EVELYN JORDAN, PETITIONER V. DONALD P. HODEL, SECRETARY OF INTERIOR

   No. 88-673

   In the Supreme Court of the United States

   October Term, 1988

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

   Memorandum For The Respondent In Opposition

   Petitioner claims that (1) the district court erred in denying her
a jury trial on her Title VII gender discrimination claim;  and (2)
the courts below erred in refusing to shift to the defendant a burden
of proof by clear and convincing evidence, once petitioner established
a prima facie case of gender discrimination.

   1. Petitioner was hired as an administrative assistant at the
United States Fish and Wildlife Service in 1972.  Three years later,
she filed a complaint with the Service claiming that she was the
victim of gender discrimination.  In particular, she alleged that her
immediate supervisor Ronald DeVall suggested that it was necessary for
her to engage in a sexual relationship with him in order for her to
keep her job or obtain a promotion, and that after she refused his
advances he retaliated against her in various ways.  Administrative
proceedings resulted in a finding of no discrimination.  Petitioner
thereafter filed a complaint in district court, alleging that she was
a victim of gender discrimination, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., on several grounds:
 (1) she was sexually harassed at her work place;  (2) she suffered
various adverse personnel actions in retaliation for her decision to
refuse DeVall's advances and to file a claim of gender discrimination;
 and (3) she was actually and constructively discharged.  Pet. App.
20-22.

   The district court denied petitioner's request for a jury trial on
her Title VII claim.  Pet. App. 13-14.  Thereafter, the district court
granted partial summary judgment for the government, ruling that
petitioner had not been discharged for an impermissible reason and
that she was dismissed because she had refused to return to work after
being on administrative leave for more than four years.  App., infra,
1a-3a.  /1/ The court reserved decision on petitioner's other claims.
Following a bench trial, the district court found that petitioner had
not been subjected to a hostile work environment, had not been
subjected to retaliation for filing an administrative complaint, and
had not been constructively discharged.  Id. at 4a-13a.  /2/ As the
district court summarized:  "It is crystal clear that Plaintiff and
her immediate supervisor were not well suited to working with one
another.  The Court finds that it was their personality clash, not any
overt or invidious sexual considerations or retaliation, that was the
ultimate cause of all of the difficulties which bring this matter to
Court." Id. at 9a.

   The court of appeals affirmed.  Pet. App. 18-38.  It upheld the
district court's ruling that petitioner was not the victim of a
hostile or abusive work environment.  Id. at 25-31.  The court also
upheld as not clearly erroneous the district court's finding that
petitioner was not the victim of retaliation for rejecting DeVall's
advances or for filing her Title VII administrative complaint.  Id. at
33-36.

   2.  a. Petitioner claims that she was entitled to a jury trial on
her Title VII claims.  However, "there is no right to trial by jury in
cases arising under Title VII." Lehman v. Nakshian, 453 U.S. 156, 164
(1981);  see Great American Federal Savings & Loan Ass'n v. Novotny,
442 U.S. 366, 375 (1979).  /3/ The ability to recover backpay in a
Title VII suit does not confer on a plaintiff a legal right that
entitles a plaintiff to a jury trial, since "under Title VII, the
availability of backpay is a matter of equitable discretion."
Lorillard v. Pons, 434 U.S. 575, 584 (1978) (emphasis added;  footnote
omitted) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 421
(1975)).  /4/ Accordingly, the district court correctly denied
petitioner's request for a jury trial.

   b. Petitioner also contends (Pet. 9-11) that the lower courts
misallocated the burden of proof in her Title VII retaliation claim.
She argues that once she established a prima facie case that she had
been forced to endure a hostile work environment, the government
should have been required to prove by clear and convincing evidence
that DeVall had no improper motive for taking adverse personnel
actions against her.  /5/

   However, the district court found that petitioner was not forced to
endure a hostile work environment, the court of appeals upheld that
ruling (Pet. App. 30-31), and petitioner does not challenge it in this
Court.  The court of appeals therefore correctly held that the only
action petitioner took that could serve as the basis for a retaliation
claim was her decision to file an administrative complaint.  Id. at
33.  Moreover, the court of appeals also correctly held (id. at 32)
that petitioner's retaliation claim should be judged under the same
allocation of the burdens of production and proof that apply to a
disparate treatment claim.  Jones v. Flagship Int'l, 793 F.2d 714,
724-729 (5th Cir. 1986);  Cohen v. Fred Meyer, Inc., 686 F.2d 793 (9th
Cir. 1982).  And it is firmly settled that the plaintiff bears the
ultimate burden of proof on a disparate treatment claim.  United
States Postal Serv. Bd. of Governers v. Aikens, 460 U.S. 711, 714-716
(1983);  Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
256-257 (1981).  /6/ Thus, because the court of appeals applied the
correct analysis to the district court's findings, the decision below
does not warrant further review.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   DECEMBER 1988

   /1/ The district court's order of October 1, 1985, is not reprinted
in the petition appendix, but is reprinted in an appendix to this
memorandum.

   /2/ The district court's decision of April 29, 1986, is not
reprinted in the petition appendix, but is reprinted in an appendix to
this memorandum.

   /3/ Also, petitioner did not preserve that claim.  Although
petitioner asked for a jury trial in district court (Pet. App. 9-12),
which denied her request (id. at 13-14), and petitioner listed that
claim in her statement of issues on appeal, which was filed more than
a year before her opening brief (id. at 15), petitioner did not
present that claim in her opening or reply briefs on the merits
(Appellant Br. 4, 21-48;  Appellant's Reply Br. 7-25) or in her
petition for rehearing (Pet. App. 39-51).  The court of appeals also
did not address it.  Under these circumstances, petitioner abandoned
her claim in the court of appeals, and this Court should decline to
review it.  See, e.g., Youakim v. Miller, 425 U.S. 231, 234 (1976).

   /4/ Every court of appeals that has addressed this question has
ruled that a plaintiff does not have a right to a jury trial on a
Title VII claim, holding that such claims are equitable, not legal,
even when back pay is sought.  Olin v. Prudential Ins. Co. of America,
798 F.2d 1, 7 (1st Cir. 1986);  Sullivan v. School Bd. of Pinellas
County, 773 F.2d 1182, 1187 (11th Cir. 1985);  Shah v. Mount Zion
Hospital & Medical Center, 642 F.2d 268, 272 (9th Cir. 1981);  United
States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 940 (10th Cir.
1979);  Harmon v. May Broadcasting Co., 583 F.2d 410, 410-411 (8th
Cir. 1978);  Slack v. Havens, 522 F.2d 1091, 1094 (9th Cir. 1975);
EEOC v. Detroit Edison Co., 515 F.2d 301, 308 (6th Cir. 1975), vacated
on other grounds, 431 U.S. 951 (1977);  Robinson v. Lorillard Corp.,
444 F.2d 791, 802 (4th Cir.), cert. dismissed, 404 U.S. 1006 (1971);
Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th
Cir. 1969);  see Williamson v. Handy Button Machine Co., 817 F.2d
1290, 1293 (7th Cir. 1987);  see also Craft v. Metromedia, Inc., 766
F.2d 1205, 1209 n.3(8th Cir. 1985), cert. denied, 475 U.S. 1058
(1986).  Further, during Congress's consideration of the 1972
amendments to Title VII, which extended the Civil Rights Act of 1964
to the federal government, the Senate rejected an amendment that would
have conferred a right to a jury trial in Title VII cases.  Lehman v.
Nakshian, 453 U.S. at 167 n.16.

   /5/ Petitioner did not raise that claim in her opening or reply
briefs in the court of appeals, and that court did not consider it.
In fact, in the petition for rehearing that petitioner filed in the
court of appeals, she stated that a plaintiff bears the ultimate
burden of proof on a Title VII retaliation claim.  Pet. App. 46.
Petitioner therefore cannot raise this claim for the first time in
this Court.

   /6/ Petitioner misstates (Pet. 9-10) the holding in the Ninth
Circuit's decision in Cohen v. Fred Meyer, Inc., supra, by suggesting
that Cohen mandates a shift in the burden of proof in a hostile
environment situation.  Cohen involved a retaliation claim, not a
claim of a hostile work environment, and the court made perfectly
clear that "(t)he ultimate burden of persuading the court that
defendant unlawfully retaliated against her remains at all times with
the plaintiff." 686 F.2d at 796-797.

   APPENDIX