JAY E. GREGORY, SHERIFF OF PATRICK COUNTY, VIRGINIA, ET AL.,
PETITIONERS V. UNITED STATES OF AMERICA

   No. 89-597

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1B-42B) is reported
at 871 F.2d 1239.  The district court's opinion (Pet. App. 1A-23A) is
not yet reported.

                             JURISDICTION

   The opinion of the court of appeals was issued on April 14, 1989.
A petition for rehearing was denied on July 20, 1989.  Pet. App.
1C-3C.  The petition for a writ of certiorari was filed on October 12,
1989.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals correctly decided that the district
court committed clear error in concluding that there was insufficient
evidence to prove that petitioners engaged in sex discrimination in
violation of Title VII.

                               STATEMENT

   1. In June 1983, the United States brought suit against Jesse W.
Williams, the Sheriff of Patrick County, Virginia, alleging a pattern
or practice of refusing to consider women for deputy sheriff positions
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq.  Later that year, Williams lost his reelection bid for
sheriff to Jay Gregory, and Gregory was substituted as the defendant.
Pet. App. 3B-4B.

   At trial, the government presented testimony by four women who
alleged that they were denied jobs as deputy sheriffs, a job title
that encompassed various positions including corrections officer and
courtroom security officer.  See United States v. Gregory, 818 F.2d
1114, 1115 (4th Cir.), cert. denied, 484 U.S. 847 (1987).  Two
witnesses, Doris Scales and Wanda Hylton, both testified that when
they inquired about being hired as deputy sheriffs, the Sheriff told
them that he would not consider women for deputy positions because he
did not think that women could do the job.  Pet. App. 12B-15B.  In his
testimony, the Sheriff stated that he maintained a policy of refusing
to consider women for positions as corrections officers out of concern
for inmates' privacy.  Id at 15B-16B.  The government also introduced
statistics showing that, as of 1982, no woman had ever been hired into
the deputy sheriff positions at issue.  Id. at 21B.  Additional
evidence was presented to demonstrate that the reasons offered by the
Sheriff for not hiring women in individual cases were pretextual.  /1/

   2. After trial, the district court dismissed the government's
complaint on the ground that deputy sheriff positions fell within the
"personal staff" exemption to Title VII defined in 42 U.S.C. 2000e(f).
 United States v. Gregory, 582 F. Supp. 1319 (W.D. Va. 1984).  By
unpublished opinion, the Fourth Circuit vacated and remanded in light
of an intervening decision in the circuit, finding that the judge had
erred in applying the "personal staff" exemption.  United States v.
Gregory, No. 84-1613 (Oct. 1, 1985).

   On remand, the district court found that one individual, Stephanie
Ressel, had been unlawfully discriminated against in being denied a
position as a courtroom security officer.  Pet. App. 5B n.4.  The
court again held, however, that three types of deputy positions fell
within the personal staff exemption and that maleness was a bona fide
occupational qualification (BFOQ) for a fourth position, corrections
officer.  See id. at 5B.

   The government again appealed, and the court of appeals reversed on
the grounds that deputy sheriffs were not personal staff within the
meaning of the exemption, and that maleness was not a BFOQ for
corrections officers.  The court found that the Sheriff had offered no
evidence that the total exclusion of females from the position of
corrections officer was necessary to accommodate inmates' privacy
interests.  United States v. Gregory, 818 F.2d at 1116-1118.  The
court again remanded for further proceedings on the merits of the
discrimination claims.  Id. at 1117.

   3. On remand, the district court held that the government's
evidence was insufficient to prove its case.  Wanda Hylton testified
that when she asked the Sheriff during a job interview if he would
consider hiring a woman as a deputy, he responded "by chuckling and
saying that he would not hire a woman in his department as a deputy,
that he did not think that women could handle the job, that they could
not handle men." Pet. App. 9A-10A.  Although the Sheriff denied having
made these statements, id. at 12B, the trial court credited Hylton's
testimony.  However, the court concluded that the Sheriff's admission
of discrimination had been "made in jest" and thus did not evince an
intent to discriminate.  Id. at 11A.

   The district court further held "meaningless" the government's
statistical evidence that, as of 1982, no women had ever been hired in
the deputy sheriff positions at issue.  Pet. App. 5A.  To support this
holding, the court cited the absence of evidence in the record as to
whether women other than the four who testified had applied for jobs
as deputies.  Ibid.  Also, the trial court noted that most of the
deputy sheriff positions that fell open during Sheriff Williams's
tenure were filled by the reappointment of employees hired by a
predecessor.  This fact, in the district court's judgment, rendered
the "data base" too small to be reliable.  Id. at 6A-7A.

   4. On appeal, the Fourth Circuit acknowledged that it could reverse
the district court's findings of fact under the clearly erroneous
standard only in "a rare case" in which it was left with a "definite
and firm conviction that a mistake has been committed." Pet. App. 10B
(citing Anderson v. City of Bessemer City, 470 U.S. 564 (1985)).  The
court found this to be such a rare case, however, and concluded that
the district court had committed clear error in a number of respects.

   First, the trial court had clearly erred in finding that the
Sheriff's admission to Hylton that he would not hire a woman as a
deputy was a "joke." In reaching its conclusion, the trial court
relied exclusively on Hylton's testimony that the Sheriff "chuckled
when he admitted to his policy of not hiring female deputies." The
court of appeals ruled, however, that the district court's refusal "to
recognize the Sheriff's bold admission of discrimination" was not
justified by the fact that the Sheriff "was good-humored when he made
it." Pet. App. 14B-15B.  The court of appeals found the record devoid
of any evidence that the Sheriff had not meant what he said.  Even the
Sheriff himself had never claimed that he was joking, but instead had
denied the incident altogether.  Id. at 14B.  Moreover, given that the
district court had treated as "serious" the Sheriff's subsequent
advice to Hylton that she seek a different job, it was implausible to
conclude that his disclosure of his discriminatory policy was not
sincere as well.  Ibid.  The court concluded that the trial court's
"erratic()" and "contradictor(y)" analysis of Hylton's testimony was
clearly erroneous.  Ibid.

   Second, the court of appeals decided that the district court had
committed clear error by failing to consider other highly probative
testimony in the record.  The district court completely failed to
discuss the testimony of Doris Scales that the Sheriff had remarked to
her on several occasions that he would not hire a woman deputy because
he did not "feel like they're capable of handling the job as a
deputy." Pet. App. 15B.  And following the court of appeals' holding
that maleness was not a BFOQ for the position of corrections officer,
the district court simply chose to ignore the Sheriff's key admission
on the witness stand that he had a policy of refusing to hire women as
corrections officers.  Ibid.  The district court's complete disregard
of these statements rendered insupportable its conclusion that the
government had failed to prove a discriminatory practice.

   The court of appeals also held that the district court had
incorrectly ruled that statements to an EEOC officer by the Sheriff's
attorney that the Sheriff had a policy of refusing to hire women as
deputy sheriffs were inadmissible as hearsay.  Pet. App. 17B-20B.
And, in respect of the district court's dismissal of the government's
statistical evidence as "meaningless," the court of appeals held that
the lower court had misconstrued the law developed by this Court on
the use of statistical evidence in Title VII cases.  Id. at 21B-29B.
The court of appeals recognized that, contrary to the district court's
conclusion, the precedents of this Court teach that "applicant flow
data is not required to prove discrimination through statistics." Id.
at 23B.  Except in the case of jobs requiring highly specialized
skills, "(e)vidence of longlasting and gross disparity between the
composition of a work force and that of the general population thus
may be significant." Id. at 24B-25B (quoting Teamsters v. United
States, 431 U.S. 324, 340 n.20 (1977));  see also Pet. App. 25B-29B.
Moreover, the district court's findings that no all deputy positions
were open during the relevant period did not warrant the complete
disregard of evidence showing "the inexorable zero." Id. at 30B
(quoting Teamsters v. United States, 431 U.S. 324, 342 n.23 (1977)).
The court suggested that the evidence of such a hiring pattern should
at least have been considered as part of the government's prima facie
case.  Pet. App. 29B.

   On the basis of these rulings, the court of appeals reversed.  The
court concluded that the Sheriff's open admissions of a discriminatory
practice in themselves sufficed to establish a clear Title VII
violation.  Pet. App. 20B.  In the court's view, this evidence,
"bolstered" by the figures showing no hires of women deputies as of
1982 (ibid.) and the trial court's own finding of one instance of
unlawful discrimination (id. at 34B n.26), required reversal of the
district court's judgment that the government had failed to
demonstrate a practice of discrimination.  /2/

                               ARGUMENT

   This fact-bound case involves the straightforward application of
principles esablished by prior decisions of this Court.  The decision
of the court of appeals is correct and presents no issue worthy of
this Court's consideration.  Further review is therefore unwarranted.

   1. Petitioners contend that the court of appeals misapplied the
clearly erroneous standard and engaged in an independent weighing of
the evidence.  Although the court of appeals did decide that certain
key factual findings of the district court lacked support, it
faithfully adhered to the clearly erroneous standard established by
this Court.

   Under this standard, a reviewing court must set aside the factual
findings of a trial court if, after its review of all of the evidence,
it "is left with the definite and firm conviction that a mistake has
been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985) (quoting United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)).  Great defernce must be accorded the trial court's
account of the evidence;  "(i)f the district court's account of the
evidence is plausible in light of the record viewed in its entirety,
the court of appeals may not reverse it." Anderson, 470 U.S. at
573-574.  However, a reviewing court must not approve factual findings
by the trial judge that are "illogical or implausible." Id. at 577.

   The court of appeals correctly applied this standard.  In
concluding that the evidence in the record as a whole rendered
implausible the district court's finding that the Sheriff was speaking
"in jest" when he acknowledged to Hylton that his hiring policy was
discriminatory (Pet. App. 13B-15B), the court of appeals did not
reverse a credibility determination by the trial judge.  Cf. Anderson,
470 U.S. at 575 (credibility determinations entitled to greatest
deference).  Indeed, the judge had credited Hylton's account of the
exchange and implicitly rejected the Sheriff's testimony that no such
conversation occurred.  Instead, the court of appeals concluded that
the trial court erroneously discounted Hylton's pivotal testimony on
the basis of a finding of fact -- that the Sheriff was "joking" --
that was implausible on its face and lacking in evidentiary support.
Reversal of such a clearly erroneous finding was fully justified under
the standards defined in Anderson.

   Equally well founded is the court of appeals' ruling that the
district court committed clear error in ignoring evidence in the
record of additional admissions by the Sheriff.  The district court
did not even attempt to explain why it made no mention whatsoever of
Doris Scales' highly relevant testimony that the Sheriff had more than
once told her that he would not consider women for deputy positions.
Pet. App. 15B.  Likewise, the court offered absolutely no
justification for its failure to take account of the Sheriff's own
acknowledgement at trial that it was his policy to refuse to hire
women as corrections officers.  Id. at 15B-16B.  The trial court's
complete disregard of these two additional statements of
discriminatory intent rendered its conclusion that no discriminatory
practice had been shown so "implausible" as to require reversal.
Anderson, 470 U.S. at 577.  /3/

   Petitioners also contend that the court of appeals misapplied the
clearly erroneous standard in finding that the district court erred in
ignoring the statistical evidence that the Sheriff had never hired a
woman deputy.  This argument evinces a misunderstanding of the court
of appeals' holding.

   First, the court of appeals held that the Sheriff's own admissions
of a discriminatory policy were sufficient in themselves to establish
a Title VII violation;  the government's statistical evidence merely
"bolstered" an already overwhelming case of intentional
discrimination.  Pet. App. 20B.  The court of appeals' decision
therefore stands as correct on the basis of its treatment of the
Sheriff's admissions alone.

   In any event, the court of appeals' reversal of the district
court's ruling that the statistical evidence was "meaningless" (Pet.
App. 5A) was not in the nature of a reversal of the trial court's
factual findings.  The court of appeals had no significant quarrel
with the trial court's findings as to the actual hiring patterns or
with its evaluation of the reliability of the numbers.  /4/ Rather,
the appeals court concluded that the trial court committed legal error
in refusing to give any consideration at all to the statistics on the
ground that to do so would contravene precedents of this Court.

   The trial court was wrong to decide that an absence of applicant
flow data rendered the statistical evidence inherently meaningless.
On the contrary, this Court has held that when a job requires skills
"that many persons possess or can fairly readily acquire" -- as the
court of appeals found to be the case for the deputy sheriff position
(see Pet. App. 27B & n.18) -- a sharp disparity between the
representation of a group in a particular job as compared to the
representation in the population at large can be "highly probative."
Hazelwood School Dist. v. United States, 433 U.S. 299, 308 & n.13
(1977);  see also Teamsters, 431 U.S. at 337-340 & n.20.  Also,
applicant flow data is of limited usefulness in situations like the
one presented here, since open admissions of a discriminatory practice
can be expected to discourage applications from the disfavored group.
Cf. Teamsters, 431 U.S. at 365 ("If an employer should announce his
policy of discrimination * * * his victims would not be limited to the
few who * * * subjected themselves to personal rebuffs.").

   Furthermore, petitioners' various criticisms of the government's
"statistics" do not detract from the basic lesson of the figures:
that the Sheriff's hiring patterns reflected "the inexorable zero."
Such a "glaring absence" may properly be offered as evidence that a
discriminatory practice is in operation.  See Teamsters, 431 U.S. at
342 n.23.

   2. Finally, petitioners contend (Pet. 19-22) that the Sheriff's
admissions were insufficient to prove a case of intentional
discrimination because they were nothing more than "stray remarks"
based on sex stereotypes.  As a plurality of this Court has noted,
such remarks "do not inevitably prove that gender played a part in a
particular employment decision." Price Waterhouse v. Hopkins, 109 S.
Ct. 1775, 1791 (1989).  Petitioners' argument is misguided.  The
Sheriff's statements that he would not hire women as deputies can
hardly be characterized as the kind of sexism "in the air," see ibid.,
that has no demonstrable effect on the hiring process.  Rather, they
are open confessions by the employer himself that he maintains a
practice of discriminatory hiring.  Such admissions make this a simple
case of intentional discrimination.  The court of appeals, recognizing
this, correctly reversed the lower court's implausible and illogical
findings to the contrary.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JAMES P. TURNER

      Acting Assistant Attorney General

   JESSICA DUNSAY SILVER

   SUSAN D. CARLE

      Attorneys

   DECEMBER 1989

   /1/ For example, Sheriff Williams maintained that he had refused to
hire Doris Scales because of her alleged "bad moral and credit
reputation and her overbearing personality." Pet. App. 39B-40B n.30.
However, the evidence showed that the Sheriff hired male deputies with
"bad moral reputations," criminal records, poor driving records, and
"worse credit problems." Ibid.

   The evidence at trial also showed that, after Kathy Sheppard's job
as civil process server was eliminated for budgetary reasons, Sheriff
Gregory refused to consider her for any of the two vacant deputy
positions or the 14 carryover positions.  The court of appeals found
that Sheriff Gregory's claim that his decision was based on Sheppard's
inferior qualifications was belied by Sheppard's excellent job record,
which was superior to that of other successful applicants.  Pet. App.
41B-42B n.31.

   /2/ In light of the admissions by the Sheriff, along with the
evidence of pretext offered by the government with respect to the
Sheriff's reasons for not offering deputy positions to individual
women, the court of appeals also found that individual complainants
had been victims of sex discrimination.  See Pet. App. 39B-42B &
nn.30-31.

   /3/ Petitioners argue (Pet. 17-18) that it was error for the court
of appeals, in reversing the trial court's finding of no
discrimination, to rely on an admission of discrimination made by the
Sheriff's attorney to an EEOC compliance officer.  See Pet. App.
16B-21B.  Petitioners contend that the court of appeals should not
have credited this admission without first giving petitioner a chance
to rebut it.  But the court of appeals concluded that the record
contained at least three other clear admissions by the Sheriff that
his office maintained a discriminatory practice.  Pet. App. 12B-16B.
Since the purported admission by the petitioners' attorney merely
confirmed a fact established by other evidence, it can make no
difference that petitioners' attorney was not provided with an
opportunity to deny making the statement.

   /4/ The court of appeals, at one point, did question the district
court's findings as to the number of positions open for "new hires."
Pet. App. 22B & n.13, 32B.  However, it held that this issue was "not
significant to our finding that the statistical evidence should not
have been ignored by the district court." Id. at 22B n.13.