# Petition for Writ of Certiorari — Robinson v. Secretary of Transportation > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0989%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 944 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0989%3A1. Public record. Not legal advice.