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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1198

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0915%3A2. Public record. Not legal advice.