Opposition Brief — O & G Spring & Wire Forms Specialty Co. v. Equal Employment Opportunity Commission

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No. 94-981 FEB 2 1995

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OFFICE OF THE CLERK

In the Supreme Court of the Gunite See

OCTOBER TERM, 1994

O & G SPRING & WIRE FoRMS SPECIALTY Co.,

PETITIONER

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

IN OPPOSITION

DREw S. DAYS, III

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

JAMES R. NEELY, JR.

Deputy General Counsel

GWENDOLYN YOUNG REAMS

Associate General Counsel

CAROLYN L. WHEELER

Assistant General Counsel

GAIL S. COLEMAN

Attorney

Equal Employment Opportunity

Commission

Washington, D.C. 20507

™ BESTAVAILABLE COPY —

QUESTIONS PRESENTED

1. Whether statistical evidence that gives rise to an

inference of discrimination, is considered in conjunction

with anecdotal evidence, and is not adequately rebutted,

can support a finding of intentional discrimination in a

disparate treatment case brought under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.

2. Whether the evidence at trial was sufficient to

support the district court’s conclusion that respondent

had proven intentional race discrimination.

3. Whether the district court abused its discretion by

permitting the publication of a notice seeking to identify

victims of petitioner’s discrimination prior to fashioning

a remedy.

4. Whether the Equal Employment Opportunity

Commission’s unsuccessful age discrimination claim

against petitioner was “substantially justified” within

the meaning of the Equal Access to Justice Act.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144 ae 14,15

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ........ 10

Bazemore v. Friday, 478 U.S. 385 (1986) cececccc----... 10

Chisholm v. United States Postal Serv., 665 F.2d 483

I et licetsiccsshnscacsaerecensssacesoreeveceoseses...,...... 13

EEOC vy. Chicago Miniature Lamp Works, 947 F.2d 292

ic ilsctics hprvescoesvcetarsrscévavcsexaseseses<s........ 6,9

EEOC vy. Federal Reserve Bank, 698 F.2d 633 (4th Cir.

1983), rev’d, 467 U.S. 867 (1984) ooooccceeccceccccecececceccc. 13

EEOC vy. Sears, Roebuck & Co., 839 F.2d 302 (7th Cir.

Neat ali vecins danetsasvesasssussesaceesscesieseoseecsece..... i)

Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) ..... 10, 15

Hazelweod School District v. United States, 433 U.S.

I a ratbiirees dice tiled enasdvsesdecsaceceieseeiessesesesscsss... 9, 11, 12

International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977) .................-... 5, 9, 11, 12, 13, 14

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .. 13

Pierce v. Underwood, 487 U.S. 552 RT 10, 15-16

Wards Cove Packing Co. v. Atonio, 490 U.S. 642

DN eet ihas lati saehatercinercnnsessarsseventarssseecssscecsssose........ 5

Williams v. United States, 112 S. Ct. 1112 (1992) ....... 14

Zobrest v. Catalina Foothills Sch. Dist., 113 S. Ct. 2462

ss oa ga eae cs sass aeceuvensvonceseoeceescces<....... 14, 15

(III)

Statutes: Page

Age Discrimination in Employment Act, 29 U.S.C. 621

et seq. (1988 & Supp. V 1993) .....cccceceeeeeeeeeeeeeeeeeeeeeeeeseees 2,3

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

et seq. (1988 & Supp. V 1993) .......eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeees 2,3

Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A) ..... 2,8

In the Supreme Court of the Ainited States

OCTOBER TERM, 1994

No. 94-981

OQ « G SPRING & WIRE FORMS SPECIALTY Co.,

PETITIONER

vs

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-38a) is

reported at 38 F.3d 872. The December 14, 1988, opinion

of the district court (Pet. App. 39a-56a) is reported at 705

F. Supp. 400. The May 22, 1989, opinion of the district

court (Pet. App. 57a-59a) is reported at 52 Fair Empl.

Prac. Cas. (BNA) 1685. The January 26, 1990, opinion of

the district court (Pet. App. 60a-65a) is reported at 732 F.

Supp. 72. The February 26, 1990, opinion of the district

court (Pet. App. 66a-70a) is reported at 52 Fair Empl.

Prac. Cas. (BNA) 1689. The March 20, 1992, opinion of

the district court (Pet. App. 7la-78a) is reported at 790 F.

(1)

|

2

Supp. 776. The July 2, 1992, opinion of the district court

(Pet. App. 79a-8la) is reported at 61 Fair Empl. Prac.

Cas. (BNA) 1224. The August 19, 1992, final order of the

district court (Pet. App. 82a-97a) is unreported. The

November 23, 1992, ruling of the district court (Pet. App.

98a-102a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 11, 1994. The petition for a writ of certiorari

was filed on November 30, 1994. A motion to clarify or

amend petition for writ of certiorari was filed on January

9, 1995. The jurisdiction of this Court is invoked under

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

STATEMENT

Respondent Equal Employment Opportunity

Commission (HK EOC) sued petitioner O & G Spring and

Wire Forms Specialty Company (O&G) alleging that

petitioner engaged in a pattern and practice of racial

discrimination in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000e et seg. (1988 & Supp.

V 1993), and age discrimination in violation of the Age

Discrimination in Employment Act, 29 U.S.C. 621 et seq.

(1988 & Supp. V 1993) (ADEA). Pet. App. la-2a. After a

bench trial, the district court ruled in favor of the EEOC

on the race discrimination claim and in favor of

petitioner on the age discrimination claim. The district

court denied petitioner’s request for attorneys’ fees

under the Equal Access to Justice Act, 28 U.S.C.

2412(d)(1)(A) (FE AJA), based on its conclusion that the

KEOC’s claim under the ADEA had been substantially

justified within the meaning of EAJA. Pet. App. 99a-

100a. The court of appeals affirmed.

3

1. Petitioner is a small company that manufactures

wire springs and specialty forms. Pet. App. la.

Approximately 35 of its employees work in the low-

skilled “secondary department.” Jbid. From 1979 to

1985, petitioner hired 87 persons for the secondary

department—58 who applied by walking in off the street

and 29 who were referred by word of mouth. Not one of

the persons hired was black. /bid.

On November 27, 1985, the EEOC filed suit against

petitioner, alleging that petitioner was engaging in a

pattern and practice of racial and age discrimination in

recruiting and hiring in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000e et seq., and the

ADEA, 29 U.S.C. 621 et seq. Pet. App. la-2a. The relief

sought included appropriate injunctive measures and

back pay.

At the bench trial, the EEOC presented evidence that

blacks constituted the largest group in the pool of

persons who walked in looking for a job at O&G during

the relevant time period of 1979 through 1985. The

EEOC also submitted anecdotal evidence by four black

persons that they had walked into O&G looking for a job,

but had been rejected. Pet. App. 2a.

The EEOC also presented statistical evidence through

expert testimony that, based on the 1980 census and

EEO-1 reporting forms, 22.5% to 31.8% of the relevant

labor market serving O&G was black.’ Pet. App. 3a, 6a

n.22. The EEOC’s expert testified that these numbers

probably underestimated black availability because the

data only accounted for employed persons, whereas

petitioner generally hired unemployed persons and

blacks are overrepresented among the unemployed. /d.

! Because petitioner’s applicant records were incomplete, the

EEOC could not rely on actual applicant flow data. Pet. App. 42a.

4

at 3a. Based on an availability range of 22.5% to 31.8%,

the EEOC’s expert calculated that the odds were “less

than three in one million * * * that O&G would have

hired no blacks into unskilled positions using a color-

blind process.” Jd. at 46a.

Petitioner attempted to counter the EEOC’s evidence

by claiming that it hired no blacks for its secondary

department from 1979-1985 because no blacks applied

during its “hiring windows.” Pet. App. 63a.’ Petitioner

also challenged the validity of the EEOC’s statistical

evidence, arguing that the statistics did not account for

O&G’s preference for hiring people with training or

experience, or for the decision of individual blacks not to

work in O&G’s uncomfortable environment. Jd. at 3a.

2. The district court bifurcated the liability issues

from any remedy phase. In its initial opinion, the district

court found O&G liable under Title VII on claims of both

disparate treatment and disparate impact. Pet. App. 3a,

55a; see id. at 66a. The court recognized that statistical

evidence is sufficient to establish liability under Title

VII, zd. at 53a-54a, but emphasized that an inference of

discrimination based on statistics in a case such as this

is “compelled not because Title VII requires a particular

balanee in an employer’s work force or that the work

force precisely ‘mirror’ the composition of the relevant

labor market but rather because gross disparities

between an employer’s applicant flow, hiring or work

force and its relevant labor market show the existence of

discriminatory employment practices.” Jd. at 54a-55a,

2

“ Uncontroverted evidence showed that in the two years

following the filing of this lawsuit, five of the 12 people hired by

petitioner in the secondary department were black. Pet. App. 2a

n.17. Petitioner offered a number of explanations for its sudden

change in hiring patterns, all of which the EEOC disputed. Jbid.

a

5

citing International Brotherhood of Teamsters v.

United States, 431 U.S. 324, 339-340 n.20 (1977). The

court reasoned that, in order to rebut the EEOC’s case,

petitioner would have had to show that the EEOC’s

statistics were inaccurate or insignificant, or establish

that there was a “non-discriminatory explanation for the

discriminatory results.” Pet. App. 52a.

The court gave some credence to O&G’s explanations

about certain immigrants being drawn to work at O&G

because of the company founder’s own immigrant

background, other employees’ use of the same foreign

language, and willingness to work under poor conditions,

as well as to O&G’s preference for employees with

technical backgrounds. Pet. App. 49a. The court also

found, however, that in order for there to be any sort of

reasonable statistical probability that no blacks would

have been hired, the availability of blacks in the relevant

labor market would have had to be significantly lower

and petitioner failed to demonstrate that fact. It found

that the EEOC’s anecdotal evidence demonstrated that

blacks applied before 1987 in substantial numbers. J/bid.

The court concluded that petitioner’s explanations did

not explain away the “inexorable zero” number of blacks

hired during the relevant period. Jd. at 55a. The court

ruled that the EEOC’s proof was sufficient to establish a

pattern and practice of racial discrimination in violation

of Title VII from 1979 through 1985. /bid.

The district court found that O&G was not liable

under the ADEA. Pet. App. 3a, 56a.

On January 26, 1990, the district court revised its

opinion in light of Wards Cove Packing Co. v. Atonio,

490 U.S. 642 (1989), and two Seventh Circuit cases

6

interpreting that opinion.’ The court reversed its

earlier finding that the EEOC had prevailed on its

disparate impact claim based on O&G’s word-of-mouth

recruitment. Pet. App. 62a-63a. However, the district

court reaffirmed its finding that the EEOC had prevailed

on its disparate treatment claim based on O&G’s walk-in

hiring practices. Walk-in hiring accounted for two-

thirds of O&G’s hires from 1979 through 1987. Id. at

63a. The court noted that the statistical probability,

using standard deviation analysis, of no blacks being

hired through walk-in hiring from 1979 until the EEOC’s

claim was filed in 1985 was “infinitesimal.” Jd. at 64a.

Pointing to the EEOC’s statistical and anecdotal

evidence and the dramatic change in petitioner’s hiring

practices after the EEOC’s claim was filed, as well as to

petitioner’s failure to offer alternative statistics, the

district court reaffirmed its original conclusion that

petitioner engaged in a pattern and practice of disparate

treatment of blacks in its hiring practices from 1979

through 1985.’ Jd. at 65a.

On February 26, 1990, the district court issued its

first opinion in the remedy phase. Pet. App. 66a-70a.

* On May 22, 1989, the district court had amended its initial

opinion in response to petitioner’s post-trial motion. The court

clarified that it had imposed the burden of proof on the EEOC and

had found that its evidence was strong enough to overcome

petitioner’s rebuttal evidence by a preponderance of the evidence

as required under Teamsters. Pet. App. 57a-58a.

* On March 20, 1992, the district court again reconsidered its

opinion in the liability phase in light of the Seventh Circuit’s

decision in EEOC vy. Chicago Miniature Lamp Works, 947 F.2d 292

(1991). The district court concluded that the EEOC’s statistical

evidence remained sound following Chicago Miniature, and

affirmed its previous finding of intentional race discrimination in

the hiring of walk-in applicants. Pet. App. 7la-73a.

7

The court granted the EEOC leave to publish a notice in

area newspapers in order to locate possible victims of

O&G’s discrimination. Jd. at 66a. The court rejected

O&G’s argument that publication was premature. The

court noted that the number of claimants was relevant to

determining the method of any back pay distribution and

was significant in considering whether O&G could

financially support back pay. /d. at 67a-68a. The court

held that the EEOC must show that the potential

claimants applied for work at O&G or would have applied

in the absence of discrimination. Jd. at 68a.’

5 The court subsequently issued two opinions setting forth the

bases for its determinations at the remedy phase concerning the

degree of the black hiring shortfall during the relevant period

(Pet. App. 74a-75a), back pay calculations (id. at 75a-76a, 79a-80a),

pro rata distribution (id. at 76a, 79a-80a), prejudgment interest (7d.

at 76a-77a, 80a-81a), and hiring of discriminatees (id. at 77a). On

August 19, 1992, the court also issued a final order granting relief.

Id. at 82a-97a.

The district court was faced with 451 claimants following the

publication of the notice. Pet. App. 76a. The court calculated that

O&G had a hiring shortfall of 17 blacks. /d. at 75a. Because the

jobs at issue required only “minimal qualifications,” the district

court reasoned that it would be impossible to determine which of

the 451 claimants would have been hired for the 17 spots. Jd. at

76a. Accordingly, the district court held that back pay should be

distributed on a pro rata basis among eligible class members. [bid.

The court’s final order set forth a procedure for determining

which claimants were class members entitled to back pay and/or

consideration for employment by petitioner. Pet. App. 84a, 86a-

87a. The procedure permitted review by O&G of all claimants’

forms, id. at 86a-87a, and for judicial review of unresolved disputes

between the EEOC and petitioner with regard to the eligibility of

individual claimants. /d. at 87a.

The dissenting opinion in the court of appeals asserts that the

EEOC “did not bother to clean out the seemingly fraudulent

claims” and states that “[a]pparently in this case some claimants

8

At the conclusion of the case, petitioner moved for

attorneys’ fees and costs under EAJA, 28 U.S.C. 2412

(d)(1)(A), with regard to the EEOC’s unsuccessful claim

under the ADEA. Pet. App. 98a-102a. The EEOC

argued that its claim was substantially justified in light

of the three types of evidence indicating age discrim-

ination—petitioner’s admissions on two separate

occasions that it sought to hire younger persons, testi-

mony by three applicants over 45 years of age who were

not hired, and statistical evidence presented by an expert

witness. Jd. at 99a. The district court reasoned that,

even though it ultimately found the EEOC’s statistical

ADEA evidence unpersuasive, the fact that a respected

labor economist had considered the evidence to be

probative of age discrimination indicated that the

KEOC’s claim was not such that petitioner was entitled

to fees against the EEOC under EAJA. Jd. at 100a.

3. The court of appeals affirmed. Pet. App. la-2la.

The court first rejected petitioner’s claim that there was

insufficient evidence to support the district court’s

finding that it engaged in a pattern and practice of

were in prison during the period when they supposedly would

have applied * * * [and] [o]thers held better and higher-paying

jobs.” Id. at 33a. Petitioner repeats some of these assertions. Pet.

12. There is no record evidence to support them. Petitioner's

counsel first voiced these assertions during oral argument before

the court of appeals. Following the argument, petitioner’s counsel

filed a motion seeking leave to file a letter of clarification and

apology for “any possible perceived misstatement” at argument by

counsel concerning the applicants in this case who responded as a

result of publication. See Letter dated Nov. 5, 1993, at 1.

Petitioner’s counsel indicated that some of his remarks

inadvertently referred to matters related to another case and

matters outside the record and he asked the court not to consider

such matters. /d. at 2.

SEP

9

discrimination. The court pointed out that petitioner’s

contentions that statistics alone cannot prove

intentional discrimination had been “firmly rejected by

the Supreme Court and this circuit.” Pet. App. 4a, citing

International Brotherhood of Teamsters v. United

States, 431 U.S. 324, 339-340 n.20 (1977); Hazelwood

School District v. United States, 433 U.S. 299, 307-308

(1977); EEOC v. Chicago Miniature Lamp Works, 947

F.2d 292, 299 (7th Cir. 1991); EEOC v. Sears, Roebuck &

Co., 839 F.2d 302, 311 (7th Cir. 1988).

The court emphasized that “[rJeliance on statistical

evidence by no means diminishes the plaintiff's

obligation to prove discriminatory intent—but in some

cases, statistical disparities alone may prove intent.”

Pet. App. 5a. The court reviewed in detail the statistical

evidence in this case and concluded that the district

court thoroughly weighed all the objections raised by

petitioner. It concluded that “even the use of the most

forgiving variables could not reduce the calculation of

African-Americans in the relevant labor market to a

level that would account statistically for O&G’s failure

to hire any African-Americans.” Jd. at 9a. The court

also noted that the district court did not rely exclusively

on statistical evidence, but considered the EEOC’s

anecdotal evidence as well. The court of appeals

ultimately was “led to the same conclusion as the Court

in Teamsters that in any event, fine tuning of the

statistics could not have obscured the glaring absence of

minorities . . . . The company’s inability to rebut the

inference of discrimination comes not from a measure of

statistics but from ‘the inexorable zero.’” /bid., quoting

Teamsters, 431 U.S. at 342 n.23.°

* ‘vhe court of appeals also rejected petitioner's claim that it

had been subjected to an erroneously high burden of proof. The

10

Turning to petitioner’s challenges to the remedy, the

court of appeals concluded that the district court did not

abuse its wide discretion to fashion a Title VII remedy

by seeking to determine the size of the class before

proceeding to fashion the remedy. Pet. App. 1la, citing

Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976);

Albemarle Paper Co. v. Moody, 422 U.S. 405, 415-421

(1975). The court also rejected petitioner’s challenges to

the back pay award. Pet. App. 12a-13a.

Finally, the court of appeals affirmed the district

court’s refusal to award petitioner attorneys’ fees with

regard to the EEOC’s unsuccessful ADEA claim. The

court of appeals ruled that EAJA applies to the ADEA.

After reviewing the record evidence as a whole, the court

of appeals refused to conclude that the district court had

abused its discretion in finding that the EEOC was

substantially justified in pursuing its ADEA claim. Pet.

App. 18a-21a, citing, inter alia, Pierce v. Underwood, 487

U.S. 552, 565-566 (1988).

Judge Manion dissented. Pet. App. 22a-38a. He

believed that the EEOC had not introduced sufficient

evidence and criticized the KEOC’s anecdotal and

statistical evidence. /d. at 23a-3la. He also criticized

the district court’s decision to permit publication of

notice before determining the scope of the remedy. /d. at

33a. He believed that O&G was entitled to fees under

court reasoned that, regardless of the suggestions by the district

court regarding intermediate burdens of production, the only

question to answer after a full trial was whether the plaintiffs

proved discrimination by a preponderance of the evidence. Pet.

App. 10a, citing, inter alia, Bazemore v. Friday, 478 U.S. 385, 398

(1986). The court concluded that the district court did not err in

concluding that the EEOC had proven its case against petitioner

by a preponderance of the evidence. Pet. App. Ila.

11

EK AJA based on his view that the EEOC’s claim under the

ADEA was not substantially justified. Jd. at 34a.

ARGUMENT

1. Petitioner contends (Pet. 14-15, 20) that the court

of appeals’ decision conflicts with rulings by other

courts of appeals, claiming that the court here held that

the fact that the employer hired no blacks required a

finding of intentional discrimination. Petitioner also

asserts (Pet. 15, 17, 23) that the court of appeals’ decision

conflicts with decisions by this Court and other courts of

appeals that have held that proof of a motive or intent to

discriminate is required to support a disparate treat-

ment claim under Title VII.

Petitioner mischaracterizes the court of appeals’

ruling. The court acknowledged that the force of

statistical evidence in a given case will depend on the

strength of the statistics. Pet. App. 5a-6a (“strong

statistics may prove a case on their own, while shaky

statistics may be insufficient unless accompanied by

additional evidence”). The court also emphasized that a

plaintiff alleging disparate treatment must prove

discriminatory intent and that “[rJeliance on statistical

evidence by no means diminishes the plaintiff's

obligation to prove discriminatory intent.” Jd. at 5a.

-The court also correctly relied on /nternational

Brotherhood of Teamsters v. United States, 431 U.S. 324,

339-340 n.20 (1977), and Hazelwood School District v.

United States, 433 U.S. 299, 307-308 (1977), to hold that

discriminatory intent may, in certain circumstances, be

inferred from the existence of gross statistical

disparities between the number of blacks that an

employer actually hires and the number that it would be

12

expected to hire in the absence of discrimination. Pet.

App. 5a.’

The cases cited by petitioner (Pet. 14, 15, 20 n.12) do

not suggest that strong statistical evidence, standing

alone, is always inadequate to prove intentional

discrimination in a pattern or practice case. Nor do the

cases suggest that, in a pattern and practice claim of

disparate treatment such as this, where the court

considered the statistical evidence in conjunction with

anecdotal evidence, see Pet. App. 9a, a finding of

7 In Teamsters, this Court observed that proof of gross

statistical disparities, standing alone, may be used to establish a

prima facie case of racial discrimination in jury selection cases. 431

U.S. at 339. The Court then held that “[s]tatistics are equally

competent in proving employment discrimination.” Jbid. The

Court explained:

Statistics showing racial or ethnic imbalance are probative in a

case such as this one only because such imbalance is often a

telltale sign of purposeful discrimination; absent explanation, it

is ordinarily to be expected that nondiscriminatory hiring

practices will in time result in a work force more or less

representative of the racial and ethnic composition of the

population in the community from which employees are

hired. Evidence of longlasting and gross disparity between

the composition of a work force and that of the general

population thus may be significant even though § 703(j) makes

clear that Title VII imposes no requirement that a work force

mirror the general population.

Id. at 339-340 n.20. Recognizing that the disparate treatment

theory under Title VII requires proof of a discriminatory intent,

this Court added that “[{iJn many cases the only available avenue of

proof is the use of racial statistics to uncover clandestine and

covert discrimination by the employer or union involved.” Ibid.

(citation omitted). The Court repeated this conclusion in

Hazelwood. 433 U.S. at 307-308 (“Where gross statistical dis-

parities can be shown, they alone may in a proper case constitute

prima facie proof of a pattern or practice of discrimination.”).

13

intentional discrimination is precluded. See, e.g., EEOC

v. Federal Reserve Bank, 698 F.2d 633, 645 (4th Cir.

1983) (acknowledging that statistics alone may some-

times prove intentional discrimination), rev’d on other

grounds, 467 U.S. 867 (1984); Chisholm v. United States

Postal Serv., 665 F.2d 482, 494-495 n.17 (4th Cir. 1981)

(same).

2. Petitioner argues (Pet. 18-23) that the evidence in

this case was insufficient to support the district court’s

finding of intentional race discrimination. Petitioner

asserts (Pet. 18-19) that the EEOC’s statistical evidence

failed to account for petitioner’s legitimate business

reasons. Petitioner contends (Pet. 21, 22-23) that the

evidence did not meet the requirements under

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

of establishing discrimination against individuai wit-

nesses and demonstrating that they were not rejected

because of the absence of job vacancies.

With regard to petitioner’s legitimate business

reasons, the court of appeals found that the district court

took those factors into account when evaluating the

EEOC’s statistics. Pet. App. 4a n.20. After accounting

for the legitimate business reasons, the district court

found the statistics to be probative of discrimination. /d.

at 49a, 55a. This factual finding was not clearly erron-

eous.

With regard to petitioner’s invocation of the require-

ments of McDonnell Douglas, petitioner cites the dis-

cussion of that case by this Court in Teamsters. See

Pet. 21, citing Teamsters, 431 U.S. at 358 n.44. The

Court there clearly stated, however, that the McDonnell

Douglas decision “did not purport to create an inflexible

formulation” and that proof of Title VII violations will

vary in differing factual situations. 431 U.S. at 358. The

Court pointed out that McDonnell Douglas involved an

14

individual complainant seeking to prove one instance of

discrimination. 431 U.S. at 358 n.44. The instant case,

however, involves a pattern and practice claim. The

Teamsters Court expressly held that, in such cases,

means other than proof at the liability phase that each

person for whom relief is sought was an individual

victim, are appropriate to meet a Title VII plaintiff’s

burden of proof. 431 U.S. at 359-3860 & n.45.

5. Petitioner includes (Pet. i) in its questions

presented the issue whether the district court could

properly require an employer to publish a notice to

prospective victims. Petitioner, however, does not raise

any legal arguments with regard to this issue in the

body of its petition for certiorari. The question is

therefore not presented by the petition. See Williams v.

United States, 112 S. Ct. 1112, 1122 (1992) (issue must be

“clearly presented” in petition for certiorari).

Petitioner has filed a motion to clarify or amend its

petition for writ of certiorari in which it seeks to raise

the publication issue. Petitioner did not, however, argue

on appeal that the publication was unlawful or an abuse of

discretion and did not seek reversal or remand with

regard to the publication of notice issue. See Pet. App.

lla. Petitioner only challenged the publication of the

class notice because it “might reach too broadly and

would generate too many false claims to entitlement to

relief” and sought reimbursement of the expenses of the

publication. J/bid. Petitioner’s challenge to the law-

fulness of the notice publication was therefore waived.

See Zobrest v. Catalina Foothills Sch. Dist., 113 S. Ct.

2462, 2466 (1993) (“Where issues are neither raised

before nor considered by the Court of Appeals, this Court

will not ordinarily consider them.” ) (quoting Adickes v.

S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970)). In any

event, petitioner’s argument lacks merit because the

15

district court did not exceed its “wide discretion” in

determining the proper remedy in a Title VII case

merely because it permitted publication of notice before,

rather than after, determination of the scope of the

remedy. See Pet. App. lla (citing Franks, 424 U.S. at

763).

4. Petitioner contends (Pet. 15, 24-27) that the Court

should review its claim to attorneys’ fees with regard to

the EEOC’s bringing of the ADEA claim so that the

Court can correctly apply EAJA’s “substantial justifi-

cation” standard to this case. The decision of the court

of appeals, however, is fully consistent with the

standards that this Court established in Pierce, 487 U.S.

at 565-566 & n.2. The Court there held that “a position

can be justified even though it is not correct, and we

believe it can be substantially (7.e., for the most part)

justified if a reasonable person could think it correct,

that is, if it has a reasonable basis in law and fact.” Jd. at

8 Petitioner also argues in a footnote (Pet. 21 n.14) that the

district court’s remedy phase did not follow the Teamsters

provision that an employer be allowed an opportunity to contest

each claimant’s eligibility, and that, in any event, such a procedure

is impractical for a small employer as a financial matter.

Petitioner ignores the fact that the district court established a

procedure for petitioner to challenge each individual claimant’s

entitlement to relief at the remedy phase. See Pet. App. 84a-87a.

The fact that petitioner did not take advantage of that

opportunity, see Pet. App. 33a, does not establish that the pro-

cedure was inadequate, and petitioner’s attempt now to explain

why it did not challenge any of the claimants, Pet. 21-22 n.14, is

not appropriate. To the extent petitioner’s argument could be

construed as a claim that class-wide relief was inappropriate in this

case because petitioner is a small employer, petitioner waived such

a claim because it never argued to the court of appeals that class-

wide relief was improper. See Zobrest, 113 S. Ct. at 2466, quoting

Adickes, 398 U.S. at 147 n.2.

16

566 n.2. The Court further held that a district court’s

decision on substantial justification should not be

reversed unless the record “commands the conclusion”

that the district court abused its discretion. Jd. at 559,

570.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREW'S. DAYS, III

Solicitor General

JAMES R. NEELY, JR.

Deputy General Counsel

GWENDOLYN YOUNG REAMS

Associate General Counsel

CAROLYN L. WHEELER

Assistant General Counsel

GAIL S. COLEMAN

Attorney

Equal Employment Opportunity

Commission

FEBRUARY 1995