Swain v. Callaway Brief for Appellants
Public Court Documents
January 28, 1975

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Brief Collection, LDF Court Filings. Swain v. Callaway Brief for Appellants, 1975. 647db578-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0bb0d7cf-2c97-4031-bfa7-9d53cd729726/swain-v-callaway-brief-for-appellants. Accessed June 13, 2025.
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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■/•: j . / 4^ , «• i.- v.' ̂ , .. ‘ ̂ /. m._> » {■• i . «, *"**. V* • ... / . *- if-- \ - -T V. - v- 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 K ' V'-'y D-2..... ■■ . -- -... ....a a k l m ■ n 3 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 'A (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 VVM SB 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 F " iF<4t F'f 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 8r 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. 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G e n e r a l l y , i n o r d e r f o r a n e m p l o y e e t o h a v e a v a l i d f i r d - n - y t „ n . c c v p i a m t o f d i s c r i m i n a t i o n w i t h ’ r o o c - r d t o h i s . l o r e t o 1 ’ t h j e m p l o y e e > U j t b r i n g m e . l a t t e r t o t h e a *■*.:.i i o n o f fp’ •• ■ ] • . t i p l o y . a e i i t o ; m r t u m t y C o u n s e l o r w i t a i n t i i i >' v y . v s o f s p e c i f i c p r o u t i n n a c t i o n o n w h i c h a n o t : e r c 1 t-vm^ v, a- p r j s e n t a n v i - ' : n c o o r I n f u n a t i o n ' . a a v r . . .v , V r J ' p r e . i i i . i t c j i . : . c r i m i n a t i o n ; .-s the? r e s o n f o r pr< . u i . i o i i , ns* 2 i o r t h e s e l e c t i o n o f ! , n t ; . . - . I n f i n ' s c a s e i:.-. c c - i l a u : t s d i d a l l . o - j . 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' . i f " S n o s a c , , . - S. 1 C i l l J S ■ .: v . - u a n t ,• . j i a a r < f t i i e i r r o i i i . . y • i l i o n t h e y : ■• 1 d r. vo . .-. o r - .a ' i-0 r r ; y V i s t a r . . : s , . ; ■ t I o r - • t h e Co. l i s s i a i n t h e c. v - . v r s c i t h a t c l : a r e - " r : : . ' ■ . i - . s , , v i : J n o ' 1 "C l.:: i > : •'! •' . . ' . / i '• • ' '• a i s i r,\ . • ■ c r e f . . .. ; C'O'j 1 i • , j < - * ' ; ; y • • r' <J i . i . . . j u r e vh. •. i i f : i s u r e ■. : l I-.' - v i . ' t a n y e , . i i; 1 t b . i i i : . . • ’> • r f • ) ; . : . c; , • i « i < L | r.nl , ' | : i' >.1 0 ? a b o v e , w-: i o r i c J S i n c-: l e d n o v :!i ■ m s c a s e , . v . f ' .- r r e ^ c i n u i * • ’ r ' - "i s -. a , c . o dar ; - D- 10 3 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. ̂i o ,J n spAh 7. VcCullenn r "O'*" e t v y o-' th e< » r - r:') '••CSPf've A‘*a:r 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 E-l 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). E-2 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 E-3 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 E-4 * . 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. E-5 * * 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 E-6