ALECIA MILLER V. FEDERAL BUREAU OF INVESTIGATION No. 90-7304 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 Third Circuit Brief For The Respondent In Opposition OPINIONS BELOW The opinions of the court of appeals (Pet. App. A1-A2) and the district court (Pet. App. B1-B11) are unreported. JURISDICTION The judgment of the court of appeals was entered on October 15, 1990 (Pet. App. A1-A2). A petition for rehearing was denied on November 20, 1990 (Pet. App. D). The petition for a writ of certiorari was filed on February 14, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the court of appeals properly affirmed the district court's determination that petitioner failed to establish a claim of gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5. STATEMENT 1. This case arises from a class action alleging that the Federal Bureau of Investigation (FBI) had discriminated against women in hiring special agents. In 1981, the Department of Justice Complaint Adjudication Officer found that discrimination had occurred and formulated a remedy. Under the remedial scheme, a class member may apply to the FBI for a position as a special agent, and, if she meets certain standard requirements for that position, is eligible for backpay or appointment as a special agent. One requirement for the position of special agent and for relief under the remedial scheme is the successful completion of a background investigation. Pet. App. B1-B2. Petitioner is a member of the class who applied for a position with the FBI as a special agent. The FBI determined that petitioner was not entitled to either backpay or appointment as a special agent, because she failed the background investigation. The Equal Employment Opportunity Commission affirmed the FBI's determination. Petitioner then filed the present action in the United States District Court for the District of New Jersey, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5. Pet. App. B2-B3. 2. The district court entered summary judgment in favor of the FBI. The court initially ruled that, to prevail on summary judgment, the FBI had to show that petitioner had failed to establish a prima facie case of discrimination or had failed to show that the proffered reason for the FBI's refusal to hire her was a pretext. Pet. App. B4. The district court held that the FBI satisfied this standard, because "overwhelming evidence * * * support(ed) the FBI's claim that (petitioner) was not qualified for the position of special agent." Pet. App. B6. The court observed that "the FBI afforded (petitioner) every opportunity to demonstrate her capabilities and qualifications." Pet. App. B6. After the FBI found petitioner unqualified in an initial interview, it gave petitioner three additional interviews. Each interview was conducted by a separate panel of two or three special agents, and every one of those agents rated petitioner "unacceptable." Id. at B6-B7. During those interviews, petitioner admitted that she had been a prostitute and repeatedly used illegal drugs. Ibid. /1/ Also during the interviews, petitioner described "a bizarre theory of a massive conspiracy against her family and friends." Id. at B7 n.2. /2/ The court concluded from this evidence that "(u)nder no conceivable factual circumstances" could plaintiff show that she was qualified for the position of special agent or that the FBI's explanation for refusing to hire her was a pretext. Id. at B10. 3. The court of appeals affirmed without opinion. Pet. App. A1-A2. ARGUMENT The decision of the court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. Therefore, no further review is warranted. Rule 56 of the Federal Rules of Civil Procedure establishes the standard to be applied on a motion for summary judgment. A party is entitled to summary judgment in its favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party against whom summary judgment is sought "may not rest upon the mere allegations or denials of the adverse party's pleadings," but instead "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Thus, a party against whom summary judgment has been sought "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Id. at 587 (internal quotation omitted). Accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968). As this Court has explained, when "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof," the moving party is "'entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), quoting Anderson, 477 U.S. at 250. See also Lujan v. National Wildlife Fed'n, 110 S. Ct. 3177, 3186 (1990). The courts below properly applied these principles and correctly held that summary judgment was appropriate because petitioner could not establish an essential element of her Title VII claim. To establish a prima facie claim of discrimination under Title VII, petitioner was required to show, inter alia, that she was qualified for a position as a special agent. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 245-246 (1989); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-254 (1981). The courts below correctly determined that petitioner could not make this required showing. Petitioner's admitted involvement in prostitution and illegal drug use and her incredible charges of a government conspiracy showed beyond any reasonable doubt that she lacked the "trustworthiness" and "sound judgment" (Pet. App. B7, B8) required of special agents in order to conduct criminal investigations and intelligence gathering and to have access to highly sensitive and classified materials. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MARLEIGH D. DOVER LORI M. BERANEK Attorneys JUNE 1991 /1/ The court observed that petitioner later attempted to retract her admissions regarding prostitution but that these attempted retractions were not credible. Pet. App. B8-B9. /2/ Petitioner repeated charges of a massive government conspiracy in letters to the court. Pet. App. B9. Petitioner charged, for example, that the FBI stole her mail, tampered with her contact lenses, and created a double to impersonate her. Id. at B9-B10, B10 n.4. She also believed that she had radio transmitters in her teeth that prevented her from catching the supposed conspirators. Id. at B9, B10 n.4.