Reply Brief — White v. Runyon

Buprome Cuurt, U.3.

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{, JUN ~ 3 1996

No. 93-1313

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER *+ERM, 1993

PATRICIA L. WHITE,

Petitioner,

V.

MARVIN L. RUNYON, POSTMASTER GENERAL,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITIONER’S REPLY TO THE BRIEF IN

OPPOSITION TO HER PETITION

FOR WRIT OF CERTIORARI

Squire Padgett, Counsel of Record

David L. Rose,

Debra Palmer-Henry

1835 Street, N.W., Suite 900

Washington, D.C. 20006-1203

(202) 296-2266

Attorneys for the Petitioner

PATRICIA L. WHITE

a

aoruanmENOr Tan temewee

Ae ange earner

TABLE OF CONTENTS

Pere Ge Be a a oo Sik Oe Ss Hirde

RE a kan ee CoN oe Bees ei

Cases

Anderson v. Baxter Healthcare Corp.,

kee Bie Fe oe A)

Dandrige v. Will ams,

397 U.S. 471, 475 n.6 (1970) ............

DeMarco v. Holy Cross High Schoel,

be be le |

Durham v. Xerox Corp.,

Pee ei yi Fe A) |)

Gaworski v. ITT Commercial Finance Corp.,

17 F.3d 1104 (8th Cir. 1994) ...........

Hairston v. Gainesville Sun Pub. Co.,

9 F.3d 913 (11th Cir. 1993) .............

Hazen Paper Co. v. Biggins,

fxg oe i. 2) 2 rer i

Houston v. Fill,

Ge Bh Se CRED 2 oe ee eh esa de hee es

TABLE OF AUTHORITIES

Cases Page

LeBlanc v. Great Am. Ins. Co.,

6 F.3d 836 (ist Cir. 1993), cert.

SE, FOe a Be nike 6 5 ee eae 7

McDonnell Douglas Corp. v. Green,

GEE SA Fe ee ee eee ek cee eer eee 3

Mitchell v. Data General Corp.,

vEA Be: fo oe | rare a ars coe 6, 7

Olivera v. Nestle Puerto Rico, Inc.,

Fae Fae Oe Cede Gs EO no he es ev Cer Ee ew 7

Schiro v. Farley,

EiG is Fe CRUE oy 0 ke eee pee ee ewe 2

St. Mary’s Honor Ctr. v. Hicks,

ae) ee eee gi ere 4, 67

Texas Dept. of Community Affairs v. Burdine,

Re ee |} er ee ae a 2

United States v. Williams,

tee Fo Bee Bigs 14): 4 rere rer ime yee 3

Washington v. Garrot,

Oe ae bet Cree Ca, Te) on 5c oe rh on EES ee 6

Statutes

et Vee Oe PRR eT re er eee passim

It.

No. 93-1313

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

PATRICIA L. WHITE,

Petitioner,

Vv.

MARVIN L. RUNYON, POSTMASTER GENERAL,

Respondent.

PETITIONER’S REPLY TO THE BRIEF IN

OPPOSITION TO HER PETITION

FOR WRIT OF CERTIORARI

1. The Petitioner and the brief of the amici curiae

Womens Legal Defense Fund, et. al., request that this Court

review the Fourth Circuit’s decision which sustained the

lawfulness of the Postal Service’s practice of granting lighter

duty assignments to non-pregnant employees who are injured on-

the-job, while denying lighter duty work to pregnant employees

whose disability arises from pregnancy, but who are similar in

their ability or inability to work. Petition at 14; Amicus Brief at

2. That decision has broad application to pregnant workers of

the Postal Service throughout the United States. Under the Titie

VII analysis ostensibly followed by the Fourth Circuit,

defendant’s stated basis for refusing to grant Petitioner lighter

duty assignments would only be a defense if it were a

"legitimate, nondiscriminatory reason." See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973); Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981), cited

and relied upon by the Fourth Circuit, Pet. App. 6a.

Here, the reason advanced by the Postal Service and

accepted by the Fourth Circuit is neither "legitimate" nor

"nondiscriminatory" because it violates Title VII as amended by

the Pregnancy Discrimination Act. Yet, the Fourth Circuit relied

upon that reason without purporting to determine that it was a

"legitimate nondiscriminatory reason." The Postal Service did

not attempt to defend the legality of the policy below nor has it

asserted that the policy is not currently being followed.

a. Under settled law the holder of a judgment may defend

the judgment based on any matter appearing in the record.

Petition at 18, (citing Dandrige v. Williams, 397 U.S. 471, 475

n.6 (1970)). The Respondent argues that the Fourth Circuit was

correct when it declined to rule expressly on this issue because

it was not properly raised and was not considered by the district

court. Respondent’s Brief at 11. However, Ms. White, as the

plaintiff-appellee, properly raised this issue before the court of

appeals as a ground to uphold and support the district court’s

judgment in her favor.

That the Petitioner properly raised the issue below so that

it can be considered by this Court is demonstrated by the Court’s

decision in Schiro v. Farley, 114 S.Ct. 783 (1994). There the

respondent, who had failed to raise an issue in the lower courts,

raised the argument for the first time in this Court in order to

defend the decision rendered below. /d. at 788. Citing the

Dandridge decision, this Court concluded that "[wJhile we

ordinarily do not review claims made for the first time in this

Court, ... we recognize that the State, as respondent, is entitled to

rely on any legal argument in support of the judgment below."

Schiro v. Farley, 114 S.Ct. at 788. Like the respondent in

Schiro, Ms. White was entitled to raise this argument in the court

of appeals in defense of the judgment of the district court and the

Fourth Circuit was obliged to give it consideration. The Fourth

Circuit erred in declining to review the issue expressly.

b. The Respondent’s suggestion that this Court should

decline to review this issue because it was not passed upon by a

lower court, is equally without merit because the Petitioner raised

and briefed this issue before the court of appeals in support of

the district court judgment. Respondent’s Brief at 11. The rule

that "precludes a grant of certiorari only when ‘the question

presented was not pressed or passed upon below’ . . . operates (as

it is phrased) in the disjunctive. . . ." United States v. Williams

112 S.Ct. 1735, 1738 (1992). As a result, if the issue is pressed

by a party in the Court of Appeals but is not passed upon by that

court, the question is nevertheless properly before this Court. Jd.

Consistent with the reasoning in Williams, this Court has

also concluded that it is not barred from considering an issue that

a party does not raise until it loses in the court of appeals and

that is not addressed by that court after a rehearing en banc.

Houston v. Hill, 482 U.S. 451, 467 n.16 (1987). Because the

Petitioner fully briefed and asserted this issue before the Fourth

Circuit in support of the judgment of the district court, the

question is properly before this Court. Moreover, we believe the

record will show that the issue was passed upon by the district

court.' As a result, this issue should and can be fully considered

by the Court.

Moreover, the justification stated by the Postal Service

for refusing to grant Petitioner lighter duty assignments can only

be grounds for sustaining the lawfulness of that conduct if it was

a "legitimate, non-discriminatory reason." Burdine, supra, 450

U.S. at 253; McDonnell Douglas Corp., supra , 411 U.S. at 802.

The Fourth Circuit decision is not compatible with Title VII as

amended by the Pregnancy Discrimination Act if, as Petitioner

contends, the policy relied upon by the Postal Service was

unlawful. Jd. The decision on the lawfulness was, therefore, an

'In her brief as appellee, Petitioner stated that she did not

"expressly" argue this issue before the district court, but that

she did believe that the court based its ruling upon this ground.

Appellee’s Brief at 42 n.9; Pet. App. 16a.

3

integral and necessary part of the Fourth Circuit’s decision.”

c. The Respondent also asserts that there is an

insufficient factual record to address this issue. Respondent’s

Brief at 12. However, we believe the policy is itself

discriminatory under the Pregnancy Discrimination Act. The

record included the written policy and its application in this case.

That record alone was sufficient for a ruling that the policy was

neither "legitimate" nor "non-discriminatory" because it was in

violation of Title VII, as amended.

2. Even apart from the worthiness for certiorari of the

Pregnancy Discrimination Act issue, this case is worthy of this

Court’s review based upon the continuing conflict between the

circuits regarding the type of proof that is required before a case

can be sent to a factfinder for a ruling on the ultimate question

of discrimination. As further explained below, the district court

in this case ruled in a manner that is consistent with the rulings

of at least two other circuits that have interpreted St. Mary’s

Honor Ctr. v. Hicks, ___ U.S.____, 113 S.Ct. 2742 (1993)

(hereinafter St. Mary’s Honor). See Hairston v. Gainesville Sun

Pub. Co., 9 F.3d 913 (11th Cir. 1993); Gaworski v. ITT

Commercial Finance Corp., 17 F.3d 1104 (8th Cir. 1994). The

decision of the Fourth Circuit is in conflict with those decisions.

’This Courts’ decision in Hazen Paper Co. v. Biggins, 113

S.Ct. 1701 (1993) can be contrasted from this case. In Hazen,

this Court reversed the court of appeals ruling that there was

unlawful discrimination based on the Age Discrimination in

Employment Act of 1967. Unlike this case, however, the

Hazen case did not involve an underlying finding of

discrimination and the reason given to support the action was

not illegitimate under the controlling statute. Here, the district

court found, as a fact, that there was discrimination. Pet. App.

at 16a. Moreover, the reason advanced by the Postal Service

for the actions taken against the Petitioner was itself illegal

under the Pregnancy Discrimination Act.

4

In this case, the district court concluded that the plaintiff

had proven a prima facie case by establishing facts which

demonstrated that the defendant’s actions were more likely than

not due to the intentional consideration of sex. Pet. App. 15a.

Next, it found that the Postal Service’s explanation was an

“arbitrary, artificial distinction that could not negate its liability.”

Pet. App. 15a. After making this finding of pretext, and

specifically stating that the plaintiff had satisfied the ultimate

burden of persuading the trier of fact, the district court found that

the Postal Service had discriminated on the basis of sex. Pet.

App. 16a.

Although the district court found that the Petitioner had

established a prima facie case and the district court disbelieved

the reasons advanced by the Postal Service and found the Postal

Service’s conduct to be discriminatory, the Fourth Circuit

*The Respondent asserts that the court of appeals simply

concluded that it was ciear error for the district court to

find intentional discrimination based solely on the evidence

of an incorrect reading of the collective bargaining agreement.

Respondent’s Brief at 9. However, the district court did not

state that its finding was restricted solely to this evidence.

Indeed, the district court found that the "record [was] replete

with evidence that each controversy arose out of one of plaintiff's

pregnancies and the interpretation of the Agreement by

defendant’s management representatives." App. 14a (emphasis

added). Among some of the uncontradicted evidence that the

district court could have reasonably relied upon was the

testimony that Supervisor Stallings: 1). made repeated requests

from her for particularized medical documentation, although he

had evidence of her pregnancy; 2). curtailed the distribution of

her mail when she was on leave so that there would be more

work for her to do when she returned; and 3). stated that "if [she]

cared about [her] child, [she] wouldn’t be working." 3 JA 416-

23. Supervisor Stallings even suspended and removed her from

service when, according to Postmaster Saylor, such action was

"unjustified." 3 JA 423-27, 676-77. Moreover, there were three

different explanations advanced for granting Rural Carrier Franz

assistance after his heart attack. See Pet. at 9, para. 2.

5

required evidence, over and above the evidence advanced to

support plaintiff's prima facie case, to sustain the district court’s

finding of discrimination. Pet. App. 8a. By so holding, the

Fourth Circuit continued to apply its analysis which requires not

only evidence sufficient to constitute a prima facie case, but also

additional evidence, independent of th. evidence constituting the

prima facie case, that the employer’s proffered reason is false and

discriminatory. Under the line of cases following the reasoning

of the Fourth Circuit, a plaintiff will never be able to meet its

ultimate burden of proving intentional discrimination based on

the evidence presented in its prima facie case alone. See, e.g.,

Mitchell v. Data General Corp., 12 F.3d 1310, 1317 (4th Cir.

1993)("the plaintiff can fail to meet his burden, not only by

failing to establish a prima facie case, but also by failing to show

a genuine factual dispute over the employer’s legitimate

nondiscriminatory explanation.").

The conflict amongst the circuits has continued after the

St. Mary’s Honor decision. The decisions of the Eleventh and

Eighth Circuits have held that proof of a prima facie case is

alone sufficient to send the case to the jury and to sustain a

finding of discrimination. In Hairston v. Gainesville Sun Pub.

Co.. 9 F.3d 913, 921 (11th Cir. 1993), the Eleventh Circuit held

that:

In order to establish pretext, the plaintiff is not required

to introduce evidence beyond that already offered to

establish a prima facie case. ... Accordingly, the grant of

summary judgment, though appropriate when evidence of

discriminatory intent is totally lacking, is generally

unsuitable in Title VII cases in which the plaintiff has

established a prima facie case because of the “elusive

factual question’ of intentional discrimination.

Id. (citations omitted); accord Washington v. Garrot, 10 F.3d

1421 (9th Cir. 1993)("Because, as St. Mary's recognizes, the

factfinder ... is entitled to infer discrimination from plaintiff's

proof of a prima facie case and showing of pretext without

anything more, there will always be a question for the factfinder

once a plaintiff establishes a prima facie case and raises a

genuine issue as to whether the employer’s explanation for its

action is true."). The Eighth Circuit rendered a similar ruling in

Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104, 1110

(8th Cir. 1994) where it held that: "Hicks established that ’[n]o

additional proof of discrimination is required.’ Based upon the

elements of the plaintiff's prima facie case and the jury’s

rejection of the defendant’s explanations, the jury could infer that

discrimination had occurred." At least two other circuits appear

to follow another standard different from that followed by the

Fourth Circuit.’

‘The Seventh Circuit has observed that the First Circuit’s

"plus" standard was rejected by this Court in St. Mary's Honor.

Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123 (7th

Cir. 1994)("it appears that the Court adopted this circuit’s

version of the ’pretext-only’ rule rather than the ’pretext-plus’

approach of the First Circuit."). This is an implicit recognition

that the Fourth Circuit’s standard has also been rejected since

the Fourth Circuit follows the First Circuit’s "plus" rule.

Olivera v. Nestle Puerto Rico, Inc., 922 F.2d 43, 48 (Ist Cir.

1990). The First and Fourth Circuits, have continued to

follow this rule after St. Mary’s Honor. See Le Blunc v.

Great Am. Ins. Co., 6 F.3d 836, 842-43 (1st Cir. 1993);

Mitchell v. Data General Corp., 12 F.3d 1310, 1317 (4th Cir.

1993). According to the Seventh Circuit, under St. Mary’s

Honor, a plaintiff who proves her prima facie case and shows

that the employers proffered reasons are false may prevail "not

automatically as a matter of law, but through submission of

her case to the ultimate factfinder. . . .". Anderson v. Baxter

Healthcare Corp., 13 F.3d 1120, 1123 (7th Cir. 1994). See

also, DeMarco v. Holy Cross High School, 4 F.3d 166, 170

(2nd Cir. 1993) ("[pJroof that the employer has provided a

false reason for its action permits the finder of fact to

determine that the defendant’s actions were motivated by an

improper discriminatory intent ..."); Durham v. Xerox Corp.,

18 F.3d 836 839-40 (10th Cir. 1994) ("Although a prima facie

case combined with disproof of the employer’s explanations

does not prove intentional discrimination as a matter of law, it

may permit the factfinder to infer intentional discrimination

and thus preclude summary judgment").

This case presents an important question regarding the

degree of proof which a plaintiff must produce in order to have

the case decided by the finder of fact. The Fourth Circuit’s

decision is directly at odds with the decisions of the Eighth,

Ninth and Eleventh Circuits, and is different from decisions of

the Second, Seventh, and Tenth Circuits. Because there remains

a continuing conflict among the circuits, review by this Court is

warranted to resolve this conflict.

CONCLUSION

reasons set forth above, this Court should grant

the petition and review the decision below.

Respectfully submitted,

Squire Padgett,

Counsel of Record

David L. Rose

Debra Palmer-Henry

1835 Street, N.W., Suite 900

Washington, D.C. 20006-1203

(202) 296-2266

Attorneys for the Petitioner

Patricia L. White

June 9, 1994