Petition for Writ of Certiorari — Robinson v. Secretary of Transportation

87-597 ( & Song]

No. Bo?

ak

IN THE

SUPREME CouRT OF THE UNITED STATES

OCTOBER TERM 1987

ARTHUR B. ROBINSON,

Petitioner.

V.

Secretary of the Department of Transportation and

ALLAN McARTOR, National Administrator of the

Federal Aviation Administration,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

DARRELL S. ELLIOTT

Darrell S. Elliott, P.C.

Steele Park Building

50 South Steele, Suite 777

Denver, Colorado 80209

(303) 329-0331

Attorney for Petitioner

a Se

i

QUESTIONS PRESENTED FOR REVIEW

I. DID THE PLAINTIFF, ARTHUR B. ROBINSON,

PRESENT DIRECT EVIDENCE OF DISCRIMINA-

TION AND IF SO, MUST THE DEFENDANT,

FEDERAL AVIATION ADMINISTRATION, REBUT

THE PLAINTIFF’S CASE BY A PREPONDERANCE

OF THE EVIDENCE?

Il. DID THE TENTH CIRCUIT COURT OF AP-

PEALS APPLY THE CORRECT STANDARD IN ITS

ANALYSIS OF THE SHIFTING BURDEN OF

PROOF IN ROBINSON’S TITLE VII CASE?

lil. DID THE TRIAL COURT ERR IN ITS CON-

CLUSION THAT THE REASONS OFFERED BY

THE FAA FOR ROBINSON’S DISCHARGE WERE

NOT MERE PRETEXTS FOR DISCRIMINATION?

IV. DID THE TRIAL COURT IMPROPERLY EX-

CLUDE CASSETTE TAPES OF ROBINSON’S PER-

FORMANCE FROM THE EVIDENCE?

Questions Presented

Table of Citations

Citations to Opinions Below

Statement of Jurisdiction

Statement of The Case

Legal Argument

A. THE FAA MUST BE HELD

B.

TABLE OF CONTENTS

TO A HIGH STANDARD OF

SCRUTINY BECAUSE OF

PRIOR DISCRIMINATION

AGAINST ROBINSON.

THE TENTH CIRCUIT DID........

NOT APPLY THE CORRECT

STANDARD FOR A TITLE

VII CASE INVOLVING

DIRECT EVIDENCE OF

DISCRIMINATION.

1. Direct Evidence Of Dis- .........

crimination Mandates That

The FAA Be Held To A

Higher Burden Of Proof.

2. The Tenth Circuit Court........

Of Appeals Did Not Properly

Analyze The Evidence Of

Discrimination.

THE REASONS OFFERED BY......

THE FAA FOR ROBINSON’S

DISCHARGE ARE MERE

PRETEXTS FOR DISCRIMINATION.

1. Failure To Follow Its Own.......

Procedures Establishes That

The FAA Discriminated Against

Robinson.

$64 2.4 @ £2.68 262404 e682 4S SC

10

10

14

16

16

2. FAA Employment Statistics......... 18

Establish That The FAA Dis-

criminated Against Robinson.

D. THE TRIAL COURT IMPROPERLY ..... 20

EXCLUDED CASSETTE TAPES OF

ROBINSON’S PERFORMANCE

FROM THE EVIDENCE.

EG EE ee 22

TABLE OF CASES, STATUTES AND OTHER

AUTHORITIES CITED

CASES PAGE:

n ion roth f m Vv ae

431 U.S. 324 (1977).

Coe v. Yellow Freight System, Inc,, 646 F.2d 444.... 8

(10th Cir. 1981).

Milton v, Weinberger, 696 F.2d 94,225 U.S. App... 10

D.C. 12 (C.A.D.C. 1982).

Wilson v, City of Aliceville, 779 F.2d 631 ........ 10

(11th Cir. 1986).

rans Wor irlines v rston, 4 1 11

105 S.Ct. 63, 83 L.Ed.2d 523 (1985).

Mt, Healthy City School District v, Doyle, 429 U.S.. 11

274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

Gavalik v. Continental Can Co.,, 812 F.2d 834 ..... 12

(3rd Cir. 1987).

Goodman v, Lukens Steele Co,, 777 F.2d 113...... 12

(3rd Cir. 1985).

Guillory v, St. Landry Parish Police Jury, 802 F.2d.. 12

822 (Sth Cir. 1986).

v. Savann inin ion,... 12

495 F.2d 437, (Sth Cir.), cert. den., 419 U.S.

1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974).

Walters v, City of Atlanta, 803 F.2d 1135,........ 12

(11th Cir. 1986).

Day v. Mathews, 530 F.2d 1083 (D.C.Cir. 1976).... 12

ni v, New k, N eT

355 U.S. 253, 78 S.Ct. 212, 2 L.Ed.2d 247 (1957).

Morrison v, Booth, 763 F.2d 1366 (11th Cir. 1985).. 14

Cook v, Boorstin, 763 F.2d 1462 (D.C.Cir. 1985).... 18

Shwepp v, Miller Brewing Co,, 708 F.2d 655 ...... 18

(11th Cir. 1983).

milton-Br v. Wolf Br ‘se

240 U.S. 251, 36 S.Ct. 269, 60 L.Ed.629 (1916).

STATUTES PAGE:

42 U.S.C. Section 2002 1

28 U.S.C. Section 1254(1) 1

OTHER AUTHORITIES:

Federal Rules of Evidence, Rule 403............ 21

Federal Rules of Civil Procedure, Rule 37....... 21

ee

iv.

CITATIONS TO OPINIONS BELOW

Case No. 83-2122, June 10, 1987.

2. United S District C for the Distri

of Colorado, Case No. 81-704, decided

June 30, 1983.

3. ni an

Petition No. 03800169, decided April 9, 1981.

4. Merit Systems Protection Board, Decision No.

DEO75209051, decided may 1, 1980.

5. Eacility Employee Performance Review Board,

Case No. DV-531, decided August 21, 1979.

IN THE

OCTOBER TERM 1987

NO.

ARTHUR B. ROBINSON,

Petitioner,

v.

Secretary of the U.S. Department of

Transportation, et al.

Respondent.

I. STATEMENT OF JURISDICTION

Plaintiff appellant, Arthur B. Robinson, appeals from

the judgment entered by the U.S. Court of Appeals for

the Tenth Circuit on June 30, 1987, which affirmed an

adverse judgment entered by the U.S. District Court for

the District of Colorado on June 30, 1983. After a trial

to the court, the U.S. District Court found that Robin-

son’s race was not a factor in the denial of his certifica-

tion and the resulting termination of his employment

with the Department of Transportation Federal Aviation

Administration (hereinafter, "FAA"). Accordingly, the

trial court found that Robinson was not entitled to relief

under Title VII of the 1964 Civil Rights Act, as

amended, 42 U.S.C., Section 2002.

Robinson submits this Petition for Certiorari pursuant

to 28 U.S.C., Section 1254(1) and requests that the

ee

United States Supreme Court review his case to deter-

mine whether the decision of the Federal District Court

was clearly erroneous.

The Tenth Circuit Court of Appeals has rendered a

decision in Robinson’s case which is in conflict with a

U.S. Supreme Court decision and decisions of other

federal courts of appeals on the same matter. It is of im-

perative public importance that all federal courts of ap-

peals apply the same standard in employment discrimina-

tion cases under Title VII. Thus, appellant requests that

the United States Supreme Court invoke its discretion-

ary jurisdiction in this case.

il. STATEMENT OF THE CASE

This action was instituted after Robinson was ter-

minated on December 14, 1979, from the training

program of the FAA for air traffic controllers in

Colorado. Robinson originally entered the training

program on August 16, 1971. (T.R. Vol. I, p. 14). Robin-

son progressed through the program successfully until

June, 1974, when he commenced sector training. Sector

training is actual on-the-job air traffic control work

within one of several sections of the sky in the region

surrounding the Denver area. To complete his training,

Robinson was assigned to Sector 31, one of the lowest

traffic volume sectors in the Denver region. (T.R. Vol.

I, pp. 31-32).

On a determination that Mr. Robinson was not

progressing satisfactorily, a decision was made to ter-

minate his employment in December, 1974. Subsequent

to his termination, Robinson, a black male, filed a dis-

crimination complaint alleging he was trained on a par-

ticularly low volume traffic sector, whereas anglo

trainees were placed in high volume sector training.

(T.R. Vol. I, pp. 32-33).

On September 7, 1976, the Department of Transporta-

tion Merit System Protection Board (MSPB) issued its

decision in favor of Mr. Robinson. The MSPB held that:

Complainant had been assigned to a sector with

very light traffic. Caucasian trainees assigned to

the same supervisor had been assigned to high al-

titude sectors which were conducive to good

training. Section 31, to which complainant was

assigned, provided poor training opportunities.

The MSPB then directed that Mr. Robinson be

retroactively restored to the position of air traffic con-

trol specialist, GS-9, and provided with the necessary

training to reenter the air traffic control training

program. The MSPB further directed that Mr. Robin-

son be given full and fair training, and if such training

was successfully completed, Mr. Robinson should be

promoted retroactively according to the dates he would

have been promoted if he had been afforded the oppor-

tunity to successfully complete his training. (See, MSPB

decision - Appendix).

Thus, the FAA admitted that it had discriminated

against Mr. Robinson on the basis of race and voluntari-

ly undertook the affirmative duty of providing full and

fair training to compensate for the prior discrimination.

During the pendancy of his original complaint, the

training program had been reorganized from a three-

phase program to a thirteen-phase program. (T.R. Vol.

II, pp. 102-103). Upon his return to employment, Mr.

Robinson reentered the program at phase eight.

Needless to say, Robinson suffered tremendous set-

backs, both as the result of being the victim of dis-

crimination, and because of the two year delay in his

professional advancement. The necessity of switching to

a new program in the middle of his training added even

more stress to his already difficult position.

The new thirteen-phase program was designed by the

FAA to be cumulative in nature. Each area of air traffic

control is covered by classroom instruction which is im-

mediately followed by supervised on-the-job training.

The on-the-job training provides the hands-on ex-

perience which follows up and solidifies the theoretical

background provided by the classroom instruction.

(T.R. Vol. I, p. 111).

Robinson successfully completed phases eight and

nine and was progressing through phase ten when a posi-

tion opened for phase eleven classroom radar training.

The radar portion of the training encompasses phases

eleven, twelve and thirteen of the program. At the re-

quest of his supervisor, Doak Adair, Mr. Robinson

agreed to proceed with phase eleven radar training,

even though he had not yet finished phase ten non-radar

training. (T.R. Vol. I, p. 43).

On November 18, 1978, Robinson successfully com-

pleted phase eleven classroom radar training, but before

he could proceed on to phases twelve and thirteen of on-

the-job radar training, he had to go back and finish the

phase ten on-the-job non-radar training. (T.R. Vol. I,

pp. 43-44).

The FAA admits that taking these courses out of se-

quence in this manner is not the normal procedure that

is generally followed in training air traffic controllers.

Robinson’s immediate supervisor, Doak Adair, did not

have any other trainees under his supervision who had

taken courses out of sequence. (T.R. Vol. Ill, p. 98).

However, one other white male also stopped in phase

ten training to enter into phase eleven classroom radar

training, and then went back to finish phase ten out of

sequence before proceeding on to phase twelve.

Robinson’s entry into phase twelve was delayed even

longer than his one white male counterpart, because

Robinson experienced difficulty in receiving credible

training hours due to lower traffic volumes and staff

vacations in the months of December and January when

he finished phase ten training. (T.R. Vol. I, pp. 56-57).

During this period Mr. Robinson often had to run the

flight printer, and had little opportunity to engage in ac- ©

tual air traffic control work. (T.R. Vol. I, p. 49). The

flight printer work is menial activity that placed Robin-

son in a position subordinate to the other air traffic con-

trollers. In addition, his phase ten certification papers

were mysteriously lost, which resulted in even more

delay before he could move back to phase twelve on-the-

job radar training.

The training delay was serious enough to be noticed

by Mr. Benham Ignacio, the Assistant Manager for

Training at the Denver Center. On March 9, 1979, Mr.

Ignacio sent a letter to Assistant Chief Roger Clark, in-

quiring why Robinson had received such a small amount

of credible training and why over four months had

elapsed since he completed radar classroom training and

was not yet into radar on-the-job training. (T.R. Vol.

III, pp. 6-8, and p. 43).

As a result of the delays, Robinson did not enter into

phase twelve radar on-the-job training until March,

1979, over four months after he had completed the class-

room radar instruction. For this training, Robinson was

assigned to George Schrader as the instructor. Mr.

Schrader is a very fundamentalist person who takes

pride in his nickname of "Gun Toting, Bible Banging

Bigot." After 72 hours of training, Schrader concluded

that Robinson’s performance was unsatisfactory. (T-.R.

Vol. I, pp. 52-53).

Robinson’s supervisor during the radar training was

Doak Adair. Robinson had experienced some prior

comments from Mr. Adair which were racially

motivated. At one time when Robinson was facing dif-

ficulties in his work, Adair had told Robinson that if he

failed as an air traffic controller, Adair could get him a

job in the Greenwood, Mississippi Flight Service Sta-

tion. This comment created an inference that Robinson

was destined for failure as an air traffic controller.

(T.R. Vol. I, p. 52).

During the Phase 12 and 13 on the job training, cas-

Sette tapes of Robinson’s performance were made by

George Shrader and his second instructor, James Carr.

When Mr. Robinson questioned his supervisors why the

tapes were being made on a daily basis, their response

was that the tapes were made so that Robinson could lis-

ten to his own performance. In their opinion, the cas-

sette tapes would provide the best source of information

on how well Mr. Robinson was progressing. Mr. Robin-

son agreed to listen to some of the tapes, although it

seemed to him that the procedure of taping him on a

daily basis was quite unusual. (T.R. Vol. I, p. 65).

In July, 1979, Robinson was given a certification test,

which was not conducted according to normal proce-

dures. The test consists of actual air traffic control by

the student in his sector of air space. Usually the stu-

dent’s own instructor plugs in and observes the exam,

while another instructor grades the trainee on his perfor-

mance. In Mr. Robinson’s case, a third additional in-

Structor observed and stood by to intervene, while

Robinson’s own instructor, Mr. Carr, also observed from

a distance. (T.R. Vol. I, pp. 67-69). During the certifica-

tion test a thunderstorm broke out in the Denver area,

which caused the test to be conducted under unusual

weather conditions. (T.R. Vol. I, p. 69).

Robinson did not pass the certification test and his cer-

tification was denied. Based upon his failure to success-

fully complete a certification check, Robinson was even-

tually terminated from his employment. (T.R. Vol. I, p.

88). According to Department of Transportation proce-

dures, Robinson requested the Facility Employee Perfor-

mance Review Board to review his training. The Board

affirmed the decision that Robinson’s training should be

terminated and recommended he be offered reassign-

ment to a position in a flight service station.

Robinson appealed to the Merit Systems Protectio::

Board. The removal was affirmed after a hearing.

Robinson then appealed to the Equal Employment Op-

portunity Commission, which appeal was also denied.

This case was then filed in the United States District

Court for the District of Colorado.

Jurisdiction in the District Court for the District of

Colorado was predicated upon Mr. Robinson’s right to

receive a trial de novo as provided under Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec-

tion 2000e, et seq,

Ill. LEGAL ARGUMENT

A. THE FAA MUST BE HELD TO A HIGH STAND-

ARD OF SCRUTINY, BECAUSE OF PRIOR DIS-

CRIMINATION AGAINST ROBINSON.

Arthur Robinson filed a complaint alleging that he

was a victim of disparate treatment because of his race.

In the case of International Brotherhood of Teamsters v.

ULS., 431 U.S. 324 (1977), the United States Supreme

Court set forth the basic allocation of burdens and order

of presentation of proof in a disparate treatment case

under Title VII of the Civil Rights Act. Under a dis-

parate treatment theory of discrimination, the plaintiff

must establish that the employer treats some people less

favorably than others because of race, color, religion,

sex, or national origin. The plaintiff has the burden of

proving by a preponderance of the evidence a prima

facie case of discrimination. See, Coe v, Yellow Freight

System, Inc,, 646 F.2d 444 (Tenth Cir.1981).

In order to prove a prima facie case the plaintiff must

establish that he applied for an available position, he

was qualified for the position, and he was rejected under

circumstances which give rise to an inference of unlaw-

ful discrimination in that his failure to be hired, trans-

ferred or promoted is more likely than not based on con-

i

sideration of impermissible factors. The establishment

of a prima facie case creates the presumption of dis-

crimination.

After the prima facie case is established, the defen-

dant must rebut the presumption by establishing a

legitimate, nondiscriminatory reason for failure to hire,

promote or transfer the plaintiff. If the Defendant

rebuts the presumption, the plaintiff then has the bur-

den to demonstrate that the reasons offered by defen-

dant are mere pretexts for discrimination and thus that

the defendant intentionally discriminated against plain-

tiff. This means that in a disparate treatment case an in-

dividual plaintiff must prove discriminatory motive on

the part of the defendant, once the Defendant has

properly rebutted the Plaintiffs prima facie case.

In the Robinson case, the trial court held that plaintiff

had established a prima facie case of racial discrimina-

tion. In its opinion, on page 3, the trial court found as

follows:

The plaintiff has established a prima facie case of

racial discrimination, based upon the legitimate

inference of continuing effects from the previous

discriminatory denial of an equal training oppor-

tunity. The agency had an affirmative obligation

to remedy that past discrimination by providing

effective training.

The Trial Court incorporated the evidence of prior dis-

crimination into its analysis of whether Robinson stated

a prima facie case. The Trial Court properly concluded

that Robinson did establish a prima facie case of racial

discrimination.

In light of the admitted prior discrimination, any

reasons offered by the FAA as explanation of Robin-

son’s treatment should also be highly suspect. A defen-

dant who has engaged in prior discrimination should

bear a very high burden of proving that relief should not

issue despite a finding of employment discrimination.

See, Milton v, Weinberger, 696 F.2d 94, 225 U.S.App

D.C. 12 (C.A.D.C. 1982).

B. THE TENTH CIRCUIT DID NOT APPLY THE

CORRECT STANDARD FOR A TITLE VII CASE

INVOLVING DIRECT EVIDENCE OF DIS-

CRIMINATION.

1. Direct evidence of discrimination mandates

that the FAA be held to a higher burden of

proof.

In the case of Wilson v, City of Aliceville, 779 F2d 631

(11th Cir. 1986), the Eleventh Circuit Court of Appeals

held that direct evidence of discrimination places a

higher burden on the employer. In the Wilson case the

court held that the defendant presented with direct

evidence of discrimination can rebut the presumption

that the hiring decision was improperly motivated only

by proving by a preponderance of the evidence that the

same decision would have been reached even absent im-

permissible factors.

On page 634 the Court found as follows:

Where, however, there is direct evidence of dis-

crimination the McDonnell Douglas Douglas

analysis is inapplicable. Miles v, M.N

750 F.2d 867, 875 (1ith Cir.1985); Bell v, Bir-

mingham Linen Service, 715 F.2d 1552, 1556

Cir. 1983); Lee v. Russel County Board of

Education, 684 F.2d 769, 774 (11th Cir.1982). A

defendant presented with direct evidence of dis-

crimintion can rebut the presumption that the

hiring decision was improperly motivated only by

proving by a preponderance of the evidence that

the same decision would have been reached

even absent the impermissible factor. Lee v,

Russell County Board of Education, 684 F.2d

769, 774 (11th Cir. 1982) (citing Mt. Healthy

City School District v. Doyle, 429 U.S. 274, 97

S.Ct. 568, 50 L.Ed.2d 471 (1977). Direct

evidence of discrimination cannot be met by a

McDonnell Douglas rebuttal, Lee v. Russell

County Board of Education, at 776, such as was

presented by the defendants here. It thus be-

comes apparent that appellant’s chances of

prevailing on appeai turn on the existence of

direct evidence of discrimination.

In certain cases where the evidence of discrimination

is so strong that the plaintiff has created a prima facie

case with direct evidence, the defendant will have the

burden of rebutting the presumption by a

preponderance of the evidence, rather than merely com-

ing forward with evidence.

This principle was set forth by the Supreme Court in

Trans World Airlines, Inc, v. Thurston, 469 U.S. 111,

121, 105 S.Ct. 63, 83 L.Ed.2d 523 (1985). In that age dis-

crimination case, the Supreme Court held that the

McDonnell Douglas test is inapplicable where the Plain-

tiff presents direct evidence of discrimination. See also,

Mt. Heal i hool District v le. 42 4

287, 97 S.Ct, 568, 576, 50 L.Ed.2d 471 (1977),

The D.C. Circuit, the Fifth Circuit and the Third Cir-

cuit also follow this analysis in holding the Title VII

Defendant to a higher burden of proof when confronted

with direct evidence of discrimination. See, Gavalik v.

Continental Can Co,, 812 F.2d 834 (3rd Cir, 1987);

Goodman v, Lukens Steel Co,, 777 F.2d 113, 130 (3rd

Cir, 1985); Guillory v. St. Landry Parish Police Jury, 802

F.2d 822, 824 (Sth Cir. 1986);_Baxter v, Savannah Sugar

Refining Corporation, 495 F.2d 437, 444-445 (Sth Cir.),

cert, denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308

(1974); Walters v. City of Atlanta, 803 F.2d 1135, 1143

(11th Cir. 1986).

In Day v, Mathews, 530 F.2d 1083 (D.C. Cir. 1976) the

D.C. Circuit analyzed the Defendant’s burden of proof

as follows:

And those courts which have given the most care-

ful consideration to the burden of proof question

have held that the employee must prevail unless

the employer proves its case by "clear and con-

vincing evidence."

v. Savannah fininn

supra; 495 F.2d at 437;_Pettway v. American ae

Iron Pipe Co,, supra, 494 F.2d at 259-260;

PE EY PE ay emomepag ona E TF

491 F.2d at 1374-1380; Cooper v, Allen, 467 F.2d

836, 840 (Sth Cir. 1972).

The court stated that this ensures that the principle

burden of establishing the absence of discrimination is

placed upon the party who has the facts peculiarly

within its own knowledge. This conforms to the eviden-

tiary principle set forth in United States v. New York,

N.H. & H.R, Co,, 355 U.S. 253, 256 n.5, 78 S.Ct. 212, 2

L.Ed.2d 247 (1957).

In Robinson’s case, the FAA admitted that it pre-

viously discriminated against Robinson, and issued a

directive that Robinson be given full and fair training.

The training that Robinson received was characterized

by direct evidence of continuing discriminatory attitudes

on the part of Robinson’s instructors.

The first instructor who failed Robinson, George

Shrader, was a self-proclaimed "Gun Toting, Bible Bang-

ing Bigot." Robinson’s supervisor, Doak Adair, had pre-

viously commented that "if Robinson failed, he (Adair)

could always get him a job in the Greenwood Mississip-

pi Flight Service Station."

Shrader’s nickname and Adair’s statement are both

highly probative on the issue of racial discrimination, be-

cause these two instructors were responsible for carrying

out the directive that Robinson should be given full and

fair training.

In Robinson’s case the Court did allow this evidence

into the record. The issue thus narrows down to

whether the trial court’s failure to treat the nickname

and the statement as direct evidence of discrimination

was clearly erroneous. The nickname and the statement

are unambiguous racial slurs. When added to the con-

text of the admitted prior discrimination against Robin-

son, both the nickname and the statement should have

been afforded a great deal more weight than the Trial

Court gave them.

Had the Trial Court considered the nickname and the

statement as direct evidence of discrimination, then it

would have required the FAA to prove its nondis-

criminatory reasons by a preponderance of the evidence.

2. The Tenth Circuit Court of Appeals did not

properly analyze the evidence of discrimina-

tion.

The Tenth Circuit Court of Appeals held that the

FAA only needed to come forward with evidence of a

legitimate, nondiscriminatory reason for refusing cer-

tification of Robinson. On page 5 of its opinion, the

Tenth Circuit held as follows:

Defendants came forward with evidence showing

a legitimate, nondiscriminatory reason for refus-

ing certification. Plaintiff then had the burden of

proving by a preponderance of the evidence that

a discriminatory reason more likely motivated

the Defendants so that Defendant’s proferred ex-

planation was unworthy of belief.

In its analysis of the shifting burden of proof in a dis-

crimination case, the Tenth Circuit only requires the

Defendant to come forward and produce evidence of a

legitimate, nondiscriminatory reason for its treatment of

the plaintiff. The Tenth Circuit does not question

whether a Plaintiff has set forth direct evidence of dis-

crimination. Thus, the Tenth Circuit does not require a

Defendant to prove its nondiscriminatory reasons by a

preponderance of the evidence, even where direct

evidence of discrimination does exist on the record.

The Tenth Circuit did not question whether direct

evidence of discrimination existed on the record, and

thus did not make the determination of whether the

FAA should have proven that its motive was nondis-

criminatory by a preponderance of the evidence. The

Tenth Circuit failed to follow the standard set forth in

Trans World Airlines, Inc, v, Thurston, 469 U.S. 111,

wre

121, 105 S.Ct. 63, 83 L.Ed.2d 523 (1985). The Trans

World case modified the McDonnell Douglas test to in-

clude a determination of whether the Title VII Plaintiff

has set forth direct evidence of discrimination. If direct

evidence does exist on the record, then the Court of Ap-

peals must analyze whether the Trial Court required the

Defendant to prove its nondiscriminatory motive by a

preponderance of the evidence.

If the direct evidence of discrimination against Robin-

son had been given the proper weight in this case, the

Tenth Circuit would have held as the Supreme Court

and the Eleventh, Fifth and D.C. Circuits have held.

Thus, the FAA should have been required to show, by a

preponderance of the evidence, that it had a legitimate,

nondiscriminatory reason for refusing to certify Robin-

son as an air traffic controller.

The failure of the Tenth Circuit to follow the standard

of the Trans World case has resulted in the denial to

Mr. Robinson of equal treatment under Title VII. If the

FAA is held to a lighter evidentiary standard in the

Tenth Circuit than it is in the Eleventh and Fifth Cir-

cuits, then FAA employees, like Robinson, who live in

the Tenth Circuit have greater difficulty in proving dis-

crimination. Thus, it is easier for the FAA to dis-

criminate on the basis of race, color, religion, sex or na-

tional origin in the Tenth Circuit.

It is imperative that this difference be resolved by the

United States Supreme Court because under the present

application of separate standards, plaintiffs such as

Robinson are denied the right to a fair analysis in ac-

cordance with the reasoning in Trans World Airlines v.

Thurston, supra.

C. THE REASONS OFFERED BY THE FAA FOR

ROBINSON’S DISCHARGE ARE MERE

PRETEXTS FOR DISCRIMINATION.

1. Failure to follow its own procedures estab-

lishes thatthe FAA discriminated against

Robinson.

In 1976, Mr. Robinson reentered the air traffic control

training program. Due to the prior reorganization of

the training program, it was necessary for Robinson to

reenter at Phase 8, rather than Phase 1. After spending

two years away from the program, Robinson had to

switch to the new program in the middle of his training.

From that point on, Robinson’s entire history of training

is characterized by a departure from normal procedures.

Although the on-the-job training was designed to fol-

low up the classroom instruction, Robinson had to delay

his on-the-job radar training for over four months, be-

cause he had to take classes out of sequence, and be-

cause of the delays caused by light traffic in his sector

and the loss of his certification papers.

The certification test which Robinson took was also

not conducted according to normal procedures. Usually

only two instructors are present when a certification test

is given to an air traffic control student. In Robinson’s

case a third, and unfamiliar instructor was also present.

Although the FAA claims that the third instructor was

placed in the test to avoid charges of unfair treatment,

the actual result was that the presence of a third party

created unnecessary anxiety for Mr. Robinson during his

certification test.

The existence of a thunderstorm during Robinson’s

certification test can also be questioned. Under normal

procedures, air traffic control trainees are generally

tested under normal weather conditions.

When all of these factors are taken into consideration,

it is clear that general procedures were not followed in

the training of Mr. Robinson. Mr. Robinson had to take

classes out of sequence, and was delayed in his training,

and often had to run the flight printer instead of per-

forming air traffic control

work. The presence of a third additional party at his

certification test was the culmination of a history of

training that departed from normal procedures.

The case of Morrison v, Booth, 763 F.2d 1366(11

Cir.1985) establishes that departures from normal

employment procedures may be suggestive of discrimina-

tion. Subjectivity in employment decisions have always

been looked upon with increased scrutiny. When the

normal procedures are altered in a_ particular

employee’s situation, it gives rise to a question of

whether a discrim- inatory motive may be behind the

departure from normal employment practices.

In Robinson’s case the normal training and certifica-

tion procedures were not followed. Failure to follow

normal training and certification procedures becomes

highly suspect when considered along with the fact that

both of Mr. Robinson’s instructors had previously made

derrogatory racial comments.

The FAA attempts to justify its actions by the fact that

one other white male also had to take training classes

out of sequence. The record establishes that there were

some white trainees who also experienced delay be-

——S'

tween classroom instruction and on-the-job training.

However, the entire trial record fails to show evidence

of any trainee other than Mr. Robinson who ex-

perienced all three departures from normal procedures.

The FAA was not able to point to another trainee who

had to take classes out of sequence, who experienced a

four month delay between classroom instruction and on-

the-job training, and who had to deal with the presence

of a third instructor during the certification test. In fact,

there were no other white trainees who were similarly

situated to Robinson in that no other white trainees

were forced to undergo the extensive departure from

normal training procedures that Robinson was forced to

undergo. Accordingly, it is clear that the reasons stated

by the FAA for Robinson’s termination were mere

pretexts for discrimination.

2. FAA employment statistics establish that the FAA

discriminated against Robinson.

Although statistics are most often used in a disparate

impact theory of discrimination, it is proper to use statis-

tics to rebut a defendant’s explanatory defenses as

pretextual. In the case of Cook v, Boorstin, 763 F.2d

1462(D.C.Cir.1985), the Court held that statistical

evidence may be used to prove disparate treatment

claims. A disparate treatment plaintiff may employ

statistics concerning the employment practices of the

defendant to rebut explanatory defenses as pretextual.

See, Schwepp v. Miller Brewin F.2d 655 (11th

Cir, 1983).

During the period of August 16, 1971, to December

14, 1979, the number of blacks employed as air traffic

controllers and as air traffic controller trainees was very

minimal. In the year 1972, four blacks were hired as

trainees out of twelve hired trainees.

From 1973 forward, there was a significant reduction

in the percentage of black Denver Center trainees. Out

of 30 trainees hired, none were black. In 1974, 2 black

trainees were hired out of a total of 27, or approximate-

ly seven percent (7%). In 1975, there were 24 trainees

hired, and none were black. In 1976, 6 trainees were

hired and 2 were black. Therefore, between 1973 and

1976 only seven and one half percent (7.5%) of the

trainees hired were black. In 1977, 55 trainees were

hired, 2 of whom were black. The percentage of blacks

to the total hired was approximately three and one half

percent (3.5%). In 1978, 29 trainees were hired, none

of whom were black. In 1979, through December 14 of

that year, 20 trainees were hired, 1 of whom was black,

which would be only five percent (5%) of the total.

The testimony is clear by both Robert Smith and Mr.

Robinson that the only black who became an air traffic

controller during this period of time in the north sector

was Smith. Therefore, none of the 11 black trainees out

of the total from 1972 to December 14, 1979 were hired

as north sector air traffic controllers. Taking the total

number of trainees hired from 1972 through December

14, 1979, a total of 11 out of 223 were black. That is ap-

proximately a 4.9% representation of blacks over the

eight year period of 1972 through 1979.

These statistics establish that a very small percentage

of blacks are hired as trainees, and an even smaller per-

centage actually achieve the status of journeyman air

traffic controller. From these statistics the inference can

be drawn that black trainees in general do not receive

an equal opportunity to succeed as air traffic controllers

in the Denver region. These statistics are direct eviden-

tiary proof that can be used to rebut the explanatory

reasons of the FAA as mere pretexts for discrimination

against Arthur Robinson.

D. THE TRIAL COURT IMPROPERLY EX-

CLUDED CASSETTE TAPES OF ROBIN-

SON’S PERFORMANCE FROM’ THE

EVIDENCE.

Robinson’s two instructors both testified that one of

the reasons for fialing Robinson was his alleged lack of

ability to communicate, and in particular, a tendency to

stutter and poor speech quality.

The instructors had taped Robinson on each day that

he was taking his on-the-job radar training. The toes

of these sessions provide the best evidence of Robin-

son’s ability to communicate. A review of the tapes

would be the best way to determine whether Robinson

displayed poor speech quality and a tendency to stutter.

At trial, Robinson introduced two of these cassette

tapes as representative samples of his performance

during his on-the-job training. One of the tapes was

recorded on the day that Robinson was given his cer-

tification test. The Trial Court refused to admit the

tapes into evidence, and cited surprise and unnecessary

delay as its reasons (Pages 81 through 85 of Volume I of

the Trial Transcript are attached to the Appendix.)

Rule 403 of the Federal Rules of Evidence allows

relevant evidence to be excluded on the grounds of ©

prejudice, confusion or waste of time. Rule 403 is set

forth as follows:

Although relevant, evidence may be excluded if

its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considera-

tions of undue delay, waste of time, or needless

presentation of cumulative evidence.

Rule 403 does not list surprise as a ground for ex-

clusion. Although a party may claim unfair surprise, it is

better to grant a continuance of the trial rather than to

exclude relevant evidence on that basis. Unfair surprise

is usually coupled with danger of prejudice and con-

fusion of the issues. |

The Trial Court should have included the cassette

tapes in the evidence, because they were highly proba-

tive of the issue of whether Robinson was properly ter-

minated from the FAA certification program. Instead

of viewing the actual evidence of Robinson’s perfor-

mance, the Trial Court relied upon the biased testimony

of Robinson’s two instructors. It would have been more

appropriate for the Trial Court to allow the evidence in,

and impose other sanctions under Rule 37 of the

Federal Rules of Civil Procedure.

Upon reviewing a judgment of a Court of Appeals, the

Supreme Court may reach back into the proceeding in

the lower court to correct interlocutory orders or errors

that occurred prior to the Court of Appeals’ entry of

judgment and materially affected the subsequent

proceeding. Hamilton - Brown Shoe Co, v. Wolf

Brothers Co,, 240 U.S. 251, 258, 36 S.Ct. 269, 60 L.Ed.

629.

nn

IV. CONCLUSION

Arthur B. Robinson presented direct evidence of dis-

crimination to the Trial Court. The Trial Court and the

Court of Appeals for the Tenth Circuit did not make the

determination of whether Robinson had presented

direct evidence of discrimination.

The Tenth Circuit Court of Appeals held that the

FAA only needed to come forward and produce

evidence of nondiscriminatory reasons for its termina-

tion of Robinson from the air traffic controller. certifica-

tion program. The Tenth Circuit should have required

the FAA to prove its nondiscriminatory reasons and

rebut Robinson’s prima facie case by a preponderance

of the evidence. The Tenth Circuit did not apply the

correct standard in its analysis of the shifting burden of

proof in Robinson’s Title VII case.

The Trial Court improperly excluded cassette tapes of

Robinson’s performance from the evidence. The Trial

Court did not give proper weight to the evidence of the

FAA’s employment statistics and the FAA’s failure to

follow its own procedures in training and testing Mr.

Robinson. Thus, the Trial Court erred in its conclusion

that the reasons offered by the FAA for Robinson’s dis-

charge were not mere pretexts for discrimination.

Certiorari should be granted because the Tenth Cir-

cuit has issued an opinion that is inconsistent with U.S.

Supreme Court opinions and other opinions of federal

Courts of Appeals.

Respectfully submitted,

*Darrell S. Elliott

Darrell S. Elliott, P.C.

Steele Park Building

50 South Steele, Suite 777

Denver,Colorado 80209

Attorney for Petitioner

*Application for Admission pending