Plaintiff's Post-Trial Proposed Findings of Fact and Conclusions of Law
Public Court Documents
September 10, 1976

57 pages
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Brief Collection, LDF Court Filings. Simmon v Schlesinger Reply Brief, 1975. 3ba8d272-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/110181a7-77a2-43b9-9633-11a23d68a8f9/simmon-v-schlesinger-reply-brief. Accessed August 19, 2025.
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VJ TABLE OF CONTENTS TABLE OF CITATIONS ARGUMENT -------- CONCLUSION ------ APPENDIX I ------ APPENDIX II ----- APPENDIX III ---- Page ii 1 24 1-1 11 - 2 III-3 APPENDIX IV Iv-4 11 TABLE OF CITATIONS Cases Albemarle Paper Co. v. Moody, U.S. , 95 S.Ct. ____, 45 L.Ed. 2d 2 80 ("1975) ~JUT------ Alexander v. Gardner-Denver,Co., 415 U.S. 36 (1974) ------------------------------------- Alpha Portland Cement Co. v. Reese, 507 F.2d 607 (5th Cir. 1975) ----------------------- Barnett v. W. T. Grant Co., 518 F.2d 543 (4th Cir. 1975) --------------------------------- Barrett v. U. S. Civil Service Commission, 10 EPD 1(10,586 (D.D.C. 1975) ----------------- Caro v. Schultz, 521 F.2d 1084 (7th Cir. 1975) - Danner v. Phillips Petroleum, 447 F.2d 159 (5th Cir. 1971) --------------------------------- Dillon v. Bay City Construction Co., 512 F.2d 801 (5th Cir. 1975) ------------------------ Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975) Ellis v. Naval Air Rework Facility, 10 EPD 1(10,422 (N.D. Cal. 1975) ------------------ Gamble v. Birmingham Southern Railroad Co., 514 F.2d 678 (5th Cir. 1975) ------------------ Griggs v. Duke Power Co., 401 U.S. 792 (1972) — Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir 1975) -------------------------------------- Hall v. Wertham Bag Corp., 251 F.Supp. 184 (M.D. Tenn. 1966) ------------- 1___________ Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1975) Jenkins v. United Gas Corp., 400 F .2d 34 (5th Cir. 1968) --------------------------------- Johnson v. Railway Express Agency, 421 U.S. 454 (1975) ------------------------------------- Love v. Pullman, 404 U.S. 522 (1972) ____ ______ McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ------------ ------------------------ McKart v. United States, 395 U.S. 185 (1969) -- McLaughlin v. Callaway, 5th Cir. No. 75-2261 -- McLaughlin v. Callaway, 382 F.Supp. 885 (S.D. Ala. 1974) --------------------------------- MEAN v. NASA, D.D.C. C.A. No. 74-1832 --------- Morton v. Charles County Board of Education, 520 F.2d 871 (4th Cir. 1975) ------------------ Morton v. Mancari, 417 U.S. 535 (1974) -------- Moss v. Lane Co., 471 F.2d 852 (4th Cir. 1973) - Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968) ---------------------------- Parham v. Southwestern Bell Telephone Co., 433 F. 2d 421 (8th Cir. 1970) ------------------ Page 10,21 12 10 16,17,18 4,8,9,13,23 2 6,12 15 2,16,23 7,8,9 20 16 2 ,8,11 14 14 9,10,14 10 12 12,16,18 7 3 3 6 18 2,8 14 9,10 20 TABLE OF CITATIONS (Continued) iii Page Parks v. Dunlap, 517 F.2d 785 (5th Cir. 1975)--- 2,8 Penn v. Schlesinger, 497 F.2d 970 (5th Cir. 1974), cert, pending------------------------------- 10 Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975) ---------------------------------- 14 Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970) --------- 6,10,11 Sperling v. United States, 515 F.2d 465 (3rd Cir. 1975) --------------------------------------- 2 OTHER AUTHORITIES ^ u .d .u . ss^uuue er sea --- --------------------- passim 42 U.S.C. §1981------ -------------------------- ~ 10 5 C.F.R. §713.216 ------------------------------- 11,12,13 5 C.F.R. §713.235 ------------------------------- 4 5 C.F.R. §713.251 ------------------------------- 2,4,14 5 C.F.R. §713.282-------------------------------- 5 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 75-2182 JAMES E. SIMMONS, et al., Appellants, vs. JAMES R. SCHLESINGER, et al., Appellees. On Appeal From The United States District Court For The Eastern District Of Virginia Norfolk Division REPLY BRIEF FOR APPELLANTS In this reply brief, appellants will respond point by point to a number of arguments made by appellees in their brief. Initially, however, we reiterate that the consequence of appellees' positions on the issues of class action, discovery and legal standards for weighing evidence, is that the federal government, the nation's largest employer, will be exempt from judicial scrutiny of classwide, systemic discrimination to which all other employers are subject and which the federal government itself has long advocated with respect to all other employers. This in fact is the government's basic proposition, that the law of employment discrimination developed by the courts in Title VII cases involving private and state and local government employers does not apply to suits against the federal 2 government. However, it has already been held by the Supreme Court that the 1972 amendments to Title VII extending its coverage to federal employment give those public employees the same rights as private employees with respect to substantive law in Morton v. Mancari, 417 U.S. 535, 547 (1974), the District of Columbia * 1 Circuit with respect to both substantive law and remedies in Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975), the Fifth Circuit with respect to Rule 65 preliminary injunctions to federal employees who have not fully exhausted administrative remedies in Parks v. Dunlap, 517 F .2d 785 (5th Cir. 1975) and the District of Columbia, Third and Seventh Circuits on plenary judicial trials in Hackley v. Roudebush 520 F.2d 108 (D. Cir. 1975); Sperling v. United States, 515 F.2d 465 (3d Cir. 1975) and Caro v. Schultz, 521 F.2d 1084 (7th Cir. 1975), respectively. 1. The basic premise of defendants'contention for preclusion of class action treatment is that "5 C.F.R. §713.251 provides the administrative remedy which must be exhausted before a district court plaintiff can maintain a class action," i^ e., Civil Service Commission regulations "provide for the filing of class action complaints at the administrative level," pp. 14, 18. Unfortunately for defendants the Civil Division of the Justice Department has already conceded in the Fifth Circuit that: "As interpreted by the Civil Service Commission, the regulations do not permit filing of a class action administrative complaint. 5 C.F.R. 713.251 is designed to permit third party complaints and not class action complaints. 5 C.F.R. 713.251 is not a substitute for the filing of individual complaints, and plaintiff could not use 5 C.F.R. 713.251 to prosecute his individual claim on behalf of a class. Rather, it is contemplated that groups, (e.g . , civil rights organizations) or other third parties will use 713.251 to prosecute 'general allegations . . . which are unrelated to an individual 3 complaint of discrimination.1" Brief For The Defendants, McLaughlin v. Callaway, Fifth Circuit No. 75-2261, at p. 13. See also pp. 5-6. Relevant portions of the Civil Division brief, which was submitted to the Fifth Circuit in September 1975 (when notice of appeal in the instant case was filed), are attached hereto as App. I. The district court in McLaughlin v. Callaway , 382 F.Supp. 885, 891 (S.D. Ala. 1974), denied a Title VII federal employment class action on the same grounds as the lower court here. On appeal, the Civil Division conceded that the district court had erred in relying on the government's prior arguments concerning the failure _1/ to file a third party complaint. In conceding error, the Civil Division relied on two Civil Service Commission documents put in the McLaughlin record by plaintiff's counsel. Brief for Defendants at 5. These documents were also submitted to the lower court in the instant case as Exhibits A and B to the Memorandum in Support of Plaintiffs' Motion for a Reconsideration of the Order Denying Class Action and for a Motion Requiring the Defendants to Answer Interrogatories. _ V The Civil Division nevertheless argued that denial of the class action was proper, relying on two grounds neither of which helps defendants in the instant case. Thus, the Civil Division argued first that plaintiff was not a proper class representative, a contention which is simply not made here and would, in any event, be premature. Second, the Civil Division argued that a Title VII class action may not be maintained on behalf of individuals who have not exhausted their administrative remedies. This is exactly what the abortive Erlenborn amendment would have achieved. See Brief for Appellants at 44-48. In the instant case, defendants have conceded that such a class action bar "goes far beyond what defendants propound," at 31. 4 See Brief for Appellants at 6-7. For the convenience of the Court, the complete set of exhibits is attached hereto as App. _3/ II. The discussion in appellants' principal brief at 42-44 concerning third-party complaint procedures need not be reiterated. Several additional points, however, should be made. First, the third-party procedure on its face does not permit federal employees, such as plaintiffs, to raise classwide discrimination related to their individual claims; §713.251 applies only to general allega tions "by organizations or other third parties" that are "unrelated _2/ _2/ Exhibit A is a decision of the Appeals Review Board of the Civil Service Commission dated October 18, 1974, in which ARB upheld agency rejection of allegations of classwide racial and sex discrimination under the individual complaint procedure. ("There is no provision in the Civil Service regulations for the processing of general allegations of discrimination within the context of individual complaints of discrimination," p. 2). Exhibit B is a Civil Service Commission memorandum on third-party complaints dated January 27, 1975 which, inter alia, discourages the filing of third-party complaints for the complaints of individuals ("The third-party procedures are not intended as a way of obtaining redress in individual cases without filing complaints personally and agencies should make certain that the third-party procedure is not misused in that manner," at 2). Exhibit A was also relied on by Judge Richey in Barrett v. U.S. Civil Service Commission, 10 E.P.D. 1(10,586, pp. 6447-48 (D.D.C. 1975) in ordering declaratory judgment that the Commission treat classwide discrimination in the context of individual complaints. _3/ In Exhibit C, ARB found discrimination against Jewish employees generally in promotions in a Navy supply department and ordered relief for the individual complainant, but the Civil Service - Commission, in Exhibit D, exercising its authority under 5 C.F.R. §713.235, reopended the case for the purpose of establishing binding policy. The Commission then vacated ARB's decision on the ground that the complaint was not a "valid first-party complaint" since the claim was a general failure to promote Jewish employees since 1965. Exhibit E is an ARB decision upholding the barring of witnesses from testifying on classwide discrimination at an EEO hearing. Exhibit F indicates that the Commission does not in any event recognize the concept of continuing discrimination and Exhibit G that the Commission does not inform complainants of their right to sue from an unsatisfactory resolution of a third-party complaint. 5 to an individual complaint of discrimination." Second, the Civil Service Commission's Appeals Review Board has upheld an agency's refusal to process individual and classwide claims arising out of the same cause of action separately but simultaneously through individual and third-party complaint procedures unless the latter procedures were invoked by an "organization or other third party." (ARB decision dated February 11, 1975) See App-. III. Third, the third-party procedure is not adjudicatory in nature at all: its purpose is simply "to call agency management's attention" to allegedly discriminatory policies; there is no hearing or right to present evidence in any way but only an agency investigation; the investigation "is not expected to cover individual cases in sufficient depth which necessarily would result in findings or decisions with respect to those individuals", and there is no right of appeal to ARB but only a "review" by the Commission offices. See App. II, Exhibit B, and App. IV (Commission F.P.M. letter). Fourth, the Commission does not in any event consider that the third-party allegation procedure gives rise to a right to sue. Thus, 5 C.F.R. §713.282 provides in relevant part: Notice of right - An agency shall notify an employee or applicant of his right to file a civil action, and of the 30-day time limit for filing, in any final action on a complaint under §§713.215, 713.217, 713.220, or § 713.221. In accordance with this provision, the Commission does not notify a third-party complainant of a right to bring a civil action. See, e.g./App. II, Exhibit G. In cases where the third-party complaint has been filed, the government has argued "Such Third Party complaints are administrative matters appealable to the Civil Service Commission, and there is no right to file a civil 6 action thereon." Memorandum in Support of Motion of Defendants To Strike, To Sever, To Dismiss in Part, and To Remand in Part, MEAN v. NASA, D.D.C. C.A. No. 74-1832, at p. 3. In short, contrary to what defendants contend, there is no way to file an _£/ administrative class action complaint. 2. The above is a sufficient response to defendants' contention on exhaustion of remedies for classwide discrimination, p. 14 et seq. Even assuming arguendo that plaintiffs could have filed an administrative class action, the same would be so: First, defendants do not in any way respond to plaintiffs' assertion on Title VII legislative history and Civil Service Commission regulations that defendants were under a duty to search for indications of classwide discrimination no matter what the scope of a discrimination complaint. Brief for Appellants at 28-33. Nor do defendants offer any reason why federal employees suing under Title VII should be treated differently from private employee Title VII litigants in this respect. Danner v. Phillips Petroleum, 447 F.2d 159 (5th Cir. 1971); Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); see also _4/ Indeed, one can well question whether defendants in all candor contend that plaintiffs can file an administrative third party complaint at all. Brief for Appellees states with reference to purported lack of prejudice in denying the class action (see supra): "Moreover, the class may still get any administrative relief to which it may be entitled. §713.251 stands and may be utilized on the class's behalf by; any; organization or other third party." pp. 37-38 (emphasis added). If this means what it says, even defendants do not really believe that plaintiffs had a viable third-party complaint option in the administrative proceedings. 7 cases cited in plaintiffs' principal brief at 33 n. 38. Plaintiffs' class action, of course, cannot be precluded because defendants unreasonably refused to conduct a proper investigation in administrative proceedings. The question of resort to third-party complaint procedures is simply immaterial to the exhaustion question. Second, defendants cite McKart v. United States,-395 U.S. 185, 193- 95 (1969), but do not explain why McKart is relevant to the instant case in which plaintiffs have exhausted their administrative remedies. In McKart, the issue was a complete failure to file any _5/ administrative appeal. What defendants seek is not exhaustion as such, but a technical common law pleading rule impermissible under Title VII. See Brief for Appellants at 38-40. McKart of course was not a Title VII suit. As the district court in Ellis v. Naval Air Rework FAcility put it: "[R]equiring the individual complainants to use the unspecified and complicated third-party allegation procedures of 5 C.F.R. §713.251 would run contra to the legislative aims of the 1972 Amendments to Title VII. One of the purposes behind these amendments was to permit federal employees to litigate claims being lost in the quagmire of administrative remedies requiring exhaustion." 10 EPD at p. 5863. See also 10 EPD, p. 5863 n. 5 and Brief for Appellants at 39 nn. 45 and 46. Third, the overall performance of the Civil Service Commission and federal agencies in handling discrimination complaints has been _5/ McKart was a Selective Service Act prosecution for failure to report for induction in which the trial court ruled that the defense of an exemption could not be raised because of failure to exhaust selective service system administrative remedies. The Supreme Court held exhaustion was not required because of (1) the "severe burden imposed upon the registrant if he is denied judicial review, (2) statutory silence concerning exhaustion, (3) lack of any agency expertise on the question presented, (4) lack of any demon strable showing other than the bare assertion that other registrants will bypass available administrative remedies. 395 U.S. at 197-200. All these factors, among others, are present in the instant case, infra. 8 condemned by Congress (see Morton v. Mancari, 417 U.S. 535, 547 (1974)), the courts, Hackley v. Roudebush, supra, at 135-41; Ellis v. Naval Air Rework Facility, 10 EPD 1110,422 , pp, 5862-63 (N.D.Cal. 1975)), and the United States Commission On Civil Rights in The Federal Civil Rights Enforcement Effort - 1974, Vol. V, To Eliminate Employment Discrimination (July 1975) Indeed, these authorities indicate that defects and lack of expertise led Congress to grant a civil action right to federal employees. Defendants' contentions about the value exhaustion are thus at the very best anomalous. Moreover, plaintiffs' principal brief at 29-30 demonstrates that the specific lack of expertise in perceiving discrimination claims are inherently classwide in nature, in part, led Congress to enact 42 U.S.C. §2000e-16(c), which defendants are now seeking to frustrate under the rubric of class action exhaustion. Court decisions such as Barrett and Ellis of course yic'ct rJl serve -und'er than disserve the administrative process by affording federal employees their legitimate rights under the Federal Rules of Civil Procedure and indicating that agency procedures must be changed. Fourth, the contention concerning the primary and exclusive role of the Civil Service Commission is wrong on its face. Under 42 U.S.C. §2000e-16(c) federal employees can sue 180 days after the filing of an administrative complaint no matter what the state of agency or commission processing. Federal employees can sue after final agency action without appeal to the Commission. See also Parks v. Dunlap, supra, with respect to non-exhaustion for preliminary relief. Defendants make the related and rather novel contention that under 42 U.S.C. §2000e-16(b) "the CSC was given 9 virtually carte blanche to develop adjudicatory machinery that would effectuate the policies of the act," p. 22. Assuming its _jycogency, that the Commission could lawfully deal with classwide discrimination in a bizarre manner or refuse to do so altogether under §2000e-16(b) has nothing to do with the duties of federal courts acting under §2000e-16(c) and Rule 23 to effectively eliminate racial discrimination from federal employment. Barrett v. U.S. Civil Service Commission, supra; Ellis v. Naval Air Rework Facility, supra. Thus, defendants' "exhaustion" contentions are irrelevant and obscure the true question presented by the lower court's preclusion of class action. The issue is not exhaustion, but a wholly unnecessary class action bar. For it is clear that everything defendants contend on exhaustion logically applies to private employee Title VII actions as well. Yet before the 1972 amendments to Title VII, the courts recognized the legitimacy of Title VII class action suits by private employees in circumstances identical to those before the lower court. See Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968); Jenkins v. United Gas Corp., 400 F.2d 34 (5th Cir. 1968); Brief for Appellants at 44-45. Defendants have no response at all to the question why 6/ Defendants^ cite in support a quote from a Senate Report that "The new authority given to the Civil Service Commission in the bill is intended to enable it to reconsider its entire complaint structure and the relationships between the employee, agency and Commission in these cases," p. 14. See also Brief for Appellants at 28-33, for requirements on treating discrimination complaints as classwide allegations. 10 TitJe VII federal employee plaintiffs should be treated any differently in light of the 1372 Amendnents and Abermarle Paper Co. v. Moody, 45 L.Ed.2d 280, 294-95 n. 8 (1975). 3. Defendants discuss at length Penn v. Schlesinger, 497 F.2d 970 (5th Cir. 1974) (en banc), cert. pending, 25-29. Penn was a 42 U.S.C. §1981 action concerning jurisdiction when there had been a complete failure to exhaust administrative remedies at any of 17 federal agencies sued. The Fifth Circuit decided there was no jurisdiction. Whether a class action could be brought was neither in issue nor decided. Defendants simply do not explain why the Fifth Circuit's decision in Penn is more relevant to decision on this issue than the more closely related decisions in Oatis and Jenkins■ Moreover, in Alpha Portland Cement Co. v. Reese 507 F.2d 607 (5th Cir. 1975), decided after Penn, the issue was whether a class action is limited in scope by what was "like or related" to administrative investigation as in Sanchez v. Standard Brands in a Title VII and §1981 private employment suit. The Fifth Circuit squarely held that failure to meet the "like or related" standard simply had no relevance for §1981 class actions. See also, Johnson v. Railway Express Agency, 421 U.S. 454, 459 (1975). The Fifth Circuit added, "Even if we considered it desirable as a matter of policy to erect additional hurdles before a plaintiff bringing a §1981 class action, it is for Congress not the courts to raise them," 507 F.2d at 610-11, n. 5. Penn is thus a thin reed for defendants to rest any argument on. 4. Defendants do not refute that the language of 42 U.S.C §2000e-16 does not require the class action bar and that this is legally decisive. See Brief for Appellants at 36-44. Instead, 11 defendants, at 30-32, contend only that the rejection of the Erlenborn amendment discussed in Brief for Appellants at 44-48 does not apply to federal employees. This overlooks §2000e-16(d) which specifically incorporates §2000e-5(f)(1) from which the Erlenborn amendment was deleted. Defendants' claim that the §2000e- 16(d) "as applicable" language is a caveat runs right into definitive legislative history that "as applicable" means "con cerning private civil actions by aggrieved persons." Brief for Appellants at 48. It should also be noted that defendants point to nothing in the legislative history that indicates that the rejection of the Erlenborn amendment is not probative of Congressional intent with respect to class actions by all employ ees covered by Title VII. Do defendants seriously contend that if the Erlenborn amendment restricting class actions had been enacted or Albermarle Paper Co. v. Moody, supra, decided otherwise, they would not press now for preclusion of class actions by relying on legislative history? 5. Defendants' rebuttal to Hackley v. Roudebush, supra, at 152-53, n. 177, and Judge Wright's analysis of 5 C.F.R. §713.216(a), at 32-35, is patently absurd and, moreover, undercuts their third- party complaint contentions. Brief for Appellants at 28-33. §713.216(a) provides, "The investigation shall include a thorough review of . . . any policies and practices related to the work situation which may constitute, or appear to constitute discrimination even though they haye not been expressly cited by the complainant." Defendants cannot logically both concede that §713.216 stands for what it says, and argue that plaintiffs nevertheless cannot bring a class action under the "like and related standard" of Sanchez v. 12 Standard Brands, supra, and Danner v. Phillips Petroleum, supra. It is simply beside the point whether the agency did or did not actually conduct the prescribed investigation: the rule is that the scope of the class action is that which grows reasonably out of the investigation and §713.216(a) states that the investigation reasonably should encompass "any policies and practices related to the work situation which may constitute, or appear to constitute discrimination." This surely includes what is alleged in the complaint in the instant action. Of course defendants are also wrong that the required investigation was in fact conducted since, for example, plaintiffs' express allegation that the discrimination complained of occurred "when there is a majority of black applicants" was simply ignored. Brief for Appellants at 22, 41-42. 6. Defendants, at 35-36, concede that the administrative complaint form "fails to mention, request or otherwise elicit any classwide claims" and that plaintiffs "were never informed by the NARF of their right to file a class discrimination allegation." Brief for Appellants at 40-42. They take issue only with the "assumption" "that the CSC or the NARF has an affirmative obligation to provide advice on the method for filing class action allegations when complainants never raise such allegations," p. 35. Congress and the Supreme Court have made it clear that enforcement of Title VII is a policy of the highest priority and the Supreme Court u ■ -1/has consistently refused to limit the scope of Title VII lawsuits. _z / See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 45 (1974). _§/ Alexander v. Gardner-Denver Co., supra; McDonnell Douglas Corp. v. Green, 411 U. S~. 792 0-9 737’; Love~v. PUlTmah, 4 0 4 U.S. 522 (1972). 13 Defendants' contention thus runs counter to the entire thrust of legislative and judicial policy in the employment discrimination arena. Defendants misperceive that the appropriate model for administrative procedures is common law pleading. It is silly to contend that the defendant agencies have no "affirmative obligation" to inform completely and not to mislead its employees about their rights and remedies with respect to racial discrimination. This "assumption" should be fairly implicit in 42 U.S.C. §2000e-16(b) which, as defendants have argued, grants the Civil Service Commission power to promulgate regulations to, inter alia, process complaints of racial discrimination. Defendants are estopped from arguing otherwise since the issue is properly not whether there is the obligation but how it is carried out: the federal government does inform its employees of some of their rights in the complaint resolution process and the claim is only that it can refuse to tell them all of their rights. That plaintiffs were represented by a lawyer does not alter what has been said. Indeed, the conclusion of Judge Richey in Barrett v. U.S. Civil Service Commission, supra, that the pertinent Commission regulations are at "the very best . . . confusing and unclear" (emphasis added) and the Civil Division's confession of error in McLaughlin makes clear that the presence of lawyers, even government lawyers, does not remotely suggest that 4 federal employees should be misinformed and misled. In any event, it is the agency, not federal employees, who are obliged by Congressional command and 5 C.F.R. §713.216(a) to conduct classwide investigation in every administrative complaint of discrimination, supra. 14 7. Defendants' further contention, at 37-38, that denial of class action treatment does not prejudice anyone is wrong for the reason stated by Chief Judge Brown in Jenkins v. United Gas Corp., 400 F.2d 34 (5th Cir. 1968), and Judge Gray in Hall v. Werthan Bag Corp. 251 F.Supp. 184, 186 (M.D. Tenn. 1966). Brief for Appellants at 35-36. It would not benefit black employees to obtain relief on individual claims while class discrimination persists at the facility or installation as a whole. Cf. Moss v. Lane Co., 471 F.2d 852 (4th Cir. 1973). This alone is sufficient to distinguish the non-Title VII and non-civil rights case of Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974) (military discharge case). However, what defendants argue for is even more removed: not that plaintiffs can bring another §713.251 complaint but that some hypothetical "organization or other third party" can do so, see supra, p. 6 n. 4. 8. As to the discovery issue, defendants prevailed below that they need not answer plaintiffs' interrogatories. The district court refused to change its ruling although plaintiffs sought reconsideration several times, filed an interlocutory appeal and even sought a subpoena duces tecum. On appeal, defendants adopt a fairly breath-taking confession and avoidance approach: \ hey do not contest that plaintiffs were entitled to answers for the reasons stated in Brief for Appellants at 49-53; instead, they argue only that "all information available" was provided. The 10th Circuit in Rich v. Martin Marietta Corp■, 522 F.2d 333, 345 (10th Cir. 1975), rejected a claim that all defendants’ records had been provided. See Brief for Appellants, at 53. Defendants' contentions on discovery are not only self-serving, belated and inadequate on their face; at 15 no point have the parties tested their validity before the lower court under the Federal Rules of Civil Procedure. It need only be emphasized that the contention is wrong as a matter of law and as _9/ a matter of fact. Even assuming arguendo that the interrogatories were "answered," it should be remembered that they were only the first set to defendants and that failure to answer them or make available information until just before trial precluded further discovery. This problem was exacerbated by the refusal of the district court to grant a continuance of the trial date although the unopposed motion pointed out that additional time was necessary for proper discovery and plaintiffs' counsel had several previously scheduled employment discrimination class actions. Brief for Appellants at 6-7. The lower court's only reason was "The named plaintiffs are entitled to have their cases heard promptly." Cf. Dillon v. Bay City Construction Co., 512 F.2d 801, 804 (5th Cir. 1975) . Defendants also contend that plaintiffs cannot assert both wrongful denial of discovery and rely on defendants' statistical trial exhibits to support named plaintiffs' entitlement to relief, 44-45. The simple response is that defendants put evidence in the record that utterly fails to support their defense but does support a finding of racial discrimination. If plaintiffs had been permitted to conduct discovery, we believe the record would have been even more impressive. However, defendants had a free hand in creating _9/ For example, none of the information sought in the subpoena duces tecum was ever provided plaintiffs. Moreover, plaintiffs' interrogatories were never answered. Instead, defendants provided charts and other information which they determined plaintiffs should have. Even that information was not provided more than three days prior to trial, with some being provided on the day of trial. 16 the statistical record and the record thus created clearly and convincingly demonstrates prima facie racial discrimination and absence of any rebuttal. Further, defendants misperceive plaintiffs' assertion that reversal of the lower court's ruling on the individual claims is required as a matter of law by lack of discovery and the existing record, but that judgment for named plaintiffs is also shown by the record such as it is. Brief for Appellants at 27, 54. At the minimum, reversal and retrial of the individual claims are required; however, the record permits this Court to reverse and enter judgment for named plaintiffs. 9. Turning to the individual claims, defendants contend that whether a prima facie case of discrimination was demonstrated is not relevant because, quoting the lower court, "the evidence presented more than adequately rebuts any inference of discrimination, 47. Unfortunately for defendants, the law is precisely the opposite. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971); McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1972); Barnett v. W • T. Grant Co., 518 F.2d 543 (4th Cir. 1975); Douglas v. Hampton, supra. Defendants miss the whole point that in Title VII and civil rights cases generally the courts are required as a matter of law to analyze whether plaintiffs made out a prima facie case of discrimination and, if so then whether defendants' evidence is sufficient to rebut plaintiffs' prima facie case. The latter inquiry cannot be conducted in a vacuum; it turns on the character and strength of the particular prima facie case. For this reason, the district court's legal analysis of the evidence was flawed from its inception. 17 Brief for Appellants at 14-17 and 60-66 discusses the record of prima facie racial discrimination based on past discriminatio and continuing across-the-board statistical patterns of inequality. Defendants in no way challenge the validity or accuracy of this evidence. Aside from the bare assertion that the lower court "is presumed to be familiar with the context in which the case arose," 46, defendants do not offer any support for the lower court's conclusion that statistics "do not relate the true picture of the promotional practices and policies of the NARF." App. 120. The only statistical evidence defendants offer at 53 merely demonstrates a 10/ small part of by plaintiffs introduced by Action Plans. the racial disparities. The statistics marshalled are of course immune from challenge since they were defendants. The same is true for NARF EEO Affirmative As to testimony of past discrimination, Captain Shine 10/ First, the statistics show that while the percentage of black employees at the GS-5 and GS-7 levels in the 50000 department has increased from 1971 through 1973, the majority are still at the lower level GS-5. Because the administrative complaint was filed in 1973, the 1974 statistics are irrelevant. See infra. Defendants fail to mention that during this entire period, there has never been more than one black GS-9, and no blacks at higher levels. With 70 GS-9 or higher level white employees in the 50000 department, the presence of one black GS-9 can hardly be said to indicate that "among general schedule (GS)level jobs, in the 50000 department the percentage of minorities has consistently risen since 1971," 53. Second, because defendants have limited their analysis to the GS-5 and GS-7 levels, no mention is made of the fact that Blacks still disproportionately predominate at lower levels. A true picture of black representation at NARF can only be obtained by a consideration of the total picture. Of course, defendants have consistently tried to limit consideration to only the GS-5 and GS-7 levels. An analysis of the district court's opinion indicates that they were successful in that undertaking. However, Title VII law calls for a much broader scrutiny. See, e.g., Barnett v. W._ Th_ Grant Company, supra. Third, the statistics presented Oy defendants clearly reveal the need for complete discovery in this Title VII case; supra. Without showing any "hard" numbers, what jobs are in fact at issue, rate of promotion, time in grade, history of the department, etc., defendants' contention has no basis. 18 corroborated the testimony of named plaintiffs that "when I came to the NARF the production dispatchers were at an absolute dead end as far as promotion goes." App. 189. The scope and breadth 11/ of this prima facie showing alone naturally impose the heaviest burden on defendants to show that any reasons offered for the failure to promote are not pretextual. McDonnell Douglas Co. v. Green, supra, 411 U.S. 804-05. 10. In the instant case of course, the lower court had before it evidence which conclusively demonstrates racially discriminatory employment practices beyond the demonstration of past discrimination and present patterns of discriminatory treatment. Thus, Brief for Appellant at 54-60 discusses (1) discrepancies between the GS-5 and GS-7 Registers, (2) rating panel judgment, discussed infra, in section 11, and (3) administrative investigation, discussed infra, in section 11. In challenging these factors, defendants rely on the same impermissible factors which the lower court utilized, attempt to alter their contentions with respect to certain issues even though the district court relied on the prior inconsistent contentions, and ignore relevant caselaw. 11/ In Barnett v. W. T. Grant Co., this Court held.that as a matter of law a discrepancy in the non-supervisory workforce of only 6% (19% black compared to 25% general population) made out a prima facie case. A fortiori the lower court erred in ignoring the much stronger prima facie case here. Morton v. Charles County Board of Education, 520 F.2d 871 (4th Cir. 1975), is simply not relevant since the decrease in percentage of black employees of the school board was the result of "drastic demographic changes." Defendants here did not present any evidence of this effect; indeed, they introduced evidence supporting the prima facie case. In any event, the district court in Morton carefully analyzed the statistical evidence before it in reaching its decision. In the instant case, there is nothing more than the lower court's undocumented and unsuppor ed conclusion that "statistics do not relate the true picture. 19 Defendants argue that the discrepancies between rankings on the GS-5 and GS-7 registers do not constitute an adverse impact on Blacks. While they recognize that "more blacks than whites went down from the GS-5 to the GS-7 register," 49, they contend that this fact does not support a finding of racial discrimination. First, defendants point out that while Blacks made up only 29% of all qualified applicants on the GS-7 register, 33.3% of the permanent promotions went to Blacks and that thus there could be no discri mination. This gross statistic ignores both the fact that some jobs are better than others and the whole question of when Blacks were promoted. A person's ranking on a register obviously determines 12/ his chances of being promoted to the best job in the shortest time. The fact that Blacks were ultimately promoted does not nullify the discrimination existing if those Blacks were promoted after less 13/ qualified Whites who should have ranked below them. That 33.3% of the promotions went to Blacks is meaningless unless defendants can also show that the percentage would have remained unchanged in the absence of the discrepancies. Because defendants could not make a showing on such factors, and in the face of ranking discrepancies, this Court cannotassume the promotions were unaffected by those 12/ Defendants would have this Court believe that the rankings play little or no part in the selection process. If such were the case, the merit promotion program would be a meaningless scrap of paper and federal employees would truly be at the mercy of arbitrary selection procedrues. Obviously, there is nothing in the record to support defendants' view. 13/Appendix A to Appellees' Brief does not show the order in which promotions were made. Indeed, the dates of those promotions were never before the district court, although requested by plaintiffs. See generally Appellants' Brief at 49-54, and supra, at section 8. 20 discrepancies. Second, defendants contend that named plaintiffs were ultimately selected for promotions to GS-7. These promotions all came after plaintiffs had instituted administrative proceedings with the agency. Brief for Appellants at 64-65. Defendants have not yet cited a single case which qualifies or modifies Parham v. Southwestern Bell Telephone Co. , 433 F,2d 421 , 426 ('8th Cir. 1970); or Gamble v. Birmingham Southern Railroad Co., 514 F.2d 678, 683 (5th Cir. 1975) and cases there cited, that actions taken by an employer after charges are filed "do not affect the determination of 11/whether the employer violated Title VII." Parham, supra, at 426. Third, defendants contend that the district court did not commit reversible error in considering whether specific individuals intended to discriminate against the plaintiffs. Specifically, defendants state that "discrimination can still be shown through such evidence or discrimination's absence demonstrated by the lack of such evidence," 48, n. 13 (emphasis added). No authority is cited for the contention that the absence of discrimination can be shown through an absence of discriminatory intent. Moreover, Congress specifically criticized the Civil Service Commission for assuming that "employment discrimination in the Federal Government is solely a matter of malicious intent on the part of individuals." See Brief for Appellant at 29-30 and 68. Surely Congress did not intend for federal courts 14/ Instead, defendants ask this Court to require named plaintiffs to carry the burden that their promotions were awarded as a direct result of the charge of discrimination. In order to show "a conspiracy on the part of all officials," 51, named plaintiffs would have to elicit confessions from those parties charged with discrimination. The long and strenuous history of Title VII unques tionably shows that such confessions are never forthcoming, and no court has ever required as much. 21 to do that which it specifically forbade the Civil Service Commission to do. Rather, federal courts must apply the principle most recently expressed in Albermarle Paper Co. v. Moody, supra: "Title VII is not concerned with the employer's 'good intent or absence of discriminatory intent' for "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.'" 45 L.Ed 2d at 299 (citations omitted, emphasis by the Court); see generally Appellants' Brief at 66-68. The district court's reliance upon the intent of defendants and others (App. 106-110), clearly in itself constitutes reversible error. Finally, defendants argue that plaintiffs failed to prove racial discrimination because "no plaintiff suffered an ultimate adverse effect," 52. This contention is based on the fact that plaintiffs were ultimately promoted to GS-7. While this contention has been dealt with above, a further comment is appropriate. Defendants completely ignore the fact that promotion to each step in the federal career ladder is dependent upon time- in-grade at the next lower level. See Brief for Appellants at 18, and General Schedules Handbook X-118, App. 189-90, 331. Thus, Blacks who are delayed ‘in their advancement to GS-7 will likewise be delayed in advancing to GS-9 and.'higher. The statistics with regard to black representation at high-level GS positions, Brief for Appellants at 14-17, are fully consistent. Were employers allowed to escape liability under Title VII by "ultimately" promoting Blacks to higher levels, black employees would never achieve parity with Whites. Employers would always be able to promote white employees ahead of Blacks, regardless of qualifications, so long as those Blacks are "ultimately" promoted. Such a proposition is unthinkable and entirely repugnant to Title VII. 22 11. Defendants argued and the lower court found, that "the judgment and discretion of the members of the rating panel 15/ is a factor in rating." App. 110. Before this Court, however, defendants con-tend that judgment was not as decisive as they had led the district court to believe. Stating that "[a]11 standards applied by humans are to a degree subjective," 55, defendants attempt to show that the actions of the rating panel were governed 16/ by objective guidelines. Defendants cannot have it both ways; having successfully argued that judgment was the key factor in the discrepancies on the registers, they cannot be heard to say now that it played only an insignificant role. The change of their position before this Court can only be interpreted as an admission on their part that their previous position, accepted by the district court, is untenable and should be reversed. Moreover, the claim of objective standards cannot be meant seriously since, as we point out infra, the registers were terminated as a result of the administrative investigation. See section 12. The fact that such subjective standards appear in 15/ Indeed, defendants in their post-trial brief to the district court stated: "Accordingly, the result of the four plaintiffs [sic] being placed out of the range for promotion to the first twelve vacant GS-7 positions on the (AF & AFE) register was due to j udgmental factors." Defendants' Post Trial Brief, p. 30 (emphasis added); see Brief for Appellants at 56-59. 16/It should be noted that the second investigator found these "objective" guidelines to be invalid (App. 770). 23 federal regulations provides no immunity. See, e.g., Douglas v. Hampton, supra; Barrett v. U.S. Civil Service Commission, supra. Defendants state that even if the finding that the administrative investigation did not constitute racial discrimination is not supported by the evidence, "the finding would be a harmless error since no discrimination has been shown," 56. Since defendants can cite no evidence to support the district court's finding, it is necessary only to respond to defendants' contentions that such a finding was only harmless error. Named plaintiffs argued before the district court, as well as in the principal brief, that the handling of plaintiffs' administrative complaint not only supported other evidence of racial discrimination, but constitutes racial discrimination in and of itself. Brief for Appellants at 59-60. The 1972 amendments to Title VII, for instance, out lav/ racial discrimination in all personnel actions, including the administrative complaint process. This being the case, an unsupported finding on the question by the district court cannot be considered "harmless error" either alone, see Barrett v. U.S . Civil Service Commission, or as part of the greater pattern or practice of discrimination. 12. Finally, defendants contend that the entire prima facie case v/as disproved by rebuttal evidence and rely on the factors cited by the lower court in concluding no prima facie case was made (already shown to be unsupported above); i^ e,, lack of discriminatory intent "ultimate" promotion of named plaintiffs, justification of subjective judgment and nondiscriminatory administrative processing. However, those factors, even asusming arguendo some support in the record, cannot explain discrepancies in the GS-5 and GS-7 rankings 24* m 9 or overall discriminatory patterns. Defendants have never argued that the discrepancies in the GS-5 and GS-7 rankings can be justified. Captain Shine specifically terminated both registers as a result of the investigation, App. 743-44. Defendants essentially do not argue that black employees were not harmed, but only that white and black employees were equally harmed. This, they have never shown. Accordingly, the named plaintiffs are entitled to judgment in their favor. CONCLUSION The issues presented in this appeal are fundamental to the future effectiveness of Title VII as it relates to federal employees. Plaintiffs merely seek the same procedural.and substantive protections which federal courts have consistently accorded to employees in the private sector, and which Congress extended to federal employees in 1972. No reasons exist which serve to justify the federal government's request that it be somehow exempted from the strong national policy of outlawing racial discrimination in employment. Indeed, considering the federal government's long and consistent attempts to obtain Title VII compliance from private employers, such a request cannot be justified. , WHEREFORE, plaintiffs-appellants respectfully urge this Court to: 1. Reverse the lower court's ruling that this action cannot be maintained as a class action and remand the case to the district court for further proceedings, including the allowance of broad discovery under applicable Title VII law;