Maddox v Claytor Reply Brief for Plaintiffs-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 
No. 84-8006

I

GEORGE A. MADDOX, et aI.,
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

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

JULIUS L. CHAMBERS 
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



TABLE OF CONTENTS

I. Introduction
II. Response to Defendant-Appellee's Counter­

statement of the Issues
III. Counterstatement of the Case
IV. Factual Issues
V. The Statistical Proof
VI. The Defendant's Duty to Validate
VII. Failure to Develop & Implement an Effective

Affirmative Action Plan Creates a 
Cause of Action

VIII. Class Members 
Conclusion
Certificate of Service

Page
1

3
5
5
8
12

14

16
17
18



TABLE OF AUTHORITIES

Cases; Page

Bell v. Birmingham, 715 F.2d 1552 (11th Cir. 1983) 11, 17
Boykin v. Georgia Pacific Co., 706 F.2d 1384

(5th Cir. 1983) 14
Brown v. G.S.A., 425 U.S. 820 (1976) 15
Cannon v. City of Chicago, 441 U.S. 677 (1979) 15, 16
Capaci v. Katz & Besthoff, Inc., 711 F.2d 647

(5th Cir. 1983) 9
Carpenter v. Stephen F. Austin State University,

706 F .2d 608 (5th Cir. 1983) 13
Cooper v. Federal Reserve Bank of Richmond,

___U.S. ___, 52 U.S.L.W. 4853 (June 25, 1984) 16
Cort v. Ash, 422 U.S. 66 (1975) 15
De Medina v. Reinhart, 686 F .2d 997 (D.C. Cir. 1982) 2
Doe v. United States, 718 F.2d 1039 (11th Cir. 1983) 11
Dothard v. Rawlinson, 433 U.S. 32 (1977) 13
Eastland v. Tennessee Valley Authority, 704 F .2d 613

mod. 714 F .2d 1066 (11th Cir. 1983) 3, 14
Ferguson v. Veterans Administration, 723 F.2d

871 (11th Cir. 1984) 14, 15
Harris v. Birmingham Board of Education, 712 F.2d

1377 (11th Cir. 1983) 17
Inwood Laboratories Inc. v. Ives Laboratories,

Inc., 456 U.S. 844 (1982) 12
Jackson v. Seaboard Coast Line R. Co., 678 F.2d

992 (11th Cir. 1982) 12
Lewis v. Smith, 731 F.2d 1535 (11th

Cir. 1984) 11, 16
Movible Offshore, Inc. v. M/V Wilen A. Falgout,

471 F .2d 268 (5th Cir. 1973) 11



Cases: Page

NAACP by Campbell v. Gadsden County School Board, 691
F .2d 978 (11th Cir. 1982) 11

Paxton v. Union National Bank of Little Rock, 688 F.2d
552 (8th Cir. 1983) 3

Pouncy v. Prudential Ins. Co., 668 F .2d
795 (5th Cir. 1982) 14

Pullman-Standard v. Swint, 456 U.S. 273 (1982) 11, 12
Rivera v. City of Wichita Falls, 665 F . 2d

531 (5th Cir. 1982) 14
Robbins v. White-Wilson Medical Clinic, 642 F .2d

1531 (5th Cir. 1981) 3
Rogers v. Lodge, 458 U.S. 622 (1982) H
Segar v. Smith, __ F.2d ___, D.C. Cir. Nos. 82-1541,

82-1590 (June 22, 1984) 2, 9, 10, 12, 14
Smith v. State of Georgia, 684 F.2d 729 (1982) H
Theodore v. Hercules Navigation Co., 448 F.2d 701

(5th Cir. 1971) 11
United States v. United Gypsum Co., 333 U.S. 364

(1948) 11
United States Postal Service Bd. of Governors v. Aikens,

___U.S. ___, 75 L.Ed.2d 403 (1983), 7
Walker v. Jefferson County Home, 726 F.2d 1554

(11th Cir. 1984) 3' 13
Watson v. National Linen Service, 686 F.2d

877 (11th Cir. 1982) 16' 17
W.R.B. Corporation v. Geer, 313 F .2d 750 (5th

Cir. 1963) 11



Other Authorities;
Federal Personnel Manual, Chap. 335
Schlei & Grossman, Employment Discrimination Law (2nd 

Ed. 1983)

13
15

Page

29 C.F.R. § 1607, et. seq. 13



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 
No. 84-8006

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

- v -
w. GRAHAM CLAiiTOR, Secretary of 
the Navy,

DefenGant-Appellee.

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

I.
Introduction

The incorrectness of defendant-appellee's suggestion 
that oral argument is not necessary in this case is demonstrated 
d* the fact that appellants' and appellee's recitation of the 
facts, their analyses of the law and application of the law to the 
facts, as presented in their respective briefs, are in direct con­
flict. Thus, plaintiffs-appellants respectfully submit that this 
matter should be argued in order that the Court may better address 
the claims presented in this appeal.

Thus, defendant-appellee's assertion that the trial 
court's findings are so clear, concise and logical as to mitigate 
the need for oral argument is incorrect. In fact, appellants are



appealing this case, in part, because the lower court's analysis 
is factually and legally incomplete. For example, the district 
court's opinion does not address plaintiffs' allegation that the 
defendants violated Section 717(d ) of the 1972 Act by failing to 
develop effective affirmative action plans. Similarly, many of 
the court's findings are not based upon the record, and there-

Vrore are clearly erroneous.-
Notably, the court below erred in evaluating plain­

tiffs' statistics as they relate to promotions to higher level 
positions, because the court failed to accept the fact that 
the vast majority of promotions at the Base are from the work­
force. Accordingly, the appropriate comparison to be made is 
whether the number of Blacks holding upper level positions 
reflect the proportion of Blacks in the internal labor pool.
See e.g ., Segar v. Smith, ____ F .2d ____ , D.C. Cir. Nos. 82-
1541, 82-1590, SI. Op., June 22, 1984, pp. 40-41; De Medina v . 
Reinhart, 686 F.2d 997, 1008 (D.C. Cir. 1982). In addition, 
the district court discounted plaintiffs' statistical studies 
of promotions because the court erroneously determined that 
plaintiffs' expert wrongly accumulated the results. (R.1387.) 
Plaintiffs' expert's study and testimony as presented by affi­
davit contradicts the district court's conclusion as a matter 
of fact, confirming that plaintiffs' expert did in fact analyze

]_/ For example, the only evidence introduced with respect 
to the claim of Mr. George Maddox was his deposition, which 
establishes that he was discriminated against. Yet, in spite 
of the fact that not one iota of evidence was introduced by 
the defendants regarding Mr. Maddox, the trial court found 
against him.

2



each promotion on an "announcement by announcement" basis.
(R 1419, 1461.)

Further, the trial court applied erroneous standards 
of law and misapplied the burdens of proof. Thus, the lower 
court simply accepted defendant's unsupported speculations to 
account for the low levels of promotions for black employees, 
rather than to impose upon defendants the burden of explaining 
the reason for racial disparities by concrete and reliable 
evidence. See, e.g., Eastland v. Tennessee Valley Authority,
704 F .2d 613, mod., 714 F.2d 1066 (11th Cir. 1983). Consequent­
ly, the district court wrongly failed to require the defendants 
to demonstrate that their employment devices that have an 
adverse impact were job validated and hence were accurate pre­
dictors of success on the job. Walker v. Jefferson County Home, 
726 F .2d 1554, at 1558 (11th Cir. 1984); Paxton v. Union National 
Bank of Little Rock, 688 F.2d. 552 (8th Cir. 1983); Roboins v . 
white-Wilson Medical Clinic, 642 F.2d 1531 (5th Cir. 1981).

Finally, defendant's notion that all of legal issues 
raised by plaintiffs are governed by clear precedent is in­
correct. The question of defendant's liability in a case 
alleging class-wide discrimination for failing to develop an 
effective affirmative action plan presents a case of first 
impress ion.

II.
Response to Defendant-Appellee's 
Counterstatement of the Issues

Issue 1
(1) Plaintiffs' statistical analysis, the promotion oppcr-

3



tunity study, was based upon an analysis of each job vacancy 
which incorporated the employee qualification standards required 
by the defendants in its promotion scheme. (2) The relevant labo 
market, with respect to promotions, was the internal workforce. 
Defendants dio not introduce probative evidence demonstrating 
that the Base hires from the outside. Further, hiring is not at 
issue in this appeal. (3) Defendant's statistical studies with 
respect to promotion clearly reflect levels of racial discrimi­
nation at levels of statistical significance. (4) The well- 
established case law within this Circuit requires employers to 
demonstrate that employment criteria that have an adverse impact 
is validated. More importantly, the governing rules and regula­
tions, the Uniform Guidelines and Federal Personnel Manual, 
require federal governmental agencies to validate their proce­
dures .
Issue II

As a matter of face, the deposition of Plaintiff 
Maddox which the lower court accepted into evidence, demonstrates 
that he was discriminated against. Since this evidence was 
totally unrebutted oy the defendants, the trial court's un­
supported determination that Mr. Maddox was not discriminatorily 
treated is in error.
Issue III

The court is required to grant individual relief to 
those individuals whom it has determined to be "persuasive on 
the issue of discrimination." The fact that there was no finding 
of classwide discrimination does not vitiate the right to

4



individual relief.
Issue IV

Whether or not a cause of action exists against a 
federal agency in a class action because it has failed to develop 
an effective affirmative action program presents an issue of 
first impression.

III.
Counterstatement of the Case 

Generally, defendants' counterstatement of the case 
agrees with that of plaintiffs. However, in footnote 2 on page 5 
of their Brief, defendants distort the facts. As the record, 
referred to by defendants makes clear, the delay in procesing the 
litigation was caused by defendant's counsel's refusal to provide 
essential employee data that formed the basis of the statistical 
stud ies.

IV.
Factual Issues

1. Defendant does not refer to any part of the record, 
nor does the record support, his statement that 50% of the white 
employees and only 10% of the black employees transferred from 
the Philadelphia facility. Nor does the record support defen­
dant's conclusion that the alteration in the black-white ratio 
was of special concern to the Base officials, or that they took 
any action to rectify the problem. The record does reflect that 
the Base has never taken any affirmative steps to fill positions 
in which Blacks are underrepresented, and in fact equal employ­
ment opportunity objectives are not factored into selection

5



determinations. (Deiter Dep. 12, 14, 19; TR Vol.3, 111-112.) 
The alleged efforts of the Base to recruit and hire Blacks are 
no defense to the failure to promote Blacks. In addition, 
assuming arguenao that some efforts were made to recruit and 
hire Blacks, defendant's general testimony is insufficient, 
because while there may have been some efforts at one point, 
they did not occur on a regular or continuous basis.

2. Defendant's statement as to how the merit promotion 
system operates is strictly theoretical and contradicted by 
the record which reveals that the process is unguided, 
uninstructed, and non-uniform and is based upon the subjective 
determinations of a predominately white supervisory staff. In 
order to avoid being redundant, Plaintiff-appellants respect­
fully refer the Court to pages 7-12 of their main Brief which 
presents an exhaustive and factual analysis of the promo­
tion scheme.2/

3. Defendant's analysis of tne claims of Mr. William 
Acad is deficient in that it fails to respond to Abad's allega­
tions that his non-selection for a GS-8 position (TR Vol III, 
18-19) and his subsequent termination in 1980 by his white 
supervisor were racially discriminatory. In this regard, the

2/ For example, in view of the testimony of defendant's 
witnesses to the contrary, his statement that Blacks have been 
encouraged to serve on selection panels is not be believed.
See Brief, p. 9. Further, defendants baldly assert that the 
"selecting official selects the roost highly qualified appli­
cants) for the position!s)." It can be reasoned that 
defendants do not make any reference to the record in support 
of this thesis because, as plaintiffs have shown, none exists. 
(Appellants' Brief, pp. 9-11).

6



record establishes that Mr. Abad unsuccessfully competed for 
a GS-8 supervisory position which was awarded to a White.
He subsequently competed for a supervisory position which was 
awarded to a less experienced white female. Ironically,
Abad had been previously denied a supervisory position alleged­
ly because he lacked tenure, but this factor was not considered 
by defendants when they selected the White instead of 
Abaa. (TR III, 15; TR II, 130).

4. Defendants contention that none of the unnamed class 
members offered any direct evidence of discrimination reflects 
their lack of comprehension of the law governing employment 
discrimination cases. A long line of opinions establishes that 
it is not necessary, nor is it usually possible, for plaintiffs 
to show racial animus through such "direct" evidence. See
United States Postal Service Bd. of Governors v. Aikens, ____
U.S. ____ . 75 L.t£d.2d 403, 409, n.3 (1983). Once a prima facie
case is shown, it is required that the defenaant-employer, and 
not tiie plaintiff-employee, articulate a legitimate, non- 
aiscriminatory reason for its action by showing, for example, 
that the plaintiff was less qualified.3/

3/ Defendant's statement that not all of the class members 
testified directly about promotions is true but irrelevant.
A few of the members of the class complained about their 
failure to obtain assignments that would enhance their oppor­
tunities to advance, or that they were denied equitable terms ano conditions of employment. (See, e,q., TR II 135, 189, 190, 
206). Clearly, not each witness testified as to the same pro­
blem, and plaintiffs'complaints represent a spectrum of various 
concerns.

7



V.
The Statistical Proof

Defendant-appellee miscontrues the record concerning
the studies performed by plaintiffs' expert Dr. Drogin. The
record is clear that Dr. Drogin did not lump together all vacancy
announcements, but that he analyzed them separately and then

4/added up the results over all vacancy announcements.-
Prior to trial, plaintiffs prepared charts on each 

competitive promotion for which there existed vacancy announce­
ment filed for the relevant time period. The forms showed, for 
each vacancy posted, one grace level of the position, the title 
of the position, the names of all persons who applied, whether 
each was found qualified, highly qualified, and/or was selected. 
The names of the persons so listed were then checked against a 
list provided by defendant which showed the race of all persons 
employed at the base. The race identifiers were place on the 
forms anc all the forms for each vacancy announcement were 
forwarded to Dr. Drogin.

Dr. Drogin had the information coded and key punched 
by vacancy announcement into computer readable form. Using 
established statistical methods, Dr. Drogin then examined each 
vacancy announcement separately to determine the variance 
between the number of Blacks selected and the Blacks expected 
to be selected based on the applicants. Indeed, his study 
examined each stage of the selection process from applicant to

4/ See, our main Brief at pp. 25-30
8



qualified, from qualified to highly qualified, and from highly
, .̂ . . , 5/qualified to selectee.—

By looking at each vacancy announcement separately 
Dr. Drogin was able to avoid precisely the pitfall discussed 
by defendant-appellant in his brief; that is, he was able to 
eliminate those vacancies for which only Blacks applied or only 
Whites applied. Thus, he zeroed in specifically on those pro­
motion actions involving competition between Whites and Elacks.

Of course, as has been pointed out by many courts, 
it would be improper to simply look at each separate vacancy 
since the numbers involved in each would be so small as to 
never result in statistical significance even if no Blacks were 
ever selected.—^ see Capaci v. Katz & Besthoff, Inc., 771
F.2a 647, 655-56 (5th Cir. 1983); Segar v. Smith, ___ F.2d ___
(D.C. Cir. Nos. 82-1541, 82-1590, June 22, 1984, si. op. p.60.
Dr. Drogin's study avoided this methodological flaw by examining 
each vacancy announcement separately and then computing the vari­
ances over all vacancy announcements. Thus, he, in the words of 
Judge Wright in Segar, "aggregated the significance of the result 
in each subgroup to derive a test for significance with respect to

5/ See Drogin Affidavit, R.1412-20.
6/ For example, assume a position where one person is to be 
selected, five Blacks and five Whites apply, and a White is 
selected. Given the small number of selections ana the small 
numoer of persons applying, such an instance would not have 
statistical significance. If, however, there were 1000 such 
instances ana 1000 times in which five Whites ana five Blacks 
applied and a White was always the one selectea, the results 
would be highly significant and would demonstrate discrimi­
nation beyona any question.

9



the Class as a whole" (Si. op. p.60), without inappropriately 
aggregating all applicants regardless of vacancy announcement. 
His methodology demonstrated statistically significant under­
selection of Blacks over all vacancy announcements and with 
regard to a number of steps in the process.

Defendant is also incorrect in claiming that Dr. 
Drogin's study did not distinguish betwen persons qualified and 
persons unqualified. In the first place, his study specifically 
lookeci at those persons who had been found qualified, _by the 
Base, i.e., those who had the "minimum objective qualifications" 
for the positions, and had moved to the next stage of the pro­
cess. Seqar v. Smith, supra, Si. op. at 37-38. Further, to the 
extent that his study showed that Blacks were disqualified at a 
higher rate, his study demonstrated that there were qualifica­
tion standards which are subject to attack on a disparate impact 
theory. Segar, supra at 27-28; 64-65. Inaeed, his study is 
therefore consistent with the study of the defendant's own ex­
pert which demonstrated, through a regression analysis, that 
level of education had the effect of disqualifying a higher 
number of Blacks as compared with Whites.

In sum, it is clear that from the record that the 
district court's finding that plaintiffs' expert improperly 
aggregated results is incorrect. Further, the district court's 
finding could not be based on the credibility of defendant's 
expert as claimed. Defendant's expert simply had no factual 
basis, and cited none, for his conclusory statement regarding

10



Dr. Drogin's studies. The only direct evidence with regard to 
the methodology used by Dr. Drogin was provided by Dr. Drogin 
himself, and there is nothing in the record which contradicts it.

While Fed. R. Civ. Pr. 52(a) provides that appellate 
courts must defer to district courts' findings of fact (Rogers 
v. Lodge, 458 U.S. 622 (1982)), the rule is not absolute. If a 
trial court's findings of fact are clearly erroneous, they may 
be set aside by the reviewing court. Pullman-Standard v. Swint, 
456 U.S. 273 (1982); NAACP by Campbell v. Gadsden County School 
Board, 691 F.2d 978 (11th Cir. 1982); Bell v. Birmingham, 715 
F.2d 1152 (11th Cir. 1983); Lewis v. Smith, 731 F.2d 1535 (11th 
Cir. 1984).

Findings of fact may be held clearly erroneous in 
situations where the record lacks substantial evidence to support 
them. See Doe v. United States, 718 F .2d 1039 (11th Cir. 1983); 
Smith v. State of Georgia, 684 F.2d 729 (1982); or where the 
court is left with the impression that it is not the "truth and 
right of the case", W.R.B. Corporation v. Geer, 313 F.2d 750,
753 (5th Cir. 1963); see also Movible Offshore, Inc, v. M/V Wilken 
t\. Falgout, 471 F.2o 268, 271 (5th Cir. 1 973); Theodore v .
Hercules Navigation Co., 448 F.2d 701, 704-705 (5th Cir. 1971).

Thus, under Rule 52(a) the courts have held that a 
finding is clearly erroneous when the court is left with a 
definite and firm conviction that a mistake has been committed. 
United States v. United Gypsum Co., 333 U.S. 364, 395 (1948);

7/ Indeed, the expert acknowledged that he had not examined 
"""the data or calculations" made by Dr. Drogin. (R. 1387)



see also Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992,
1U16 (11th Cir. 1982). Finally, the rule as enunciated in 
Pullman ooes not apply to conclusions of law, nor to factual 
findings that result from the application of incorrect legal 
principles. Inwood Laboratories Inc, v. Ives Laboratories, Inc., 
456 U.S. 844, 855 n.15 (1982).

Here, the district court's finding with regard to Dr. 
Drogin's methodology is clearly erroneous. As described above, 
the record is uncontradicted and cannot support the conclusion 
arawn by the court below.

VI
The Defendant's Duty to Validate 

Defendant's Brief is devoid of any legal or factual 
refutation, or even cursory discussion, in response to plaintiffs' 
contention that the Base hao an affirmative duty to perform a 
jod analysis and demonstrate the validity of its employee 
selection devices pursuant to the Uniform Guidelines on Em­
ployee Selection Procedures. Since the evidence clearly demon­
strates that the Base has never conducted validation studies, it
is oovious that the defendant has no defense in this regard.

8/(TR Vil III 107, Lee Dep. 35; P.B. 14— 15)—

8/ in an effort to demonstrate the objectivity in their 
selection process, defendants have assembled for the court, 
numerous regulations promulgated by the Office of Personnel 
Management. Although these rules have standardized the job 
grading and classification system to some extent, they do not 
remove the extreme subjectivity inherent in the final phases 
of the hiring process. See Segar, SI. op. at 39. Even assuming 
arguendo that these regulations minimize subjectivity, defen­
dants have not shown nor can they show, that they actually 
followed the procedures set forth in these rules. Moveover,

12



Relying on Carpenter v. Stephen F. Austin State 
University, 706 F.2d 608 (5th Cir. 1983), defendant asserts that 
he has no duty to validate the base selection process until 
evidence is adduced demonstrating that a statistically signi­
ficant adverse impact on a protected class is shown. This 
reliance, however, is misplaced.

Carpenter discusses the employer's required showing 
after a plaintiff's prima facie case has been made. After a 
plaintiff has shown that a neutral practice operates more 
harshly on one group than another, Dothard v, Rawlinson, 433 
U.S. 32, 329 (1977), the burden shifts to the employer to show 
that the specific requirement has a manifest relationship to the 
employment in question —  "thereby validating it for purposes 
of the disparate impact theory," Carpenter at 621-22. Since 
plaintiffs have already demonstrated that the selection proce­
dures employed by defendants have an adverse impact on the 
plaintiff class, it is defendants' burden to show that the 
selection procedure is necessary for the positions in question. 
See also, Walker v. Jefferson County Home, 726 F.2d at 1558.

In addition to the defendant's burden after plain­
tiffs have demonstrated adverse impact, the Federal Personnel 
Manual, Chap. 335, requires that federal agencies validate their 
selection procedures in compliance with 29 C.F.R. § 1 607, e_t seq. ,

8/ continued
many of the regulations cited have been promulgated recently.
Out of the 21 rules cited, two-thirds were promulgated after 
1979, the year the class was certified. Since these regulations 
were not in place during the years covered by this litigation, 
they are irrelevant to the instant case.

13



reyaraless of whether adverse in part has been shown. It is this 
regulation that plaintiffs use as a basis to support defendant's 
validation requirement.

Finally, defendant's reliance on Pouncy v. Prudential 
Ins, Co. , 666 F‘.2d 795 (5th Cir. 1982) and Rivera v. City of 
Vvichita Falls, 665 F.2o 531 (5th Cir. 1982), is also misplaced. 
First, Pouncy is not the law in this Circuit. Eastland v. Ten­
nessee Valley Authority, 704 F.2d 613, 619-20 (11th Cir. 1983). 
See also Segar v. Smith, supra, SI. op. at 28-29. Second, even 
in the Fifth Circuit they would not govern. As the court pointed 
out in BoyKin v. Georgia Pacific Co., 706 F.2d 1384, 1393 (5th 
Cir. 1983), those cases involved jobs requiring skills not 
generally possessed or readily acquired by the general population 
Thus, it was not necessary to consider qualifications in validity 
an accurate statistical picture. (Id.)

VII.
Failure to Develop and Implement an Effective 
Affirmative Action Plan Creates a Cause of Action

Defendants argue that Ferguson v. Veterans Adminis­
tration , 723 F.2d 871 (11th Cir. 1984) is dispositive of the 
issue of whether defendants' failure to develop and implement 
an affirmative action plan violates Title VII. Defendants 
misconstrue the meaning of Ferguson, which holds that absent a 
showing of discrimination, there is no Title VII cause of action 
for the failure to implement or utilize an affirmative action 
program [emphasis added at 872]. Moreover, the facts of 
Ferguson, are substantially different and hence distinguishable 
from the instant case. Ferguson involved an individual

14



claim of discrimination which did not, therefore, raise classwide
concerns. Plaintiff in Ferguson presented virtualy no evidence 
to establish a prima facie case under either a disparate impact 
or disparate treatment theory. Her whole cause of action rested 
on the defendants' failure to advise and train her so that she 
could gain the necessary qualifications for the job of librarian. 
Here, plaintiffs claim a systematic failure to comply with the 
requirements of 42 CJ.S.C. §2000e-16(b). This is an entirely 
different issue than that addressed in either Ferguson or Page v . 
Bolger, 645 F.2d 227 (4th Cir. 1981). See Schlei & Grossman 
Employment Discrimination Law (2nd Ed. 1983), p.1199, n.121.

As set out in our main Brief at pp. 49-53, plain­
tiffs alleged ana proved such a systematic failure. That plain­
tiffs, as black employees relegated to low-level positions, have 
standing to raise such a claim can not be seriously questioned. 
They are clearly the intended beneficiaries of §717(b), which 
was enacted because of Congress' concern with the imbalance in 
the federal workforce. See Cannon v. City of Chicago, 441 U.S.
677 (1979). In Cannon the Supreme Court applied the test de­
veloped in Cort v. Ash, 422 U.S. 66, 78 (1975) to find standing. 
The application of that test here requires the same result.

First, clearly, plaintiffs are members of the class 
"for whose especial benefit the statute was enacted." (Id.)
Secona, there is no indication of Congressional intent to deny a 
cause of action; to the contrary, a central purpose of section 
717 was to remove all doubts on that score. See, Brown v . G .S .A ., 
425 U.S. 820 (1976). Third, the implication of a private remedy

15



would clearly not "frustrate the underlying purpose of the
legislative scheme." Cannon, 441 U.S. at 703. To the contrary, 
permitting aggrieved Black employees to mount such a challenge 
will further that scheme since otherwise no effective challenge 
can be made to an agency's failure to comply with the statute.

VIII.
Class Members

With respect to the claims of individual class members,
inclusive of the named plaintiffs, pursuant to the Supreme
Court's recent ruling in Cooper v. Federal Reserve Bank of
Richmond, ____  U.S. ____ , 52 U.S.L.W. 4853 (June 25, 1984) class
members should now be notified of their right to litigate their 
......  . 9/individual claims.— as plaintiffs set forth in their main brief, 
the unnamed class members who testified and whom the lower court 
found to be "persuasive on the issue of discrimination in the 
promotion process" are entitled to appropriate relief. See Lewis
v. Smith, 731 F.2d 1535 (11th Cir. 1984). Assuming, arguendo, 
that they are not entitled to an immediate award, these claims 
should be remanded to the district court for final resolution in 
light of the fact that they have already established a prima 
facie case which defendants have the burden of rebutting. See, 
e,g, Watson v. National Linen Service, 686 F.2d 877 (11th Cir. 
1982).

This Court has made clear that once a plaintiff intro­
duces evidence of discrimination, an employer cannot successfully 
rebut that evidence by merely articulating, but not proving, a

9/ Defendant concede this point (D.B. 49).
16



legitimate, nondiscriminatory reason for its action. Bell v . 
Birmingham Linen Service, 715 F.2d 1552, 1556-1567 (11th Cir. 
1983). This Court concluded by holding that unless the lower 
court finds that defendants rebutted plaintiffs' showing by a 
preponderance of the evidence, a judgment should be granted to 
plaintiff (I_d. )— ^

CONCLUSION
For the foregoing reasons the decision below should 

oe reversed.
Respectfully submitted,

- '7

JULIUS L. CHAMBERS 
GAIL J. WRIGHT “
CHARLES STEPHEN RALSTON

V/7-.

99 Hudson Street, 16th Floor 
New York, New York 10013

C.B. KING502 So. Monroe Street
Drawer 3468
Albany, Georgia 31706

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

10/ In Bell, supra at 1559, this Court recognized that one
of the four factors the trial court should consider in making 
its finding is whether the defendant employer failed to follow 
objective standards. See Harris v. Birmingham board of Education, 
712 F .2d 1377 at 1382, 1384 (11th Cir. 1983); Watson v. National 
Linen Service, 686 F.2d 877, 881 (11th Cir. 1982).

17



CERTIFICATE OF SERVICE

I hereby certify that a copy of Plaintiffs-
Appellants' Replys served on counsel for defendant-
appellee, on this ■ day of July, 1984 by United States mail,

first class 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

' ' ' /  '■ ' . ( j. /y
Attorney for Plaintiffs-Appellants

18