KATHLEEN SHETLER GLOBUS, PETITIONER V. SAMUEL K. SKINNER, SECRETARY
OF TRANSPORTATION

   No. 90-1506

   In The Supreme Court Of The United States

   October Term, 1990

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

   Brief For The Respondent In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The order of the court of appeals summarily affirming the district
court's judgment (Pet. App. 1a-2a) is not reported.  The opinion of
the district court (Pet. App. 3a-37a) is reported at 721 F. Supp. 329.
 The order of the district court denying petitioner's motion to alter
judgment (Pet. App. 38a-43a) is not reported.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 13,
1990.  A petition for rehearing was denied on November 30, 1990.  Pet.
App. 44a.  On February 15, 1991, the Chief Justice extended the time
for filing a petition for a writ of certiorari to and including March
28, 1991.  The petition was filed on that date.  The jurisdiction of
this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the courts below correctly held that, in order to establish
a violation of Title VII consisting of an allegedly retaliatory
failure to offer her a position, petitioner was required to prove that
there was an available position.

                               STATEMENT

   1. a. Between 1967 and 1983, petitioner was an employee of the
Maritime Administration (MarAd), ultimately in a GS-13 position.  In
the 1970s and early 1980s, petitioner was involved in a number of
equal employment opportunity activities at MarAd, including a class
action lawsuit alleging that MarAd discriminated on the basis of race
and sex.  Petitioner was deposed in the suit in 1981, and the
plaintiffs listed her as a potential witness.  Although she did not
testify, she was perceived by some MarAd employees as an "instigator
or ringleader of EEO activity at MarAd." Pet. App. 4a-5a.

   As a result of budget cuts in the early 1980s, MarAd was forced to
make substantial reductions in the number of its employees.  In 1982,
MarAd selected petitioner's position, among others, to be abolished in
a reduction in force.  The position was preserved, however, when
another employee unexpectedly resigned.  The following year, in
another reduction in force, MarAd abolished petitioner's position.
After exhausting her administrative remedies, petitioner filed suit,
alleging that MarAd had violated Title VII, 42 U.S.C. 2000e-3(a), by
discharging her in retaliation for her anti-discrimination activities.
 Pet. App. 6a-7a.

   b. After a trial, the court found that petitioner had established a
prima facie case of retaliation by showing "(1) that she engaged in
protected activity;  (2) that the employer took adverse action against
her;  and (3) that there is at least an inference of a causal
connection between the two." Pet. App. 24a, 27a-30a.  However, the
court held that there was "no liability under Title VII" because MarAd
had "articulated legitimate, nonretaliatory reasons for dismissing
(petitioner) in the 1983 RIF" and because she had "failed to prove
that these reasons were pretextual." Id. at 30a, 37a.  Based upon
detailed findings of fact regarding the events that culminated in the
decision to abolish petitioner's position, the court was "convinced
that the nonretaliatory reasons given for the dismissal of
(petitioner) were the true and only reasons for her dismissal." Id. at
32a.  In passing, the court also rejected the claim that MarAd "showed
retaliatory intent in 1983 by failing to offer (petitioner) a GS-6
typing job in lieu of dismissing her entirely." Id. at 21a, 35a-36a.

   c. Petitioner filed a motion to alter judgment, arguing that MarAd
"violated Title VII by failing to offer plaintiff a clerical
position() at GS level 6 upon the elimination of her GS 13 job." Pet.
App. 39a.  The district court rejected that new theory of liability on
two alternative grounds.

   First, the court concluded that petitioner "failed to present a
prima facie case of retaliation with respect to her claim that
defendants failed to offer her a GS 6 clerical vacancy" because there
was "no evidence that such a clerical position was available." Pet.
App. 40a.  The court explained that, by contrast to petitioner's claim
of retaliatory discharge, her claim of "improper failure to offer
alternative employment in the midst of a bona fide reduction in force"
required, for a prima facie case, a showing "that such a position was
available." Id. at 40a n.1.  To satisfy that burden, the court
continued, petitioner relied only on "general testimony that one of
the four clerical positions exempt from the 1983 RIF was vacant at the
time of the plaintiff's termination," asking "the court to 'infer that
(MarAd's) office had determined that that vacancy was going to be
filled.'" Id. at 40a.  Noting that petitioner had the "opportunity to
develop direct testimony regarding the alleged vacancy at trial," the
court declined to "'infer' an essential element of plaintiff's case
after trial." Id. at 41a.

   Second, the court also found that "even if (petitioner) had
succeeded in establishing a prima facie case," she had "not proved
that defendant's reasons for failing to offer (her) a clerical
position were merely pretextual." Pet. App. 41a.

   2. The court of appeals summarily affirmed.  Pet. App. 1a-2a.  It
upheld "the district court's conclusion regarding the agency's failure
to offer appellant a position in lieu of separation solely on the
ground that appellant failed to establish a prima facie case
concerning the availability of such a position." Ibid.

                               ARGUMENT

   Petitioner presented different theories of liability at trial and
in her motion to alter judgment.  At trial, the theory of petitioner's
case was that MarAd abolished her position in the 1983 reduction in
force in retaliation for her equal employment opportunity activities.
In her motion to alter judgment, petitioner argued that MarAd's
retaliation took the form of a failure to offer her a clerical
position instead of terminating her employment altogether.  The
petition presents only the second claim.  Pet. 9-10, 14 n.8.
Petitioner's basic contention is that the district court and the court
of appeals should not have required her to bear the burden of proving
that there was an available vacancy.  Pet. 41-42.  There is no merit
to that contention, and it presents no question warranting this
Court's review.

   1. In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981), this
Court established the order of proof in Title VII discrimination
cases.  The plaintiff has the initial "burden of proving by the
preponderance of the evidence a prima facie case of discrimination."
Burdine, 450 U.S. at 252-253.  In cases alleging discrimination in
hiring, the plaintiff "must prove by a preponderance of the evidence
that she applied for an available position for which she was
qualified, but was rejected under circumstances which give rise to an
inference of unlawful discrimination." Id. at 253.  If the plaintiff
makes out a prima facie case, then "the burden shifts to the defendant
'to articulate some legitimate, nondiscriminatory reason for the
employee's rejection.'" Ibid. (quoting McDonnell Douglas, 411 U.S. at
802).  Finally, if the defendant carries this burden, then the
plaintiff must have "an opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for discrimination." Burdine, 450
U.S. at 253.

   Although the McDonnell Douglas/Burdine framework was designed for
claims that an employer has violated Title VII by engaging in
invidious discrimination, the courts of appeals have adapted it to
claims that an employer has retaliated against an employee because of
protected equal employment activities.  E.g., Williams v. Cerberonics,
Inc., 871 F.2d 452, 457 (4th Cir. 1989);  Yartzoff v. Thomas, 809 F.2d
1371, 1375 (9th Cir. 1987), cert. denied, 111 S. Ct. 345 (1990);
Jennings v. Tinley Park Community Consol. School Dist. No. 146, 796
F.2d 962, 966-967 (7th Cir. 1986), cert. denied, 481 U.S. 1017 (1987);
 Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985).  /1/ The
courts of appeals are in agreement that a prima facie case for a
retaliation claim consists of proof that the plaintiff engaged in
statutorily protected activity, that the employer took an adverse
personnel action, and that there is some basis for inferring a causal
connection between the plaintiff's activities and the employer's
action.  Ibid.

   The precise showings required for a prima facie case depend on the
nature of the allegedly unlawful personnel action.  Obviously, if a
plaintiff claims that the retaliation took the form of a failure to
hire her or to place her in a particular position, the plaintiff
cannot prove that she was the victim of an adverse personnel action
without demonstrating that a vacancy existed.  /2/ Absent an available
vacancy, there is no adverse personnel action.  That is this case.
Petitioner asked the court to find that MarAd had discriminated
against her by failing to offer her a clerical vacancy.  The court
found, however, that "there (was) no evidence that such a clerical
position was available." Pet. App. 40a.  Thus, petitioner simply
failed to prove the form of retaliation that she asserted in her
motion to amend the judgment.  /3/

   2. Contrary to petitioner's contention (Pet. 30, 50-63), the
standards applied to petitioner's claim are entirely consistent with
the framework established in McDonnell Douglas and Burdine.  With the
exception of the motive for the alleged adverse personnel action,
petitioner's claim is indistinguishable from a claim that an employer
failed to offer a vacancy to a potential employee on the basis of
race, sex, national origin, or religion.  In the latter case,
McDonnell Douglas and Burdine require a plaintiff to show that there
was "an available position for which she was qualified." Burdine, 450
U.S. at 253.  Accord McDonnell Douglas, 411 U.S. at 802.  There is no
reason why a plaintiff alleging that she was denied a position because
of her equal opportunity activity (rather than because of her sex)
should be relieved of the burden of making the same showing.

   3. There is no conflict between the lower courts' decision in this
case and decisions of other courts of appeals.  The cases on which
petitioner relies (see Pet. 39-40) do not suggest that a plaintiff may
recover under Title VII for a retaliatory failure to hire without
proving that there was an available position for which she was
qualified.  In fact, in Gonzalez v. Carlin, 907 F.2d 573, 578 (5th
Cir. 1990), the court affirmed the denial of a claim alleging a
retaliatory failure to promote the plaintiff to a particular position
on the ground, among others, that the plaintiff had presented no
evidence that he was qualified for the job and thus had failed to make
out a prima facie case.  In Holland v. Jefferson Nat'l Life Ins. Co.,
883 F.2d 1307 (7th Cir. 1989), the court held that the plaintiff had
produced sufficient evidence that her employer had retaliated against
her by refusing to keep her job open during her maternity leave after
having earlier promised to do so.  The effect of the change was to
terminate her from her position.  As the district court's treatment of
the theory petitioner advanced at trial reflects (see Pet. App.
27a-30a), that type of claim does not require a showing of an
available vacancy;  the adverse personnel action consists of depriving
the plaintiff of the job she already holds.  /4/ There is no support
whatever for petitioner's assertion (Pet. 41) that, in a case
involving an allegedly retaliatory failure to hire, "it is settled
throughout most of the circuits that the issue * * * whether the
vacancy she claimed was truly available * * * is considered as part of
the employer's rebuttal rather than the plaintiff's prima facie case."
/5/

                              CONCLUSION

   The petition for writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   MARLEIGH D. DOVER

   D. BRUCE LA PIERRE

      Attorneys

   MAY 1991

   /1/ Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C.
2000e-3(a), provides in pertinent part:

      It shall be an unlawful employment practice for an employer to
      discriminate against any of his employees or applicants for
      employment * * * because he has opposed any practice made an
      unlawful employment practice by this subchapter, or because he
      has made a charge, testified, assisted, or participated in any
      manner in an investigation, proceeding, or hearing under this
      subchapter.

   /2/ Indeed, in cases in which alleged retaliation takes the form of
a failure to hire or promote the plaintiff, the D.C. and Eleventh
Circuits require the plaintiff to demonstrate "as part of the prima
facie reprisal case that he was qualified for the position." Mitchell
v. Baldridge, 759 F.2d 80, 86 n.5 (D.C. Cir. 1985);  Williams v.
Boorstein, 663 F.2d 109, 116 & n.43 (D.C. Cir. 1980), cert. denied,
451 U.S. 985 (1981);  Canino v. EEOC, 707 F.2d 468, 471-472 (11th Cir.
1983).

   /3/ Petitioner relied on testimony that one of the clerical
positions exempt from the reduction in force was not occupied.  See
Pet. App. 40a.  Under the circumstances of this case, however, that
evidence was insufficient to prove an available vacancy.  Even
assuming that an authorized position was empty, there was no showing
that the agency had any intention of filling it.  In McDonnell
Douglas, this Court indicated that the prima facie case for a claim
based upon a discriminatory failure to hire involved a showing that
after the plaintiff was rejected, "the position remained open and the
employer continued to seek applicants from persons of the
complainant's qualifications." 411 U.S. at 802.

   /4/ Petitioner cites a number of cases for the proposition that "if
a single personnel decision is attacked as both an act of
discrimination and an act of reprisal, the two issues are analyzed
using differing (and non-overlapping) prima facie cases." Pet. 40.
Whatever the validity of that assertion, none of the cases suggest
that a retaliatory failure to hire may be shown without evidence of
the type petitioner failed to introduce here.  Similarly, petitioner
suggests that decisions of the Seventh and Ninth Circuits have imposed
too high a burden of proof on plaintiffs alleging retaliation.  Pet.
36, 43-46.  We do not agree that the cases on which petitioner relies
commit those circuits to standards at odds with those applied here.
In any event, since the standards of which petitioner complains were
not applied to her, they provide no support for further review.

   /5/ In any event, as the district court noted, even if petitioner
were deemed to have established a prima facie case, she failed to
prove that respondent's reasons for failing to offer her a clerical
position were pretextual.  See Pet. App. 41a.