary approximately

what he earned at the Library. But services

available to employees at the Library in ad-

ministrative proceedings involving discrimin-

ation have deteriorated since Williams' ter-

mination.

Although Library of Congress Regulations

permit employees of the Library to take time

from their regular duties to act as EEO repre-

sentatives for employees with discrimination

;

complaints, retaining their usual salaries,

(footnote continued)

evidence developed during the investigation

and the sworn testimony of witnesses, did not

substantiate the charges brought by Mr. Wil-

liams." Investigative File of the Discrimina-

tion Complaint of Joslyn N. Williams 31 (1976).

ve Library of Congress Regulation 2010.3-1,

Resolution of Problems, Complaints, and Charges

of Discrimination in Library Employment and

Staff Regulations Under the Equal Employment

Opportunity Program, § 5.

17b

there was evidence that the Library did not al-

ways cooperate enthusiastically with this pro-

gram.

In response to questioning by the Court,

one witness testified that pa’t of the problem

in resolving discrimination complaints relates

to the absence of people who are willing and,

more importantly, able to stand up for employ-

ees who have grievances; Williams was the only

really efficient, effective person available.

"(T]he major problem most people have is that

they don't have skilled professional type rep-

resentation through the EEO office." While the

same witness testified that more recently the

union for which Williams now works has pro-

vided representation for employees with dis-

crimination grievances, the availability of

this service remains subject to the union's

contract, presently under negotiation. Ms.

Ringer, Register of Copyrights, testified that

employees are represented by counsel in the

EEO process "infrequently" and that the

18b

negotiating process leading to union contracts

has been slow and difficult.

The Motive of Library Management

The Court finds that the Library decision

to terminate Williams was significantly in-

fluenced by Williams' activities as a union

leader and a black leader in opposing employ-

ment discrimination. Williams' complaints

about employment practices at the Library, and

particularly the Copyright Office, were not

without foundation. Library management, there-

fore, had understandable reasons for reacting

significantly to Williams’ anti-discrimination

activities. Over several trial days, the

Court observed and questioned the Library of-

ficials who were in office when Williams' fal-

sification was discovered -- ironically, in the

midst of his campaign against Library employ-

ment practices. These federal government of-

ficials, interacting with each other and re-

acting to their congressional overseers and to

19b

the Washington environment of the early 1970's

did not evidence the initiative and sensitivity

about equal employment opportunity and about

discrimination which other federal government

officials then enforcing the civil rights laws

demanded of managers of businesses, universi~

ties, state and city schools, and other local

functions.

Vignettes impressed the Court:

Despite the obvious need to validate the

requirement that copyright examiners hold law

degrees (as evidenced by the recent abandon-

ment of the requirement), the former Register,

in charge of 300 employees, testified that he

was unaware of the concept of "validation."

When carrying out his responsibility for ad-

ministering an affirmative action plan, the

former Register refused to assemble infor-

mation about the relative number of minority

employees holding various positions in his

office. The Librarian's unusual communication

with Congressman Wayne Hays about the decision

eS 2S a

20b

not to cooperate with the ALA investigation is

special evidence of the intensity of Library

management concern and reaction to Williams and

his anti-discrimination activity. And Ms.

Ringer's case evidences a state of mind in the

Library managers consistent with this finding.

The Court also notes that at the moment of de-

cision to terminate Williams, the Register of

Copyrights was Cary and not Ringer. The Court

is influenced in its findings by the evidence

of the circumstances which led to Cary's ap-

pointment to this key position in the decision-

making process that terminated Williams.

The Court fully accepts the testimony of

the Library officials that they were without

prejudice or bias against minorities, in gen-

eral, or Williams in particular. And the

Court is impressed that Director of Personnel

Hutchinson, under new leadership, has been in-

creasingly innovative and responsive to the

letter and the spirit of Title VII. But the

Court, sitting as a trier of fact, is

21b

persuaded from personal observation of the Li-

brary witnesses who dealt with Williams' case

that they could not have failed to, and did in

fact, react individually and as a group, with

considerable intensity, to the threat and prov-

ocation inherent in Williams' efforts with re-

spect to Library employment practices. It

would have required saintly discipline for

these particular Library managers not to be in-

fluenced in deciding to terminate him by hos-

tility against his efforts to expose discrim-

ination at the Library.

Record evidence strongly corroborates the

informed conclusion of Ms. Ringer, the former

Assistant, and now the incumbent, Register of

Copyrights that Williams "told a lot of things

like they were ...and.. . this was just

unacceptable to some people and was the ulti-

mate cause of the events that led to the

separation."

As Judge Weinfeld stated ina related

context:

22b

Even if defendant was in part moti-

vated by [the faisification], the

court's finding that its [the

defendant's] decision was also moti-

vated by unlawful factors makes the

suspension illegal. Equal Employment

Opportunity Commission v. Kallir,

Philips, Ross, inc., 401 F.Supp. 66,

2n.17 (S.D.N.Y. 1975).

The Court finds, therefore, for the

reasons stated, that the Library decision to

terminate Williams was motivated in substantial

part by hostile management reaction to his

leadership of the minority employee's protests

against discrimination, in violation of Section

704(a) of the Civil Rights Act of 1964.

Accordingly, judgment will be entered for

plaintiff.

1964

Section 704(a) of the Civil Rights Act of

provides:

It shall be an unlawful employment prac-

tice for an employer to discriminate

against any of his employees ... be-

cause he has opposed any practice made an

unlawful employment practice by this sub-

chapter, or because he has made a charge,

testified, assisted, or participated in

any manner in an investigation, proceed-

ing, or hearing under this subchapter.

23b

il.

Before turning to the question of relief

it is appropriate to set out in the record

the Court's basis for two procedural rulings

which counsel for plaintiff continually

contested througnout pretrial and trial.

Denial of Class Certification

[2, 3] Aware that Judge Jones' decision

with respect to class certification remained

provisional even as the action approached

decision, the Court has reconsidered that

decision and has found, in light of the facts

as they have become apparent during pretrial

and trial, that the decision was and is sound

Although suits alleging racial discrimination

are often by their very nature class actions,

careful attention to the requirements of

Fed.R.Civ.P. 23 remains indispensable.

24b

Williams' mere allegation of racial discrimi-

nation does not insure that he will be repre-

sentative of those who have been the actual

victims. See East Texas Motor Freight System

Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891,

1898, 52 L.Ed.2d 453 (1977) (relating to the

adequacy of representation).

[4] From the facts set out above, it is

apparent that as a result of his activities,

Williams occupied a spev7ial position at the

Library, and that the decision to terminate

him was not made in the ordinary course of

Library management. The significant issue

raised by Williams' case was whether the

motive underlying his termination was re-

taliatory, not whether his termination was the

result of racial discrimination. Williams'

remarkable success at the Library belies any

contention that he was the victim of any

~ &-

~————

25b

racial discrimination. His claim is, there-

fore, not typical of those of the class he

seeks to represent and the factual issues

involved in his claim are not common to the

claims which black employees generally might

have. Compare Satterwhite v. City of Green-

ville, 395 F.Supp. 698 (N.D.Texas 1975),

remanded for further proceedings, 557 F.2d 414

(Sth Cir. 1977), Kinsey v. Legg, Mason &

Company, Inc., 60 F.R.D. 91 (D.D.C.1973). The

Court, therefore, reaffirms the conclusion

that it would have been inappropriate to

clutter the trial of Williams' claim with

issues of systemic discrimination from which

Williams did not suffer. Compare Mason v.

Calgon Corporation, 63 F.R.D. 98 (W.D.Pa.

1974), Davis v. Ameriryol, Inc., 55 F.R.D. 284

(E.D. Texas 1972).

26b

Exclusion of Evidence of Systemic Discrimi-

nation

([5] Plaintiff has proffered voluminous

evidence of "Systemic discrimination" on the

part of the Library in many aspects of its

treatment of employees. This evidence has

been admitted for the limited purpose of

showing that Williams' protests were not with-

out foundation, and that the public denials

made by Library officials in the fact of that

evidence demonstrated a need for representa-

tional services like those performed by

Williams. It has been excluded on the other

issues Williams has raised notwithstanding

the importance generally attached to this

type of evidence, even in cases involving

only individual plaintiffs.

9. E.g., McDonnell] Douglas v. Green, 41ll U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),

Kinsey v. First Regional Securities, 557 F.2d

830 (D.C.Cir. 1977).

27b

In order for Williams to challenge suc-

cessfully the routine employment practices of

the Library, under the evidentiary scheme set

out in McDonnell Douglas, he would have to

show some unfavorable treatment, analogous to

the refusal to hire Green in McDonnell Douglas.

After he had produced evidence of different

treatment from that received by other employees,

the burden would shift to the Library to arti-

culate some legitimate, non-discriminatory

justification for its actions. Only then

would the type of evidence Williams has sought

to introduce become material. At that point

it would be Williams' burden to show that the

non-discriminatory justification was mere

"pretext." Williams has not succeeded in

reaching the first step of this scheme. The

evidence reveals that until the discovery of

his misrepresentation, he suffered no employ-

’

28b

ment disadvantages. There is no reason, there-

fore, to allow Williams to demonstrate discrim-

inatory motive in other employment decisions.

Nor is the evidence of systemic discrimi-

nation admissible to show discriminatory

motive in the decision to terminate Williams.

This case is distinguishable from Kinsey be-

cause of the sui generis process by which the

decision to fire Williams was made. In Kinsey

the refusal to hire the plaintiff was made in

the ordinary course by personnel charged with

making routine employment decisions. Williams

brought before the Court individuals who had

devoted considerable attention to the decision.

This testimony contained substantial evidence

of the motives of these witnesses, much more

probative than that contained in Williams’

proffer. In light of the Court's finding on

the question of motive, the exclusion of the

_— eee <p — oe ome: we —

29b

evidence cannot be said to have prejudiced

Williams.

Relief

Entry of judgment for Williams and against

the Library does not, of course, end this

action in equity. The Court must fashion a

decree which attempts to remedy the situation

created by the retaliatory termination of

Williams without rewarding him for making

significant and repeated false representations

of his legal education and credentials.

The Court is authorized to grant tailor-

made injunctive relief by the broad language

and legislative history of § 706(g) of Title

VII, 42 U.S.C. § 2000e-5(g):

If the court finds that the respondent

has intentionally engaged in or is

intentionally engaging in an unlawful

employment practice charged in the

complaint, the court may enjoin the

30b

respondent from engaging in such unlaw-

ful employment practice, and order such

affirmative action as may be appropri-

ate, which may include, but is not

limited to reinstatement or hiring of

employees, with or without back

pay .. . or any other equitable relief

as the court deems appropriate.

(Emphasis added.)

In Albemarle Paper Co. v. Moody, 422 U.S.

405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), the

Supreme Court set out some of the legislative

history of this section and commented on the

purposes underlying the broad language:

"In dealing with the present section

706(g) the courts have stressed that

the scope of relief under that section

of the Act is intended to make the

victims of unlawful discrimination

whole, and that the attainment of this

Objective rests not only upon the

elimination of the particular unlawful

employment practice complained of, but

also requires that persons aggrieved

by the consequences and effects of the

unlawful employment practice be, so far

as possible, restored to a position

where they would have been were it not

for the unlawful discrimination." 118

Cong.Rec. 7168 (1972).

31b

As this makes clear, Congress' purpose

in vesting a variety of "discretionary"

powers in the courts was .. . to make

possible the "fashion[ing] [of] the

most complete relief possible." 422

U.S. at 421, 95 S.Ct. at 2373 (quoting

from a Section-by-Section Analysis

introduced by Senator Williams to

accompany the Conference Committee

Report on the 1972 amendments to

Title VII).

Judge Gasch of this Court recently held

in Smith v. Califano, 446 F.Supp. 530 (1978),

that an agency has the authority under Title

VII to award attorneys' fees to a party who

prevails at the administrative level, and that

district courts may review agency decisions not

to award attorneys' fees. Judge Gasch's

analysis of the interrelatedness of the adminis-

trative and judicial mechanism for enforcing

the rights created by Title VII is particularly

germane here. If attorneys' fees may nat be

awarded for service to employees contesting

discrimination at the administrative level, a

32b

strong incentive is created for the employee

(and his attorney if he has ae to treat an

administrative remedy provided by the agency as

a pro forma formality which must be played out

before the merits of the grievance can be

seriously aired for the first time in court.

Where this incentive is combined with a demon-

strated hostility on the part of an agency to-

ward employees who assist other employees in

obtaining relief for violations of Title VII,

10. The desirability of representation in the

administrative process is recognized by the

Civil Service Commission Regulations at 5 C.F.R.

§ 713,214(b), which provide that an employee

may be represented by counsel throughout the

EEO administrative process beginning with the

counseling stage, and by Library of Congress

Regulation 2010.3-1, which in section 5 pro-

vides that an employee shall have the right to

be accompanied, represented, and advised by a

representative of his own choosing. The Li-

brary's regulation seems also to recognize the

financial burden obtaining proper representa-

tion may pose for the employee. As mentioned

earlier, it provides that employees may use

official time to represent'’other employees with

grievances.

33b

the administrative grievance procedure is like-

ly to lose its dispute resolving capability,

thereby exacerbating the effects of discrimi-

nation in the agency and imposing a dispropor-

tionate burden on the courts. This condition

requires special measures to insure the utility

of the administrative process.

[6] Relief inuring directly to the per-

sonal benefit of the plaintiff is not the

exclusive equitable relief device available to

the courts for redressing this violation of

Title VII. Saracini v. Missouri Pacific Rail-

Co., 431 F.Supp. 389, 395-96 (W.D.Ark. 1977).

"(T]he court has a special responsibility in

the public interest to devise remedies which

effectuate the policies of [Title VII] as well

as afford private relief to the individual

employee instituting the complaint." Sprogis

v. United Air Lines, Inc., 444 F.2d 1194, 1201

34b

(7th Cir. 1971) (citations omitted).

The decision of the Supreme Court in

Albemarle, limited the discretion of trial

courts to refuse to order back aie Title

VII cases, and required that if the District

Court does decline to award back pay, it care-

fully articulate its reasons. 422 U.S. at 421,

n. 14, 95 S.Ct. 2362. The standards governing

the exercise of discretion which the Supreme

Court found in the statutory scheme require

that "backpay .. . be denied only for reasons

which, if applied generally, would not frus-

trate the central statutory purposes of

eradicating discrimination throughout the

economy and making persons whole for injuries

suffered through past discrimination." 422

U.S. at 421, 95 S.Ct. at 2373. The awarding

of back pay serves the statutory purpose of

eradicating discrimination by providing "'the

35b

spur or catalyst which causes employers...

to self-examine and to self-evaluate their em-

ployment practices and to endeavor to eliminate,

so far as possible, the last vestiges of an

unfortunate and ignominious page of this

country's history.'" 422 U.S. at 417-18, 95

S.Ct. at 2371-72. This purpose is not frus-

trated by the relief to be granted here which

denies Williams back pay because of his false

statements but provides relief for the public

interest damaged by the retaliatory element of

the decision to terminate him.

[7] Williams was illegally discharged.

But Williams also falsely represented himself

to be first a law student and then a law grad-

uate. No court should take such calculated

iB I

falsehoods lightly. This is not a case of

1l Williams' misrepresentation may be a vio-

lation of 18 U.S.C. § 1001. Williams' employ-

ment application contained a notice that a false

statement might be grounds for dismissal.

36b

misrepresentation of a qualification which is

Significant only because a particular employer

believed the qualification important for a

particular job. Misrepresentation that one

is qualified to act as a lawyer has signifi-

cance, specially in a court of law, indepen-

dent of the misleading of the employer.

Williams' continuing charade also deceived

those on whose behalf he acted in attempting

to resolve employment grievances at the

Library.

Despite Williams' deficiencies, as a

practical matter, he was more willing and

more able to represent employees with discri-

Mination grievances at the administrative lev-

el at the Library than anyone else whose

services were available to those employees.

Record evidence supports the conclusion that

neither Williams, as an outsider, nor anyone

37b

else has since provided the effective repre-

sentation which Williams as an employee provided

for his Sian His termination has

seriously diminished the representation avail-

able to minority employees of the Library,

exacerbated the disputes at the Library about

discrimination in employment, and diminished

the confidence of minority employees in the

fairness of the Library grievance procedures.

12. See p. 1122, supra. In addition to the

testimony received during the trial, the Court

solicited written submissions from the parties

"describing existing Library procedures for the

redress of employment discrimination griev-

ances (including the role of unions and outside

counsel therein) ...." Order of December 21,

1977. Defendant's Statement Describing Exist-

ing Library Procedures for the Redress of

Employment Discrimination Grievances (In-

cluding the Role of Unions and Outside Counsel

Therein) . . ., filed January 9, 1978, and

Plaintiff's Submission .. ., filed January

24, 1978, further document the need for the

effective representation at the administrative

level which Williams attempted to provide.

38b

These facts are dramatically evidenced by the

filing of over 40 cases in this Court which

might have been disposed of administratively

if Libarry employees were better represented

at the administrative level or had more confi-

dence in this process.

This unique case, therefore, requires a

unique remedy: one which discharges the

Court's responsibility for the enforcement of

Title VII, serves the public interest in

eliminating discrimination, and relates to the

wrong suffered by the plaintiff but at the same

time denies to him personally equitable remedies

13. Several of the 40 cases were filed by a

single employee who had no lawyer and repre-

sented himself pro se. See e.g., Parker v.

Boorstin, No. 75-1772 (D.D.C. Aug. 31, 1976)

(Jones, C. J.) and Judge Jones' observation

that Parker's “engagement of counsel to guide

him through the labyrinth of administrative

law would serve him well. It would save him

time, energy and expense and it would enable

this Court to better focus on his complaints."

Slip op. at 9.

39b

which would reward him for his own misconduct.

For the reasons set out above, having entered

judgment for Williams, the Court declines to

award relief directly to him. Instead the

Library will be directed by an order to be

issued by the Court, after receiving proposals

from the parties, to establish and contribute

financially to the maintenance of a service

for the benefit of Library employees with bona

fide discrimination Siinses which will

enable them to employ legal counsel or lay

spokesmen of their choice to counsel such

employees and to represent them in administra-

tive proceedings with respect to those griev-

ances. This relief will benefit Williams in

the limited and appropriate sense that it will

serve the cause for which he strived. The

union for which he now works can be consideied

as a possible participant in and beneficiary

40b

of the service. The relief will serve the

public interest in amelioration of employment

discrimination. It will impose on the Library

responsibility for rectifying the effects of

its retaliatory termination of Williams.

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1684 September Term, 1980

Civil Action 1633-72

Filed December 9, 1980

JOSLYN N. WILLIAMS

ROBERT L. BOSTICK,

individually and on behalf

of all others similarly

situated

Vv.

DANIEL J. BOORSTIN

individually and as

Librarian of the Library

of Congress, et al.,

Appellants

Before: Wright, Chief Judge; Bazelor, Senior

Judge, McCowan, Tamm, Robinson,

MacKinnon, Robb, Wilkey, Wald, Mikva,

Edwards and Ginsburg, Circuit Judges

ORDER

The suggestion for rehearing en banc

filed by appellee having been transmitted to

the full Coure and n> judge in regular active

service, and no member of the panel which

considered this case, having requested a vote

with respect thereto, it is

ORDERED, by the Court, en banc, that

appellee's aforesaid suggestion for rehearing

en banc is denied.

Per Curiam

For the Court:

GEORGE A. FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-1684 September Term, 1980

Civil Action 1633-72

Filed December 9, 1980

JOSLYN N. WILLIAMS

ROBERT L. BOSTICK,

individually and on behalf

of all others similarly

situated

Vv.

DANIEL J. BOORSTIN

individually and as

Librarian of the Library

Of Congress, et al.,

Appellants

Before: Bazelon, Senior Circuit Judge; Tamm

and Wilkey, Circuit Judges.

ORDER

On consideration of appellee's petition

for rehearing, it is ORDERED by the Court

that appellee's aforesaid petition is denied.

Per Curiam

For the Court:

GEORGE A FISHER, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.