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Position Brief

Prepare position briefs on behalf of plaintiffs and defense in the case assigned you.

This does not require a lot of writing I don't believe each brief needs to be more then three hundred words. Please Help, I mainly need direction and a starting off point along with one citation for each. plaintiff and defense section. If possible use statistical data, such as hypothesis testing. The following is details of the what I need to incorporate.

When you prepare your position brief, you want to write a position paper that will include some but not all of the items normally included in legal position papers.

The cases have not been decided yet (in our court simulations), so you do not want to write the court ruling, but you can cite legal precedents if you think it helps the case you are presenting.
Most cases do not contain statistical arguments, but here we definitely want it.

So you want:

Facts of the case, issues of the case, evidence in favor of the case you are presenting (plaintiffs or defense), citation to support (or dispute) previous judgment(s), statistical evidence.

Scenario(s) III

PAULETTE DENDY, et al., Plaintiffs, v. WASHINGTON HOSPITAL CENTER, et al., Defendants
Civil Action No. 77-333
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
1977 U.S. Dist. LEXIS 15827; 14 Fair Empl. Prac. Cas. (BNA) 1773 431 F. Supp. 873;
May 18, 1977
COUNSEL: [**1]
For the plaintiffs, Anne Pilsbury, Washington, District of Columbia, June D. W. Kalijarvi, Washington, District of Columbia.
For the Defendants, Peter W. Tredick and William T. Torgerson, Hogan & Hartson, Washington, District of Columbia.
John J. Sirica, District Judge.

[*874] MEMORANDUM OPINION
Under a policy instituted in 1975, defendant Washington Hospital Center (WHC) began requiring employees in its Respiratory Therapy Department to pass a standardized examination administered by the National Board of Respiratory Therapy (NBRT) as a condition for keeping their positions as respiratory therapists, receiving promotions and preferential work assignments. According to the policy, if a respiratory therapist fails the examination once, no adverse action is taken. But if a therapist fails the exam twice, the WHC demotes the employee to the position of respiratory technician or, if no such position is available, the employee is discharged. This yet uncertified n1 class action was brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1970), and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1970), for damages and an [**2] injunction preventing the WHC from continuing to use the NBRT examination as a condition of employment. The matter is presently before the Court having come on for hearing on plaintiffs' motion for a preliminary injunction.
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n1 The question of class certification raises a number of substantial legal questions. After research and, if necessary, hearing, the Court will resolve the issue in a separate memorandum.
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The examination being challenged is prepared and administered by the NBRT, a body composed of respiratory therapists and physicians practicing in the field of respiratory care. It is given biannually and consists of both a written and an oral component. The written portion of the test consists of 200 multiple-choice questions covering a broad range of subjects dealing with medical science, respiratory therapy equipment and clinical procedures. Upon successful completion of the NBRT examination, a therapist qualifies as being "registered" and receives a credential attesting to success on the test. [**3]
Each of the plaintiffs was at one point employed full-time by the WHC in the position of respiratory therapist. Under the [*875] policy instituted by the WHC in
1975, each was required to sit for the NBRT examination. Plaintiff Dendy twice failed the exam and was demoted to the position of respiratory technician. In spite of the fact that she overturned her demotion through union grievance procedures, Dendy subsequently left the WHC to obtain comparable employment elsewhere.

Plaintiff Johnson was also demoted from respiratory therapist to respiratory technician as a consequence of failing the NBRT examination on two occasions. Unlike Dendy, however, Johnson remains employed by the WHC as a technician. Plaintiff Jones was hired by the WHC as a respiratory technician and subsequently gained promotion to the post of therapist despite the fact that she had earlier failed the NBRT test while employed elsewhere. When required by the WHC to sit for the 1976 NBRT exam or face termination, she resigned her position to accept comparable work in the respiratory care department of another hospital.

Each of the plaintiffs is black. The theory underlying their application for preliminary [**4] relief is that use of the NBRT examination violates Title VII in that the test results have impacted disproportionately on black WHC employees. In plaintiffs' view, this disproportionate impact, when considered together with the nature of plaintiffs' present injuries, the comparative hardships on the parties should a preliminary injunction issue, and considerations of the public interest, furnishes an adequate basis for enjoining use of the NBRT examination pending final disposition of the case on its merits. Virginia Petroleum jobbers Association v. F.P.C., 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (1958).

The governing principles of law are straight-forward. "The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). To meet this threshold burden, the complainant need only show the discriminatory effect of the challenged employment practice, including "practices that are fair in form, but discriminatory in operation." Griggs v. Duke Power, 401 U.S. 424, 431, 28 L. Ed. 2d 158, 91 S. Ct. [**5] 849 (1971). Statistical evidence standing alone affords an accepted basis for demonstrating discriminatory effect., Davis v. Washington168 U.S. App. D.C. 42, 512 F.2d 956, 958-59 (1975) rev'd, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976. Once a prima facie case of discrimination is presented, the burden shifts to the defendant to show that the discriminatory practice "[bears] a demonstrable relationship to successful performance of the jobs" for which it is used., Griggs supra 401 U.S. at 431; , Davis supra 512 F.2d at 959.

In an effort to demonstrate the discriminatory effect of the NBRT test requirement, plaintiffs point to statistics canvassing the race of WHC employees who have, as required, taken the NBRT examination and their comparative success on it. These statistics indicate that during the period 1961 through 1975 n2 some 35 employees sat for the test, 26 of whom were white, while the remaining 9 were black. These statistics further indicate that all 26 of the white employees who took the exam passed it, while only 4 of the 9 black employees did so. On the basis of these comparative [**6] results, plaintiffs bottom their contention that a prima facie showing of discriminatory effect is evident. This Court, however, disagrees.

In the context of Title VII suits, the phrases "prima facie case" and "discriminatory effect" are terms of art without specific meaning. Lacking any pretense of scientific [*876] exactness, they merely serve as guideposts to assist in singling out employment practices [**7] for which it is appropriate to ask employers to offer justifications. The precise point at which statistical data casts sufficient suspicion on an employment practice to require explanation by the employer is not fixed by any rule of thumb. It will vary depending on the facts and circumstances of each particular case. In all instances, however, the statistical evidence offered to show prima facie discriminatory effect must be persuasive. This is particularly so where, as here, statistics are advanced to support the granting of extraordinary relief in the form of a preliminary injunction. This is also the case where, as here, the employment practice being challenged is related to the delivery of critical medical care to gravely ill patients.

To be persuasive, statistical evidence must rest on data large enough to mirror the reality of the employment situation. If, on the one hand, the courts were to
ignore broadly based statistical data, that would be manifestly unfair to Title VII complainants. But if, on the other hand, the courts were to rely heavily on statistics drawn from narrow samples, that would inevitably upset legitimate employment practices for reasons of appearance [**8] rather than substance. The courts must be astute to safeguard both of these conflicting interests.

In the instant matter, the Court is convinced that the data offered by plaintiffs represents too slender a reed on which to rest the weighty remedy of preliminary relief. To begin with, the entire sample on which plaintiffs base their prima facie showing consists of a total of 35 employees. With so meager a sample, if just a handful of test results had turned out differently, the comparative percentages of black (44%) and white (100%) success on the exam would have been correspondingly, and substantially, different. In the Court's estimation, "Such small numbers are insufficient to support any conclusion as to whether the rule has a discriminatory effect." Robinson supra, 514 F.2d at 1273.

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n3 Nothing presently before the Court indicates whether or not national NBRT test results are compiled according to the race of persons who take the exam. Buteven if these results do not directly reflect test success along racial lines, it may well be that test success by race can be reliably approximated by sampling test results from hospital facilities whose employees are predominantly white and predominantly black.
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In rejecting as insufficient the statistical [**10] evidence presented by plaintiffs in support of their application for preliminary relief, no view whatsoever is expressed concerning the adequacy of these statistics to support an ultimate finding of discriminatory effect when the case is later resolved on the merits. If, as was pointed out during the hearing in this matter, discovery produces supplemental data n4 that buttresses the evidence already presented, the Court will give this data whatever consideration it deserves. For present purposes, however, the Court finds that the evidence now before it does not warrant the conclusion that plaintiffs will likely succeed on the merits. Accordingly, plaintiffs' motion for preliminary relief must be denied.
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n4 In addition to national data cataloging success on the NBRT examination, see note 3 supra, discovery will likely produce test results indicating the success of WHC employees on the 1976 and 1977 NBRT examinations.
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It is so ordered.
John J. Sirica / United States District Judge
Douglas v. Hampton

Use as case precedence:

Statistical Evidence of Discrimination - The legal precedence

Background: In Griggs v. Duke Power Company (1971), the Supreme Court established the idea of "disparate impact". Disparate impact occurs, for example, when the pass rate of one group on an employment test is substantially less than that of another. Such an employment test is illegal unless the employer can prove that the use of the test is a business necessity (Zabell, 1989). The Supreme Court, Mr. Chief Justice Burger, held that employer was prohibited by provisions of Act pertaining to employment opportunities from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs, where neither standard was shown to be significantly related to successful job performance, both requirements operated to disqualify blacks at a substantially higher rate than white applicants, and jobs in question formerly had been filled only by white employees as part of a long-standing practice of giving preference to whites (Supreme Court of the United States, 1971). This has established the "disparate impact" concept that was examined in several court cases in following years and has lead to many EEOC rules and procedures. With the statistical knowledge we have acquired, we now have a way of quantifying such illusive terms and criteria as "substantially less".

We will use one of two court cases as scenario(s) III. Research the precedence (e.g., representation of legal or statistical counsels to a side, arbitration). Prepare two briefs for the case it is assigned (plaintiff and defense). Complete court briefings for cases will be posted separately. Assigned cases went all the way to the United States Supreme Court.

We are taking on two positions of the plaintiff and the defense, basically arguing why we feel the way we do backing it up with evidence. Both should be in legal format. It's important to use precedence that has statistical data.

Solution Preview

Plaintiff:
Facts of the case:
The Washington Hospital Center (WHC) from 1975 started requiring of its employees in its Respiratory Therapy Department to pass a standardized examination administered by the National Board of Respiratory Therapy (NBRT) as a condition for keeping their positions as respiratory therapists. Any respiratory therapist that fails the exam twice is demoted to the poison of respiratory technician or the employee is discharged. One of the plaintiffs Dendy twice failed the exam and was demoted to the position of respiratory technician. Subsequently, she left the company. Similarly, plaintiff Johnson was also demoted from the position of the respiratory therapist to the post of respiratory technician and plaintiff Jones who had failed the NBRT exam earlier on left the Washington Hospital Center (WHC), when she was required to sit the said exam. Each of these employees was a black and when statistics are examined for the period between 1961 and 1976, 35 employees of Washington Hospital Center (WHC) took the exam, 26 were whites and each of them passed the exam on the other hand 9 blacks took the exam and only 4 of the 9 passed the exam. It is alleged that the examination is discriminatory and plaintiffs be given special relief by way of an injunction.
Issues of the case:
If the requirement for the employees of Washington Hospital Center (WHC) is discriminatory in nature;
If the statistics ...

Solution Summary

This explanation provides you a comprehensive argument relating to Position Brief

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