# Petition — Williams v. Boorstin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1482%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 985 ## Text Ufleg Supreme Coure 1) ¢ i I , ain, > Xj £ DD MAR 9 199; | babies’ TV — — a7 VAS IN THE Re Supreme Court of the United States OctToBER TERM 1980 JOSLYN N. WILLIAMS, Petitioner, ve 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 i 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? Se £43 TABLE OF CONTENTS Page 1. Opinions Below . ....+ + « « « « 2 2. Jurisdiction ..«. «© «x«e«*e#e##teee 3 3. Statutory Provision Involved .... . $ 4 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. iv 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 Vv 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 vi 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 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 39 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- 40 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 41 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 42 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 43 the part of the complaining employee. Qualification on the part of the employee, then, would seem to be almost indispensable 44 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 45 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 46 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 47 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 49 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. 50 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 51 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- 52 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- 54 ful. It was also criminal - a compelling 54 See Trial Transcript at 158-59, reprinted in J.A. 237-38. 4 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- 56 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 58 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 59 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). 5 "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- 2 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 3 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 6 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 4 "to the effectiveness of the Act," none of the cases relied upon by the majority involved 8 retaliation. Nor is any other explanation 9 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 lb 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 Copyright Examiner, GS-12, for racially dis- criminatory reasons and for exercising his 2b 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. i. 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. 3b 2 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). 4b 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 5b 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 Copyright Division. Believing, again with rea- 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. 6b 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 7b 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 ? 8b 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- 4 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 9b 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. 1 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 8 704(a) of the Civil Rights Act of 1964. Accordingly, judgment will be entered for plaintiff. 8. 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 J ~ &- ~———— 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 9 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 judge in regular active service, and no member of the panel which considered this case, having requested a vote 2c 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 3c 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1482%3A1. Public record. Not legal advice.