ANTHONY M. FRANK, IN HIS CAPACITY AS POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE, PETITIONER V. DARLENE SHIDAKER No. 87-1516 In the Supreme Court of the United States October Term, 1987 The Solicitor General, on behalf of Anthony M. Frank, in his capacity as Postmaster General of the United States Postal Service, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit TABLE OF CONTENTS Question presented Opinions below Jurisdiction Statutes involved Statement Argument Conclusion OPINION BELOW The opinion of the court of appeals (App., infra, 1a-12a) is reported at 833 F.2d 627. An earlier opinion of the court of appeals (App., infra, 16a-29a) is reported at 782 F.2d 746. The opinion of the district court (App., infra, 30a-62a) is reported at 593 F. Supp. 823. JURISDICTION The judgment of the court of appeals was entered on November 16, 1987. A petition for rehearing was denied on December 14, 1987 (App., infra, 13a-14a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 42 U.S.C. 2000e-2(a) provides: 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; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, relgion, sex, or national origin. 42 U.S.C. 2000e-16(a) provides: All personnel actions affecting employees or applicants for employment . . . in the United States Postal Service . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin. QUESTION PRESENTED Whether a plaintiff can state a cause of action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., based on an alleged disparate impact resulting from a subjective promotion practice or procedure. STATEMENT 1. Respondent, Darlene Shidaker, served as acting postmaster and then as postmaster of a small post office in Kenilworth, Illinois from 1962 through 1982. During this time, she was in pay scale level-18. In 1977, the Postal Service advertised vacancies for three pay scale level-22 postmaster positions in other, larger post offices in Illinois. Respondent applied for all three positions. App., infra, 31a-34a. Pursuant to its regulations, the Postal Service convened a Screening Board to assess all applicants for the three vacanies. The Screening Board reviewed each applicant's work experience, educational background, performance appraisals, capacity for growth, and potential in management problem solving, employee development and relations, budget operations, work supervision, and public and community relations. The Screening Board then eliminated applicants lacking minimal qualifications, ranked the qualified candidates by tallying point scores assigned them by each of the Board members, and forwarded the names of the seven highest ranked applicants for each vacancy to a regional selection manager. That manager added the candidates on the Screening Board's list to a list of Postal Service employees who, by regulation, had an absolute right to be considered for the vacancies. From the combined list, the manager recommended five to seven candidates for each vacancy to a Regional Management Selection Board. The Regional Management Selection Board interviewed and evaluated each of these candidates and then recommended a single person for each vacancy to the Postmaster General. The Postmaster General made the final appointments. App., infra, 34a-39a. Respondent was the only female to apply for each of the three postmaster vacancies. She competed with 31 other applicants for two of those vacancies, and with 27 other applicants for the third vacancy. The Screening Board found several instances of prior mismanagement in respondent's personal history /1/ and determined, based on her composite personnel profile, that she was not among the top seven applicants for any of the available jobs. /2/ Accordingly, respondent was not further considered by the Postal Service for the vacant positions and did not receive a promotion. But respondent believed that the Postal Service did not promote her because of her gender and, accordingly, after exhausting her administrative remedies, filed this Title VII action in the United States District Court for the Northern District of Illinois. App., infra, 34a-39a. 2. The district court conducted a full trial concerning respondent's claims (App., infra, 31a). Respondent produced evidence showing that, at the time of her failed promotion, the Postal Service had a policy of promoting from within and that an arguably significant disparity existed between the percentage of females occupying low-level and high-level positions in the Postal Service's work force (id. at 34a, 39a-40a). /3/ The Postal Service responded with evidence explaining its promotion procedures, the special skills and training that postmasters at different levels must have, the fact that postmasters (including respondent) have in the past been promoted both from within and without the Postal Service workforce, and the reasons that the Postal Service had for not promoting respondent to any of the three vacancies (id. at 34a-39a, 43a-48a). The Postal Service also argued that, since she had not identified a facially neutral selection device which had injured her, respondent had not raised a legally cognizable disparate impact claim (Tr. 24-26, 427-430, 447-449). Respondent countered that the Postal Service's "whole promotion procedure" produced the "disparate impact" (Tr. 454). After hearing all of the evidence, as well as the parties' arguments concerning that evidence, the district court concluded that the Postal Service had not discriminated against respondent in its promotion decisions -- under either a "disparate treatment" or a "disparate impact" theory (App., infra, 48a-58a). /4/ With regard to the "disparate treatment" issue, the court found that "(respondent) has not proved, by a preponderance of the evidence, that the Postal Service failed to promote her because she was a woman" (App., infra, 58a). The court said that the Postal Service had a "legitimate, nondiscriminatory business reason" for not promoting respondent -- i.e., that the three candidates actually promoted were either more qualified or had higher composite Screening Board ratings than did respondent (id. at 53a, 56a). Finally, it found that "the procedure used by the Postal Service to initially select candidates for promotion consideration was permissible and without overt indicia of discrimination" (id. at 57a). With regard to the "disparate impact" issue, the court held that respondent had raised a legally cognizable discriminatory impact claim even though "the system attacked includes both objective and subjective parts" (App., infra, 50a). But the court also concluded that, where "management jobs which demand skills and training possessed by relatively few individuals" are in issue (id. at 52a), statistics showing a disparity -- even a gross disparity -- between the percentage of females in the lower and higher work force levels are not by themselves sufficient to establish discriminatory disparate impact (ibid.). Since respondent had not introduced evidence concerning the dates on which females had entered the Postal Service's work force, the number of females who had actually applied for promotions, the distribution of females by pay scale levels in the workforce, or the number of females who qualified for promotion, the court found her evidence of disparate impact to be inadequate and granted judgment to the Postal Service on the disparate impact claim as well (ibid.). 3. The court of appeals affirmed in part, reversed in part, and remanded for further proceedings (App., infra, 16a-29a). The court agreed with the district court that respondent had not supported her allegations of disparate treatment (id. at 29a). But, while it too allowed respondent to proceed on a disparate impact theory, /5/ the court disagreed with the district court's conclusion that respondent had failed to support her disparate impact claim. "Once (respondent) proved that the Postal Service promotes from within and introduced statistical evidence showing that there is a gross disparity between the percentage of women occupying lower level positions and upper level positions, she made a sufficient prima facie showing of discriminatory impact" (id. at 20a (footnote omitted)). The court therefore remanded the case to the district court in order that the Postal Service might bring forward evidence "that few women occupying lower level positions have applied for upper level positions or are qualified for upper level positions, or to bring forward evidence of the job-relatedness of its promotion standards" (id. at 22a). 4. The Solicitor General then petitioned for a writ of certiorari to the court of appeals' judgment (No. 86-468). The petition asked this Court to resolve (1) whether a plaintiff can state a cause of action under Title VII based on an alleged disparate impact resulting from a subjective promotion practice or procedure and (2) whether, assuming disparate impact theory is permissible, a plaintiff establishes that a promotion procedure is prima facie unlawful merely by showing that the employer promotes from within in filling upper level positions requiring managerial ability and other special skills and that a gross disparity exists between the percentage of females occupying those upper level positions and low-level positions in the employer's work force. By order dated April 6, 1987 (App., infra, 15a), the Court granted the petition, vacated the judgment of the court of appeals, and remanded for further consideration in light of Johnson v. Transportation Agency, No. 85-1129 (Mar. 25, 1987). 5. On remand, the court of appeals reinstated its prior judgment in all pertinent respects (App., infra, 1a-12a). It again failed explicitly to address the Postal Service's claim that disparate impact theory does not apply in challenges to subjective promotion practices and procedures. Rather, it implicitly rejected that claim and defined the sole issue on remand to be "whether (respondent's) statistical evidence was sufficient to establish a prima facie case of disparate impact under Title VII of the Civil Rights Act of 1964" (id. at 2a (footnote omitted)). It then concluded that "(respondent's) statistical evidence was sufficient to establish a prima facie case of disparate impact under Title VII" (ibid.). ARGUMENT This case presents essentially the same question as is presented in Watson v. Fort Worth Bank & Trust Co., No. 86-6139 (argued Jan. 20, 1988). In Watson, the Court will decide whether subjective promotion processes may be challenged under the disparate impact analysis approved by this Court in Griggs v. Duke Power Co., 401 U.S. 424 (1971). /6/ In this case, the court of appeals has, notwithstanding the Postal Service's arguments to the contrary, allowed respondent to proceed against the Postal Service's subjective promotion process on a disparate impact theory. Since the Court will soon decide whether that action is permissible, we request that this petition be held pending the decision in Watson and then disposed of as is appropriate in light of that decision. CONCLUSION The petition for a writ of certiorari should be held pending this Court's decision in Watson v. Fort Worth Bank & Trust Co., No. 86-6139, and then disposed of as is appropriate in light of that decision. Respectfully submitted. CHARLES FRIED Solicitor General JAMES M. SPEARS Acting Assistant Attorney General DONALD B. AYER Deputy Solicitor General GLEN D. NAGER Assistant to the Solicitor General ROBERT S. GREENSPAN E. ROY HAWKENS Attorneys MARCH 1988 /1/ Two members of the Screening Board had "first-hand knowledge of the conditions of the post office run by (respondent). (Mr.) Wright, as a postal inspector, had investigated an instance of poor security in connection with the issuance of money orders and he described (respondent's) management as sloppy. (Mr.) Wright . . . told the Screening Board that Christmas mail deliveries were two or three days late. (Mr.) Besteda also told the Screening Board that the Kenilworth post office was not well managed." App., infra, 36a. /2/ The Screening Board ranked respondent thirteenth out of the 16 applicants that it deemed minimally qualified for the Glenview, Illinois postmaster position (App., infra, 36a). It ranked respondent sixteenth out of the 17 applicants that it deemed minimally qualified for the Palatine, Illinois postmaster position (id. at 36a-37a). And the Screening Board ranked respondent fifteenth out of the 17 applicants that it deemed minimally qualified for the Franklin Park, Illinois postmaster position (id. at 37a). /3/ Specifically, respondent introduced evidence showing that (App., infra, 51a-52a): In November, 1974, women held 20.8% of the positions in the Postal Service workforce. The percentage had moved to 23.5% by November 1980. Nationally, women held 11.5% of the positions at PES-15 and above in January, 1980. In 1978, the year of (respondent's) failed promotion, women occupied 23 of the 108 postmaster positions in the North Suburban MSC, or 21.2% of the total postmaster positions. However, none of the women postmasters were rated higher than PES-20 and 15 of them were at level PES-15 or lower. Additionally in 1977-1978 a total of 2,008 women were employed in the North Suburban MSC, 29.4% of the entire Postal Service workforce in the area. Despite that overall percentage, only four women or 5% (of those filling positions of PES-19 or higher) were rated in positions of PES-19 or higher. . . . /4/ The district court also recjected respondent's claim that the Postal Service had retaliated against her -- by reducing her in grade -- for initially raising her Title VII claim in 1978 (App., infra, 58a-62a). The court held that the Postal Service had demoted her for "misfeasance and malfeasance and not in retaliation for . . . her civil rights claim" (id. at 61a-62a). The court of appeals affirmed (id. at 2a, 23a-29a). The retaliation claim has no bearing on the issues raised by this petition and, accordingly, we discuss it no further. /5/ The court of appeals did not explicitly address in its opinion whether respondent's challenge to the Postal Service's subjective, multi-component promotion procedure presents a legally cognizable disparate impact claim. But the Postal Service fully briefed the issue as an alternative ground for affirming the district court's judgment. See Br. for the Defendant-Appellee 14-17 (filed May 3, 1985); see also Appellee's Pet. for Reh'g and Suggestion for Reh'g En Banc 8-13 (filed Mar. 13, 1986). Thus, the Postal Service clearly raised the issue to the court below and, in deciding that respondent had in fact established a prima facie case of disparate impact, the court necessarily decided it. /6/ In its amicus curiae brief in Watson, the United States has argued that disparate impact theory should not apply in challenges to subjective decisionmaking processes. We are furnishing counsel for respondent with a copy of our brief in Watson. APPENDIX