Opposition Brief — Childress v. City of Richmond

Supreme Court, U.S.

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No. 97-1723 MAY 14 1996

In The CLERK

Supreme Court of the United States

—

October Term, 1997

DAVID W. CHILDRESS, AUGUSTUS G. HARVEY, III,

VINCENT J. MATASSA, HENRY W. MEASE, HOWARD S.

NOYES, DANIEL G. QUINNEY, FLORIAN E. STACHURA,

Petitioners,

VS.

CITY OF RICHMOND, VIRGINIA; JERRY A. OLIVER,

Chief of Police of the City of Richmond, Virginia, in his official

capacity as Chief of Police of the City of Richmond; and

MARTY M. TAPSCOTT,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JOHN A. RUPP

City Attorney

BEVERLY A. BURTON*

Sentor Assistant City Attorney

Office of the City Attorney

900 East Broad Street

Suite 300

Richmond, Virginia 2321%

(804) 780-7953

Attorneys for Respondents

* Counsel of Record

“wn AA OF "49 ~ - nara -

(800) 274-3321 * (800! 359-6859 Apzeliate

A DiVISION OF COUNSEL PRESS Services, inc

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PARTIES TO THE PROCEEDING

The petition accurately lists the parties to the proceeding.

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TABLE OF CONTENTS

Page

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A. Petitioners have misrepresented the nature of the

charges they filed with the EEOC. .......... l

B. Petitioners have misrepresented the basis on which

Judge Luttig determined that they were not

aggrieved within the meaning of Title VII. .... l

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Be ee Pee er ee 19

TABLE OF CITATIONS

Cases Cited:

Balazs v. Liebenthal, 32 F.3d 151 (4th Cir. 1994) .... 15

Bennett v. Spear, __ U.S. __, 117 S. Ct. 1154 (1996)

ies W epee ds Ob eee e eee ke kee aw oe ees AD

SOOO) SicsecuseNntedsgey sakes beeen 13

lil

Contents

Page

Dennis v. County of Fairfax, 55 F.3d 151 (4th Cir. 1995)

PRUE Cae etd ene eee bo oe Kaas hoe 6d bi¥e Rowe kk 4

Director, OWCP vy. Newport News, 514 U.S. 125 (1995)

ERE SEO Wy Sao ME et RA yt eo ean Oe eR 13

Evans v. Technologies Applications & Serv. Co., 80

Ramee We Oe TE ois b doe ec cose cokes 16

Gifford v. Atchinson, Topeka and Santa Fe Ry. Co., 685

ee OD ig Sikes ko 16

Hackett v. McGuire Bros., Inc., 445 F.2d 442 (3rd Cir.

OE ek ee ow ho did do bo hoa Vc hw kek, 1]

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) .. 4, 6,8

Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745

I 16

Johnson v. General Elec., 840 F.2d 132 (1st Cir. 1988)

JE Eig Pe nO RONG Te RB ag ce a 16, 17

McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d

1191 (4th Cir. 1996), cert. denied, _ U.S. _, 1175S.

RU NS oo oo ab og ooo os be Sc 7

Meritor Savings Bank, FSB vy. Vinson, 477 U.S. 57

Ste i ea ee ee ey 4

Monsanto Co. v. Spray-Rite Serv. “orp., 465 U.S. 752

(1984), rehearing denied, 466 U.S. 994 (1984) ... 18

iv

Contents

Page

Nichols v. United States, 511 U.S. 738 (1994) ....... 18

Oncale v. Sundowner Offshore Services, Inc., __ U.S.

a BE is es AD, Pb ee caN Oo eee ee eae 4,8

Page v. Bolger, 645 F.2d 227 (4th Cir. 1981), cert. denied,

Ge Aas ee REED hiv nce bee ace ates Cee 16

Rabinovitz v. Pena, 89 F.3d 482 (7th Cir. 1996) ..... 16

Robinson v. Shell Oil Company, 519 U.S. 337 (1997)

EE ada A Oe en a a ce en aca ek 7

Ross v. Communications Satellite Corp., 759 F.2d 355

(UL Ss TE ao rads 0 Ae ees kas eas 15

Sisco v. J.S. Alberici Constr. Co., 655 F.2d 146 (8th Cir.

1981), cert. denied, 455 U.S. 976 (1982) ........ 16

Spicer v. Commonwealth, 66 F.3d 705 (4th Cir. Va. 1995)

AER OngY APCRE Umer em rye tier are Bey LE Meare!) SUMS 3

Trafficante v. Metropolitan Life Insurance Company, 409

Rc ee Le Ee kanes coe wheee need beeen 10, 11, 12

Valley Forge College v. Americans United For Separation

of Church and State, 454 U.S. 464 (1982) ....... 9

Warth v. Seldin, 422 U.S. 490 (1975) ...........4.. 9

Contents

Page

Statutes Cited:

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APPENDIX

Appendix A — Excerpts from Brief of Appellees,

Childress, et al. v. City of Richmond, et ai. Record No.

96-1585, Dated September 9, 1997 ............. la

STATEMENT OF THE CASE

This petition is filed seeking reversal of the dismissal of

petitioners’ Title VII racially and sexually hostile environment

claims, dismissal of their Title VII claim of retaliation for filing

a charge with the Equal Employment Opportunity Commission

(EEOC), and dismissal of their Title VII claim of retaliation for

opposing prohibited practices. As detailed below, there is no

cause for this Court’s review of the dismissal of these claims.

A. Petitioners have misrepresented the nature of the charges

they filed with the EEOC.

On page 3 of the Petition, petitioners state, “During the

following March and April, each of the officers filed a hostile-

environment charge (race and sex) with the EEOC.” Although

technically correct, that statement is substantively misleading.

Each petitioner is a white male who filed an initial charge of

discrimination with the EEOC alleging he was harassed and

subjected to a sexually and racially hostile environment because

of “my race, White and sex, male”.

Each, except petitioner Quinney, subsequently filed a

charge of retaliation with the EEOC claiming acts of retaliation

for having filed his previous charge of discrimination with the

EEOC. The petitioners filed no other charges with the EEOC.

B. Petitioners have misrepresented the basis on which J udge

Luttig determined that they were not aggrieved within the

meaning of Title VII.

On page 7 of the Petition for Writ of Certiorari, petitioners

state,

Judge Luttig reached this conclusion [that petitioners

lacked standing under Title VII] on the basis that

y

Title VIII formally defines the term “aggrieved

person”... under the general heading “Definitions”,

whereas in Title VII, which uses the term “aggrieved

person” that term is not formally defined...

This is a misleading characterization of Judge Luttig’s analysis.

In his concurring opinion, Judge Luttig reasons that because

Title VII does not define “aggrieved person”, Congress intended

the phrase to be interpreted as a term of art, which requires the

application of prudential principles of standing which, in turn,

requires a party to assert his own rights as a basis for relief.

Applying prudential standards to this case, Judge Luttig

concluded that petitioners did not have standing to pursue this

action under Title VII because they were asserting the rights of

others. (App. 52a-53a).

REASONS FOR DENYING THE WRIT

1. The petition for a writ of certiorari should be denied

because although petitioners, all white males, filed a charge of

discrimination with the EEOC complaining that they were

discriminated against because of their race * — their sex, the

Amended Complaint contains no allegations from which one

can reasonably infer that the conduct of which they complain

constituted discrimination against them because of their race

and sex.

Each of the petitioners filed charges of discrimination with

the Equal Employment Opportunity Commission (“EEOC”)

alleging he was subjected to a sexually and racially hostile

environment because of “my race, White and sex, male”.'

However, all of the allegations forming the basis for the charge

consisted of disparaging remarks about blacks and women.

1. See Joint Appendix, pp. 100, 112, 133, 160, 164, 169 and 175.

28 cts witpalcns 2 cea

3

The following statements of Lieutenant Arthur Carroll form

the basis for petitioners’ Title VII race and sex discrimination

claims: (1) In November or December 1993 Carroll said, “Well,

I see all my bitches (or ladies) are here, it must not be that time

of the month”. (Jt. App. 60); (2) On January 3, 1994, Carroll

referred to female officers as the “pussy posse” and “vaginal

vigilantes”. (Jt. App. 60); (3) On December 16, 1993, Carroll

stated that what was different about that particular day was that

no black or female officers were present, and this was “like it

used to be”. (Jt. App. 58); and (4) Some time in early 1994, the

wife of the of the plaintiffs telephoned the precinct and allegedly

overheard Carroll saying, “[mJother fucking worthless black

bitch”, “no good black bitch”, and “most useless nigger”. (Jt.

App. 60-61). Carroll made no additional comments of this

nature. All of the remarks, except (4), were made during roll

call.

The foregoing allegations do not make out a claim for

unfavorable treatment because of the race or sex of the seven

white male petitioners, and the Amended Complaint was

properly dismissed.

2. The petition for a writ of certiorari should be denied

because the conduct alleged as forming the basis for petitioners’

race and sex discrimination claims under Title VII consists of

the mere utterance of epithets and did not create an objectively

hostile environment.

To establish a sexually hostile environment claim, petitioners

must show the harassment was unwelcome, it was based on

their sex, it was sufficiently severe or pervasive to create an

abusive working environment, and the employer had actual or

constructive knowledge of the hostile environment but took no

prompt or adequate remedial action. Spicer v. Commonwealth,

66 F.3d 705, 710 (4th Cir. Va. 1995). The mere utterance of an

4

epithet which generates offensive feelings is not sufficient. If

the conduct complained of is not severe or pervasive enough to

create an environment that a reasonable person would find

hostile or abusive, Title VII is not implicated. Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21 (1993), citing Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57 (1986). In determining

whether an environment is hostile or abusive, one must consider

all the circumstances, including, but not limited to, the

frequency of the discriminatory conduct, its severity, whether

it is physically threatening or humiliating or a mere offensive

utterance, and whether it unreasonably interferes with an

employee’s work performance. /d. at 22. An environment that

a reasonable person would find hostile or abusive is a “crucial”

prerequisite to establishing a hostile environment case under

Title VII. Oncale, 118 S. Ct. 1003. The same analysis is used

to determine the existence of a racially hostile environment.

Dennis v. County of Fairfax, 55 F.3d 151, 155-56 (4th Cir.

1995).

First, the boorish and disparaging remarks in (1) and (2)

above were not directed at the male plaintiffs, but were obviously

directed at females. The remark in (3) although possibly directed

at the male plaintiffs, consists of a mere observation, and is

obviously not objectively offensive, and the remark in (4) was

not said in the presence of or directed at any male or female

officer whatsoever. Moreover, these remarks are mere epithets

and clearly isolated incidents which fall far short of the

requirements of Harris for establishing a hostile environment

case under Title VII. Further, after extensive discovery and the

opportunity to produce evidence in response to respondents’

motions for summary judgment, with respect to their racially

hostile environment claim, petitioners did not present any

evidence that any black officer was even aware of the comments

in (3) and (4) above.

5

Additionally, assuming, arguendo, that each of the remarks

was brought to the precinct captain’s attention (Carroll’s

supervisor) on January 20, 1994, petitioners made no allegations

in their Amended Complaint and produced no evidence that

Carroll continued to make such remarks after January 20th. In

fact, petitioners admitted that once their complaints were brought

to the captain’s attention on January 20th, no further remarks

or outbursts of temper occurred.”

Although petitioners alleged in the Amended Complaint

that the conditions of their employment were adversely affected

by the loss of camaraderie and teamwork due to Carroll’s remarks,

their performance obviously did not suffer, as they received

numerous commendations and awards and received either

standard, above-standard, or exceeds standards on their

performance evaluations.* Obviously, whatever workplace

2. Petitioners admitted that prior to making the remarks alleged in the

Amended Complaint, Carroll had not made similar remarks or engaged in conduct

indicative of a sexually hostile environment. See Record, Exhibit 10 to Defendants’

Memorandum in Support of Motion for Summary Judgment, specifically, each

petitioner's answer to interrogatory 5. After Hicks was presented with the January

13th letter, Carroll’s outbursts of temper and profanity ceased, See Record, Harvey

Deposition, p. 70, and Carroll did not make any remarks similar to those alleged

in the Amended Complaint. See Record, Childress Deposition, p. 55; Matassa

Dep., p. 34; Mease Dep., pp. 115-116; Noyes Dep., p. 24; Quinney Dep., p. 32.

3. From January 21 to July 15, 1994, Noyes received five commendations

for his work, Childress received one on January 14, 1994, Quinney received

five from February 18 to July 1, 1994, Stachura received the Excellent Police

Duty award on May 29, 1994, and from December 31, 1993 to June 18, 1994,

Matassa received three commendations, including a Meritorious Police Duty

award. Matassa was also Officer of the Month for August 1994. All petitioners

were rated “above standards” on their 1993-94 performance evaluations, except

Childress, who was rated “standard”, Harvey, who was not evaluated, and Mease,

who was rated “exceeds standards”. For documentation, See Record, Defendants’

Motion for Summary Judgment, dated February 27, 1996, p. 17.

6

atmosphere Carroll’s remarks created did not unreasonably

interfere with their work performance.

The Harris criteria for establishing a hostile work

environment were not met in this case, and review by this Court

of the dismissal of this claim is not warranted.

3. The decision of the court below in affirming the dismissal

of petitioners’ Title VII claims was correct because to permit

white males to state a claim for relief under 42 U.S.C. § 2000e-

2(a)(1), when the discriminatory conduct complained of is

directed at blacks or females, ignores the plain causation language

of Title VII.

Petitioners claim that their rights under § 2000e-2 of Title

VII were violated. Title VII imposes liability for engaging in

“unlawful employment practices” and provides, inter alia, that

It shall be an unlawful employment practice for an

employer (1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate against

any individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual's race, color, religion,

sex, or national origin; ...

42 U.S.C. 2000e-2(a)(1) (emphasis added). Respondent

contends that this causation language determines who may file

suit under Title VII.

This Court has said that the

first step in interpreting a statute is to determine

whether the language at issue has a plain and

unambiguous meaning with regard to the particular

7

dispute in the case. [The] inquiry must cease if the

statutory language is unambiguous and the statutory

scheme is coherent and consistent.

Robinson v. Shell Oil Company, 519 U.S. 337, 344 (1997).

The phrase “because of such individual’s race” (or sex) is plain

and unambiguous in a coherent statutory scheme. Section

2000e-2 describes five instances of prohibited employment

practices “because of such individual’s race, color, religion, sex

or national origin.” See 42 U.S.C. §§ 2000e-2(a)(1), 2000e-

2(a)(2), 2000e-2(b), 2000e-2(c)(1) and 2000e-2(c)(2). Another

portion of the prohibited practices section describes one

additional prohibited employment practice by using the phrase

“discriminate against any individual because of his race, color,

religion, sex, or national origin. .. .” 42 U.S.C. § 2000e-2(d)

(emphasis added). The statutory scheme is obviously consistent

in prohibiting discriminatory practices which occur because of

the race, color, religion, sex or national origin of the person

alleging discrimination and evinces a clear Congressional intent

that the discrimination be personal to the individual claiming

it. Further, the phrases “to discriminate against any individual

. .. because of such individual’s race” (or sex) and “discriminate

against any individual because of his race” (or sex) could not

be plainer. Logically, then, the intent of the statute is served by

providing a remedy to those who are the objects of the prohibited

practices.

By conferring upon white males the right to file suit

essentially alleging that they have been discriminated against

because of conduct directed at blacks or females, the “critical

causation language’ of Title VII will have been effectively re-

written to prohibit discrimination “against any individual .. .

because of such individual’s, or anyone else’s, race” (or sex).

4. McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191,

1195 (4th Cir. 1996), cert. denied, _ U.S. __, 117 S. Ct. 72 (1996).

8

Allowing the petitioners to assert their hostile environment

claims under Title VII when the discriminatory conduct is

directed at blacks or females is inconsistent with rulings of this

court which either directly or implicitly have recognized the

language of § 2000e-2(a)(1) to require that to be actionable the

discrimination in harassment cases occur because of the

complaining party’s race or sex. See Oncale v. Sundowner

Offshore Services, Inc., __ U.S. __, 118 S. Ct. 998, 1002-03

(1998) (“plaintiff must always prove that the conduct at issue

was not merely tinged with offensive sexual connotations, but

actually constituted discrimina[tion] ... because of ... sex”)

(Justice Thomas, concurring, “... the plaintiff must plead and

ultimately prove Title VII’s statutory requirement that there be

discrimination ‘because of . . . sex’ ”); Harris v. Forklift Systems,

Inc., 510 U.S. 17, 25 (1993) (“The critical issue, Title VII's

text indicates, is whether members of one sex are exposed to

disadvantageous terms or conditions of employment to which

members of the other sex are not exposed.”).

4. The petition for a writ of certiorari should not be granted

because petitioners do not meet the requirements of Article III

standing, and the Court has no jurisdiction under Title VII.

Addressing the issue of standing requires an analysis of both

constitutional and prudential limitations on federal court

jurisdiction. This Court recently addressed these limitations in

Bennett v. Spear, __ U.S. __, 117 S. Ct. 1154, 1161 (1996).

To meet Article III requirements,

a plaintiff must, generally speaking, demonstrate that

he has suffered “injury in fact”, that the injury is

“fairly traceable” to the actions of the defendant, and

that the injury will likely be redressed by a favorable

decision.

Id. at 1163.

eT re pee eee re ere

FE ATE 0 EDS. PETG PORTER, BRR Te ee, es FE SE EEE» ri

9

Prudential principles guiding the courts include a general

prohibition against third-party standing, that is, one “must

generally assert his own legal rights and interests, and cannot

rest his claim to relief on the legal rights or interests of third

parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975); see also

Valley Forge College v. Americans United For Separation of

Church and State, 454 U.S. 464, 474 (1982). Another

requirement is that a plaintiff’s grievance must arguably fall

within the zone of interests protected or regulated by the statutory

provision or constitutional guarantee invoked in the suit.

Although the “zone of interests” test has been largely applied

to suits under the APA, it has been applied to other types of

cases which did not involve review of federal administrative

action, as well, and varies according to the provisions of law

under consideration. Bennett, 117 S. Ct. 1161. Further, whether

a litigant’s interest is

arguably . .. protected .. . by the statute within the

meaning of the zone-of-interests test is to be

determined not by reference to the overall purpose

of the Act in question ... but by reference to the

particular provision of law upon which the plaintiff

relies . . . The plaintiff must establish that the injury

he complains of ... falls within the “zone of

interests” sought to be protected by the statutory

provision whose violation forms the legal basis for

his complaint.

Id. at 1167 (internal quotation marks omitted).

“Congress legislates against the background of our

prudential standing doctrine, which applies unless it is expressly

negated.” /d. at 1162. The question, then, is whether Congress

intended to confer upon one who is not a direct victim of

discrimination the right to file suit under Title VII.

10

Petitioners rely on Trafficante v. Metropolitan Life Insurance

Company, 409 U.S. 205 (1972), in support of their contention

that they have standing to pursue a racially and sexually hostile

environment claim under Title VII when the basis for their claim

is discrimination against others and not themselves. In

Trafficante, this Court was faced with the question of whether

a white person was entitled to sue under § 810 of the Civil

Rights Act of 1968 (Fair Housing Act) although blacks were

the objects of the discrimination alleged. In addressing that

question, this Court examined the language of § 810(a), which

provides, inter alia, that “[a]ny person who claims to have been

injured by a discriminatory housing practice or who believes

that he will be irrevocably injured by a discriminatory housing

practice that is about to occur (hereafter ‘person aggrieved’)

may file a complaint with the Secretary”, 42 U.S.C. § 3610(a),

and found it to be “broad and inclusive”.*’ Trafficante, 409

U.S. at 209. This Court also noted that

“(w]hile members of minority groups were damaged

the most from discrimination in housing practices,

the proponents of the legislation emphasized that

those who were not the direct objects of

discrimination had an interest in ensuring fair

housing, as they too suffered.

Id. at 210. This Court’s holding in Trafficante permitted a white

person to sue based on discrimination against blacks under Title

VIII.

The petitioners’ reliance on Trafficante as permitting white

males to sue for discrimination against females or blacks under

5. In describing prohibited practices, Title VIII contains four references

to discrimination “because of race, color, religion, sex, handicap, familial

status, or national origin”. Title VIII does not use the language “because of

such individual’s race”.

et ee ee ee

1]

Title VII is based in significant part on the fact that in its analysis

of Title III, this Court cited with approval Hackett v. McGuire

Bros., Inc., 445 F.2d 442 (3rd Cir. 1971), a Title VII case which

addressed the phrase “person claiming to be aggrieved”. See

Trafficante, 409 U.S. at 209. While it is true that in Hackett the

Court of Appeals concluded that the language “a person claiming

to be aggrieved” shows a congressional intention to define

standing as broadly as is permitted by Article III of the

Constitution, Hackett, 445 F.2d at 446, it is important to note

that in Hackett the plaintiff was alleging discrimination personal

to him and that the question of standing the Court of Appeals

answered was whether the plaintiff had standing as a pensioner

to sue for direct discrimination under Title VII.° The Court of

Appeals concluded that Hackett satisfied the requirements for

Article III standing and could assert his claim of direct

discrimination.

The mere fact that Article III standing exists with respect to

a plaintiff claiming direct discrimination does not mean that

Article III standing should be found with respect to the

petitioners in the instant case, and it does not mean that anyone

can allege a violation of civil rights not personal to them in

order to effectuate the purposes of Title VII. If the citing of

Hackett in Trafficante is a resounding endorsement of anything,

it is an endorsement of the proposition that a person claiming

direct discrimination can sue under Title VII for redress provided

he can meet the requirements for Article III standing. As indicated

above in section 3, the critical causation language of the Title

VII provisions describing prohibited practices is a clear

6. The district court dismissed Hackett’s suit on the basis that as a

pensioner, he was not an employee within the meaning of Title VII. Hackett,

445 F.2d at 445. In concluding that a pensioner was indeed entitled to sue

under Title VII, the Court of Appeals found that the “person claiming to be

aggrieved” language in Title VII showed a congressional intent to define

standing as broadly as Article III permits. /d. at 446.

12

indication of an intent to make the discrimination actionable

under Title VII personal to the individual claiming it. Further,

prudential standing principles were specifically negated in

Trafficante with respect to Title VIII when Congress used the

“any person” language indicating an intent to give the broadest

possible range of individuals a right to sue to enforce Title VIII.

Additionally, unlike Title VIII, which did not provide an

administrative agency with enforcement powers, Title VII

provides an administrative agency with broad enforcement

powers to administer Title VII. So while the need for “private

attorneys general” to enforce Title VIII is glaring, the lack of

such a need for the enforcement of Title VII is equally apparent

by virtue of the existence of the EEOC.

Petitioners suffered no distinct and palpable injury, but

rather complain of being the beneficiaries of favorable treatment

that was not alleged to deprive them of the benefits of interracial

or intergender relations with their fellow black or female officers.

If females or blacks are the direct victims of the discrimination,

males and whites are the indirect beneficiaries. If whites and

males are the indirect beneficiaries of the discrimination, to allow

petitioners to sue and benefit again from being in a favored

employment status does nothing to serve the purposes of Title

VII. Petitioners have not been injured by being the beneficiaries

of better treatment than their coworkers.

Petitioners allege that Carroll’s remarks interfered with

“teamwork”, but nowhere have they alleged, and extensive

discovery produced no evidence whatsoever, that white officers

refused to work with black officers, that black officers refused

to work with white officers, that female officers refused to work

with male officers or that male officers refused to work with

female officers.

ee

13

5. The petition should be denied because petitioners are

not persons claiming to be aggrieved within the meaning of

Title VII. Although the term “person aggrieved” is specifically

defined in the Fair Housing Act, the phrase “a person claiming

to be aggrieved” is not specifically defined in Title VII. As

Circuit Judge Luttig observes in his concurring opinion,

[i]n the law, the phrase “aggrieved person” has long

been a “term of art” ordinarily understood to mean

those persons who could satisfy both prudential and

constitutional standing limitations.

Childress v. City of Richmond, 134 F.3d 1205, 1208 (4th Cir.

1998), citing Director, OWCP vy. Newport News, 514 U.S. at

125 (1995) (Luttig, J., concurring). “Congress legislates against

the background of our prudential standing doctrine, which

applies unless it is expressly negated.” Bennett, 117 S. Ct. 1162.

If it chooses to do so, Congress may override prudential

standing limitations and authorize all persons who satisfy Article

III requirements to bring a particular lawsuit in federal court,

such as it did with the Fair Housing Act.

But where it has not done so, and instead has simply

invoked the term of art “aggrieved person”, the

default rule generally is that Congress has created a

cause of action only for those persons who can satisfy

both types of standing requirements — constitutional

and prudential.

Childress, 134 F.3d 1209. The prudential rule against standing

requires that a party assert his own statutory rights and not those

of third parties. Applying this analysis to Title VII, the prudential

rule against third-party standing requires the petitioners herein

to assert only those rights Title VII confers upon them, which

are to be determined from examining the practices this statute

prohibits.

14

Petitioners filed their Title VII claim alleging that

respondents violated § 2000-e of Title VII, which describes

unlawful employment practices. As noted above, the causation

language contained in § 2000-e, “because of such individual’s

race, color, religion, sex, or national origin”, requires a showing

that the discrimination occurred because of the complaining

party’s race, color, religion, sex or national origin.

Additionally, notwithstanding the general similarity of

purpose served by both the Fair Housing Act and Title VII —

the eradication of discrimination — the language contained in

Title VII shows an intent to protect direct victims of

discrimination. Although the loss of important benefits of

interracial associations can apply with equal force in either a

housing or an employment discrimination case, employment

discrimination involves consequences to the victim that are far

more personal and that can have a far more devastating personal

effect. In an employment case, the loss of a job and

corresponding loss of income to an individual, the loss of a

promotion, loss of status, denial of opportunities for upward

mobility, the loss of pay, loss of benefits, the imposition of

disciplinary action can have a profoundly negative effect on

the individual experiencing them.

Moreover, before the statute was amended in 1991 to allow

recovery of compensatory damages, the remedies under Title

VII, which include reinstatement or hiring of employees, back

pay, front pay, inter alia, are appropriate to victims of direct

discrimination, and would never be appropriate to a beneficiary

of discrimination because such a person would already be in a

favored status with respect to those items. The original intent

of the statute could not have been to allow persons to assert the

rights of others, as the statute provided no compensation to

those who did not suffer a job detriment. Petitioners have not

noted anything that would support a change in this intent in

the Civil Rights Act of 1991 or anywhere else.

15

6. The petition should not be granted with respect to

petitioners’ opposition retaliation claim because the trial court

was without jurisdiction to hear it, because it was time-barred,

and because petitioners suffered no adverse employment action.

Title VII prohibits an employer from retaliating against

individuals for opposing unlawful practices or for participating

in investigations, proceedings, or hearings in connection with

claims of discrimination.

It shall be an unlawful employment practice for an

employer to discriminate against any individual .. .

because he has opposed any practice made an

unlawful employment practice by this subchapter,

or because he has made a charge, testified, assisted,

or participated in any manner in an investigation,

proceeding, or hearing under this subchapter.

42 U.S.C. § 20006-3(a).

To establish a prima facie case of retaliation, one must show

1) the employee engaged in protected activity; 2)

the employer took adverse employment action

against the employee; and 3) a causal connection

existed between the protected activity and the adverse

action.

Balazs v. Liebenthal, 32 F.3d 151, 158 (4th Cir. 1994): Ross v.

Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.

1985). Once a prima facie case is established, a presumption of

retaliation arises, which the employer may rebut. The employee

may then show that the employer’s explanation is pretextual.

Id. at 365. The filing of a formal EEOC charge is not always

required. However, allegations contained in an administrative

16

charge of discrimination generally operate to limit the scope of

a subsequent judicial complaint.

Only those discrimination claims stated in the initial

charge, those reasonably related to the original

complaint, and those developed by reasonable

investigation of the original complaint may be

maintained in a subsequent Title VII lawsuit.

Evans v. Technologies Applications & Serv. Co., 80 F.3d 954,

962-63 (4th Cir. 1996). When a formal charge of retaliation is

not made with the EEOC, the employee must allege that he

informed the EEOC that he was retaliated against for opposing

unlawful practices. Johnson v. General Elec., 840 F.2d 132,

139 (Ist Cir. 1988). When claiming retaliation for opposition

to a practice made unlawful by Title VII, an employee must

have an objectively reasonable belief in the validity of the

underlying charge. See Gifford v. Atchinson, Topeka and Santa

Fe Ry. Co., 685 F.2d 1149, 1156-57 (9th Cir. 1982); Sisco v.

J.S. Alberici Constr. Co., 655 F.2d 146, 150 (8th Cir. 1981),

cert. denied, 455 U.S. 976 (1982). Adverse employment actions

pertain to “ultimate employment decisions” including “hiring,

granting leave, discharging, promoting and compensating.” Page

v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981), cert. denied, 454

U.S. 892 (1981). See also Rabinovitz v. Pena, 89 F.3d 482

(7th Cir. 1996) (‘a materially adverse change in the terms and

conditions of employment must be more disruptive than a mere

inconvenience or an alteration of job responsibilities”). A

negative comment in an employee’s performance evaluation

does not constitute adverse employment action See Hopkins v.

Baltimore Gas and Elec. Co., 77 F.3d 745, 755 (4th Cir. 1996).

Petitioners alleged that respondents retaliated against them

for assisting two female officers with their complaints of

discrimination and for opposing discriminatory practices. This

———————_—__eeerreee

17

opposition-retaliation claim was never presented to the EEOC

and was raised for the first time in the Amended Complaint,

which was filed with the trial court on December 8, 1995.

The trial court examined the “male officers’ charge-filing

forms, and the affidavits to the EEOC in the plaintiff’s summary

judgment exhibit entitled “PLAINTIFFS’ EEOC

RETALIATION CHARGES” and concluded that those items

“nowhere mention this new theory.”’ The trial court, therefore,

made a specific factual finding that the opposition-retaliation

claim of petitioners was never presented to the EEOC. The

petitioners have not challenged this factual finding. Further,

petitioners did not allege in their Amended Complaint that they

had informed the EEOC of their claim of retaliation for assisting

the females in opposing discrimination.

Petitioners variously claimed that respondents retaliated

against them by giving them negative ratings on their

performance evaluations, by denying time off, by counseling

one of them about working unnecessary overtime, or by

changing their assignments. Not only were these claims either

unsupported by any evidence or done for legitimate reasons® ,

but they also did not involve “adverse employment action”

within the meaning of Title VII.

7. The writ should not be granted with respect to petitioners’

participation-retaliation claim because they have failed to present

any reason why the award of summary judgment to respondents

was improper and because they suffered no adverse employment

action. Petitioners’ participation-retaliation claims are based on

their allegation that the respondents retaliated against them for

7. See Appendix to Petition for Writ of Certiorari, p. 20a.

8. For a detailed discussion of each claim of retaliation, please refer to

Appendix, p. la-8a.

18

filing their initial EEOC charge. The court below affirmed the

trial court’s award of summary judgment to respondents on the

basis that petitioners failed to produce any evidence that any of

the retaliation claimed was motivated by the filing of their EEOC

charges. The petitioners have not seriously challenged the trial

court’s conclusion on this point. They only state on page 18 of

their Petition for Writ of Certiorari, “(t]he record in the Fourth

Circuit Court of Appeals shows otherwise. (See, e.g., App. 61a-

62a).” These two cited pages of the appendix consist of an

excerpt from the deposition testimony of Lieutenant Arthur T.

Carroll, who expressed his opinion about the involvement of

petitioners Childress, Mease and Harvey. This excerpt standing

alone falls far short of evidence showing that the filing of their

original EEOC charges was the motivation for any retaliation

petitioners claimed. Additionally, as stated above in connection

with the discussion of the opposition-retaliation claims, none

of the acts claimed as retaliation constituted adverse employment

action. Consequently, the retaliation claims were properly

dismissed.

8. The petition should be denied because the decision of

the court below does not conflict with decisions of this Court

and those of other Courts of Appeals. With respect to the Title

VII claims, including the retaliation claims, the court below

affirmed the decision of the district court by an en banc per

curiam decision of an equally divided court. Opinions which

are affirmed by an equally divided en banc Court of Appeals

have no precedential value. Nichols v. United States, 511 U.S.

738, 750 (1994); Monsanto Co. v. Spray-Rite Serv. Corp., 465

U.S. 752, 759 (1984), rehearing denied, 466 U.S. 994 (1984).

Because the decision of the court below created no precedent,

any conflict is merely illusory, and petitioners have cited no

other opinions of any court indicating a conflict exists.

19

CONCLUSION

For the reasons given above, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

JOHN A. RUPP

City Attorney

BEVERLY A. BURTON*

Senior Assistant City Attorney

Office of the City Attorney

900 East Broad Street

Suite 300

Richmond, Virginia 23219

(804) 780-7953

Attorneys for Respondents

* Counsel of Record

la

APPENDIX A — EXCERPTS FROM BRIEF OF

APPELLEES, CHILDRESS, et al. v. CITY OF RICHMOND,

et al., RECORD NO. 96-1585, DATED SEPTEMBER 9, 1997

[Commencing at page 20]

to these claims, then dismissal on summary judgment was

appropriate. To prevail on a retaliation claim plaintiffs must

show they engaged in protected activity, they suffered adverse

employment action, and there was a causal connection between

the protected activity and the adverse action. Balazs v.

Leibenthal, 32 F. 3d. 151, 159 (4th Cir. 1994). The fact that

alleged retaliatory conduct occurs after an employee engages in

protected activity may be sufficient to establish a causal

connection between the protected activity and such conduct.

However, an employer’s mere knowledge that an employee has

engaged in protected activity is insufficient to counter substantial

evidence of legitimate reasons for the adverse action. Williams

v. Cerberonics, Inc., 871 F. 2d 452, 457 (4th Cir. 1989). Adverse

employment action pertains to “ultimate employment decisions”

including “hiring, granting leave, discharging, promoting and

compensating.” Page v. Bolger, 645 F. 2d 227, 233 (4th Cir.

1981), cert. denied, 454 U.S. 892 (1981).

The evidence in this case clearly shows that plaintiffs

engaged in protected activity by filing their EEOC complaints.

However, the evidence fails to show they suffered any adverse

employment action, and in any event, the unrebutted evidence

clearly showed that the city had legitimate, non-pretextual

reasons for taking the actions it did.

Plaintiffs Matassa, Noyes, Quinney, Stachura and Childress

claim retaliation with respect to their 1994 performance

evaluations. Specifically, Matassa claims retaliation because he

[21] received a “standard” rating on his evaluation although his

total point score was 416.5, which should have resulted in an

2a

Appendix A

“above standard” overall rating. However, the City provided

evidence that Sgt. David McCoy originally rated Matassa

“standard” notwithstanding his numerical score because Matassa

had received two days of suspension during this evaluation

cycle and believed this rating was required by City policies.

However, Matassa’s original evaluation was returned by the

departments’ Administrative Services Operation for correction,

and McCoy subsequently recommended that Matassa receive

an “above-standard” rating, and the “standard” overall rating

was removed from Matassa’s evaluation. (See Record, Exhibit

A attached to Defendants’ Reply Brief, dated March 14, 1996).

This claim fails for failure to show adverse employment action.

Matassa also claimed retaliation because Carroll told him

in July 1994 that he could have Christmas Day off, but failed

to schedule him off on that day. Matassa filed a grievance and

met with his immediate supervisor, Sgt. Leslie Stone, who

denied the grievance because he felt Carroll had complete

authority to schedule time off (except vacation) as he saw fit.

Stone also concluded that Matassa’s claims of retaliation for

going to the EEOC were without merit because he had not

personally observed that Carroll had singled anyone out for

retaliatory reasons. (See Record, Exhibit B attached to

Defendants’ Reply Brief, dated March 14, 1996). Matassa

pursued his grievance further, and was subsequently advised

he could have Christmas Day off. (See Record, [22] Exhibit C

attached to Defendants’ Reply Brief, dated March 14, 1996).

This retaliation claim fails, too, because Matassa can show no

adverse employment action in as much as this situation was

effectively remedied throughout the City’s grievance procedure.

Plaintiff Noyes claims retaliation because he was counseled

upon his supervisor and fellow plaintiff Harvey’s

eee

en

3a

Appendix A

recommendation’ for not taking his “EDO” (extra day off) in

violation of a Police Department rule, which resulted in the

City having to pay him unnecessary overtime. He admitted he

did not take his EDO, that he received overtime pay as a result

of failing to take the day off, and that he was counseled, but

not disciplined, in connection with this infraction. (See Record,

Noyes Deposition, P. 48). Noyes merely counseled and suffered

no adverse employment action. Further, the fact that the

recommendation for counseling came from his fellow plaintiff

indicates it was not done for retaliatory reasons. The City’s right

to discourage employees from creating unnecessary overtime

costs is clearly a legitimate reason to counsel Noyes, particularly

when he was aware of the police department’s policy regarding

the same. This retaliation claim fails because there was no adverse

employment action and because the uncontroverted evidence

shows a legitimate reason for counseling Noyes.

Noyes also claimed retaliation because the comment

“... during this rating period his actions have undermined the

actions [23] of supervisors.” (Jt. App. 186). Noyes’ retaliation

claims must fail. Other officers who signed the January 13th

memorandum and participated in related events, but who did

not file EEOC charges, received the same notations on their

performance evaluations. (Jt. App. 241, 246, 248.)

Additionally, Noyes presented no evidence that he suffered

any adverse impact from his comment being in his evaluation.

No promotional examinations were given, and even if they had

been, only the overall numerical rating, not individual

comments, are reviewed when an officer is considered for

promotion, according to Major Wille C. Jones, the City’s Fed.

3. See Record, Noyes deposition, p. 52, and Exhibit 13 to this

deposition.

4a

Appendix A

R. Civ. P. Rule 30(b) (6) designee on matters of personnel policy

and procedure and then Deputy Chief of Administrative Services

in charge of personnel, training, maintenance, and central

records. (Jt. App. 796). The evaluations were not used to

determine pay. (See Record Deposition of Wille C. Jones, p.

57, 62, 63, 64, 77). Besides this Court noted in Hopkins, supra,

that when Hopkins’ overall ratings on his evaluation remained

the same, even though his supervisor wrote he needed

improvement in job behavior and work relations, he did not

suffer any adverse employment action. 77 F. 3d. 745 at 755.

Therefore, this retaliation claim fails, as well.

Plaintiff Quinney alleged in the Amended Complaint that

“he was given a negative rating on his performance valuation

... for failure to follow the ‘chain of command’ ”. (Jt. App.

68). However, Quinney received a total of 442.5 points on his

evaluation, which gave him an above standards rating. Had he

[24] received the maximum allowable points for the Personal

Relations category about which he complains, his overall score

would have still resulted in an “above standards” rating. (See

Record, Quinney Deposition, Exhibit 3 [performance

evaluation])*. He did not suffer any adverse employment action

as a matter of law, and this retaliation claim must fail.

Plaintiff Stachura, who received an overall “above

standards” rating on his evaluation, also claims the City retaliated

4. Quinney received 3 out of 5 points for the component of Personal

Relations for which he was criticized for failure to follow the chain of

command. Had he received the maximum allowable 5 points for this category,

his overall personal relations score would have increased from 12.6 to 13.8,

which. When multiplied by 5 (see last page of evaluation) would have

resulted in a total score of 448.5, which is still in the “above standards”

category.

Sa

Appendix A

against him by including a critical comment about failure to

follow the chain of command. (Jt. App. 197). This retaliation

claim, like Noyes’, fails because Stachura failed to show any

adverse impact on his employment.

Stachura also claims retaliation because his scores in the

Personal Relations category were “unsatisfactory”. (Jt. App.

197). The maximum score allowable in each of the five

components of the Personal Relations category is five (5) points.

He was awarded five (5) points for three of these components.

Had he received the maximum of five (5) points for each of

the five components, his total score would have still resulted in

an “above standards” rating.’ He did not suffer any adverse

employment action, and his [25] retaliation claim fails.

Plaintiff Childress claims retaliation in connection with his

1994 performance evaluation because he was given a “standard”

rating and believed his rating should have been higher. He

apparently contends that Carroll’s comments that he “did not

follow the chain of command; ignored rules and regulations

and caused subordinates to do the same . . .” were undeserved.

(Jt. App. 191). The City presented evidence that Childress never

discussed with Carroll any problems that Carroll might have

5. Stachura’s evaluation appears in the Record as Exhibit 4 to his

deposition. Scores for individual components appear on page six of his

evaluation, and his overall score appears on page seven.

Receiving five points for each component would have resulted in a

total score for the Personal Relations category of 15 points instead of the

11.4 he received. Multiplying these 15 points by 5 (see page 7) would have

resulted in a score of 75 instead of 57 in the personal relations category,

which would have increased his overall score by 18 points for a total

evaluation score of 435, which is still in the “above standards” category.

6a

Appendix A

created before signing on to the January 13th memorandum,

that he failed to notify Hicks of any problems Carroll was

creating, that he participated in another letter sent to a city

councilman about superior officers, allowed subordinates to

violate rules and regulations and participated with them in these

violations. (See Record, Exhibit D to Defendants’ Reply Brief,

dated March 14, 1996). However, in response to the City’s

motion for summary judgment Childress offered no proof

whatsoever that Carroll’s comments were unjustified or that his

performance justified a higher rating during this evaluation

period. In short, Childress did not meet his burden of proving

retaliation.

In his response to the motion for summary judgment,

Childress claims that “in his ‘investigation’ Hicks found no

negative [26] information on Childress justifying the negative

performance review for Childress. (Hicks Dep. pp. 155-60).”

(See Plaintiff’s Response in Opposition to Defendants’ Second

Motion for Summary Judgment, p. 13).

First according to Hicks’ Affidavit (See Record, Exhibit 6

to Defendant’s Motion for Summary Judgment, p. 1), he was

not aware of and did not investigate the retaliation claims of

any of the plaintiffs because they did not bring them to his

attention prior to going to the EEOC. Second, a careful reading

of pages 155-60 of Hicks’ deposition (Jt. App. 737-742) simply

indicates that he had no personal knowledge of Childress’ day-

to-day performance, the particulars of the evaluation were left

to the first-line supervisor, and he had no authority to dictate

changes. (Jt. App. 740). Contrary to Childress’ contention, these

pages of Hicks’ deposition can not reasonably be construed as

a categorical admission that there was no evidence supporting

Carroll’s evaluation of Childress. Plaintiffs Harvey and Mease

ses a ag a oa ee ee

7a

Appendix A

claim retaliation because they were transferred from Second

Precinct. Mease was transferred to a day shift on First Precinct

(Jt. App. 676), and Harvey was transferred to Headquarters to

work in the warrants and information section (Jt. App. 676)

because no other sergeants positions were available at the time

(See Record, Hicks Deposition, p. 33-34).

The City presented evidence that Hicks recommended their

transfers because morale on the platoon had suffered greatly

and because both Harvey and Mease had indicated during the

[27] investigation of the January 13th memorandum that they

were either afraid of or intimidated by Carroll and did not wish

to continue working him. Additionally, the platoon sergeants

indicated to Hicks that serious safety issues had arisen because

the fallout from the January 13th episode had divided the

platoon. The lieutenants and sergeants on two shifts had

indicated to Hicks that some day shift officers were no longer

backing each other up, that some officers remained out of service

longer than they should while others answered calls alone, that

some officers openly expressed negative feelings toward others

vis-a-vis signing the January 13th memorandum, and the

precinct lieutenants had become concerned that an officer might

get injured as a result. (Jt. App. 216). Obviously, these were

serious problems reflecting legitimate concerns which the City

was required to resolve.

Hicks considered the foregoing problems resolved by the

transfer of Harvey and Mease because no subsequent problems

of this nature came to his attention after the transfers. (Jt. App.

673). There is absolutely no evidence in this record to suggest

that these were no legitimate business concerns the City needed

to address. It was incumbent upon Harvey and Mease to produce

evidence indicating otherwise, or that the problems were not

8a

Appendix A

resolved by their transfers. They failed to do either, and the

record before this Court indicates that they were transferred for

legitimate, non-pretextual reasons. The retaliation claims of

Mease and Harvey, therefore, must fail.

All plaintiffs maintained their ranks, received the same pay,