Maddox v. Claytor Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
No. 84-8006

GEORGE A. MADDOX, et al.,
Plaintiff3-Appellants, 

v.
W. GRAHAM CLAYTOR, Secretary 
of the Navy,

Defendant-Appellee.

On Appeal from The United States District Court 
for The Middle District of Georgia 

Albany Division

ERIEF FOR PLAINTIFFS-APPELLANTS

JACK GREENBERG 
GAIL J. WRIGHT 
CHARLES STEPHEN RALSTON 

99 Hudson Street 
16th Floor
New York, N.Y. 10013 

C. B. KING
502 So. Monroe Street
Drawer 3468
Albany, Georgia 31706

HERBERT E. PHIPPS
Suite 226, Albany Towers 
235 Roosevelt Avenue 
Albany, Georgia 31706

Attorneys for Plaintiffs- 
Appellants



IN THE
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
No. 84-8006

GEORGE A. MADDOX, et al.,
Plaintiffs-Appellants, 

v .
W. GRAHAM CLAYTOR, Secretary 
of the Navy,

Defendant-Appellee.

On Appeal from The United States District Court 
for The Middle District of Georgia 

Albany Division

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record for plain­
tiff s-appellants certifies that the following listed persons 
have an interest in the outcome of this action.

A. As plaintiffs-appellants.
1. The named plaintiffs-appellants:

a. George A. Maddox,
b. William D. Abad, and
c. Eric D. Shepherd;

2. The class of Blacks now employed or formerly 
employed by defendant Marine Corps Logistics Base, Atlantic



located in Albany, Georgia;
B. As defendants-appellees.

1. W. Graham Claytor, Secretary of 
the Navy

2. Major General F. Sullivan, 
Commanding Officer

3. Warren R. Johnson, former 
Commanding Officer

4. Clarence H. Schmid, former 
Commanding Officer.

5. Carl R. Lee, Civilian 
Personnel Officer

6. L. Lamar Wiggins, former Civilian 
Personnel Officer

7. George C. Small, Director of 
Equal Employment Opportunity

8. Donald Devine, Director, Office of 
Personnel Management (formerly U.S. 
Civil Service Commission).

These representations are made pursuant to Rule 22(f)(2) of 
the Local Rules for the United States Court of Appeals for 
the Eleventh Circuit in order that judges of this Court, 
inter alia, may evaluate possible disqualification or 
refusal.

Respectfully submitted,

*



IN THE
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
No. 84-8006

GEORGE A. MADDOX, et al.,
Plaintiffs-Appellants, 

v.
W. GRAHAM CLAYTOR, Secretary 
of the Navy,

Defendant-Appellee.

On Appeal from The United States District Court 
for The Middle District of Georgia 

Albany Division

STATEMENT REGARDING ORAL ARGUMENT

In accordance with Local Rule 22(f)(4) plain­
tiff s-appellants respectfully request oral argument of this 
appeal. This matter raises substantial and complex ques­
tions of law regarding the appropriate standards of proof in 
pattern and practice class actions instituted pursuant to 
Title VII of the Civil Rights Act, as amended. Further, 
notwithstanding plaintiffs' unrebutted evidence, the Court 
below totally neglected to address plaintiffs' claim that 
the defendant's failure to develop, implement or maintain an 
affirmative action plan violated Section 717(b) of the Act. 
Finally, this action concerns the rights of named plain-



tiffs and class members to a trial on their individual claims.
Plaintiffs-appellants submit that the District 

Court's errors are clear from the record. However, oral 
argument is requested to assist in the presentation of the 
factual issues and in order to facilitate the resolution of 
the legal arguments presented in this appeal.

Respectfully submitted,

Counsel for Maintiffs-A'ppellants



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ................  i
STATEMENT REGARDING ORAL ARGUMENT ................  iii
TABLE OF CONTENTS .................................  V

STATEMENT OF THE ISSUES ........................... 1
STATEMENT OF THE CASE ............................. 2

A. Course of Proceedings and
Disposition in the Court Below .....  2

B. Statement of the Fact................  4
C. Standard of Review..................  34

SUMMARY OF THE ARGUMENT ........................... 34
STATEMENT OF JURISDICTION ........................  35
ARGUMENT ........................................... 36

I. The Court Below Erred In Holding That 
The Statistical Evidence Did Not 
Establish Discrimination ................  36
A. The Appropriate Comparison For 

Wage Board Promotions Was The
Internal Workforce ..................  36

B. Plaintiffs' Promotion Study Demon­
strated Discrimination .............. 42

C. The Defendant's Statistical Proof 
Supports A Finding Of
Discrimination ......................  45

D. The Failure To Validate The
Qualifications Standards And 
Procedures Violates Title VII ......  47

II. Defendant's Failure To Develop An 
Effective Affirmative Action Plan 
Constitutes A Violation of Section 
717(b) Of The Act .......................  49

Page

v



III. The Court's Decision With Regard To The
Page

Individual Claims Were In Error ........  53
A. The Named Plaintiff And Members Of 

The Class Are Entitled To Present 
Their Individual Claims ............. 53

B. Relief must Be Awarded To Those
Class Members Whom The Court Deter­
mined Had Been Subjected To Racial 
Discrimination ......................  55

CONCLUSION ........................................
CERTIFICATE OF SERVICE ........ ...................

vi



Table of Authorities

Barnett v. W.T. Grant Co., 518 F.2d 543
(4th Cir. 1975) ..............................  40

Baxter v. Savannah Sugar Refinery Corp., 495
F. 2d 437 (5th Cir. 1974) .....................  54

Brown v. General Services Administration, 425
U.S. 820 (1976) .............................. 50

Carroll v. Sears Roebuck & Co., 708 F .2d 183 (5th
Cir. 1983) ............................... 36, 37

Clark v. Chasen, 619 F.2d 1330 (9th Cir. 1980) ... 50
Connecticut v. Teal, ___ U.S. ___, 73 L.Ed.2d 130

( 1982) .......................................  54
Cooper v. Federal Reserve Bank, S.Ct. No. 83-185 . 55
Crown, Cork & Seal Co. v. Parker, ___ U.S. ___,

76 L . Ed . 2d 628 ( 1983) .......................  55
*Davis v. Califano, 613 F.2a 957 (D.C. Cir. 1979) 36, 39, 41
*Eastland v. Tennessee Valley Authority, 704 F .2d

613 (11th Cir. 1983) .......................... 45, 55
*EEOC v. American Nat'l Bank, 652 F.2d 1276 (4th

Cir. 1981) ...................................  41
Fisher v. Proctor & Gamble Mfg. Co., 613 F.2d 527

(5th Cir. 1980) .............................. 53
Franks v. Bowman Transportation Co., 424 U.S. 747

( 1976 ) .......................................  54
Grant v. Bethlehem Steel Corp., 635 F.2d 1007

(2d Cir. 1980) ............................... 40, 41
*Griggs v. Duke Power Co., 401 U.S. 424 (1971) ... 44, 47
Harrison v. Lewis, 559 F.2d 943 (D.C.C. 1983), 

aff'd per curiam, F.2d (D.C. Cir.
March 1 , 1984) ............................... 44

Cases Page

* Authorities principally relied on.

- vii -



*Hazelwood School District v. United States,
433 U.S. 299 ( 1977) .......................... 23, 40, 41

Johnson v. Uncle Ben's, Inc., 628 F.2d 419 (5th
Cir. 1980) ...................................  36, 47

*Lawler v. Alexander, 698 F .2d 439 (11th Cir.
1983) ........................................  26, 43

*McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982) 49
Morton v. Mancari, 417 U.S. 535 ( 1974) ........... 50
Parson v. Kaiser Alum. & Chem. Corp., 575 F.2d

374 (5th Cir. 1978) .....................  53
Payne v. Travenol Laboratories, 673 F.2d 798 (5th

Cir. 1982) ...................................  36, 37
Pegues v. Mississippi State Employment Service,

699 F . 2d 760 (5th Cir. 1983) ................  24, 41
Pnillips v. Joint Legislative Committee, 637 F.2d

1014 (5th Cir. 1981) .......................... 57
Segar v. Civiletti, 508 F. Supp. 690 (D.D.C. 1981) 41
Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th 

Cir. 1975) ...................................
*Teamsters v. United States, 431 U.S. 324 (1977) . 39, 40, 41, 53
Thompson v. Sawyer, 678 F.2d 257 (D.C.Cir. 1982) . 50
*Trout v. Lehman, 702 F.2d 1094 (D.C. Cir. 1983)

vacated, ___ U.S. ___, 52 U.S.L.W. 3628
(1984) .......................................  21, 37

United States Postal Service Bd. of Governors
v. Aikens, ___ U.S. ___, 75 L.Ed.2d 403
(1983) .......................................  21

Valentino v. United States Postal Service, 674
F.2d 56 (D.C. Cir. 1982) .......................  45

Table of Authorities
Cases Page

* Authorities principally relied on.

- viii -



Statutes, Regulations and Rules: Page
Civil Service Reform Act of 1978 .................  52
♦Federal Personnel Manual ........................  12, 32, 51, 52
42 U.S.C. § 2000e-16 .............................. passim
29 C.F.R. §1607, et seq............................ 48, 52
Uniform Guidelines for Employee Selection

Procedures ...................................  13, 48, 52

Other Authorities;
*H. Rep. No. 92-238 (92nd Cong., 1st Sess., 1971) 39, 47, 50
Schlei & Grossman, Employment Discrimination Law

(2nd Ed. 1983) .................................  11
*3. Rep. No. 92-415 (92nd Cong., 1st Sess., 1971) . 38, 40, 47

* Authorities principally relied on.

IX



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 
No. 84-8006

GEORGE A. MADDOX, et al.,
Plaintiffs-Appellants, 

v.
W. GRAHAM CLAYTOR, Secretary 
of the Navy,

Defendant-Appellee.

On Appeal from The United States District Court 
for The Middle District of Georgia 

Albany Division

BRIEF OF PLAINTIFFS-APPELLANTS 

STATEMENT OF ISSUES
I. Did the district court err in concluding that the 

statistical evidence did not establish classwide 
racial discrimination in promotions in violation 
of Title VII of the Civil Rights Act of 1964,
as amended?

II. Did the district court err in concluding that de­
fendants' statistical evidence was sufficient to 
demonstrate that there was no racial discrimina­
tion with respect to promotions?



III. Did the district court err in neglecting to address 
plaintiffs' allegation that the defendant's failure to 
develop and implement an affirmative action plan violates 
selection 717(b) of the Act?

IV. Did the district court eer in failing to afford the 
named plaintiffs, George A. Maddox and William D.
Abad, and class members an opportunity to present 
their individual claims?

V. Did the district court err in failing to award appropriate 
relief to class members whom the court found had been 
subjected to unlawful employment practices?

STATEMENT OF THE CASE

A. Course of The Proceedings And Disposition in 
The Court Below
This lawsuit was instituted as a class action by 

George A. Maddox, William D. Abad and Eric D. Shepherd, three 
Black employees of the Marine Corps Logistics Base, Atlantic, 
[hereinafter referred to as "The Base" or "defendant"] to 
enforce rights granted by Title VII of the Civil Rights Act 
of 1964, as amended by the Equal Employment Opportunity Act 
of March 24, 1972, 42 U.S.C. § 2000e-16(b). The action was 
triggered in accordance with federal regulations establishing 
the procedures for raising class claims.

On January 6, 1978 the Complaint was filed in the 
District Court for the Middle District of Georgia on behalf 
of three named plaintiffs, seventeen named members of the 
class and other Black employees challenging the racially

2



discriminatory employment policies and practices of the 
Base. (R. E. 10; 18-26).

On December 6, 1979 the District Court certified 
the class to include "all past, present and future Black 
civilian employees and applicants for employment at the 
Marine Corps Logistics Base. (R. 548 ). —^ In an Order of 
March 18, 1980 the court redefined the class to include "all 
present, past, and future black employees of the Marine 
Corps Logistics Base, Albany, Georgia who since January 28, 
1977, have been unlawfully discriminated against by employment 
practices of the Marine Corps Logistics Base. Specifically 
excluded are employees of the "tenant" activities on the base 
which are not within the control of defendant . . .", (R.
600 ) .

This case was tried before the Honorable Judge 
Wilbur D. Owens, sitting without a jury, commencing on April 
6, 1981. During the four days of trial plaintiffs challenged 
various employment policies and procedures practiced by the

1/ On January 8, 1980, the defendants moved for decertifi­
cation of the class. In the alternative, defendants sought 
a delineation of the class to exclude applicants for employ­
ment (R. 550-552) [It should be noted that page three (3) of 
"Defendants' Memorandum In Support of Motion to Reconsider 
And/Or Hearing on Definition of Class" is missing from the 
Record.]

3



Base, and alleged violations of the federal equal employment 
opportunity and affirmative action regulations. In support 
of these claims of racially discriminatory disparate treat­
ment and disparate impact, and regarding defendant's failure 
to comply with the affirmative action requirements of the 
Act, plaintiffs offered a plethora of statistical, documen­
tary and testimony evidence.

In an Order dated November 4, 1983 the district 
court found that the evidence failed to support plaintiffs 
class claims: (R. E. 59) Further, the Court denied the
claims of the two named plaintiffs, George A. Maddox and 
William D. Abad. (R. E. 60-61). The court did find for and 
grant individual relief to Mr. Shepherd. (R. E. 60). The 
court's judgment was entered on November 4, 1983 (R. E. 36).

The present appeal of the trial court's November 
4, 1983 Opinion/Order was timely filed on January 3, 1984.
B. Statement of The Facts

1. The Parties
George A. Maddox, one of the three named plaintiffs in 

the action has been employed by the Base, as a Wage Grade 
(WG) employee since 1974. (R. E. 15-16.) William D. Abad
has been a General Schedule (GS) employee with the Base 
since 1976, prior to that time he had been employed by the 
Marine Corps Logistics Base in Philadelphia, Pennsylvania as 
of 1954. (R. E. 16-17). Eric D. Shepherd, a General
Schedule (GS) employee has been employed by the Base since 
1958. (R.E. 17-18).

_ 4 _



The defendant is the Marine Corps Logistics Base, 
Atlantic located in Albany, Georgia.

2. The Organization of The Base
The function of the Marine Corps Logistics Base is to 

procure, maintain, repair, rebuild, store, distribute and 
inventory supplies and equipment. (R. 1014). In addition, 
the Base conducts schools and training; and provides ser­
vices to the support operations of activities and units of 
the operating forces of the Marine Corps. (Id.)

The Base is composed of twelve divisions known as 
"cost work centers" which as of 1979 employed approximately 
2,200 persons. These divisions are under the general
supervision of a Commanding Officer who is responsible 
for implementing personnel policies. (R. 1015). All of 
the Base Commanders, during the relevant time period, have 
been White (Id.) The Civilian Personnel Office and the 
Equal Employment Opportunity Office are the two major offi­
ces which are responsible for personnel matters. (Id.).
L. Lamar Wiggins who was the Civilian Personnel Officer 
from January 1975 until 1974 was replaced by Carl R. Lee, 
who held the position at the time of trial (R. 1015).
Both of these Civilian Personnel officers are White. (Id.). 
The majority of the persons employed in the Personnel Office 
are White. (Lee Dep. 22).

2/ As of October 1980 the twelve centers were material 
(406) facilities and service (291) centralized design (97), 
comptroller (143) repair, (578) technical operations (167) 
supply operations (156) deputy chief (30), logistics systems 
(36), personnel/administration (109), contracts (57), and 
provisioning (71). (R. 864).

- 5 -



3. Employee Classifications and Pay Schedules 
All of the civilian jobs at the Base are cate­

gorized according to two main pay schedules: the general
schedule known as "GS", which covers white-collar or graded 
employees, whose salaries are nationally determined and 
fixed by Congressional acts? and the federal wage system 
which covers persons employed in trades, crafts, labor or 
blue-collar positions whose wages are fixed and adjusted 
administratively according to the wage rates in the local
area. (R. 1016-1017).

Each pay schedule is divided into levels or
grades identified by numbers, and the higher the level, the 
greater the base rate of pay. (R. 1017). Each pay level 
is further divided into "steps" and the higher the step the 
greater the pay. (^d.) In addition, the salary of an em­
ployee in a non-supervisory position has a lower salary than 
a supervisory level employee with the same step and grade. 
(Id.). As of 1979, the total workforce was 2,225; 1697 or 
76.2 percent White and 528 or 23.7 percent Black. (R. 864).

4. The Key Components of the Personnel 
System 3/
A. OVERVIEW
The majority of the supervisory workforce at the 

Base are White. Supervisors have an all encompassing role 
in the personnel system. Supervisors have the initial au-

3/ See also R. 1052-1070, Plaintiffs' Proposed Findings 
of Fact and Conclusions of Law.

6



thority to create a position; determine career ladder ad­
vancement, determine and establish qualifications for the 
position; train and prepare applicants for advancement; 
submit appraisals which affect promotional opportunities, 
and recommend members for the ranking panels. They were 
the ultimate power to select the candidate, to be promoted. 
While obstensibly based on objective merit and job related 
criteria, the Base's promotion schemes place heavy reliance 
on the subjective appraisals and judgments of supervisors, 
the majority of whom are White.

B. COMPETITIVE AND NON-COMPETITIVE 
PROMOTIONS

Job vacancies within the Base may be filled by 
promotion, re-assignment, transfer, temporary promotion or 
hiring from the outside (PX 5). Since there are no restric­
tions of the area of consideration, employees may be se­
lected from the internal workforce or from outside the Base. 
(Lee Dep. 150-154; Tr. Vol. Ill 104-106; PX 3).

Promotions at the Base, in common with all fed­
eral agencies operating under the civil service system, are 
essentially of two kinds, competitive and noncompetitive.
The majority of the promotions at the Base are competitive 
(Tr. Vol. Ill, 104-105; Lee Dep. 36-42, 150-154). The 
procedures for filing a competitive position are the same 
irrespective of whether the person is a Base employee seeking 
a promotion or an outsider seeking to be hired into the

7



4/agency. (PX 3 [FPM Chap. 335]. -7 Inititially, the super­
visor with the ultimate selecting authority, or the division 
director, issues a vacancy announcement which creates and 
describes the position to be filled. (Lee Dep. 43, 158-160; 
Tr. Vol. Ill, 80). The supervisor, in conjunction with 
a staffing specialist from the personnel office, develops 
the job elements that will be used to determine the eligi­
ble candidates. (Lee Dep. 43; Deiter Dep. 15, 18, 23).

Persons who believe they are qualified submit 
a Form which is an official federal government appli­
cation on which applicants state their qualifications. 
Individuals may also submit supplemental information.
(Id.) The Base does not officially provide any guidance 
to employees with regard to the completion of the form.
Nor does the Base review or verify the accuracy and complete­
ness of the data (Lee Dep. 56-57; 60-62, 73; Tr. Vol. Ill,
84). All applications are forwarded to the Personnel Office, 
and if the applicant meets the minimum eligibility require­
ments, the Personnel Office solicits a "supervisory appraisal" 
from the applicant's immediate supervisor. (R. 1018; Lee 
Dep. 65-66; Deiter Dep. 28; Tr. Vol. Ill, 84). Supervisors

—/ . applicant does not already possess a civil
service rating, the agency must obtain a certification 
from OPM (formerly CSC) that the person is eligible for 
appointment to the federal service at the grade level in 
question. ^(PX 3 FPM Chap. 335] Otherwise, the process 
or determining qualifications, rating, ranking and selec- 
tion is the same. See Schlei and Grossman, Employment 
Discrimination Law (2nd Ed. 1983) at 1187 n. 5.

_ 8 _



do not receive specific instructions regarding the com­
pletion of the appraisals, other than the general guidelines 
in the document itself. (Lee Dep. 65-66; Tr. Vol. Ill, 84; 
Deiter Dep. 28).

The division director where the vacancy exists 
recommends the names of persons whom he knows personally to 
rate and rank the andidates (Lee Dep. 83; Deiter Dep. 30;
Tr. Vol. Ill, 85). Panels composed of three or a minimum of 
two persons, evaluate each candidate's credentials on "ran­
king sheets" based upon their unguided assessment of the 
Form 171 inclusive of any supplemental information, the 
performance appraisal and the supervisory appraisal. (R. 
1018; Tr. Vol. Ill, 85-86; Lee Dep. 57, 76, 84, 87). The 
Base has not required that Blacks or females serve on the 
panels. (Lee Dep. 82; Bass Dep. 23; Deiter Dep. 40; Tr.
Vol. Ill, 75). Ranking panels are not provided with official 
training or guidelines, but are merely provided with glib, 
non-specific, inexacting instructions as to how to perform 
the ratings (Tr. Vol. Ill, 91; Deiter Dep. 34). The ranking 
panels consideration of the performance appraisal or super­
visory appraisal is totally discretionary. (Lee Dep. 68—69, 
91-94, 108; Tr. Vol. Ill, 94). Yet, it is clear that the 
supervisor's evaluation plays an significant role in the 
selection process (Deiter, Dep. 36-38, Lee Dep. 107). As 
Carl Lee, the Chief of Personnel attested, whether the panel 
considers awards, training or education as a criteria and 
the relative weight to be alloted these criteria is dis­

9



cretionary and arbitrary. (Lee Dep. 69-71, 107).
Candidates are rated on a consensus, by the 

entire panel on a scale from 0 (no value) to 4 (superior 
work). R. 1018; Deiter Dep. 33). The names of those can­
didates who score three or better are designated as "highly 
qualified." (Lee Dep. 88, Bass Dep. 27). The names of
the first top five scorers are placed in alphabetical order 
on a selection certificate which is then forwarded to the 
selecting official, who makes the final selection (Lee Dep.
88; Tr. Vol. Ill, 86).

The selecting officials who are required to
interview all of the "highly qualified" candidates may 
also interview other candidates on the certified list, 
if they choose to do so. (Lee Dep. 99; Bass Dep. 36). 
However, the interview process itself is discretionary, 
non-uniform and system less. (Parcell, Tr. Vol. IV, 196) —

5/ Prior to 1976, the actual numerical score of each 
candidate was reflected on the certification list which was 
then provided to the selecting official (Lee Dep. 26).
6/ Black employees repeatedly testified at trial that 
due to this subjective procedure Blacks who are rated "high­
ly qualified" are subsequently eliminated for further con­
sideration during these interviews and selection processes 
which is generally conducted by Whites. (See, e •9• > Gaines,
Tr. Vol. I, 114-115; Lockett, Tr. Vol. I, 145-146; Henley,
Tr. Vol. II, 50-53; Carter, Tr. Vol. II, 218-219; Miller,
Tr. Vol. 229-230; Miller Dep. 19-21; Shepherd, Tr. Vol.
Ill, 25-26; Baylor Dep. 14-16, 18-21. Unrebutted testimony
from class members demonstrated that interviews, which
are the final determinative as to who will be selected
for the position, are conducted by White panels or individuals.
(Gaines, Tr. Vol. I, 116-119; Richardson, Tr. Vol. I,
178-180; Henley, Tr. Vol. II, 50-53; Knighton, Tr. Vol.
II, 165-168; Bruce, Tr. Vol. II, 194; Bruce Dep. 17; Miller,
Tr. Vol. II, 224-226; Shepherd, Tr. Vol. Ill, 31-32; Hinson,
Tr. Vol. IV, 57.)

- 10



Selecting officials do not receive instructions as to how 
the interview should be conducted. (Lee Dep. 91-94, 100;
Tr. Vol. Ill, 94). The Base does not provide instructions 
as to the weight which should be alloted to each criteria. 
(Id.) Further, there are no restrictions as to what se­
lecting officials may consider. V  Selecting officials 
are not required to explain the basis of their selection 
nor are they accountable for their decision. (Lee Dep.
92; Bass Dep. 37). Nor are there written records or data 
memoralizing the content and scope of the interview or 
selection determinaton. (Id.)

These facts demonstrate that the entire pro­
motion process is subjective and infected with arbitrariness

. 8and unbriddled discretion by White supervisory personnel. 
Indeed, the Court itself recognizes that the defendant's 
lack of standards governing the employment schemes is a 
problem. —^

7/ For example, he can decide to confer with a candi­
date's supervisor or go so far as to retrieve and consider 
any supplemental data he deems relevant. (Lee Dep. 111).
8/ See Schlei & Grossman, Employment Discrimination 
Law, (2nd ed. 1983), p. 1187 n. 5.
9/ In response to plaintiffs' concern that defendants 
counsel had given the court the impression that the pro­
motion process was uniformly administered the court stated: 
"No, I didn't get the impression that there were any set 
rules. I think that's their basic problem. (Tr. Vol.
II, 25).

11



Non-competitive or "career ladder" promotions are 
also used at the Base. Pursuant to this process an employee 
is placed in a particular job series that has promotional 
potential and advances, without competiting for the job and 
without the job being announced, after performing satisfac­
torily for a specific period of time. This process con­
tinues until the employee reaches the highest level in the 
career ladder, at which point in order to advance further, 
he must bid for a competitive promotion or seek a lateral 
transfer to a position with a higher career ladder level.
(Lee Dep. 150-158; PX 3, [FPM Chap. 335]). Determinations 
as to whether a position is "career ladder" and the levels 
of the position are made, in large part, by supervisory per­
sonnel .
5. The Governing Rules and Regulations

The Federal Personnel Manual (hereinafter re­
ferred to as "FPM"), which was originally issued by the 
United States Civil Service Commission in 1969, and as cur­
rently maintained by the Office of Personnel Management, 
establishes the employment procedures and policies governing 
federal employees. The FPM which is exacting in content and 
scope, requires that employment activies inclusive of all 
policies, procedures programs and practices, be "job re-

12



lated. (PX 3). 10/

The Uniform Guidelines on Employee Selection 
Procedures as issued in 1978 require that an employer per­
form a job analysis and demonstrate the "validity" of any 
requirement or test used in employee selection that has an 
adverse impact on Blacks or any other protected class. Uni­
form Guidelines §§ 14(b)(2), (d)(2), and 15(b)(3), (c)(3), 
(d)(3), 43 Fed. Reg. 38290-91, 38300-07 August, 28 C.F.R.
350 14 1978). The Guidelines provide a framework for de­
termining the proper use of employee selection procedures 
and are "predicated on the principle that the use of a 
selection procedure which has an adverse impact is unlawfully 
discriminatory"; unless the procedure has been validated 
job-related. FPM letter 300-25 (Dec. 29, 1978, p. 2).

10/ Merit Promotion for federal employees is governed 
governed by Chapter 335 of the FPM which requires that:

An agency must adopt adequate pro­
cedures to provide equal opportuni­
ty in its promotion program for all 
qualified employees and to insure 
that nonmerit factors do not enter 
into any part of the promotion pro­
cess. Promotions must be made with­
out discrimination for any nonmerit 
reason such as race, color, religion, 
sex, national origin, politics, mari­
tal status, physical handicap, age, 
or membership in an employee organi­
zation. FPM 335, subch. 3-9(a).

13



Under the Uniform Guidelines federal agencies are required 
to "maintain and have available for inspection, records or 
other information which will disclose the impact which its 
tests and other selection procedures have upon employment 
opportunities (of minorities) . . .  in order to determine 
compliance with guidelines." 43 Fed. Reg. at 38297 (1978).

As the record demonstrates the Base has done 
nothing to comply with the Guidelines or the Federal Per­
sonnel Manual. Mr. Carl Lee, the Civilian Personnel Officer 
testified that the Base has never sought the approval or 
validation of its Personnel Manual which governs all of its 
civilian employment practices. (Lee Dep. 190) Nor has the 
Base ever revised any of its provisions to assure that they 
comply with the FPM. (Lee Dep. 29; Tr. Vol. Ill, 107). — ^
Mr. Lee conclusively testified that neither the promotion 
system nor the components of the system have been validated 
or demonstrated to be job-related. (Tr. Vol. Ill, 107,

11/ The only mandatory educational requirements for a 
position are established in Handbook X-118. Any additional 
qualifications are discretionarily determined by the super­
visor. (Bass Dep. 20; Lee Dep. 69-70; Tr. Vol. II, 83). 
However, the Base has not taken any steps to determine 
whether its classification requirements beyond the basic 
eligibility standards would result in an increase in the 
percentage of Blacks who would meet the minimum qualifica­
tions. (Lee Dep. 11-18).

14



Lee Dep. 35). In fact, no one in the Personnel Office 
or the EEO office have ever taken any steps to determine 
whether training, details and awards criteria and determina­
tions are job-related; or are equitably and proportionately 
distributed to Black employees. (Tr. Vol. 121-122; Lee Dep. 
70, 86, 113, 312, 35, 47). — ^ The Base has not conducted
any validation studies with respect to the criteria used 
for promotions, re-assignment, testing or qualifications. 
Simply put, the Base has not conducted any validation 
studies concerning any of the employment devices or policies 
utilized at the Base in order to determine whether they 
are in compliance with Title VII. (Small Dep. 21, 22,
41). Nor have the affirmative action plans ever been vali­
dated or formally reviewed or approved by appropriate fed­
eral authorities. (Small Dep. 74-76). Notwithstanding 
the OPM requirements, no steps have been taken to collect 
adverse impact data. (Tr. Vol. Ill, 95, 116).

12/ There have been no studies to establish the validity 
of the factors used in the supervisory appraisal form (Lee 
Dep. 72). Numerous class members who testified confirmed 
that the appraisals are formulated in an arbitrary, standard 
less fashion which has effectively destroyed their opportuni 
ties to advance. (Proctor, Tr. Vol. II, 113-117; Harp,
Tr. Vol. II, 155-158; Fowler, Tr. Vol. II, 176-187; Carter, 
Dep. 18-20; Abad, Tr. Vol. Ill, 16-17).

15



6. The Operation of The Equal Employment Opportunity 
Office

Beginning in January of 1965 the Civilian Per­
sonnel Office began implementing and maintaining an EEO 
program, and processing EEO complaints. In 1973 the Equal 
Employment Opportunity Office was established to carry out 
these functions, as an entity separate from the Civilian
Personnel Office. The EEO Office and functions have always

13/been controlled by White males. —
The testimonies of defendant's own officials

confirm that the Base does not provide directives regarding
x. •*. 14/affirmative action and equal opportunity.

By its own admission, the EEO Office has failed 
to engage in any affirmative action oriented projects or 
activities. (Small Dep. 36). The testimony of Small, who 
has been the EEO officer through this lawsuit, convincingly 
establishes that the Base has been acutely aware of problems 
experienced by Black employees but have neglected to take 
any affirmative steps to address these problems in accor-

13/ George C. Small, a White male, was appointed to direct 
the EEO Office in 1973, and remains the sole full-time EEO 
staff member. (Small Dep. 4). Small's training in the 
field of equal employment is inconsequential. (Small Dep.
5) . ,14/ Carl Lee and Mary Deiter testified that selecting 
officials are not given instructions advising them to give 
full consideration to minorities and females. (Lee Dep. 95; 
Deiter Dep. 19). Persons employed in the Personnel Office 
have never been provided EEO directives or guidelines con­
cerning their obligations or responsibilities. (Deiter Dep. 
25-26). As the senior staffing specialist, Mary Deiter testi­
fied that contacts between the EEO Office and Personnel 
officials have been minimal at best. (Deiter Dep. 26).

16



15/ Notably, in 1976dance with § 717(b) of Title VII. 
the EEO Office and dissiminated a list reflecting twenty 
five specific "eeo" concerns to Base officials. (Small 
Dep. 68-73). — ^ The EEO Office never conducted any follow­
up studies analysis or reports with regard to the identi­
fied problems. (Small Dep. 68-74) Nor has the Base formu­
lated any strategies designed to address these concerns.
In fact, the EEO Office has never made any formal recommen­
dations or submitted any reports with regard to the opera­
tion of the Upward Mobility Program, the EEO process, the

15/ No. 5 - improperly conducted interviews for promo- 
tlon/selection; No. 12 - failure to consider EEO goals when 
selecting employees; No. 13 - failure to provide various 
training programs; No. 19 - inconsistency in rating appli­
cations under the job element rating procedures; No. 22 - 
recruitment efforts do not provide qualified minorities/women 
applicants to meet the organizational needs under the EEO 
program."
16/ Small admitted that: (1) the classification of Blacks
in the wage grade (WG) positions as compared to the general 
service (GS) positions is an egregious problem (Small Dep.
13); (2) too few Blacks are enrolled in the Upward Mobility 
Program (Small Dep. 15-17); (3) Base officials recognize 
that the greatest number of EEO complaints have been filed 
by Black employees. (Small Dep. 26.) They are cognizant of 
the fact that few of these complaints have been resolved at 
the Base and admit that thev have not succeeded in es­
tablishing an effective system for resolving complaints by 
employees who feel they were discriminated against conceding 
that "Serious and significant delays are occurring in the 
processing of discrimination complaints." (PX 5); (4) the 
EEO office is ineffective, in part, due to the lack of active 
and genuine support from the Base. The EEO Office desperately 
needs more than one full time staff person, and more per­
sonnel contact with division directors, supervisors, manage­
ment and employees. (Small Dep. 27-28).

17



merit promotion process or selection criteria and procedures 
or career development. (Small Dep. 31, 37, 38). Small has 
not communicated with the Personnel Office regarding these 
issues and he candidly admitted that henever considered it 
appropriate or necessary to meet Black employees. (Small 
Dep. 31, 37, 38).

Personnel officials who testified at trial stated 
that they were aware of the underrepresentation of Blacks in 
certain jobs, and admitted that they had done nothing to 
rectify the condition. (Tr. Vol. Ill 98; see also Deiter 
Dep. 44. The Personnel Office admitted to the lack of ade­
quate representation of Blacks at the supervisory level and 
its failure to alleviate this inadequacy. (Tr. Vol. Ill, 
99-100; See also Deiter Dep. 12.) Further, Personnel Di­
rector Lee testified that although various efforts were made 
to promote Base personnel from WG to GS in 1976 when the 
Base was saturated with GS vacancies, no specific attempts 
were made to advance Blacks. (Tr. Vol. Ill, 11.)

At trial plaintiffs introduced into evidence each 
of the Base's affirmative action plans for the relevant 
period of time. These self-incriminating reports confirm 
that the Base has failed to take affirmative steps to eradi­
cate racially discriminatory employment devices as mandated

18



by § 717(b) of the Act. 17/

The evidence established that there has been a 
failure of the Base to effectively utilize training programs 
in order to remove racial imbalances or to enhance the 
career advancement of Blacks. "As a general rule when an 
agency does an effective job of selecting and training 
employees, it should have a pool of employees with potential 
for career advancement to most positions." PX 3, Chapter 
335, Subch. 3-3e(i).

Two career development programs which are in­
tended to provide training and opportunities for advancement 
and promotion are Upward Mobility and the Worker Trainee

17/ Defendant's affirmative action plans, reflecting the 
following, demonstrate that the Base has failed to take 
affirmative steps to eradicate racial disparaties as re­
quired by § 717(b) of the Act: (1) Although Blacks comprise
roughly 30% of the potential labor force in the area, 60.8% 
of the WG-02 employees are Black, while only 13.2% of the 
WG-11 employees are Black. (PX 4); (2) Blacks constitute 
15.0% of the GS-3 workforce; 10.2% of the GS-4; and 9.6% of 
GS-5. However, not one of the 21 persons employed as a GS 
13 is Black (PX 4, 1)

An independently conducted census of Base employees 
fortifies plaintiffs' contentions in that it shows that as 
of 1976: (1) Blacks constitute 26.9% of the Base workforce, 
but only 8.9% of all GS positions, while constituting 41.9% 
of the ungraded workforce; (2) Blacks constitute 10.5% of 
the workforce at GS levels 1 through 8, but only 5.7% of the 
workforce at GS 9 through 15; and (3) Blacks hold 65.1% of 
the total number of WG jobs at levels 1 through 8, but only 
22.1% of all WG jobs at levels 9 through 15 (PX 27; 19, A- 
20) .

19



Program. — / The Personnel Office has never recommended 
that positions be designated as Upward Mobility for the 
purpose of accomplishing affirmative action goals. (Lee 
Dep. 13, 123, 241, Small Dep. 16, 40.) Further, the Base 
has utterly failed to take advantage of its myriad of 
training programs including management, executive, mid- 
level, clerical or technical programs, for wage grade 
employees, in order to increase the opportunities for Blacks 
to advance. (Lee Dep. 234, 235, 239, 241.).
7. The Statistical Evidence

Plaintiffs introduced both descriptive and in­
ferential, or analytical, statistical evidence into the

19/record. —  The defendants introduced their own studies,

18/

18/ The Upward Mobility Program is:
... designed to provide encourage­
ment, assistance and developmental 
opportunities to lower-level em­
ployees ... in dead-end jobs, in 
order that they may have the change 
in to increase opportunities for ad­
vancement, improve skills, and bene­
fit from training and education 
through a program of individual 
career development.

19/ "Descriptive" statistics reflect the actual numbers of 
persons in each grade level, job category, receiving pro­
motions and awards, etc. They are usually "snapshots," 
giving the picture of the workforce as of a particular date. 
See EEOC v. American Nat'l Bank, 652 F.2d 1276, 1189-1190 
(4th Cir. 1981). "Inferential" statistics provide inter­
pretations of the raw numbers through the application of 
statistical analysis of calculations. They permit the fact 
finder to draw inferences as to the meaning and significance 
of the numbers. See Hazelwood School District v. United 
States, 433 U.S. 299, 308, n. 14 (1977).

20



which attempted to show a lack of discrimination at the 
Base. In accord with the decisions of the Supreme Court in 
United States Postal Service Board of Governors v. Aikens,
___ U.S. ___, 75 L.Ed.2d 403 (1983) and Lehman v. Trout,
U.S. ___, 52 U.S.L. Week 3628 (Feb. 27, 1984), the totality
of this evidence must be considered in deciding whether 
discrimination had been established.

A. Plaintiffs' Descriptive Studies
Using the litigation data base developed by the de­

fendant, the plaintiffs developed a number of computer gen­
erated exhibits which demonstrated the statistical profile 
of the base over the time period involved as it related to a 
number of issues before the court. These studies demon­
strate that in both the wage board (WB) and general 
schedule (GS) categories black employees were consistently 
concentrated in the lower grade levels, that grade level by 
grade level there was a consistent pattern of Blacks re­
ceiving fewer promotions than Whites, that Blacks were at 
lower grade levels even when the factors of education and 
experience were taken into account, and that Blacks were 
excluded from a significant number of occupational groups.

With regard to grade level, a much higher percentage 
of Whites than Blacks were at GS-11 and above during the

21



relevant time period, between 12%-29% of Whites and 0-14% of 
Blacks from 1972-79. (PX 7.) The pattern among wage board
employees was as pronounced, with more than 50% of Whites 
but less than 20% of Blacks being at WG-10 and above in 
nearly all the years examined. (PX 7.)

With regard to promotions, an examination of 
promotions out of each grade level demonstrated that in the 
great majority of instances a greater percentage of Whites 
were promoted as compared to Blacks. (PX 5A). The result 
of these patterns is that the supervisory and management 
positions in both the wage board and general service 
categories are dominated by Whites. Thus, by 1979 15.9% of 
all White employees were supervisors, while only 5.7% of 
Black employees were. While Blacks constituted 26% of 
nonsupervisory employees and 35% in the Wage Leader category 
(from which Wage Supervisors are drawn), they constituted 
only 12% of first level supervisors, 5% of second level, and 
7% of managerial level employees. (PX 18).

The net result of the employment practices at the Base 
is that throughout all of the pay plans, taking into account 
education and years of service, Blacks uniformly receive
lower average wages or salaries than Whites. (See PX 10A).19a/

19a/ The tables which are set out in Plaintiffs' Proposed 
Finding of Fact, at pp. 1108-1114 of the record show that 
Blacks of comparable years of service and education levels 
to that of Whites consistently are at lower grade levels

22



B. Plaintiffs' Analytical Studies
Plaintiffs' statistical expert prepared two studies 

examining the promotion rates of Blacks and Whites. The 
first study was prepared from the defendants' litigation 
data base. Using essentially the same data as set out in 
plaintiffs' descriptive statistics, the expert calculated 
the probability of the differences of percentages of Blacks 
promoted, grade level by grade level, over the time period 
involved. He found a consistent pattern of statistically 
significant under-promotion of Blacks as compared to Whites. 
(Drogin Aff., R. 1414-1433). *

In the analysis the proportion of Blacks promoted out 
of a given grade in a given year, in a given pay plan was 
compared with the proportion of Blacks in that grade at the 
end of the prior year. — ' The statistical significance of 
the difference between the number of Blacks expected to be 
promoted and those actually promoted was calculated 
by a formula for the 1-sample binomial test endorsed in 
Hazelwood School District v. United States, 433 U.S. 299

19a/ Continued
and consequently receive lower salaries. PX 10-10B.
20/ Only full time permanent employees were included in 
the calculations. A promotion was defined as a change in 
position, either by pay plan or grade or series, for which 
there was an increase in salary and for which the new po­
sition was full time permanent. (R. 1416)

23



(1977) and Pegues v. Mississippi State Employment Service, 
699 F .2d 760 (5th Cir. 1983). (R. 1416).

The results for Black WG employees, set out in 
detail at p. 1423 of the record, were summarized by the 
expert as follows:

1. Blacks received fewer promo­
tions than expected in all grades, except WG-10 
and WG-12. Blacks lost 10.4 promotions out of 
WG-2, 46.4 promotions out of WG-5, 7.0 promo­
tions out of WG-7, and 19.8 promotions out of 
WG-8.

2. For WG as a whole, blacks re­
ceived fewer promotions than expected in each 
year during 1973-1979.

3. Over all grades, and all years 
from 1973-1979, blacks received 90.7 fewer pro­
motions out of WG grades than expected. The 
corresponding Z-VALUE for this disparity is 
-7.8, which would occur by chance with proba­
bility less than .00000000000001577. Accor­
dingly, there is a very high level statistical- 
significance in the disparity of promotions 
actually received by blacks compared to the ex­
pected promotions to blacks, if promotions were 
distributed at parity.

(R. 1418).
With regard to promotions out of GS positions, 

which were held by a far lower proportion of Blacks than

24



were WG ones, — the same analysis was performed. (R. 
1418-19.) Because of the smaller numbers the results were 
less dramatic, but still showed a statistically significant 
under promotion of Blacks, as summarized by the expert:

1. Blacks received 17.5 promotions 
fewer than expected out of GS-2 over the period 
from 1973-1979. This disparity has a Z-VALUE of 
-3.96, which would occur by chance with proba­
bility less than .-0002, and is highly statis­
tically significant.

2. When disparities for each grade 
and year are accumulated, blacks received 23.1 
fewer promotions out of grade than would be ex­
pected if promotions were received by blacks at 
the same rate as their representation in the 
grade. This disparity has a Z-VALUE of -2.0, 
indicating a significance probability of about 
.05. This result has statistical significance.

(R. 1418-19).
In addition to these studies, which were essen­

tially based on a labor force analysis, plaintiffs' expert 
also examined actual applicant flow data to determine 
whether the expected number of Blacks received competitive

21/

21/ In 1979 only 20% of the Black workers held GS po­
sitions, while 2/3 of the white employees did. (PX 18.)

25



promotions to GS positions compared with those applying for 
such promotions. Information was obtained from the Base's 
vacancy announcement files from which the names of persons 
applying for each particular vacancy were available, and 
race data was coded in from the defendants' litigation data 
base with the result that the great majority of those per­
sons applying for competitive positions were identifiable as 
to their race. The method used by plaintiffs' expert, 
contrary to the finding by the district court, was to ex­
amine each vacancy announcement separately. — ^ In this way 
it was possible to eliminate from consideration those 
vacancies where there was no competition between Blacks and 
Whites and to avoid distortions in the data that would be 
occasioned by a large number of applications for particular 
positions.

As described above, the competitive promotion pro­
cess at the Base has, in common with other federal agencies, 

23/three stages.—  At the first stage persons interested in a 
job fill out a standard form on which they list their

22/ See R. 1419 ("The promotional opportunity data was 
analyzed separately for each announcement, and then the 
disparities were accumulated over announcements to obtain an 
overall measure of disparity."); and R. 1461 ("I did do the 
competitive promotion analysis on an announcement by 
announcement basis".)
23/ See Lawler v, Alexander, 698 F.2d 439 (11th Cir. 1983).

26



qualifications. These forms are then reviewed by the per­
sonnel office to determine those persons who have the alleged 
minimum qualifications for the position. Those persons 
having the minimum qualifications, all of whom are ranked 
"qualified", then proceed to the second stage in the process.

In this stage each person is given points based on 
factors such as education, experience, training, awards, and 
performance appraisals. Those persons above a particular 
point level are ranked "highly qualified." The names of the 
Qualified and Highly Qualified are placed on a list in 
alphabetical order.

In the third and last stage of the process the 
selecting official selects, at his discretion, anyone of the 
persons on the list. In this process the selecting official 
may interview the person, and review personnel files and 
other data available through the personnel office.

Plaintiffs' expert determined the relative rates at 
which Blacks and Whites were screened out by this process 
and ultimately the rate at which Blacks were selected as 
opposed to Whites. As noted above, this was done

24/ As described by the expert:
For each vacancy announcement, and for each year, the race 
composition for each of the following groups was tabulated:

All Applicants 
Qualified 
Highly Qualified

27



separately for each vacancy announcement, and the results 
for each were, through an established statistical pro­
cedure, accumulated to determine the effect of each stage 
of the process and the effect of the process as a whole.

There was a consistent pattern of Blacks being under 
selected at each stage of the process, usually at statistically 
significant levels. Thus, Blacks were found not qualified 
at a higher rate than were Whites, and Blacks found to be

24/ (Continued)
Interviewed
Selected
Selected and Qualified 
Selected and Highly Qualified

In order to evaluate the impact on blacks at each stage of 
the Merit promotion process several comparisons were made:

Black and white rates of 
Qualified + Highly
Qualified among All Applicants

Black and white rates of
Highly Qualified among Qualified and

Highly Qualified
Black and White rates of

Selected among Qualified
Qualified

and Highly

Black and white rates of
Selected among Highly Qualified

Black and white rates of
Selected among All Applicants

(R. 1416-17.)

28



qualified were not determined to be highly qualified at the
2 5/same rates as were Whites. — ' Blacks found highly qualified 

were not selected from the lists at the same rates as were 
Whites. — ^

Plaintiffs' study, which again used actual appli­
cant flow data, established that the impact of the system 
for making competitive selections was consistenlty to under­
select Blacks at statistically significant rates. Thus, 
the underselection of Blacks from all Black applicants 
was at the level of 4.32 standard deviations, with under­
selections at every GS-level except GS-10 (R. 1421).— ^

25/ R. 1419. At all grades but three fewer black applicants 
were found qualified and highly qualified than expected, 
with an overall loss of nearly 48 promotions. This was 
statistically significant at the level of 4.72 standard 
deviation, with a probability of less than 7 chances in 
one million.

There was a similar under representation of Blacks 
from the Qualified pool; 19 fewer Blacks were so rated 
than expected, at a level of 2.64 standard deviations (R. 
1420. )
26/ Blacks were underselected from among the Qualified/ 
Highly qualified pool at a level of 2.47 standard deviations. 
(R. 1421).
27/ There were too few promotions to GS-14 and GS-15 posi­
tions to permit their study.

29



Defendant produced no explanation for these results 
except speculative ones unsupported by any evidence. Thus, 
it is clear that absolutely nothing had been done to validate 
the qualifications or selection procedures used, or to 
in any way demonstrate that they in fact were accurate 
or necessary measures of individuals' abilities to do the 
jobs in question. — ^ Indeed, their own expert advanced as 
an explanation for the underselection of Blacks the fact 
that Blacks were known to have lower educational levels than 
were Whites. Therefore, they would be found to be less 
qualified because of their failure to meet educational 
requirements. 2_9/ no showing was made that the
educational requirements that existed were job related or 
had been validated in any way.

C. The Defendant's Statistical Studies
In his case the defendant put on studies de­

veloped by two statistical experts. The first essentially 
compared persons in particular types of positions with their 
representation in various labor markets. Thus, the study 
was more relevant to the question of initial hires than to 
promotions, the main focus of plaintiffs' case.

The second expert studied promotions specifica­
lly, and, in fact, developed two studies. The first a

28/ See Tr. Vol. Ill, 107; Lee Dep. 35, 44, 47, 70-72, 
86, 133, 190.
29/ R. 1408, Affidavit of Charles T. Kenny.

30



so-called "naive" study, was fully consistent with plain­
tiffs' study and demonstrated a general underselection of 
Blacks for promotions at the Base. — ' This "naive" study, 
which was revealed only during the cross-examination at 
trial, was followed by an attempt to construct a regression 
analysis which would explain the different rates in pro­
motions based on differences in a number of factors. These 
factors included levels of education (not education related 
to the job in question); the length of experience in years; 
veterans preference; and others. — ^

30/ See Court Exhibit II. For example, Table 1.4 at p. 13 
of the report cumulates the deviations from expected Black 
promotions over the period 1973 to 1979 by various groups of 
grades. In six out of the nine groupings there was an 
underselection of Blacks, and four of these were at sta­
tistically significant levels. Overall, the study shows 
that 75 fewer Blacks were promoted than would be expected 
(437.949 expected - 363 actual). Applying the Hazlewood- 
Peques formula, where the numbers are:

Total promotions = 2111
Percent Blacks expected = 17%
Percent White Expected = 83%Actual Blacks promoted = 363,

the result is 4.342 standard deviations.
31/ See DX 25.

31



Using these factors, which explained a fairly low 
proportion of the reasons for the differences in promo­
tions, the expert purported to conclude that there was no 
discrimination against Blacks in promotions. During his 
examination the expert acknowledged that his selection of
the various factors used was not based on a particularized

32/study of the federal personnel system, —  but rather was 
based on his understanding of how personnel systems worked 
generally. — ^ Thus, for example, veterans preference is 
not in fact used in the competitive promotion process, but 
only when persons are initially hired into the federal 
system. — ^His educational levels simply looked at years of 
education and not types of education to match up the

35/education specifically related to the jobs in question. —  

His experience factor was years of service, — ^ even though 
under the federal personnel system years of service (or 
seniority) is not used to determine competitive promotions 
unless there is a tie between candidates. Rather, only that 
experience which is purportedly related to the position in 
question is considered. See Federal Personnel Manual Chap. 
335 (PX 3).

32/ Tr. Vol., IV, pp
33/ Id. r P- 13-14.
34/ Id. * PP-. 7-9.
35/ Id. # PP-. 16-17.

36/ Id. / P- 18.

32



Finally, the expert acknowledged that he did not 
factor in two elements which were used in the selection 
process, namely awards and performance appraisals. His 
reason for not utilizing those factors was that because they 
were subjective in nature they could be attacked as 
discriminatory. —  ̂ In any event the bottom line of the 
study was that differences in promotions might be explained 
by the level of education attained by Blacks and Whites and 
to some degree by their length of federal service.

9. The Testimonal Evidence
During the trial twenty six members of the class

representing both the Wage Grade (WG) and General Schedule
3 8/(GS) classifications presented illuminating testimony. —

In addition, depositions were introduced on behalf of four 
other class members. This testimony, which was unrebutted 
by the defendant, fortifies plaintiffs' statistical and 
documentary proof. The majority of the class members testi­
fied that they had been denied opportunities to advance 
irrespective of their demonstrated abilities and potential 
capabilities. The testimony of several members of the class 
evidences that Black were denied supervisory positions

27/ Tr. Vol. Ill, 221; Vol. IV, 18.
38/ Due to space limitations plaintiffs cannot present an 
exhaustive analysis of their testimony. Therefore, we refer 
the Court to Plaintiffs' Proposed Findings of Fact, pp. 53- 
74.

33



despite thee fact that they possessed superior qualifications. 
Others who testified proved that they were not afforded 
employment opportunities assignments, or training which was 
provided to similarly situated Whites. Finally, plaintiffs' 
testimonial proof confirmed that the equal employment 
opportunity office and complaint processing system is 
ineffectual.

In fact, the court below expressly found that 
twelve of the class members who testified at trial "were 
persuasive on the issue of discrimination in the promotion 
process." (R. 53)
C . Standard of Review

1. With regard to Argument I, the district 
court erred as a matter of law; in addition, some of its 
factual findings were clearly erroneous.

2. With regard to Argument II, the district court 
erred as a matter of law.

3. With regard to Argument III, the district 
court erred as a matter of law.

Summary of Argument 
I.

The statistical evidence presented by both parties 
clearly establishes a pattern of discrimination against 
Blacks in promotions. Blacks are concentrated at the lower 
grade levels and are underrepresented in supervisory and 
managerial positions. Studies of competitive promotions 
established that Blacks were underselected at each stage in

34



the process, with the result that they received far fewer 
promotions than would be expected in a race-neutral system. 
The defendant failed to present any evidence that would 
support a finding that the differences in promotion were the 
result of non-discriminatory factors. Defendant's failure to 
validate any of its selection procedures violated the 
requirements of Title VII.

II.
Section 717(b) of the Equal Employment Opportunity 

Act requires that federal agencies establish effective 
affirmative action programs. Congress enacted the pro­
visions because of the concentration of Blacks and other 
minorities in lower grade levels. Precisely the same 
pattern was shown in the present case. Therefore, the 
district court was required to order the defendant to 
establish and carry out an effective affirmative action 
program.

III.
The Court's failure to order relief for class 

members who demonstrated discrimination was error. The case 
should be remanded for reconsideration of the individual 
claims in light of classwide discrimination.

STATEMENT OF JURISDICTION
Jurisdiction of this Court is based on 28 U.S.C. § 

1291, this being an appeal from the final decision of the 
court below dismissing the action.

35



ARGUMENT
I.

THE COURT BELOW ERRED IN HOLDING THAT THE STATISTICAL 
EVIDENCE DID NOT ESTABLISH DISCRIMINATION

We have set out at length in the statement of facts 
the statistical evidence before the trial court relating to 
the claims of discrimination. The district court made 
errors of both law and fact in assessing this evidence, and 
these errors require the reversal of its decision.

A. The Appropriate Comparison for Wage Board 
Promotions Was The Internal Workforce.

. A long line of decisions have established that when 
promotions are predominantly from within an employer's work­
force, then the appropriate comparison to be made is whether 
those persons holding positions in the upper levels reflect 
the proportion of persons in the workforce as a whole. — ^ 
The district court thus erred in assessing plaintiffs' des­
criptive statistics as they related to promotions to higher 
level wage board positions, as well as the statistical 
analysis presented by their expert.

39/ Davis v. Califano, 613 F.2d 957 (D.C. Cir. 1979); Payne 
v. Travenol Laboratories, 673 F.2d 798, 826-27 (5th Cir. 
1982); Johnson v. Uncle Ben's Inc., 628 F.2d 419, 425 (5th 
Cir. 1980); Carroll v. Sears Roebuck Co., 708 F.2d 183, 193 
(5th Cir. 1983T

36



Both studies compared those persons in each par­
ticular grade level at the Base to assess whether the pro­
portion of Black and White employees promoted was different. 
The statistics demonstrated beyond question, and the defen­
dants' experts admitted, that there was statistically sig­
nificant differences in the rates of promotions of Blacks 
and Whites grade level by grade level over the time period 
involved in this case. The ultimate result of this pattern 
was that Blacks were severely underrepresented in the higher 
level supervisory and management positions at the Base both 
in the wage grade and categories.

Once such a showing had been made the burden was on 
the defendants to come forward with evidence, not speculative 
reasons, as to why these differences existed. Payne v. 
Travenol Laboratories, supra; Carroll v. Sears Roebuck, supra; 
see also Trout v. Lehman, 702 F.2d 1094, 1102 (D.C.
Cir. 1983), rev'd on another ground, ___U.S. ___, 52 U.S.L.
Week 3628 (Feb. 27, 1984). The defendants, however, failed 
to do so. Rather, they and their experts simply presented 
possible reasons why the difference could have existed, such 
as Blacks were less qualified than Whites, Blacks did not 
apply for positions, etc. Such speculations cannot substi­
tute for the proof which a defendant employer and would be in 
the best position to produce since it is in its possession.

Indeed, it is clear from the affidavits of defendants' 
experts which were relied upon by the court below that they 
completely misconstrued the relative burdens of proof in a

37



Title VII case. They evidently believed that the burden was 
on plaintiffs to disprove every possible alternative 
explanation for differences between Blacks and Whites in 
order to make out a case of racial discrimination. Such a 
position completely misconstrues the purpose and history of 
Title VII.

When Congress passed the Equal Employment Opportun­
ity Act of 1972 it recognized that the issue of employment 
discrimination was more complex, far reaching, and entrenched 
than had been perceived in 1964:

In 1964, employment discrimination tended 
to be viewed as a series of isolated and dis­
tinguishable events, for the most part due to 
ill-will on the part of some identifiable indi­
vidual or organization . . . Experience has 
shown this view to be false.

Employment discrimination as viewed today 
is far more complex and pervasive phenomenon.

S. Rep. No. 92-415 (92nd Cong., 1st Sess., 1971) p. 5.
With regard to agencies of the federal government

Congress found in the concentration of Blacks in the lower
grade levels evidence both of employment discrimination and
of the failure of existing programs to bring about equal
employment opportunity. — ' The present case presents the

40/ the House Report stated:
Statistical evidence shows that minorities and

38



same pattern that led Congress to extend Title VII to 
federal agencies; Blacks are largely relegated to lower 
positions, regardless of their qualifications and capa­
bilities .

Title VII, of course, is based on the fundamental 
propostion that in an employment system that is fair and 
neutral with regard to race, one would expect to see persons 
receiving employment benefits on an equal basis irrespec­
tive of their race. Thus, if the issue is hiring, one 
would expect to see a workforce reflective of the workforce 
from which employees are hired. Teamsters v. United States, 
431 U.S. 324, 339 n. 20 (1977). If the issue is internal 
promotions one would expect over a period of time to see 
Blacks distributed fairly through the workforce. Davis 
v. Califano, 613 F.2d 957, 963-64 (D.C. Cir. 1980). Indeed,

40/ Continued
women continue to be excluded from large numbers of 
government jobs, particularly at the higher govern­
ment levels ....

This disproportionate distribution of minorities 
and women throughout the Federal bureaucracy and their 
exclusion from higher level policy-making and super­
visory positions indicates the government's failure to 
pursue its policy of equal opportunity.

H. Rep. No. 92-238 (92nd Cong., 1st Sess., 1971), p. 23. the 
Senate report also included statistics which showed the

39 -



it was this expectation and its disappointment that led 
Congress to conclude that minority federal employees suf­
fered from employment discrimination and that corrective 
action was neeaed. —

The burden on plaintiffs in a Title VTI action is 
not, and never has been, to disprove every conceivable ex­
planation for a maldistribution of Blacks in the workforce, 
but to show patterns which demonstrate that the underlying 
presumptions of Title VII are not met. Blacks are dispro­
portionately in lower grades; they advance at slower rates; 
fewer are promoted and they are underrepresented in super- 
visory and managerial positions. —  Upon such a showing, 
the burden shifts to the defendant employer to come forward 
with legally sufficient reasons for these disparities, mal­
distributions, and inequities. An employer cannot simply

40/ Continued
concentration of minorities in the lower grade levels, and 
concluded that this indicated that their ability to advance 
to the higher grade levels had been restricted. S. Rep. No. 
92-415 (92nd Cong., 1st Sess.) pp. 13-14.
41/ See S. Rep. No. 92-415, supra, pp. 5-6.
42/ See Hazelwood School District v. United States, 433 299 
307 (1977); Teamsters v. United States, 431 U.S. 324, 336- 
338 (1977); Barnett v. W, T. Grant Co., 518 F.2d 543, 549 
(4th Cir. 1975); Seqar v. Civiletti, 508 F. Supp. 690 (D.D.C 
1981); Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1018 
(2nd Cir. 1980 ) .

40



sit back and demand that the plaintiffs counter every specu-
43/lative explanation that may be invented by a fertile mind.—

In sum, the thrust of Title VII is to provide an 
effective remedy to correct the historical denial to Blacks 
of equal opportunity and a fair share of employment benefits. 
It is a remedial statute and must be construed and applied in 
light of the problems it was passed to address and correct.
The statistical evidence in this case establishes a consistent 
pattern of discrimination and disparate treatment of Black 
employees at the Marine Supply Base which requires the con­
clusion that Title VII has been violated.

43/ As one Court has put it:
When a plaintiff submits accurate statistical data, 
and a defendant alleges that relevant variables are 
excluded defendant may not rely on hypothesis to 
lessen the probative value of plaintiff's statistical 
proof. Rather, defendant in his rebuttal presentation, 
must either rework plaintiff's statistics incorpora­
ting the omitted factors or present other proof under­
mining plaintiffs' claims.

Seqar v. Civiletti, 508 F. Supp. 690, 712 (D.D.C. 1981), 
citing Davis v. Califano, 613 F.2d at 964. See Hazelwood 
School District v. United States, supra; Teamsters v. United 
States, supra; Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 
1015 (2nd Cir. 1980); Pegues v. Mississippi State Employment 
Service, 699 F.2d 760, 769 (5th Cir. 1983); EEOC v. American

41



B. Plaintiffs' Promotion Study Demonstrated
Discrimination.
The court below made a number of factual and legal 

errors in assessing plaintiffs' study of actual promotion 
actions. First, it is clear from the record, as attested to 
by two affidavits from plaintiffs' expert, that he in fact 
examined each promotion action separately and then accumula­
ted the results over the entire time period. See n.22, supra.
Thus, the finding of the district court that he did not do so

44/is clearly erroneous. —
Plaintiffs' expert began with data on each promotion 

action individually. For example, for vacancy #1, ten Blacks 
and 20 Whites may have applied and a White selected; for 
vacancy #2, 5 Blacks and 2 Whites applied, and a White was 
selected, and so on. The expert calculated the probability 
of each event occurring by chance, and then totalled the

43/ Continued
National Bank, 652 F.2d 1176, 1186-89 (4th Cir. 1981).
44/ The court's error apparently derived from the bald asser­
tion of defendants' expert that plaintiffs' expert looked at 
all the promotion actions as a group. (R. p. 1387.) This 
assertion, however, was based on no evidence, and, indeed, 
the defendants' expert Dr. Upton in his affidavit admitted 
that he had not verified "the data or calculations" that 
formed the bases of plaintiffs' expert's conclusions. (R.
1384.) Therefore, plaintiffs' expert's statement that he in 
fact looked at each promotion action separately is uncontroverted.

42



results over all the actions.
Second, the district court erred in its analysis of 

the promotion process. See Lawler v. Alexander, 698 F.2d 439 
(11th Cir. 1983). Plaintiffs' statistics clearly demonstrated 
that Blacks were unfavorably treated at each stage of the 
process at the Base; moreover, their disproportionate 
under-selection at each stage was at levels of statistical 
significance. The ultimate result of the process was that 
Blacks were weeded out at a much higher rate than were 
Whites.

Defendant's experts did not challenge the accuracy 
of the statistical analysis; rather, criticisms were made on 
a series of assumptions with no basis in either the record or 
in the law. First, it was assumed that the system for 
establishing the qualification of applicants was valid, and 
therefore the defendant accurately assessed that those per­
sons found qualified and highly qualified indeed had the

45/skills necessary to accomplish the job in question. —  
Specifically, one of defendants' expert noted that the edu­
cation requirements would weed out a greater number of Blacks
than Whites since it was "well known" that Blacks as a whole

46/had lower levels of education than did Whites. —

45/ R. 1383-85 (Aff. of Dr. Upton). 
46/ R. 1408 (Aff. of Dr. Kenney)

43



However, such a result itself establishes a violation of
Title VII since the Supreme Court, has held that the use of 
an educational standard which has an adverse impact on Blacks 
violates Title VII in the absence of a demonstration that it 
is job related. Griggs v. Duke Power Co., 401 U.S. 424 
(1971). Of course, the record here establishes beyond 
question that absolutely no attempt has been made by the 
defendant to validate or otherwise establish that the 
education or any other requirements used to determine the 
qualifications for the various jobs in question are actually 
related to the ability to perform the jobs. See Harrison v. 
Lewis, 559 F. Supp. 943, 948-50 (D.D.C. 1983), aff'd per 
curiam, ___ F.2d ___ (D.C. Cir. Mar. 1, 1984).

With regard to the qualified/highly qualified stage._of 
the process, it is clear that all persons reaching that point 
have the minimum qualifications for the job, even assuming 
that the qualifications are valid. Thus, the high rate of 
exclusion of Blacks at this stage necessarily calls for an 
explanation by the employer.

The defendant's expert tried to explain this 
showing away by an argument which totally contradicts the 
position taken by the defendant with regard to the first 
stage of the process. He speculated that the employer 
erroneously found persons to be highly qualified or quali­
fied, and that the mistaken qualification of more Blacks

4 7/than Whites could explain the statistical showing. — '

47/ R. 1389-90 (Upton Aff.).

44



Of course, defendant put in no evidence whatsoever to 
demonstrate either that anyone was erroneously classified, or 
that Blacks were misclassified at a higher rate than Whites. 
Even if it is assumed that some error rate was inherent in 
the process, a fair system should have resulted in the same 
proportion of Blacks as Whites being erroneously found 
qualified. Thus, any error that might have existed would 
have no impact on the process as a whole.

C . The Defendant's Statistical Proof Supports
A Finding of Discrimination
As described above, the defendant's defense with 

regard to promotions rested on a statistical study by Dr. 
Charles Upton (DX. 25). In fact, Dr. Upton prepared two 
studies; the first (Ct. Ex. II) was wholly consistent with 
that of plaintiffs' expert. It demonstated that in both the 
wage board and general schedule categories Blacks received 
fewer promotions than expected, at levels of statistical 
significance.

Dr. Upton then developed a regression analysis 
which purported to explain away the observed differences on 
the basis of a number of factors he claimed affected pro­
motions. However, it is clear that the analysis failed to 
meet the standards for such an analysis estabished by this 
Court in Eastland v. Tennessee Valley Authority, 704 F.2d 
613, mod., 714 F.2d 1066 (11th Cir. 1983), cert. den. sub
nom. James v. Tennessee Valley Authority, ___ U.S. ___,
52 U.S.L. Week 3631 (Feb. 27, 1984); see also Valentino v.

45



United States Postal Service, 674 F .2d 56 (D.C. Cir. 1982).
Both Eastland and Valentino establish that a re­

gression analysis can be relied on only to the extent that 
the factors used have been established to be reliable indi­
cators of promotabi1ity. See 704 F .2d at 621. Thus, in 
Valentino the court specifically rejected the use of edu­
cational levels, since it was the area of education that was 
used in the federal promotion process. Here, of course, Dr. 
Upton used educational levels even though area of education 
was available from the data base he used. (Tr. Vol. IV, p. 
17), and length of service, rather than relevant experience, 
was factored in. Veterans status was factored in even 
though it is clear, and was so acknowledged by counsel for 
defendant, that in the federal system is used only for 
initial hiring purposes and not for promotions. (Tr. Vol.
IV, pp. 7-8). At the same time, the expert deliberately 
omitted factors which were undisputably used in the promotion 
process.

In short, Dr. Upton's first study clearly support 
the conclusion drawn by plaintiffs' expert that Blacks were 
undeselected for promotions at statistically significant 
levels. His second study was nothing more than an attempt to 
explain away these results by using factors that were not 
relevant to promotability in the federal system.

Finally, all the study did was to establish that Blacks 
were denied promotions because they had lower education 
levels or less length of service than Whites. In other

46



words, the defendant's expert demonstrated that the quali­
fication standards used had a disparate impact on Blacks.

D . The Failure to Validate The Qualification
Standards And Procedures Violates Title VII.
As this court noted in Eastland v. T.V.A., 704 F.2d 

at 619-20, former Fifth Circuit precedent holds that selec­
tion and promotion procedures may be attacked under the 
disparate impact theory. Johnson v. Uncle Ben's, Inc., 628 
F.2d 419, 426-27 (5th Cir. 1980), vacated, 451 U.S. 902 
(1981), modified and aff'd in part, 657 F.2d 750 (5th Cir.
1981), cert, den. ___U.S. ___, 74 L.Ed. 2d 277 (1982).
Plaintiffs have demonstrated that the defendant's selection 
procedures have a disparate impact on Blacks at three 
specific points in a particular process: the qualifications,
the ranking, and the selection stages of the competitive 
promotion procedures.

Federal agencies are under a clear legal duty to 
validate all stages of their selection procedures under 
Chapter 335 of the Federal Personnel Manual (PX 3).
Both the House and the Senate expressed concern that the 
systemic discrimination resulting from the imposition of 
"paper qualifications" was not being addressed. Both man­
dated that the standards of Griggs v. Duke Power Co., 401 
U.S. 424 (1971) be followed in the federal sector. See S. 
Rep. No. 92-415 (92nd Cong., 1st Sess. 1971), pp. 14-15, H. 
Rep. No. 92-238 (92nd Cong., 1st Sess. 1971), p. 24.

47



Federal agencies are under a clear legal duty to 
validate all stages of their selection procedures under 
Chapter 335 of the Federal Personnel Manual (PX 3). Both 
the House and the Senate expressed concern that the systemic 
discrimination resulting from the imposition of "paper 
qualifications" was not being addressed. Both mandated that 
the standards of Griggs v. Duke Power Co., 401 U.S. 424 
(1971) be followed in the federal sector. See S. Rep. No. 
92-415 (92nd Cong., 1st Sess. 1971), pp. 14-15, H. Rep. No. 
92-238 (92nd Cong., 1st Sess. 1971), p. 24.

Thus the Marine Corps, along with all federal agen­
cies, are required to follow the Uniform Guidelines for 
Employee Selection (5 C.F.R. § 300.103; 29 C.F.R. § 1607.2- 
A. ) . The Guidelines apply the principles of adverse impact 
and validation to all "selection procedures" 5 C.F.R. §
1607.2-C. "Selection Procedures" are defined as "any 
measure, combination of measures or procedure used as a 
basis for any employment decision," including the "full 
range of assessment techniques" such as "educational, and
work experience requirements through ... unscored

48/application forms." § 1607.16. —

48/ Similarly, the official Q & As on the Uniform Guide­
lines state that they apply "to all selection procedures^., 
including ... review of experience or education from appli­
cation forms." See, 401 F.E.P. 2304 (1979). This is a 
precise description of both the eligibility and rating and 
ranking stages of the defendant's process.

48



Chapter 335 of the Federal Personnel Manual, at 335-1-4, 
provides that "methods of evaluation for promotion and 
placement" must be consistent with instructions (FPM Suppl. 
335-1) that refer to validation and the Uniform Guidelines.
See McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982);
Harrison v. Lewis, 559 F. Supp. 943 (D.D.C. 1983 ), aff1 d
per curiam, ___ F.2d ___ (D.C. Cir., March 1, 1984).

The record is undisputed that nothing has been 
done by the Marine Corps to establish the job relatedness 
of its selection methods and standards. Since their dis­
parate impact on Black applicants for competitive promo­
tions is clear, a violation of Title VII has been established.
II. Defendant's Failure to Develop An Effective

Affirmative Action Plan Constitutes A Violation 
of Section 717(b) of the Act

Of paramount importance in this lawsuit is plain 
tiffs' claim that the Base has a duty to develop and imple­
ment effective affirmative action plans and programs pur­
suant to § 717(b) of Title VII, as amended; and that de­
fendant's failure to fulfill these obligations constitutes

49/an independent violation of the Act. — ' The trial court 
erroneously failed to consider or even address this issue.

Congress expressly placed federal agencies under 
special requirements to develop and maintain "an affirmative 
program of equal employment opportunity." Section 717(b) of

49/ See R. 870, Tr. Vol. I, 13-16.

49-



the Equal Employment Opportunity Act of 1972 (42 U.S.C. § 
2000e-16(b) requires federal agencies, first under the di­
rection of the Civil Service Commission ana now under the 
Equal Employment Opportunity Commission, to submit from each 
department, agency and unit an affirmative action plan which 
provides for the "establishment of training and education 
programs designed to provide a maximum opportunity for em­
ployees to advance so as to perform at their highest 
potential . . ." . Rep. No. 92-238, p. 23.

These unique affirmative action obligations were 
imposed on federal agencies as a result of Congress' find­
ing in 1972 that Blacks were concentrated in lower level 
positions. H. Rep. No. 92-238 (92nd Cong. 1st Sess. 1971) 
p. 23. — ^ Congressional reports from the Senate indicate

50/ Even prior to the enactment of § 717 of the Act in 
1972, federal agencies were mandated to eliminate discri­
minatory employment conditions and develop affirmative 
action plans pursuant to Executive Order 11246 issued in 
1965 and Executive Order 11248 issued in 1969.

5 C.F.R. § 713.203; 34 Fed. Reg. 12985 (1969), 34 
Fed. Reg. 14023 (1969) (Rules and Regulations: Administra­
tive Personnel).
51/ As the Supreme Court has noted, § 2000e-16 was 
enacted because the "long standing Executive Orders 
forbidding discrimination had proved ineffective for the 
most part" and to "'correct [the] entrenched discrimination 
in the Federal service . . . .'" Morton v. Mancari, 417 
U.S. 534, 546-547 (1974); Brown v. General Services Admini- 
stration, 425 U.S. 820, 825-28 (1976). See also Clark 
v. Chasen, 619 F .2d 1330, 1332 (9th Cir. 1980); Thompson 
v. Sawyer, 678 F.2d 257 (D.C. Cir. 1982).

50



that it was equally distressed. The statistics which Con­
gress cited as evidence of the failure of their existing 
programs to correct the maldistribution of Blacks in the 
federal service are strickingly similar to those presented 
in this case.— / It is evident that the specific purpose 
of these affirmative action requirements of §717(b) was 
to establish programs which would enable Blacks to move
out of the lower level positions to which they had been

,. , 53/ In light of these interests, agencies areconfined. — ' 3
required to establish "career systems to increase the op­
portunities for advancement, utilization, training and 
education of lower grade employees." Agencies are to create 
career development plans, and provide counselling, guidance, 
educational and training opportunities for employees rele­
gated to low grade level jobs. Most importantly, federal 
employers are required to conduct" positive programs of 
occupational analysis, job redesign and job restructuring 
to provide new opportunities for entry employment, advancement 
and bridges to higher grade job ladders . . . .  and to

52/ See Statement of Facts, Section 8, and 9, supra.
53/ Federal regulations and the Federal Personnel Manual, 
beginning as early as October 1971, have recommended 
numerous techniques by which an effective upward mobility 
program which would have an actual impact on the type of 
program employment patterns found at the Base, could be 
structured. A consisten theme throughout the FPM directives 
is that upward mobility programs must have a systematic 
approach which identifies positions that can be resturctured, 
and identifies the skills and capabilities of personnel.

51



"systematically" identify upward mobility targe jobs.—
Pursuant to its obligations under Title VII, the U.S. 

Civil Service Commission (now the Office of Personnel 
Management) issued the Uniform Guidelines on Employee Se­
lection Procedures, and completely revised Chapter 335 of 
the Federal Personnel Manual which governs the procedures 
used for competitive promotions by federal agencies. The 
newly developed Chapter 335 of the Federal Personnel Manuarl 
expressly provides that federal agencies have an affirmative 
duty to identify and employ persons.

Finally, the Civil Service Reform Act of 1978 makes 
clear that its prohibition against discrimination "shall not 
be construed to extinguish or lessen any effort to achieve 
equal employment opportunity through affirmative action" (25 
U.S.C. § 2302(d)), and mandates special minority recruitment 
programs to correct an underrepresentation of minorities in 
any job category. (5 U.S.C. § 2301(c) — ^

54/

53/ Continued
See Appendix D to Chapter 713 of the Federal Personnel 
Manual and FPM Letter No. 713-27 (June 28, 1974) and FPM 
Letter No. 713-40 (Aug. 197, 1977) which further discuss 
upward mobility programs.
54/ Attachment to FPM Letter 713-40 (Aug. 1977, p. 11); 
Attachment to FPM Letter No. 713-27 (June 1974), p. 1.
55/ The Act also requires that persons in the Senior 
Executive Service be evaluated on whether they meet affirma­
tive action goals and achieve EEO requirements (5 U.S.C.
§ 4313) .

52



As the trial record reflects, the Base has totally-
failed to comply with the federal regulations, Section 717
of Title VII, as amended, the Uniform Guidelines, Revised
Chapter 335 of the Federal Personnel Manual or the Civil
Service Reform Act of 1978. These consistent failings
require the institution of a comprehensive affirmative
action program that would benefit Black employees.
III. The Court's Decisions With Regard to The Individual 

Claims Were In Error
A. The Named Plaintiffs And Members of The 

Class Are Entitled to Present Their 
Individual Claims.
During the trial plaintiffs presented testi­

monial evidence from class members in order to demonstrate 
that the Base engaged in classwide discrimination. — ' Two 
of the three named plaintiffs, William D. Abad and Eric D. 
Shepherd testified at trial. (R. E. 60-61) Mr. George A. 
Maddox did not testify at trial, but plaintiffs relied on 
the testimony presented in his deposition to establish his 
claim since at trial Judge Owens advised the parties that 
all of the depositions were admitted into evidence. (Tr.
Vol. I, 9) In addition, twenty seven other members of

56/ See, e .q ., Teamsters v. United States, 43i U.S. 324,
3 3 9 ( 19 77); Fisher v. Proctor & Gamble Mfq. Co., 613 F .2d 
527, 545 n. 35 (5th Cir. 1980), cert, denied, 449 U.S. 1115 
(1981); Parson v. Kaiser Alum. & Chem. Corp., 575 F.2a 1374, 
1386-87 (5th Cir. 1978), cert, denied, 441 U.S. 968 (1979).
57/ Hence, the Court's assertion that "there is no indi­
cation in the record that plaintiffs intend to rely on his 
pretrial deposition" is obscure. (R. Ex. 60).

53



the class presented illuminating testimony revealing the 
racially discriminatory nature and effect of the Base's 
employment practices. The lower court rendered a favorable 
decision for only one of the class members, Eric D. Shepherd, 
a named plaintiff who complained that he had been wrongfully 
denied promotional opportunities. (R. E. 60-61)

The trial court, had it applied the correct 
legal standards, would have been compelled to render a 
finding of classwide discrimination. See Argument I, supra. 
Assuming that plaintiffs had been successful with their 
classwide claims, the individual claimants would proceed 
with their claims under the presumption that they had been 
subjected to discrimination, whereupon the burden would 
shift to defendants to rebut individual claims with clear 
and convincing evidence. Baxter v. Savannah Sugar Refining 
Corp., 495 F .2d 437 (5th Cir. 1974) cited with approval in 
Frank v. Bowman Transportation Co., 424 U.S. 747-772-73 n.
32 (1976).

It is clear that the determination by the court
below that there was no classwide discrimination in no way
constitutes a determination that there was no discrimination

58 /against individual class members. — - Thus, the 
appropriate action was to inform named plaintiff and class 
members that they are entitled to pursue their individual 
claims or alternatively await the outcome of this appeal.

5_8/ Connecticut v. Teal, ___ U.S. ___, 73 L.Ed.2d 130, 142
( 1982) .

54



If plaintiffs are successful on appeal, class members could 
present individual claims in Stage II proceedings of this 
action. If, on the other hand, this Court affirms the 
finding of no discrimination, it should require that a
notice be sent to all class members informing them of their

59/right to pursue their individual claims.
B. Relief Must Be Awarded to Those Class Members 

Whom The Court Determined Had Been Subjected 
to Racial Discrimination.
In its Opinion, the lower court identified twelve 

class members whom it concluded "were persuasive on the 
issue of discrimination in the promotion process.—  ̂Accordingly, 
these individuals, whose claims were totally unrebutted
by the defendants, are entitled to specific individual

,. ,61/ relief.—

59/ It is now firmly established that the filing of a class 
action in a Title VII case tolls the time for individual 
class members to pursue individual claims or another class
action. Crown, Cork & Seal Co. v. Parker, ___ U.S. ____, 76
L.Ed. 2d 628. Thus, class members were entitled to rely on 
the pendency of the class action as tolling the time in 
which they would have to pursue their individual claims. 
Plaintiffs notes that a determination as to the res judicata 
effect of a finding of no classwide discrimination on the 
right to pursue an individual claim is pending before the 
United States Supreme Court in Cooper v. Federal Reserve 
Bank of Richmond, No. 83-185. Plaintiffs' stress, however, 
that class member testimony was presented for illustrative 
purposes, and that neither the named plaintiffs nor other 
class members had the opportunity to have their individual 
claims litigated and decided.
60/ Elouis Miller, Gloria Carter, Israel Fowler, Zola 
Henry, Sonny Moseley, Elijah Richard, Renzie Knighton,
Solomon Jones, Monroe Gaines, Bennie Lockett, Willie Slaughter 
and Carrie Martin." (R.E. 53).
61/ See, e .g ., Eastland v. Tennessee Valley Authority,
704 F .2d 613, 625-628 (11th Cir. 1983).

55



CONCLUSION
For the foregoing reasons the decision below should 

be reversed.

Respectfully submitted,

JACK GREENBERG 
GAIL J. WRIGHT
CHARLES STEPHEN RALSTON 

99 Hudson Street 
16th Floor
New York, N. Y. 10013

C. B. KING
502 So. Monroe Street 
Drawer 3468
Albany, Georgia 31706

HERBERT E. PHIPPSSuite 226, Albany Towers 
235 Roosevelt Avenue 
Albany, Georgia 31706

Attorneys for Plaintiffs-Appellants



CERTIFICATE OF SERVICE

I hereby certify that a copy of Plaintiffs-Appellant's 
Brief and Record Excerpts were served on counsel for defendants- 
appellees, on this day of April, 1984 by United States
mail, postage prepaid, as follows:

Daniel E. O'Connell, Esq.
2221 Jefferson Davis Highway 
10th Floor
Arlington, Virginia 22202
John Lynch, Esq.
Assistant U.S. Attorney P.O. Box U
Macon, Georgia 31202-00076
Lt. Col. D .A . Higley 
U.S. Marine Corps Logistics Base 
Staff Judge Advocate 
Albany, Georgia 31704