Joslyn N. WILLIAMS v. Daniel J. BOORSTIN, Librarian of the Library of Congress, Appellant.
No. 79-1684.
United States Court of Appeals, District of Columbia Circuit.
Decided 3 Oct. 1980.
Argued 11 June 1980.
109-120
A He was associated with him in prison.
Q And where was that?
A Atlanta.
(Tr. August 9, 1978, p. 48.)
Later Simmons on direct examination testified as follows:
Q What were you doing before December of ‘77?
A I was in prison.
Q Where were you incarcerated?
A Danbury.
Q What state is Danbury in?
A Connecticut.
Q Where is Allenwood?
A Pennsylvania.
Q What were you incarcerated for; what were you convicted of?
A Narcotics.
Q Was that in this court?
A Yes. It was U. S. District Court.
Q Now, in that case did you plead guilty or were you found guilty by a jury? Did you go to trial or did you enter a plea?
A I pleaded guilty.
Q Mr. Simmons, do you know Elaine Reed?
A Yes, I do.
Q For how long have you known her?
A About twenty years.
Q Did there come a time when she introduced you to someone named John, who was looking for narcotics?
A Yes.
Q Approximately when was this?
A In April.
(Tr. August 9, 1978, pp. 93-94.)
In addition to the above testimony, two witnesses testified in Simmons’ behalf on direct (or redirect) examination that he had been released from a halfway house the preceding December (Id., 129) and that they knew he had served time in prison (Id. 131, 136). Similar testimony was elicited by the government during cross-examination of Simmons (Id. 118-119).
Because such evidence had in effect previously been introduced into the trial it was not necessary for the trial court to make a specific finding that the probative value on the issues in the case outweighed the prejudicial effect on the defendant. By the time the government elicited the testimony as to his prior convictions it was merely cumulative of prior testimony introduced by the defendant.
Therefore we affirm the conviction and sentence.
Judgment accordingly.
Mark N. Mutterperl, Atty., Dept. of Justice, Washington, D. C., with whom Alice Daniel, Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty., and Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellant.
John A. Terry, Asst. U. S. Atty. and William Kanter, Atty., Dept. of Justice, Washington, D. C., also entered appearances for appellant.
Michael D. Hausfeld, Washington, D. C., with whom Jerry S. Cohen and Herbert E. Milstein, Washington, D. C., were on the brief, for appellee.
Before BAZELON, Senior Circuit Judge, TAMM and WILKEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
Opinion filed by Senior Circuit Judge BAZELON, concurring in the result.
We have before us the case of a man who engaged in an elaborate masquerade as a purported law student, applicant for the bar, then lawyer in order to obtain and keep a job whose specific required qualifications called for a lawyer. Unmasked, his decep
It is not disputed that the plaintiff had lied on his job application where he misrepresented his academic credentials; it is not disputed that he lied on occasion during his employment to carry out his masquerade; it is not disputed that he continued to lie even after his superiors confronted him. The only issue is whether the plaintiff was fired in violation of his civil rights. The district court held that Title VII of the Civil Rights Act of 19641 was violated by the Library of Congress when it terminated the plaintiff.2 We reverse the district court on the ground that the employment discrimination standard laid down by the Supreme Court in McDonnell Douglas Corp. v. Green3 is utterly inconsistent with a finding of discrimination in this case.
I. FACTS
The appellee, Joslyn Williams, who was not a lawyer, held a lawyer‘s job as a GS-11 copyright examiner at the Library of Congress. As of 11 August 1972 the Library terminated his employment upon learning of his lack of qualification and misrepresentation of that fact. It was in June 1972 that Williams received notice of removal, but he was allowed to submit a letter of resignation in lieu of termination by the Library. Two days before the resignation was to become effective, he attempted to rescind his resignation. The Library refused to accept the withdrawal of the letter of resignation, so Williams was forced to leave the Library on 11 August. The Director of Personnel, Robert W. Hutchison, wrote a letter to appellee, dated 11 August 1972, stating the Library‘s reasons for continuing to insist on his resignation:
As you know the Librarian had already approved removal action against you to be effective July 21, 1972. You received ample notice of the specific charges with right to reply, and written notice of final decision . . . . The Acting Librarian accepted your resignation with a departure date agreed upon three weeks past July 21, 1972, specifically August 11, 1972, because of your desire to effect an orderly transition and set in order certain employee union business in which you were engaged. This new date of August 11, 1972 was agreed to by the Library solely because of your involvement in these union matters, and because the agency considered it to be in its best interests to resolve these union matters with your assistance.4
Williams then filed suit under Title VII of the Civil Rights Act,
Williams started out at the Library in 1967 as a GS-4 in the law section. In a few months he moved up into a GS-7 slot where he was an examiner in the Library‘s Copyright Division.6 By 1971 Williams had be
Our exposition of the remaining factual considerations will quickly highlight three sets of facts: first, it is imperative to appreciate the depth and persistence of Mr. Williams’ lies and their material relation to his original job and later promotions. Second, we will note Mr. Williams’ genuine talent and impressive role as an advocate of employee, especially black-employee, rights. Third, we will look at the factual basis for the trial judge‘s inference that the Library retaliated against Williams, wrongfully removing him because of his advocacy.
A. Lies and Misrepresentations
Williams is part of that too broad fellowship of educated men and women everywhere who “pad” their resumes inflating their apparent strengths. Unfortunately, Williams went beyond simple puffery and actually lied about his educational accomplishments. These false statements were criminal.7
Directly under a warning in bold type that “[a] false or dishonest answer to any question in this application may be grounds for rating you ineligible for Federal employment, or for dismissing you after appointment, and may be punishable by fine or imprisonment (U.S.Code, Title 18, Sec. 1001),”8 Williams certified in his 27 January 1967 application9 that his statements were true. In fact, they were false and materially so. He had successfully complet
Williams perpetuated false representations about his education throughout subsequent job applications for promotions to levels GS-7 and GS-11, and in an unsuccessful application for a GS-12 job. Though the opinion below reflected more-or-less the plaintiff‘s falsifications, the district court took a rather curious approach toward them. We are at a loss to understand the casual attitude evinced by the district court in the following quotation:
By 1971, Williams had performed at least satisfactorily as an examiner and had risen to Grade GS-11. When a position as Senior Copyright Examiner GS-12 became vacant, Williams applied. He did not win the position despite his taking the calculated risk of representing (falsely) that he had attended Georgetown from 1966 through 1970 and had received a J.D. degree there.17
The court continued in this curious vein, stating
soon after his employment at the Library, Williams began to exhibit lawyer-like skills far exceeding those normally found in a law student or a novice lawyer. He was accepted at the Library as if he had credentials as a lawyer, and represented employees with grievances about unfair employment most effectively.18
Since Williams was not a lawyer and did not have the legal training he claimed, the “calculated risk” he took was nothing less than intentional deception. Williams’ job called for a lawyer but was occupied instead by a mountebank; like nearly all mountebanks successful for a time he had talent in the role he attempted, and probably could have been equally successful in a related field not requiring repeated falsifications had he chosen to pursue his career honorably.19
There is ample evidence in the record that Mr. Williams was hired for lawyers’ jobs, because among all the applicants he appeared to be relatively better qualified on the scale of legal education.20 In fact, when his application for a promotion to a full-time job at GS-7 in the Copyright Office was considered, the Personnel Action Recommendation recited in detail his (purported) academic credentials, stating that Williams “will receive his LL.B. degree [from Georgetown] in June 1969.”21 The Recommending Officers were impressed with Williams. They wrote:
Although Mr. Williams does not entirely meet the posted qualifications in that he does not yet have a law degree, we believe that his varied experience and his overall qualifications make him an unusually promising applicant. We therefore request that an exception be made to the posted qualifications.22
In a later memorandum, one of the Recommending Officers confirmed that “[i]t was principally because of his alleged past and continuing law school experience that we decided to recommend Mr. Williams’ appointment as a Copyright Examiner.”23 As noted above, Williams perpetuated his story in each of four job applications including the entry-level one. He perpetuated his ruse by “acting like a lawyer“—in the words of the district court, “[leading] his friends and his critics to believe him to be a trained and effective lawyer”24 and requesting leave in 1970 and again in 1971 supposedly to study and sit for the Maryland bar examination.25
Naturally—or, at least reassuringly—it was discovered eventually that Williams as a lawyer was a fake. In a Library training session on copyright law, Williams apparently did not quite “think like a lawyer,” thereby arousing the suspicion of the instructor. This suspicion prompted an investigation. The complete record of continuous deceit was then revealed, and, after a period of stubborn false denials, subsequently conceded by Williams. An egregious record like this one hardly poses the ideal case for a whisper of a racial discrimination complaint, let alone an employment discrimination lawsuit.
B. Williams as Advocate and Employee Representative
In the words of the district court, Williams “was a ‘leader,‘” he “was a ‘symbol to blacks.‘”26 The record supports this characterization, and we accept it. Neither these accomplishments, nor the personal tragedy exemplified in Williams’ rise and fall, however, convert this unsuccessful masquerade into a valid Title VII discrimination claim. Obviously, Williams was talented and articulate. He would have to be. He was, after all, promoted on various occasions and had gained the respect of his superiors and fellow workers. He was elected in 1970 as president of Local Employees Union AFGE Local 1826, and as general counsel of the “Black Employees of the Library of Congress” organization.27 Williams led several personal appeals raising questions about employment practices in the Library. In one extramural appeal, Williams presented a resolution to the American Library Association Council “calling for an inquiry into alleged discrimination in recruitment and promotion at the Library.”28 The inquiry was undertaken over the Library‘s objection, and with the diligent assistance of Williams.29 The record easily supports the view that Williams was a skillful and effective advocate; one whose efforts to combat alleged prejudice might have been described as “militant.”30
We have noted in the preceding section that Williams was a powerful proponent of the rights of black employees at the Library. There is also some evidence to support an inference that Williams’ initiative and participation in the American Library Association Council (“ALA“) inquiry may have embarrassed the Library.31 The district court‘s next step in the chain of inference, however, was something of a post hoc, ergo propter hoc conclusion. The court wrote:
So, as was inevitable, it happened . . . when Williams’ ALA activity was reaching a crescendo, an instructor in the Copyright Division, reflecting about Williams’ awkward responses to some technical legal problems in copyright training sessions, began privately to question Williams’ credentials.32
Simply concluding that “there was evidence that the Library did not always cooperate enthusiastically” in administrative proceedings, the court was impressed with the testimony of “one witness . . . that part of the problem in resolving discrimination complaints relates to the absence of people who are willing and, more importantly, able to stand up for employees who have grievances; Williams was the only really efficient, effective person available.”33 The court found that since Williams’ antidiscrimination pursuits were not entirely unfounded, the “Library . . . had understandable reasons for reacting significantly to Williams’ anti-discrimination activities.”34 Furthermore, the court was persuaded that there was
threat and provocation inherent in Williams’ efforts with respect to Library employment practices. It would have required saintly discipline for these particular Library managers not to be influenced in deciding to terminate him by hostility against his efforts to expose discrimination at the Library.35
Though the court below somehow found that the Library management was “hostile” to Williams’ leadership role,
[t]he Court fully accepts the testimony of the Library officials that they were without prejudice or bias against minorities, in general, or Williams in particular.36
This conclusion, we agree, is easily warranted by noting Williams’ rapid rise through the GS levels at the Library as well as recalling an exception made to the posted qualifications that had opened up a job for him.37 What the record plainly demonstrates is that Williams’ superiors were always favorably impressed with his ability, his poise and articulateness, and that they were convinced of his promise as a continuing Library employee.38 This is what “was,” and this obviously refutes speculation as to discrimination which only “could have been.”
II. ANALYSIS
Williams’ undetected lies induced the Library of Congress to hire him just as the revealed lies later induced the Library to fire him. This is the admitted lawful motive for the discharge. The question in this case, then, is only whether the Library terminated him also in unlawful retaliation for (a) his opposition to alleged discrimination by the Library and (b) his participation in antidiscrimination efforts, both protected activities under Title VII.39 We reverse
A. The McDonnell Douglas Standard
The McDonnell Douglas standard prescribes the sequence of proof which a rejected job-applicant must offer to establish an instance of discrimination in the workplace under Title VII. Likewise, McDonnell Douglas applies in retaliation cases where employers discharge or fail to promote employees who have engaged in activities fighting discrimination.40 The McDonnell Douglas approach directs a Title VII plaintiff to make out a prima facie case of retaliation, thus shifting to the defendant employer the burden of rebuttal. The employer then may demonstrate a legitimate and nonretaliatory reason for discharging or not promoting the plaintiff. Such a reason would dispel the inference of retaliation. Classic examples of legitimate reasons might be the plaintiff employee‘s lack of qualifications or subsequent disqualification, or, the elimination of the job for other business purposes.41 If the employer adduces a lawful reason for his adverse act, the employee may show, in the final step of McDonnell Douglas analysis, that the employer‘s reason is merely a “pretext” covering up unlawful retaliation through the guise of innocent business planning. McDonnell Douglas is thus more like a map of shifting burdens than it is like a substance-laden rule. “Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.”42
In the guidelines for a prima facie case McDonnell Douglas suggested one critical element for evaluating Title VII claims of employment discrimination. That factor is one of adequate qualification for the job on the part of the complaining employee.43 Qualification on the part of the employee, then, would seem to be almost indispensable to a Title VII violation.44 Title VII imports no suggestion that the less qualified shall be favored over the more qualified simply by virtue of their connection with some protected antidiscrimination activity.45 No good reason exists for allowing a nonqualified employee to invoke Title VII to cure deficiencies in his or her qualifications, or to immunize potentially serious defects in the worker‘s job profile. It would be incongru-
The prima facie showing relates qualifications of the particular employee to performance requirements of the particular job. A demonstration of pretext, on the other hand, relates the employer‘s actual treatment of the particular employee with his or her actual treatment of other employees in like situations. This line of inquiry may bring out comparative evidence tending to show that the official employment policy regarding the availability of jobs was just a sham—in other words, that an employer treated one group differently from another and was drawing impermissible race distinctions by granting ad hoc variances to the “policy” which allegedly fixed performance requirements.
If the pretext stage of McDonnell Douglas analysis is reached at all, it is then that the question of mixed causation—i. e., retaliation plus legitimate business purpose—must be pondered. Appellant Librarian has argued that a Title VII violation is made out only if the employee would have retained his job but for any retaliatory motive.46 Appellee Williams, on the other hand, argues that a “hint” of retaliation would suffice to make a showing of pretext and thereby prove a Title VII violation under McDonnell Douglas.47 The cases cited to us by appellee imply, mostly by analogy, that adverse action against employees partially undertaken for lawful purposes and partially undertaken for unlawful retaliatory purposes constitutes a violation of Title VII.48 The law in this circuit, however, is clear. The but for test applies.49
Adapting the language of Day v. Mathews50 to this case, the but for test might be stated as follows: If the plaintiff has made a showing of “pretext,” the defendant employer must then demonstrate by clear and convincing evidence that the plaintiff would have lost his job anyway absent retaliation for the plaintiff‘s participation in protected conduct. This standard is plainly correct, as it not at all precludes a finding of a Title VII violation when an employer acts from mixed motives. The mere presence of a legitimate purpose underlying the discharge will not sterilize unlawful retaliation, where the latter is in fact the dispositive cause. The but for standard simply compares the adversity faced by the plaintiff employee (who had engaged in conduct protected by Title VII) with conditions imposed on similarly situated employees who did not engage in protected conduct.51
B. The Standard Applied
When the facts found by the district court and McDonnell Douglas are juxtaposed, it is plain that no Title VII offense has occurred here. Mr. Williams or any other Library employee, civil rights advocate or otherwise, could simply never be entitled to, nor expect to retain, his or her job after establishing such a formidable record of lying to his employer. Trustworthiness, reliability, veracity, good judgment—these are all material qualifications for any job, including one as a Copyright Examiner,
As noted above in Part A of this section, qualification of the complainant is the pivotal component of the McDonnell Douglas prima facie case. It is clear that from the outset Williams was not qualified for the job which he held. He was not a lawyer; the fact that his work product was respected by his superiors does not remedy the credentials gap. (It is significant that, as a practical matter, the absence of legal training showed up in Williams’ responses to technical inquiries; the absence of credentials meant more than the lack of a piece of paper.) A lawyer is a lawyer—a non-law school graduate, who is not admitted to the bar, may attempt, with some success, to do a lawyer‘s job, but it will only be a deception and a fraud. The analogy to medicine is telling. A quack doctor may be acknowledged as providing some relief to some patients, yet once the lack of license is discovered, the liberty to practice is foreclosed, absolutely.
A second defect in Mr. Williams’ prima facie case can be characterized as disqualification. The lying itself, also from the outset, made him an unfit employee of the Library of Congress, wholly apart from the question of his not being a lawyer or his serving well in assigned tasks. The district court totally failed to appreciate the real-life decisions that an employer must confront.52 How could Mr. Williams have been retained? Could a responsible Librarian of Congress overlook the before, during, and after chain of falsehoods employed by Williams to keep his government job? What would have been the morale of the other employees of the Library, their view of the standards of honesty, probity, good judgment required by (and of) their superiors to hold a position of trust and responsibility at the Library? (In this respect, Mr. Williams’ achieved prominence made it even more difficult for a conscientious administrator to do anything but discharge him.) We must agree with appellant that
since it is a criminal offense to make false statements on federal employment applications and termination of employment is a universally accepted disciplinary action in cases of this sort, it is clear that plaintiff would have been fired notwithstanding any retaliatory motive which may have existed.53
Under all the admitted circumstances, we think it virtually impossible for the Librarian to have acted other than to discharge Williams.
Though not required, it is sensible to double-check at this stage our holding of no prima facie case by considering the pretext question. There are, of course, illuminating interrelations among all of the Title VII considerations. We see that the but for test is easily satisfied in favor of the employer appealing to this court. The district court made no explicit finding that the Library‘s admittedly legitimate reasons for firing Williams were “pretextual.” The employee‘s falsification, he admits and the district court found, was knowing and willful.54 It was also criminal—a compelling factor in any employee retention decision.55
Not only is there no evidence that the Library was “just waiting” for an opportu
CONCLUSION
We believe that appellee was reasonably and lawfully discharged for his admitted falsifications and demonstrated failure of integrity. Consequently, the judgment below finding a Title VII violation is
Reversed.
BAZELON, Senior Circuit Judge, concurring in the result:
In view of the compelling legitimate reason for the defendant‘s action, the record does not support the finding that retaliation was a “substantial”1 cause of dismissal. I therefore join in the court‘s judgment. I am not prepared, however, to agree with two problematic propositions of law unnecessary to the result.
First, neither precedent nor reason explains why an employee‘s qualifications must be a “critical element” of a discriminatory dismissal claim.2 Contrary to the majority‘s suggestion, the Supreme Court in McDonnell Douglas Corp. v. Green3 did not intend to define the elements of every employment discrimination claim;4 that case involved a refusal to hire. The qualifications issued here, on the other hand, seems to be an arbitrary barrier to consideration of the merits; the plaintiff was fired not because he lacked qualifications, but because he lied about them.
Notes
Our discussion in McDonnell Douglas Corp. v. Green . . . of the means by which a Title VII litigant might make out a prima facie case . . . is not contrary. There we said that a complainant could establish a prima facie case by showing [that he belonged to a racial minority; applied and was qualified for a job for which he was rejected; and, the position remained open]. As we particularly noted, however, this “specification . . . is not necessarily applicable in every respect to differing factual circumstances.” Id. at 802, n.13, 93 S.Ct. at 18, 24 n.13.
427 U.S. at 279 n.6, 96 S.Ct. at 2578 n.6 (emphasis supplied). McDonnell Douglas offered only a “sample pattern of proof,” which was “not . . . an indication of any substantive limitation . . . .” 427 U.S. at 279 n.6, 96 S.Ct. at 2578 n.6.
The majority contends that Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), and Rogers v. McCall, 488 F.Supp. 689, 699 (D.D.C. 1980), support application of McDonnell Douglas to retaliatory dismissal claims, see Maj.Op. at 115-116 & n.40. But in neither case did the court make “qualifications” an element of retaliation; instead, these courts applied the standard found in B. Schlei & P. Grossman, Employment Discrimination Law 436 (1976) (prima facie case includes: (1) protected activity; (2) adverse employment action; (3) causal connection; burden then shifts to employer to show legitimate reason for dismissal). See Gonzalez v. Bolger, 486 F.Supp. 595, 601 (D.D.C.1980).
Outside this case law, no substantial reason is suggested why qualifications must be an element of a retaliatory dismissal claim. The majority‘s concern that a “nonqualified employee [will] invoke Title VII to cure [his] deficiencies,” Maj.Op. at 116, seems to overlook the second stage of proof outlined in McDonnell Douglas. At that stage, the employer can respond to a prima facie retaliation claim by offering a legitimate reason for dismissal, which might include lack of qualifications.