Simmon v Schlesinger Reply Brief

    VJ



TABLE OF CONTENTS

TABLE OF CITATIONS
ARGUMENT --------
CONCLUSION ------
APPENDIX I ------
APPENDIX II -----
APPENDIX III ----

Page

ii
1
24

1-1
11 -  2 

III-3
APPENDIX IV Iv-4



11

TABLE OF CITATIONS 
Cases

Albemarle Paper Co. v. Moody, U.S. , 95
S.Ct. ____, 45 L.Ed. 2d 2 80 ("1975) ~JUT------

Alexander v. Gardner-Denver,Co., 415 U.S. 36
(1974) -------------------------------------

Alpha Portland Cement Co. v. Reese, 507 F.2d
607 (5th Cir. 1975) -----------------------

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

Barrett v. U. S. Civil Service Commission, 10
EPD 1(10,586 (D.D.C. 1975) -----------------

Caro v. Schultz, 521 F.2d 1084 (7th Cir. 1975) - 
Danner v. Phillips Petroleum, 447 F.2d 159 (5th 

Cir. 1971) ---------------------------------
Dillon v. Bay City Construction Co., 512 F.2d

801 (5th Cir. 1975) ------------------------
Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975) 
Ellis v. Naval Air Rework Facility, 10 EPD

1(10,422 (N.D. Cal. 1975) ------------------
Gamble v. Birmingham Southern Railroad Co., 514

F.2d 678 (5th Cir. 1975) ------------------
Griggs v. Duke Power Co., 401 U.S. 792 (1972) —  
Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir

1975) --------------------------------------
Hall v. Wertham Bag Corp., 251 F.Supp. 184

(M.D. Tenn. 1966) ------------- 1___________
Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1975) 
Jenkins v. United Gas Corp., 400 F .2d 34 (5th

Cir. 1968) ---------------------------------
Johnson v. Railway Express Agency, 421 U.S. 454

(1975) -------------------------------------
Love v. Pullman, 404 U.S. 522 (1972) ____ ______
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ------------ ------------------------
McKart v. United States, 395 U.S. 185 (1969) --
McLaughlin v. Callaway, 5th Cir. No. 75-2261 --
McLaughlin v. Callaway, 382 F.Supp. 885 (S.D.

Ala. 1974) ---------------------------------
MEAN v. NASA, D.D.C. C.A. No. 74-1832 ---------
Morton v. Charles County Board of Education, 520

F.2d 871 (4th Cir. 1975) ------------------
Morton v. Mancari, 417 U.S. 535 (1974) --------
Moss v. Lane Co., 471 F.2d 852 (4th Cir. 1973) - 
Oatis v. Crown Zellerbach Corp., 398 F.2d 496

(5th Cir. 1968) ----------------------------
Parham v. Southwestern Bell Telephone Co., 433 

F. 2d 421 (8th Cir. 1970) ------------------

Page

10,21
12
10

16,17,18
4,8,9,13,23

2

6,12
15

2,16,23
7,8,9

20
16

2 ,8,11
14
14

9,10,14
10
12

12,16,18
7
3
3
6

18
2,8
14

9,10
20



TABLE OF CITATIONS 
(Continued)

iii

Page
Parks v. Dunlap, 517 F.2d 785 (5th Cir. 1975)---  2,8
Penn v. Schlesinger, 497 F.2d 970 (5th Cir. 1974),

cert, pending------------------------------- 10
Rich v. Martin Marietta Corp., 522 F.2d 333 (10th

Cir. 1975) ---------------------------------- 14
Sanchez v. Standard Brands, Inc., 431 F.2d 455

(5th Cir. 1970) ---------  6,10,11
Sperling v. United States, 515 F.2d 465 (3rd Cir.

1975) --------------------------------------- 2

OTHER AUTHORITIES
^  u .d .u . ss^uuue er sea --- --------------------- passim
42 U.S.C. §1981------ -------------------------- ~ 10
5 C.F.R. §713.216 ------------------------------- 11,12,13
5 C.F.R. §713.235 ------------------------------- 4
5 C.F.R. §713.251 ------------------------------- 2,4,14
5 C.F.R. §713.282-------------------------------- 5



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 
No. 75-2182

JAMES E. SIMMONS, et al.,
Appellants,

vs.
JAMES R. SCHLESINGER, et al.,

Appellees.

On Appeal From The United States District Court 
For The Eastern District Of Virginia 

Norfolk Division

REPLY BRIEF FOR APPELLANTS

In this reply brief, appellants will respond point by 
point to a number of arguments made by appellees in their brief. 
Initially, however, we reiterate that the consequence of appellees' 
positions on the issues of class action, discovery and legal 
standards for weighing evidence, is that the federal government, 
the nation's largest employer, will be exempt from judicial 
scrutiny of classwide, systemic discrimination to which all other 
employers are subject and which the federal government itself has long 
advocated with respect to all other employers.

This in fact is the government's basic proposition, 
that the law of employment discrimination developed by the 
courts in Title VII cases involving private and state and local 
government employers does not apply to suits against the federal



2
government. However, it has already been held by the Supreme Court
that the 1972 amendments to Title VII extending its coverage
to federal employment give those public employees the same rights as
private employees with respect to substantive law in Morton v.
Mancari, 417 U.S. 535, 547 (1974), the District of Columbia * 1
Circuit with respect to both substantive law and remedies in
Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975), the Fifth
Circuit with respect to Rule 65 preliminary injunctions to
federal employees who have not fully exhausted administrative
remedies in Parks v. Dunlap, 517 F .2d 785 (5th Cir. 1975)
and the District of Columbia, Third and Seventh Circuits on plenary
judicial trials in Hackley v. Roudebush 520 F.2d 108 (D. Cir.
1975); Sperling v. United States, 515 F.2d 465 (3d Cir. 1975)
and Caro v. Schultz, 521 F.2d 1084 (7th Cir. 1975), respectively.

1. The basic premise of defendants'contention for
preclusion of class action treatment is that "5 C.F.R. §713.251
provides the administrative remedy which must be exhausted before
a district court plaintiff can maintain a class action," i^ e.,
Civil Service Commission regulations "provide for the filing of
class action complaints at the administrative level," pp. 14, 18.
Unfortunately for defendants the Civil Division of the Justice
Department has already conceded in the Fifth Circuit that:

"As interpreted by the Civil Service Commission, 
the regulations do not permit filing of a class 
action administrative complaint. 5 C.F.R. 713.251 
is designed to permit third party complaints and 
not class action complaints. 5 C.F.R. 713.251 is 
not a substitute for the filing of individual 
complaints, and plaintiff could not use 5 C.F.R.
713.251 to prosecute his individual claim on behalf 
of a class. Rather, it is contemplated that groups,
(e.g . , civil rights organizations) or other third 
parties will use 713.251 to prosecute 'general 
allegations . . . which are unrelated to an individual



3
complaint of discrimination.1" Brief For The Defendants, 
McLaughlin v. Callaway, Fifth Circuit No. 75-2261, 
at p. 13. See also pp. 5-6.

Relevant portions of the Civil Division brief, which was submitted
to the Fifth Circuit in September 1975 (when notice of appeal in the
instant case was filed), are attached hereto as App. I. The
district court in McLaughlin v. Callaway , 382 F.Supp. 885, 891
(S.D. Ala. 1974), denied a Title VII federal employment class
action on the same grounds as the lower court here. On appeal, the
Civil Division conceded that the district court had erred in
relying on the government's prior arguments concerning the failure

_1/
to file a third party complaint.

In conceding error, the Civil Division relied on two 
Civil Service Commission documents put in the McLaughlin record 
by plaintiff's counsel. Brief for Defendants at 5. These 
documents were also submitted to the lower court in the instant 
case as Exhibits A and B to the Memorandum in Support of Plaintiffs' 
Motion for a Reconsideration of the Order Denying Class Action 
and for a Motion Requiring the Defendants to Answer Interrogatories.

_ V
The Civil Division nevertheless argued that denial of 

the class action was proper, relying on two grounds neither of 
which helps defendants in the instant case. Thus, the Civil Division 
argued first that plaintiff was not a proper class representative, 
a contention which is simply not made here and would, in any event, 
be premature. Second, the Civil Division argued that a Title VII 
class action may not be maintained on behalf of individuals who 
have not exhausted their administrative remedies. This is exactly 
what the abortive Erlenborn amendment would have achieved. See 
Brief for Appellants at 44-48. In the instant case, defendants 
have conceded that such a class action bar "goes far beyond what 
defendants propound," at 31.



4
See Brief for Appellants at 6-7. For the convenience of the 
Court, the complete set of exhibits is attached hereto as App.

_3/
II. The discussion in appellants' principal brief at 42-44 
concerning third-party complaint procedures need not be reiterated. 
Several additional points, however, should be made. First, the 
third-party procedure on its face does not permit federal employees, 
such as plaintiffs, to raise classwide discrimination related to 
their individual claims; §713.251 applies only to general allega­
tions "by organizations or other third parties" that are "unrelated

_2/

_2/
Exhibit A is a decision of the Appeals Review Board of 

the Civil Service Commission dated October 18, 1974, in which ARB 
upheld agency rejection of allegations of classwide racial and sex 
discrimination under the individual complaint procedure. ("There 
is no provision in the Civil Service regulations for the processing 
of general allegations of discrimination within the context of 
individual complaints of discrimination," p. 2). Exhibit B is a 
Civil Service Commission memorandum on third-party complaints 
dated January 27, 1975 which, inter alia, discourages the filing 
of third-party complaints for the complaints of individuals ("The 
third-party procedures are not intended as a way of obtaining 
redress in individual cases without filing complaints personally 
and agencies should make certain that the third-party procedure is 
not misused in that manner," at 2). Exhibit A was also relied on 
by Judge Richey in Barrett v. U.S. Civil Service Commission, 10 E.P.D. 
1(10,586, pp. 6447-48 (D.D.C. 1975) in ordering declaratory 
judgment that the Commission treat classwide discrimination in the 
context of individual complaints.

_3/
In Exhibit C, ARB found discrimination against Jewish 

employees generally in promotions in a Navy supply department and 
ordered relief for the individual complainant, but the Civil Service - 
Commission, in Exhibit D, exercising its authority under 5 C.F.R. 
§713.235, reopended the case for the purpose of establishing binding 
policy. The Commission then vacated ARB's decision on the ground that 
the complaint was not a "valid first-party complaint" since the 
claim was a general failure to promote Jewish employees since 1965. 
Exhibit E is an ARB decision upholding the barring of witnesses from 
testifying on classwide discrimination at an EEO hearing.
Exhibit F indicates that the Commission does not in any event 
recognize the concept of continuing discrimination and Exhibit 
G that the Commission does not inform complainants of their 
right to sue from an unsatisfactory resolution of a third-party 
complaint.



5
to an individual complaint of discrimination." Second, the Civil
Service Commission's Appeals Review Board has upheld an agency's
refusal to process individual and classwide claims arising out
of the same cause of action separately but simultaneously through
individual and third-party complaint procedures unless the latter
procedures were invoked by an "organization or other third party."
(ARB decision dated February 11, 1975) See App-. III. Third,
the third-party procedure is not adjudicatory in nature at all:
its purpose is simply "to call agency management's attention" to
allegedly discriminatory policies; there is no hearing or right to
present evidence in any way but only an agency investigation; the
investigation "is not expected to cover individual cases in
sufficient depth which necessarily would result in findings or
decisions with respect to those individuals", and there is no
right of appeal to ARB but only a "review" by the Commission offices.
See App. II, Exhibit B, and App. IV (Commission F.P.M. letter).
Fourth, the Commission does not in any event consider that the
third-party allegation procedure gives rise to a right to sue.
Thus, 5 C.F.R. §713.282 provides in relevant part:

Notice of right - An agency shall notify an employee 
or applicant of his right to file a civil action, 
and of the 30-day time limit for filing, in any 
final action on a complaint under §§713.215,
713.217, 713.220, or § 713.221.

In accordance with this provision, the Commission does not notify 
a third-party complainant of a right to bring a civil action. See, 
e.g./App. II, Exhibit G. In cases where the third-party 
complaint has been filed, the government has argued "Such Third 
Party complaints are administrative matters appealable to the 
Civil Service Commission, and there is no right to file a civil



6
action thereon." Memorandum in Support of Motion of Defendants To
Strike, To Sever, To Dismiss in Part, and To Remand in Part,
MEAN v. NASA, D.D.C. C.A. No. 74-1832, at p. 3. In short,
contrary to what defendants contend, there is no way to file an

_£/
administrative class action complaint.

2. The above is a sufficient response to defendants' 
contention on exhaustion of remedies for classwide discrimination, 
p. 14 et seq. Even assuming arguendo that plaintiffs could have filed 
an administrative class action, the same would be so: First,
defendants do not in any way respond to plaintiffs' assertion 
on Title VII legislative history and Civil Service Commission 
regulations that defendants were under a duty to search for 
indications of classwide discrimination no matter what the 
scope of a discrimination complaint. Brief for Appellants 
at 28-33. Nor do defendants offer any reason why federal 
employees suing under Title VII should be treated differently from 
private employee Title VII litigants in this respect. Danner v. 
Phillips Petroleum, 447 F.2d 159 (5th Cir. 1971); Sanchez v.
Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); see also

_4/
Indeed, one can well question whether defendants in 

all candor contend that plaintiffs can file an administrative third 
party complaint at all. Brief for Appellees states with reference 
to purported lack of prejudice in denying the class action (see 
supra):

"Moreover, the class may still get any administrative 
relief to which it may be entitled. §713.251 stands 
and may be utilized on the class's behalf by; any; 
organization or other third party." pp. 37-38 (emphasis 
added).

If this means what it says, even defendants do not really believe 
that plaintiffs had a viable third-party complaint option in the 
administrative proceedings.



7
cases cited in plaintiffs' principal brief at 33 n. 38. Plaintiffs' 
class action, of course, cannot be precluded because defendants 
unreasonably refused to conduct a proper investigation in 
administrative proceedings. The question of resort to third-party 
complaint procedures is simply immaterial to the exhaustion question. 
Second, defendants cite McKart v. United States,-395 U.S. 185, 193- 
95 (1969), but do not explain why McKart is relevant to the 
instant case in which plaintiffs have exhausted their administrative 
remedies. In McKart, the issue was a complete failure to file any

_5/
administrative appeal. What defendants seek is not exhaustion as 
such, but a technical common law pleading rule impermissible under 
Title VII. See Brief for Appellants at 38-40. McKart of course
was not a Title VII suit. As the district court in Ellis v. 
Naval Air Rework FAcility put it:

"[R]equiring the individual complainants to use the 
unspecified and complicated third-party allegation 
procedures of 5 C.F.R. §713.251 would run contra to 
the legislative aims of the 1972 Amendments to Title 
VII. One of the purposes behind these amendments 
was to permit federal employees to litigate claims 
being lost in the quagmire of administrative remedies 
requiring exhaustion." 10 EPD at p. 5863. See also 
10 EPD, p. 5863 n. 5 and Brief for Appellants at 39 nn. 
45 and 46.

Third, the overall performance of the Civil Service Commission and
federal agencies in handling discrimination complaints has been

_5/
McKart was a Selective Service Act prosecution for 

failure to report for induction in which the trial court ruled that 
the defense of an exemption could not be raised because of failure 
to exhaust selective service system administrative remedies. The 
Supreme Court held exhaustion was not required because of (1) the 
"severe burden imposed upon the registrant if he is denied judicial 
review, (2) statutory silence concerning exhaustion, (3) lack of any 
agency expertise on the question presented, (4) lack of any demon­
strable showing other than the bare assertion that other registrants 
will bypass available administrative remedies. 395 U.S. at 197-200. 
All these factors, among others, are present in the instant case, 
infra.



8
condemned by Congress (see Morton v. Mancari, 417 U.S. 535, 547 
(1974)), the courts, Hackley v. Roudebush, supra, at 135-41; Ellis 
v. Naval Air Rework Facility, 10 EPD 1110,422 , pp, 5862-63 (N.D.Cal.
1975)), and the United States Commission On Civil Rights in The 
Federal Civil Rights Enforcement Effort - 1974, Vol. V, To Eliminate 
Employment Discrimination (July 1975)

Indeed, these authorities indicate that 
defects and lack of expertise led Congress to grant a civil action 
right to federal employees. Defendants' contentions about the 
value exhaustion are thus at the very best anomalous. Moreover,
plaintiffs' principal brief at 29-30 demonstrates that the 
specific lack of expertise in perceiving discrimination 
claims are inherently classwide in nature, in part, led 
Congress to enact 42 U.S.C. §2000e-16(c), which defendants 
are now seeking to frustrate under the rubric of class action
exhaustion. Court decisions such as Barrett and Ellis of course

yic'ct rJl
serve -und'er than disserve the administrative process by 
affording federal employees their legitimate rights under the 
Federal Rules of Civil Procedure and indicating that agency procedures 
must be changed. Fourth, the contention concerning the primary and 
exclusive role of the Civil Service Commission is wrong on its 
face. Under 42 U.S.C. §2000e-16(c) federal employees can sue 180 
days after the filing of an administrative complaint no matter what the 
state of agency or commission processing. Federal employees can 
sue after final agency action without appeal to the Commission.
See also Parks v. Dunlap, supra, with respect to non-exhaustion for 
preliminary relief. Defendants make the related and rather novel 

contention that under 42 U.S.C. §2000e-16(b) "the CSC was given



9
virtually carte blanche to develop adjudicatory machinery that 
would effectuate the policies of the act," p. 22. Assuming its

_jycogency, that the Commission could lawfully deal with classwide 
discrimination in a bizarre manner or refuse to do so altogether 
under §2000e-16(b) has nothing to do with the duties of federal 
courts acting under §2000e-16(c) and Rule 23 to effectively 
eliminate racial discrimination from federal employment. Barrett 
v. U.S. Civil Service Commission, supra; Ellis v. Naval Air 
Rework Facility, supra.

Thus, defendants' "exhaustion" contentions are irrelevant 
and obscure the true question presented by the lower court's 
preclusion of class action. The issue is not exhaustion, but a 
wholly unnecessary class action bar. For it is clear that 
everything defendants contend on exhaustion logically applies to 
private employee Title VII actions as well. Yet before the 1972 
amendments to Title VII, the courts recognized the legitimacy of 
Title VII class action suits by private employees in circumstances 
identical to those before the lower court. See Oatis v. Crown 
Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968); Jenkins v. United 
Gas Corp., 400 F.2d 34 (5th Cir. 1968); Brief for Appellants at 
44-45. Defendants have no response at all to the question why

6/
Defendants^ cite in support a quote from a Senate Report 

that "The new authority given to the Civil Service Commission in 
the bill is intended to enable it to reconsider its entire complaint 
structure and the relationships between the employee, agency and 
Commission in these cases," p. 14. See also Brief for Appellants 
at 28-33, for requirements on treating discrimination complaints 
as classwide allegations.



10

TitJe VII federal employee plaintiffs should be treated any 
differently in light of the 1372 Amendnents and Abermarle Paper 
Co. v. Moody, 45 L.Ed.2d 280, 294-95 n. 8 (1975).

3. Defendants discuss at length Penn v. Schlesinger,
497 F.2d 970 (5th Cir. 1974) (en banc), cert. pending, 25-29. Penn 
was a 42 U.S.C. §1981 action concerning jurisdiction when there 
had been a complete failure to exhaust administrative remedies 
at any of 17 federal agencies sued. The Fifth Circuit decided 
there was no jurisdiction. Whether a class action could be brought 
was neither in issue nor decided. Defendants simply do not explain 
why the Fifth Circuit's decision in Penn is more relevant to 
decision on this issue than the more closely related decisions in 
Oatis and Jenkins■ Moreover, in Alpha Portland Cement Co. v. Reese 
507 F.2d 607 (5th Cir. 1975), decided after Penn, the issue was 
whether a class action is limited in scope by what was "like or 
related" to administrative investigation as in Sanchez v. Standard 
Brands in a Title VII and §1981 private employment suit. The Fifth 
Circuit squarely held that failure to meet the "like or related" 
standard simply had no relevance for §1981 class actions. See 
also, Johnson v. Railway Express Agency, 421 U.S. 454, 459 (1975). 
The Fifth Circuit added, "Even if we considered it desirable as a 
matter of policy to erect additional hurdles before a plaintiff 
bringing a §1981 class action, it is for Congress not the courts to 
raise them," 507 F.2d at 610-11, n. 5. Penn is thus a thin reed for 
defendants to rest any argument on.

4. Defendants do not refute that the language of 42 U.S.C 
§2000e-16 does not require the class action bar and that this is 
legally decisive. See Brief for Appellants at 36-44. Instead,



11

defendants, at 30-32, contend only that the rejection of the 
Erlenborn amendment discussed in Brief for Appellants at 44-48 
does not apply to federal employees. This overlooks §2000e-16(d) 
which specifically incorporates §2000e-5(f)(1) from which the
Erlenborn amendment was deleted. Defendants' claim that the §2000e- 
16(d) "as applicable" language is a caveat runs right into 
definitive legislative history that "as applicable" means "con­
cerning private civil actions by aggrieved persons." Brief for 
Appellants at 48. It should also be noted that defendants point 
to nothing in the legislative history that indicates that the 
rejection of the Erlenborn amendment is not probative of 
Congressional intent with respect to class actions by all employ­
ees covered by Title VII. Do defendants seriously contend that if 
the Erlenborn amendment restricting class actions had been enacted 
or Albermarle Paper Co. v. Moody, supra, decided otherwise, they 
would not press now for preclusion of class actions by relying on 
legislative history?

5. Defendants' rebuttal to Hackley v. Roudebush, supra, 
at 152-53, n. 177, and Judge Wright's analysis of 5 C.F.R. §713.216(a), 
at 32-35, is patently absurd and, moreover, undercuts their third- 
party complaint contentions. Brief for Appellants at 28-33.
§713.216(a) provides, "The investigation shall include a thorough 
review of . . . any policies and practices related to the work
situation which may constitute, or appear to constitute discrimination 
even though they haye not been expressly cited by the complainant." 
Defendants cannot logically both concede that §713.216 stands for 
what it says, and argue that plaintiffs nevertheless cannot bring 
a class action under the "like and related standard" of Sanchez v.



12
Standard Brands, supra, and Danner v. Phillips Petroleum, supra.
It is simply beside the point whether the agency did or did not 
actually conduct the prescribed investigation: the rule is that
the scope of the class action is that which grows reasonably out 
of the investigation and §713.216(a) states that the investigation 
reasonably should encompass "any policies and practices related 
to the work situation which may constitute, or appear to constitute 
discrimination." This surely includes what is alleged in the 
complaint in the instant action. Of course defendants are also 
wrong that the required investigation was in fact conducted since, 
for example, plaintiffs' express allegation that the discrimination 
complained of occurred "when there is a majority of black applicants" 
was simply ignored. Brief for Appellants at 22, 41-42.

6. Defendants, at 35-36, concede that the administrative 
complaint form "fails to mention, request or otherwise elicit any 
classwide claims" and that plaintiffs "were never informed by the 
NARF of their right to file a class discrimination allegation."
Brief for Appellants at 40-42. They take issue only with the 
"assumption" "that the CSC or the NARF has an affirmative obligation 
to provide advice on the method for filing class action allegations 
when complainants never raise such allegations," p. 35. Congress 
and the Supreme Court have made it clear that enforcement of Title 
VII is a policy of the highest priority and the Supreme Court
u ■ -1/has consistently refused to limit the scope of Title VII lawsuits.

_z /
See, e.g., Alexander v. Gardner-Denver Co.,

415 U.S. 36, 45 (1974).

_§/
Alexander v. Gardner-Denver Co., supra; McDonnell 

Douglas Corp. v. Green, 411 U. S~. 792 0-9 737’; Love~v. PUlTmah, 4 0 4 
U.S. 522 (1972).



13

Defendants' contention thus runs counter to the entire thrust of 
legislative and judicial policy in the employment discrimination 
arena. Defendants misperceive that the appropriate model for 
administrative procedures is common law pleading. It is silly to 
contend that the defendant agencies have no "affirmative obligation" 
to inform completely and not to mislead its employees about their 
rights and remedies with respect to racial discrimination. This 
"assumption" should be fairly implicit in 42 U.S.C. §2000e-16(b) 
which, as defendants have argued, grants the Civil Service Commission 
power to promulgate regulations to, inter alia, process complaints 
of racial discrimination. Defendants are estopped from arguing 
otherwise since the issue is properly not whether there is the 
obligation but how it is carried out: the federal government does
inform its employees of some of their rights in the complaint 
resolution process and the claim is only that it can refuse to tell 
them all of their rights. That plaintiffs were represented by a 
lawyer does not alter what has been said. Indeed, the conclusion 
of Judge Richey in Barrett v. U.S. Civil Service Commission, supra, 
that the pertinent Commission regulations are at "the very best . . . 
confusing and unclear" (emphasis added) and the Civil Division's 
confession of error in McLaughlin makes clear that the presence of 
lawyers, even government lawyers, does not remotely suggest that

4

federal employees should be misinformed and misled. In any event, 
it is the agency, not federal employees, who are obliged by 
Congressional command and 5 C.F.R. §713.216(a) to conduct classwide 
investigation in every administrative complaint of discrimination,

supra.



14
7. Defendants' further contention, at 37-38, that 

denial of class action treatment does not prejudice anyone is wrong 
for the reason stated by Chief Judge Brown in Jenkins v. United 
Gas Corp., 400 F.2d 34 (5th Cir. 1968), and Judge Gray in Hall
v. Werthan Bag Corp. 251 F.Supp. 184, 186 (M.D. Tenn. 1966).
Brief for Appellants at 35-36. It would not benefit black employees 
to obtain relief on individual claims while class discrimination 
persists at the facility or installation as a whole. Cf. Moss 
v. Lane Co., 471 F.2d 852 (4th Cir. 1973). This alone is sufficient 
to distinguish the non-Title VII and non-civil rights case of 
Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974) (military discharge 
case). However, what defendants argue for is even more removed: not 
that plaintiffs can bring another §713.251 complaint but that some 
hypothetical "organization or other third party" can do so, see 
supra, p. 6 n. 4.

8. As to the discovery issue, defendants prevailed below 
that they need not answer plaintiffs' interrogatories. The district 
court refused to change its ruling although plaintiffs sought 
reconsideration several times, filed an interlocutory appeal and 
even sought a subpoena duces tecum. On appeal, defendants adopt
a fairly breath-taking confession and avoidance approach: \  hey do
not contest that plaintiffs were entitled to answers for the 
reasons stated in Brief for Appellants at 49-53; instead, they argue 
only that "all information available" was provided. The 10th Circuit 
in Rich v. Martin Marietta Corp■, 522 F.2d 333, 345 (10th Cir. 1975), 
rejected a claim that all defendants’ records had been provided.
See Brief for Appellants, at 53. Defendants' contentions on discovery
are not only self-serving, belated and inadequate on their face; at



15
no point have the parties tested their validity before the lower 
court under the Federal Rules of Civil Procedure. It need only be 
emphasized that the contention is wrong as a matter of law and as

_9/
a matter of fact. Even assuming arguendo that the interrogatories 
were "answered," it should be remembered that they were only the 
first set to defendants and that failure to answer them or make 
available information until just before trial precluded further 
discovery. This problem was exacerbated by the refusal of the 
district court to grant a continuance of the trial date although 
the unopposed motion pointed out that additional time was necessary 
for proper discovery and plaintiffs' counsel had several previously 
scheduled employment discrimination class actions. Brief for 
Appellants at 6-7. The lower court's only reason was "The named 
plaintiffs are entitled to have their cases heard promptly." Cf. 
Dillon v. Bay City Construction Co., 512 F.2d 801, 804 (5th Cir.
1975) .

Defendants also contend that plaintiffs cannot assert 
both wrongful denial of discovery and rely on defendants' statistical 
trial exhibits to support named plaintiffs' entitlement to relief, 
44-45. The simple response is that defendants put evidence in the 
record that utterly fails to support their defense but does support 
a finding of racial discrimination. If plaintiffs had been permitted 
to conduct discovery, we believe the record would have been even 
more impressive. However, defendants had a free hand in creating

_9/
For example, none of the information sought in the 

subpoena duces tecum was ever provided plaintiffs. Moreover, 
plaintiffs' interrogatories were never answered. Instead, defendants 
provided charts and other information which they determined plaintiffs 
should have. Even that information was not provided more than three 
days prior to trial, with some being provided on the day of trial.



16
the statistical record and the record thus created clearly and 
convincingly demonstrates prima facie racial discrimination and 
absence of any rebuttal. Further, defendants misperceive plaintiffs' 
assertion that reversal of the lower court's ruling on the 
individual claims is required as a matter of law by lack of 
discovery and the existing record, but that judgment for named 
plaintiffs is also shown by the record such as it is. Brief for 
Appellants at 27, 54. At the minimum, reversal and retrial of the 
individual claims are required; however, the record permits this 
Court to reverse and enter judgment for named plaintiffs.

9. Turning to the individual claims, defendants contend 
that whether a prima facie case of discrimination was demonstrated 
is not relevant because, quoting the lower court, "the evidence 
presented more than adequately rebuts any inference of discrimination, 
47. Unfortunately for defendants, the law is precisely the 
opposite. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971); 
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1972); Barnett v.
W • T. Grant Co., 518 F.2d 543 (4th Cir. 1975); Douglas v. Hampton, 
supra. Defendants miss the whole point that in Title VII and civil 
rights cases generally the courts are required as a matter of law 
to analyze whether plaintiffs made out a prima facie case of 
discrimination and, if so then whether defendants' evidence is 
sufficient to rebut plaintiffs' prima facie case. The latter 
inquiry cannot be conducted in a vacuum; it turns on the character 
and strength of the particular prima facie case. For this reason, 
the district court's legal analysis of the evidence was flawed from 
its inception.



17
Brief for Appellants at 14-17 and 60-66 discusses the

record of prima facie racial discrimination based on past discriminatio
and continuing across-the-board statistical patterns of inequality.
Defendants in no way challenge the validity or accuracy of this
evidence. Aside from the bare assertion that the lower court "is
presumed to be familiar with the context in which the case arose,"
46, defendants do not offer any support for the lower court's
conclusion that statistics "do not relate the true picture of the
promotional practices and policies of the NARF." App. 120. The only
statistical evidence defendants offer at 53 merely demonstrates a

10/
small part of 
by plaintiffs 
introduced by 
Action Plans.

the racial disparities. The statistics marshalled 
are of course immune from challenge since they were 
defendants. The same is true for NARF EEO Affirmative 
As to testimony of past discrimination, Captain Shine

10/
First, the statistics show that while the percentage of 

black employees at the GS-5 and GS-7 levels in the 50000 department 
has increased from 1971 through 1973, the majority are still at the 
lower level GS-5. Because the administrative complaint was filed 
in 1973, the 1974 statistics are irrelevant. See infra. Defendants 
fail to mention that during this entire period, there has never been 
more than one black GS-9, and no blacks at higher levels. With 70 
GS-9 or higher level white employees in the 50000 department, the 
presence of one black GS-9 can hardly be said to indicate that 
"among general schedule (GS)level jobs, in the 50000 department the 
percentage of minorities has consistently risen since 1971," 53. 
Second, because defendants have limited their analysis to the GS-5 
and GS-7 levels, no mention is made of the fact that Blacks still 
disproportionately predominate at lower levels. A true picture of 
black representation at NARF can only be obtained by a consideration 
of the total picture. Of course, defendants have consistently tried 
to limit consideration to only the GS-5 and GS-7 levels. An analysis 
of the district court's opinion indicates that they were successful 
in that undertaking. However, Title VII law calls for a much broader 
scrutiny. See, e.g., Barnett v. W._ Th_ Grant Company, supra. Third, 
the statistics presented Oy defendants clearly reveal the need for 
complete discovery in this Title VII case; supra. Without showing any 
"hard" numbers, what jobs are in fact at issue, rate of promotion, 
time in grade, history of the department, etc., defendants' contention 
has no basis.



18
corroborated the testimony of named plaintiffs that "when I came
to the NARF the production dispatchers were at an absolute dead
end as far as promotion goes." App. 189. The scope and breadth

11/
of this prima facie showing alone naturally impose the heaviest 
burden on defendants to show that any reasons offered for the failure 
to promote are not pretextual. McDonnell Douglas Co. v. Green, 
supra, 411 U.S. 804-05.

10. In the instant case of course, the lower court had 
before it evidence which conclusively demonstrates racially 
discriminatory employment practices beyond the demonstration of 
past discrimination and present patterns of discriminatory treatment. 
Thus, Brief for Appellant at 54-60 discusses (1) discrepancies between 
the GS-5 and GS-7 Registers, (2) rating panel judgment, discussed 
infra, in section 11, and (3) administrative investigation, discussed 
infra, in section 11. In challenging these factors, defendants rely 
on the same impermissible factors which the lower court utilized, 
attempt to alter their contentions with respect to certain issues 
even though the district court relied on the prior inconsistent 
contentions, and ignore relevant caselaw.

11/
In Barnett v. W. T. Grant Co., this Court held.that as 

a matter of law a discrepancy in the non-supervisory workforce of 
only 6% (19% black compared to 25% general population) made out a 
prima facie case. A fortiori the lower court erred in ignoring the 
much stronger prima facie case here. Morton v. Charles County 
Board of Education, 520 F.2d 871 (4th Cir. 1975), is simply not 
relevant since the decrease in percentage of black employees of the 
school board was the result of "drastic demographic changes." 
Defendants here did not present any evidence of this effect; indeed, 
they introduced evidence supporting the prima facie case. In any 
event, the district court in Morton carefully analyzed the statistical 
evidence before it in reaching its decision. In the instant case, 
there is nothing more than the lower court's undocumented and unsuppor 
ed conclusion that "statistics do not relate the true picture.



19
Defendants argue that the discrepancies between rankings 

on the GS-5 and GS-7 registers do not constitute an adverse impact 
on Blacks. While they recognize that "more blacks than whites went 
down from the GS-5 to the GS-7 register," 49, they contend that this 
fact does not support a finding of racial discrimination. First, 
defendants point out that while Blacks made up only 29% of all 
qualified applicants on the GS-7 register, 33.3% of the permanent 
promotions went to Blacks and that thus there could be no discri­
mination. This gross statistic ignores both the fact that some jobs 
are better than others and the whole question of when Blacks were 
promoted. A person's ranking on a register obviously determines

12/
his chances of being promoted to the best job in the shortest time.
The fact that Blacks were ultimately promoted does not nullify the
discrimination existing if those Blacks were promoted after less

13/
qualified Whites who should have ranked below them. That 33.3% of 
the promotions went to Blacks is meaningless unless defendants can 
also show that the percentage would have remained unchanged in the 
absence of the discrepancies. Because defendants could not make a 
showing on such factors, and in the face of ranking discrepancies, 
this Court cannotassume the promotions were unaffected by those

12/
Defendants would have this Court believe that the 

rankings play little or no part in the selection process. If such 
were the case, the merit promotion program would be a meaningless 
scrap of paper and federal employees would truly be at the mercy of 
arbitrary selection procedrues. Obviously, there is nothing in the 
record to support defendants' view.

13/Appendix A to Appellees' Brief does not show the order 
in which promotions were made. Indeed, the dates of those promotions 
were never before the district court, although requested by plaintiffs. 
See generally Appellants' Brief at 49-54, and supra, at section 8.



20
discrepancies. Second, defendants contend that named plaintiffs
were ultimately selected for promotions to GS-7. These promotions
all came after plaintiffs had instituted administrative proceedings
with the agency. Brief for Appellants at 64-65. Defendants have
not yet cited a single case which qualifies or modifies Parham v.
Southwestern Bell Telephone Co. , 433 F,2d 421 , 426 ('8th Cir. 1970);
or Gamble v. Birmingham Southern Railroad Co., 514 F.2d 678, 683
(5th Cir. 1975) and cases there cited, that actions taken by an
employer after charges are filed "do not affect the determination of

11/whether the employer violated Title VII." Parham, supra, at 426.
Third, defendants contend that the district court did not commit 
reversible error in considering whether specific individuals intended 
to discriminate against the plaintiffs. Specifically, defendants 
state that "discrimination can still be shown through such evidence 
or discrimination's absence demonstrated by the lack of such 
evidence," 48, n. 13 (emphasis added). No authority is cited for the 
contention that the absence of discrimination can be shown through an 
absence of discriminatory intent. Moreover, Congress specifically 
criticized the Civil Service Commission for assuming that "employment 
discrimination in the Federal Government is solely a matter of 
malicious intent on the part of individuals." See Brief for Appellant 
at 29-30 and 68. Surely Congress did not intend for federal courts

14/
Instead, defendants ask this Court to require named 

plaintiffs to carry the burden that their promotions were awarded as 
a direct result of the charge of discrimination. In order to show "a 
conspiracy on the part of all officials," 51, named plaintiffs would 
have to elicit confessions from those parties charged with 
discrimination. The long and strenuous history of Title VII unques­
tionably shows that such confessions are never forthcoming, and 
no court has ever required as much.



21
to do that which it specifically forbade the Civil Service
Commission to do. Rather, federal courts must apply the principle
most recently expressed in Albermarle Paper Co. v. Moody, supra:

"Title VII is not concerned with the employer's 
'good intent or absence of discriminatory intent' 
for "Congress directed the thrust of the Act to 
the consequences of employment practices, not 
simply the motivation.'" 45 L.Ed 2d at 299 
(citations omitted, emphasis by the Court); see 
generally Appellants' Brief at 66-68.

The district court's reliance upon the intent of defendants and
others (App. 106-110), clearly in itself constitutes reversible
error.

Finally, defendants argue that plaintiffs failed to 
prove racial discrimination because "no plaintiff suffered an 
ultimate adverse effect," 52. This contention is based on the 
fact that plaintiffs were ultimately promoted to GS-7. While 
this contention has been dealt with above, a further comment is 
appropriate. Defendants completely ignore the fact that promotion 
to each step in the federal career ladder is dependent upon time- 
in-grade at the next lower level. See Brief for Appellants at 18, 
and General Schedules Handbook X-118, App. 189-90, 331. Thus, Blacks 
who are delayed ‘in their advancement to GS-7 will likewise be 
delayed in advancing to GS-9 and.'higher. The statistics with 
regard to black representation at high-level GS positions, Brief for 
Appellants at 14-17, are fully consistent. Were employers allowed 
to escape liability under Title VII by "ultimately" promoting Blacks 
to higher levels, black employees would never achieve parity with 
Whites. Employers would always be able to promote white employees 
ahead of Blacks, regardless of qualifications, so long as those Blacks 
are "ultimately" promoted. Such a proposition is unthinkable and 
entirely repugnant to Title VII.



22

11. Defendants argued and the lower court found, that 
"the judgment and discretion of the members of the rating panel

15/
is a factor in rating." App. 110. Before this Court, however,
defendants con-tend that judgment was not as decisive as they had
led the district court to believe. Stating that "[a]11 standards
applied by humans are to a degree subjective," 55, defendants
attempt to show that the actions of the rating panel were governed

16/
by objective guidelines. Defendants cannot have it both ways; 
having successfully argued that judgment was the key factor in the 
discrepancies on the registers, they cannot be heard to say now that 
it played only an insignificant role. The change of their position 
before this Court can only be interpreted as an admission on their 
part that their previous position, accepted by the district court, is 
untenable and should be reversed.

Moreover, the claim of objective standards cannot be 
meant seriously since, as we point out infra, the registers were 
terminated as a result of the administrative investigation. See 
section 12. The fact that such subjective standards appear in

15/
Indeed, defendants in their post-trial brief to the 

district court stated:
"Accordingly, the result of the four plaintiffs 
[sic] being placed out of the range for promotion 
to the first twelve vacant GS-7 positions on the 
(AF & AFE) register was due to j udgmental factors." 
Defendants' Post Trial Brief, p. 30 (emphasis 
added); see Brief for Appellants at 56-59.

16/It should be noted that the second investigator found 
these "objective" guidelines to be invalid (App. 770).



23

federal regulations provides no immunity. See, e.g., Douglas v. 
Hampton, supra; Barrett v. U.S. Civil Service Commission, supra.

Defendants state that even if the finding that the 
administrative investigation did not constitute racial discrimination 
is not supported by the evidence, "the finding would be a harmless 
error since no discrimination has been shown," 56. Since defendants 
can cite no evidence to support the district court's finding, it is 
necessary only to respond to defendants' contentions that such a 
finding was only harmless error. Named plaintiffs argued before the 
district court, as well as in the principal brief, that the handling 
of plaintiffs' administrative complaint not only supported other 
evidence of racial discrimination, but constitutes racial 
discrimination in and of itself. Brief for Appellants at 59-60.
The 1972 amendments to Title VII, for instance, out lav/ racial 
discrimination in all personnel actions, including the 
administrative complaint process. This being the case, an 
unsupported finding on the question by the district court cannot 
be considered "harmless error" either alone, see Barrett v. U.S .
Civil Service Commission, or as part of the greater pattern or 
practice of discrimination.

12. Finally, defendants contend that the entire prima 
facie case v/as disproved by rebuttal evidence and rely on the factors 
cited by the lower court in concluding no prima facie case was made 
(already shown to be unsupported above); i^ e,, lack of discriminatory 
intent "ultimate" promotion of named plaintiffs, justification of 
subjective judgment and nondiscriminatory administrative processing. 
However, those factors, even asusming arguendo some support in the
record, cannot explain discrepancies in the GS-5 and GS-7 rankings



24* m
9 or overall discriminatory patterns. Defendants have never argued 

that the discrepancies in the GS-5 and GS-7 rankings can be 
justified. Captain Shine specifically terminated both registers 
as a result of the investigation, App. 743-44. Defendants 
essentially do not argue that black employees were not harmed, 
but only that white and black employees were equally harmed.
This, they have never shown. Accordingly, the named plaintiffs 
are entitled to judgment in their favor.

CONCLUSION
The issues presented in this appeal are fundamental 

to the future effectiveness of Title VII as it relates to federal 
employees. Plaintiffs merely seek the same procedural.and 
substantive protections which federal courts have consistently 
accorded to employees in the private sector, and which Congress 
extended to federal employees in 1972. No reasons exist which serve 
to justify the federal government's request that it be somehow 
exempted from the strong national policy of outlawing racial 
discrimination in employment. Indeed, considering the federal 
government's long and consistent attempts to obtain Title VII 
compliance from private employers, such a request cannot be 
justified. ,

WHEREFORE, plaintiffs-appellants respectfully urge 
this Court to:

1. Reverse the lower court's ruling that this action 
cannot be maintained as a class action and remand the case to the 
district court for further proceedings, including the allowance of 
broad discovery under applicable Title VII law;