Swain v. Callaway Brief for Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 75-2002

THEODORE R. SWAIN, et al.,
Appellants,

vs.
HOWARD CALLAWAY, et al.,

Appellees.

On Appeal From The united States District Court 
For The Northern District Of Alabama 

Eastern Division

BRIEF FOR APPELLANTS

U. W. CLEMON
Adams, Baker & demon 
Suite 1600 - 2121 Building 
Birmingham, Alabama 35203

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Appellants



UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 75-2002

THEODORE R. SWAIN, et al.,
Plaint if f s-Appe H a n t s , 

vs.
HOWARD CALLAWAY, as Secretary 
of the United States Department 
of the Army, et al.,

Defendants-Appellees.

CERTIFICATE REQUIRED BY FIFTH 
CIRCUIT LOCAL RULE 13(a)

The undersigned, counsel of record for Plaintiffs- 
Appellants, certifies that the following listed parties 
have an interest in the outcome of this case. The repre­
sentations are made in order that Judges of this Court may 
evaluate possible disqualification or recusal pursuant to 
Local Rule 13 (a).

(a) Theodore R. Swain, Elisha H. Jones, Jr., Otis W. 
Roseman, Ernest L. Keith, all named plaintiffs;

(b) All past, present, and future black employees of 
the Anniston Army Depot in Anniston, Alabama, 
members of the potential plaintiff class;



(c) Howard Callaway, Secretary of the Department of 
the Army, Col. Robert L. Berquist, Commander of 
Anniston Army Depot, and the Anniston Army Depot, 
all named defendants.

BILL LANN LEE 
Attorney of Record for 
Plaintiffs-Appellants



TABLE OF CONTENTS

Statement of
Statement of
Statement of
Argument

Issues Presented 
the Case . . . . 
Facts ........

Introduction ..........................
I. The District Court Erred in Denying Federal

Employees The Opportunity to Prepare Their 
Case and Present Evidence in Plenary 
Judicial Proceedings ...................
A. § 717 of Title VII of The Civil Rights 

Act of 1964, As Amended, 42 U.S.C.
§ 2000e-16, Requires Plenary Judicial 
Proceedings in Civil Actions Brought 
Pursuant to Its Provisions ...........

B. Summary Judgment Pursuant to Rule 56,
Fed. R. Civ. Pro. Was Inappropriate . .

C. § 1 of The Civil Rights Act of 1866, 42
U.S.C. § 1981, Requires Plenary Judicial 
Proceedings in Civil Actions Brought 
Pursuant to Its Provisions .............

II. The District Court Erred in Denying Federal
Employees The Right to Maintain A Class Action 
Pursuant to Rule 23(b)(2), Fed. R. civ. Pro., 
in Behalf of Other Similarly Situated Federal Employees ............................
A. Rule 23(b)(2) Class Actions Are Not Pre­

cluded Or Limited by Title VII and 42 
U.S.C. § 1981 Statutory Language . . . .

B. In 1972 Congress Disclaimed Any Intent to 
Preclude on Title VII and 42 U.S.C. § 1981 
Class Actions by Requiring Exhaustion of 
Administrative Remedies by Class Members

Page
1
2

4

10

13

14

29

33

39

40

45



Page
C. There Is No Way Federal Employees Can 

Effectively Raise Claims of Individual 
And Classwide Employment Discrimination 
for Resolution Under Existing Civil 
Service Commission Regulations ........

Conclusion .
. 53 
. 60

1 1



Table of Authorities

Cases: Page 
. 30Adickes v. Kress & Co., 398 U.S. 144 (1970).

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1973)   10,15,17,19,20,24,28,35, 43
Alpha Portland Cement Co. v. Reese, 507 F.2d 607 

(5th Cir. 1 9 7 5 ) .................................  19,35,36, 51
Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963),

cert, denied, 377 U.S. 972 (1964)............... • • • * 40Baker v. F & F Investment Co., 489 F.2d 829 (7th
Cir. 1 9 7 3 ) .............................. .. • • ; * * * * 24Bane v. Spencer, 393 F.2d 108 (5th Cir. 1968) . . .  32 

Batiste v. Furnco Construction Corp., 503 F.2d 447
(7th Cir. 1 9 7 3 ) ......................■■ • * : • • * * * 15' 7^Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972) . . .  16

Bernhardt v. Polygraphic Co., 350 U.S. 198, 100 L.
Ed. 199, 76 S. Ct. 273 (1956)........ ............ * * * 24Beverly v. Lone Star Lead Construction Corp., 437
F . 2d 1136 (5th Cir. 1 9 7 1 ) ...............: • • ; * * * 10' ^Blaze v. Moon, 440 F.2d 1348 (5th Cir. 1971) . . .

Blue Bell Boots Inc. v. EEOC, 418 F.2d 355 (6th
Cir 1969) ......................................... 42,Boston v. Naval Station, 10 F.E.P. 649 (E.D. Va.
1 9 7 4 ) ......................................... * ........ 15Bowe v. Colgate-Palmolive Co., 416 F.2d 711
(7th Cir. 1 9 6 9 ) ................... ■ • * * *.* * 46'Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974). . 34

Bradley v. Richmond School Bd., 416 U.S. 696 (1974). 20
Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th

Cir. 1 9 7 3 ) ..................................  32, 42, 54, 57
Bush v. Orleans Parish School Board, 308 F.2d 491 

(5th Cir. 1962) modified on rehearing, 308 F.2d 503 . . .  40
Caldwell v. National Brewing Co., 443 F.2d 1044

(5th Cir. 1971) 19, 35, 36, 51
Chemical Workers v. Planters Manufacturing Co., 259

F. Supp. 365 (N.D. Miss. 1 9 6 5 ) ..................... .. • 49Chisolm v. U.S. Postal Service, W.D.N.C.C.A.,No.C-C- 
73-148, decided May 29, 1975 . . . .  15,16,18,34,42,43,47,57 

Choate v. caterpillar Tractor Co., 402 F.2d 357
(7th Cir. 1 9 6 8 ) ................... • * 'Cooper v. Philip Morris, Inc., 464 F.2d 9 (6th
Cir. 1972)

Damico v. California, 389 U.S. 416 (1967) . . • •
Dent v. St. Louis-San Francisco Ry. Co., 406 F.2d

399 (5th Cir. 1 9 6 9 ) ...............* * : 0ADouglas v. Hampton, 8 EPD 119973 (D.C. Cir. 1975) . . 24
Drum v. Ware, 7 EPD f9,244 (W.D.N.C. 1 9 7 4 ) ........  12

. . 22 

15, 19 
. 36

21, 22

iii



Cases : Page
Foster v. U.S. Civil Service Comm., 9 EPD f 9887

(S.D. Tex. 1974) .........................................
Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1 9 7 4 ) ......................................  46

29
47

Glover v. St. Louis-San Francisco Ry. Co., 393 U.S324 (1969)...............................................  19
Graniteville Co. (Sibley Div.) v. EEOC, 438 F.2d

32 (4th Cir. 1 9 7 1 ) .......................   42
Griffin v. U.S. Posta] Service, 7 EPD f 9133,

(M.D. Fla. 1 9 7 3 ) ......................................... 18
Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . 11,43 
Guerra v. Manchester Terminal Corp., 498 F.2d 641 

(5th Cir. 1 9 7 5 ) ........................................... 19
Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 1973).

......................................  14, 15, 17, 29, 32, 33Hall v. Werthan Bag Corp., 251 F. Supp. 184 (M.D.
Tenn. 1 9 6 6 ) ...............................................  42

Harris v. Nelson, 394 U.S. 286 (1969)........ 33
Head v. Timken Roller Bearing Co., 486 F.2d 876 . . 47
Henderson v. DCASA, 370 F. Supp. 180 (S.D.N.Y.

1973) .................................................  15, 18Hill v. American Airlines, Inc., 479 F.2d 1057
(5th Cir. 1 9 7 3 ) ..................................  35, 36, 51

Hunt v. Scheslinger, 9 EPD f 10,024 (W.D. Tenn.1974) 15 
Hutchings v. United States Industries, Inc., 428 F.2d 

303 (5th Cir. 1 9 7 0 ) ......................................  20
Jackson v. U.S. Civil Service Comm., 379 F. Supp.

589 (S.D. Tex. 1 9 7 3 ) .........................  28, 18
Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir.

1 9 6 8 ) ............................ 10, 42, 43, 45, 46, 49, 53
Johnson v. Georgia Highway Express, 417 F.2d 1122

(5th Cir. 1 9 6 9 ) ..................................  11, 34, 42
Johnson v. Railway Express Agency, 43 LW 4623,

decided May 19, 1975 ..................... 19, 20, 35, 36, 51
Johnson v. Seaboard Air Line RR Co., 405 F.2d 645

(4th Cir. 1 9 6 8 ) ........................................... 22
J. I. Case Co. v. Labor Board, 321 U.S. 332 (1944) . 25
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).35,43
King v. Georgia Power Co., 295 F. Supp. 943 (N. D.

Ga. 1 9 6 8 ) ...............................................  23
Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965), cert.

denied, 384 U.S. 929 (1966).........................  44, 45
Laurel v. U.S.A., 5th Cir. No. 74-3746, appeal

p e n d i n g ............................ . .14, 16, 18, 25, 26
Local 104, Sheet Metal Workers v. EEOC, 303 F. Supp.

528 (N.D. Calif. 1 9 6 9 ) ..............................7 . 49
Love v. Pullman, 404 U.S. 522 (1972)............. 42

IV



Cases: Page

Macklin v. Specfcor Freight System, Inc., 478 F.2d
979 (D.C. Cir. 1 9 7 3 ) ....................................  19

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)................................ 15, 17, 23, 32, 42, 43

McLaughlin v. Callaway, 9 EPD ^[10,098 (S.D. Ala.
1 9 7 5 ) ............................................. .. • ■ 12McMullen v. Warner, DDC C.A. No. 1363-73, decided
June 6, 1974 ................................................54

McNeese v. Board of Ed., 373 U.S. 668 (1963) . . .  36
Miller v. International Paper Co., 408 F.2d 285

(5th Cir. 1 9 6 9 ) ............................ ..........  46, 47
Morrow v. Crisler, 479 F.2d 960 (5th Cir. 1973),

aff'd en banc, 491 F.2d 1053 (5th Cir. 19 7 4 ) ........... 11
Morton v. Mancari, 41 L. Ed.2d 290 (1974)........  22
Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968).....................     20Norman v. Missouri Pacific RR Corp., 414 F.2d 73 
(8th Cir. 1 9 6 9 ) ...........................................  19

Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th 
Cir. 1 9 6 8 ) .....................................45' 47' 49' 53

Penn v. Schlesinger, 490 F.2d 700 (5th Cir. 1973), 
rev’d en banc on other grounds, 497 F.2d 970 (5th Cir.1 9 7 4 ) .........................................  16, 34, 36, 37

Petterway v. Veterans Administration Hospital, 495
F. 2d 1223 (5th Cir. 1 9 7 4 ) ............................  16, 34Poller v. Columbia Broadcasting System, 360 U.S. 464
(1972).................................................... 30Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) . . .40, 42

Pulp Sulphite and Paper Mill Workers, Local 186 v. 
Minnesota Mining and Manufacturing Co., 304 F. Supp. 1284 
(N.D. ind. 1 9 6 9 ) .........................................  49

Republic Steel Co. v. Maddox, 379 U.S. 650 (1965) . 24
Reynolds v. Wise, 375 F. Supp. 145 (N.D. Tex. 1974)12,16 
Robinson v. Klassen, 9 EPD 9954 (E.D. Ark. 1974). 34
Ross v. Dyer, 312 F.2d 191 (8th Cir. 1962) . . . .  40
Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th

Cir. 1 9 7 0 ) .......................................• * * * ^Sharp v. Lucky, 252 F.2d 910 (5th Cir. 1958) . . .  44
Smith v. Universal Service, Inc., 454 F.2d 154 (5th

Cir. 1 9 7 2 ) .....................................15, 23' 2®'Sperling v. U.S.A. ____  F.2d ____ , 9 EPD 5 10,100,
decided April 18, 1975 ........... 15, 16, 17, 18.29, 31, 33

Steele v. Louisville & N. R. Co., 323 U.S. 192(1944) 25 
Sylvester v. U.S. Postal Service, S.D. Tex., C.A.

No. 73-H-2201, decided April 23, 1975 . . .16,18,29,42.43.47

v



Cases: Page
Taylor v. Armco Steel Co., 429 F.2d 498 (5th Cir.1 9 7 0 ) .....................................................  19
Tipler v. E.I. duPont deNemours & Co., 443 F.2d 125(6th Cir. 1 9 7 1 ) .............................................
Turnstall v. Brotherhood of Locomotive Firemen, 323 

U.S. 210 (1944)...........................................  25
United States v. Burket, 402 F.2d 426 (5th Cir.1968) 30 
United States v. Diebold, 369 U.S. 654 (1962) . . .  30 
United States v. H. K. Porter Company, 296 F. Supp.

40 (N.D. Ala. 1 9 6 8 ) ...................................... 23
United States v. Jacksonville Tenn. Co., 451 F.2d

418 (5th Cir. 1 9 7 1 ) ....................................... 19
United States v. Mitchell, 327 F. Supp. 476 (N.D.

Ga. 1 9 7 1 ) ................................................... 30
Vaca v. Sipes, 386 U.S. 171 (1967).................  24
Voutsis v. Union Carbide Corp., 452 F.2d 889 (2d Cir. 

1971), cert, denied, 406 U.S. 918 (1972).............15, 19
Westberry v. Gilman Paper Co., 507 F.2d 206 (5th

Cir. 1 9 7 5 ) ................................................. .
Wilko v. Swan, 346 U.S. 427 (1953).................  24
Young v. International Tel. & Tel. Co., 438 F.2d 757 

(3rd Cir. 1 9 7 1 )........................................... 19

Regula tions;
5 C.F.R. § 713.211 et seq............................4, 7, 55
5 C.F.R. § 713.251 ......................................  4
5 C.F.R. §§ 713.261(a) and .262 ( a ) ..................... 27
Rules:
Rule 23(b)(2), Fed. R. Civ.Pro............. 2,12,39,40,42,43
Rule 37, Fed. R. Civ. Pro. ............................3
Rule 56, Fed. R. Civ. Pro................................ 39
Statutes:
5 U.S.C. § 702 et seq.................................... 16
5 U.S.C. § 7 1 5 1 ........................................... 16
42 U.S.C. § 1981 . . 1,2,11,13,16,21,33,34,35,36,37,39,43,45
42 U.S.C. § 1983 ......................................... 44
42 U.S.C. § 2000e-16 . . . 1,2 J. 1,12,14,1506,17,18,29,33,35,39,43,51,52

vi



Other Authorities; Page
Albemarle Paper Co. v. Moody, Supreme Court Nos. 74-389,

428, October Term, 1974, Brief for the United States 
and EEOC as Amicus C uriae..........................46

Proposed Amendments to Rules of Civil Procedure, 39 F.R.D.
69 (1969)........................................... 40

Staff of Subcomm. on Labor of the Senate Comm, on Labor
and Public Welfare, 92d Cong., 2d Sess., Legislative 
History of the Equal Employment Opportunity Act of 
1972 (Comm. Print 1971)............. 47,48,49, 50, 53,54

v n



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 75-2002

THEODORE R. SWAIN, et al.,
Appellants,

vs.
HOWARD CALLAWAY, et al.,

Appellees.

On Appeal From The United States District Court 
For The Northern District Of Alabama 

Eastern Division

BRIEF FOR APPELLANTS

STATEMENT OF ISSUES PRESENTED

In a civil action brought by black federal employees 
pursuant to § 717 of Title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. § 2000e-16, and § 1 of the Civil Rights 
Act of 1866, 42 U.S.C. § 1981, to redress racial discrimination 
in agency employment practices:

1. Whether the district court may deny federal
employees the opportunity to conduct discovery 
and to introduce evidence in plenary judicial 
proceedings?



2. tile district court muy deny federal 
employees the right to maintain a class 
action pursuant to Rule 23(b)(2), Fed. r. civ.
Pro., in behalf of other similarly situated 
black employees?

1/STATEMENT OF THE CASE 
On November 16, 1973, after unsatisfactory agency resolu­

tion of the discrimination charge filed by plaintiff Theodore 
R. Swain with the Anniston Army Depot, this suit for declaratory 
and injunctive relief against racially discriminatory employ­
ment practices at the Depot under § 717 of Title VII, 42 U.S.C.
§ 2000e-16, and 42 U.S.C. § 1981 was brought as a class action 
pursuant to Rule 23(b)(2), Fed. r . civ. Pro. (App. 3-7). The 
complaint states that Mr. Swain, dismissed during the pendency 
of administrative proceedings on his discrimination charge, and 
three present black civilian employees, Elisha H. Jones, Jr.,
Otis w. Roseman, and Ernest L. Keith, charge defendants Howard 
Callaway, Secretary of the Army, Col. Robert L. Berquist, 
Commander at Anniston, and the Anniston Army Depot with discrimi­
nating against blacks in hiring policies, assignment, training, 
promotional and supervisory opportunities, and harassment; 
and with dismissing Mr. Swain solely because of his race and his 
opposition to discrimination. Defendants answered on March 18, 
1974 (App. 8—10). Defendants filed copies of correspondence and

V  Citations are to Appellants' Appendix, hereinafter "App."

2



memoranda dealing with the investigation and a copy of the 
administrative record of the discrimination charge of Mr. Swain 
on April 16, 1974 (App. 11-234).

On August 30, 1974, plaintiffs filed their first interroga­
tories to defendants on general employment policies and practices 
at the Depot (App. 234a-234b). Defendants moved for summary 
judgment for failure to state a claim upon which relief can be 
granted and for failure to exhaust administrative remedies on 
September 27, 1974 (App. 235-237). in support of the first 
ground, defendants submitted no affidavit or other document; 
in support of the exhaustion ground, defendants submitted the 
affidavit of Clarence D. Varner, Anniston Equal Employment 
Opportunity Officer. On October 7, 1974, plaintiffs filed a 
motion to compel answers to interrogatories pursuant to Rule 37, 
Fed. R. civ. Pro. on the grounds that (1) more than 30 days had 
passed without answer and the attorney for defendants had stated 
he was withholding action until the court ruled on his motion 
for summary judgment; and (2) the information requested in the 
interrogatories is necessary for plaintiffs to fully respond 
to defendants' motion for summary judgment (App. 238a-238b).
On October 8, 1974, plaintiffs filed the affidavits of Mr. Swain 
and Mr. Keith in opposition to the motion for summary judgment 
(App. 239-260). Supporting briefs were submitted thereafter.

On January 28, 1975, the district court granted summary 
judgment and dismissed both the individual and class actions 
(App. 261-267). On February 6, 1975, plaintiffs filed a motion

3



to alter or amend (App. 268-369). The order overruling the 
motion to alter or amend was issued by the district court on 
February 11, 1975 (App. 370). Notice of appeal was filed 
April 2, 1975 (App. 371).

STATEMENT OF FACTS
On September 14,1972, named plaintiffs and other black employees, 

through the Division of Legal Information and Community Services 
of the NAACP Legal Defense and Educational Fund, Inc. and the 
Talladega county Branch of the National Association for the 
Advancement of Colored People, filed a third party administra­
tive charge against the Anniston Army Depot, Anniston, Alabama,
alleging across-the-board employment discrimination against

2/black employees as a class (App. 241, 244-247). Unrelated 
to the filing of the discrimination charge, a Department of 
the Army Survey Team on Equal Employment Opportunity on Septem­
ber 22, 1972 issued a report to all employees that found, inter 
alia,

(1) Absence of blacks in non-clerical jobs in CPO 
and in clerical and administrative positions

2/ Present 5 C.F.R. § 713.251, as set forth in Federal Personnel 
Manual Letter No. 713—17 dated November 3, 1972, became effective 
on December 31, 1972. It provides:

Sec. 713.251 Third party allegations of dis­
crimination—  (a) coverage. This section applies 
to general allegations by organizations or other 
third parties of discrimination in personnel 
matters within the agency which are unrelated to 
an individual complaint of discrimination subject 
to §§ 713.211 through 713.222.

(b) Agency Procedure. The organization -or

4



in all directorates, no black supervisors in 
Class Act positions and no black Wage Grade 
supervisors of integrated teams, few black 
employees in Class Act positions with only 3 
above GS-5, and few black female employed;

(2) The credibility of the EEO program greatly 
hampered by the lack of black participation in 
leadership role;

(3) Lack of structured upward mobility program 
resulting in most blacks being denied develop­
mental assignments;

(4) Action must be taken to insure conversion of 
blacks recently hired on a temporary basis to 
permanent employment;

(5) Summer youth employment should be used to assist 
blacks to obtain Civil Service commission eligi­
bility for future employment, especially in 
clerical positions;

2_/ (Continued)
other third party shall state the allegation 
with sufficient specificity so that the agency 
may investigate the allegation. The agency 
may require additional specificity as neces­
sary to proceed with its investigation. The 
agency shall establish a file on each general 
allegation, and this file shall contain copies 
of all material used in making the decision 
on the allegation. The agency shall furnish 
a copy of this file to the party submitting 
the allegation and shall make it available 
to the Commission for review on request. The 
agency shall notify the party submitting the 
allegation of its decision, including any cor­
rective action taken on the general allegations, 
and shall furnish to the Commission on request 
a copy of its decision.

(c) Commission procedures. If the third 
party disagrees with the agency decision, it 
may, within 30 days after receipt of the 
decision, request the commission to review it.
The request shall be in writing and shall set 
forth with particularity the basis for the 
request. When the Commission receives such a 
request, it shall make, or require the agency 
to make, any additional investigations the Commission deems necessary. The Commission shall issue a decision on the allegation ordering such corrective action, with or without back pay, as 
it deems appropriate.

5



(6) Continuing discontent of black employees has 
not resulted in affirmative action to sub­
stantially improve their situation;

(7) Instances of overt and covert discrimination 
and harassment continue on the part of white 
supervisors and employees;

(8) The Commanding Officer should consider with­
drawal of selection authority from supervisors 
and managers who do not make progress in 
increasing numbers of black employees;

(9) De facto segregation continues within several 
organizations regarding employee services and 
facilities; and

(10) EEO counselors need basic orientation and
information on CPO structure and operations, 
formal complaints should be surfaced within 
the EEO complaint system without pressure being 
brought against employees for local resolution, 
employee confidence in EEO counselors is margi­
nal and supervisors should not be appointed to 
counselor positions (Attachment A to Brief For 
Appellants). 3/

By letter dated October 2, 1972, the Anniston EEO Office rejected 
the third party discrimination charge, stating:"Since our review 
procedures have revealed no facts to substantiate the general 
allegations made in your letter, we believe these allegations 
are unfounded" (App. 260). The letter did not state that an 
investigation had been conducted nor did it refer to the report 
of the Department of the Army EEO Survey Team.

Thereupon, the third party discrimination charge was resub­
mitted for reconsideration or fowarding to the Director of EEO 
for the Department of the Army by letter dated November 14, 1972

2J The report of the Department of the Army Survey Team was 
attached as Appendix A to plaintiffs' memorandum in opposition 
to summary judgment.

6



(Attachment B to Brief For Appellants). On December 26, 1972, 
the Depot's EEO Office respon ed to the third party charges 
set forth in both letters by denying any discrimination against 
blacks (App. 248-259). Pursuant to Civil Service Commission 
regulations, the response did not contain any notice of a right 
to sue.

On August 10, 1973, plaintiff Theodore Roosevelt Swain 
filed an individual discrimination charge pursuant to 5 C.F.R. 
713.211 et seg. with the Depot's EEO Office alleging that a 
disciplinary suspension was racially discriminatory and that he 
was continually harassed by supervisors for protesting against 
discriminatory employment practices of the Depot (App. 43-44). 
Mr. Swain had previously sought a resolution from an EEO

4/ The letter averted to, inter alia,
(1) Disparity between percentage of black 

Anniston employees and percentage of black 
labor age population in counties within hiring area;

(2) The fact that fewer than ten black employees 
are among some 1500 employees in GS rating 
positions;

(3) The fact that of more than 600 female employees, 
fewer than ten are black and most of them are 
janitors while no non—black women work as janitors;

(4) The September 22, 1972 report of the Department 
of the Army EEO Survey Team;

(5) The discrimination charges of fifteen named 
black employees; and

(6) Ten steps to break the obvious pattern of 
discrimination.

PfiiS! ^ ter iS ref;rrS  t0 in ?nd f0rms the basis f°r the December 26, 1972 response to the Depot's EEO Office.

7



counselor (App. 41-42). An investigation was conducted by 
an investigator from the United States Army Civilian Appellate 
Review office (hereinafter "USACARO"). Mr. Swain tried to 
raise the issue of general racially discriminatory policies and 
practices at Anniston Army Depot for investigation and resolution, but 
the USACARO investigator refused to consider any such allegations 
(App. 225). The USACARO investigator interviewed Mr. Swain, 
alleged discriminatory supervisors, several witnesses and com­
piled various documents (App. 34-234).

In a letter dated September 11, 1973, Mr. Swain was informed 
by a departmental supervisor of his proposed remand from his 
position no earlier than 30 days after receipt (App. 23-25).
The supporting charges concerned the same events as Mr. Swain's 
EEO complaint. Mr. Swain was not advised that he could have the 
removal reviewed in EEO proceedings. Mr. Swain requested an 
extension of time to reply because he had just secured a lawyer 
and additional time was required to respond to the charges 
(App. 22).

The USACARO investigators' report dated September 21,
1973, recommended that Mr. Swain be informed that his individual 
allegations of discriminatory suspension and continual harass­
ment were not supported (App. 27-33). Mr. Swain in a letter 
to the Depot EEO Offices dated October 4, 1973 stated that 
several statements, including those of two alleged discriminatory 
supervisors, taken by the investigator were "dam lies (sic)"
(App. 15). Mr. Swain also stated, "The Agency maintains and has

8



ingages (sic) conduct causing black employees to suffer 
unequal and inferior terms of employment, that black employees 
do not enjoy on-the-job treatment equal to that enjoyed by non­
black employees such unequal treatment includes, but is not 
limited to, All the way. Anniston Army Dept is a Watergade (sic)."

The Depot EEO Officer in a letter dated October 5, 1973 to 
Mr. Swain confirmed a conversation two days earlier in which 
the EEO Officer stated that Mr. Swain's attorney had contacted 
him about the proposed removal (App. 20-21). The letter states, 
-The letter of proposal to terminate your employment is not a 
part of your EEO complaint. The processing of the proposal to 
terminate you has not been placed in the EEO channels and this 
action is being processed outside the purview of this office." 
Thereafter, Mr. Swain was discharged effective October 19, 1973

(App. 242).
On October 29th, Mr. Swain received notice of proposed 

adverse disposition by the Depot commanding Officer m  a letter 
from the Depot EEO Office (App. 17, 242). On November 21st,
Mr. Swain received notice of final adverse disposition by the 
Department of the Army in a letter from the Depot EEO Office 
(App. 12, 242). The latter notice informed Mr. Swain that he 
could file a civil action in a federal district court within 
30 days of receipt of the letter if dissatisfied with the agency

resolution.

9



ARGUMENT

Introduction
The questions presented for review in this federal employ­

ment discrimination action are not unprecedented in Title VII 
litigation in this court. Whether plaintiffs are entitled to 
a plenary judicial trial after attempted agency resolution 
and whether a class action can be maintained were previously 
raised by defendant employers in the private sector and decided 
in favor of plaintiffs' full access to the judicial process.
See, e.g., Beverly v. Lone Star Lead construction Corp., 437 
F.2d 1136 (5th Cir. 1971); Jenkins v. United Gas Corp., 400 F.2d 
28 (5th Cir. 1968). Then as now the basic issue is to safeguard 
the role Congress intended the courts to play in enforcing 
guarantees against employment discrimination.

" [C]ourts should ever be mindful that congress, in enacting 
Title VII, thought it necessary to provide a judicial forum 
for the ultimate resolution of discriminatory employment claims. 
It is the duty of courts to assure the full availability of this 
forum." Alexander v. Gardner-Denver Co., 415 U.S. 36, 60 n. 21 
(1973). Actions brought to enforce the anti—discrimination 
requirements of Title VII clearly raise different and broader 
issues than ordinary federal employee adverse action or reduction 
in force cases, issues the federal courts are best suited to 
decide. "The objective of Congress in the enactment of Title 
VII . . .  was to achieve equality of employment opportunities 
and remove barriers that have operated in the past to favor an

10



identifiable group of white employees over other employees."
v. nuke Power Cg. ■ 401 U.S. 424. 429-30 (1971). In short, 

plaintiffs assert that federal employees are entitled to no more 
and no less than what employees of a private company, see. lull- - 
Johnson v. Georgia Highway Express^ 417 F.2d 1122 (5th err. ),
or a state or local governmental entity, see, e*g.* * —
crisler, 479 F.2d 960 (5th Clr. 1973), aff'd en banc, 491 F.2d
1053 (5th Cir. 1974), are entitled.

in the instant case, the lower court accepted the govern-
ment's technical and narrow procedural objections to plenary

/ 4_ • -,1 novo) cind cl^ss actions injudicial proceedings (or trial de novo)
suits prosecuted by federal employees pursuant to § 717 of Title 
VII of the Civil Rights Act of 1964. as amended, 42 U.S.C. § 2000e- 
16 and § 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. 
in every such case brought against it nationwide, the government 
has consistently raised identical objections in order to so 
restrict the scope of the action as to mahe it impossible for the 
federal courts to review agency employment policies and grant the 
hind of relief the United states itself has consistently maintained 
should be afforded against private and state or local government 
employers. Acceptance of these contentions by the federal courts 
reduces the federal judiciary to a rubber stamp; their role berng 
merely to review an administrative record compiled by agents of 
the defendant agency concerning what happened to a single employee.
NO broad independent inquiry into or assessment of the challenged 
employment practices would ever be conducted.

When enacted in 1964, Title VII did not extend to federal 
' 5 / The term "trial J ^ L u - l v T ^ r ^ n finaccurate generally, see McDonne g P supra, 415 U.S.
7^2(;775g~9and1 particularly"in t h e ^ n g f i i ^ w h i ^ e r e  was not 
t$en7an94dm?niSt£a*3ve Searing. _ u  _



Eight years later Congress foundagencies and their employees, 
systemic and pervasive unlawful discrimination flourishing in 
the federal service and concluded that the ineffectual, confusing 
and chaotic resolution process administered by the agencies and 
the Civil Service Commission was at fault, infra, at pp.
^7 _ # Despite the pleas and protestations of the civil
Service Commission, Congress in 1972 provided federal employees 
with precisely the same right to a full adversary proceeding in 
federal court as other employees enjoy. Having lost in Congress, 
the government now advances its objections to plenary judicial 
trial and class action seeking precisely what congress sought to 
alter, i.e., a federal service largely insulated from judicial 
scrutiny and immune from effective remedy.

The government's partisan interest in keeping federal 
employment discrimination out of the normal judicial process is 
obvious: Federal employees rarely prevail on the merits or
obtain meaningful relief in agency proceedings, infra, at 
pp. 25 - 26 ; on the other hand, most cases in which employees
are permitted to prepare and put on their case, so the judge has 
more than the administrative record before him, have been in favor 
of the employee. See, e .g ., McLaughlin v. Callaway, 9 EPD 
1(10,098 (S.D. Ala. 1975); Reynolds v. Wise, 375 F. Supp 145 
(N.D. Tex. 1974); Drum v. Ware, 7 EPD 1(9,244 (W.D. N.C. 1974). 
Federal employees cannot effectively raise issues of systemic 
agency discrimination in agency resolution process, infra,at 
pp. 5 3 - 5 9  , whereas Rule 23(b)(2), Fed. R. Civ. Pro.
was expressly created for just that purpose. _

12



THE DISTRICT COURT ERRED IN DENYING 
FEDERAL EMPLOYEES THE OPPORTUNITY TO 
PREPARE THEIR CASE AND PRESENT EVI- 
DENCE IN PLENARY JUDICIAL PROCEEDINGS

The lower court decided the merits of the individual 
claims without permitting plaintiffs to prepare their case by 
discovery or putting on any evidence pursuant to the Federal 
Rules of Civil Procedure. The district court reasoned that 
federal employees are entitled to no more than a truncated 
review of an administrative resolution record, not normal 
judicial process. The district court found no discrimination 
and entered summary judgment as to Mr. Swain's individual claim 
and dismissed the individual claims of the other named plaintiffs 
for failure to exhaust administrative remedies. In so ruling, 
the district court ignored the clear and unmistakable command 
of § 717 as to the claim of Mr. Swain who fulfilled all the 
jurisdictional prerequisites of a Title VII action. Appellants 
also assert that summary judgment as to the claim of Mr. Swain 
was inappropriate. As a third and separate ground of reversal on 
the issue of plenary judicial proceedings,the district court 
acted in derogation of the right of all the named plaintiffs to 
have their claims fully adjudicated under 42 U.S.C. § 1981. The 
right of named plaintiffs and federal employees in general to 
maintain a class action is the subject of Part II of the Argument, 
infra at pp. 39-59.

I.

13



A <3 717 of Title VII Of The Civil Rights<Act Of 1?_64_,
* a s Amended, 42 U.S.C. S 2000e-lb, Requires Pl^ar^  

judicial Proceedings In Civil Actions Brought Pu_r 
suant To Its provisions.
in denying appellants* full judicial processing of claims 

of racial discrimination in employment practices the district 
court ignored clear and unmistakable § 717 statutory language, 
legislative, and statutory purpose and administrative practice. 
§ 717 provides that courts shall accord federal employees the 
rights and privileges of hearing and decision before a court 
of law that other employees suing to vindicate Title VII rights

properly take for granted.
Appellants extensively briefed the plenary judicial trial 

issue below, discussing § 717 statutory language and legislative 
history in their brief in opposition to the motion for summary 
judgment, and administrative practice in their motion to alter 
or amend (App. 268-369). This discussion is substantially similar 
to that set forth in a lengthy Brief For NAACP Legal Defense 
and Educational Fund, Inc., as Amicus Curiae prepared by appellants 
counsel and filed in Laurel v. U.S.A. 5th Cir. No. 74-3746,
»nn^l pending. (Hereinafter, "Laurel amicus, b r i e f * )
(Counsel for the government have been provided copies of this 
brief.) Rather than repeat the argument in its entirety, the 
contents of the Laurel amicus brief are incorporated by reference 
and summarized at various junctures in Part I-A of the Argument.

1. S 717 Statutory Language
The lower court apparently adopts the conclusion of the

district court in Racklev v. Johnson, 360 F. Supp 1247, 1250 
(D.D.C. 1973) that § 717 does not specify the standard of scrutiny

14



(App. 263). It should be noted that neither the opinion of the 
lower court nor of the Hackley court analyzes statutory language.
The statute, however, is clear on its face that a plenary judicial 
proceeding is required.

Appellants adopt the analysis of the statute set forth by
the recent thorough and well-reasoned opinion of the Third Circuit
in Sperling v. U.S.A., ___ F.2d  , 9 EPD ^[10,100, decided April
18, 1975 at pp. 7489-90 and the consistent discussion in the
Laurel amicus brief at pp. 7-14. The key summary points are the
following: First, § 717 by its terms provides that § 706 private
and state or local government employee provisions shall govern
§ 717 actions. Private employees were entitled to a plenary
judicial trial or trial de_ novo after resorting to prior non-judicial
remedies before the enactment of § 717 in 1972 and the Supreme
Court has definitely ruled since in McDonnell Douglas v. Green,

_6_ /

supra, and Alexander v. Gardner-Denver Co., supra. Second,
§ 717 and the incorporated portions of § 706 speak throughout 
exclusively of a "civil action" or "trial" not judicial review of 
an administrative record, as for instance, the Administrative

0 / gee Sperling, supra, 9 EPD at p. 7489 and Laurel amicus brie 
aTf pp. 12-13. in addition, see Chisolm v. U.S. Postal Service, W.D. 
m  r r.A. NTo. C-C-73-148. decided May 29, 197 5 at pp. 10-12; 
Henderson, v. DCASA, 370 F. Supp 180, 184 (S.D. N.Y. 1?73) ; Junt_v.. 
Schlesinger,"9" EPD ^10,024 (W.D. Tenn. 1974) at pp. 7241-42; Boston 
v. Naval Station, 10 FEP 649, 654 (E.D. Va. 1974). Pre-enactment 
law in this circuit was particularly clear that private employees 
are entitled to a plenary judicial trial. Beverly v. Lone Star 
Lead construction Corp., 437 F.2d 1136, 1140-42 £ir. 1971);
Smith v. Universal Service, Inc., 454 F.2d 154, 157 (5th Cir. 1972). 
Tn addition. s'ee"~Voutsis v. Union Carbide Corp., 452 F.2d 889 
(2d Cir 1971), cert denied, 406 U.S. 9l8 (T5/2) ; cooper v. Philija 
Morris. Inc., 46T_F72d"S T5th Cir. 1972); Batiste v. Furnco Con­
struction Corp., 503 F .2d 447 (7th Cir. 1973) (cases involving 
Title VII suits after adverse state agency proceedings with 
hearing).

15



J JProcedure Act, 5 U.S.C. § 702 et seq. Third, only a plenary
judicial trial comports with the statutory right to sue when agency
resolution has not been initiated or incomplete after 180 days
and within 30 days after final action. The as applicable limit
action to § 717*s incorporation of § 706 cannot divest the plaintiff

8 /
of a plenary trial and still vest that court with jurisdiction.
Fourth, except for actions brought after 180 days, permitting only
review of the administrative record would render the statute
meaningless since it "would leave the law concerning the judicial
review of federal agency employment decisions exactly where it was

9/
before a § 717 was enacted."

7 / See Sperlinq, supra, 9 EPD at p. 7489 and Laurel amicus brief 
at pp. 10-11, 13-14. in Sylvester v. U.S. Postal Service, S.D. 
Tex. C.A. No. 73-H-2201, decided April 23, 1975, Judge Bue was of 
the opinion that:

Although the Hackley approach does set forth a 
procedure that has considerable appeal to a heavily 
overburdened judicial system, it is apparent that the 
statute in question does not authorize a federal 
district judge to abdicate his responsibility of 
hearing live testimony and judging the credibility 
of witnesses, nor does it authorize him to rely 
solely on a review of the contents of the administra­
tive agency record. If such a review is to be the 
standard, the statute should so state with specificity.
It does not do so. (PP* 5-6 of slip opinion)

in addition, see Jackson v. U.S. Civil Service Comm., 379 F. Supp. 
592 (S.D. Tex. 1973); Griffin v. U.S. Postal Service, 7 EPD 1(9133,
p. 6752 (M.D. Fla. 1973);' Reynolds v. Wise, 375 F. Supp. 145, 148 
(N.D. Tex. 1974); Chisolm v. U.S. Postal Service, supra, slip 
opinion at p. 11.8/ see Sperling, supra, 9 EPD at pp. 7489-90 and Laurel amicus
brief at pp. 11—12, 9 n. 2. , , ^9/ see Sperling, supra, 9 EPD at p. 7490 and Laurel, amicus brief
at p p . 7-To I inaddition, congress specifically rejected the Civil 
Service commission's argument that a statute was unnecessary since 
federal employees already had the right to a review of the administi 
tive record in enacting § 717, Laurel amicus brief at p. 32. This 
Circuit did not accept the view that black federal employees were 
barred from suing under the APA, 5 U.S.C. § 702 et_se£., see Blaze 
V .  Moon. 440 F .2d 1348, 1349 (5th Cir. 1971) and indicated that 5 u s e « 7151 made racial discrimination by government officials 
ultra vires, see Beale v. Blount, 461 F.2d 1133 (5th Cir.^ 1972) and 
therefore actionable under the APA. Compare Penn v. Schlesinger, 
490 F .2d 700 (5th Cir. 1973), rev'd en banc on other grounds, 497 F. 2d 970 (5th cir. 1974); Petterwayv."Veterans Administration Hospitc 
495 F .2d 1223, 1225 (5th Cir. 1974)1 Moreover, it would be anomaloi

16



The plain language of the statute clearly indicates that 
Congress intended to provide full judicial trials of federal 
employee Title VII claims. In an analogous context, the Supreme 
Court has prohibited courts from reading into Title VII more 
than the precisely specified jurisdictional prerequisites.
McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 798-99;
Alexander v. Gardner-Denver Co., supra, 415 U.S. at 47. In 
Green, the Court declared that, "we will not engraft on the statute a 
requirement which may inhibit the review of claims of employment 
discrimination in the federal courts," and in Alexander, that,
Title VII "vests federal courts with plenary powers to enforce 
the statutory requirements to enforce the statutory requirements, 
in ignoring the clear direction of the statute, the lower court 
violated Title VII.

2.  ̂717 Legislative History
The lower court specifically adopted the discussion of 

legislative history in Hack ley v. Johnson, s_upra (App. 263).
After an extensive independent examination, the Third circuit 
in Sperling v. U.S.A., supra, concluded that "Hackley misreads 
the Act’s legislative history." The legislative history is clear 
that a congress, dissatisfied with the administrative resolution 
process for discrimination complaints and determined to provide 
federal employees with the same rights as private and state or 
local government employees, intended that federal employees be 
accorded the right to full judicial proceedings.

YE theCscope of^review under § 717, a statute specifically designed 
for antidiscrimination employment actions, is less
^ ^ l ^ ^ t ^ ^ - v i t e r a n s  ^ i s S a tion^ospital, su£ra.

17



Legislative history is discussed in Sperling, supra. at pp. 7487-88
7490-92 and in the Laurel amicus brief at pp. 15-32. The key summary
points are as follows: First, in 1972 both House and Senate committees
found progress in eliminating discrimination in the federal service
wanting principally because of structual defects in administrative reso
lution procedures, notably agency control of investigation, ultimate
decision-making, and failure of the Civil Service Commission to police 

10/
the process. Second, both House and Senate committee agreed on the
need for affording federal employees the same civil action rights as
those of private sector employees, with the House committee vesting
administrative jurisdiction in the EEOC but the Senate committee pro-

11/posing that the CSC retain its administrative enforcement duties.
Third, the espousal of trial de_ novo in the Senate committee report is
authoritative, supported by Senator Cranston's corrected remarks, and

12/unrebutted by Senator Williams' statement of his individual views.
3. $ 717 Statutory Purpose and Administrative Practice

By deciding the case on the basis of a review of the 
administrative record alone, the lower court ignored more than 
the face of the statute and legislative history. The decision 
of the district court contravenes a primary purpose of § 717 and
10/ See Sperling, supra, 9 EPD at p. 7487 and Laurel amicus brief 
at pp. 15-21.
11/ See Sperling, supra, 9 EPD at pp. 7487-88 and Laurel amicus 
brief at pp. 22-32.
12/ See Sperling, supra, 9 EPD at pp. 7491-92 and Laurel amicus 
brief at pp. 28-30.

. . .limiting the role of the district court to 
review of the administrative record will not accomplish 
the recognized goal of eliminating the conflict-of- 
interest the Civil Service Commission has experienced 
in policing its own policies. As the court in Hackley 
noted, ' [d]iscrimination is a subtle face.' Hackley 
v. Johnson, supra at 1252. Accordingly, a federal 
employee should be free to present directly to a court 
whatever subtle evidence exists in support of his 
cause. Sylvester v. U.S. Postal Service, supra, slip 
opinion at p. 8.

See also, Chisolm v. U.S. Postal Service, supra, slip opinion at p. 11? 
Jackson v. U.S. CiviT Service Comm., supra; Griffin v. U.S. Postal 
Service"! supra; Henderson v. DSASA, supra.

18



Title VII generally to provide a complete arsenal of weapons to 
eliminate employment discrimination and, as a corollary, an inde­
pendent judicial remedy. Present administrative practice, 
essentially unchanged since 1972, in light of this statutory pur­
pose require plenary judicial proceedings.

STATUTORY PURPOSE
The relationship of private civil actions and non-judicial 

remedies under Title VII was the subject of the Supreme Court's 
decision in Alexander v. Gardner-Denver Co., supra. In Alexander, 
the Court recognized that, "legislative enactments in this area 
[i.e., civil rights] have long evinced a general intent to accord 
parallel or overlapping remedies against discrimination" and that, 
"consistent with this view, Title VII provides for consideration 
of employment discrimination claims in several forums." 415 U.S. 
at 47. See also, Johnson v. Railway Express Agency, 43 LW 4623, 
4625, decided May 19, 1975. The statute basically leaves it up 
to the employee to choose his forum from among several available. 
Courts have applied this principle in a variety of contexts.

13/ State commission on proceedings: See,e.g., Voitsis v. Union Carbide Qorp. 
452 F.2d 889 (2d Cir. 1971), cert denied, 406 U.S. 918 (19^2);
Cooper v. Philip Morris, Inc., 464 F.id 9 (6th Cir. 1972); Batiste^ 
v. Furnco Construction corp., 503 F.2d 447 (7th cir. 1973); 
Collective bargaining proceedings: See, e.g., cases cited in
Alexander v. Gardner-Denver Co., 415 U.S. at 49 n. 11; RLA pro- 
ceedings: See, e.g.. Glover ~. St. Louis-San Francisco Ry. Co.,
393 U.S. 324 (1969); Norman v., Missouri Pacific RR Corp., 4T4 
F.2d 73 (8th Cir. 1969); United States v. Jacksonville Tenn. Co.,
451 F .2d 418 (5th cir. 1971); NLRA proceedings: See, e.g., Guerra
v. Manchester Terminal corp., 498 F.2d 641, 656—59 (5tnCir. 1975), 
Tavlor v'." Armco SteeT~C^rT 429 F.2d 498 (5th Cir. 1970); Tipler v. 
E.I. duPont deNemours & Co., 443 F.2d 125 (6th Cir. 1971);§ 1981 
proceedings: See. e.g.~ o h n s o n  v. Railway Express Agency, su£ra,
Young v. International Tel. & Tel. Co., 438 F.2d 75-7 (3rd Cir.
1971); caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 
1971); Macklin v. 'spector Freight fyi^em7_Inc. 478 F 2d 979 (D.C. 
cir.' 19)'j') . Alpha Portland Cement Co. v . Reese, 507 F.2d 607
(5th Cir. 1975). 19



Title VII remedies is the significance of private civil actions
in the overall Title VII enforcement scheme. Legislative history

14/
reveals that an independent right to sue was created deliberately

15/
and efforts to undermine it voted down during both the 1964 and

16/
1972 enactment debates. The Supreme Court and Courts of 

17/
Appeals, as well, have emphasized the critical role of the 
judiciary in Title VII enforcement. Moreover, the Courts have 
recognized that employees who prosecute Title VII actions assume 
the mantle of the sovereign and sue not only in behalf of them­
selves but as "private attorneys general" to enforce a public

18/
policy of the highest priority.

in its recent decision in Johnson v. Railway Express Agency, 
supra, a unanimous Supreme Court affirmed "the importance of a 
full arsenal of weapons to combat unlawful employment discrimi­
nation in the private as well as the public sector," 43 LW at

A vital corollary of the principle of parallel or overlapping

14/ see, e-a-. citations in Sape & Hart, Title VII Reconsidered: 
The Equal Employment opportunity Act of 1972, 40 Wash. L. Rev.
824, 879-80 (1972).
15/ See, e.g.. citations in Alexander v. Gardner-Denver Co., 
j^fpra, 415 u.S. 36 N. 9; Johnson v. Railway Express Agency, supra, 
43 LW at p. 4625.
16/ Love v. Pullman, 404 U.S. 522 (1972); Alexander v. Gardner-
Denver Co., supra,~415 U.S. at 55-60. Johnson v. Railway Express 
Agency, supra.
17/ see, e.g., Hutchings v. united States industries, Inc., 428 
F .2d 303, TTl (5th Cir. 1970)".
18/ see, e.g., Newman v. Piggie Park Enterprises, 390 U.S. 400 
402 (1968); Alexander v. Gardner-Denver Co., supra, 415 U.S. at
47; Jenkins v. United Gas Cotrp., 400 F.2d 28, 32-33 (5th Cir. 
1968); Bradley v. Richmond School Bd., 416 U.S. 696_ (1974).

20



4628 (Marshall, with Douglas and Brennan, concurring in part
and dissenting in part). The Court addressed the question of
Title VII1s preference for preserving parallel or overlapping
remedies for employment discrimination, specifically, the right
to bring a civil action, even at the cost of deterring or
weakening a potential administrative resolution in terms that

19/leave no room for doubt. This and other circuits have recognized 
that the same applies to independent administrative and litigation 
alternatives under Title VII. See, e.g., Dent v. St. Louis-

19/ Conciliation and persuasion through the 
administrative process, to be sure, often 
constitute a desirable approach to settle­
ment of disputes based on sensitive and 
emotional charges of invidious employment 
discrimination. We recognize, too, that the 
filing of a lawsuit might tend to deter 
efforts at conciliation, that lack of suc­
cess in the legal action could weaken the 
Commission's efforts to induce voluntary 
compliance and that a suit is privately 
oriented and narrow rather than broad in 
application as successful conciliation tends 
to be. But these are the natural effects of 
the choice Congress has made available to 
the claimant by its conferring upon him 
independent administrative and judicial 
remedies. The choice is a valuable one.
Under some circumstances, the administrative 
route may be highly preferred over the 
litigatory; under others, the reverse may 
be true. We are disinclined, in the face of 
congressional emphasis upon the existence 
and independence of the two remedies, to 
infer any positive preference for one over 
the other, without a more definite expression 
in the legislation Congress has enacted, as, 
for example, a proscription of a § 1981 
action while an EEOC claim is pending.
43 LW at pp. 4625-26.

4

- 21 -
i.



San Francisco Ry. Co.. 406 F.2d 399, 400-04 (5th cir. 1969); 
Johnson v. Seaboard Air Line RR Co.. 405 F.2d 645, 648-53 
(4th cir. 1968); Choate v. Caterpillar Tractor COu. 402 F.2d 
357, 361 (7th Cir. 1968). A fortiorari. a district court 
deciding an employment case solely by reviewing the administra­
tive record, merging two separate remedial alternatives, con­
flicts with the fundamental approach of the statute to eliminate 
racial discrimination by providing parallel or overlapping 
independent remedies.

This principle is particularly significant in cases against 
federal agencies. § 717(a) expresses, in terms as absolute as 
language permits, that the aim of the statute is the complete 
elimination of discrimination from federal employment: "All
personnel actions affecting employees or applicants for employ-

• * * shall be made free from any discrimination based on 
£ a£e/ co.1Q£/ religion, sex, or national origin. 11 (emphasis added) 
Legislative history is just as clear that the private civil action 
was created for dissatisfied federal employees precisely because 
of the shortcomings of the administrative resolution process.
Morton v. Mancari, 41 L.Ed 2d 290, 298-99 (1974) and supra 
at pp. 17-18 . Moreover, the private civil action is the only 
court enforcement mechanism available to federal employees; suits 
by the EEOC or the Department of justice are not authorized (indeed 
the Department of Justice must defend such suits). Only through 
such litigation can the courts safeguard the substantive rights 
of employees and, perhaps more importantly, police the administra- 

process. Plaintiff federal employees are not merely "private 
attorneys general, " as are employees in the private sector, they

22



are the only attorneys general.
The Supreme Court and this Circuit have specifically 

warned that prior non-judicial proceedings of Title VII claims 
are necessarily suspect. In McDonnell Douglas Corp. v. Green. 
supra, concerning EEOC finding of no reasonable cause, the 
Court held that, "in view of the large volume of complaints 
before the commission and the nonadversary character of many of 
its proceedings, court actions under Title VII are de novo 
proceedings." (emphasis added) This Circuit in Smith v. Uni­
versal Service. Inc.. supra, has elaborated upon the reasoning
in Green that the record of nonadversary administrative pro-

20/
ceedings is necessarily suspect in the Title VII field.

It is not to be denied that under Title VII, 
the action of the EEOC is not agency action of 
a quasi-judicial nature which determines the rights 
of the parties subject only to the possibility that 
the reviewing courts might conclude that the EEOC's 
actions are arbitrary, capricious or an abuse of 
discretion. Instead, the civil litigation at the 
district court level clearly takes on the character 
of a trial de novo, completely separate from the 
actions of the EEOC. United States v. H. K. Porter 
Company, N.D. Ala. 1968, 296 F. Supp. 40; King v.
Georgia Power Co., supra. It is thus clear that 
the report is in no sense binding on the district 
court and is to be given no more weight than any 
other testimony given at trial.

This is not to say, however, that the report is 
inadmissible. A trial de novo is not to be con­
sidered a trial in a vacuum. To the contrary, the 
district court is obligated to hear evidence of 
whatever nature which tends to throw factual light 
on the controversy and ease its fact-finding burden.

The Commission's decision contains findings of 
fact made from accounts by different witnesses, sub­
jective comment on the credibility of these witnesses, 
and reaches the conclusion that there is reasonable 
cause to believe that a violation of the Civil Rights 
Act has occurred. Certainly these are determinations 
that are to be made by the district court in a de novo 
proceeding. We think, however, that to ignore the man­
power and resources expended on the EECXf investigation 
and the expertise acquired by its field investigators in 
the area of discriminatory employment practices would 
be wasteful and unnecessary. [454 F.2d at 1571]

- 23 -



Moreover, the EEOC, in contrast to the CSC, has been notably 
j_n the forefront in enforcing Title VII employment guarantees 
and its standards often adopted by the courts; if courts are
not bound by the record in EEOC determinations involving private 
employees, then most assuredly courts adjudicating the similar 
claims of federal employees need not. in Alexander v . Gardner- 
penver Co., supra, the Supreme Court reiterated that the validity 
of non-judicial processes for resolving discrimination complaints 
is suspect in the context of a prior arbitral decision of no 
discrimination and listed the relevant criteria.

Moreover, the fact-finding process in 
arbitration usually is not equivalent to 
judicial fact-finding. The record of the 
arbitration proceedings is not as complete; 
the usual rules of evidence do not apply; 
and rights and procedures common to civil 
trials, such as discovery, compulsory process, 
cross-examination, and testimony under oath, 
are often severely limited or unavailable.
See Bernhardt v. polygraphic Co., 350 U.S.
198, 203, 100 L.Ed. 199, 76 S. Ct. 273 (1956);
Wilko v. Swan, 346 U.S. 427, 435-437, 98 L.
Ed. 168, 74 S. Ct. 182 (1953). . . . Indeed,
it is the informality of arbitral procedure 
that enables it to function as an efficient, 
inexpensive, and expeditious means for dis­
pute resolution. This same characteristic, 
however, makes arbitration a less appropriate 
forum for final resolution of Title VII issues 
than the federal courts. 19/

19/ A further concern is the union's exclusive 
control over the manner and extent to which 
an individual grievance is presented. See 
Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842,
87 S. Ct. 903 (1967); Republic Steel Co. v. 
Maddox, 379 U.S. 650, 13 L. Ed. 2d 580, 85 S.
Ct. 614 (1965). in arbitration, as in the 
collective-bargaining process, the interests of 
the individual employee may be subordinated to 
the collective interests of all employees in the

21/ See, e.g ., Douglas v. Hampton, 8 EPD 1(9973 (D.C. Cir. 1975).

24



bargaining unit. See J. I. Case Co. v. Labor 
Board, 321 U.S. 332, 88 L. Ed. 762, 64 S. Ct.
576 (1944). Moreover, harmony of interest 
between the union and the individual employee 
cannot always be presumed, especially where a 
claim of racial discrimination is made. See, 
e.g., Steele v. Louisville & N. R. Co., 323 
U.S. 192, 89 L. Ed. 173, 65 S. Ct. 226 (1944);
Tunstall v. Brotherhood of Locomotive Firemen,
323 U.S. 210, 89 L. Ed. 187, 65 S. Ct. 235 
(1944). 39 L. Ed. 2d at 163-64.

The same defects in the arbitral process are present in
the federal administrative resolution process.
ADMINISTRATIVE PRACTICE

Appellant's analysis of the administrative process was 
before the district court in the Motion To Alter Or Amend 
(App. 268-79) and set forth in the Laurel amicus brief at 
pp. 33-53 with additional materials. The key summary points are 
as follows: First, a comparison of Civil Service Commission
regulations for the resolution of discrimination complaints 
in effect today with those condemned by Congress in 1972 indi­
cates that flaws on the face of the regulations remain. These
flaws involve the inability of investigative, hearing and ultima

22/
agency resolution mechanisms to find facts of discrimination.
Second, statistics prepared by the civil Service Commission
indicate that the prior dismal record of the resolution process,
which federal employees hardly ever prevailed or achieved meanin

23/
ful relief, persists. Third, defects on the face of the

22/ See, Laurel amicus brief at pp. 39-42.
23/ see Motion To Alter Or Amend (App. 276-77)and Laurel amicus 
brief at pp. 42-44.

25



regulations are exacerbated in the administration of the
regulations prescribed by Civil Service commission manuals and 

24/handbooks.
The failings of the resolution process clearly had a 

detrimental impact on the probative value on the administrative 
record in the instant case. The record in question consists 
solely of the USACARO investigative file. The investigation was 
conducted by a Department of the Amry employee. The complainant

p r i42-?IAi n radIi“ on?'noPmitter'ho» S i r ^ l w S Sbrief at pp. ^   ̂ investiaator's or examiner sthe investigation or hearing, agency head or his
disposition is P"1* i t i S e T S d  oh resolution and he is in no way
b™id"?oefonov ?he recomendation. Thus, in FY 1974, complaints
examiners^ecommended a finding of no discrimination in favor 
of the agency in 534 cases of which e recommended
On the other hand, if the 109 cases in g fully 29 or 26.6%
a finding of discrimination g .. Service comm., Performancewere reversed by the agency U-S :^ - v i l ^ e r v i c e ^ ^ ^ ,
By Agency and CSC Complain (undated) . The comparable statisticsComplaint cases During ^ 1 9 7 4  (undatea, £ examiner's
for FY 1973 are reversal in ^ reversal in fully 23 of
recommendations m  favor of a?ainst the agency. U.S. Civil113 or 2 0.3% of recommendations agains Complaints Examiners
Service Comm., Performance By g V During FY 1973 (undated), in EEOC Discrimination Complaint Cases During Attachment c to Brief For Appellants.

AS indicated l»th-gK S | S i  ^£f^ T e ^ i n S t t o n
and T it le ^ V II  au bstan tive^ law ^ iS^t^app lied^^A n ^exam p le^ i^

?rihfch the Board - L ^ i i n g lyeip9la°nStaioS:atlS'
ia°nin?hath direct proof of discrimination is not an essentialelement^of^proof.̂ Th^Commission itself reopened ^nd reversed^

X n i S n t s ! 8 S ? n S ^ f  of cs2. Nove^er 14, 1973, p. 329. 
A t t a c h m e n t  o to Brief For A p p e l l a n t s .

26



Mr. Swain, had no control over what the investigator looked 
into or didn't look into or the scope of the inquiry, supra at 
pp> 8_9. m t . Swain had no right to discovery or compulsory
process and, in any event, was not provided with counsel for 
representation during the investigation. Mr. Swain of course 
did not have any opportunity to cross-examine or otherwise con­
front the supervisors and other witnesses who made statements 
against him during the investigation, even though Mr. Swain's 
complaint concerned retaliatory suspension and harassment in 
which credibility evidence is necessarily critical. Even if there 
were an opportunity to cross-examine witnesses (as m  a hearing 
before a complaints examiner) cross-examination would be a com­
pletely ineffective procedure without prior opportunity for 
discovery, adequate legal representation, and a fair and impartial 
outside examiner. Moreover, the investigative file in question 
was on its face inadequate for adjudication of Mr. Swain's 
individual court claim since the Depot refused to allow any EEO 
investigation of reasons for Mr. Swain's removal, su£ra at
pp 8-9 (App. 20, 25). This was contrary to express Civil

25/
Service Comm. regulation.

25/ 5 C.P.R. §§ 713.261(a) and .262(a) provide:
Sec. 713.261 Freedom from reprisal.—

(a) Complaints, their representatives, and 
witnesses shall be free from restraint, inter­
ference, coercion, discrimination, or reprisal 
at any state in the presentation and processing 
of a complaint, including the counseling stage 
under section 713, or any time thereafter.

Sec. 713.262 Review of allegations of re­
prisal.—  (a) Choice of review procedures.A complainant, his representative, or a witness

27



The administrative record in the instant case is 
not entitled to any more judicial deference than the record 
developed for EEOC conciliation in McDonnell Douglas v. Green, 
supra, or the record developed for arbitration in Alexander 
V. nardner-Denver. supra. The contents of the record developed 
for agency resolution is in fact similar to the contents of 
a conciliation or arbitration record. Unlike a court of lav in 
vhich the record is developed to find the truth and apply legal 
standards for decision, but like that for conciliation or 
arbitration, the administrative resolution record is developed 
for a far different purpose —  an ad hoc informal disposition
wholly separate and independent from judicial proceedings under 
Title VII. Agency resolution and conciliation or arbitration 
is a separate and independent remedy for^employment discrimination 
in no way comparable to a civil action”  The lower court thus

25/ (Continued)
who alleges restraint, interference, coercion 
discrimination, or reprisal in connection 
with the presentation of a complaint under 
this subpart, may, if an employee or applicant, 
have the allegation reviewed as an individual 
complaint of discrimination subject to 
§§ 713.211 through 713.222 . . .

26/ judge Singleton in Jackson v. U .S. Civil Service Comm., su£ra,
has stated that:

Only if a trial de novo is mandatory will the 
federal employee be assured of the congressional 
intent and that is a full, impartial review of 
the case in an adversary context. This decision 
does not mean to imply that the record built upon 
the administrative level is to be disregarded. It 
may be introduced into evidence and considered 
along with the other evidence introduced, just as 
the EEOC findings may be introduced in private 
sector suits. Cf„ Smith v. Universal Services,

28



acted beyond its power in refusing to permit plaintiffs to 
prepare their case through discovery and put on evidence in 
order to develop a proper record for adjudication.

B . Summary judgment pursuant To Rule 56, Fed. R. Civ, 
pro. Was inappropriate.

X70sp0ct to Mr. Sv/sin1 s inc3.ividu.dl cldim of discrimi — 
nation, the lower court granted the government's motion for 
summary judgment, concluding that there is no genuine issue as 
to any material fact and that defendants are entitled to judg­
ment as a matter of law (App. 266). Appellants assert that 
there are genuine issues of material fact whose resolution 
requires full trial and that the district court's standard of 
review is inconsistent with Rule 56, Fed. R. Civ. Pro. Thus, 
the decision of the district court as to Mr. Swain should be 
reversed as a matter of summary judgment law as well as § 717 
law.

The function of summary judgment is to determine whether 
a genuine issue of material fact exists, not to resolve any

26/ (Continued)
454 F .2d 154 (5th Cir. 1972). The plaintiff 
has characterized the trial as one not dupli­
cating the administrative hearing, but as one 
supplementing that hearing, but safeguarded by 
use of the rules of evidence in a true judicial 
setting. This court believes that Congress 
intended no less. 379 F. Supp at 594.

See also, Poster v. U.S. Civil Service Comm., 9 EPD I 9887 (S.D.
Tex 1974) ; Sylvester v. U.S. Postal Service, supra.
27 /  Remand to the agency, an alternative suggested^ the lower
~ u r t  (App 263) and the Hackley court is not provided for by 
tSe atiSE; and would v i o l S t ^ '  purpose of Title VII and 
§ 717 to provide parallel or overlapping remedies^ See, e^-, 
Sperling v. U.S.A., supra, 9 EPD at pp. 7492 93.

29



factual issues. The rule has long been that, "the purpose
of the rule is not to cut litigants off from their right of
trial . . .  if they really have issues to try. Poller— v.
Columbia Broadcasting System, 360 U.S. 464, 468 (1972); United
States v. Burket, 402 F.2d 426, 430 (5th Cir. 1968). In addition,
" [t]he court should be cautious in granting a motion for summary
judgment when resolution of the dispositive issues requires a
determination of state of mind." Westberry v. Gilman Paper Co.,
507 F .2d 206, 210 (5th Cir. 1975); United States v. Mitchell,
327 F. Supp 476, 483 (N.D. Ga. 1971). It is movants who bear
the burden of showing the absence of a genuine issue as to any
material fact and any doubt is resolved against entering summary
judgment. Adickes v. Kress & Co., 398 U.S. 144, 157 (1970);
United States v. Diebold, 369 U.S. 654, 655 (1962).

in support of the motion for summary judgment as to Mr.
Swain's claim, the government relied on the administrative 

28/record onlyT" First, the EEO investigation specifically did
not encompass Mr. Swain’s claim that his removal was racially 

29 /discriminatory”  The investigation dealt exclusively with 
discriminatory disciplinary suspensions and only the letter
of proposed removal (App. 23-25) is contained in the adminis-

30/ . . ^trative record. Ihe averment concerning the discharge set

28/ The motion for summary judgment (App. 235-238) is discussed, 
supra, at p. 3.
29/ The pleadings are in conflict on this issue. compare, 
Complaint f X (App. 5) with. Answer f 7( App. 9)
30/ Supra. at pp. 8-9.

30



Swain filed in opposition toforth in the affidavit of Mr. 
summary judgment (App. 241-243) to the effect that, "So far 
as I am concerned, the actions of the Anniston Army Depot in 
disciplining me on the occasions mentioned and in finally 
discharging me arose out of my efforts to oppose racial dis­
crimination in employment at Anniston Depot, and out of the 
fact that I had participated in the filing of a third party 
complaint against the Agency," thus suffices to raise a genuine 
issue of material fact. Second, the investigative file itself 
is replete with genuine issues of material fact that the USACARO 
investigator recommended resolving against Mr. Swain. Compare, 
for example, statements of Mr. Swain’s supervisors concerning 
the events surrounding the discriminatory disciplinary suspension 
and harassment (App. 137-147) with, Mr. Swain’s conflicting 
statements (App. 133-136). Mr. Swain did specifically characterize 
the statements of these two supervisors as "dam lies,"(App. 15) 
when the investigative report was shown to him, supra, at pp. 8-9 .
Credibility evidence of course is especially significant with 
issues such as retaliation and harassment. What the Third Circuit 
stated in Sperling v. U.S.A., supra, applies to the instant case: 

"We have reviewed the entire record, encompassing six volumes of 
appendix and conclude that summary judgment would be inappropriate 
here because genuine issues of fact exist as to Sperling 
allegations of employment discrimination." 9 EPD at p. 7494. 
Third, there are issues of material fact concerning the Depot’s 
discriminatory general policy or practices. The affidavits of 
Messrs. Keith and Swain concerning the third party allegations and

31



the underlying correspondence (App. 239-260) Attachments 
A & B, indicate that genuine issues of material fact exist 
as to statistics and inferences to be drawn from them, and as 
to validity of general policies and practices. Plaintiffs 
first interrogatories concerning the general policy and practice 
of the Depot with respect to minority employment were never 
answered and no action taken on plaintiffs' motion to compel.
There is no question that such information was relevant to 
Mr. Swain's claim, McDonnell Douglas Corp. v. Green, supra,
411 U.S. at 408-09; Burns v. Thiokol Chemical Corp., 483 F.2d 
300, 306 (5th Cir. 1973), and in the motion to compel plaintiffs 
plainly stated that, "the information requested in the interro­
gatories is necessary for plaintiffs to fully respond to the 
defendants' Motion For Summary Judgment." Granting summary 
judgment without necessary discovery was clearly improper.
See, e.g., Bane v. Spencer, 393 F.2d 108 (5th Cir. 1968).

The district court in fact completely ignored the Rule 56 
inquiry whether there is any genuine issue as to any material 
fact, compare, App. 265, with, App. 266, and instead resolved 
the factual issues in favor of defendants. The court adopted 
the Hackley v. Johnson standard that "Upon a careful review of 
the administrative record, if the district court finds that the 
clear weight of the evidence indicates an absence of discrimination, 
no new trial is required. Alternatively, if this standard is 
not met, the court, in its discretion, may remand, take testimony

31/ Supra, at p. 3.

32



to supplement the administrative record, or grant the plaintiff
32/

relief on the administrative record." (App. 263). The standard 
does not even address whether there is any material at all that 
raises factual issues; it merely has to do with the limited 
purpose of resolving factual issues that arise within the 
administrative record. But if factual issues within the administra­
tive record can be resolved, the whole case is resolved. Other 
materials no matter how relevant, persuasive or compelling 
simply will not be considered. The thrust of Rule 56 is just 
to the contrary; considering all the materials the parties put 
forward in order to determine whether factual issues are raised, 
and, if factual issues do exist, resolving them after full trial 
not summarily. The Hackley standard literally puts the cart 
before the horse. Moreover, the administrative record is 
uncritically accepted, notwithstanding its flaws, see supra at 
p. 25-29, and the total absence of any credibility evidence.
See, Sperling v. U.S.A., supra, 9 EPD at p. 7493. Application 
of the Hackley standard in derogation of Rule 56 inquiry is 
unlawful under the Federal Rules of Civil Procedure. See, Rules 
1 and 81; Haxis v. Nelson, 394 U.S. 286, 292-93 (1969).

C. § 1 Qf The Civil Rights Act Of 1866, 42 U.S.C. S 1981,
Requires Plenary Judicial Proceedings In civil Actions
Brought Purusant To Its Provisions.
This employment discrimination action is brought under 

42 U.S.C. § 1981 as well as § 717 of Title VII. The lower court

32/ Remand to the agency would be.improper, supra p. 29 n. 27.

33



conceded that sovereign immunity does not bar a § 1981 action
33/

against employment discrimination by federal officials.
However, the district court erroneously ruled that a § 1981 
suit is barred in this case because (1) the Anniston Army Depot 
did not discriminate against Mr. Swain and (2) the other named 
plaintiffs and members of the putative class failed to exhaust 
their administrative remedies. The right of all individual 
named plaintiffs to plenary judicial proceedings under § 1981 
is a wholly independent ground for reversal.

There is even less justification for deciding the merits of 
Mr. Swain's claim under § 1981 by a review of the record 
developed during administrative resolution than for so deciding 
his claim under § 717. See, supra. As the Supreme Court 
stated in Johnson v. Railway Express Agency, supra, 43 LW at 
4626, in delineating the relationship between agency resolution 
and § 1981 judicial proceedings, "the remedies available under 
Title VII and under § 1981, although related, and although 
directed to most of the same ends, are separate, distinct, and 
independent." There is nothing on the face of the § 1981, its

33/ The qreat weight of authority supports this proposition.
See, e.g., Penn v. Schlesinger, 490 F.2d 700' 9ir*
1973) , rev'd en banc on other grounds, 497 F.2d 970 (^th1974) . petterway v. Veterans Administration Hosp., 495 F.2 
(5th Cir. 1974); Bowers v. Campbell, 505 F.2d 1155, 1157-58 
(9th Cir. 1974); see also, Baker v. F & F Investment Co., 489 
F .2d 829 (7th Cir. 1973). The scope of relief is not at issue 
in the instant case.
34/ The class action is discussed in Part II of the Argument, 
infra.
35/ Chisolm v. U.S. Postal Service, supra, slip opinion at p. 12 
Robinson v. Klassen, 9 EPD f 9954 (E. D. Ark. 1974) at p. 7002,
McMullen v. Warner, DDC C.A. No. 1363-73, decided June 6, 1974

34



legislative history or plenary statutory purpose, indicating 
that normal ludicial process of claims of discrimination is not 
required. See Jones v- Alfred H. Mayer Co-. 392 u -s - 409 
(1968). Moreover, the intent of congress in enacting Title VII 
and § 717 to provide for overlapping or parallel remedies 
supports the right of federal employees to plenary judicial 
process no matter what the scope of proceedings when federal 
employees sue under Title VII alone. This Circuit has so reasoned. 
caldwell v- National Rrewinq Co.. 443 F.2d 1044 (5th Cir. 1971), 
cert, denied, 405 U.S. 916 (1972); Hill v. American Airlines,. Inc.. 
479 F .2d 1057. 1060 (5th cir. 1973); alpha Portland cement Co. 
^ e e s e .  507 F.2d 607, 608 (5th Cir. 1975). See also § 1981 cases

,q The Supreme Court in Johnson v ..cited, supra, at p. n. v
_ reviewed the supporting legislativeRailway Express Agency, supra, reviewed uie

history. Despite Title VII's range and its design
as a comprehensive solution for the problemof invidious discrimination in employment . ̂
S eo ? S f ^ t d t ne f h f A s s e s s e s  L d  is not limited 
. m-i 4-1 p vtt in his search for relic • L J legislative history of Title^VII^manifests^a^con-^
£ 2 £ 3 £ t i ? £ .  rights nnder hoth Title VII and 
other applicable state and federal statutes^
Alexander v. n.ardner-Denver Co.. 415
48---in particular, congress noted .remedies available to the individual under Title
5 5  are coextensive with the individual s [sic] 
right to sue under the P ^ ^ g ^ . ^ X a t

t w o T r o c f d i f e t ' a ^ l - e ^  other and are
not mutually exclusive.' H. R. R®P- 92d1=4- coqc, 19 (1971). See also S. Rep.
Hon9415 92d CoAg., 1st Sess., 24 (1971). Later,
in*considering the Equal Employment Opportunity 
Act o? 1972, the SenJte rejected an amendment 
that would have deprived a claimant of 9
to sue under § 1981. 118 Cong. Rec. 3371-3373
(1972). 43 LW at 4625.

35



Neither § 1981 nor Title VII limits the right of federal 
employees whose claims arise under § 1981 to prepare their 
case through discovery and put on evidence as part of a full 
judicial trial of those claims.

The lower court also erred in ruling that named plaintiffs, 
other than Mr. Swain, who did not file individual administrative 
complaints failed to exhaust administrative remedies. (There 
is of course no issue that Mr. Swain fulfilled the exhaustion 
requirement.) The en banc decision of this Circuit in Penn v . 
Schlesinger, supra, on exhaustion has been put substantially 
in doubt by the unanimous opinion of the Supreme Court in .Tohnson 
v. Railway Express Agency, supra, that "the filing of a Title VII
VII charge and resort to Title VII's administrative machinery 
are not prerequisites for the institution of a § 1981 action 
[citations omitted]" and "Congress did not expect that a § 1981 
court action usually would be resorted to only upon completion 
of Title VII procedures and the [EEOC's] efforts to obtain volun­
tary compliance" 43 LW at 4625. Johnson is consistent with 
decisions of this Circuit with respect to non-exhaustion in 
private employee actions, Caldwell v. National Brewing Co., 
supra,; Hill v. American Airlines, Inc., supra, and Alpha 
Portland Cement Co. v. Reese, supra. Second, if exhaustion
of state administrative remedies is not required in civil rights 
actions, Damico v. California, 389 U.S. 416; McNeese v. Board 
of Ed., 373 U.S. 668 (1963), a fortiori, exhaustion of federal 
remedies should not be required in light of the absence of 
considerations of federal-state comity. See, Penn v. Schlesinger,

36



supra, 490 F.2d at 707 (Morgan concurring); 497 F.2d at 972-73 
(Tuttle, with Wisdom, Goldberg and Morgan, dissenting). No 
reason exists for applying different § 1981 exhaustion standards 
to federal employees and private or state employees that results 
in disuniformity; on the other hand, the reasons that support 
non-exhaustion for private or state employees suing under 
§ 1981 apply equally well to federal employees.

Moreover, the district court erred for another reason in 
relying on exhaustion to bar the § 1981 claims of the named 
plaintiffs other than Mr. Swain. The Depot did in fact have 
adequate notice and opportunity to reform itself by virtue of 
the third party administrative charge filed in behalf of them 
and other black employees in 1972. Supra, at p. 4-7. In fact, 
charges of continuing discrimination of two of the named plain­
tiffs were expressly set forth in the third-party complaint
letter of November 14, 1972:

• • . Mr. Ernest Lee Keith . . . has sought 
unsuccessfully to be promoted or transferred to 
better paying jobs since he was employed in 1966

*  *  *

Mr. Elisha N. Jones was hired at Anniston 
Army Depot in 1943 as a GS—4. He is still a 
GS-4. Mr. Jones presents a classic case of under­
employment in that he is a college graduate with 
two summers of graduate level study. Any Affirma­
tive Action Program would be hard pressed to 
explain his lack of advancement.

cite these instances not to bring new 
charges because those have already been made in 
our complaint of 14 September 1972. we insist 
that our charges be answered.
Attachment c to Brief For Appelants at p. 6.

In response, the December 26, 1972 letter of the Depot EEO Office 
replied, "an EEO Counselor contacted each individual identified 
in your letter in an attempt to further identify any personal

37



problem the employee might feel that he has, whether related 
to the EEO Program or any other matter, and to offer counseling 
assistance." App. 248. Hie general allegations of which the 
charges of Messrs. Keith and Jones were examples were denied 
by the Depot EEO Office, terminating the third party complaint 
proceedings.

38



II.

THE DISTRICT COURT ERRED IN DENYING 
FEDERAL EMPLOYEES THE RIGHT TO MAIN­
TAIN A CLASS ACTION PURSUANT TO RULE 
23(b)(2), FED. R. CIV. PRO., IN BE­
HALF OF OTHER SIMILARLY SITUATED FED- ERAL EMPLOYEES______________

The lower court erroneously concluded that a class action 
pursuant to Rule 23(b)(2), Fed. r . civ. Pro., could not be 
maintained for either claims arising under § 717 or 42 U.S.C.
§ 1981 because each member of the class had not exhausted his 
administrative remedies. "[S]ince . . . members of their class 
have developed no record for this court to review, they are not 
entitled to any relief under § 2000e-16," (App. 264). " [T]he 
members of the class they purport to represent, having failed 
to exhaust their administrative remedies, may not now bring an 
action under 42 U.S.C. § 1981,"(App. 266). Appellants assert 
that named plaintiffs may maintain a Rule 23(b)(2) class action 
for similarly situated black federal employees who have not 
exhausted administrative remedies. Neither § 717 nor 42 U.S.C.
§ 1981 is in derogation of the basic right to maintain a 
Rule 23(b)(2) class action in behalf of other similarly situated 
employees. Furthermore, there is no effective way for federal 
employees to raise claims for individual and systemic, 
classwide discrimination.

39



A . Rule 23(b)(2) Class Actions Are Not Precluded Or
Limited By Title VII And 42 U.S.C. § 1981 Statutory 
Language.
1. Rule 23(b)(2), Fed. R. Civ. Pro.

The inquiry required by Rule 23(b) (2) was described 
by the Advisory Committee in the following broad terms: "Action 
or inaction is directed to a class within the meaning of this 
subdivision even if it has taken effect or is treatened only 
as to one or a few members of the class, provided it is based 
on grounds which have general application to the class."
Proposed Amendments to Rules of Civil Procedure, 39 F.R.D. 69,
102. The exhaustion bar to class actions imposed by the lower 
court is thus contrary to the preeminent purpose of Rule 23(b)
(2) to provide for full adjudication of claims against a defendant 
which have general application to a class in practical terms 
without technical limitation. Certainly, nothing in Rule 23(b)
(2) requires the district courts exhaustion bar.

Moreover, Rule 23(b)(2) was specifically designed for 
"actions in the civil rights field where a party is charged 
with discriminating unlawfully against a class, usually one 
whose members are incapable of specific enumeration. See 
Potts v. Flax, 313 F.2d 284 (5th Cir. 1963); Bailey v. Patterson, 
323 F .2d 201 (5th Cir. 1963), cert, denied, 377 U.S. 972 (1964)" 
(remainder of citations omitted), supra, 39 F.R.D. at 102.
In Potts v. Flax, supra, Judge Brown discussed the purpose of 
civil rights class actions in the context of a school desegre­

40



gation suit:
Properly construed the purpose of the suit 
was not to achieve specific assignment of 
specific children to any specific grade or 
school. The peculiar rights of specific 
individuals were not in controversy. It was 
directed at the system-wide policy of racial 
segregation. It sought obliteration of that 
policy of system-wide racial discrimination.
In various ways this was sought through suit­
able declaratory orders and injunctions against 
any rule, regulation, custom or practice 
having any such consequences. The case there­
fore had those elements which are sometimes 
suggested as a distinction between those which 
are, or are not, appropriate as a class suit 
brought to vindicate constitutionally guaranteed 
civil rights. 5/

5/. . . Additionally, as we have recently 
pointed out, a school segregation suit 
presents more than a claim of invidious dis­
crimination to individuals by reason of a 
universal policy of segregation. It involves 
a discrimination against a class as a class, 
and this is assuredly appropriate for class 
relief. Bush v. Orleans Parish School Board,
5 Cir., 1962, 308 F.2d 491, 499, modified on 
rehearing, 308 F.2d 503. See also Ross v.
Dyer, 8 Cir., 1962, 312 F.2d 191.
313 F .2d at 288-89.

Judge Brown continued, "Moreover, to require a school system 
to admit the specific successful plaintiff Negro child while 
others, having no such protection, were required to attend 
schools in a racially segregated system, would be for the 
court to contribute actively to the class discrimination." 
Named plaintiffs in the instant case assert no less —  it is 
systemic, classwide employment discrimination at the Anniston 
Depot that they seek to raise and remedy in a court of

41



36/law.
Rule 23(b)(2) class actions are also particularly

37/appropriate in employment discrimination litigation. The 
class action device permits full scale inquiry into general 
employment policies and practices. Judge Gray's reasoning 
in Hall v. Werthan Bag Corp., 251 F. Supp 184, 196 (M.D. Tenn. 
1966) that, "Racial discrimination is by definition a class 
discrimination. if it exists, it applies throughout the 
class" has often been cited in employment discrimination 
litigation. See, e.g., Jenkins v. United Gas Corp., 400 F.2d 
at 35, Johnson v. Georgia Highway Express, Inc., 417 F.2d 
1122, 1124 (5th Cir. 1969); Blue Bell Boots Inc, v. EEOC,
418 F.2d 355, 358 (6th Cir. 1969); Graniteville Co. (Sibley 
Div.) v. EEOC, 438 F.2d 32, 37 (4th Cir. 1971). Because 
racial discrimination is necessarily class discrimination, it 
follows that systemic, classwide features of discrimination 
are relevant even in non-class actions. McDonnell Douglas 
Corp. v. Green, supra, 411 u.S. at 408-09; Burns v. Thiokol 
Chemical Corp., supra, 48 3 F.2d at 306.

36/ in Jenkins v. united Gas Corp.. 400 F.2d 28 (5th Cir. 1968), 
Chief Judge Brown reiterated for employment discrimination what he 
wrote earlier in Potts v. Flax, 'if class-wide relief were not 
afforded expressly in any injunction or declaratory order issued 
in Employees' behalf, the result would be the incongruous one 
of the Court— a Federal Court, no less— itself being the instru­
ment of racial discrimination.' 400 F.2d at 34. See also,
Johnson v. Georgia Highway Express. Inc.. 417 F.2d 1122, 1124 (5th 
Cir. 1969).
X L/ Compare the analysis set forth in Chisolm v. U.S. Postal 
Service. W.D. N.C., C.A. No. C-C-73-148, decided May 29, 1975 at 
p. 12-13 of slip opinion; Sylvester v. U.S. Postal Service, S.D. 
Tex., C.A. No. 73-H-220, decided April 23, 1975 at~p. 10.

42



Furthermore, the class action device facilitates framing
of comprehensive injunctive and declaratory relief for the
systemic features of employment discrimination the Civil Rights
Acts expressly seek to rectify. Griggs v. Duke Power Co.,
supra, 401 U.S. at 429-30; McDonnell Douglas Corp. v. Green,
supra, 411 U.S. at 800; Alexander v. Gardner-Denver Co., supra,
415 U.S. at 44. See also Jones v. Alfred H. Mayer Co., 392
U.S. 409, 420-22 (1968). The court in Jenkins noted that, "the
[Advisory Committee] Note's emphasis on declaratory, injunctive
relief is easily satisfied by Title VII." 400 F.2d at 34.

The importance of a truly effective judicial scrutiny and
relief in the employment discrimination area is the advancement of
the overall purpose of civil rights litigation to provide parallel c
overlapping remedies. Supra. at p. 19-25. As discussed
above, the private civil action in the federal employment
discrimination area is particularly vital because federal
employees serving as "private attorneys general" are the only
attorneys general. Rule 23(b)(2) class actions are, therefore,
both permitted and desirable for plaintiff employees seeking

38/
vindication of § 717 and § 1981 guarantees.

2. § 717 and $ 1981 Statutory Language
On its face neither § 717 of Title VII nor 42 U.S.C. § 1981

ejqpDeasly limits in any way the Rule 23 right of federal employees
to bring private enforcement actions in the form of class actions.
Under such circumstances, the jurisprudence of this Circuit is
clear that class actions, in particular Rule 23(b)(2) civil
38/ See Chisolm v. U.S. Postal Service, supra; Sylvester v. U.S. 
Postal Service, supra.

43



rights class actions, may be maintained. Thus in Lance v.
Plummer. 353 F.2d 585 (5th Cir. 1965), cert, denied. 384 
U.S. 929 (1966), the contention was made that, "the class action 
filed by the named plaintiffs was not an adequate vehicle upon 
which the trial court could enjoin conduct by the named defendants, 
and those in active concert with them, from denying rights to 
all Negro citizens," 353 F.2d at 591, in an action under Title II 
of the Civil Rights Act of 1964, 42 U.S.C. § 2000-a et seq. In 
support of the contention that the district court had no juris­
diction to entertain a class action for the enforcement of Title 
II rights, defendants pointed out that Title II (1) authorizes 
a civil action brought for preventive relief to "the person 
aggrieved" by the offender; (2) authorizes pattern or practice 
suits by the Attorney General; and (3) contains the express provisio 
that,"The remedies provided in this title shall be the exclusive 
means of enforcing the rights based on this title." upon an 
examination of the face of the statute the court stated, "We 
conclude that Congress did not intend to do away with the right 
of named persons to proceed by a class action for enforcement of 
the rights contained in Title VII of the Civil Rights Act." 353 
F .2d at 591. The Court in Lance v. Plummer cited Sharp v. Lucky, 
252 F.2d 910 (5th Cir. 1958), also a civil rights action, in which 
the limitation of the authority to bring an action under 42 
U.S.C. § 1983 "to the party injured" was held not to prevent class 
action proceedings.

44



In Qatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th cir. 
1968) the issue came up in the Title VII context with defendant 
contending that jurisdiction is absent for class action because 
(1) "the administrative, private remedy intent and purposes 
of the statute will be circumvented and csnided if only one person 
may follow the administrative route dictate of the Act and then 
sue on behalf of the other employees" and (2) pattern or practice 
suits brought by the Attorney General are authorized. Citing 
Lance v. Plummer, the Court again rejected the contention on the 
ground that, "The Act permits private suits and in nowise 
precludes the class action device." 398 F.2d at 498. The Court 
also specifically took exception to defendants' contention, not 
premised on the face of the statute, that class actions would dis­
place the EEOC role in advancing the purpose of the statute.

B . In 1972 Congress Disclaimed Any Intent To Preclude Or Lim­
it Title VII And 42 U.S.C. § 1981 Class Actions By" ~
Requiring Exhaustion Of Administrative Remedies By 
Class Members.
The contention that exhaustion is required of class members 

in employment discrimination actions was specifically rejected 
by Congress in 1972 in reliance upon the decision of this Court 
in Qatis v. crown zellerbach. Corp, supra, and Jenkins v. United 
Gas Corp., supra.

In Qatis v. Crown Zellerbach Corp., supra. Judge Bell 
set forth reasons why the exhaustion the government seeks will 
not advance the purpose of the Act.

45



Moreover, it does not appear that to allow 
a class action, within proper confines, would 
in any way frustrate the purpose of the Act 
that the settlement of grievances be first 
attempted through the office of the EEOC. It 
would be wasteful, if not vain, for numerous 
employees, all with the same grievance, to have 
to process many identical complaints with the 
EEOC. If it is impossible to reach a settlement 
with one discriminatee, what reason would there 
be to assume the next one would be successful.
The better approach would appear to be that once 
an aggrieved person raises a particular issue 
with the EEOC which he has standing to raise, he 
may bring an action for himself and the class of 
persons similarly situated and we proceed to an 
examination of this view. 398 F.2d at 498

"And the charge itself is something more than the single
claim that a particular job has been denied him. Rather it is
necessarily a dual one: (1) a specific job, promotion, etc.
has been denied, and (2) this was due to Title VII forbidden
discrimination." Jenkins v. United Gas Corp., supra, 400
F .2d at 32. " [i]t is perfectly clear that no procedural purpose
could be served by requiring scores of substantially identical
grievances to be processed through the EEOC when a single charge
would be sufficient to effectuate both the letter and spirit
of Title VII." Miller v. International Paper Co., supra, 408
F .2d at 285: Franks v. Bowman Transportation Co., 495 F.2d 398,
421-22 (5th Cir. 1974); Bowe v. Colgate-Palmolive Co., 416 F.2d

397711, 715 (7th Cir. 1969) In light of the poor record and

39/ The United States adopted this position in its Brief For The 
United States And EEOC As Amici Curiae p. 31 in Albemarle Paper 
Co. v. Moody, Supreme Court Nos. 74-389, 428, October Term, 1974:

. . . [M]embership in a Title VII class action 
for injunctive relief need not be limited to 
persons who have filed charges with the Equal

46



inexpert character of federal agency civil Service Commission
resolution compared to EEOC conciliation, supra at p. § 717
plaintiffs are different in no way from § 706 plaintiffs requir—

40/ing a different outcome.
The government seeks by judicial action exactly what

aVCongress in 1972 refused to legislate on exhaustion. During
the consideration of H.R. 1746 in the House, Rep. Erlenborn

42/introduced a substitute for the committee bill. Proposed § 706(h) 
of the Erlenborn provision provided that, "No order of the court 
shall require . . . the hiring, reinstatement, or promotion of an
_3g/ (Continued)

Employment Opportunity Commission. Miller 
v. International Paper Co.. 408 F.2d"283,
284-285 (C.A. 5); QatisT. Crown Zellerbach 
Cflrg,, 398 F .2d 496, 499 (C.A. 5). it con­
tends, however, that back pay should be denied 
to those members of the class who did not 
individually file charges with EEOC.
The purpose of the provision of Title VII (Sec­

tion 706, 42 U.S.C. 2000e-5) requiring the filing 
of charges with EEOC is to provide notice to the 
charged party of the alleged violation of the Act 
and to bring to bear the voluntary conciliatory 
functions of EEOC. The filing of a single charge 
alleging unlawful employment practices gives the 
employer notice of the complaint and an opportunity 
to correct the unlawful practices. it would serve 
no useful purpose to require scores of substantially 
identical claims to be processed through EEOC when 
a single charge is sufficient to satisfy the require­
ments of Title VII. Bowe v„ Colegate-Palmolive Co..
S U P r / 416 F.2d at 72 0; Miller v. International 
Paper Co., supra, 408 F L 2d at 285; see also Franks 
v. Bowman Transportation Co., 495 F.2d 398, 421-422 
(C.A. 5), certiorari granted on other issues, March 
24, 1975, No. 74-728; Head v. Timken Roller Bearinq Co., supra. 486 F.2d at 876. ■'Ta*

40/ .Chisolm v. U.S. Postal Service, supra; slip opinion at pp. 12-13; 
Sylvester v. U.S. Postal Service, supra; slip opinion at p. 10.
41/ Compare the Legislative History analysis in Chisolm v. U.S. 
Postal, supra, slip opinion at pp. 13-14.
42/ Staff of Subcomm. on Labor of the Senate Comm, on Labor and 
Public Welfare, 92d Cong., 2d Sess., Legislative History of the 
Equal Employment Opportunity Act of 1972 at 132 (Comm. Print 1971) 
hereinafter "Legislative History."

47



individual as an employee, or the payment to him of any back 
pay, if such individual, pursuant to Section 706(a) and within 
the time required by Section 706(d), neither^filed a charge nor 
was named in a charge or amendment thereto." § 706(a) deals 
with EEOC charges and § 706(d) with civil action deadlines.
This provision was opposed in the following terms by Rep. Eckhardt

The Erlenborn amendment abolishes class 
actions. It would wipe out class actions in 
the area of equal employment opportunity. In 

* this area the courts have held that equal
employment actions are customarily class action 
whether they are so categorized or not.

But this amendment would prohibit bringing 
class action suits on behalf of a whole class of 
persons— blacks, women, and so forth, who may be 
all suffering the same discrimination. 44 /

Similarly, Rep. Abzug argued that:
The Erlenborn bill would eliminate the right 

of an employee to bring a class action on the 
behalf of all other employees similarly situated, 
a right which now exists under Title VII. My 
fellow colleagues, sex and race discrimination 
are by the very nature class discriminations. Now 
a member of a discriminated against class, or 
several members, can bring suit on behalf of their 
entire class, and seek an award of back pay, 
reinstatement, or injunctive relief. The structure 
and pattern of employment discrimination will remain 
untouched unless large numbers of works are affected. 
An award in favor of one complainant will do little 
to discourage an employer bent on discriminating 
against a class of employees, but an award— or even 
the possibility of an award— on behalf of an entire 
class can effectively discourage this kind of 
unlawful discrimination. 45 /

li/ Legislative History at p. 147.

44 / Legislative History at p. 243. 
45/ Legislative History at p. 276.

48



The Erlenborn substitute passed with the exhaustion bar 46/
intact.

The Senate committee bill contained no restrictions on class
41 /

actions. The Senate committee stated its intent not to 
restrict class actions in its proposed § 706 provisions, 
specifically citing Oatis and Jenkins.

This section is not intended in any way 
to restrict the filing of class complaints.
The committee agrees with the courts that 
title VII actions are by their very nature 
class complaints 16/ and that any restriction 
on such actions would greatly undermine the 
effectiveness of title VII.
16/ Oatis v. Crown Zellerbach Corp., 398 F.2d 
496 (C.A. 5, 1968). Jenkins v. United Gas 
Corp. 400 F .2d 28 (C.A. 5, 1968); Blue Bell 
Boots v. EEOC, 418 F.2d 355 (C.A. 6, 1969);
Local 104, Sheet Metal Workers v, EEOC, 303 
F. Supp 528 (N.D. Calif. 1969)  ̂ Similarly, 
labor organizations may also petition for relief 
on behalf of their members. Chemical Workers 
v. Planters Manufacturing Co.~ 259 F. Supp 365 
(N.D. Miss. 1965); Pulp Sulphite and Paper Mill 
Workers. Local 186 v-. Minnesota Mining antT 
Manufacturing Co., 304 F . Supp 1283 (N.D. 
ind. 1969). 48_/

The Senate bill as passed contained no limitation on class
actions and the Section-By-Section Analysis of S.2515

46 / 
47/ 
48 / 
49/

Legislative
Legislative
Legislative
Legislative

History at p. 
History at p. 
History at p 
History at p.

332.
33 5 et_ seq. 

436.
1779 et seq.

49



reiterated the intent not to limit class actions.
in establishing the enforcement provisions 

under this subsection and subsection 706(f) 
generally, it is not intended that any of the 
provisions contained therein are designed to 
affect the present use of class action lawsuits 
under Title VII in conjunction with Rule 23 of 
the Federal Rules of Civil Procedure. The courts 
have been particularly cognizant of the fact that 
claims under Title VII involve the vindication 
of a major public interest, and that any action 
under the Act involves considerations beyond 
those raised by the individual claimant. As a 
consequence, the leading cases m  this area to 
date have recognized that Title VII claims are 
necessarily class action complaints and that, 
accordingly, it is not necessary that each individual entitled to relief under the claim be 
named in the original charge or in the claim for 
relief. 50/

The bill that emerged from conference did not contain the 
Erlenborn provision. The Section-By-Section Analysis of 
H.R. 1746 adopted the Senate Section-By-Section Analysis on 
class actions, word for word, adding only the concluding state 
ment that, "A provision limiting class actions was contained 
in the House bill and specifically rejected by the conference

Committee.

50/ Legislative History at p. 1773.
51/ Legislative History at p. 1847. The preface of the Analysis
states its p^ ? ° S^ alysis expiains the major provision of 

H R 1746, the Equal Employment Opportunity Ac 
of i972, as agreed to by the Conference Committee 
of the House and Senate on February 29, 1972. The 
explanation reflects the enforcement Provisions of 
Title VII, as amended by the procedural and ]uris 
dictional provisions of H.R. 1746, recommended by
the conference committee.in any area where the new law does not address 
itself, or in any area where a specific contrary

50



§ 717(d) specifically incorporates the procedural 
framework set forth in § 706(f) and other § 706 provisions 
and the legislative history gloss construing the provisions.
Thus the explicit non-limitation of class actions applies to 
federal employee suits. Also in 1972, Congress reiterated that 
Title VII was not the exclusive remedy for employment discrimi­
nation and that § 1981 remains a separate and independent remedy 
supra at p. 35. Congress could hardly have intended that
class action preclusion or limitation which expressly does 
not apply to Title VII cases should apply to § 1981 cases.
The Supreme court's opinion in Johnson v. Railway Express Agency, 
supra, confirming the separate, distinct and independent nature 
of § 1981 and Title VII remedies, was anticipated by decisions of 
this Circuit in Caldwell v. National Brewing Ccl.. supra; Hill 
v. American Airlines. Inc., supra; Aloha Portland Cement C.Q. 
Reese, supra. In Alpha Portland the issue was whether the 
independent remedy of § 1981 requires a district court to permit 
a class action on a broader range of disciminatory practices 
than charges filed with EEOC for conciliation or like or related 
to those presented to the EEOC. The Court specifically held,

51/ (continued)
intention is not indicated, it was assumed that the 
present case law as developed by the court would 
continue to govern the applicability and construction 
of Title VII.

The Section-By-Section Analysis was put before both the Senate 
and the House. Legislative History at 1844-51, 1856.

51



"There appear to be no reason for labeling 
§ 1981 an independent remedy for purposes 
of individual complaints but not an inde­
pendent remedy for purposes of class actions. 
Section 1981 is available to plaintiffs 
without regard to Title VII limitations."
507 F.2d at 610.

The Court later 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 611 n. 5.
Congress expressly did not do so in 1972 either for § 706,
§ 717 or § 1981 suits.

52



C • 'There Is No Way Federal Employees Can Effectively
Raise Claims Of Individual And Classwide Employment 
Discrimination For Resolution Under Existing civil 
Service Commission Regulations.

As discussed in the preceding section, in 1972 congress
adopted the law of this Circuit on the inherent class nature
of discrimination and of its cure stated in Qatis and Jenkins.
Moreover, Congress specifically indicated that the contrary
view of the agencies and their spokesman, the Civil Service
Commission, was erroneous and needed to be radically changed

_52/
to focus on systemic, classwide discrimination. There is no

5 ^  The Senate Committee report called into question the Commission's attitudp toward discrimination as nothing 
more than the malicious intent of individual discriminatory 
supervisors in discrete situations.

Another ta^k for the Civil Service Commission 
is to develop more expertise in recognizing and 
isolating the various forms of discrimination which 
exist in the system it administers. The Commission 
should be especially careful to ensure that its 
directives issued to Federal agencies address them­
selves to the various forms of systemic discrimination 
in the system. The Commission should not assume that 
employment discrimination in the Federal Government 
is solely a matter of malicious intent on the part of 
individuals. It apparently has not fully recognized 
that the general rules and procedures that it has 
promulgated may in themselves constitute systemic 
barriers to minorities and women. Civil Service 
selection and promotion techniques and requirements 
are replete with artificial requirements that place 
a premium on "paper" credentials. Similar requirements 
in the private sectors of business have often proven 
of questionable value in predicting job performance 
and have often resulted in perpetuating existing 
patterns of discrimination (see e.g., Griggs v. Duke 
Power Co., supra n.l) The inevitable consequence of 
this kind of technique in Federal employment, as it 
has been in the private sector, is that classes of 
persons who are socio-economically or educationally

53-



v/ay to find discrimination without relying "heavily in
Title VII cases on . . . empirical data which show an employer's
overall pattern of conduct in determining whether he has
discriminated against particular individuals or a class as
a whole," Burns v. Thiokol Chemical Corp.. supra, 483 F.2d at
305. Judicial precedent in this circuit is also clear that
remedying individual injury, but failing to eliminate the
underlying systanic discrimination unlawfully perpetuates
discrimination. The Civil Service Commission, however, unlike _54/
the EEOC, resists applying these principles to resolution of 
employment discrimination complaints. Instead, the Commission 
insists upon treating complaints as falling within two

52/ (continued)
disadvantaged suffer a very heavy burden in 
trying to meet such artificial qualifications. 
Legislative History at 423.

The House Committee concurred.
Aside from the inherent structural defects 

the Civil Service Commission has been plagued by 
a general lack of expertise in recognizing and 
isolating the various forms of discrimination which 
exist in the system. The revised directives to 
Federal agencies which the Civil Service Commission 
has issued are inadequate to meet the challenge of 
eliminating systemic discrimination. The civil 
Service Commission seems to assume that employment 
discrimination is primarily a problem of malicious 
intent on the part of individuals. It apparently 
has not recognized that the general rules and 
procedures it has promulgated may actually operate 
to the disadvantage of minorities and women in 
systemic fashion.

_5y Supra at p. 41-42.
Sty See, e.g., Sanchez v. Standard Brands, Inc., 431 F.2d 455
(5th Cir. 1970).

54



immutable categories, "individual complaints" or third-party 
complaints- Class and individual claims are treated as dis­
jointed, when in fact they are inextricably interwoven. Federal 
employees thus cannot have their claims of discrimination 
effectively resolved absent the right to maintain a Rule 23(b) 
(2) class action.

The instant case is illustrative. Mr. Swain filed an 
individual complaint pursuant to 5 C.F.R. 713.211 et seg_.
Mr. Swain specifically requested the USACARO investigator to 
investigate and seek remedies for general discriminatory Depot 
policies and practices as part of the resolution of his charge. 
The USACARO investigator refused. The investigator s report * 1

55/ See supra at p. 8. The following statement of the
USACARO investigator is in the administrative recor :

1. Prior to the taking of his affidavit, a lengthy 
discussion was held with Mr. Swain concerning 
his complaint of discrimination. It was dif­
ficult for Mr. Swain to accept the fact that the 
USACARO Investigation would be directed toward 
matters relevant to his complaint of discrimination. 
The complainant was of the opinion that an investi­
gation would be made of the overall Depot.
2. Mr. Swain brought to the attention of the 
investigator numerous charges which stated m  par 
that the "Depot: (1) had abrogated its responsi­
bility to take affirmative actions toward elimma 
tinq past discriminatory practices, (2) failed to 
establish remedial programs and corrective measures 
to prevent a recurrence of past discriminatory 
practices, and (3) failed to develop a genuine 
system of advancement based upon true merit,  ̂
definable efficiency and accessible training.
In discussing matters related solely to him,
Swain made statements that lacked required definite­
ness. (App. 225)

55



does contain some statistical information about the Depot
5under the heading "Survey of the General Environment."11 

Hiis information is unanalyzed, neither cited nor referred to 
in the "Discussion And Analysis," "Conclusions," and "Recommenda­
tion" sections of the report (App. 29-32), and clearly played no 
role in the resolution of the complaint. The statistics and

C. A total of 4,025 employees in the Class 
Act and Wage Board grades are employed at the 
Anniston Army Depot. Black employees comprise 
2.38% of the class Act and 13.5% of the Wage 
Grade positions. Black employees occupy none of 
the Class Act Supervisory and 2.34% of the Wage 
Board Supervisory positions. Blacks are assigned 
to nine of the 112 leader positions at the Depot. 
There are Blacks supervising integrated work 
crews (Exhibit 4).

D. During the period May 1971 to May 1973, there 
have been 263 promotion actions at the Depot. Blacks 
were promoted to 34 of the aforementioned positions. 
Mr. McKay was the selecting official for four 
vacancies at the Depot. He selected three Whites 
and one Black, the Black employee was the complain­
ant, who was selected from a mixed slate of Black 
and White eligibles (Exhibit 5).

E. In respect to awards given at the Depot during the period May 1971 to May 1973, Blacks received 
6.4% of all Outstanding Performance Ratings, no 
Quality Step Increases and 10.11% of Sustained 
Superior Performances. in the Directorate for 
Maintenance where the complainant is assigned, Blacks 
received no Outstanding Performance Ratings and eight 
of the 77 Sustained Superior Performance awards (Exhibit 6).

F. There were 26 adverse actions taken in the 
Directorate for Maintenance during FY 1973. Three 
Blacks were involved in four of these actions. of 
the 18 removal actions in the Directorate for Main­
tenance during the past two years, four pertained 
to Black employees (Exhibit 7 and 8). (App. 28)

Compare these statistics with allegations made in the third 
party complaint and the findings of the Department of the Army 
Survey Team on EEO, supra at p. 4-6.

56



other information in the underlying documents, however, go
a long way to making out a prima facie case of classwide 

5 1 / --------------------
discrimination. The statistics on black employees removed
in FY 1973, 4 of 12, compared to none of 5 in FY 1972, is also
possibly significant with respect to Mr. Swain's complaint;
all 4 of the removals occurred after the third party complaint
was filed. This is surely not what was contemplated in Burns58/ -----
v. Thiokol, supra. The way in which Mr. Swain's complaint was 
investigated is all too typical. Appellants herein adopt the 
analysis set forth in the motion to alter or amend that there 
is in fact no way for complainant employees effectively to raise, 
pursue, or prove allegations of classwide discrimination in the 
course of a administrative proceedings established by the Depart­
ment of the Army and the Civil Service Commission for individual 
complaints (App. 280, 283-286). In summary, the complaint form

57/ First, the minority employment in workforce statistics 
as of July 31, 1973 (App. 96-102) indicates that the Depot, 
in effect, has racially segregated departments. Less than 
10% of the total workforce is black, but over 90% are Wage 
Grade employees compared to about 2/3 of the white employees 
and less than 10% are higher level Class Act employees compared 
to over 1/4 of the white employees. There are no black and 
123 White Class Act Supervisory employees, and 5 Black and 209 
Wage Grade Supervisory. Second, the bare promotion statistics 
do not mitigate or justify the clustering of black employees at 
the bottom (App. 103-123). Third, black employees received 
disproportionally low number of Outstanding Performance Ratings 
compared to Sustained Supervisor Performances and received 
none of 68 Quality Step Increases in pay over two years (App. 
124-125). Fourth, 4 of 12 removals in FY 1973 were of black 
employees (App. 130-131).
58/ Compare the refusal to investigate similar systemic class­
wide discrimination in Chisolm v. U.S. Postal Service, supra, 
slip opion at pp. 1-3. Later the court noted: "This Court's
conclusion that its discretion should be exercised to grant this 
case class action status is supported by the facts that (1) the

57



makes no provision for any allegations broader than claims 
of individual discrimination and agencies and the Commission 
refuse to process class claims filed by individual complainants 
(App. 280); regulations require investigation of general patterns 
(App. 283-285), but no provision is made for classwide relief 
(App. 285-286).

Named plaintiffs also participated in the filing of a
third party complaint of discrimination. Supra at pp. 4-7.
As part of one of the complaint letters, illustrative individual
examples of discrimination were cited. See also supra at p. 37 ;
Attachment B infra. The response of the Depot EEO Office was
to try to split off any individual complaints from the classwide 5_9_/
complaint. This practice is also all too typical. in re­
solving third party complaints, agencies refuse to examine 
individual complaints. Appellants herein adopt the analysis 
set forth in the motion to alter or amend, that there is no way 
for a complainant to effectively raise, pursue, or prove 
allegations of general or classwide discrimination through

58/ (Continued)
appropriate administrative agency has limited through "inter­
pretation" its review of plaintiff's formal complaint to only 
some of the discriminatory charges contained therein, thus making 
it difficult if not impossible for Chisholm to raise class issues 
except in this forum; and (2) there is some evidence in the record 
(as discussed above) which suggests there may have been class wide 
discrimination in the Post Office which has left lingering present 
discriminatory effects. (Of course, the merits of plaintiff's 
claims cannot be finally evaluated until all the evidence is 
introduced and evaluated)." pp. 14-15.
5J/

The specific examples of alleged discrimination 
involving individuals which you cited were addressed 
in two different ways. First, in accordance with 
prescribed EEO Program procedures, an EEO counselor 
contacted each individual identified in your letter

58



third party complaint procedures (App. 280-283). in summary,
third party complaints cannot be related to individual claims;
individuals cannot use the third party procedures to raise
classwide claims of discrimination that relate to their
individual claims; third party complaints filed by or in
conjunction with an individual complainant's charge are refused,
there are even fewer procedural protections than with individual
complaints; and the regulations do not contemplate that a third

80 /party complaint is the basis for court action. It should be
clear that if the right to maintain a Rule 23(b) (2) class action 
is precluded or limited, federal employees would be relegated to 
the exclusive remedy of administrative proceedings inadequately 
designed to deal with systemic, classwide discrimination.

59/ ^Continued)
in an attempt to further identify any personal
problem the employee might feel that he has, whether
related to the EEO Program or any other matter, and
to offer counseling assistance. The review of
personal problems identified will continue in accordance
with prescribed procedures. Second, in order to
respond to this portion of your letter, we deduced
from each specific example what we understood to be
your general allegation and discussed such allegations
in the appropriate general area of the inclosure. (App.248,

60/ A recent Civil Service commission letter on "Third-Party 
Allegations of Discrimination" dated January 27, 1975 discusses 
the relationship between the two procedures. ("It is essential 
to distinguish between [the third party complaint] procedure and 
the procedure for individual complaints of discrimination.
Attempts to analogize between the individual complaint procedures 
and the third-party procedures can lead to confusion and should 
be avoided.") Attachment e to Brief For Appellants. The purpose 
of the third party procedure is overtly non-adjudicatory: "to
call agency management's attention to policies or practices which 
[third parties] believe to be discriminatory. Such matters are 
handled solely through an agency investigation and, at the request 
of the third party, review by the Civil Service commission 
[i.e., without entitlement to hearing and no review by the 
Commission's Appeals Review Board as in individual complaints] 
Further, the agency investigation "is not expected to cover indi 
vidual cases in sufficient depth which necessarily would result 
in findings or decisions with respect to those individuals.

59



CONCLUSION

For the above stated reasons, the Court should reverse 
the decision and orders of the district court of January 28, 
1975, and remand this case for plenary judicial proceedings
and to permit consideration of class action treatment.

Respectfully submitted,

U. W. CLEMONAdams, Baker & demon 
Suite 1600 - 2121 Building 
Birmingham, Alabama 35203

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
BILL LANN LEE10 Columbus Circle 

Suite 2030
New York, New York 10019 

Attorneys for Appellants

60



CERTIFICATE OF SERVICE

I hereby certify that on this 6th day of June, 1975, 
copies of Appellants' Brief and Appendix were served on 
counsel for the parties by United States mail, air mail, 
special delivery, postage prepaid, addressed to:

John K. Villa, Esq.
Appellate Section, Civil Division 
U. S. Department of Justice 
Washington, D. C. 20530

Attorney for Appellants



A T T A C H M E N T  A

22 September 1972

OBSERVATIONS OF DEPARTMENT OF THE ARMY SURVEY TEAM 
ON EQUAL EMPLOYMENT OPPORTUNITY

1. Under representation of Blacks in certain grades, occupations, and organizations 
has created a negative image in the Black community.

a. Absence of Blacks in non-clerical jobs in CPO.

b. Absence of Blacks in clerical and administrative positions in all directorate

c. No Black supervisors in Class Act positions and no Black Wage Grade supervise, 
over integrated crews.

d. Few Black employees in Class Act positions with only 3 above GS-5.

e. Few Black females employed.

2. Credibility of EEO program greatly hampered by lack of Black participation in 
a leadership role.

3. Lack of structured Upward Mobility program has led to most Blacks being denied 
developmental assignments.

4. While commendable action has been taken in recent hiring of Blacks on a temporary 
basis, corrected action must be taken to insure conversion to permanent employment.

5. Summer Youth employment represents an excellent opportunity to assist Blacks to 
obtain Civil Service Commission eligibility for future employment, especially in 
clerical positions.

6. Continuing discontent of Black employees has not resulted in affirmative action 
to substantially improve their situation.

7. Great need exists to improve the image of the installation as an equal opportu­
nity employer through improved communications with Black employees and demonstrated 
results in increasing opportunities.

8. Views and opinions of Black employees and Black leaders need to be given more 
credibility by management.

9. Instances of overt and covert discrimination and harassment continue on the part 
of white supervisors and employees.

10. Community activities and increased cooperation between Black community leaders 
and the installation in domestic action programs requires emphasis and augmentation. 11

11. CPO should take action to eliminate current practice of having gate guards 
handle contacts with applicants.

A—1



" ” ee ”  " h ° d° “  p - s r e a .  in increasi"" ^ ^ c H " I “  ̂

13. De facto segregation continues to exist within spverai •siKTfLT̂ ra"d £acilities *• «-:ns*L"s«
14. Employee complaint and counseling procedurea require action as follows:

and operations£°rS ^  b“ lC °rle”“ “ °" «■) information on CPO atructur

b. Formal complaints should be surfaced within the f f d  „____
pressure being brought against employees for ^cai r e^lutLn ? ,y,t“  ',lth°a

C . Employee confidence in EEO counselors is marginal.

d. Supervisors should not be appointed to EEO Counselor positions.

15. The substance of these observations should be released tn pn,nim,0£
supervisors and Black community leaders. ^ ^ *

OBSERVATIONS OF DA Continued

A- 2



i- '1"ATTACHMENT B"

v'V

Jovor.ucr 1-1, l rJ l 2

Mr. Ca.nrlnrs Collin'?
: .nv; i. oy ?r<o 111 dpuorteni ty off icor 

Ar.ni Jton Array Mo pot 
Anr.iutou, Alnon’-n 30201
Dear Mr. Collin?.:
:»y letter to your or.-dunsor as r i r . m ,  Mr.

.V1 lV 2 > tA:- ‘-•ivijioii of :.ocal Oor.: lenity hvrvio-ej of tua nance J,jpaL L\jf 
la 1 la-ie<r.i cos.:iby er men of the h'Ttiopnl '

Vat; coio-yla: at. cn.-ir the Anniston Ar:.v/ Denote

ecuti vc Oru<;r::. Ajvjiv :’.eouliifcio:'i.s

Jon ti V. Moolf, Cat
j r>.forr.eiticn anaa n ae rune and the

. c. r Cr iation for th<$.at tni.rd rear ty cor.

t; vi to diner i'nin a -
• i ro crui. tramt, wr,olay;:ir.r r anJ jot- clan:.if j,a.'oT r a ion a cf ay-piion.. 1 • :n t-■. r.t;; of i■ o 1 ic/

upon t;u: cn;iro\;
co:::/lnintIn a lot tor da ten October _2,__1D7 2 , Mr. doolf rejected the 

on trio erounas that"- oar r-v/Ibv orocudurv<j nave revealed no 
faui.a to '3unutartrate tne 'joiioral aile.jaLions r.indu in your letter, 
lAUaj v.-. aolioyt: ti lose alldijat io)i:j to oe unfounded. "
Mr. >■■Xuf Mid invite us to v iu it the pot andus-.i'ul and cons true ti vu rjintion •> Vie ‘ i a a eCofi'.ri11. toe on Unified •i-.Jacc.ro.'.ip j.n \uni ston.
•*'o m u  peat fully r-vjue  ̂L t ha t t.«JO. out ire no. ;:>laor i-.jt Ln; ciitiia* or. j j file :..-0 ii.\,v- L aLely 191 ji).U',:Ctoj: of M'u.-ti 1 o at:

a m t  ;*•? roeon eivior 1 
Lted l:o tr: * 

fimportunity for tan United Stnt?.!*;

nato this res ’.SC? -, t for a .'Veraiof o.iic.’i is to i is re.•a aeon youuo protect tno ir:te r>•ats n.ici ri;;
ion?:., not too leant;

B-l



vrf-:* “ /-Pr. Charles roll inn • "■‘-'•'-d
Anniston .-‘.my Depot 
Anniston, nla.oaw.u

, , i...... the ’ Koview rrocodunr." raforre.-;Wo have no reason to eeliuV- - ■ * r,a tnc contrary, wo nave
to %  n.r. wool: wore not tnit; .̂ ^ ^  sorL ,..s indeed made or too
cause to o.-'.ncv,' tnat a rt-/ - ' . ■ r,1-,...cL out of hand ana orunu
innuos raised m  car comply w-t. ■ - ;.0.;0v;ir, the notionas an irra:'ronai!>̂ ' a-ron -  ̂ . allegations,
tnat no facts •./era founu to .,u.,->tnac_

. t- i-ho Arvunev was well aware of t.n
i r l l ^ o l X  t ^ ' i L r S ^ c o r r e l a U o n
s : r a u iiaiSol; : ^ » “ « = »  -■> m  ^

In tao first ''lace 
veracity of our c 1 
y.n / casual onset V ; 
L.i.i tviec a too 1. 'i c j- a 1
at tnc vM-not. «. 1.1 
,1o f fjrr-.cn and tall 
1 at Lon is over '.y-j-i 
the Depot, alone w 
i<nnuolpi», 1'o Ik ant. 
latiouc uJtWiiCa  ̂
nation as a cansat 
employees at tnc !/ 
v/.iich suouiu oe

Car a•way as
1 ,s i.**
''■uui \/itn C a l h o u n  C o u n t y  i t s e l f ,  t h e  s i t e  oi^' ‘ . . • c;t- lair, ctov/aa, -aclo^ ,
% a-Sif ™ S n a « ‘ h C i ^ '  ..liSi Uo - r  . Po;>« .
d C C  “ d  it ic die dealt to d i a o o u n t ^ a e r t ^  • 
VO factor 1» ’- ' d / t f / L L C C o d d . . ;  initallatlo:spot — - nssutoaj / yy" “r.r L.> for the area,t tin a an equal owpot wtiii... ~-v l--

. • i r-i<~ a e c- i r’oative action v/nic.ieven wore damning in the oayious 1.;.-- ^  ^  rabod positions wi.iK
r.r«luc«:. 10 .11 t:«., ten in catciorie*. .vjoin, oven
•Wloyuvt .two *•>■>-> .on . orcWidoranco of the '177 ..lac* «•*- 
^o-:Z.;:'J'lUC, C L L  f  I ralli . « «  ,-r..c.e 13 end only a dote.. or 
3 0 a ho vo c ade •
If anyone is more discriminate*.’ c4' ^  J" ’f  .v't?,loved at the Depot, les
tnan ten are winch and the erect ma jor it, o„ t..c,c ar . 3 
do non-.1 lack women work ar. jam.o,.,.

, - 1 •, r •- ; no is not: supposed tc he a

f i t t e d  to them tn.,t

B-2



r.ao? -- 3 -
Mr. Chari-*:' Collins, CkCO 
Anni o ton Ar r:>y Mepot 
Anniston, Alabama

made in o.ir complaint wore true and suerjested that if those 
"outsiders wan to-I to cors; in and find nor-.ethinq, "lot then', do it."
•/c> consider such a suqqcstion a reversal. of roles. :?a believe 
it to bo tue respons ib i li by of ti.e bovinl employment Opoortu.ni tv 
Officer Command not only to "ye in and find somethin.*?, " inf or in 
us of the structure of the investigation and the information on 
which the ir.-'ostiqntion would focus.
no noted v/.i th some 
filed and th.a time 
Team on i..quaJ i.riplo 
observation:; at the 
at ion.:, made in our

concern that between time our complaint, was 
it was rejected , a hep?.rtoont of the Armr' Siurvo*' 
y-'.ont Opportunity did issue findings of its 
r.'opct v.'iiici) substantiated many of the. alien- 

complaint.
In a report issued to employees (datcu 22 Copt amber lc>72 - ten 
days prior L:» tno rejection of our complaint) the Survey foam 
found:

Under representation of blocks in certain crudes, occupations, 
and orefani r.a t.vor.s has created a ncoat.ive inn pc in the blacr. 
coaruuiutv .

a . Vnseneo of blacks in non -clerical jobs in CPO.
b .% Absence of blacks in 

in nil directorates.
clerical and administrati ve por.i ticn

c . i'O black supervisors in Class 4 *c ll aouitiom and no .black
h’ayo tirade sunarvisors over .in too rated crews.

d . Few alack employees in Class Act positions with only

cv. Few ’lack females employed.
f. Credibility of PbC proqrnn qrantiy nanpore-d by lack of 

slack particieatics in a leadership role.
q. hack of structured Upward Mobility proqrnm has led to 

most blacks Peine denied dev jlopw.ontal assignment3.

B-3



Par ,c - 1 -
'•ir . C’nnrl-;-. Collin?;, bhOO 
.\jinia ton \r:ay besot 
Anniston, A i a ban a

a. IC’ii lo oor.iniemiablo action har- loon taken in recent hirina 
of blacks on a temporary basis, corr.sctcd action nqst 
no taken to insure conversion to permanent employment.
bummer Youth o^ployr.iant roprosents an excellent oppor­
tunity to assist blacks to or-tain Civil service 
Cawnisss ion olioioility for future employment, especially 
in. clerical conation.-;;.

j. Continuing di.scontent of alack employees has not ror.ul- 
too in affirmative action to substantially improve their 
situation.

k. Great need exists to improve the iaviaG of the install- 
ation an an equal epeortu:'. 1 1 / employer through improved 
corumani cations v/itn Clack --.mployees and demonstra tea 
results in increasin'; opportunities.

1. 1. Views end opinions of 
need to he <7avert more

black employees and clack 
croui.l-i.iity by management

leaders

m. Instances of overt and covert discrimination and harass­
ment continue or. the part of white suoorvisors and
■a.•.•.ploy-nos .

n. Community activities and increased cooperation between 
alack coar.uni Ly leaders and the installation in domestic; 
action program:-; requires emphasis and augmentation.

o € ' ' •  > i-nou.ld take action to c*.l iminate current practice 
of having crate ouaras hand le contacts with applicant*;.
Philo a commendable no 
select! on , Co:- mindim- 
o f s e 1 o c L i o n a u t;. o r i l y 
who do not make pro**»r«

lioy exists for the review of 
Officer sm.oul.i consider wi tudrav/al 
from euporvinorr. and managers 

*5s in increasing numbers of ulacn
emeloyees .
he facto segregation continues to exist within 
orenri/.attorn regard-i nq crelovi'o services and 
contributin'? to on-going and acute employee <.ii 
faction.

several 
faciliti 
3 satis-

A
B-4



- h -
Mr. C n r l c s  Colline, LHOO 
Anniston Army To pot 
Anna Lon , M a n a m a

If tin; Agency w;i.p; not aware of theso findings, v/nicii in unlikely, 
or i f it v 1 1 • i not accent t o n  as factual, then rather than ignore 
than it snoula conduct it:; own investigation. tad the Agency done 
so, it nay nave reviewed the plight of Isaac Littles, an erriployeo 
at the Depot for L--1/;? years.

Mr. Littles had a rating of >l?>. 7 frog Huntsville on a Trade 
helper joe out remains a v i e s - 3 laborer at the depot. He points 
to tiie case of ii non-black employee known to him who '.’as hired 
this year, worked four months as .a laborer, tnen was transferred 
to another jcH. as HC.-b in building 130.

Or that of Mr. Standard ; foods, a Vietnam veteran who was hired 
last Juno and is now' a fork lift operator. Mr. hoods is still 
employed on temporary states while nen -blacks in similar circum­
stance:.' are either hired in career conditional status or became 
so soon nftar being employed. The same complaint is raised by 
Mr. ‘ Johnny t'lar.k, i-lr. Haul f;;iiloy or for chat matter Mr. Isaac 
Ll111o 3•

Or that of Mr. benjamin II. hone, an HlecLronio Fire Cor.trol 
byster- Installer and Ro.vai m a n  with five years seniority wno had 
to eo to school to L.-e trained for his position but observes non- 
hlaci: employees vatuout such training assume similar positions, 
iie knows because he has trained about eight hirsalf.

Or that of Mr. James O'iteil Brock, who has twontv years 
govern me i; t .service hut cannot .get a pronoti on to a grade-7 posi­
tion ::e once held v.u.ilo observing a non--..lack employee with five 
years seniority obtain the position ne lost during a reduction in 
force. * he would point to other employee., w no have been promoted 
aft-T as little as three w-eous -on the -job.

to
Mr that of -Mr. -f. T. draco, wno received his last promotion, 

twenty years ago. .
Or ta-:t of Mr. Jack Walker, a twenty-four year veteran of tr.e 

Depot, t/'.u; liar. i;c-un denied; promotion.; on tue claim ta-at tii-e 
•jow was being abolished, then roc lass if led as the jo!, he aoplioc 
for was given to a non-’slack onimlovoc.

•Mr that of Mr. Ai H i e  Turner, ’-'ho had to ’suit twenty-f ive 
years for h i.s first promotion - -to ;.'-3-C.

B—5



J-a rje  -  u  -

.'•ir. Cnarlcs Col 1 in a,
Atuii ' ; ton Army Depot 
Mini r>ton, .Mioam

;>r t ;mt o r nr .  J u l i u s  C a d d i s ,  oao  h a s  tv .vn ty -o n u  Y'/«r s  
. . . ■ _c t r a i n ' d  s e v e r a l  iioiv- i lnc .ss  wno arv- no.v

3t.1n1.on t , *,u ; V •  ̂ - j ,.i - ,• -j -trade -G v:arehousov.an
in  advnncoa p o s i t i o n ' , .  -  • . V f : V  r ' ^ . . r v i s o r y  o o s i t i o n a
r Qr T-tvcntMi!  v e i n ,  na:i a y p l i - M  Cor .>u ,k r v i . ,  ^  r 
l , i ; t  ,p : ;  .'OOP. d e n i e d  each  t im e in  f a v o r  o f  non- . , lacA . ,  w i u  1 -
son j.(.'r  i ty  a:icl . *>• -r  i e n c a  .

r • o-,r 11 "tori' .'/'ho and to i.'Ait seventeenOr cant of .=r. Car *..»•. jlj. *»c-r.., , voars for his first promotion, to ;..-0 la l^vi, a..u
u n a b le  to a d v an c e  s i n c e .

r -r - (-p i sandhiaster wno is sonotine-.

it.S-i.-i- --.otto:. t:,v »  fro, ! . » / - ! « * « » “ -; o
t h a t  i f  t o  ( s u p e r v i s o r )  w .o .  e c t o  t . — - ■
• »,,» c i  Lot; a corral a i r . t  o f  d l  n c  r  i  :r. x i »a u. x o i. .

. ,, , - ,„no„. Keith, vf.o hob sounat unsuccessfull
or that o. -;y,.-rV, t-orra-l to better oari no jobs siaco no u »  to i -Jiropotco *;r - -

/ 'i'-l j.U X -)c; t  .

V.u, A9C.C-, vouxr also no vail to iav,sti;,ata
p o m e  tra tod a cram at tne- n „  n°v-

hr. Arthur l-ntturson
yoarr, seniority- no on ■ f ’ >r. at leant too occasion£ lS- 1-ToS.sî toJ-In  a l l  cases, t a o  v a c a n t  p o s i t i o n  '-a., - u l e t i

, T-r.-s-- '.n? aired at M m  is ton f'.ir my Depot in _ 1943. :r. j.li--». a ... ^ .‘'"V «’ • .jr ,T0pc/; nr.ioonts a classic
as a CA>'\. *■<'■ xi: j. t m t  ho i-3 a c o l U - o a  graduate- withcase o f  iru.̂ re.-vlo,- . -* • ,* <v.;V A f f i r m a t i v e  Action
t - '°  X r o ' s o d  t o  e x p l a i n  h i s  l a c k  o f  advancem entI-roc ram w o u is  ■ >r- n a m  .. . . .  - r . - .
»'. . .. ^ c h a r g e s  o o ca u su  t h o s e

v,'o c i t e  t h o s e  i n s t a n c e s  n o t  to  v. ^  r 1 9 *7 2 .
nave air sad.. •u ’' 1,1 “ . rur^ncr v::* suerest. lr-vaed i a

to  U-S .

B-6



(  \  I

Pago 7
I-Sr. Charles Collins, EEOO 
Anniston Arm*/ Depot 
Anniston, Alabama

The steps should include, but certainly need not be limited to:
1 . The immediate employment of black kl.O Counselors.
2 . The immediate public reprimand of any suoervisory per - 

nonnel who fails to implement tne spirit and the letter 
of the affirmative action program or who harasses, inti­
midates or otherwise threatens reprisals against employees 
who wring discrimination complaints.

1. An employee- management--conirnunity council should be estab­
lished to foster communication and to devise specific 
methods designed to eliminate discrimination.

*1 • -'ach alack employee should be interviewed and evaluated
to determine tno existence of latent skills and tne extent 
of underemployment.

5 . '.'hen sues employees arc; found to be underemployed tney 
should, v/ith the eporopriato training i>-» oromotod or 
transferred to their rightful place and indemnified for 
for all wagon lost as a result of discrimination.

C. When the promotion or transfer of such employees to their 
rightful place would cause irreparable damage to incumbent 
non-blacks, the aggrieved black employgo should be placed 
in a similar position with commensurate salary and rcsoon- s i V; i 1 i ty .

7 . % When it i.s ir.ipr.ru;ti cable to transfer or promote such
employees to their rightful place cr to similar positions, 
his salary se.oaid do increased to '/hat it would bo were ho 
in his rightful place.

<2. A moratorium should bo -declared on filling any position 
where black employees are under-re resented until the 
racial, ratio a"*>rox j era tor; that o r the hiring area. been 
a moratorium would apply to all units, branches, job 

, classification-. and programs and would apply most parti­
cularly and urgently to tne case of black women.

B-7



VciqC - 8 ~
M r .  C n .xrloa Collin::, Cl C O  
A n n i e  t o n  A r n y  D e y o t  
Annin t o n , A.labaniu

n M l  n o n - c ^ s c n t i n l ,  n o n - j o b  r e l a t e d ,  n o n - r a c e  v a l i d a t e d
- i n a t e d  n o  f i a t  Lise t.c:;t o f  q u a l i ­ties tine should be ■ L u

t i c a t i o n  w o u l d  i*o p e r f o r m a n c e .

, • , -y -v- • y n w n e n t  a n d  c a r e e r  c o n d i t i o n1 ) T:\r-* * > O U C 7  O! i . vv* • -1 • - - . ^ ....... < ̂  V- !(' 1 OP.Oal e:iVnloy:.u»n! 'O'd cr- > l o y o o s  f o r  u n r e a s o n a b l e  Icrtot.is
of time should l>t-- diceontinueu .

*, ,„-rov;ith ru-umtaU c u r  tnird n,rtv complaint. of 14 So.»t«mb«r 1172.

V o r  y t  r; u 1 y y o u r .- ;,

M ie n  .-H ack , J r .
D:*mu ty :'i rector

'iioii o f  .'.O'-iai. I n  format, .ton 
L o y a l  Defer*. rone.
'•iCr*r>x*is , Tonnocsoo 3ox0.>
cc: Mr. Jack dre :n!i-:rn, I'm.

naacp neoal Defense y Miucationa 1
5’uite A 0 1 9 
10 Co 1u m-u :; Circle

York, M o  YorK 10019

Harold A. Franr.lin
President
Ta1ladeca County
Drench ;i/'Jd'.P
Talladoea, Alabama

runci, T.nc.

i(> J

C o l o n e l  M a r v i n  k . d i c e  
Cor.maud a n t  
A till i 5? yon Army Danot. 
n n i a  t e n  , A l n k a n n  1 0 2 J i

;»r>Jr-i(>.a i:

B-8



Our own investigation reveals:
Total Depot Employees.................3,960 or 3,970
Total Class Act Employees .........  1,004 or 1,02 4
" " " BlacJc.................  13
" " " Black Interns .........  4

Total Wage Grade..................... 2,956
" " " Black...........  34 0

Total Black Supervisors............  2 (w s t 8t w s -5
" " Leaders.................  7
Total Black Employees ............  365 as of 9/30/72

" Female Employees.......... 10 or 11

Class Act Employees Black 
1 - GS - 9 - 
1 - GS - 7=
7 - GS - 4= Guard - Clerk - Clerk 
1 - GS - 5~ Guard 
3 - GS - 3= Clerks

Interns
3 = GS - 
1 - GS - 
1 - WG -

1 = 
5= 
13 Inspector

1 - WG - 12 Inspector
2 - WG - 11 Inspector
7 - WG - 11 Mechanics
Temporary Black Employees........ Approximately 7 5
Permanent " " .......... Approximately 290
Total White Females Employees:.....  555

B —9



AGENCY AMD CSC COMPLAINTS EXAMINERS
.0 DiSCN ; COMPLAINT
CASES D:R I N G  FY 1973

Number of Decision on Merits-----------

L. Findings of Discrimination

a. Overall-------------------------------- 0 9  or 21.37.

b. By agencies (333 cases
where no hea r i n g )------------------ 66 or iy.B/»

C - hearings) ~ — ....  113 or 22.37. d)

d. Reversed by A g e n c i e s ------------------ 23 or 20.3%

2. Findings of No Discrimination

a. Overall------------------------------- 661 or 78.7%

b. By agencies (333 cases
where no h earing)------------------- 267 or 80.17.

'• h e a r i n g s ^ " - - - - " -" ...... - 3 9 4  °r 77.77.

d. Reversed by A g e n c i e s --------------- 3 or 0.8%

3. Agency treatment of Complaints Examiners 
decision - Number of Hearings Held

a. Overall

(1) affirmed--------------------------^31 or 94.97.
(2) reversed--------------------------- 26 or 5.1/.

b. Findings of discrimination ------ 113

(1) affirmed--------------------------- 90 or 79.6%
(2) reversed--------------------------- 23 or 20.3/.

c. Finding^ of no discrimination---394

(1) affirmed--------------------------391 or 99 27.
(2) reversed-------------------------- 3 or °*87'

C-l •

840

507



I

Number

p e r f o r n a n c s  *:v a g e n c y  a
IN E E C DISCRIN 

CAS IS DL7.

,:;o esc o m ’f 
U n a  no:; c o n .
.INC FV 1974

A (.NTS EXAMINERS 
'LAIN!

of Decision on N e r l t s ---

1. Findings of Discrimination

a. O verall------------------------ 12.87.

b. By agencies (767 cases 
where no hea r i n g )------ — ------  72 or

1
9.47.

c . By our examiners (In 643 
hearings)-- -------- --------- 16.97, d )

d. Reversed by Ag e n c i e s------- ------ 29 or 26.67.

2. Findings of No Discrimination

a. Overall------------------------- or 87.17.

b. By agencies (767 cases 
where no he a r i n g )------------ ----695 or 90.67.

-

c. By our examiners (In 643 
hearings)---------------------- or 837. ( v i L t l t c d l ' - '  I- J

d. Reversed by A g encies-------- ---- 7 or 1.37. . . -
: 3. Agency treatment of Complaints Examiners'
> decision - Number of Hearings Held------------------------------

a. Overall

I (1) affirmed-----------------------607 or 94.47*
'■ • (2) r e versed----— ----------------- 36 or 5.57. " n"r

b. Findings of discrimination-------109 ‘ r.rf-

(]A f f ir m e d------------------------- 30 or 73.34
(2) rev e r s e d ------------------------ 29 or 26.64

c. Findings of no discrimination---534
$

(1) a f firmed------------------------- 527 or 93 67.
(2) re v e r s e d -------------------------  7 or 1.37.

‘

C-2
ji



At t a c h m e n t d

UNITED STATES CIVIL SERVICE COMMISSION 
BOARD OF APPEALS AMD.. i’FA'IFJ, 

Washington, D.~*~~----

Indexed Under:
No. 713-73-U65

- Discrimination, Allegation of (Re-
n F r T s '  ligion (Jewish) Promotion, Failure
D E c 1 s • to be Selected For J

£

T1PE CASE: Discrimination Based On
Religion (Jev.-isTt)

INTRODUCTION

By letter dated November I 7 , 1972,
submitted an rj-peal, throu 

a decision issued by the D loartment of

y-xrj.r;.+ A*11C/ rŷ ,« 33? > and
’ll their - represent at ivc , from 
the Navy c>n Noveml ar 9, 1972,

which found that the evidence of record did not support ‘.he complainant's 
allegation that the agency s failure to promote them res ilted from 
discrimination based cn religion, contrary to tiie Findings, Recommended 
Decision, and Recommend Action by the Appeals Examiner.

STn--.iSF.NT OF THE CASE
&

All three complainants are employed in the Buying Branches of th° 
Purchase Division, Aviation Supply Office, rfLairSKJ&VTl 
■Until her promotion to Procurement Agent, CS-11, in late 1972,

was employed as a Procurement /-.gent, GS-9. f^ tJ^ 'X SSSZ 2Z S(^  
and are employed as Contract Negotiators, GS-12.

On January 21, 1972, the complainants contacted an Equal Employment 
Oppprtunity Counselor, and, in a complaint submitted by their 
representative on March 25, 1972, they alleged that they and other 
Jewish employees in the Buying Branches had "been denied promotion 
or. {had] failed to be promoted because of their religion." In their 
complaint, they alleged that they were well-qualified l’cr promotion;' 
that non-Jcwish employees whose qualifications were inferior to theirs 
c a d  w h o s e  length of service was shorter than theirs had been promoted 
w h i l e  they had not; and that there had been no promotions of Jews 
*dn their Division beyond the grade CN-9 level since. 1965. They 
requested the following corrective action:

i z
34
-0 - 3t■/•:

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2

a. Immediate promotions [of] the individual complainants 
h e r e i n :

b. A careful review. . . of the personnel files of Jewish 
employees in the Buying Branch, Purchase Division, of 
the Navy Aviation Supply Office;

c. Immediate promotions [of] those Jewish employees found to 
be qualified for and deserving of such promoticns; and

d. Appropriate directives and instructions . . .  to all 
selection panels and personnel authorities dealing with 
promotions, bringing forcefully to their attention the 
policy of the Department of the Navy toward all military 
and civilian personnel in the matter of r e l i g i m s  
discrimination as is more particularly set forth in the 
proceeding [sic] paragraph 9 hereof.

O
The complaint was investigated from April 11 through Mav 2, 1972; 
and a meeting was held on 'une 5, 1972, in an unsuccessful attempt to 
resolve the complaint informally. By letter dated June 7, 1972, the
C  r\ r~ —  p n r l ' n n  O f f i  re. *• rx f «-1. r» A »»-J ~ ~  C  1,. O  ̂  ~ ^  ̂  , J ^ j „ • _  _e - - - • " --------* " l- "7  ̂■*. *■ w '*• (■*. v/owov.u o
m  i eh no finding of discrimination would be made, but the following 
corrective actions would b<. taken:

a. . . .  the next selection panels constituted to process 
selections in [Cf-11 through GS-13] positions would be 
appointed by Command level . . .  as opposed to Division 
l e v e l .

b. . . .  these selection panels would be made aware of the 
substance of this report by the Executive Officer or the 
Commanding Officer.

c > . . .  all ASO candidates under consideration by these
selection panels v/ould be interviewed for such positions.

d. . . .  a written document reporting the basis for selection 
and non-selection of all candidates for such positions by 
these panels would be submitted for Command approval.

The c o m p l a i n a n t s , by letter from their representative dated June 9, 1972, 
expressed dissatisfaction with the above proposal and, on August 14, 1972 , 
a hearing was held at Lhcir request.

In a report to the agency dated September 11, 1972, the Appeals Examiner 
v n e  conducted the. hearing in tills case stated that "the circumstances 
surrounding [the complainants'] failure to achieve promotion, plus the 
la d ;  of promotion above GS-9 of any Jew, convinces us that there is more

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D-2..... ■■ . -- -... ....a a k l m



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than a statistical oddity on which their cor.plaint is based.” He “ “
recommended a finding that the agency had discriminated against the 
complainants on the basis of religion.

l
AGENCY DECISION

n

On November 9, 1972, the agency issued its decision that the evidence 
of record did not support the complaint of religious discrimination. 
The following five reasons were given by the agency for its failure 
to concur in the Appeals Examiner's recommendation:

(1) There was no evidence in the record of "discrimination 
against Jewish employees on the part of any supervisor ar official 
or religious group ir. the Purchase Division";

(2) The agency ccleupred in the Appeals Examiner's findings 
that length of service, n it.self, is of questionable value, and it 
was found that due consideration was given to the comp] linants' 
e x p e r i e n c e ;

(3) There was no evidence in the record of discrimination 
against Jews with respect to performance a w a r d s , com m e n d a t i o n s , 
grade-building assignments, or training, or of failure to give 
these factors due weight in selections for promotion;

(4) the "evaluation, and selection methods employed were 
appropriate and applied with equity and fairness", and there was 
"no evidence that any of the selections were made for n.mmerit 
reasons or that any of the selectees were not worthy of promotion"; 
and

(5) Jewish employees were included on some of the panels which 
made selections for GS-11, GS-12, and GS-13 positions, and there was 
no evidence that agency officials were aware of the grade-level 
distribution of positions held by Jewish employees.

The agency concurred in the four actions proposed by the Commanding 
Officer in his letter to the complainants dated June 7, 1972; and 
noted that the following recommendations were being made to the 
Commanding Officer:

(1) "that management officials make a concerted effort to 
dispel the strong belief expressed by several Jewish employees in 

•addition to [the complainants] that there is little chance for 
promotion beyond GS-9 on the basis of the statistics concerning 

^ promotions to Jewish employees since 1965";

D-3
ape/COO



J
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(2) "that Equal Employment Opportunity Program training and 
supervisory training stress the importance ofi refraining from 
comments or jokes which might be construed as indication of insen­
sitivity toward persons of a particular race, color, religion, sex 
or national o r i g i n ;"

(3) "that selection advisory panels ensure that the qualifi­
cations of all candidates in the range of consideration are reviewed 
in all cases and that recommendations are fully documented"; and

(A) "that employees upon request be advised of tne areas, if 
any, in which improvement could be made so as to inertase their chances 
for future promotion . .

REPRESENTATIONS TO THE BOARD OF APPEALS AND REV[EW

n

By letter dated November 0, 1972, the c o m p l a i n a n t s ' representative 
pointed out a number of errors in the transcript of the hearing in fl)i c T r\ 1 fi #' f o T* f !'}’»»'* I'r\r»vr1 <1̂1 rwl JV» pm iJ>r» y ft ,'j V'l T).-» rnml̂ o v
1972, the agency exnrinsse^ its concurrence in the spelling and 
punctuation corrections proposed by the c o m p l ainants’ representative, 
suggested that: a review be made of the accuracy of the transcript, 
and enclosed a report on the corrective actions taken Iv the agency 
in this case.

The complainants' represertative, in a letter to the Beard dated 
February 19, 1973, alleged that the written information which the 
agency had given to its selection advisory panel, members as part of 
the corrective action taken in this case would not eliminate the 
alleged discrimination against Jewish employees. He further alleged 
that this information handout would be "likely to have the opposite 
effect" for the following reasons: (1) the employment statistics
given in the handout were for the Purchase Division, whale the 
complaint concerns employment practices in the two Buying Branches 
of that Division; (2) the. figure fiver, for the Jewish proportion of 
the population in the recruiting area was too law: and
(3) the [ r Inferences to Jo: ] e lig i ous [p ] e rcent ages arid [qjuotas arc 
[o]ut of [p]lace because the complainants have never "claimed that 
the percentage of Jewish employees at each grade level should 
approx!mate the percentages of the Jewish population" and because 
"■no individual should be required to give up his right to be judged 
on his own merit simply because employees of his religious conviction 
already approximate the percentage of his group in the popluation." 
The complainants contended, in the February 19, 1973 letter they 
submitted through their representative, that "wilful or malicious

237
D -4

IV*'.'

r
i



5

intent . . . should not be considered an essential element of an
unlawful discriminatory practice"; that "courts have consistently 
held that the proof [of discrimination] offered may be less than 
an admission or its equivalent from a respondent that nc has 
discriminated because of race, religion or national origin ot a 
c o m o l a i n a n t " ; and that the Board "should not expect the kind ot 
proof which it knows it is practically impossible to secure in 
any such complaint." In addition, the complainants representative 
alleged that the promotion of one of the complainants ft on a GS 9 
position to one at the CS-.11 level was "long overdue" and "probably 
brought about as a result of this very c o m p l a i n t ', and that it is 
not evidence that this complaint is not well-founded.

>. CC-5V 0 £ a letter from the complainant, who was promoted to GS-11 
recently was enclosed with the complainants' letter of i-ebruary 19,
1973 In this letter. :he complainant stated that she was the only 
Jewish employee of either Buying Branch holding a GS-11 position; 
that there were no Jewr employed in GS-13 positions in either o 
the Buying Branches; that the only Jews in GS-12 positions in t e 
Buying Branches were the other two complainants, and t.*at she was 
not withdrawing her complaint following her promotion because she 
u j  *-Un b?.tris o f. n 1 p.*»n ** cf"i-11 She . urlner
alleged that her promotion was "long overdue"; that she " rather 
doubt led] that [she] wou.d have been promoted when [see] was were 
[she] not one of the complainants in this discrimination case ; and 
that of eleven persons interviewed for the position for wnicn she 
was selected, and of the six persons chosen, she was the only Jew.

On March 16, 1973, the Board received another letter, dated March 12,
1 9  7 3  " from the agency. In that letter the agency continued that 
statistics cited in the 1972 edition of the World Almanac indicated 
that the population of lme tZ S S S Z B S S T 'Z S * netropo.i itnn area was less 
than 17 Jewish; and that the religious statistics cited by the agency 
in its handout to selection advisory panel tr.nmbc.rs "were unknown 
prior to the investigation and were used in the subject memorandum 
not to preclude selection because a certain percentage was readied 
but to comply with the proposed disposition of the complaint tins 
command committed itself to." The agency also alleged that the 
statistics given in that memorandum had been based on employment 
in the Purchase Division rather than in the two Buying Branches 
because "reassignments have been made both in and out of and between 
the Branches and the staff"; and that, while the complainant vno was 
promoted recently was correct in stating that she was the only Jewish 
employee interviewed for the job, "it is more fairly put to state 
that all the candidates whose names were before the selection P anu 
were interviewed and that [she] was the only Jewish employee certified

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L £C8

D-5



6

for consideration." In addition, it was noted that 
selected for promotion to a position .above the G5-9 
Division since the above c o m p l a i n a n t 1s promotion is

the only employee 
level in the 
also Jewish.

ANALYSIS AND FINDINGS

The evidence of record shews that there were 65 promotions to GS-11 
and GS-13 positions in the Buying Branches of the Purchase Division 
between 1965 and the. date of the investigation of this complainL, and 
that, although 22c of the employees of Liiese branches are J e w i s h , none 
of the employees promoted by these actions is Jewish. The record 
also shows that the. icwish employees whose names anpenred on promotion 
certificates for GS-11 an 1 GS-13 positions often reccj .ed as high or 
higher numerical ratings for promotion as the (non-Jewish) selectees.

After a careful review ol the record in this case, the Board finds no 
reason based on merit for the repeated promotion of non-Jewish 
candidates over Jewish candidates who apparently were equally or 
better qualified for promotion. As the Appeals Exarnin ;r has indicated 
in rhp re nnrt of In*, s findinqs x^hi c"^nittp d Co
complainants’ educational achievements were comparable to those of 
employees who have received promotions to GS-11 and GS-13 since 1965.
In addition, the complainants rank as high or higher than those selected 
for promotion with respect to the number of their perf .'mange evaluations 
above the satisfactory level, and with respect to the numbers of letters 
of commendation which thev tiave received. There is no disparity between 
the ages of the selectees and those of the complainants which would 
indicate that age was n factor in these selections for promotion.
(The Board notes that it lias made no comparison of th : length of service 
of the selectees and of tec complainants because, although the 
complainants have alleged that they have, had longer relevant experience 
than the s e l e c t e e s , the Beard does not consider longer service an 
indication of superior qualifications for promotion.)

Selection panel members have cited as the reason for their failure 
to select the complainants for promotion the beliefs of some of then 
that one or more of the complainants was inferior to the selectees 
with respect to initiative, k n o w l c d g e a b i l i t y , administrative and 
supervisory ability, the ability to express themselves, adaptability, 
and innovativeness. As has been noted by the Appeals Examiner, however, 
the complainants have submitted evidence that, in some areas in which 
selection advisory panel members found their qualifications inferior 
to those of the selectees, they have received highly favorable 
performance evaluations, while in other areas the panel members had 
insufficient evidence on which to determine that the qualifications 
of the complainants were inferior to those of the selectees.

rf'-j

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r-7

D-6



In view of the above, the Board finds that the agency has failed to 
show a nonreligious merit basis for its failure, over a period of 
several years prior to the date of this complaint, to promote the 
complainants or any other Jewish employees of the Buying Branch to 
any positions above the GS-9 level.

There is no information in the record about the religious aftiliations 
of employees below the GS - ‘. level. The record does show, however, that, 
at the time of the investigation, Jewish employees held none or the 
eight positions at the GS- 13 and GS-14 levels in the .eying Branches, 
only 20% of the 15 US-12 -ositions whose incumbents were identified by 
religious affiliation, an l none of the 13 GS-11 positions. The 
statistical evidence allows , however, that they held 4_., or the 48 
positions at the. GS-9 level whose incumbents were idea* i : red by 
religion. The Board notes that, according to the rbrv: statistics, 
only 8% of the 36 employees whose religion was identified by the 
investigator and who held positions above the .3-9 lo ' 1 in the 
Buying Branches arc Jewish, while 42% at the GS-9 level whose 
religion is specified in the record are Jewish.

on tne 
the Purchase 

individual
•t.

With respect Lo the agency’s contention.-* <.Wat '[l]here ..s .no 
in the case record of discrimination against Jewish crp..o'_, ecs 
part of any supervisor or official or religious group in 
Division", and that the complainants cid not charge .-nr 
with discrimination a,gains; them., the Board notes that neither the 
naming of an individual or individuals responsible foi ..he dis ci immation, 
nor evidence of overt prejudice or discrimination on the. part of any 
official f is essential in a case in which a finding o. d-s crimination 

The Board also notes that tire fact that Jowif.-r erplo\ces 
g the members of some of the selection advise a / panels does 
~ t t h a t  there corld be no discrimination agai rst Jews with

is made, 
were amo: 
not. ir.di:
respect to promotions.

In light of the evidence cj ted above of the disparity in treat..rent, with
between Jewish and -non-Jcwish employees of

in the absence u f evidence of nonreligious
respect to promotions, 
similar o-.al.icreations,
merit reasons, for this J is parity in tre a t m e n t , tire board coir Luces (- 
that tire evidence of record indicates that there lias been discrimination 
against Jewish employees with respect to promotions; (2) that this 
discrimination has had an adverse effect on the promotional opportunities 
of the three complainants and (3) that, in the absence of this apparent 
discrimination, the two complainants who have, not been promoted reoently 
and who now occupy GS— 12 positions would have been promoted to GS-13.

D-7 240
V. •*».' ..'W



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n

d u c t s  to:; a ::d n;:cn;:• r o r u x i  rv;: a c t i o *:

The decis ion issued by the Don ar trace.t of the liavy in this case on
Novc -I or 9 , ]_? “ n t V - ; .r  y ' - • • be corrective action is
re cor-ended for t2=2353S2531’i becauho the record shows that she has
beer. pror.ote d sircc: the t:: c the cor pie:nr was f i l e d . however, the
Board rccos~o:.bs t:: a £ bo promoted to ths
next G S - 1 j VtiCt-T.ciĉ i l.or v. i cu u i i c c , u •

i mi’j.: TO 0” rr actio::

A report of the act: cnr. rnhe.n or pr.opoi _• v‘ 111 res non.se. to the a be
re cev.v.oi'd’i l. ions should b o furni.slued to * \ ■ r» ; \ OA r d within ten cnlo
days after the. ca L e o f ; coipt of ibis cl ? c i r : or.. The roport sac
be addressed to the Boa: .1u* of Appeals as. ilr.v:: , Uni ted States C
So rvi.ee Cniv'ti s«: jon, Urn: i•.Taton, H. C., M A t t e n d o n :  Coup ] 1
Desk.

Civi 1 c;r rvicc ■' ''‘/J1 •i t- -jo\ i: prov i-oi: i ;\ a ('• 0 j a'i o ', of f ho. Bor1 ’J f. .
fine. 1 ft' ld tit at L;. r ;C s ;:o l’ u v 11 • r r 1r • 11 of - : t!) i. i l r. ;f.i w c ‘ • "
hose VC V > i f : :; s ::.<y ;*> 1:1 d . . 1 '• I. !’C: 0 * . ) .. . .O . v it; i ti:.;r» cij: v.. . a.: a
they P V0 at: Li tori :\ \j (.i tv-• s o c : i rr 7 3 7 Ci, \ _ - - j ^j- C:v ii r.-'p ii ^c.t,
c'.. V .de<i » to file a Cl i \:i! act:: or ir : ' :'v»y-r i c: o. U . S . I) is. t r iC I
Cesar t o'i.L’r.in tin: L v (30) calendar d;• y s o ;: In air receipt of tin s
do ci•L*i o ,
For the Cor.'.rr.is s ione rs :

V. i 1 ] j a. i I • l /.du
Chai ra.an

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April 13, .1973

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D- 10



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Pt'ca.use of the s t r o n g  feel i 
this c ase , I r e g r e t  tt
f o r  the Cor'-.iiss 1 oners:

• * ■ *13 s y o u  p x o r e s s  in v ^ 1 > •-Sis c ase , I r e g r e t  t h a t  this r e p l y  „ ^ "• " LCr r ^ - i r J 1 n o'-piy Cw..ui n-)c tv iovorable.

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a  n r o£ th e  , , 'avy
■; con > 0 . ■ C. 20350

S i n c e r e l y  y c u r s ,

A .'I <
Robert R. | , tcs 
Assistant to the 
Co.VMlssioucrs (Appeals)

12/19,73

, /- " / /D-ll



"ATTACHMENT E "

UNITED STATES CIVIL SERVICE COMMISSION 
WASHINGTON. D.C. 20415

JAN 2 7 1975

Subject: 

From:

To:

Third-party

Irving Kato 
Assistant Exe

f Discrimination

ve Director

Directors of/Equal Employment Opportunity 
Directors or Personnel

IN REPLY PHASE REFER TO

TOUR REFERENCE

The following, in question and answer format, is a discussion of 
specific issues which have been raised recently in connection 
with the processing of third-party allegations of discrimination 
under Section 713.251 of the Civil Service Commission's 
regulations.

As a preface, some general observations regarding the intent and 
proper use of the third-party provisions may be useful. It is 
essential to distinguish between this procedure and the procedure 
for individual complaints of discrimination. Attempts to 
anologize between the individual complaint procedures and the 
third-party procedures can lead to confusion and should be 
avoided.

The regulation pertinent to third-party allegations (Sec. 713.251) 
provides for submission of "general allegations by organizations or 
other third-parties of discrimination in personnel matters which 
are unrelated to an individual complaint of discrimination ...."
We believe the language here is self-explanatory with regard to 
the nature of an allegation which may properly be brought through 
the third-party procedure. Third parties can use this procedure 
to call agency management's attention to policies or practices 
which they believe to be discriminatory. Such matters are handled 
solely through an agency investigation and, at the request of the 
third party, review by the Civil Service Commission.

Individual complaints of discrimination, on the other hand, are 
handled initially on an informal basis (through precomplaint EEO 
counseling), and then formally under specifically prescribed 
procedures which include investigation of formal complaints with 
testimony taken in affidavit form; proposed resolution at the 
conclusion of the investigation; hearings conducted by independent 
examiners which are recorded verbatim; a final decision by the 
agency; and right of appeal by the individual complainant to the 
Civil Service Commission's Appeals Review Board.

T H E  M E R IT  S Y S T E M — A G O O D  IN V E S T M E N T  IN  G O O D  G O V E R N M E N T

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2
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 this manner. Commission regulations require, that 
individuals who believe they have been discriminated against and 
who wish to seek redress will do so under the EEO counseling and 
discrimination complaint procedures provided for that purpose, and 
in this regard a complainant may be represented by a person of his 
or her own choosing. The third-party procedures are not designed 
or intended to be used as a substitute for the EEO counseling and 
complaint procedures.

Answers to specific questions, which follow, should be considered 
in light of the general observations outlined above.

Question 1: May a third-party allegation be filed by an
individual? Before accepting the allegation may the agency properly 
require the third-party to demonstrate a reasonable interest or 
nexus in filing the allegation on behalf of another person, group 
of persons, or class of persons? May an agency cancel or reject a 
third-party allegation if a party who has allegedly been the victim 
of discrimination so requests?

A n s w e r : Any third-party, regardless of constituency or stated
purpose, could be presumed to have a reasonable and legitimate 
interest in the equal employment opportunity program of a Federal 
agency, and we see no reason to require the third-party to establish 
a "nexus" for bringing general allegations regarding the agency's 
policies or practices. As long as a legitimate third-party standing 
is shown--that is, as long as the allegations relate to general 
matters and are not related to individual complaints--the regulation 
does not preclude the filing of a third-party allegation by an 
individual.

As the preliminary discussion points up, EEO counseling and discrimi­
nation complaint procedures are available to individual employees or 
applicants who believe they have been discriminated against; and 
third-parties should not be permitted to circumvent these 
procedures--with or without the consent of an aggrieved individual-- 
through the filing of a third-party allegation on a matter which 
would be an appropriate basis or reason for filing an individual 
complaint of discrimination. Any third-party who files allegations 
under these circumstances should be advised regarding the proper 
channels for pursuing individual complaints, and should be informed 
that the third-party procedures are not available for this purpose. 
(It should be noted that references herein to "individual" complaints 
include those in which two or more persons jointly file a complaint 
regarding the same action).

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7 ,

It is possible that a third-party might mention individuals' names 
in citing examples of the kinds of actions on which general alle­
gations regarding a personnel policy or practice are based. 
Mentioning individuals in connection with a third-party allegation 
under these circumstances does not require the consent of those 
individuals and if in fact a general practice of the agency is 
being questioned, then the fact that an individual named on the 
compiaint as being affected requests cancellation is not material 
and should not preclude investigation by the agency. It should be 
understood, however, that the agency investigation (or a Civil 
Service Commission review) of general third-party allegations is 
not expected to cover individual cases in sufficient depth which 
necessarily would result in findings or decisions with respect to 
tiose indtviduals; and to avoid any misunderstanding the agency may 
f i n d / 1 desirable to inform the third-party, in acknowledging 
receipt of general allegations which include reference to individ­
uals, of individual complaint procedures if specific individual 
relief is sought.

Question 2: Can an informal resolution meeting between
management and the third-party be required by the agency before 
accepting a third-party allegation? May informal resolution be 
attempted at other points in the process?

Answer: The terms "formal" or "informal" are not relevant to
the resolution of third-party allegations. Resolution of a third­
l y 7 allegation may be attempted at any point, as long as undue 
delays in processing do not result, and as long as the terms of 
any resolution are reduced to writing so that a decision on the 
allegations is provided to the third-party as required by the 
regulations. A  third-party cannot be required to meet with agency 
management for the purpose of effecting resolution, however, although 
we think the practice of meeting with the complainants, particularly 
after the investigation is completed, is a good one.

Q uestion 3 : If a third-party allegation is filed on the basis
hat a proposed or contemplated management or personnel action will 

have a discriminatory effect on a person, a group of persons, or a 
class of persons, may the agency postpone, cancel or reiect the 
delayed?0" ^  aCti°n iS n0t lamented or implementation is

A n s w e r : Generally speaking, decisions to take management
i m n U r f r lnVOlVfn!Kempl0yeeS are made after due consideration for all plications of the proposed actions and alternatives to these
actions, including their likely impact on the agency's equal employ-
nriatePP°£bUnitL POStUre and after uni0n consultation where appro-' priate. Where this is done, and where the reasons for any proposed

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7 .

or contemplated actions and their probable effects are
employees who may be affected, third-party allegations o f V / ^  < °

nation are less likely to arise. Obviously, where th" Vet l on
complained about has in fact never been taken then there is no
asis for the third-party allegation and this can be relayed to the 

third-party in the agency's reply. reiayed to the

and/ mana8ement, alleged discriminating officials
the 8 V1^ m S  °f di6crimination have access to copies of
the third-party allegation? To whom may the file be shown" May
t^JhPeaSOn be f 1Ven the °PP°rtunity to comment upon the file prior 
to the decision? After the agency decision has been made is the 
frle an open record? If not, to whom may it be shown?

Answer: In a properly presented third-party matter there is nozzxzzxz, „e

S  ^  7'llz™llys to c° n“ lbute

It should be borne in mind that an allegation is just that and that

“r bo8;;
agency (or, on review, the Civil Service Commission) can tike or

by third-parties as alleged discriminating officials.

The sole purpose of an investigation into third-party allegations 
should be to determine and record the facts, so thatthe third-partv 
can be advised of them, and so that responsible r^nagement can lake
be a « e £ t e d  f r o m ^  aPPr°P.riate based on the facts. Comments should accepted from anyone who comes forward to contribute factual
infomation, alth°“8h ^  ° £ f i C U 1  - s p o n s i b l e  for the c o n d " "  of 
he investigation should make determinations as to what is relevant 

and pertinent and should therefore be included in the file.

gating official's determination as to theil Relevancy i"ve s “ ;

the^third-partyl0SWe ^  ^

invasion of an individual's privacy ̂ i g ^ c ^ 616"1003 ^

4

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* .

There are, incidentally, no procedural requirements for the investi­
gation of third-party allegations as there are in individual 
complaint investigations. There is no requirement, for example, 
that evidence even be obtained and recorded in the form of affidavits. 
The regulations covering third-party allegations are intended to 
afford agencies maximum flexibility and opportunity to tailor their 
investigative techniques and approaches to the situation in each 
case.

5

Question 5 : Are there any grounds upon which an agency may
reject a third-party allegation?

Answer: An agency would be justified in rejecting a third-
party allegation if it were so vague as to make investigation 
impossible. In such cases, however, the agency should explain this 
to the third-party and provide an opportunity for the allegations 
to be made more specific.

Agencies may also reject allegations which are not properly under 
the purview of Section 713.251 of the Civil Service Commission's 
regulations--i.e., do not allege that agency policies or practices 
are discriminatory on the basis of race, color, religion, sex, or 
national origin, or those which should be processed as individual 
complaints.

Question 6 : Does the Commission anticipate assuming juris­
diction on third-party allegations when they are filed with the 
Commission?

Answer: Organizations which erroneously direct third-party
allegations brought under Section 713.251 to the Civil Service 
Commission will be referred to the agency, where initial processing 
must take place.

Letters or other communications to the Commission which are not 
specifically filed as third-party allegations under Section 713.251, 
however, will generally be handled as ordinary correspondence, 
unless the Commission determines that the matter should be processed 
under Section 713.251. Where appropriate in connection with the 
preparation of replies to such correspondence, the Commission may 
ask agencies to obtain and furnish information necessary to enable 
the Commission to determine the validity of any allegations, or 
other information needed to respond to the writer and to assure that 
action is taken where it is indicated by the facts.

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* *

We hope this discussion of specific issues will be helpful to you 
in the processing of any third-party allegations which may arise 
in your agency. And will help also in putting the third-party 
procedure into proper prospective vis-a-vis the individual EEO 
counseling and discrimination complaint process.

6

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