Harrison v. Dole Brief for Federal Appellants

    BRIEF FOR FEDERAL APPELLANTS

UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 83-1678 
No. 83-1679

DENNIS L. HARRISON, et al.,
v.

ELIZABETH DOLE, et al.,

Appellees - Cross/Appellants

Appellants - Cross/Appellees

ON CROSS-APPEALS FROM THE 
UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

STANLEY S. HARRIS, 
United States Attorney.

C.A. No. 79-1816 
OF COUNSEL:

ROYCE C. LAMBERTH,
R. CRAIG LAWRENCE,
JOHN H.E. BAYLY, JR.,
STUART H. NEWBERGER,
Assistant United States Attorneys.

TIMOTHY SHEA
Office of the Chief Counsel
Maritime Administration
U.S. Department of Transportation
Date: September 28, 1983



I N D E X
Page

ISSUES PRESENTED ..........................................  xi
REFERENCES TO PARTIES AND RULINGS ........................  1
STATEMENT OF THE C A S E ....................................  3
Procedural History ........................................  3
Statement Of Facts ........................................  9

I. Background--The Maritime Administration (MarAd). . y
A. MarAd's Organization ...................... 9
B. MarAd's Personnel System ..................  10

1. Background............................  10
2. Competitive Promotions ................  11
3. Competitive Promotions After December

1979 ................................  15
4. Validation of Selection Procedures . . .  16
5. Non-Competitive Promotions ............  16
6. Training..............................  19
7. Awards................................  19
8. Disciplinary Actions ..................  20
9. Reorganization........................  21

II. The Anecdotal Evidence..........................  21
III. The Statistical Evidence........................  22

A. Statistical Overview ......................  23
B. Statistical Evidence Presented by

the Class................................  23
C. MarAd's Response ..........................  26

1. Non-Competitive Promotions ............  27
2. Competitive Promotions ................  29



Page

D. The Class Members' Response to MarAd's
Statistics..............................  32

IV. The District Court's Findings and Conclusions. . . 34
A. "Compound" Class Discrimination Findings. . . 34
B. The Sex and Race Class Discrimination

Findings................................  37
C. The Prevailing Class Relief ...............  40
D. The Individual Claims......................  42

SUMMARY OF THE A R GUMENT................................... 42
ARGUMENT..................................................  45

I. The District Court Erred In Certifying the
Compound, Across-the-Board Class ...............  45

A. Introduction..............................  45
B. Class Actions and Title V I I ................  47
C. The Prerequisites for Class Certification

(Rule 23(a))   50
1. The Lack of Common Questions of Law

and Fact (Rule 23(a)(2)............  50
2. The Lack of Typicality (Rule

23(a)(3))..........................  54
3. The Inadequacy of Representation

(Rule 23(a)(4))....................  58
a. Conflicts Between White Females

and B l a c k s ....................  58
b. Conflicts Between Black Females

and Black Males................  60
c. Conflicts Between Applicants

and Employees..................  60
d. Conflicts Between Supervisors and

Non-Supervisors ...............  61

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Page

e. Conflicts Involving Plaintiffs 
Harrison and Spencer (EEO 
Officers)....................  62

D. Improper Bifurcation of the Compound Class
After Trial (Rules 23(c)(1) and (4)(B)) . . 64

E. Summary....................................  68
II. The District Court Erred In Finding Partial

Class Liability..............................  68
A. The District Court Applied An Additional,

Erroneous Theory of Liability After 
Rejecting The Class Claim of Compound 
Discrimination ..........................  68

B. The District Court Improperly Shifted
The Burden of Proof to M a r A d ............  71

1. Plaintiffs' Prima Facie Burden
Under Title V I I ....................  71

2. The Failure of the Class To Establish
A Prima Facie C a s e ..................  74

C. According To The District Court's Own 
Findings MarAd's Rebuttal Evidence 
Entitled it to Judgment................  78

III. The District Court's Relief Order, Requiring
A Validation Study, Was Erroneous ...........  82

IV. The District Court's Relief Order, Providing
for Individual Class Claims Between August 1,
1975 and January 25, 1983, was Overbroad . . .  83

CONCLUSION................................................  84

w

-iii-



TABLE OF CASES

Airline Stewards and Stewardesses Assoc.,
Local 500 v. American Airlines, Inc., ZT90 F.2d 
636 (7th CirT 1973) cert, denied, 516 U.S.
993 (1975)...........................................64

Albemarle Paper Co. v. Moody, 422 U.S. 405,
(1975)". .. . ....................................... 74

American Pipe and Construction Co. v. Utah,
• 414 U.S. 538 ( 1 9 7 4 ) ............  47, 68
Arnett v. American National Red Cross, 78
F.R.D. 73 (D.D.C. 1978)    62
Bachman v. Collier, 73 F.R.D. 300 (D.D.C.
1976)   51

Bachman v. Pertschuk, 437 F. Supp. 973 
(D.D.C. 1977)   62

Bailey v. Ryan Stevedoring Co., Inc., 528 
F .2d 551 (5th Cir. 1976) cert. denied,
429 U.S. 1052 ( 1 9 7 7 ) ...............................  59

Betts v. Reliable Collection Agency, Ltd.
659 F.2d 1000 (9th Cir. 1981)   65

Board of Trustees of Keene State College 
v. Sweeney, 439 U.S. 24 (1978) ! ! ! . .............. 71

PAGE

Bostick v. Boorstin, 617 F.2d 871 (D.C.
Cir. 1980)..........................................  54-5

Brown v. General Services Administration, 425 
U.S. 820 (1977) .................... ................ 78
Califano v. Yamasaki, 442 U.S. 682 
(1979)..............................................  46

Cobb v. Avon Products, Inc., F.R.D. 652 
(W.D. Pa. 1 9 7 6 ) .................................... 62/V  /

Clark v. Alexander, 489 F. Supp. 1236 (D.D.C.
' ”19'S0) . T T T T .................................... 77

Cases chiefly relied upon are marked by astericks.
-iv-



PAGE

Croker v. Boeing Co., 662 F.2d 975 (3d Cir.
' 19STT . . . . . . ............................................................................ 72

Crown, Cork and Seal Co., Inc. v. Parker, U.S.
, 76 L.Ed.2d 628 (1983) ........................  47, 68

y^Davis v. Califano, 613 F.2d 957 (D.C. Cir.V 197$) ..............................................  Passim
Deguaffenreid v. General Motors Assemby Div.,
558 F.2d 840 (8th Cir. 1977) ......................... 70

De Medina v. Reinhardt, 686 F.2d 997 
(D.C. Cir. 1982) . ................................... 49, 70

/Donaldson v. Pillsbury Co., 554 F.2d 825 (8th 
\J Cir. 1977), cert, denied, 434 U.S. 856 (1977) . . . .  51

Dothard v. Rawlins on, 433 U.S. 321 (1977)............  76
Droughn v. FMC Corp., 74 F.R.D. 639 (E.D. Pa.
1977) ..............................................  60

*East Texas Motor Freight System, Inc, v. Rodriguez, 
y 431 U.S. 395 (1978) , . . .............................Passim

Edmondson v. Simon, 86 F.R.D. 375 (N.D. 111. 1980) . . 60
Eisen v. Carlisle and Jacquelin, 417 U.S. 156 
(1974)...............................................  63

EEOC v. American National Bank, 652 F.2d 1176 
(4th Cir. 1981), cert, denied, U.S.
103 S. Ct. 235 (1932).................................. 71

*EE0C v. Federal Reserve Bank of Richmond, 698 F.2d 
633 (4th Cir. 1983), cert, granted sub nom.,
Cooper v. Federal Reserve Bank of Richmond, 52 U.S.L.W.
3342'"(No. 83-l'g'5)”     27, 73, 75

Feeney v. Commonwealth of Massachusetts, 475 F.
Supp. 109 (D. Mass. 1979) , art'd, 445 U.S. 901 
(1980) ...........................................  59

Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978) . . .....................................

General Telephone Co. v. EEOC, 446 U.S. 318 
(1980) . . .  . . . . ..........................

*General Telephone Co. of the Southwest v. Falcon, 
457 U.S. 143 (1982) .............. ............

69, 71 

49, 61

Passim
-v-



PAGE

Griggs v. Duke Power Co., 401 U.S. 424 
(1971).............................................. 74

/Hazelwood School Distrct v. United States, 433 
'S  U.S. 299 (1977) . . .................................Passim

Hill v. Western Electric Co., 596 F.2d 99 (4th Cir.
1979), cert, denied, 444 U.S. 929 (1979)............ 56, 61

Hofer v. Campbell, 581 F.2d 975 (D.C. Cir. 1978). . . .  55
Horton v. Goose Creek Independent School District,
677 F.2d 471 (5th Cir. 1982)................... 58

^International Brotherhood of Teamsters v. United 
V 7 States, 431 U.S. 324 (1977) . . . ...................Passim

Inwood Laboratories, Inc. v. Ives Laboratories,
Inc., UTS: , 102 S. Ct. 2182 (1982) . . . . . .  74

In Re General Motors Corp. Engine Interchange 
Litigation, 594 F.2d 1106 (7 th Cir. 1979) , cert. 
denied^ 5"44 U.S. 870 (1979)........................  65, 68

/feffries v. Harris County Action Ass'n, 615 
n/ F. 2d 1025 (5th Cir. 1 9 8 0 ) .......................... 70

Johnson v. American Credit Co. of Georgia, 581 
F. 2d 526 (5th Cir. 1978).......... 7 ............... 65

Johnson v. General Motors Corp., 598 F.2d 432 
(5th Cir. 1979)   64

Johnson v. Georgia Highway Express, Inc., 417 
F. 2d 1122 (5th Cir. 1975) TT"T- T T -.............. 51

Karan v. Nabisco, Inc. 78 F.R.D. 388 
(W.D. Pa. 1978) . ................................... 55

Kizas v. Webster, 707 F.2d 524 (D.C.
Cir. 1983).....................................  78

Kramer v. Scientific Control Corp., 534 F.2d 
1085 (3d Cir. 1976) , cert. denied, 429 U.S.
830 (1976)   63

-vi-



PAGE

Lo Re v. Chase Manhattan Corp., 431 F. Supp.
139 (S.D.N.Y. 1977) . . . . ........................  57, 62

Manduiano v. Basic Veg. Prod., Inc., 541 F.2d 
832 (9th Cir. 1976) . ............................... 58

Mathews v. Diaz, 426 U.S. 67 (1976)..................  56
*McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) ! ! T-! ! i . .................................Passim
Metrocare v. WMATA, 679 F.2d 922 (D.C. Cir.
1982) 7 ............................................  73

National Association for Mental Health, Inc. 
v. Califano, F.2d , Nos. 82-1196, TT97,
1278 and 1503 ("D.C. Cir. September 27, 1983) . . . .  58

NLRB v. Bell Aerospace Co., 416 U.S. 267
~TI^74).............................................. 63
NLRB v. Yeshiva University, 444 U.S. 672 (1980) . . . .  63
Patterson v. General Motors Corp., 631 F.2d 
4 7 6 (7 th CirT 1980) cert, denied, 451 U.S.
914 (1981) ....................................... 57

Payne v. Travenol Laboratories, Inc., 673 F.2d 
- 798 (5th Cir. 1982) , cert. denied, U.S.

, 103 S. Ct. 451 TI932) ........................ 60
Pendleton v. Rumsfeld, 628 F.2d 102 (D.C. Cir.

1980)— 7 . . 7 " .  “ 7 ....................................................................................................... 63

Phillips v. Klassen, 502 F.2d 362 (D.C.
Cir. 1974)..........................................  57

Piva v. Xerox Corp., 654 F.2d 591 (9th Cir.
~ U 5 l) .............................................. 72
*Pouncy v. Prudential Ins. Co. of America, 668

F. 2d 795 (5th Cir. 1982)............. ................ 75, 78, 79
Pullman-Standard v. Swint, 456 U.S. 273,

-7 (1982) ............................................... 74
Richardson v. Byrd, 709 F.2d 1016 (5th Cir. 1983) . . .  56

-vii-



PAGE

Rivera v. City of Wichita Falls, 665 F.2d 531 (5th 
Cir. 1982) ......................................

Rodgers v. United States Steel Corp., 69 F.R.D.
382 (W.D. Pa. 1975) 7 ........ T ...............

Ste. Marie v. Eastern R. Ass'n, 650 F.2d 395 
(2d Cir7-1981) ..................................

Schlesinger v. Reservists Committee_ to Stop the War, 
418 U.S? 208 ( T S 7 ? ) .................. ..

Segar v. Civiletti, 508 F. Supp. 690 (D.D.C.
1981), appeal pending, Nos. 82-1541 and 1590 
(D.C.Cir.) ....................................

Senter v. General Motors Corp., 532 F.2d 511 
(6th Cir. 1976) cert, denied, 429 U.S. 870 
(1976) ........................................

Strong v. Arkansas Blue Cross and Blue Shield,
Inc., 87 F.R.D. 496 (E.D. Ark. 1980) .................

Talev v. Reinhardt, 662 F.2d 889 (D.C. Cir. 1981) . . .
Taylor v. Safeway Stores, Inc., 524 F.2d 263 
(10th Cir. 1975) ....................................

*Texas Department of Community Affairs v. Burdine,
450 U.s7 248 (1982) . . . . . . . .  ................

Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir.
1982) ..............................................
rout v. Lehman, 517 F. Supp. 873 (D.D.C. 1981), 
aff*d in part and reversed in part, 702 F.2d 
1094 (D.C. Cir. 1983), cert. pet. pending,
52 U.S.L.W. 3387 (No. $ 3 ^ 7 0 6 ) ............

Tucker v. United Parcel Service, 657 F.2d 724 
(5t'h Cir. 1 9 8 1 ) ............ ..............

United Airlines, Inc. v. Evans, 431 U.S. 533(1977) . . . . . . T 7 ............
*U.S. Postal Service v. Aikens, U.S. ,

103 S. Ct. 1478 (1983).....................
*Valentino v. United States Postal Service, 674 
J F.2d 56 (D.C. Cir. 1982).............. .. . ,

77

62

75, 77, 79 

49

25

49, 50

60
77

50, 54 

Passim 

41

Passim

57

83

Passim

Passim
■ V l l l -



PAGE

Wang v. Hoffman, 694 F.2d 1146 (9th Cir.
“TM3) .............................................. 76
Washington v. Davis, 426 U.S. 229 (1976) ............  74
Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 
(3d Cir. 1975), cert, denied, 421 U.S. 1011 
(1975)   51, 63

Jrfilkens v. University of Houston, 654 F.2d 388 
v/ (5th Cir. 1981) . ...................................53

Wilson v. Allied Chemical Corp., 456 F. Supp.
249 (E.D. Va. 1978) . . . . ......................... 56

OTHER AUTHORITIES

5 U.S.C. § 701 et s e ^ ................................. 40
42 U.S.C. § 2000e et se£ (Title VII) ................ Passim
Rule 19(a), Federal Rules of Civil Procedure ........  40
Rule 23, Federal Rules of Civil Procedure ............  Passim
5 C.F.R. § 300.101 et seq. (1977)....................  12

§ 338.101 TT977)............................  12
§ 713.201 et seq. (1977)..................... 78, 84
Part 772, Subpart D (1977)..................  78, 84

29 C.F.R Part 1613 (1981)............................. 78, 84
F.P.M. Ch. 315 § 1-4 (1981)........................... 1

Ch. 335 § 1-4 (1981)........................... 11
Ch. 338 § 3-1 (1981)........................... 11

0PM X-118 Qualification Standards ....................  Passim
3B W. Moore's Federal Practice, K 23.05[1] (1978) . . .  63

\ 23.40 [ 4 ] .......... 50
7A Wright, Miller and Kane, Federal Practice and
Procedure, Civil § 1775 ..............................  63

§ 1790..............................  65

-ix-



PAGE

Fisher, Multiple Regression in Legal Proceedings,
80 Col.L.Rev. 702 (1980) . . . . ..........  7 . . . .  25

Ralston, The Federal Government as Employer:
Problems and Issues in Enforcing the Anti- 
Discrimination Laws-̂ 10 Ga.L .Rev. 717 (T976)........ 7a

Shoben, Compound Discrimination: The Interaction
of Race and Sex in Employment Discrimination,
55 N.Y.U.L. Rev. 793 (1980).............. .......... 70

-x-



ISSUES PRESENTED */

In the opinion of appellants, the following issues are 
presented on appeal:

1. Whether the District Court erred in certifying a compound,
"across-the board" class of "all past, present and future" black 
and female employees and applicants for employment at the Maritime 
Administration (MarAd): (a) where the three-named plaintiffs,
and the class members they purport to represent, failed to 
present common questions of law and tact; (b) where the three- 
named plaintiffs, and the class members they purport to represent, 
failed to present typical claims; and (c) where the three-named 
plaintiffs did not adequately or fairly represent the interests
of the class members.

2. Whether the District Court erred in bifurcating the 
above-described compound class into subclasses of blacks and 
women after rendering its decision on the merits.

3. Whether the District Court applied an erroneous theory 
of liability at trial where, once having found that plaintiffs 
had failed to prove the existence of discrimination against the 
above-described compound class, it nevertheless found that class 
discrimination had been proven on the basis of race but not sex.

^7 These cases have not previously been before this Court and 
appellants are aware of no related case before the Court. The 
present cross-appeals were consolidated by the Court, sua sponte, 
in an Order dated July 7, 1983.

-xi-



4. Whether the District Court improperly shifted the burden 
of proof to defendants below when plaintiffs had failed to set 
forth a prima facie case of either compound or racial discrimi­
nation .

5. Whether the District Court erred in finding discrimina­
tion against black class members when defendants' proof rebutted 
any inference of discrimination.

6. Whether the District Court, in its relief order, erred 
in compelling the completion of a validation study by the Maritime 
Administration of selection criteria promulgated by the Office of 
Personnel Management (a non-party) when those facially neutral 
standards are binding on all federal agencies, including defendants, 
as a matter of law.

7. Whether the District Court, in its relief order, erred 
in providing for individual class claims between August 1, 1975 
and January 25, 1983, when such relief was not based on the 
statistical proof and was overbroad.

-xii-



UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 83-1678 
No. 83-1679

DENNIS L. HARRISON, et al., Appellees - Cross/Appellants
v.

ELIZABETH DOLE, et al., Appellants - Cross/Appellees

BRIEF FOR FEDERAL APPELLANTS

REFERENCES TO PARTIES AND RULINGS

Appellants are the Secretary of Transportation and the 
Administrator of the Maritime Administration ("MarAd"). They are 
also cross-appellees.

Appellees are three individuals, Dennis L. Harrison, Doris 
J. Spencer, Janis M. Lawrence, and a class defined as "all past, 
present and future Black male, Black female and White female 
employees and applicants for employment at the Headquarters 
Office of the United States Maritime Administration." They are 
also cross-appellants.



This appeal arises out of the Honorable Louis B. Oberdorfer's 
ruling against the U.S. Maritime Administration ("MarAd") in a 
Title VII sex and race discrimination class action originally 
brought against the Secretary of the U.S. Department of Commerce —■ 

and the MarAd Administrator. C.A. No. 79-1816. Judge Oberdorfer's 
ruling in favor of MarAd on the sex discrimination portions of 
the case and certain relief portions of the race discrimination 
case are not at issue in this appeal, but are the subject of the 
consolidated cross-appeal.

District Judge Oberdorfer's liability opinion was entered on 
June 7, 1982 and is not reported. ("Op.") (J.A. at 198). — On 
January 25, 1983, Judge Oberdorfer issued a further liability 
order and "Proposed Judgment and Order" which is reported at 559 
F. Supp. 943 (D.D.C. 1983), (JA at 240). Thereafter, the Court 
issued its relief Order ("Injunction") on March 18, 1983. (JA at 
254). Plaintiffs then filed a motion to alter or amend the 
judgment of the Court, which the Court denied on April 14, 1983. 
(JA at 267).

T7 Until 1981, MarAd was a primary operating unit of the Depart­
ment of Commerce. In August 1981, MarAd was transferred to the 
U.S. Department of Transportation, whose Secretary was then 
substituted as a defendant. See P.L. 97-31.
2J "J.A." refers to the Joint Appendix in the consolidated 
appeals, which will be filed after the last brief is filed. Rule 
30(c), F.R.App.P. "D.Ex." refers to Defendants' Trial Exhibit. 
"P.Ex." refers to Plaintiffs' Exhibit. "Tr." refers to the Trial 
Court transcript. "R" refers to the docket number of the record 
on appeal. "Add." refers to the statutory and regulatory Addendum 
attached hereto.

2



STATEMENT OF THE CASE

Procedural History

On March 24, 1977, Ms. Doris J. Spencer, a black female 
GS-13 computer specialist, brought an informal charge of race and 
sex discrimination alleging that her employer, MarAd, had dis­
criminated against her on the basis of her race and sex by reason 
of her non-selection for a competitive position. Complaint (JA 
at 1). However, this claim related solely to her individual 
discrimination claim and did not raise or imply any claims on 
behalf of any class of similarly situated female or black persons. 
Ms. Spencer's claim related to her failure to receive a promo­
tion. Thereafter, Ms. Spencer's individual claim (later filed as 
a formal administrative complaint) was settled at the adminis­
trative level. (DX 98, 110 & 132).

On May 17, 1977, Ms. Janis M. Lawrence, a white female GS-12 
economist, brought an informal charge of sex discrimination 
alleging that her employer, MarAd, had discriminated against her 
on the basis of her sex. Within fifteen days of receiving a 
notice of final interview with the EEO counselor on July 20, 
1977, she filed her formal administrative complaint. Complaint 
(JA at 1).

On June 6, 1977, Mr. Dennis L. Harrison, a black male GS-13 
engineer, brought an informal charge of race discrimination 
alleging that his employer, MarAd, had discriminated against him 
on the basis of race. Within fifteen days of receiving a notice 
of final interview with the EEO counselor on July 26, 1977, he 
filed a formal administrative complaint. Id. (JA at 1).

3



On August 3, 1977, all three named plaintiffs filed a formal 
administrative class complaint with the Department of Commerce 
and MarAd which was then transmitted to the former Civil Service 
Commission ("CSC"). Id. (JA at 13-14).

On March 21, 1978, the CSC, through its Complaints Examiner, 
issued a recommended decision to the Department of Commerce on 
the issue of accepting the class complaint for processing. On 
March 30, 1978, the Department of Commerce issued a final decision 
accepting the class complaint for processing. Id. (JA at 14).

On December 29, 1978, the CSC transferred the administrative 
class complaint to the Equal Employment Opportunity Commission 
("EEOC"), which never assigned a Complaints Examiner to the class 
complaint. Id. (JA at 14).

On July 11, 1979, the three named plaintiffs filed a civil 
action "on their own behalf and [pursuant to Rule 23(b)(2), F.R. 
Civ. P.] on behalf of . . . all Black and/or female applicants,
past and/or present employees . . . for discrimination in employ­
ment on the basis of race and/ or sex" by defendants. C.A. No. 
79-1816. Complaint (JA 1). The case was immediately assigned to 
Judge Oberdorfer.

On November 8, 1979, plaintiffs filed a motion for certi­
fication of the class. (R. 30, 32). On December 21, 1979, at 
the same time they filed their opposition to plaintiffs' class 
certification request, defendants moved to dismiss Janis M. 
Lawrence as a representative party. (R. 46, 47).

4



On February 13, 1980, Judge Oberdorfer granted plaintiffs' 
class certification motion and denied, without prejudice, defend­
ants' motion to dismiss Ms. Lawrence as class representative. As 
certified under Rule 23(b)(2), F.R. Civ. P., the class included 
"all past, present and future Black male, Black female, and white 
female employees and applicants for employment at the Headquarters 
Office of the United States Maritime Administration. . ." (JA
152).

On August 4, 1980, Judge Oberdorfer issued a detailed pre­
trial order setting forth filing deadlines for the parties to 
meet before trial. (JA 153). Extensive submissions and amend­
ments were then filed by both sides, and after further refining 
the issues, the Court issued a revised pretrial order on March 11, 
1981. (JA 158).

On April 6, 1981, defendants moved for modification of the 
class certification. The basis for this motion was to have the 
Court limit membership in the certified class to Blacks and women 
working, or applying for work, at MarAd Headquarters before 
February 27, 1981, the date established for the closing of
discovery. (R. 292). The Court denied this motion on June 22, 
1981. (JA 164).

On October 7, 1981, after several more months of discovery, 
defendants moved to dismiss the complaint for failure to exhaust 
administrative remedies. The basis for this motion was that (1) 
neither plaintiffs Harrison nor Lawrence had ever sought or

5



meaningfully obtained the requisite informal EEO counseling 
previously claimed to have taken place; and (2) plaintiff Spencer, 
following pursuit of her own individual remedies, had previously 
obtained complete relief on her claim and was therefore barred 
from proceeding further in the case. In the alternative, defend­
ants again requested that the Court modify the class certifica­
tion. The basis for this was (1) the class representatives' 
close association with the MarAd EEO Committee disqualified their 
representative status; (2) according to plaintiffs' statistical 
studies prepared for trial, the overly-broad class needed to be 
limited to non-supervisory administrative, professional and 
technical employees in order to accurately address the discrimi­
nation claims; and (3) the "inherent antagonism and conflict" 
between blacks and women (competing for the same positions) 
created an impermissible conflict within the class. (R. 137).

On October 14, 1981, plaintiffs, while responding to defend­
ants' October 7, 1981 motion, moved to strike that same motion. 
(R. 144, 145). At a hearing held that same day, Judge Oberdorfer 
denied both parties' motions, including the class modification 
request. (JA 165).

The trial of this case was then conducted before Judge 
Oberdorfer between February 17, 1982 and February 26, 1982. At 
the trial's conclusion, the Court directed the parties to file 
post-trial briefs, including proposed findings and conclusions.

6



On April 20, 1982, at the same time that the parties were 
submitting their post-trial submissions, plaintiffs moved for 
leave to file supplemental statistical evidence. On May 4, 1982, 
the Court denied that motion. (JA 197).

On June 7, 1982, Judge Oberdorfer issued his findings on 
liability. (JA 198). The Court ruled in favor of MarAd on those 
portions of the class relating to sex discrimination. However, 
the Court ruled in favor of plaintiffs on certain portions of the 
class relating to race discrimination ("all black past, present 
and future employees"). Because the trial had not addressed the 
issue of relief, the parties were directed to file submissions to 
assist in formulating relief for the prevailing portion (e.g., 
blacks) of the class. (JA 239).

Thereafter, the parties submitted extensive comments on the 
issue of relief. In addition, on August 6, 1982, defendants
moved the Court for amended and additional findings. (R. 215). 
On November 19, 1982, defendants filed supplemental information 
regarding the application of the 0PM X-118 qualification stand­
ards . (R. 229) .

On November 23, 1982, the Court held a hearing on the
post-trial relief proposals and directed the parties to file 
further submissions, including any joint statements. Consequent­
ly the parties submitted further relief proposals.

On January 14, 1983, the Court held a further hearing on the 
relief proposals. Thereafter, on January 25, 1983, Judge
Oberdorfer issued a memorandum and proposed injunction on

7



the relief issues, entering judgment in accordance with the 
Court's prior liability findings and directing the parties to 
file comments on the proposed injunction. 559 F. Supp. 943 
(D.D.C. 1983) (JA 240). On March 18, 1983, Judge Oberdorfer 
issued his final injunction. (JA 254). This relief order 
provided for wide-ranging injunctive relief including: estab­
lishment of an accelerated discrimination complaint process; 
revised recruitment, training, awards, promotions and appraisal 
procedures; a comprehensive validation plan for all positions at 
GS-12 and below; reporting and monitoring requirements; a claims 
procedure to allow unnamed, prevailing class members (presumably 
applying to all black employees below the GS-13 level), to file 
back pay claims; and retention of jurisdiction over the case for 
five years.

On March 28, 1983, plaintiffs moved to alter or amend the 
March 18, 1983 judgment, (R. 244), requesting the Court either to 
eliminate the restrictions on claims to the prevailing class 
claims below the GS-13 level, or to provide that prevailing class 
members relating to promotions to GS-13 or above levels be 
"informed" of their option to pursue such claims on an individual 
basis. On April 14, 1983, the Court denied that motion.
(JA 267).

On June 13, 1983, the parties filed cross-appeals from Judge
Oberdorfer's liability, relief and reconsideration rulings regard-

3 /ing the class. —

37 While the appeals have been pending, and pursuant to the 
District Court's injunction, MarAd has forwarded to all blacks 
employed between July 4, 1977 and March 18, 1983 notices of the 
Court's decision and claim forms for requests for individual 
relief. See Record in the District Court, C.A. No. 79-1243.

8



Statement of Facts
The factual findings are extensively set forth in Judge 

Oberdorfer's opinion dated June 7, 1982 (Op.)(JA 198) and are, 
for the most part, uncontested.

The Maritime Administration 
I. Background

A. HarAd's Organization
The events which are at issue in this appeal involve the 

Maritime Administration, ("MarAd"), a primary operating unit of 
the Department of Commerce until August 1981, when it was trans­
ferred to the Department of Transportation. More particularly, 
the subject events took place at MarAd Headquarters located in 
Washington, D.C. — MarAd's mission and function are to foster 
the development and maintenance of an American merchant marine 
sufficient to meet the needs of the national security and of the 
domestic and foreign commerce of the United States.

During the relevant time period, MarAd headquarters has been 
organized into a number of independent offices such as Public 
Affairs, General Counsel, Civil Rights, etc., as well as into a

57 Until August 1981, MarAd was headed by an Administrator who 
also served as Assistant Secretary of Commerce for Maritime 
Affairs. While MarAd headquarters is located in Washington,
D.C., there are a number of regional MarAd offices throughout the 
nation as well as the United States Merchant Marine Academy. The 
certified class represented by the named-plaintiffs are all past, 
present or future black and/or female employees of MarAd Head­
quarters. Neither the regional offices nor the U.S. Merchant 
Marine Academy are involved in this case.

9



number (usually 4) of larger units each of which is headed by an 
Assistant Administrator. Op. at 3 (JA 200).

The great majority of employees at MarAd headquarters are 
general schedule (GS) employees, with jobs ranging from general 
clerical to high level executive positions and including adminis­
trative, technical and professional jobs. Professional jobs 
include, inter alia, those of engineers, economists, naval archi­
tects, attorneys, computer programmers, analysts and statisticians. 
Id. MarAd has many different job titles, including a significant 
number of jobs that are and unusual in government service because 
of its relatively specialized function. (DX 130). These include, 
for example, ocean shipping analyst and trade-route examiner.
Id. In addition, there are a number of more standard profes­
sional positions, such as engineers, economists, statisticians, 
computer programmers and analysts. Op. at 4 (JA 201). The 
support staff includes secretaries, clerks, administrators, and 
the standard range of positions in any governmental office. Id.

B . MarAd1s Personnel System 
1. Background

MarAd's personnel system is similar in structure to those at 
other federal agencies. Like other agencies, MarAd operates its 
personnel system within the confines of a wide array of published 
practices. (DX 129, 130). Supervisors are responsible for
preparing position descriptions for each position under their 
supervision. Id. The position description determines the 
position title, job series and grade level of a particular job.

10



(Id.). The position description is used in developing vacancy 
announcements for open positions and for determining the proper 
classification of positions as to job series, position title and 
grade level. Id. (DX 106; PX 19).

The MarAd personnel office has authority and direction over 
employment practices at MarAd subject, of course, to regulations 
and directives from the Office of Personnel Management (0PM), 
(pursuant to 5 C.F.R., the Federal Personnel Manual, etc.), the 
Department of Transportation (DOT) (and formerly the Department 
of Commerce), and the Office of Management and Budget (0MB). Op. 
at 6 (JA 203). The personnel office is under the supervision of 
the Assistant Administrator for Policy and Administration. Id.

The basic standards for classifying positions and for de­
termining the minimum qualifications for general schedule employees 
are found in the Classification Standards and in Handbook X-118 
issued by 0PM. See F.P.M. Ch. 315 § 1-4 (1981); F.P.M. Ch. 335 
§ 1-4, 5a; F.P.M. Ch. 338 § 3-1, et se£.; and DX 2 (the X-118).

2. Procedures for Competitive Promotions
There are essentially two types of promotion at MarAd, 

competitive and non-competitive. Op. at 6 (JA 203; DX 129). To 
initiate a competitive promotion, the supervisor requests that a 
vacant position be filled by forwarding to the personnel office a 
position description on SF-52 for the vacant position. (DX 104).
A personnel staffing specialist then writes a vacancy announce­
ment by referring to the position description and the X-118

11



minimum qualifications. (PX 19). Other minimum qualifications 
may also be listed in the vacancy announcement, Op. at 7 (JA 
204), however MarAd only added such qualifications once during 
the time in question. (DX 129).

At MarAd there are a number of unusual jobs that relate to 
the subsidy functions but, nevertheless, are classified according 
to standards issued by 0PM. (DX 130; PX 171 and 140). In such 
cases the classification division looks to similar classification 
standards and constructs an applicable standard for the job. (DX 
130).

Each vacancy announcement is then posted and distributed to 
a number of public and private agencies and interest groups. 
Since December 1979 all persons who wish to be considered for a 
vacancy must describe their qualifications on Standard Form 171. 
(Before December 1979 MarAd employees had the option of being 
considered based on their official personnel folders). All 
application forms are reviewed by the assigned personnel staffing 
specialist to determine whether the applicant meets the basic 
qualifications for the position. Id.

All those applicants who are determined to be minimally 
qualified are then designated as "eligible." There is no limit 
on the number who may be designated as "eligible." (DX 104). 
All persons who do not meet the minimum qualifications for the 
position are designated as "not qualified" and are so informed. 
Op. at 7 (JA 204) (PX 171). See 5 C.F.R. §300.101 et seq. ; 
§338.101; and the X-118 standards. (DX 2).

12



The personnel staffing specialist's job of determining an 
applicant's eligibility involves the application of both objec­
tive and subjective criteria. The determination involves some 
judgment and discretion as to whether the applicant's qualifi­
cations are comparable or equal to the basic qualifications. (DX 
129). For example, one of the professional positions at MarAd is 
that of Budget Analyst, in the GS-560 Series. The minimum 
qualifications for the position include some requirements that 
are general and open-ended: the applicant must have gained a
"general knowledge of financial and management principles and 
practices applicable to organizations", including "specific 
knowledge and skill in the application of budgetary principles, 
practices, methods and procedures directly related to the work of 
the position to be filled." (_Id; DX 2). The matching of what is 
on an applicant's SF-171 with these types of general requirements 
consequently involves the use of objective standards (e.g., years 
of specialized training, experience, etc.) and judgmental ele­
ments (the personnel specialist's determination of whether the 
individual's qualifications are compatible with the requirements 
of the standard).

Once the personnel staffing specialist has determined 
whether an applicant is eligible, the next step is the rating and 
ranking of the eligibles, either by a panel or the personnel 
staffing specialist. Prior to December 1979, promotion panels 
evaluated. candidates who met the basic qualifications for all 
supervisory positions and for all positions at the GS-13 level

13



and above. Op. at 8 (JA 205). Since December 1979, promotion 
panels have been used less frequently, e.g. , only to evaluate 
candidates when there are more than 10 candidates for a position 
at GS-13 and above. (DX 104; DX 129). If there is not a promo­
tion panel for the particular vacancy, the personnel staffing 
specialist reviews all candidates who meet the basic qualifi­
cations for the purpose of ranking the applicants. Id.

Prior to December 1979, the rating and ranking were based on 
four factors: (1) experience; (2) education and training; and
(3) to a lesser extent awards and supervisory appraisals. Id. 
Prior to December 1979, the appraisal of a performance of a 
candidate was obtained by asking the candidate's most recent 
supervisor or employer to complete either form MA-68 or MA-105 
depending on whether or not the candidate was a MarAd employee. 
Id. For supervisory positions, candidates were also evaluated 
and ranked on the basis of managerial skills and leadership 
qualities. Id. Since December, 1979, ranking and rating has 
been done on the basis of education, training and experience. 
Op. at 9 (JA 206). Supervisory appraisals and awards are con­
sidered by the selecting officials after the rating and ranking 
has been done. Id.

Weights are then assigned to each of the criteria, points 
given to each candidate for each criteria, and results combined 
to determine a final ranking of qualified or highly qualified 
applicants. Id. Based on a fixed point score (usually 80

14



points), candidates were deemed to be highly qualified or quali­
fied. (PX 171). The personnel staffing specialist then prepared 
a Merit Promotion Certificate listing the names of those found 
highly qualified alphabetically, and then those qualified also 
alphabetically.

The scores given to the candidates were not placed on the 
certificate given to the selecting official. Op. at 9 (JA 206)
The selecting official could select any of the persons listed on 
the certificate. However, prior to June 1979, the selecting 
official was required to state his or her reasons for selection 
on the certificate. Id.

3. Competitive Promotions 
After December 1979

Since December 1979, all persons meeting the basic minimum 
qualifications have been rated and ranked to determine whether 
they should be found to be "best qualified" or "qualified". Op. 
at 10 (JA 207). If less than ten persons have been found to be 
qualified for a vacancy, the names of all the qualified appli­
cants are sent to the selecting officials along with the 171 
forms without their being rated or ranked. (DX 105).

Since December 1979, the selecting official has been given the 
option of having the personnel office obtain written performance 
appraisals or to obtain them orally by contacting the candidate's 
reference(s). Op. at 10 (JA 207) (PX 171). In the majority of 
cases selecting officials have chosen to obtain the performance 
evaluation themselves through oral communications with the

15



references provided by applicants. (PX 171). There is no record 
maintained by the personnel office as to the contents, format, or 
results of oral requests for performance evaluations. Op. at 10 
(JA 207).

4. Validation of Selection Procedures 
There have been no formal validation studies conducted by 

MarAd with regard to the selection process overall, including the 
standards used to rate and rank candidates, the cutoff scores 
used to determine whether a person is highly qualified, best 
qualified or qualified, or the use of awards and appraisals. Op. 
at 10-11 (JA 207-08) (PX 171).

In October 1980, pursuant to a directive of the Department 
of Commerce issued in January 1980, MarAd began the process of 
collecting applicant flow data by asking applicants voluntarily 
to fill out forms indicating their race. Op. at 11 (JA 208). 
Prior to that time no applicant flow data showing the race of 
applicants were sought, collected or maintained. Id.

5. Non-Competitive Promotions 
In addition to competitive promotions, employees may also be 

promoted non-competitively. There are two main types of non­
competitive promotions: (1) promotions along a career-ladder,
and (2) promotions resulting from the accretion of duties leading 
to a reclassification to a higher grade level. Id.

a. Career-Ladder
The first type of non-competitive promotion is a promotion 

in a career-ladder series. Slightly over one-half of the middle 
level (Grades 7-12) employees are within career-ladder positions.

16



MarAd has the authority to designate any series a career-ladder 
series. —  ̂ The final authority for approving the designation of 
job series as career-ladder series lies with the Assistant 
Secretary for Maritime Affairs. Op. at 12 (JA 209).

It is necessary to compete for entry into a career-ladder 
series, which may be entered at the lowest level or at a GS level 
within the ladder. Id. Once accepted into a career-ladder 
series, an employee may be promoted without competition until 
reaching the journeyman, or top designated, level. Id. In order 
to advance beyond the journeyman level, an employee must either 
compete for a higher grade position for entry into another 
career-ladder, or acquire a promotion through accretion of 
duties. Id.

37 This authority is found in FPM Chapter 335-5, § 1-5 which 
states:

"c. Agencies may at their discretion except 
other actions from their [competitive 
promotion] plans. These include, but 
are not limited to:
(1) Two types of career promotions:

(a) A promotion without current 
competition when at an earlier stage an 
employee was selected from a civil 
service register or under competitive 
promotion procedures for an assignment 
intended to prepare the employee for the 
position being filled (the intent must 
be made a matter of record and career 
ladders must be documented in the 
promotion plan); or

(b) [by an accretion of duties 
promotion]. [DX 106].

MarAd established this procedure in MAO 730-335.

17



A promotion along a career-ladder series typically depends 
on the supervisor's requesting a promotion by submission of a 
Standard Form 52 attesting that the employee is performing duties 
at the higher grade level, once the "year-in-grade" eligibility 
requirements of 5 C.F.R. § 300.601 et seq., have been met. Id. 
at 13 (JA 210). Supervisory appraisals are not obtained by the 
Office of Personnel when a career-ladder promotion is 
recommended. Id.

(b) Accretion-Of-Duties
The second type of non-competitive promotion at MarAd is an 

accretion-of-duties promotion. This promotion results from an 
employee's position being classified at a higher grade because of 
additional duties and responsibilities.

Prior to December 1979, a promotion by accretion of duties, 
under the applicable regulations, was to be given only when the 
increase in duties was unplanned. Id; (PX 178; DX 129). If it 
was planned to enhance the duties of a position so as to permit 
it to be classified to a higher level, then the position had to 
be open to competition; otherwise a promotion by accretion of 
duties was non-competitive. (Id.)

A supervisor may initiate an accretion-of-duties promotion 
by sending a standard form to the personnel office requesting 
that an employee be promoted without competition because his/her 
duties have increased in level of responsibilities or difficulty 
so as to justify classification at a higher grade level. An 
employee can obtain a position audit if he or she believes the

18



job has changed. It is the task of the personnel office to 
determine whether the new duties justify the higher grade level. 
Op. at 14 (JA 211).

An employee may be transferred from one job to another by a 
lateral transfer at the same GS level unless the new position has 
potential for promotion. _Id. In such a case, it is necessary to 
compete for the lateral transfer. Id; (PX 16).

6. Training
The division of Employment and Training has jurisdiction 

over training at MarAd. With the exception of a few programs, 
funds for training are provided for courses and training sessions 
related to the functions of the job already held as described in 
the position description. Op. at 14 (JA 211); (DX 131; PX 141).

Each office and division at MarAd is assigned an established 
amount as a training budget and an Individual Development Plan is 
prepared for each employee along with his or her supervisor each 
year. An employee must request training from his/her supervisor, 
who has discretion to deny it. Id.

While there is no right of direct review by the personnel 
office if the supervisor denies the training, employees may go to 
a higher level supervisor. If training is still denied, the 
employee's recourse is to file either a grievance or other 
administrative complaint. Id. at 15 (JA 212); (DX 131).

7. Awards
The awards process begins with a nomination by a supervisor. 

While an employee who believes he or she is entitled to an award

19



has no right directly to appeal to the personnel office or to an 
awards committee, he or she can go to a higher level supervisor. 
Op. at 15-16 (JA 212-13).

Prior to 1978, there was an overall awards committee that 
reviewed nominations for awards and was representative of the 
MarAd workforce. The system was revised, however, so that each 
department has an awards committee consisting of each major 
organizational unit, with the deputy assistant administrator as 
chairperson. Id; (DX 104 & 105; PX 20). The award committees 
have the power to approve money awards, except that quality step 
increases (which result in an indefinite increase in pay) must 
also be approved by the personnel officer. Id. In addition to 
monetary awards, there is a medal awards committee, consisting of 
the Assistant Administrators, which can approve nominations for 
Bronze Medals and can pass on to the Department of Commerce (now 
the Department of Transportation) Gold and Silver Medal nomina­
tions. Id.

8. D isciplinary Actions

With regard to disciplinary actions (which are rare) the 
supervisors have the discretion and power to initiate such 
actions, including letters of reprimand, warnings, proposed 
suspensions, or more serious proposals for adverse action. Op. 
at 16 (JA 213). The personnel office consults and advises with 
supervisors through its Division of Labor and Employee Relations 
regarding discipline. Id.

20



9. Reorganization
Also under the jurisdiction of the Assistant Administrator 

for Policy and Administration is the Office of Management and 
Organization. This office is responsible for studying proposals 
for reorganization, developing management studies and forwarding 
its recommendations to the Assistant Administrator for Maritime 
Affairs for final approval. Id.

II. The Anecdotal Evidence
While both plaintiffs and defendants introduced anecdotal 

evidence at trial, the District Court concluded that such evidence 
"offers little help to either side." Op. at 25 (JA 225).

Plaintiffs presented the testimony of several individuals 
who believed they had been the victims of discrimination at 
MarAd. (Tr. 267-550). The Court determined that, while the 
testimony left "room for doubt as to the correctness and non- 
discriminatory nature of individual [personnel] decisions," this 
evidence

was not sufficient...to reach conclusions on 
the question of whether individual class 
members who did not receive promotions or who 
received promotions after longer periods of 
time than usual were qualified for the 
promotions which they claim they were denied 
discriminatorily.

Op. at 25 and 26. (JA 225-26).
MarAd submitted affidavits of blacks and females who reported 

neither to have experienced nor observed discrimination and also 
called numerous witnesses to rebut the claims of discriminatory 
treatment made by individual class members. (Tr. 551-820,

21



882-896). However, even though the Court determined that the 
anecdotal evidence did not lead it to suspect discrimination 
where the statistical evidence (infra) indicated its absence, it 
was not "reassure[d]" by this finding where certain statistics 
showed what it considered to be "substantial adverse impact of 
MarAd selection procedures." Op. at 26 (JA 226). Consequently, 
the Court placed "primary reliance" on statistical evidence, even 
though the individual class members' testimony failed to support 
their claims of discrimination.

III. The Statistical Evidence
As noted above, the District Court placed "primary reliance" 

on statistical evidence in making its findings. This evidence 
addressed the claims of sex and race discrimination. As noted, 
the District Court ruled that MarAd had not discriminated on the 
basis of sex. However, in reviewing this evidence and ruling 
against MarAd on the issue of race discrimination, Judge Oberdorfer 
rej ected the statistical evidence proffered by the complaining 
class and embraced those statistics introduced by MarAd. As a 
result, the trial judge concededly based his race (and sex) dis­
crimination finding on evidence which clearly shows that no 
members of the class are entitled to relief -- defendants' 
statistical proof demonstrated that the class members were not 
under-represented or under-selected for hiring or promotion at a 
significant statistical rate. Consequently, the District Court's 
finding that MarAd discriminated against black employees is 
contradicted by the very record upon which it placed "primary 
reliance."

22



A. Statistical Overview
As a general matter, it is undisputed that white males 

comprise a large majority of those persons employed at high GS 
levels and Senior Executive Service (SES) levels. However, as 
the District Court seemed to recognize in its analysis (but not 
in its final ruling) the legal significance of the statistics 
which examine the race of personnel at MarAd can only lead to the 
conclusion that any differentials between whites and blacks in 
hiring or promotion at MarAd are statistically indistinguishable.

B. Statistical Evidence Presented 
by the Class__________________

Plaintiffs' statistical evidence was largely derived from 
MarAd's computerized Employee Information System (EIS), which was 
furnished to plaintiffs during discovery. This system was 
implemented in 1976, and includes employment histories dating 
back to the early 1970's for employees who were at MarAd when the 
program was instituted. It does not include data on employees 
who left MarAd prior to 1976. From the data on the EIS tape an 
employee of plaintiffs' counsel prepared a number of tables. (PX

F7 The analytical studies of the compiled data were done by 
Professor John Van Ryzin of Columbia University, a professor in 
the Department of Biostatistics and Mathematical statistics. His 
work was done in connection with the consulting firm Statistica, 
of which Dr. Van Ryzin is a member. Though Dr. Van Ryzin himself 
had not previously testified as an expert in an employment discri­
mination case, he had consulted with other members of Statistica 
who have. Defendants stipulated to his qualifications and the 
Court found that he was qualified to testify as an expert. Op. 
at 17 (JA 214).

23



The class members' statistical evidence focused solely_on 
the "white-maleness" of those persons employed in higher-ranking 
positions at MarAd headquarters. This analytical approach 
underscored the compound "race/sex" discrimination theory plain­
tiffs raised throughout the case. Indeed, the statistical 
configurations proffered by the class repeatedly emphasized their 
notion of a "white-maleness" propensity in hiring and promotion. — 

The class also relied heavily on statistics showing different 
promotion rates for white males as opposed to other race-sex 
combinations. (PX 1). This evidence focused on the middle-level 
positions (GS-7 thru GS-12), for which the statistics show 
significantly different promotion rates between the various 
groups. In addition, the class members' expert also performed
an analysis of the frequency of promotion by race and sex. (PX 
4). While this study showed statistically significant differences

7 7--For example in 1981), 78% of white males were employed at
above GS-12, while only 17% of white females, 26% of black males 
and 4% of black females were so employed. The Court noted that 
such a pattern could be observed if MarAd had previously_ engaged 

discrimination but was free from discrimination during the 
time periods relevant to the suit. Op. at 17 (JA 214). In 
addition, it noted that this pattern could well be due to a 
difference in education and training necessary for the jobs m  
question and not due to discrimination. Id.
8 / For example, the mean time to promotion of white males at the 
GS-7 level is 434 days, as opposed to 1,015 for white females, 
1,278 for black males, and 1,888 for black females.^ Op. at 18 
(JA 215). The disparities at GS-9, 11, and 12, while nop so 
severe, were observed by the District Court to follow a similar 
pattern. Id.

24



in promotion ra tes between the four groups at the GS-7. 9 , 11 and 

12 levels the Court found that there were small, In sign ifican t 

differences at the GS-13 and 14 lev els . <K  4, Op. at 18) <JA 215) 

The class members' expert also performed several regression  

analyses. i '  These analyses attempted to assess the e ffe c t of 

ra te  and sex on salary while also accounting for the e ffe c ts  of 

years of service and educational lev el. <PX 4 ) .  Later analyses 

included variables for specialized training and for years between 

school and MarAd employment, although the type or sp ecialty  of 

train in g was never accounted fo r. (PI 179). However, there was

no accounting for the minimum ob jectiveq u alification s necessary 

to be e lig ib le  for the various and diverse positions a t MarAd.
,. , j _ ffprence a fte r  accounting for theAll the studies showed a d itterence

above facto rs between the sa laries of whites and blacks and males 

and fem ales, and a more substantial and sign ifican t difference  

between the sa la rie s  of white males and a l l  others. Id .i Op. at 

19 (JA 216). The class members asserted that these differen  

indicated the presence of a "white-maleness" e ffe c t on salary , 

separate and d is tin ct from the e ffe c t of being white and the

-t----- cT 7- f suup 873 (D.D.C. 1981) affjd in £artI I Trout v. Lehman, u  F. |*PPj cir. 1983) , cert. E£t.
and m e r ^ i n ^ r t .  3387 (No. 83-706), (Trout) andA$ ^ - ^ s  pending, 52 U.b.n.w. \ n iq«d  appeal pending, Nos.
CiviTetti, 508 F.Supp. 690 (D(* ? ± r) 8 m u ^ T T rfeiiiion is a
82-1541 and 1590 (D.'c* . : ) r„Ultimate the effects of severalstatistical device design . dependent variable. See

Proceedings, 80 Col.L.Rev.
702, 721-25 (19»U).

25



effect of being male. In the first, more sophisticated regres­
sion analysis, the Court noted that neither race nor sex alone 
were shown to have a statistically significant effect on salary, 
but the "white-maleness" effect was significant. (Op. at 19) (JA 
216). If however, the "white-maleness" term was removed from the 
regression analysis both race and sex were noted as having 
significant effects on salary in most years. (Id.)

C. MarAd's Response
MarAd asserted that the class members' regression analysis 

was faulty because it failed focus on the conduct that was 
legally at issue -- specific decisions of MarAd in hiring and 
promoting employees, especially given the diverse eligibility 
requirements of many of its positions. Rather, the regression 
analysis focused on the distribution of jobs within MarAd without 
separating decisions made by MarAd within the relevant time frame 
from decisions made prior to that time or from decisions made by 
employees themselves.

MarAd argued that a more appropriate analysis was to look at 
actual MarAd decisions and examine those for evidence of discrima- 
tion. Plaintiffs' study of time to promotion and rates of pro­
motion were directly relevant on these issues. Op. at 19 (JA 
216). However, the primary problem with these studies, according 
to MarAd, was that they combine two very different promotion 
paths into one analysis. (See discussion below). This is 
because slightly over one-half of the middle level (Grades 7-12)

26



employees at MarAd are professionals in career-ladders and thus 
received the bulk of their promotions non-competitively and at 
relatively regular intervals. Though promotions in career-ladder 
positions are not automatic, they are much more frequent than m  
non-career-ladder positions, where the vast majority of all 
promotions are obtained by competing with applicants from both 
within and without MarAd, and are predominantly clerical and 
non-professional. Op. at 19 (JA 216). Consequently, MarAd 
rebutted the class members' statistical analysis by offering two 
separate analyses of promotions -- one focusing on competitive 
promotions and another on non-competitive promotions.

1 . Non-Competitive Promotions 
MarAd's study of noncompetitive promotions consisted of a 

survival analysis in many ways similar to that conducted by the 
class members, (which, as noted, examined the time to promotion 
at various grade levels). (DX 119). This analysis (of
"tenure" in grade) showed no significant statistical differences 
at GS-7, 9, or 11 in career-ladders. Another analysis of all
professional positions at those levels arrived at a similar 
conclusion. However, when all grades were aggregated -  risking 
over-aggregation of vastly dissimilar positions —  there was a

T7T7— MarAd1 s analysis o'F"noncompetitive promotions was performed hf Dr timothy Wyant, Senior Statistician at Econometric Research, 
Inc ("ERI") Dr. Wyant, who holds a Ph.D in biostatistics from 
S h A s (Hop£iis University and is experienced in the use of statis­
tics in the employment context, was found bv the Court to be 
"eminently qualified" as an expert in the field. Op. at ZU
(JA 217).

27



disparity between the promotion rates of blacks and whites as 
well as between white males and all others. Id. The Court noted 
that these two disparities would occur by chance .07 and .06 
times, and that such a probability, (while above the .05 thres­
hold normally associated with statistical significance), repre­
sented an "unlikely result" with a race-blind advancement process. 
Op. at 20 (JA 217). In addition, the Court observed that these 
probabilities were based on a "two-tailed test rather than a 
"one-tailed" test. —  ̂ If a one-tailed test had been used, the 
relevant probabilities would be roughly one-half the aforemen­
tioned magnitudes and therefor significant at roughly the .05 
level. —  (DX 119; Op. at 20; JA 217).

According to the Court, this study did not purport to 
"explain" why white males are represented more frequently in 
career-ladder positions than in noncareer-ladder positions. Op. 
at 21 (JA 221). However, the Court also noted that these posi­
tions "are all professional and the differences may be due in 
part to differences in educational and similar qualifications. 
Id. However, as the Court also noted, (Id.) to the extent that

XT7 A two-tailed test basically estimates the likelihood of a 
statistical difference of a given magnitude in either direction, 
while a one-tailed test gives the likelihood of a statistical 
difference in the direction observed. Op. at 20 (JA 217)
(DX 119). It should be noted that the Fourth Circuit has 
severely critized the use of one-tailed tests, categorzing them 
as result-oriented. See EEOC v. Federal Reserve Bank of 
Richmond, 698 F.2d 633, 655-56 (4th Cir.1983).
12/ In addition, this analysis found only a small, statistically 
Insignificant difference between the promotion rates of white 
males and white females. (DX 119; Op. at 20; JA 217).

28



employees were hired into MarAd after January 1, 1977, their 
placement in career-ladder positions was addressed and explained 
by the following competitive analysis.

2. Competitive Promotions
MarAd's analysis of competitive promotions examined the 

filling of vacancies by competitive announcements from January 1, 
1977 to March 26, 1981. <DX 120). This necessitated going
beyond the EXS tape, since the data on the applicants for these 
positions was not contained there. Id. The necessary informa­
tion was obtained from MarAd applicant files which date back to 
1974 or 1975 and are complete beginning in 1976. Id. This 
information was incomplete, however, to the extent that it did 
not contain data on the race of most of the applicants who were 
not employed by MarAd either before or after applying. —

The competitive promotion analysis examined each vacancy 
announcement and the results from filling it, and then aggregated 
the resulting data to obtain a total probability for various 
groups of the observed results assuming a sex and race neutral
selection  process. (DX120) .  This aggregation was done by using

13/ MarAd1 s ana iysis oi comPe^ J ^ i n t  Ind'f^ior^artner0 at

^ e n f l y ^ n  ,ualified
as an expert in the field. Op. at 21 (JA i l l ) .

14/ Some of h l T w o ^ e d ^ t
f^ rT h e ^ f^ e ra i g -rn m e n t Howeve^, ™  « «

available only beginning in . ^ e r  19a ’ L  Op. at 21 (JA 221);  
tin ely  returned to the applicant the agency, up.
(DX 120).

29



the "Multiple Pools Exact Test," which has the virtue of allowing 
for the composition of individual applicant pools while still 
yielding meaningful overall statistics. Id- the Court noted,
such tests are particularly well suited for situations where, as.
here, applicants compete against each other rather than against a 
fixed standard and the racial composition of the pools varies 
from job to job. Op. at 22 (JA 222). This analysis also compared 
the aggregate selection rates by race and sex in the various 

grades. (DX 120).
The data with respect to race was found by the Court to be 

more "problematical" than that pertaining to sex (which, as 
noted, clearly undercut any implication of sex discrimination). 
Op. at 23 (JA 223). This was apparently caused by an under­
selection of blacks at GS-12 and below (measured at .04) from 
among all anolicants and very random selection at GS-13 and above 
(measured at approximately .50). The underselection at GS-12 and 
below was attributable to low selection rates of blacks in

15/ *he results ol g ^ H z ! ) hheTggre-lfff 
S l S aionSiatePofafemalJs was fiund to be more thf  twice that of 
males. Id. Applying the multiple pool tests, ^ p r o ^ . ^
such a number or females or few females was shown,
a statistically significant overse stent with the hypothesisId. This is, of course completely inconsistent women in
tKat MarAd discriminated on t h e w i t h  respect to race did not these selections. The missing data with respect to^ applicants
effect this analysis, attacked this conclusion by arguingwas known. The class memoerb f pmt,iovees from withinthat it was due to a bias in favor of the total
HarAd, a group that tended allowing for such an effect,
f emale^continued ̂ 'o^b'e^verselected^ not under selected^ although

beinconsistent with a hypothesis of sex discrimination. Id.

30



clerical positions. However, this disparity disappeared at the 
eligibles stage (where it rose to .22). (DX 120).

As indicated above, there was missing data on the race of 
applicants, the overwhelming bulk of the missing data being that 
of rejected applicants who never actually worked at the agency.
In MarAd's original analysis this essentially meant that most of 
the pools, which consisted of only one racial group if unknowns 
were excluded, did not influence the results, and the probabili­
ties were thus based on only around one-fourth of the applicant 
pools. (DX 120). While many of these pools may have only one 
racial group, given the number of applicants for whom data was 
missing, the Court found that the exclusion of this many pools 
substantially lessened the probative weight of MarAd's race 
analysis. Op. at 23 (JA 223).

MarAd then did an additional analysis in which it assumed 
that the race-unknown applicants had a racial composition similar 
to that of the known-race applicants for similar positions. (DX 
120). This analysis resulted in data more favorable for MarAd, 
so the agency relied primarily on the former analysis in order to 
give plaintiffs the benefit of the doubt. Id. According to the 
Court, the results showed a statistically improbable underselec­
tion of blacks

...particularly at the clerical level, but at 
other levels as well: There is a selection
rate of blacks from applicants at the clerical 
level that would occur by chance only . 0 1 of 
the time, and the selection rate from appli­
cants for other grades below 13 would occur 
only .04 of the time.

(Op. at 23) (JA 223). MarAd pointed out that this result improves 
if the race-unknown persons were assigned races on the basis of

31



the composition of the race-unknown applicants. (DX 120);
However, the Court inexplicably concluded that the disparity
continues to "favor whites," not specifying the degree to which
such disparity was significant. Op. at 23 (JA 223).

D. The Class Members' Response to 
MarAd's Statistics____________

The class members responded in several ways to the analyses 
of MarAd's experts. First, they argued that it was improper to 
examine race and sex separately, because of the danger of combin­
ing white females with white males in the race analysis and black 
males with white males in the sex analysis. (Tr. 993-1043). 
Instead, their preferred analysis was to compare white males with 
all others at each stage. (PX 179). Such a comparison, they 
argued, shewed "statistically significant favorable treatment for 
white males" in the selection process. ( Ih.) Second, the
parties disputed vigorously the propriety of defendant's treat-

1 6 /ment of applicants of unknown race. Op. at 24 (JA 224). — 7

16/ For example, the class members' expert performed an analysis 
in which he included females of unknown race in the non-white/male 
category because these persons were known not to be white males re 
gardless of their race. (PX 179). However, the Court held 
that MarAd

...correctly responded that to include these 
persons in the analysis would heavily bias 
the results in plaintiff's favor, since 
persons of unknown race were overwhelmingly 
those who were rejected. Since a large 
portion of the rejected males may well have 
been white, including the race-unknown 
females would obviously skew the results in 
plaintiffs' favor unnecessarily.

Op. at 24’ (JA 224).

32



Thus, additional analyses were done by both sides in which 
the race-unknown males were allocated in proportion to their 
numbers in the race-known group and, at the suggestion of the 
Court, in proportion to their numbers among the rejected race- 
known group. Op. at 24 (JA 224). Even with these modifications, 
the results of MarAd's analysis remained unchanged. However, 
this analysis did not separate out analyses for race and sex to 
"enable the court to determine whether this difference is due 
entirely to race discrimination, entirely to sex discrimination, 
to both, or to the 'compound discrimination' which plaintiffs are 
urging here." Op. at 24 (JA 224).

The class members also attacked MarAd's analyses generally 
because they alleged that by subdividing the data, smaller groups 
are subjected to analysis, and accordingly, a larger difference 
had to be observed for statistically significant results to be 
obtained. — ^

Finally, with respect to medals and other awards, the class 
members maintained that the data showed that white males had 
received a disproportionate share of the awards given. Again, 
the class did not proffer a separate analysis by race or sex.

17/ The Court noted that this argument was "well taken and 
important; obviously if the results in several subgroups all tend 
to lie in one direction, a court may find discrimination even 
though no single result is statistically significant." However, 
the Court then noted in passing that the .05 threshold frequently 
used as a test of statistical significance was not an all-or- 
nothing measure: "In the context of other evidence levels well
above .05 may be probative of discrimination." Op. at 24 and 25 
(JA 224-225).

33



The data that was proffered was found to be generally consistent 
with the previous data. (PX 155);  Op. at 25 (JA 225) . )  Indeed, 
while MarAd's expert stated that the awarding of bronze medals is 
non-random with respect to race and sex combined, he denied that 
there was any disproportion with respect to cash awards. (DX 
120) .

IV. The District Court's Findings and 
Conclusions______________________
A. The "Compound" Class Discrimination Claim

In reviewing the massive and complex statistical evidence 
before it, the District Court rejected the class members' allega­
tions of "compound" discrimination -- the "white-maleness" of the 
agency's hiring and promotional system was simply not found to 
have any discriminatory basis. Consequently, the underlying 
rationale for certifying the broad class of all blacks and women 
(e.g., an illegal preference for white-males) was ultimately 
disproved. Indeed, the Court concluded that

[h]aving examined and taken into account the 
statistics presented by both parties, ... 
with a few exceptions those presented by 
[MarAd] are more reliable.

Op. at  28 (JA 228).

More particularly, the Court agreed with MarAd that the
class members' attempt to lump together the statistics from
career-ladder and non-career-ladder positions was "irrational",
and that the two had to be examined separately:

It is clear from the record that career- 
ladders are designed to and in practice 
result in much faster rates of promotion than

34



noncareer-ladder positions. Under these 
circumstances, it would be irrational to 
assume equal promotability between incumbents 
of these two types of positions, as [the 
class members'] proposed analysis would 
imply.

Op. at 29 (JA 229). Moreover, even though the selection of 
positions to be designated career-ladder was within the dis­
cretion of the agency, the Court found that MarAd had

...adequately demonstrated that the designa­
tion of certain positions as career-ladder is 
based on characteristics of the jobs and not 
of the persons who occupy them. The career- 
ladder positions are professional positions 
which are properly graded at two-level 
intervals and for which MarAd has an amount 
and level of work such that all who enter 
could be promoted and work at the full 
performance levels. Most professional jobs 
at MarAd are career-ladder, and those that 
are not are not either because there is no 
presumptive full performance level which most 
employees would eventually achieve and at 
which work would be available, or because the 
job is not "truly professional" in the 
classic sense, or because the job is one of a 
kind or otherwise not suited for stepped 
promotion treatment. [citation omitted]
While nonprofessional jobs at MarAd could 
possibly be designated career-ladder, there 
is no evidence that failure to do so is any 
way discriminatory. There is no requirement 
that MarAd refrain from providing rapid 
advancements to a class of employees whose 
positions warrant it simply because that 
group contains a higher proportion of white 
males. [Citation omitted]. [MarAd] is only 
required to treat similarly situated and 
similarly available persons equally to each 
other. [Citation omitted] The favorable 
treatment being given to professionals in the 
career ladder is_ not in itself discrimina- 
tory, provided there is no discrimination in 
obtaining access to the program or in the 
treatment of individuals once they are within 
it.

(emphasis added). Op. at 29 and 30 (JA 229-230).

35



Next, the Court rejected the regression analysis — ' sub­
mitted by the class, according it "relatively little weight." 
Indeed, the Court determined:

A regression analysis in a case such as this, 
repeating a static view of the agency's 
distribution of salary and similar benefits, 
shows little about how the agency became the 
way it is. It is not unusual that at an 
established agency like MarAd white males 
dominate the higher level, higher paying 
jobs. Many cases have dealt with just such a 
situation and concluded that it tells little 
about whether this situation came about as a 
result of presently actionable discrimination.
As these cases all note, "flow" statistics, 
or statistics which look at the acts of the 
defendant during the relevant time period, 
are much more probative than a general 
picture of the nature of the distribution of 
jobs at the workplace, since such statistics 
help demonstrate what portion, if any, of the 
observed discrimination is due to presently 
actionable discrimination and what portion is 
due to lack of applicants from certain groups 
to certain positions, to lack of basic 
qualifications, or to past discrimination and 
other factors beyond legal redress. While 
[the class members'] regression analysis 
attempts to take many of these factors into

18 /

18/ In proffering their regression analysis, the class members 
relied heavily on three cases from this jurisdiction. In Trout, 
supra, and Segar, supra, the courts relied heavily on regression 
analyses similar to the present case. See n. 9, supra. But in 
both cases, the Court noted, "the occupations at issue were 
relatively homogenous, and the cases thus did not involve com­
parison across widely disparate occupations and among persons 
with widely different qualifications." See Valentino, v. United 
States Postal Service, 674 F.2d 56 (D.C. Cir"! 1962) (Valentino). 
In addition, in Davis v. Califano, 613 F.2d 957 (D.C. Cir.
1979) , while involving statistics similar to those at issue in 
the present case, "flow" statistics showing a marked difference 
in rate of promotion were used. While the class members offered 
such statistics in the present case Judge Oberdorfer noted that 
"once the career-ladder positions are separated out many of these 
differences disappear." Op. at 31 (JA 231).

36



account, there is no real evidence that they 
can be adequately accounted for simply by 
adding them in as another variable in a 
linear equation.~

(emphasis added) Op. at 30 and 31 (JA 230-31).
B. Sex and Race Class Discrimination 

Findings_________________________
On the basis of the evidence -- including the Court's embrace 

of MarAd's statistical experts -- Judge Oberdorfer dismissed the 
allegations of sex discrimination. Indeed, the Court found that 
there was a marked preference in favor of women. However, while 
acknowledging that the race data was incomplete, the Court con­
cluded that the class had "demonstrated a significant difference

19 /in the treatment of whites and blacks at MarAd." — ' More par­
ticularly, the Court noted a "significant disparity" between the

20 /rates of promotion — ' of blacks and whites. However, despite 
its embrace of MarAd's evidence, the Court held that

19/ Among other points, the class members objected to MarAd's 
use of statistics only from January 1977 (thereby not covering 
the "full time" period at issue). However, while noting that the 
"appropriate" time period was two years prior to the filing of 
administrative claims (e.g. January 1975), the Court held that

....the difference between these times is not 
great, and there is no evidence that there is 
any essential difference between the statis­
tics in early years and those from 1977 on.
In this situation, while the failure to 
examine periods prior to 1977 detracts 
somewhat from [MarAd's] statistical showing, 
it does not invalidate it.

(Op. at 32 and 33).
20/ However, in its later Proposed Injunction opinion, the Court 
rejected the class challenges to claims of discrimination in the 
granting of awards or training holding that plaintiffs had failed 
to demonstrate any significant disparate impact in such employ­
ment practices. 559 F. Supp. at 950 n.8 .

37



for all low level jobs excluding clerical ... 
the rate of selection of blacks is less than 
that of whites at a level that is significant 
at the .05 level.

Op. at 34 (JA 234). Thus, even though the .05 level was con-
cededly not "magical," (see n. 17, supra) the Court conjectured

In the context of the fact considerable data 
is missing. . . and where the data do not cover 
the entire relevant time period, the fact 
that the levels of significance are barely 
above .05 does not indicate the absence of 
discrimination. Indeed, had prior years been 
included and more pools been available, it is 
quite possible that the fairly rigorous .05 
standard of significance would have been met.

Op. at 34 (JA 234). Moreover, the Court further hypothesized 
that MarAd's own race comparison "bordered on statistical sig­
nificance, and indeed might have been statistically significant 
had [it] used a one-tailed test..." As a result the Court con­
cluded that where "the differences [between races] are nonetheless 
either close to statistically significant or actually significant, 
the inference of discrimination is clear." Op. at 34 (JA 234).

However, in presenting its case, MarAd argued that the 
differences in competitive hiring were not significant if one 
examines applicants who were eligible rather than examining all 
those that apply. This was based on MarAd's assertion that the 
law (both in the Supreme Court and this Circuit) required that 
groups with which an agency's ultimate choices for selection are 
compared be those with the minimum necessary qualifications for

38



the positions awarded, — ' an especially critical argument given 
that the standards of eligibility for hiring and promotion are 
set forth, inter alia, by OPM X-118 and not by any formal MarAd 
policies. Despite the fact that the class had neither directly 
challenged the validity of OPM X-118 nor presented statistical 
evidence accounting for minimum objective qualifications, the 
Court determined that the class could later challenge MarAd1s 
"eligibility” decisions -- after the trial on the merits -- when 
individual class members came forward (at later hearings on relief).

At the same time, however, the Court held
Had the X-118 standards and their application 
by MarAd been validated, [the agency's] claim 
would have more force. But in a case in which 
the validity of the standards used to determine 
eligibility is itself at issue, it is clear 
that the ineligibility of some of the applicants 
does not, without more, demonstrate that they 
were not victims of discrimination.

It is quite conceivable that, had [MarAd] 
undertaken a validation study, the MarAd 
selection procedures would have been validated 
and the statistics which resulted would have 
rebutted any inference of disparate treatment...

[I]t is clear that in the face of 
[MarAd's] unwillingness to offer anything in 
the way of an attempt at validation, the 
Court cannot presume validity in the face of 
a showing of substantial adverse impact.

21 /

Op. at 35 and 36 (JA 235-36). Consequently, the Court hung its 
race discrimination holding not merely on the statistics 
(provided by

21/ See Valentino, supra, n.18.

39



MarAd) but also on the "fact" that MarAd had not shown that OPM 
X-118 was "valid". - 1

Finally, the Court rejected the class members' claim that 
MarAd had failed in its obligations under 42 U.S.C. §2000e-16(b) 
to pursue affirmative action, ruling that there is no private 
right of action to enforce this obligation. However, the limited 
issue of affirmative action -- and administrative review under 
the Administrative Procedure Act, 5 U.S.C. § 701 et seq. -- was 
integrated into the relief portion of the case.

C. The Prevailing Class Relief
In finding that the black members of the class had proven 

their claims of discrimination, the Court ultimately issued an 
expansive injunction providing various forms of relief. ("Inj.") 
(JA 254).

Among the various forms of relief, the District Court 
required that MarAd conduct an extensive validation of the 
"standards, methods and procedures used to select persons for 
positions within MarAd at grades 12 and below . . ." Inj. at
5-7 (JA 258-60). The results of this validation are to be used 
in preparing vacancy announcements, rating and ranking criteria 
and

22/ In its later opinion proposing injunctive relief, the 
District Judge rejected MarAd's assertion that OPM, and not an 
agency (e.g. MarAd) obligated to follow OPM standards, was the 
only proper party against whom such a challenge could be made. 
559 F. Supp. at 949 n.5. Indeed, it stated that if such a 
defense were assertable, MarAd had an obligation to join OPM as a 
defendant, pursuant to Rule 19(a), F.R.Civ.P. Id.

40



performance appraisal standards. — ' The basis for ordering this 
extensive validation was that the racial discrimination was 
apparently grounded in the standards themselves. 559 F. Supp. at 
948.

In addition, the Court set procedures for the determination of 
individual class member claims of race discrimination. Interna­
tional Brotherhood of Teamsters v. United States, 431 U.S. 324 
(1977) (Teamsters); Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir. 
1982). However, the class of persons eligible for such determi­
nations was confined to "black past or present MarAd employees 
from the period July 4, 1977 to the date that judgment was entered 
[January 25, 1983]." Moreover, the Court also restricted such 
claims "for denial of selection at or below the GS-12 level. . . ." 
Finally, the Court determined that, while the initial burden will 
be on claimant to show -- by a preponderance of the evidence -- 
that he or she was not promoted because of discrimination, the 
burden will be shifted to MarAd to prove -- "by clear and con­
vincing evidence" -- that the same employment decision would have 
been made even in the absence of the claimed discrimination.
Inj . at 11 (JA 264). In the absence of such proof, the in­
dividual class member will be granted the relief sought. Id.

23 /

23j In its Proposed Injunction opinion, the Court determined 
tKat it was necessary to validate the selection process "as a 
whole" because the standards and criteria were "concededly" used 
at the eligibility and certification stages. 599 F. Supp. at 
948-49 (JA 245-46) .

41



D. The Individual Claims
The District Court informed plaintiff Lawrence (white female), 

that (a) she could walk away from the case, as a losing party, the 
sex discrimination class claims having been rejected; or (b) await 
the outcome of any appeals of that finding before her individual 
disparate treatment claim was resolved; or (c) if she chose (b) 
she could present any "additional evidence" regarding her individ­
ual claim. However, the Court failed to make any findings 
regarding the individual disparate treatment claims of plaintiffs 
Spencer and Harrison. Of course, none of the three named plain­
tiffs were eligible to seek relief under the class relief pro­
cedure -- plaintiffs Spencer and Harrison being at or above the 
GS-12 cut-off level; plaintiff Lawrence being a white female.

SUMMARY OF THE ARGUMENT
The District Court erred in certifying a compound, across- 

the-board class, (consisting of all past, present and future 
blacks and women applicants and employees at MarAd challenging 
the agency's entire hiring and promotion system), because the 
three named-plaintiffs failed to satisfy the prerequisites of 
Rule 23(a), Federal Rules of Civil Procedure. More particularly, 
the three named-plaintiffs: (1 ) failed to raise questions of law
and fact common to the class (representing all levels of appli­
cants and employees) where all three were professional employees 
and both blacks were at or above the GS-12 level; (2) similarly 
failed to raise questions of law and fact typical of the class;

42



and (3 ) inadequately represented the interests of the class because 
of intractable conflicts between and among those interests.

In addition, once having certified the above-described 
compound, across-the-board class for trial, the District Court 
improperly bifurcated the class after the trial had been com­
pleted. The result violated the fundamental precept for maintaining 
a class action -- proper notice to defendants concerning what 
they must defend against. Rules 23(c)(1) and (4)(B), F.R.Civ.P.

Even assuming that the compound class certification was 
somehow appropriate, the District Court erred in finding partial 
class liability (e.g., blacks at or below the GS-12 level).
First, after properly rejecting the class claim of compound 
discrimination, the District Court applied an additional, errone­
ous theory of liability -- separate sex and race discrimination 
analyses -- inconsistent with the compound nature of the class, 
plaintiffs' theory of liability, and the proof introduced at 
trial. MarAd thereby found itself, after the trial was com­
pleted, defending two separate actions rather than the one at 
trial, with a Solomon-like decision providing both sides some 
relief. Second, even if separate, post-trial sex and race 
analyses were appropriate, the class failed to establish its 
prima facie burden when: (1) the District Court found that
plaintiffs' anecdotal and statistical evidence was not credible;
(2 ) plaintiffs' statistical evidence, employing a disparate 
impact model, failed to account for the applicable minimum 
objective qualifications inherent in many of the positions at 
MarAd; and (3) plaintiffs use of a disparate impact model was

43



itself inappropriate where the challenged employment practices
involved both objective and subjective criteria. Third, even 
assuming that use of a disparate impact analysis was correct and 
assuming that plaintiffs had presented a prima facie case, 
MarAd's anecdotal and statistical evidence clearly rebutted any 
possible inference of class-wide discrimination. This is especial­
ly evident given the District Court's embrace of MarAd's proof, 
which established that there was no statistically significant, 
disparate impact in the promotions of blacks below GS-12 where:
(1 ) the only appropriate analysis necessarily differentiated 
between competitive and non-competitive promotions; (2 ) that 
analysis accounted for minimum objective qualifications (e.g., 
analyzing eligible employees rather than all general applicants 
for employment); and (3) the challenged employment practices 
involved both subjective and objective criteria.

In any event, even if the District Court's race liability 
finding (and its disparate impact analysis) is correct, it erred 
in requiring a validation study of personnel standards which, at 
least with regard to minimum objective criteria, are dictated by 
the Office of Personnel Management Standards X-118 (DX 2) and are 
beyond MarAd's control.

Finally, the District Court erred in providing relief for 
individual class claims between August 1, 1975 and January 25, 
1983 where the class administrative complaint was not filed until 
August 4, 1977. Under the appropriate procedures, therefore,
individual class claims should not go back in time beyond March 21, 
1977.

44



ARGUMENT
I. The District Court Erred In 

Certifying the Compound,
Across-the-Board Class_____
A. Introduction

After reviewing the extensive papers filed by the parties
and conducting a hearing, Judge Oberdorfer granted the initial
motion for class certification, pursuant to Rules 23(a) and
(b)(2), F.R. Civ. P., holding —  that the class included

. . . all past, present, and future Black
male, Black female and white female employees 
and applicants for employment at the Head­
quarters Office of the United States Maritime 
Administration. . .

In certifying this compound, "across-the board" challenge to 
the alleged discriminatory hiring, promotion and awards practices 
of the agency -- regardless of the diverse race, sex, position, 
education, background or qualifications of the class members -- 
the District Judge grossly violated the strict certification 
requirements of Rule 23, F.R.Civ.P. Indeed as certified, the 
class: (a) lacked the requisite common questions of law or fact
(Rule 23(A)(2)); (b) raised claims, through the individually
named plaintiffs, which lacked typicality with the class members'

~27T7 The District Court did not set forth the specific basis for 
its certification order, either at the hearing or in its February 
13, 1980 Order. (JA 26-151). This same conclusion was stated 
again in its June 7, 1982 Order. Op. at 26 (JA 226).

45



claims (Rule 23(a)(3)); and (c) was represented by individuals 
who could not conceivably "fairly and adequately protect the 
interests of the class" and actually presented intractable 
conflicts between the various groups constituting the class (Rule 
23(a)(4)).

Moreover, through such an overly broad class certification, 
defendants were supposedly on notice only that they were defending 
a "compound discrimination" case -- females and blacks together 
alleging discrimination at the hands of white males. Instead, 
the class was, for all practical purposes, bifurcated by the 
Court after the trial into separate race and sex discrimination 
subclasses. Rules 23(c)(1) and (4)(B). As a result, the class 
certification unfairly placed MarAd in a highly prejudicial, 
no-win situation -- by concededly rebutting the compound dis­
crimination case (through the introduction of statistics showing 
no significant disparity in the combined treatment of females and 
blacks), MarAd was "found" to have discriminated separately 
against blacks (but not females) because its own evidence, 
introduced in rebuttal to plaintiffs' compound discrimination 
theory, was incorrectly used by the Court in finding race dis­
crimination. Notwithstanding the fact that the statistical 
evidence proffered by MarAd showed no significant disparity in 
the treatment of blacks, (see Part II, infra), the Court's class 
certification order improperly and unfairly redefined the nature 
of the suit in an untimely manner.

46



Consequently, the class certification, which was never
subsequently modified by the Court in any respect whatsoever, —  
was improper as a matter of law and should be reversed, with 
directions to dismiss all class claims.

B. Class Actions and Title VII 
Rule 23 provides, in relevant part,

Rule 23. Class Actions
(a) Prerequisites to a Class Action.

One or more members of a class may sue or be 
sued as representative parties on behalf of 
all only if (1 ) the class is so numerous that 
joinder of all members is impracticable, (2 ) 
there are questions of law or fact common to 
the class, (3) the claim or defenses of the 
representative parties are typical of the 
claims or defenses of the class, and (4) the 
representative parties will fairly and ade­
quately protect the interests of the class.

25 /

However, the Supreme Court has observed that the class action 
vehicle "was designed to allow 'an exception to the usual rule 
that litigation is conducted by and on behalf of the individual 
named parties only.'" General Telephone Co. of the Southwest v. 
Falcon, (Falcon), 457 U.S. 148, 155 (1982), quoting Califano v. 
Yamasaki, 442 U.S. 682, 700-701 (1979). As such,

25/ As noted above, pp. 5-6, MarAd attempted at several junctures 
in the case to have the Court modify or limit the scope of the 
certified class. However, the Court refused each such request, 
despite the availability of such an amendment procedure at any 
time "before the decision on the merits." Rule 23(c)(1), F.R. 
Civ.P. See Valentino, supra, 674 F.2d at 6 6 , n.12.

47



class relief is "peculiarly appropriate" when 
the "issues involved are common to the class 
as a whole" and when they "turn on questions 
of law applicable in the same manner to each 
member of the class." . . . For in such
cases, "the class action device saves the 
resources of both the courts and the parties 
by permitting an issue potentially affecting 
every [class member] to be litigated in an 
economical fashion under Rule 23". . .

Falcon, 457 U.S. at 155.
However, the purpose of Rule 23 is to assure that members of 

the class will be clearly identified prior to trial. See Crown,
Cork & Seal Co., Inc, v. Parker, ___ U.S. ___, 76 L. Ed.2d 628,
635 (1983) ("class complaint notifies defendant of substance of 
class claims"); American Pipe and Construction Co. v. Utah, 414 
U.S. 538, 547 (1974). Consequently, only when the class is
particularized -- putting both the class members and the defendant 
on notice as to the nature of the suit -- can a class action 
proceed to an adjudication on the merits. Id.

Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000-e et seq■, as amended by the Equal Employment Opportunity 
Act of 1972, 42 U.S.C. § 2000e-16, —  ̂ does not provide any 
"special authorization" for class suits maintained by private 
parties. Indeed,

An individual litigant seeking to maintain a 
class action under Title VII must meet the 
"prerequisites of numerosity, commonality, 
typicality, and adequacy of representation" 
specified in Rule 23(a), [which] effectively 
"limit the class claims to those fairly 
encompassed by the named plaintiff's claim."

26/ Applying the provisions of Title VII to federal agencies.

48



Falcon, 457 U.S. at 156, (emphasis added), quoting General
Telephone Co. v. EEOC, 446 U.S. 318 (1980). Moreover, the 
Supreme Court has repeatedly held that "a class representative 
must be part of the class and 'possess the same interest and 
suffer the same injury' as the class members." Falcon, 457 U.S. 
at 156, quoting East Texas Motor Freight System, Inc, v. Rodriguez, 
431 U.S. 395, 403 (1978) and Schlesinger v. Reservists Committee 
to Stop the War, 418 U.S. 208, 216 (1974). See also, De Medina 
v. Reinhardt, 686 F.2d 997, 1013 n.ll (D.C. Cir. 1982).

Finally, while acknowledging that race or sex discrimination 
are often defined as class discrimination, the Court has clearly 
stated that

. . . the allegation that such [class]
discrimination has occurred neither determines 
whether a class action may be maintained in 
accordance with Rule 23 nor defines the class 
that may be certified.

Falcon, 457 U.S. at 157. This is because of the wide gap in the 
forms of evidentiary proof existing between an individual's claim 
of discriminatory treatment (e.g. intentional discrimination) and 
the existence of a class of persons who have suffered the same 
injury, having common questions of law or fact (e.g. , using 
statistical evidence showing disparate impact). _Id. Consequently, 
only after the trier of fact has engaged in a "rigorous analysis" 
of the underlying merits of a motion to certify a Title VII class 
may it allow the case to so proceed. Id.

In the present case, the individual plaintiffs failed to 
meet their burden under Rule 23(a) necessary to establish an 
appropriate class, if any such class could be certified. Senter

49



v. General Motors Corp. , 532 F.2d 511 (6th Cir. 1976), cert. 
denied, 429 U.S. 870 (1976), Taylor v. Safeway Stores Inc., 524
F.2d 263 (10th Cir. 1975). As a result, the present class was
improperly certified.

C. The Prerequisites For Class 
Certification (Rule 23(a))

As certified, the class includes an assortment of incon­
sistent and competing interests: blacks (either male or female)
and white women; applicants (raising hiring claims) and employees
(raising competitive and non-competitive promotion and award claims);

27 /and past and present employees as compared to future employees. —
Such an "across-the-board" certification is simply inconsistent
with the strict requirements of Rule 23(a) and the overwhelming

28 /precedent of both the Supreme Court and this Circuit. —
1. The Lack of Common Questions of Law 

and Fact (Rule 23(a)(2))___________

In the context of Title VII, a plaintiff can only challenge 
a discriminatory employment practice and not an "abstract policy

27/ The District Court's Final Injunction effectively limited 
tKe "past" and "future" employee portion of the class to "all 
black past or present MarAd employees from the period July 4, 
1977 to the date judgment was entered [January 25, 1983]." Inj. 
at 9 (JA 262).
28/ MarAd also raised below the question of whether the potential 
FTass had sufficient "numerosity" to reach the threshold require­
ments of Rule 23(a)(1). While the authorities have indicated 
that there is no "magical" number by which to gauge this require­
ment, 3B W. Moore's Federal Practice K23.05[l] (1978), MarAd does 
not here challenge that portion of Judge Oberdorfer's certifica­
tion order.

50



of discrimination." Falcon, 457 U.S. 159, n. 15. See also East
Texas Motor Freight System, Inc, v. Rodriguez, 431 U.S. at
403-04. Consequently, certification is appropriate only where 
the named plaintiff(s) raise claims that are common with the 
entire class. As the Court held in Falcon:

The mere fact that an aggrieved private 
plaintiff is a member of an identifiable 
class of persons of the same race or national 
origin [or sex] is insufficient to establish 
his standing to litigate on their behalf all 
possible claims of discrimination against a 
common employer.

457 U.S. at 159 n. 15. The Court's dictate in Falcon is especially 
compelling here given the lack of commonality between the three 
named-plaintiffs and the "across-the-board" class.

While the District Judge did not set forth any authorities 
for his certification order, (see JA 152), the authorities cited 
in the class members' memoranda relied directly on those cases 
which have allowed "across-the-board" attacks on hiring and 
promotion practices. See, Johnson v. Georgia Highway Express,
Inc. , 417 F. 2d 1122 (5th Cir. 1969); Wetzel v. Liberty Mutual 
Ins. Co. , 508 F. 2d 239 (3d Cir. 1975), cert, denied, 421 U.S.
1011 (1975); Donaldson v. Pillsbury Co., 554 F.2d 825 (8th Cir. 
1977), cert, denied, 434 U.S. 856 (1977); Bachman v. Collier,
73 F.R.D. 300 (D.D.C. 1976). (R. 32, 54). However, the Supreme
Court's more recent decision in Falcon clearly rang the death 
knell for the across-the-board rule in this very type of case, if 
indeed that rule had vitality after East Texas Motor Freight.

51



All three named-plaintiffs —  are professional employees 
(ranging from GS-11 up to GS-15) and therefore have little 
"commonality" -- but for their belonging to the same race or sex 
and having a "common" employer, -- with clerical, non-professional, 
or lower GS-level professional employees. Indeed, this Circuit 
has recently reviewed several Title VII class actions where the 
named plaintiffs, and the classes they represented, were not only 
narrower in scope than the present case but had much more in 
"common" with the interests they represented therein.

In Valentino v. United States Postal Service, 674 F.2d 56 
(D.C. Cir. 1982), aff'g, 511 F. Supp. 917 (D.D.C. 1981),
(Valentino) the class consisted of "all females... employed by 
the [agency] in the Washington, D.C. statistical metropolitan 
area in the positions compensated to USPS pay scales at level 
PES-17 or higher . . . excluding, however, any such females who 
are union members . . ." 674 F.2d at 64. Moreover, the Valentino 
class only included professional and administrative employees 
which, because of its "far-ranging diversity," made plaintiff's 
burden of proof there "especially difficult to meet." Id. at 66. 
Indeed, in commenting on the lower court's hesitancy to certify 
even this narrow a class, this Court in Valentino referred to 
other cases which questioned the legitimacy of class certification 
where, as here, the class positions require "diverse and specialized

T97 Plaintiff Harrison left MarAd prior to trial. Op. at 1 (JA
T58).

29 /

52



qualifications relating to education and work experience" especially 
where, as here, plaintiffs' proof is based on statistics. Id. at 
66, n.12, citing Wilkins v. University of Houston, 654 F.2d 388 
409 n. 37 (5th Cir. 1981). Moreover, this Court's review of the 
relatively narrow Valentino class caused it to warn:

When the nature of the proof and the number 
and diversity of the occupations involved in 
this case became apparent, the district court 
might appropriately have revisited the 
certification to determine whether further 
trimming, refinement by subdivision, or even 
retraction was warranted.

674 F.2d at 66, n.12 (emphasis added).
Indeed, even the promotion claims raised by the class are 

inconsistent and "uncommon". Judge Oberdorfer's findings clearly 
underlined the radical differences between non-competitive 
promotions and competitive promotions. The distinctions between 
these types of advancement at MarAd, already discussed at length 
above, only further underscore the impropriety of such an across- 
the-board class certification.

Finally, notwithstanding all the above, the trial judge's 
ultimate findings and award of relief further demonstrates the 
lack of commonality: (1) there was a distinctive overselection
of females throughout the hiring and promotion system, thereby 
giving rise to conflicts within the class (see Part I C 3, infra) 
and (2) relief was only awarded to those alleged victims of 
racial discrimination working at the mid and lower GS-levels 
(GS-12 and below). Incredibly, none of the named black plaintiffs 
-- both of whom were at or above the GS-12 level -- were part of

53



this "prevailing" class or sought to prove their claims under an
impact model. At that point--after a lengthy and complex trial--

30 /the lack of commonality should have been evident. —
The claims and interests raised by the named plaintiffs 

were, when viewed against the "across-the-board" class, wholly 
uncommon in every sense of the word. As such, the prerequisites 
of Rule 23(a)(2) were not met and, for this reason alone, the 
class certification should be reversed.

2. The Lack of Typicality (Rule 23(a)(3))
In Falcon, the Supreme Court noted that the commonality and 

typicality requirements of Rule 23(a) "tend to merge." 457 U.S. 
at 157 n. 13.

Both serve as guideposts for determining 
whether under the particular circumstances 
maintenance of a class action is economical 
and whether the named plaintiff claim and the 
class claims are so interrelated that the 
interests of the class members will be fairly 
and adequately protected in their absence.

Id. However, the requirement of typicality does retain its own 
meaning, despite this overlap. See Taylor v. Safeway Stores Inc., 
524 F.2d at 270. See also Bostick v. Boorstin, 617 F.2d 871 
(D.C. Cir. 1980)(class certification denied in Title VII case for 
lack of typicality).

30/ Indeed, the District Court was made aware of the Falcon case 
at a hearing held on November 23, 1982, after its Findings were 
issued but before it entered Judgment. Even at that stage, the 
Court refused to disturb the class certification. It did, 
however, limit the class for purposes of relief. See Inj. at 9 
(JA 262), n. 27, supra.

54



In the present case, the three individual plaintiffs might 
very well have raised claims which are typical of other high-level, 
professional employees at MarAd who are engaged in similar 
occupations. However, these claims could not possibly be typical 
of the vast majority of the across-the-board class. Bostick v. 
Boorstin, 617 F.2d at 872-73, n.l. Cf., Karan v. Nabisco, Inc.,
78 F.R.D. 388, 405-406 (W.D. Pa. 1978).

For instance, the named plaintiffs had no interest typical 
with clerical or support personnel. Indeed, a GS-11 (later 
GS-13) economist (plaintiff Lawrence), a GS-13 mechanical engineer 
(plaintiff Harrison), and a GS-13 (later GS-15) computer specialist- 
supervisor (plaintiff Spencer) have such "diverse and specialized"
occupations that the lack of typicality with each other -- let 
alone with all the other diverse and varied positions at MarAd -- 
flies in the face of Rule 23(a)(3)'s requirements.

In addition, none of the three named-plaintiffs, (who, as 
employees, all raised claims pertaining to promotions, awards, 
etc.) has any claim typical of that portion of the class--applicants 
-- who challenged alleged discrimination in hiring. See East 
Texas Motor Freight System, Inc, v. Rodriguez, 431 U.S. at 403 
(certification improper where named plaintiffs were clearly not

31/ Plaintiff Spencer's supervisory status further differentiated 
Her from both her co-named plaintiffs and the rest of the class 
which, because of its unlimited scope, included supervisors and 
non-supervisors. See Part I C 3(e), infra. In addition, Spencer's 
interests could hardly be considered typical with a class seeking 
relief -- she actually received relief on her administrative 
claim in April 1977, before the class was certified. (DX 98, 110 
and 132) This "accora and satisfaction" further distinguishes 
both her typicality and commonality with the class. Cf. Hofer 
v. Campbell, 581 F.2d 975 (D.C. Cir. 1978).

55



qualified or eligible for positions at issue). Indeed, the 
Courts have properly held that a class consisting of persons with 
promotion claims is inconsistent, as a matter of law, with class 
claims relating to hiring. See Hill v. Western Electric Co.,
596 F.2d 99 (4th Cir. 1979), cert, denied, 444 U.S. 929 (1979) an 
authority apparently rejected by the District Court. But see 
Richardson v. Byrd, 709 F.2d 1016 (5th Cir. 1983).

Moreover, that portion of the class pertaining to "future" 32/ 
applicants or employees is wholly inappropriate. Indeed, any 
attempt to categorize what, if any, common issues and claims such 
persons could raise would be an unworkable, "speculative under­
taking." Mathews v. Diaz, 426 U.S. 67, 71-72 n. 3 (1976); Wilson 
v. Allied Chemical Corp., 456 F. Supp. 249 (E.D. Va. 1978).

Finally, despite the District Court's refusal to modify the 
across-the-board class at any time during the proceedings, it 
nevertheless found it necessary at trial to analyze separately 
the persons in career-ladder positions and those in non-career-ladder 
positions. The Court noted that it was

clear from the record that career-ladders are 
designed to and in practice result in much 
faster rates of promotion than non-career- 
ladder positions. Under these circumstances 
it would be irrational to assume equal 
promotability between incumbents of these two 
types of positions. . .

Op. at 29 (JA 229). Given (1) the totally different 
circumstances and justifications surrounding promotions for 
competitive positions

31/ See n. 27/, supra.
56



(e.g., clerical, support staff; career-ladder entry) as compared
to non-competitive positions (e.g., attorneys, statisticians,
economists), and (2) the Court's ultimate decision to treat the
two types of promotions entirely separate (based on its need to
focus on "widely disparate occupations... among persons with
widely different qualifications"), the notion of typicality
stands on its head. In the face of finding such distinctions,
the Court's insistence on certifying an across-the-board class

33 /for trial is not only troubling but legally deficient. — '

Consequently, the prerequisites of Rule 23(a)(3) were not met 
and, on this basis alone, the class certification should be rever- 
sed. 2*/

33/ While the Court's findings were set forth after the trial, 
tEe sharp differences which it noted in the two promotion schemes 
were well-documented and brought to its attention at a much 
earlier stage in the case. (R. 46). Given the Court's duty 
under Rule 23 to re-examine the class certification at any 
appropriate juncture, Valentino, 674 F.2d at 66, n.12, Patterson 
v. General Motors CorpTj 631 F.2d 476, (7th Cir. 1980), cert. 
denied, 451 U.S. 914 (T981), and see note 25/, supra, the class 
make-up was legally deficient. Indeed, tEls is especially 
puzzling where the District Judge, at the hearing on the original 
certification motion, specifically left open the possibility of a 
later modification "to eliminate some elements or segments of the 
class that are now embodied in the order." (R. 68).
34/ See also Trout, supra, (Title VII class properly certified 
as "all female professional technical employees"); Tucker v. United 
Parcel Service, 657 F.2d 724 (5th Cir. 1981)(class members must 
have common employment positions); cf., Phillips v. Klassen, 502 
F.2d 362, 366-68 (D.C. Cir. 1974) (Rule 23 and Due Process
require that class members share common claims); Lo Re v. Chase 
Manhattan Corp., 431 F. Supp. 189, 196-98 (S.D. N.Y. T977)(female 
professional employees can not share common sex discrimination 
claims with female clerical employees -- class consisting of "all 
females" rejected).

57



3. The Inadequacy of Representation 
(Rule 23(a)(4))_________________

The requirement that the interests in the class be fairly 
and adequately represented by both the named plaintiffs and their 
counsel (Rule 23(a)(4)) also tends to merge with the commonality 
and typicality prerequisites discussed above. Falcon, 457 U.S. 
at 157, n. 13. However, this requirement "also raises concerns
about the competency of class counsel and conflicts of interest."

35 /Id. at 157-58. —  In the present case, it is apparent that (1)
serious conflicts of interest were inevitable from the outset 
between the various class members' competing interests, and (2) 
the representatives themselves were clearly incapable of "fairly" 
representing the class interests and, indeed, had their own 
conflicts of interest which should have barred them from proceeding 
in the case. See generally, National Association for Mental
Health, Inc, v. Califano, ___ F.2d ___, Nos. 82-1196, 1197, 1278
and 1509, (D.C. Cir. September 27, 1983)(Slip Op. at pp. 12-15).

(a) Conflicts Between White Females 
and Blacks_____________________

The most obvious conflict between the various class members 
was that posed by plaintiffs' theory of "white-maleness" discrimina- 
tion--the concept that white males were illegally favored over 
white females and blacks in MarAd's hiring and promotion practices.

35/ Representing such a diverse and conflicting class raises 
serious ethical problems for even the most able trial counsel -- 
an attorney owes his/her allegiance to each member of the class.
See Horton v. Goose Creek Independent School District, 677 F.2d 
471 (5th Cir. 1982) and Manduiano v. Basic Veg. Prod., Inc. , 541 
F .2d 832 (9th Cir. 1976).

58



At the time of the initial class certification, the 
across-the-board class was poised to attack the domination of 
white males at the agency. Essentially, this boiled down to an 
"us v. them" discrimination claim, or, as described by the 
District Court, "compound discrimination." However, after an 
extensive trial, the District Court expressly held that there was 
a marked overselection of females in both hiring and promotions.

In addition, the Court rejected the "compound discrimination" 
theory as well. Op. at 36. (JA 236). Consequently, the 
underlying basis for certifying an across-the-board class--that 
all blacks and females were being disadvantaged to the benefit of 
MarAd's white males -- is simply not in conformance with the 
proof. Indeed, where a significant portion of the class 
--females-- has been found to be disproportionately favored in 
the agency's hiring and promotion practices, it can only indicate 
that the other portion--black males-- had very different 
interests at stake (i.e., claims that they have suffered dis­
criminatory disparate treatment or impact at the hands of all 
whites at MarAd, both male and female). See Bailey v. Ryan 
Stevedoring Co., Inc., 528 F.2d 551 (5th Cir. 1976), cert. 
denied, 429 U.S. 1052 (1977), (conflict in potential relief 
claims). — ^

36/ The reality of such conflicts was supported by some signifi­
cant discovery. Plaintiff Spencer, a black-female, testified 
that she had observed instances of discrimination by white 
females against black females, competition between white females 
and black females, and favoritism towards white females to the 
detriment of black females. (R. 51C). Moreover, inherent
conflicts are unavoidable where differences in sex (male v. 
female) can themselves create legitimate criteria in hiring 
practices. See, e.g., Feeney v. Commonwealth of Massachusetts, 
475 F.Supp. T W  (D.Mass 1979), aff'd, 445 U.S. 901 (1980).

59



Where such direct conflicts are apparent, certification of a
"compound" class was clearly in error. See Payne v. Travenol
Laboratories, Inc., 673 F.2d 798, 809-812 (5th Cir. 1982), cert.
denied, ___ U.S. ___, 103 S. Ct. 451 (1982) (inherent conflict
between claims of black males and black females prohibited
certification of compound class, even though same race); Droughn
v. FMC Corp. , 74 F.R.D. 639, 643 (E.D. Pa. 1977); Strong v.
Arkansas Blue Cross and Blue Shield, Inc., 87 F.R.D. 496 (E.D.
Ark. 1980); Edmondson v. Simon, 86 F.R.D. 375 (N.D. 111. 1980).
This conflict alone compels reversal of the class certification.

(b) Conflicts Between Black Females and 
Black Males________________________

Again, the ultimate finding that women were generally 
favored for hiring and promotion at MarAd underlines the conflict 
between black females -- who were favored on the basis of sex -- 
and black males who, at least below the GS-13 level, are supposedly 
discriminated against.

Where these competing groups were shown to have grossly 
competing interests, certification of a combined class was 
clearly improper. Payne v. Travenol Laboratories, Inc., 673 F.2d 
at 809-812.

(c) Conflicts Between Applicants and 
Employees_______________________

As noted above, there is an inherent conflict between 
"employees and applicants who were denied employment and who 
will, if granted relief, compete with employees for fringe 
benefits or seniority." Falcon, 457 U.S. at 157, n. 13,

60



quoting General Telephone Co. v. EEOC, 446 U.S. at 331. See also 
East Texas Motor Freight System, Inc., v. Rodriguez, 431 U.S. at 
404-05 and Hill v. Western Elec. Co. , 596 F.2d at 101. Under 
Rule 23, "the same plaintiff could not represent these classes." 
Falcon, 457 U.S. at 157, n. 13, quoting GTE v. EEOC, 446 U.S. at 
331.

The inherent conflict between those persons challenging 
MarAd's hiring practices --applicants--and those persons who 
challenge promotion practices -- employees -- again totally 
undercuts any basis for certification of such a broad class. The 
Supreme Court's recent decisions clearly lay this issue to rest.

On this basis alone, the class certification was improper 
and should be reversed.

(d) Conflicts Between Supervisors 
and Non-Supervisors__________

One of the most glaring conflicts in the class arose out of 
the contradictory roles played by supervisors, (such as plaintiff 
Spencer), who are the individuals directly responsible for much 
of the employment practices challenged here. By acting on behalf 
of MarAd management, supervisors are responsible not only for 
hiring decisions (i.e., review of applications for employment) 
but also for employee evaluations. Indeed, the latter responsi­
bility is directly related to the "subjective" promotion procedure 
criticised by the District Court.

61



It is clear that supervisory personnel can not, as a matter
of law, adequately represent the interests of those employees 
(let alone applicants) whom they oversee. Arnett v. American 
National Red Cross, 78 F.R.D. 73, 75-76 (D.D.C. 1978); Rodgers v. 
United States Steel Corp., 69 F.R.D. 382 (W.D. Pa. 1975); Lo Re 
v. Chase Manhattan Corp,, supra, 431 F. Supp. at 198. Conse­
quently, class certification should be reversed on this basis.

(e) Conflicts Involving Plaintiffs
Harrison and Spencer (EEO Officers)

Another unavoidable conflict arose out of the roles two of 
the named plaintiffs--Harrison and Spencer — -- had played on 
the MarAd EEO committee. Plaintiff Harrison, a former MarAd 
deputy EEO Officer and a member of the Incentive Awards Committee, 
performed and participated in many of the "subjective" management 
decisions/practices challenged in this case. Indeed, he retained 
his EEO position even after filing his complaint. (R. 137).
Because the use of his insider's knowledge and experience probably 
violated the duty of confidence that he owes MarAd, (see generally, 
Bachman v. Pertschuk, 437 F. Supp. 973 (D.D.C. 1977), and Kramer

3 7 / MarAd also moved to dismiss plaintiff Lawrence as a named 
plaintiff on the grounds that she was unfit to represent the 
class, based on her apparent misrepresentations of personal 
qualifications to MarAd at the time of her hiring. See Cobb v. 
Avon Products, Inc., 71 F.R.D. 652, 654 (W.D. Pa. 1976) (character 
of the representative is an element of class certification). The 
Court denied this motion, stating "maybe she is not the best one 
around for the moment...," noting that even if Lawrence could be 
dismissed later on, she might still be able to proceed, "like 
Moses," and "could lead [her] people to the site of the Promised 
Land, but [not] go in." (R. 68). While not directly relevant to 
the conflict of interest problems discussed above, Lawrence's 
"unclean hands" only further underscore the lack of adequate 
class representation.

62



v. Scientific Control Corp., 534 F.2d 1085 (3d Cir. 1976), cert.
denied, 429 U.S. 830 (1976)), and because his own personal
activities were part of the very actions being challenged here,
Harrison was actually serving two masters--MarAd and the class--as
a class representative. Such an inherent conflict should have
disqualified him as a representative. Id. ; see also, NLRB v.
Bell Aerospace Co. , 416 U.S. 267, 283 n.12 (1974); NLRB v.
Yeshiva University, 444 U.S. 672 (1980); Pendleton v. Rumsfeld,
628 F.2d 102 (D.C. Cir. 1980).

At the same time, plaintiff Spencer chaired the MarAd EEO
Central Committee, in which she had significant contact and input
into management personnel decisions. (R. 137). For the same reasons
relating to Harrison, Spencer's role in EEO management created an

38 /intractable and irreparable conflict. — '

38/ For instance, the EEO Committee developed the MarAd Affirma­
tive Action Plan and counseled managers with respect to their 
past performance and future responsibilities. (R. 137). Such 
specific examples of this conflict of interest clearly demonstrate 
the inappropriateness of class certification. See Pendleton v. 
Rumsfeld, supra, 628 F.2d at 109-113 (Wald, J., dissenting).

These conflicts should, at a minimum, have dictated 
certification pursuant to Rule 23(b)(3) and not, as the Court 
ruled here, pursuant to Rule 23(b)(2). The critical difference 
between a class certified pursuant to Rule 23(b)(2) and one under 
Rule 23(b)(3) is that the latter provides a notice and "opt-out" 
mechanism, at the very beginning of the litigation, for those 
class members who choose not be bound by the litigation. Eisen 
v. Carlisle and Jacquelin, 417 U.S. 156 (1974); see generally 
3 W~ Moore's Federal Pra~ctice, 23.40 [4]; 7 A Wright, Miller and 
Kane, Federal Practice and Procedure, Civil § 1775.

It is normally anticipated that the homogeneity of a Title 
VII class makes the notice and opt-out procedure unnecessary. 
See, Wetzel v. Liberty Mutual Ins, Co., supra, 508 F.2d at 250.
In the present case, however, the across-the-board nature of the
(FOOTNOTE CONTINUED ON NEXT PAGE)

63



D. The Improper Bifurcation of the 
Compound Class After Trial (Rules 
23(c)(1) and (4)(B))_____________

Notwithstanding the availability of across-the-board class 
certification pursuant to Rule 23(a) and (b) , the District 
Court's post-trial, sua sponte bifurcation of the previously 
certified compound class into essentially two subclasses -- 
females and blacks-- (and its Solomon-like liability ruling 
against the former and in favor of the latter) was clearly in 
contravention of the requirements of Rules 23(c)(1) and (4)(B) 
and should be reversed.

Rule 23(c)(1) provides:
(1) As soon as practicable after the 
commencement of an action brought as a class 
action, the court shall determine by order 
whether it is to be so maintained. An order 
under this subdivision may be . . . amended 
before the decision on the merits. [emphasis 
added].

757 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
class, its lack of homogeneity and the conflicting interests 
raised therein should have indicated to the District Court that 
certain class members might have desired to opt out. For in­
stance, a career-ladder employee might have believed that his or 
her interests were not being protected where career ladder 
applicants' interests were being pressed forward -- one might 
actually displace the other at the relief stage.

Moreover, the use of the notice and opt-out procedures of 
Rule 23(b)(3) could very well have avoided the risk of a collateral 
attack on the present judgment by unnamed class plaintiffs. See 
Air Line Stewards and Stewardesses Assoc., Local 500 v. American 
Airlines, Inc ~  490 F. 2d 636 (7th Cir. 1973) , cert, denied,
416 U.S. 993 0-974). By binding all members of the across-the-board 
class to the results of this Rule 23(b)(2) case, the trial judge 
effectively foreclosed other discrimination claims that might be 
raised by various members of this class. This is clearly improper. 
See, e.g., Johnson v. General Motors Corp., 598 F.2d 432 (5th 
Cir. 1979).

64



Rule 23(c) (4)(B) further provides:
(4) When appropriate ...(B) a class may be 
divided into subclasses and each subclass 
treated as a class, and the provisions of 
this rule shall then be construed and applied 
accordingly. [emphasis added].

Consequently, if a previously certified class is subsequently 
subdivided "before the decision on the merits," each new subclass 
must independently meet the general requirements of Rule 23. See 
Betts v. Reliable Collection Agency, Ltd., 659 F.2d 1000 (9th 
Cir. 1981); Johnson v. American Credit Co. of Georgia, 581 F.2d 
526 (5th Cir 1978); In Re General Motors Corp. Engine Interchange 
Litigation, 594 F.2d 1106, 1129, n.38 (7th Cir. 1979), cert. 
denied, 444 U.S. 870 (1979); 7A Wright, Hiller & Kane, Federal 
Practice and Procedure, Civil § 1790. If any such subclass fails 
to meet these requirements, the portion of the case relating to 
that subclass must be dismissed. Id. Moreover, each properly 
constituted and certified subclass must be treated as a separate 
lawsuit. In Re General Motors Corp. Engine Interchange Litiga­
tion , 594 F.2d at 1129, n.38.

As noted, Judge Oberdorfer originally certified the subject 
class as

...all past, present, and future Black male,
Black female and white female employees and 
applicants for employment...

(JA 152). As such, there was a single class of plaintiffs 
uniformly complaining of compound discrimination at the hands of 
MarAd's white male administrators and supervisors. Indeed, the 
Court's repeated refusal to modify or limit this compound class

65



right through the trial on the merits further underscores the 
"singleness" of the class. Moreover, this "singleness" is even 
more evident given plaintiffs' proof at trial--regression analyses 
focusing on the white-maleness of the agency.

However, after the evidence was closed and despite its 
rejection of the compound class' claims of discrimination, the 
Court determined in its findings and conclusions that for liability 
purposes two new subclasses of plaintiffs (based on sex and race) 
were present. The effect of this sua sponte, post-trial bifurca­
tion of the compound class violated both the spirit and the 
letter of Rule 23 and severely prejudiced MarAd's defense.

First, a plain reading of Rule 23(c)(1) demonstrates that 
any alterations or amendments to class certification must be made
by the Court "before the decision on the merits." In the present

39 /case, the District Court's de facto —  alteration of the compound
class -- after the trial's conclusion and at the time it issued
its decision on the merits -- clearly violated this requirement.

40/Consequently, the only class ever certified, if at all, —  was 
the single, compound class of plaintiffs challenging the white- 
maleness of MarAd's hiring and promotion practices.

39/ See discussion at pp. 37-40, supra.
40/ Even in its liability decision the District Court purported to 
maintain its certification of the single, compound class. Op. at 
26 (JA 226). However, its bifurcated liability decision is, for 
all practical purposes, an alteration of this single class into 
sex and race subclasses, lacking the requisites of Rules 23 
(c)(1) and (4)(B) in any respect whatsoever.

66



Because the trial judge's ruling went totally against this class, 
and was in MarAd's favor, any other rulings regarding subclass 
liability are in violation of the rule's requirements and should 
be reversed as beyond the scope of litigation. — ^

Second, notwithstanding the trial court's untimely altera­
tion of the single, compound class, the two resulting subclasses 
each failed to independently meet the general requirements of
Rule 23. Of course, the lack of commonality, typicality and

42/adequate representation are extensively discussed above. —  
Needless to say, two subclasses of all women and all blacks are 
themselves suspect where, as here, the Court failed to make any 
findings regarding (1) the make-up of those groups (i.e., the 
proportion of black women in either subclass); (2) the nature of 
the positions involved (i.e., professional, clerical, career- 
ladder, etc.); and (3) the minimum objective qualifications 
required for the positions at issue. See Part II B, infra.

Third, the most significant aspect of the Court's failure to 
obey the requirements of Rules 23 (c)(1) and (4)(B) is that MarAd 
was irrevocably prejudiced in its ability to defend the case. By 
effectively subdividing the class after the trial's conclusion, 
MarAd was never put on notice as to what particular subclass 
discrimination claims it had to rebut. This is especially 
troubling given the requirement that subclass claims, once certi­
fied, are to be treated as separate lawsuits. In Re General

41/ See also Part II A-B, infra 
42/ See pp. 51-64, supra.

67



Motors Corp. Engine Interchange Litigation, supra, 594 F.2d 1129. 
MarAd, having successfully defended the compound discrimination 
case, then found itself on the losing end of a race discrimi­
nation case nunc pro tunc. Such a result directly contravenes 
any notion of Rule 23's requirement of fairness and should not be 
condoned. See generally Crown, Cork & Seal Co., Inc, v. Parker,
___ U.S. ___, 76 L.Ed.2d at 635; American Pipe and Construction
Co. v. Utah, 414 U.S. at 538.

The compound class was the only properly certified class in 
this case, if at all. Any findings beyond those relating to the 
compound class should therefore be reversed.

F. Summary
In sum, the class certification should be reversed and the 

case remanded with instructions to dismiss the class aspects of 
this proceeding. In the alternative, the District Court's 
improper bifurcation of the compound class, after trial, into 
race and sex subclasses should be reversed, with directions to 
enter judgment in favor of MarAd on all class claims.

II. The District Court Erred In Finding 
Partial Class Liability____________
A. The District Court Applied An

Additional, Erroneous Theory of
Liability After Rejecting The
Class Claim of Compound Discrimination

As discussed above, the across-the-board class alleged that 
the hiring and promotion practices of MarAd were illegally geared

68



/ Q /
towards favoring white males at the expense of women and blacks. — ' 
However, in raising this "compound discrimination” claim -- and 
certifying a very broad class to pursue it -- the District 
Court's inquiry should have ended when it rejected the compound 
discrimination theory as not being supported by the proof. At 
that point, plaintiff's "white-maleness" theory of the case was 
defeated and judgment for MarAd should have been entered.

Instead, the District Court effectively bifurcated the 
class, at the relief stage, into race and sex sub-groups -- with 
blacks "proving" discrimination (at least below the GS-13 level) 
but women failing in that goal -- thereby radically changing the 
nature, and the parties' burdens of proof, of the case. See Part
I D, supra. See also U.S. Postal Service v. Aikens, ___ U.S.
___, 103 S. Ct. 1478 (1983) (Aikens); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 252 (1982) (Burdine); Furnco 
Construction Corp. v. Waters, 438 U.S. 567 (1978). Instead of 
defending a "white-maleness" case, MarAd effectively found 
itself, after the fact, on the receiving end of two separate 
class actions, something totally unfair given the across-the-board 
class certification and the trial judge's refusal to modify or

43/ The Court originally noted in its liability ruling that 
pTaintiffs' theory rested on both disparate impact and disparate 
treatment claims. Op. at 27 (JA 227). See Teamsters, supra, 431 
U.S. at 335 n. 15; Hazelwood School District v. United States,
433 U.S. 299, 307 (1977) (Hazelwood). However, the Court later 
noted that the class claims related solely to disparate impact 
issues. 559 F. Supp. at 947 (JA 244).

69



By rulingamend the class at any juncture in the case. —  
against the "compound class," the trial Court's inquiry should 
have ended, with judgment for MarAd. Indeed, having failed to 
meet its burden under Title VII, Burdine, 450 U.S. at 252, and
Aikens, ___ U.S. ___, 103 S. Ct. at 1481-82, the class was
essentially provided a second bite at the liability apple. By so 
proceeding, however, the trial court placed an impermissible and 
almost impossible burden on MarAd, —  ̂ where it had been on 
notice that it was defending a compound discrimination case. 
Such a radical change in the nature of the class -- and the 
claims raised therein -- violates the spirit and intent of Title 
VII as applied to class actions.

As a result, Judge Oberdorfer's conclusion that "it has not 
been demonstrated that there is a separate preference for white 
males at MarAd" should bind the entire class. — ' The trial

44/ Prior to trial, MarAd had maintained that compound discrimi­
nation was not an appropriate theory, citing Deguaffenreid v. 
General Motors Assembly Div., 558 F.2d 840 (8th Cir. 1977). The 
class, of course, asserted that compound discrimination was the 
appropriate theory, relying on Jeffries v. Harris County Action 
Ass1n , 615 F.2d 1025 (5th Cir. 1980), and geared its statistical 
evidence to such a theory. See also Shoben, Compound Discrimination 
The Interaction of Race and Sex in Employment Discrimination, 55 
N.Y.U.L. Rev. 793 (1980).
45/ As noted below, even with this heavy burden MarAd's evidence 
rebutted any inference or presumption of discrimination. See 
Parts II B and C, infra.
46/ Indeed, the trial court's assessment of this statistical 
evidence, especially as it relates to the appropriate compound 
class, should be the law of the entire case. See DeMedina v. 
Reinhardt, 686 F.2d 997, 1007 (D.C. Cir. 1982).

70



judge's further analysis regarding sex discrimination -- which it 
rejected -- or regarding race discrimination -- which it accepted 
-- was strictly surplusage extending far beyond the issues raised 
in the complaint and certified for the compound class.

Consequently, the trial court's decision should be limited 
to its rejection of the compound discrimination claim, with 
judgment entered on MarAd's behalf against the certified, com­
pound class.

B. The District Court Improperly Shifted 
the Burden of Proof to MarAd
1. Plaintiffs' Prima Facie 

Burden Under Title VII

It is beyond dispute that the burden of proving a Title VII 
prima facie case rests squarely on a plaintiff's shoulders.
Aikens, ___ U.S. ___, 103 S. Ct. at 1482; Burdine, 450 U.S. at
252; Board of Trustees of Keene State College v. Sweeney, 439 U.S. 
24 (1978); Furnco Construction Corp. v. Waters, 438 U.S. at
576-78; McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 
(McDonnell Douglas). While this burden is not a heavy one, 
Burdine, 450 U.S. at 253, Trout, 702 F.2d at 1101, and may be 
made by statistics alone, Hazelwood School District v. United 
States, 433 U.S. at 307-08, Trout, 702 F.2d at 1101, or a
cumulation of evidence, Trout, 702 F.2d at 1101, EEOC v. American 
National Bank, 652 F.2d 1176, 1188 (4th Cir. 1981) cert. denied,

71



103 S. Ct. 235 (1982), it always remains with plaintiff. Aikens,
___ U.S. ___, 103 S. Ct. at 1482; Burdine, 450 U.S. at 252. — /

Once a prima facie case is established, there is a "rebut­
table presumption that the employer unlawfully discriminated..."
Aikens, ___ U.S. ___, 103 S.Ct. at 1481, quoting Burdine, 450
U.S. at 254; McDonnell Douglas, 411 U.S. at 802. However, only 
where the prima facie case has been established does this "rebut­
table presumption" apply. There is never a shift of the ultimate 
burden of proof. Burdine, Aikens. It is then up to the defend­
ant to offer evidence responding to the presumption of discrimi­
nation. Aikens, ___ U.S. ___, 103 S. Ct. at 1482. In a statis­
tical case, such as this, this rebuttal evidence may either be in 
the form of (a) a legitimate, non-discriminatory explanation for 
the observed statistical disparity (established in plaintiffs' 
proof), or (b) defendants' raising a genuine issue of material 
fact concerning the "accuracy of the picture painted by the 
plaintiff's statistics." Trout, 702 F.2d at 1101, Davis v.
Calif ano, 613 F.2d at 963; Teamsters, 431 U.S. at 360. Indeed 
this Court has recently held

47/ Burdine is clearly applicable in the class action setting. 
See, Falcon; see also Croker v. Boeing Co., 662 F.2d 975 (3d Cir. 
1981) and Piva v. Xerox Corp., 654 F.zd 591 (9th Cir. 1981).

72



To prevent the latter course [raising statisti­
cal issues of fact] from becoming an incompre­
hensible battle of the experts, several 
general principles should guide a court's 
assessment of the sufficiency of the plain­
tiff's prima facie case. The most important 
of these principles is that, while plaintiffs1 
must demonstrate to the court's satisfaction 
that their statistical comparisons are 
meaningful, they need not present a perfect 
statistical analysis at the prima facie case 
stage.

Trout, 702 F.2d at 1101. (Emphasis added).
Finally where, as here, a plaintiff employs statistical

evidence to prove discrimination against a class consisting of "a
wide variety of occupational categories," a prima facie case will
not be established unless those statistics address the "minimum
objective qualifications" necessary for one to be eligible for
hiring and/or promotion. Davis v. Califano, 613 F.2d at 964;
Valentino, 674 F.2d at 67-68; Trout, 702 F.2d at 1102; Hetrocare
v. WMATA, 679 F.2d 922 (D.C. Cir. 1982). Indeed

"'when special qualifications are required to 
fill particular jobs' ... proof that does not 
center on those 'who possess the necessary 
qualifications' falls short."

Trout, 702 F.2d at 1102, Valentino, 674 F.2d at 67-68; Hazelwood, 
433 U.S. at 308, n. 13. See also EEOC v. Federal Reverse Bank of 
Richmond, 698 F.2d 633, 657-60 (4th Cir. 1983). In addition, 
those statistics can not attribute to the defendant "responsibility 
for the employment decisions of other agencies over which it had 
no control," Trout, 702 F.2d at 1105. — ^

48/ This is especially true where, as here, 0PM selection 
regulations are the focus of the Court's ruling regarding hiring 
practices. See Part II-C, infra.

73



2 . The Failure of the Class to 
Establish A Prima Facie Case

Plaintiffs' prima facie proof rested on the anecdotal 
testimony of various class members and on statistical studies 
prepared by experts (who also testified). However, the Court's 
ultimate rejection of this proof indicates that plaintiffs never 
established the requisite prima facie case for either a compound 
discrimination case or race/sex discrimination cases. As such, 
the District Court's legal conclusion that the class had "demon­
strated a significant difference in the treatment of whites and 
blacks at MarAd" -- e.g., an unrebutted prima facie case -- is 
clearly erroneous. Trout, 702 F.2d at 1101; See Pullman-Standard 
v. Swint, 456 U.S. 273 (1982)(reviewing court not bound by erroneous 
trial court conclusions of law); and Inwood Laboratories, Inc, v. 
Ives Laboratories, Inc., ___ U.S. ___, 102 S. Ct. 2182, 2189,
n.15 (1982)(reviewing court not bound by factual findings that 
result from the application of incorrect legal principles).

First, as noted above, the District Court totally rejected the 
compound class discrimination claim, noting that plaintiffs' only 
real evidence to support this claim was their regression analy- 
sis, — purporting to show a separate "white-maleness" effect on

49/ Without supportive anecdotal testimony, the individual 
plaintiffs' prima facie disparate treatment case could only be 
established upon a showing of "gross statistical disparities. . ." 
Hazelwood, supra, 433 U.S. at 307; Teamsters, supra, 431 U.S. at 
339. Under a disparate impact claim, only evidence showing 
employment practices "disqualifying substantially disproportion­
ate numbers" of eligible persons would help establish a prima 
facie case. Washington v. Davis, 426 U.S. 229, 246 (1976) ; 
Albemarle Paper Co. v. Moodyj 422 U.S. 405, 425 (1975); Griggs v. 
Duke Power Co., 4 01 U.S"! 424, 430-32 (1971). In its later Proposed 
Injunction opinion, the Court noted that the class claims only 
focused on the disparate impact theory. 559 F. Supp. at 948.
(JA 245).

74



effect on salary. Indeed, the Court's total rejection of plain­
tiffs' anecdotal testimony —  ̂ (regarding alleged discriminatory 
promotional practices) —  which it noted offered "little help" to 
the case -- was such that it did not even lead it to suspect 
discrimination where the statistical evidence was lacking. Op. 
at 26 (JA 226).

Second, the Court determined that "with few exceptions those 
[statistics] presented by [MarAd] are more reliable" than those pre­
sented by the class. Op. at 28 (JA 228). With this finding, it 
is clear that plaintiffs' prima facie case was never established 
in the first instance. Indeed, this is especially evident given 
the utter failure of plaintiffs to present evidence sufficiently 
addressing the requisite "minimum objective qualifications" for 
applicants or promotions to career ladder or professional posi­
tions. —  ̂ See Valentino, 674 F.2d at 68; Davis, 613 F.2d at 964.

Third, plaintiffs' use of a disparate impact analysis to 
challenge MarAd's entire selection process was clearly inappro­
priate. See Pouncy v. Prudential Ins. Co. of America, 668 F.2d 
795 (5th Cir. 1982) (Pouncy) ; EEOC v. Federal Reserve Bank of
Richmond, supra, 698 F.2d 663; Ste. Marie v. Eastern R. Ass'n,

50/ The total lack of credible personal testimony, which normally 
pTays a "vital" role in Title VII class cases, is remarkable 
given the lower court's ultimate finding of partial class lia­
bility. See Valentino, supra, 674 F.2d at 68-69; Teamsters, 431 
U.S. at 33^39^
51/ Indeed the statistical studies prepared by plaintiffs' 
experts did not even address the wide range of requisite minimum 
objective qualifications necessary for many of the positions at 
MarAd. See generally PX 4, 155, 173, 179 and 180.

75



650 F.2d 395, 400-01 (2d Cir. 1981). But see Wang v. Hoffman,
694 F.2d 1146 (9th Cir. 1983). —  ̂ Indeed, such a "wide range 
attack" on the cumulative effect of MarAd's "facially neutral" 
employment practices can not form the basis of a disparate impact 
prima facie case where, as the Court ruled here, the challenged 
practice or policy involves the applications of objective and 
subjective criteria.

A statistical analysis challenging MarAd's employment 
practices must focus on the particular employment practices in 
which discrimination is alleged so that the defendant may rea­
sonably respond to the specific charge, especially in order to 
show the lack of reliability in such statistics. Pouncy, 668
F.2d at 800-801. In the present case, plaintiffs' statistical 
analysis concededly failed to focus on any specific practice. 
Indeed, the eligibility for promotion determination involves both 
obj ective neutral tests (e.g., citizenship, time-in-grade, etc.) 
as well as some subjective application of the X-118 (e.g.,
"appropriate experience"). Plaintiffs' statistical impact 
analysis utterly failed to address these contrasting factors. 
However, even if the class proof was somehow cast under a disparate 
treatment theory, the proof simply could not support a liability

52/ In a disparate impact case the appropriate inquiry is 
whether a "facially neutral" employment practice or policy has a 
statistically significant, unjustifiable, disproportionate impact 
on a protected group. See Dothard v. Rawlinson, 433 U.S. 321 
(1977). Disparate treatment "rests on charges that 'the employer 
simply treats some people less favorably than others,'" (Valentino 
674 F.2d at 60 n.l, quoting Teamsters, 431 U.S. at 335 n.15), 
with motive an essential element of plaintiff's proof. The 
methods of proving each theory are not interchangeable. Pouncy,
668 F.2d at 800.

76



finding where: (1) the data relied upon by the class fails to
isolate the effect of subjective, judgmental decisions; (2) there 
was no finding of a "long lasting" or "gross disparity" in 
plaintiffs' statistical proof (Teamsters, 431 U.S. at 340 n.20); 
and (3) none of plaintiffs' individual testimony was considered 
credible. Ste. Marie v. Eastern R. Ass'n, 650 F.2d at 405-07.

Despite this failure, the Court declined to follow Pouncy, 
stating that it was inconsistent with prior disparate impact 
cases in this Circuit. Op. at 27 (JA 227). See Talev v. Reinhardt, 
662 F.2d 889 (D.C. Cir. 1981) and Clark v. Alexander, 489 F.
Supp. 1236 (D.D.C. 1980). However, neither of the latter two 
authorities addressed the type of "wide range attack" on facially 
neutral practices which the Fifth Circuit in Pouncy found inappro­
priate for a disparate impact theory. The Court's rejection of 
Pouncy, and its acceptance of plaintiffs' flawed disparate impact

53/analysis, was inappropriate as a matter of law. —

53/ At the same time it rejected the Fifth Circuit's reasoning in 
Pouncy, the District Court accepted that same Circuit's recent 
holding that where only portions of the employee selection 
process are shown to have a disparate impact, only those parts 
require validation. Op. at 27 (JA 227). See Rivera v. City of 
Wichita Falls, 665 F.2d 531 (5th Cir. 1982). However, the trial 
judge's ruling is itself contradictory -- plaintiffs are permitted 
to mount an across-the-board disparate impact attack (without 
focusing on any specific employment practices) while, at the same 
time, they are only entitled to relief where particular parts of 
the selection process indicate a disparate impact. The only 
conclusion a party can therefore draw is that one may mount an 
across-the-board impact challenge but never obtain appropriate 
relief in such a case. Such an exercise in futility seems to be 
irrational and a waste of judicial resources. This is especially 
troubling where, as here, the Court nevertheless ordered very 
extensive, selection-wide validation of "facially neutral" 0PM 
standards. 559 F. Supp. at 948-49 (JA 245-46).

77



Because the class never set forth a prima facie case, the 
Court's liability finding regarding race discrimination can not 
stand. Consequently the class members' entire race discrimina­
tion case, lacking any credible anecdotal or statistical proof, 
should have been dismissed, with judgment entered on behalf of 
MarAd. — ^

C. According to the District Court's Own 
Findings MarAd's Rebuttal Evidence 
Entitled It To Judgment______________

While it is clear that the class members totally failed to 
establish a prima facie case, it is beyond dispute that the 
rebuttal evidence put on in MarAd's defense was sufficient to 
defeat any "presumption of discrimination" and entitled MarAd to 
judgment on the merits. Aikens, Burdine.

54/ Given the Court's basis for finding race discrimination, 
plaintiffs' failure to set forth a prima facie case is even more 
troublesome. The OPM X-118 eligibility standards upon which the 
Court placed so much emphasis were concededly never challenged by 
the class at any point in the case. See Op. at 35 (JA 235). 
Indeed, plaintiffs' concededly failed to exhaust the administra­
tive remedies available to challenge practices (i.e., the X-118) 
"administered or required" by the former Civil Service Commission 
(now OPM) pursuant to 5 C.F.R. , Part 772 Subpart D (1977). 
Instead, plaintiffs filed their administrative complaint pursuant 
to 5 C.F.R. § 713.201 et seq. (1977) (now listed at 29 C.F.R. 
Part 1613), challenging a ''policy or practice which the agency 
has authority to rescind or modify." See Brown v. General 
Services Administration, 425 U.S. 820 (1977) and Kizas v. Webster, 
707 F. 2d 524 (DTtn Clr. 1983). See also C.S. Ralston, The 
Federal Government as Employer-. Problems and Issues in Enforcing 
the Anti-Discrimination Laws, 10 Ga.L.Rev. 717, 725 n.49 (1976) .

Consequently, the Court's conjecture that, if those standards 
had been validated by MarAd, there probably would not have been a 
showing of discrimination, can not take the place of plaintiffs' 
burden of proof. In any event, even if the class had challenged 
these standards, it is clear as a matter of law that MarAd can 
not be held accountable (in a disparate impact case) for a 
non-party's (OPM) facially neutral, binding standards. See, 
Trout, 702 F.2d at 1105.

78



First, the compound discrimination claim, rejected by the 
District Court as not having any evidentiary basis, is alone 
sufficient to entitle MarAd to judgment. As noted above, the 
rejection of the across-the-board, "white-maleness” theory of 
discrimination is what this class action was all about.

Second, the anecdotal evidence introduced by MarAd presented 
extensive proof that any possible significant statistical disparity 
-- which had not even been established by the class members 
"unreliable" statistics -- was based on a variety of legitimate, 
nondiscriminatory reasons. For instance, many of the hiring and 
promotion decisions were based on minimum eligibility standards 
(e.g., OPM X-118) dictated by another agency. Indeed, it is 
undisputed that MarAd must follow these standards when, for 
instance, it assigns an initial grade placement for new or 
transferred employees. Trout, 702 F.2d at 1105. Consequently, 
administrative personnel might receive a higher or lower grade 
based on education, experience and training. MarAd does not set 
these minimum standards and can not be held accountable for the 
effect they had on hiring and placement practices.

In addition, the District Court's ruling on liability was 
concededly not founded on the adequacy of plaintiffs' proof. 
Instead, it focused on MarAd's "failure" to validate the OPM 
X-118 standards. In the face of MarAd's showing that it was 
unalterably bound by the OPM minimum eligibility standards the 
District Court unexplicably insisted that,

79



[i]t is quite conceivable that, had [MarAd] 
undertaken a validation study, the MarAd 
selection procedures would have been vali­
dated and the statistics which resulted would 
have rebutted any inference of disparate 
treatment.
[I]t is clear that in the face of [MarAd's] 
unwillingness to offer anything in the way of 
an attempt at validation, the Court cannot 
presume validity in the face of a showing of 
substantial adverse impact.

Op. at 35-36 (JA 235-36) (emphasis added). Consequently, but for 
validation of the alleged subjective manner in which it applies 
the OPM standards, the Court expressly ruled that MarAd had
successfully rebutted any presumption of discrimination, the 
class had failed to carry its burden of proof and MarAd was 
entitled to judgment on the merits. The District Court's ruling 
to the contrary, and its subsequent order that MarAd conduct an 
extensive and costly validation (among other relief) is wholly 
inconsistent with its findings and unsupported by the record.

Third, both the Court's holding and the record clearly shows 
that the statistical evidence proffered by MarAd —  ̂ raised

55/ As noted, the MarAd's statistical analyses were tracked 
along two separate lines of inquiry -- competitive appointments 
and noncompetitive appointments. See DX 119 and 120. The non­
competitive study demonstrated that whatever disparities which 
might exist below the GS-12 level between appointments of whites 
and appointments of blacks was not such as to be significant. 
This is especially compelling given the Court's rejection of 
MarAd's expert's analysis that the only proper statistical 
comparison was between "eligibles" and "selectees" (which showed 
no significant disproportionate impact on blacks). (DX 120).
(FOOTNOTE CONTINUED ON NEXT PAGE)

80



genuine issues of material fact regarding the accuracy of plain­
tiffs' "unreliable" statistics. Having raised such issues of 
fact, the ultimate burden to establish that these facts were not 
genuinely in dispute rested squarely with the class, whose proof 
the District Court found totally unconvincing. Instead, the 
District Court generally concluded that plaintiffs had demonstrated . 
a "significant disparity" between the rates of promotion of 
blacks and whites based on an analysis of applicants and selectees, 
rather than eligibles and selectees. This ruling despite MarAd's 
raising issues of fact regarding the significance of any disparity 
(especially where such statistics addressed an uncertified 
subclass) and the class members' failure to analyze how promo­
tions in the extremely broad class (even if limited only to 
promotions of all employees) were attributable to minimum objec­
tive qualifications. — ^

337 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)
Instead, the Court compared all applicants against selectees, 
thereby artificially creating a disproportionate comparison based 
on a group of applicants lacking the minimum objective qualifica­
tions necessary to be considered in such a statistical analysis. 
Valentino, supra.

Moreover, the competitive analysis also found no statistical 
disparities between white and black appointments, with the 
exception of an underselection of blacks from applicants at GS-12 
and below. Given the Court's finding that there was no evidence 
of sex discrimination this sole, minor dent in MarAd's proof was 
hardly enough to prove plaintiffs' case. Consequently, if the 
Court found MarAd's statistics more reliable, it should have 
found accordingly --no showing of racial discrimination.
56/ See Id.

81



For all of these reasons, the District Court's liability 
ruling regarding race discrimination is clearly erroneous and 
must be reversed. — ^

III. The District Court's Relief Order, Requiring 
A Validation Study, Was Erroneous____________

As discussed above, the District Court ordered MarAd to validate
. . . all standards, methods, and procedures 
used to select persons for positions within 
MarAd at grades 12 and below in compliance 
with the Uniform Guidelines for Employment 
Selection and the Federal Personnel Manual.

Inj . at 5 (JA 258). Moreover, the validation process is to
include a "job analysis" for each position for which validation
is required by regulation or administrative ruling. Thereafter,
the results of the validation studies are to be used by MarAd in
preparing vacancy announcements, rating and ranking criteria and
performances appraisal standards. However, even assuming that
the District Court's liability order (including its disparate impact
analysis) remains intact, this relief is wholly inappropriate.

In Trout, 702 F.2d at 1105-14, this Court ruled that an agency 
could not be held responsible for initial grade placements dictated 
by the very facially neutral standards subject to validation -- 
including 0PM X-118 (DX 2). Consequently, the Court's decision 
to order a validation study was beyond the scope of the case -- 
the standards are not established by MarAd but by 0PM, a non-party.

57/ While the District Court's findings should point to judgment 
Tor MarAd, it is also puzzling why the Court failed to specify 
its liability conclusions according to a break-down of the 
various sub-groups (e.g. competitive v. non-competitive, etc.). 
See Valentino, Davis. As a result, the Court's findings regard­
ing liability, lacking any specific analysis, are themselves 
deficient.

82



IV. The District Court's Relief Order,
Providing for Individual Class Claims 
Between August 1, 1975 and January 25, 
1983, Was Overbroad__________________

In in Final Injunction, the Court ruled that the prevailing 
class members are to be notified that "they may be entitled to 
relief for denial of selection at or below the GS-12 level during 
the period from August 1, 1975, to January 25, 1983." Inj. at 10 
(JA 263). However, the inclusion of claims relating to the 
period from August 1, 1975 to March 21, 1977 was clearly inappro­
priate .

The appropriate period for individual relief in federal 
sector class cases was settled dispositively in Trout 702 F.2d at 
1104, where the permissible scope of individual claims after a 
finding of discrimination was held to be governed by the adminis­
trative limitations period:

In this case, the administrative complaint on 
which the class allegations rest was not 
filed until June 21, 1972. Under the Civil 
Service Regulations in effect at that time, 
all claims originating more than fifteen days 
prior to that complaint are timebarred 
(citations omitted).

Id. at 1104. See also Valentino, 674 F.2d at 65. This Court in 
Trout determined that invocation of the present effect of past 
discrimination theory to revive stale claims was unavailing 
because the argument was "flatly inconsistent" with the Supreme 
Court's pronouncements in Hazelwood, 433 U.S. at 309-10, and 
United Air Lines Inc, v. Evans, 431 U.S. 533, 558 (1977). See
Trout, 702 F.2d at 1104.



At no point in the present case did the District Court ever
credit any statistics relating to the period prior to 1977 and,
accordingly, no finding of liability could be sustained for that
period. Moreover, the individual named plaintiffs did not file
their formal administrative complaint until August 4, 1977. The
regulations then applicable to class complaints, 5 C.F.R. §713.201
(1977) (now C.F.R. §1613.602), permitted the filing of complaints
within 90 days of the event complained of and, thereafter, called
for 30 days of EEO counseling and 15 days to file a formal
complaint. Accordingly, March 21, 1977, (135 days prior to
August 3, 1977), should be the earliest opening date for filing

58 /any individual class claims. — '
V. Conclusion

For all the above reasons, the class certification should be 
reversed, with instructions to dismiss all class claims. In the 
alternative, the District Court's finding of class-wide race 
discrimination should be reversed, with instructions to enter

55/ As an additional aspect of its relief order the District 
Court required that, during the individual class relief hearings, 
MarAd must "prove by clear and convincing evidence that the same 
[individual] employment decisions would have been made even in 
the absence of the claimed [individual] discrimination." Inj. at 
11 (JA 264). Appellants acknowledge that this Court has recently 
approved this "clear and convincing" burden. See Trout, 702 F.2d 
at 1107. However, for the reasons stated in the District Court 
(R at 205, 206, 215, 224, 239), MarAd respectfully disagrees with 
this standard and, for the sole purpose of preserving the issue 
in the present litigation, objects thereto.

84



judgment for appellants. In the alternative, the District 
Court's relief orders should be modified accordingly.

Respectfully submitted,

STANLEY S. HARRIS, 
United States Attorney.

ROYCE C. LAMBERTH,
R. CRAIG LAWRENCE,
JOHN H. E. BAYLY, JR.,
STUART H. NEWBERGER,
Assistant United States Attorneys.

OF COUNSEL:
TIMOTHY SHEA
Office of the Chief Counsel
Maritime Administration
U.S. Department of Transportation

85



r

a d d e n d u m



4 2  U . S . C . §  2 0 0 0 e - 2 ( a )

)

§  2 0 0 0 e * * 2 .  Unlawful employment practices

E a p l a x t r  p r a c t ic e *

(a) It shall be an unlawful employment practice for an employer—
( 1 ) to fail or refuse to hire or to discharge any individual, or 

otherwise to discriminate against any individual with respect to 
his compensation, terms, conditions, or privileges of employ­
ment, because of such individual’s race, color, religion, sex, or 
national origin; or

(2) to limit, segregate, or classify his employees or appli­
cants for employment in any way which would deprive or tend 
to deprive any individual of employment opportunities or other­
wise adversely affect his status as an employee, because of such 
individual’s race, color, religion, sex, or national origin.

A-l



4 2  U . S . C .  §  2 0 0 0 e - 5 ( e )

T t a e  ( o r  f lU a g  c U r | t > i  t im e  ( o r  o o rr le e  o(  n o tic e  o (  c h a r g e  
o n  r e o g o a g e n ti  ( t l l a g  o (  c h a r g e  fcy C o a n l u l o o  w ith  

S t a t e  o r  lo c a l  a g e n c y

(e) A charge under this section shall be filed within one hundred 
and eighty days after the alleged unlawful employment practice oc­
curred and notice of the charge (including the date, place and cir­
cumstances of the alleged unlawful employment practice) shall be 
served upon the person against whom such charge is made within 
ten days thereafter, except that in a case of an unlawful employ­
ment practice with respect to which the person aggrieved has ini­
tially instituted proceedings with a State or local agency with au­
thority to grant or seek relief from such practice or to institute 
criminal proceedings with respect thereto upon receiving notice 
thereof, such charge shall be filed by or on behalf of the person ag­
grieved within three hundred days after the alleged unlawful em­
ployment practice occurred, or within thirty days after receiving no­
tice that the State or local agency has terminated the proceedings 
under the State or local law, whichever is earlier, and a copy of 
such charge shall be filed by the Commission with the State or local 
agency.

A-2



4 2  U . S . C .  §  2 0 0 0 e - 5 ( f )

dm «*»«■ **
, H .t e  « e -» « r .r y  •»  ' "  ! / . *  l  .ltV d « . t « .  — r . . .  d r.iK o.tlo n  . f

- »« -  M- ~
• *  « " '  W > l . « - « t  of — tor

£  s s s r ^ S s r  r r r r ;agency, or political subdivision named in the charg • ,iti.
a respondent which is a yoveniment, yovernmenul ay y, *
*.■  subdivision, if  the Commisei.n ^ “  cepUbU ,o the  ̂ Commis-

The person or persons ayynuvud sh .ll have the n E

subsection* (b)^ot  th i^ e ctio n  is dismissed by the

2 £ £ * S £ 3  any p ^ i o L f ^ e ^ ^ -  
(d) of this section, whichever is later, the General has not
a civil action under this section or the Attorn^  governmental 
filed a civil action in a case involving a governme t, g d
agency, or political subdivision, or the Commission has not entered
into a conciliation ayreement caae involving
party, the Commission, or the Attorney Ge a„hdivision shall
a government, governmental agency, or po ^
so notify the person aggrieved and within ninety c ^  “ e§^ .
ing of such notice a civil action may be brought ag ain * 1the^respo 
dent named in the charge (A) by the person cUiming; to. be ag 
Sieved or (B) if such charge was filed by a member of the Comm13 
sion, by any person whom the charge aUeges was ag ^ev ed  by ^  
alleged unlawful employment practice. Up P d j ust(
complainant and in such circumstances as the*:ourt m y c1 J
the court may appoint an attorney for such 7
authorize the commencement of the action without the payment 
fees, costs, or security. Upon timely application the^ourt m ^  &
its discretion, permit the Commission, or■ « nolitical sub­
case involving a government, governmental agencJ  P. th t the 
division, to intervene in such civil action upon certif^ation that Ue 
case is of general public importance. Upon r e q u - than sixty 
in its discretion, stay further proceedings or nroceedings de­
days pending the termination of State or oca . efforts
scribed in subsection (c) or (d) of this section or further efforts 

r^mmiaamn t/> nhtain voluntary compliance.

A - 3

I** ‘
 f



4 2  U . S . C .  §  2 0 0 0 e - 5  ( g )

*

iKjvaetUui appropriate aftflrmatlre actio-1 equitable roUcfi accraal •< 
back pan redaetlra •( back part limitation* aa JadleUI aiders

(g) I f  the court finds that the respondent has intentionally en­
gaged in or iB intentionally engaging in an unlawful employment 
practice charged in the complaint, the court may enjoin the respon­
dent from engaging in such unlawful employment practice, and or­
der such affirmative action as may be appropriate, which may in­
clude, but is not limited to, reinstatement or hiring of employees, 
with or without back pay (payable by the employer, employment 
agency, or labor organisation, as the case may be, responsible for

the unlawful employment practice), or any other equitable relief as 
the court deems appropriate. Back pay liability shall not accrue 
from a date more than two years prior to the filing of a charge with 
the Commission. Interim earnings or amounts earnable with rea­
sonable diligence by the person or persons discriminated against 
shall operate to reduce the back pay otherwise allowable. No order 
of the court shall require the admission or reinstatement of an indi­
vidual as a member of a union, or the hiring, reinstatement, or pro­
motion of an individual as an employee, or the payment to him of 
any back pay, if such individual was refused admission, suspended, 
or expelled, or was refused employment or advancement or was sus­
pended or discharged for any reason other than discrimination on 
account of race, color, religion, sex, or national origin or in viola­
tion of section 2000e-3(a) of this title.

A - 4



42 U.S.C. S 2000e-16.

f  2 0 0 0 « - 1 6 .  Employment by TedertJ G overnm ent-D ie-
crim inatory practice* prohibited; ena 

‘ payees or applicant* for employment wb- 

> '  Joct to coverage
( . )  All personnel action. effecting employee, or f®1

employment (except with regard to alien, employed outside the lim­
it , of (be United State.) in military department, a .  definedJ° *  , 
ttan 102 of Title 6 in executive agencies (other than the General 
Accounting S i c e )  a .  defined in .ection 106 of Title B inciuding 
employee, and applicant, for employment who are paid fro“  “on‘£  
propriated fund.), in £ •
*1 Rate Commiaaion, in pcUtive aerrice. and in

S K S T - a S S f 3 S T w  -a. <r  * - - »
baoed on race, color, religion, aex. or national origin.

citii *a«*i ««*»•**
•««.i ■ ■ * * * !  r r y U w  h l f  U 4  o * i o « t i « >  •< « * * '  1

& a tb » r ltr  * t  U k r t r l u  •<

s s t j s t ^  r M M & s

S S £ 5Sf!iSi ?“  .»ch  * * — « .  « - *  -

■ S r r s  s s m s s s  v . s s
ployment opportunity.

A - 5



/
?)

( C o n ' t )

The head of oaeh such department, ageney, » r unit shall comply 
with aueh rule*, regulations, orders, and instructions which shall la- 

*<lude a provision that an employee or applicant for employment 
shall be notified of any final action taken on any complaint of dȤ- 
eriminstien filed by him thereunder. The plan submitted by each 
department, agency, and unit shall include, but not be limited U>—

(1 ) provision for the establishment of training and education 
programs designed to provide a maximum opportunity for em­
ployees to advance ao as to perform at their highest potential;
and'

( t )  a description of the qualifications in terms of training 
and experience relating to equal employment opportunity for 
the principal and operating official* of each such toep«rtment, 
agency, or unit responsible for carrying 
meat opportunity program ard of the allocation of perronuel 
and resource* proposed by such department, agency, or unit to 
carry out its equal employment opportunity program.

With respect to employment in the Library of (fcngrece, authorities 
granted in this subsection to the Civil Service Commission shall be 
exercised by the Librarian of Congress.

X.
Ctrl! »T •* Ut *

f r i t T u o i l  <lur f»» Srl»*l»e •* •«**«■« kM< , f  -  
k .  t f ts tr , *r u ((  m

tc) Within thirty days of receipt of notice of final action taken 
by a department, agency, or unit referred to in subsection (a ) of 
this section, or by the Civil Service Commission upon an appeal 
from a decision or order of auch department, agency. or unn on a 
complaint of discrimination based on race, color, religion, sex or na­
tional origin, brought pursuant to subsection (a ) of ‘ Ma sccUon. Ex­
ecutive Order 11478 or any aucceeding Executive orders, or after 
cne hundred and eighty days from the filing of the initial ebarge 

.with the department, agency, or unit or with the Civil Service Com- 
mission on appeal from a decision or order of such 
■ cgency, or unit until auch time as final action mey be taken *  » 
rertm ent, agency, or unit, an employee or applicant for employment. 
If agrrieved by the final disposition of his complaint, or by the fsil- 
” «  to 'tike final actio- ou m . complaint, may file a civil action a . 
provided In section 2000c-5 of this title, in which civil1 action the 
head of the department, agency, or unit, as appropriate, shall b< the
defendant

|~tf* SOOO«-S(f) <*> •» tlUe t« «1»H •«<*•*•
fd ) The previsions of section 20C0e-E(f) through (li> of this ti­

tle, as applicable, shall tovern civil actions brought hereunder.

- s s s u e a x  s s s  r = s  i z z r z z s r .
(c )  Nothing contained in this Act shall relieve any Government 

agency or official of its or his primary responsibility to * ,3Urc n0”‘ 
discrimination in employment as required liy the “ J
statutes or of its or his responsibilities under “ *ecLUvc ° ‘ dc‘ 
relating to equal employment opportunity in the Federal Govern­
m ent
PubX. 88-352, Title VII, | 717. as added Pub.L. 92-261. g 11, Mar. 
24,1972,86 S ta t U L

A - 6



R u l e  2 3 ,  F e d e r a l  R u l e s  o f  C i v i l  P r o c e d u r e

Rule 23. Class Actions
(a) Prerequisites to a Class Action. One or  

m ore m em bers .o f  a  class m ay sue or be sued as  
rep resen tativ e  parties on behalf of all only if  (1 ) th e  
class is so num erous th a t  joinder of all m em bers is 
im practicable, (2) th ere  a re  questions of law  or fa c t  
com m on to  th e class, (3 ) the claim s or defenses of 
th e rep resen tative p arties are  typical of the claim s 
o r defenses of the class, and (4 ) th e  rep resen tative  
p arties will fairly  and adequately p ro tect the in ter­
e sts  of th e  class.

(b) Class Actions Maintainable. An action m ay  
be m aintained as a  class action if the prerequisites 
of subdivision (a ) are  satisfied, and in addition:

(1 ) th e prosecution of sep arate  actions by or 
ag ain st individual m em bers of the class would cre­
a te  a  risk of

(A) inconsistent or varyin g adjudications w ith re­
spect to  individual m em bers of th e class which 
would establish incompatible standards of conduct 
fo r the p arty  opposing the class, or

(B ) adjudications with resp ect to  individual m em ­
bers o f th e class which would as a  p ractical m a tte r  
be dispositive of the in terests of the o th er m em bers 
n ot p arties to  th e adjudications or substantially  
im pair or impede th eir ability to p rotect their in ter­
e sts ; or

(2 ) the p arty  opposing the class has acted  or 
refused to a c t  on grounds generally applicable to  
th e class, thereby m aking appropriate final injunc­
tive  relief or corresponding d eclaratory  relief with  
resp ect to  the class as a  whole; or

(3 ) the cou rt finds th a t the questions of law  or 
fa c t  common to the m em bers of the class predomi­
n ate  over an y questions affectin g  only individual 
m em bers, and th a t a  class action is superior to  oth er  
available methods for the fa ir  and efficient adjudi­
cation of the controversy. The m atters  pertinent to  
the findings include: (A ) the in terest of m em bers of 
file class in individually controlling the prosecution  
o r defense of sep arate  actions; (B ) the e x te n t and  
n atu re of any litigation concerning th e controversy  
already com m enced by or again st m em bers o f the  
class; (C ) th e desirability or undesirability of con­
cen tra tin g  the litigation of the claims in the p artic­
u lar forum ; (D ) the difficulties likely to  be encoun­
tered  in the m anagem ent of a  class action.

(c) Determination by Order Whether Class Ac­
tion to be Maintained; Notice; Judgment; Ac­
tions Conducted Partially as Class Actions.

(1) A s soon as practicable a f te r  th e comm ence­
m en t of an action brought as a  class action, the  
co u rt shall determ ine by ord er w hether it is to  be so 
m aintained. An ord er under this subdivision m ay  
be conditional, and m ay be altered  or amended  
before th e decision on the m erits.

(2 ) In an y class action m aintained under subdivi­
sion (b)(3), th e cou rt shall d irect to  the m em bers of 
th e  class th e best notice practicable under the cir- 
cum stances, including individual notice to  all m em - 
bers who can be identified through reasonable e f­
f o r t  The notice shall advise each m em ber th a t (A ) 
th e cou rt will exclude him from  the class if he so 
requests by a  specified d ate ; (B ) the ju d g m e n t  
w h eth er favorable or n o t  will include all m em bers

who do n ot request exclusion; and (C ) an y m em ber 
who does n ot request exclusion m ay, if he desires, 
e n te r an appearance through his counsel.

(3 ) The judgm ent in an action m aintained as a  
class action under subdivision (b X l) or (bX 2), w heth­
e r  or not favorable to  the class, shall include and 
describe those whom the cou rt finds to  be m em bers 
of the Hoss The judgm ent in an action m aintained  
as a  class action under subdivision (bX 3), w hether or  
n ot favorable to the class, shall include and sp ed fy  
or describe those to whom the notice provided in 
subdivision (cX 2) w as directed, and who have not 
requested exclusion, and whom the co u rt finds to be
««AfviKoM r\f tKp 5ARS.

(4 ) W hen appropriate (A ) an action m ay be 
brou ght or m aintained as a  class action w ith resp ect 
to  p articu lar issues, o r (B ) a  class m ay be divided 
into subclasses and each subclass trea ted  as a  class, 
and the provisions of this rule shall then be con­
strued  and applied accordingly.

(d) Orders in Conduct of Actions. In th e con­
d u ct of actions to which this rule applies, the cou rt 
m ay m ake appropriate orders: (1) determ ining the  
course of proceedings or prescribing m easures to  
preven t undue repetition or com plication in th e  
presentation  of evidence or argu m en t; (2) requir­
ing, for th e  protection of the m em bers of the class 
or otherw ise for the fa ir  conduct of th e action, th a t  
notice be given in such m anner as the cou rt m ay  
d irect to  som e or all o f the m em bers of any step in 
th e action, o r of the proposed e x te n t of the ju d g­
m en t, o r of the opportunity of m em bers to  signify  
w hether th ey  consider the representation  fa ir  and 
adequate, to  intervene and present claim s or defens­
es, o r otherw ise to com e into the action ; (3) impos­
ing conditions on the representative p arties or on 
in terven ors; (4) requiring th a t the pleadings be 
am ended to  elim inate therefrom  allegations as to  
rep resen tation  of absent persons, and th a t  the a c ­
tion proceed accordingly; (5) dealing w ith sim ilar 
procedural m atters . The orders m ay be combined 
w ith an ord er under Rule 16, and m ay be altered  or 
am ended as may be desirable from  tim e to  tim e.

(e) Dismissal or Compromise. A class action  
shall not be dismissed or compromised w ithout the  
approval of the cou rt, and notice of the proposed 
dismissal or compromise shall be given to  all m em ­
bers of the class in such m anner as th e cou rt directs.
(As amended Feb. 28, 1966, eff. July 1, 1966.)

A - 7



5  C . F . P . .  P a r t  3 0 0 ,  S u b p a r t  A  ( § 3 0 0 . 1 0 1  -  . 1 0 4 )  ( 1 9 7 7 )

PART 300— EMPLOYMENT 
(GENERAL)

Subpart A — Employment Practice*

Sec.
300.101 Purpose.
300.102 Policy.
300.103 Basic requirements.
300.104 Appeals, grievances and com­

plaints.

Subpart I — (Reserved]

Subpart A— Employment Practice*

§300.101 Purpose.
The purpose of th is subpart is to es­

tablish principles to  govern, as nearly  
as is adm inistratively feasible and
practical, th e  em ploym ent p ractices of
the Fed eral G overnm ent generally, 
and of individual agencies, th a t affect 
the recruitm en t, m easurem ent, r* 1} * '  
ing, and selection of individuals for 
initial appointm ent and com petitive  
promotion in th e  com petitive service 
or in positions in th e  governm ent of 
the D istrict of Columbia required to  
be filled in th e sam e m anner th a t posi­
tions in th e com petitive service are  
filled. F o r  th e  purpose of this subpart, 
the term  "em ploym ent practices in­
cludes th e  developm ent and use of e x ­
aminations. qualification standards, 
tests, and o th er m easurem ent instru­
ments.
'.36 FR 15447. Aug. 14. 19711

§300.102 Policy.
This subpart is directed to imple­

mentation of th e  policy th a t com peti­
tive em ploym ent practices.

(a) B e p ractical in ch aracter and 
far as possible relate  to  m atters th a  
fairly test th e  relative capacity  and fit­
ness of candidates for th e  jobs to be 
filled;

(b) Result in selection from among 
the best qualified candidates;

(c) Be developed and used without 
discrimination because of race, color, 
religion, sex, age, national origin, par­
tisan political affiliation or other non­
merit grounds; and

(d) Insure to the candidate opportu­
nity for appeal or administrative 
review, as appropriate.
[40 FR 15379, Apr. 7, 1975]

§300.103 Basic Requirements.
(a) Jo b  analysis. Each employment 

practice of the Federal Government 
generally, and of individual agencies, 
shall be based on a job analysis to 
identify;

(1) The basic duties and responsibil­
ities;

(2) The knowledges, skills, and abili­
ties required to perform the duties and 
responsibilities; and

(3) The factors that are important in 
evaluating candidates. The job analy­
sis may cover a single position or 
group of positions, or an occupation or 
group of occupations, having common 
characteristics.

(b) Relevance. (1) There shall be a 
rational relationship between perform­
ance in the position to be filled (or in 
the target position in the case of an 
entry position) and the employment 
practice used. The demonstration of 
rational relationship shall include a 
showing that the employment practice 
was professionally developed. A mini­
mum educational requirement may 
not be established except as author­
ized under section 3308 of title 5, 
United States Code.

(2) In the case of an entry position 
the required relevance may be based 
upon the target position when—

(i) The entry position is a training 
position or the first of a progressive 
series of established training and de­
velopment positions leading to a target 
position at a higher level; and

(ii) New employees, within a reason­
able period of time and in the great 
majority of cases, can expect to pro­
gress to a target position at a higher 
level.

(c) Equal employment opportunity. 
An employment practice shall not dis­
criminate on the basis of race, color, 
religion, sex, age, national origin, par-



( C o n ' t )

parts B and E of Part 713 of this chap-ter. , . .
(2) Except as provided m paragraph 

(c)(1 ) of this section, an employee may 
file a grievance with an agency when 
he believes that an employment prac­
tice which was applied to him and 
which is administered or required by 
the agency violates a basic require­
ment in § 300.103. The grievance shall 
be filed and processed under the 
agency grievance system, or a negoti­
ated grievance system, established in 
accordance with Subpart C of Part 771 
of this chapter.
[40 FR 15380, Apr. 7, 1975, as amended at 41 
FR 51579, Nov. 23. 1976) 

basic requirement in § 330.103 is enti- > 
tied to appeal to the Commission.

(2) An appeal shall be in writing, 
shall set forth the basis for the candi­
date’s belief that a violation occurred, 
and shall be filed with the Appeals 
Review Board, U.S. Civil Service Com­
mission, Washington, D.C. 20415, no 
later than 15 days from the date the 
employment practice was applied to 
the candidate or the date he became 
aware of the results of the application 
of the employment practice. The 
board may extend the time limit in 
this subparagraph for good cause 
shown by the candidate.

(3) An appeal shall be processed in 
accordance with Subpart D of Part 772 
of this chapter.

(b) Examination ratings. A candi­
date may file an appeal with the Com­
mission from his examination rating 
or the rejection of his application. The 
appeal shall be filed and processed in 
accordance with instructions in chap­
ter 337 of the Federal Personnel 
Manual.

(c) Complaints and grievances to an 
agency. ( l ) a  candidate may file a com­
plaint with an agency when he be­
lieves that an employment practice 
which was applied to him and which is 
administered or required by the 
agency discriminates against him on 
the basis of race, color, religion, sex. or 
national origin; or age, provided that 
at the time of the alleged discrimina­
tory action the candidate was at least 
40 years of age but less than 65 years 
of age. The complaint shall be filed 
and processed in accordance with Sub-

tisan political affiliation, or other non­
merit factor. This requirement is gen­
erally met when an employment prac­
tice is relevant to performance in the 
position to be filled (or in the target 
position In the case of an entry posi­
tion).
[40 FR  15380, Apr. 7, 1975)

§300.104 Appeals, grievances and com­
plaints.

(a) Employment practices. (1) A can­
didate who believes that an employ­
ment practice which was applied to 
him and which is administered or re- 
miired bv the Commission violates a

A-9



5  C . F . R .  P a r t  3 0 0 , S u b p a r t  F  ( § 3 0 0 . 6 0 1 6 0 5 )  ( 1 9 7 7 )

Subpart F— Tim«-ln-Grad* 
Restrictions

§ 300.601 Applicability.
(a) This subpart applies to any ad-, 

vancement from a competitive or ex - ! 
cepted position that is subject to the 
General Schedule to a competitive po­
sition that is subject to the General1 
Schedule by:

(1) Promotion:
(2) Transfer to a higher grade; or
(3) Any type of appointment under 

this chapter (including reemployment 
and reinstatement) made within 1 year 
after separation from a nontemporary 
appointment.

(b) This subpart does not apply:
(1) When the position from which 

the advancement is made is outside 
the competitive service and in the leg­
islative or judicial branch: or

(2) When the position from which 
the advancement is made is not sub­
ject to the General Schedule unless 
the employee advanced held a position 
cf this type within the preceding year.
n FR 11965. June 16. 1972]

'■ 106.602 Restrictions.
(a) Advancement to positions at GS- 
or above. An agency may advance 

“  employee to a position at GS-12 or 
above only after he has served 1 year 
a' the next lower grade.

(b) Advancement to positions at GS- 
6 through GS-11. An agency may ad­
vance an employee to a position at 
GS-6 through GS-11 only after he has 
served:

(1) One year in a position two grades 
lower, when the position to which he 
is advanced is in a line of work proper­
ly classified at two-grade intervals: or

(2) One year at the next lower grade, 
when the position to which he is ad­
vanced is in a line of work properly 
classified at one-grade intervals.

(c) Advancement to positions at GS- 
S or below. An agency may advance an 
employee to a position at GS-5 or 
below which is not more than two 
grades above the lowest grade he held 
within the preceding year under a 
nontemporary appointment.

5 300.603 Exceptions to restrictions.

(a) Section 300.602 does not prevent 
the advancement of an employee 
when:

(1) The advancement is in accord­
ance with a training agreement which 
has been approved by the Commission: 
however, an agency may not make pro­
motions of more than two grades in 1 
year solely on the basis of a training 
agreement or series of training agree­
ments;

(2) The advancement is to any grade 
or level up to that from which the em­
ployee has ever been demoted or sepa­
rated by any agency because of a re­
duction in force;

(3) The employee is within reach on 
a register for competitive appointment 
to the position to be filled; or

(4) The Commission, on request of 
the head of the agency, authorizes the 
advancement to avoid undue hardship 
or inequity, in an individual case of 
meritorious nature.

(b) Section 300.602 (a) and (b) does 
not prevent the advancement of an 
employee who has 1 year of service in 
a position two grades lower than the 
position to be filled if there is no posi­
tion in the normal line of promotion 
that is one grade lower than the posi­
tion to be filled.

(c) Section 300.602(c) does not pre­
vent the advancement of an employee

to a position at GS-5 or below which 
he held previously or to which he 
could have been advanced previously 
under that paragraph.

A - 1 0



( C o n ' t )

5 300.604 Period* of creditable service.

(a) Except as provided in § 330.502 of 
this chapter, the periods of service re­
quired by §§300.602 (a) and (b) and 
300.603(b) include all service at the ap­
propriate or higher grade or level in 
positions in the Federal or District of 
Columbia civilian service regardless of 
whether or not the positions were sub­
ject to the General Schedule.

(b) Except as provided in § 330.502 of 
this chapter, when two periods of serv­
ice in positions subject to the General 
Schedule are interrupted for less than 
1 year by service in a position not sub­
ject to the General Schedule, the 
latter service is counted as a continu­
ation of the prior service in the posi­
tion subject to the General Schedule.

(c) Except as provided in paragraph
(b) of this section, and in § 330.502 of 
this chapter, service in a position not 
subject to the General Schedule is 
counted at the equivalent General 
Schedule grade in effect when the 
service was performed. The equivalent 
General Schedule grade is determined 
by comparing the representative rate 
of the position, as defined in Part 351 
of this chapter, with the representa­
tive rates of positions under the Gen­
eral Schedule. The highest General 
Schedule grade whose representative 
rate does, not exceed the representa­
tive rate of the position by more than 
one within-grade increase is the equiv­
alent General Schedule grade.

[34 FR  2649, Feb. 27, 1969]

§ 300.605 Other time restrictions.

The time-in-grade restrictions in this 
subpart are in addition to the time- 
after-competitive-appointment restric­
tions contained in Subpart E of Part 
330 of this chapter.

[34 FR 2649. Feb. 27, 19691

A-11



5  C . F . R .  P a r t  3 8 8 ,  S u b p a t t  A  ( §  3 3 8 . 1 0 1 )

PART 338— QUALIFICATION 
REQUIREMENTS (GENERAL)

Nomenclature Change: A document pub­
lished at 44 FR 47523, Aug. 14, 1979, made 
general nomenclature changes to the Office 
of Personnel Management regulations in 
this chapter.

Subport A — Gtlxonshlp koquiromonti

Sec.
338.101 Citizenship.

Subpart A-C»i*.n»hip R.quiramant.

S 338 101 Citizenship.
9 he admitted to(a) A person may .

S S  to the United S ta te , 
^ ^ e ^ f n o t o j o . e a

" S r S o w e i e *  a  n oncitizen  m ay he

S T < v  B f f S » * y S r J S K
A * ? ®  o r W m ?  ^ £ £
',!J S V S n f u S c S S S  th l 'ta  the

s ?  “  r s f f s s s s s -
^r^eaSr.o'SdlSS'mploy.
se n t.. ■ < a i no Coot

I

A - 1 2



5  C . F . R .  P a r t  7 7 2 , S u b p a r t  D  ( § 7 7 2 . 4 0 1  -  4 0 4 )  ( 1 9 7 7 )

Subpart D— Commission's Appellate 
Review of Employment Practices

§ 772.401 Coverage.
This subpart applies to appeals to 

the Appeals Review Board under Sub­
part A of Part 300 of this chapter.
[39 PR 32547, Sept. 9, 19741

§ 772.402 Rejection of appeal.
(a) Except as provided by paragraph

(b) of this section, an appeal shall be 
rejected when the particular test, ex­
amination, standard, or employment 
practice being appealed has been the 
subject of a previous appeal in which 
the final administrative decision of the 
Commission denied the appeal.

(b) An appeal on a particular test, 
examination, standard, or employment 
practice which was the subject of a 
previous appeal and final administra­
tive decision to deny the appeal, may 
be accepted when the appellant offers 
new and material evidence which was 
not available, or could not be located 
after reasonably diligent efforts to 
find the evidence, at the time of the 
previous appeal.
[36 FR  15447. Aug. 14. 19711

§ 772.403 Processing of appeal.
(a) Right to a hearing. Except when 

an appeal is rejected on the basis of 
timeliness or on the basis of a prior 
final administrative decision, the ap­
pellant is entitled to a hearing on his 
appeal. He shall be notified in writing 
of his right to a hearing and allowed a 
reasonable time to reply in writhig 
either requesting a hearing or stating 
that he does not desire a hearing.

(b) Hearing. (1 )A  hearing shall be 
conducted by a member of the board 
or by an appeals officer designated by 
the Appeals Authority for that pur­
pose. The member or appeals officer, 
as appropriate, shall schedule the 
hearing, considering the convenience 
of the parties as to time and place, and 
shall notify the parties of the time 
and place at least 15 days in advance.
The member or appeals officer, as ap­
propriate, shall take all action needed 
to control the hearing and shall con­
duct the hearing in accordance with 
§ 772.307(c).

(2) The hearing shall be recorded 
verbatim by an official reporter fur­
nished by the Commission. The tran­
script of the official reporter is the 
sole official transcript. The transcript 
shall be made part of the record and \ 
the official reporter shall supply the 
parties, at their own expense, with a 
copy of the transcript at a rate not in 
excess of the maximum rate fixed by

contract between the Commission and 
the reporter.

(3) When the hearing is conducted 
by an appeals officer, he shall prepare 
a report of findings and recommenda­
tions for submission to the Board.

(c) Decision o f  the board. The Ap­
peals Review Board shall issue a writ­
ten decision and send copies there of 
to the parties and to the appellant’s 
representative. When the appeal is 
sustained, the decision shall inform 
the appellant of the corrective action 
directed by the Board. The decision of 
the Board is final and there is no fur­
ther right of appeal.
[39 FR 32547, Sept. 9, 1974]

§ 772.404 Review by the Commissioners.
The Commissioners may reopen and 

reconsider any previous decision on 
their own motion or under the princi­
ples set forth in § 772.310.
[39 FR 32548. Sept. 9. 19741

A - 1 3



2 9  C . F . R .  §  1 6 1 3 . 6 0 1  -  . 6 1 4 ,  . 6 3 1 ,  . 6 4 1  -  . 6 4 3  ( 1 9 7 8 )

Subpart fc— Class Complaints of 
Discrimination

Authority; 42 U.S.C. 2000e-16(b). unless 
otherwise noted.

Source 42 FR  11808. Mar. 1, 1977. unless 
otherwise noted. Redesignated at 43 FR  
80901. Dec. 29, 1978.

Agency R egulations for P rocessing 
Class Complaints of D iscrim ination

91613.601 Definitions.
(a) A "class” is a group of agency 

employees, former agency employees, 
and/or applicants for employment 
with the agency, on whose behalf it is 
alleged that they have been, are being, 
or may be adversely affected, by an 
agency personnel management policy 
or practice which the agency has au­
thority to rescind or modify, and 
which discriminates against the group 
on the basis of their common race,

color, religion, sex, national origin, 
and/or age.

(b) A "class complaint” is a written 
complaint of discrimination filed on 
behalf of a class by the agent of the 
class alleging that:

(1) The class is so numerous that a 
consolidated complaint of the mem­
bers of the class is impractical;

(2) There are questions of fact 
common to the class;

(3) The claims of the agent of the 
class are typical of the claims of the class*

(4)  The agent of the class, or his/her 
representative, if any, will fairly and 
adquately protect the interests of the 
class.

(c) An “agent of the class” is a class 
member who acts for the class during 
the processing of the class complaint.

(d) “Age” is {ui inclusive term which 
means the age pf at least 40 years.
(86 Stat. 11; 29 UJ3.C. 833a)
[42 FR  11808. Mar. 1, 1977. as amended at 
42 FR  37530. July 22, 1977. Redesignated 
and amended at 43 FR  60901, Dec. 29, 19783

8 1613.602 Precomplaint processing.
(a) An employee or applicant who 

wishes to be an agent and who believes 
he/she has been discriminated against 
shall consult with an Equal Employ­
ment Opportunity Counselor within 
90 calendar days of the matter giving 
rise to the allegation of individual dis­
crimination or 90 calendar days of its 
effective date if a personnel action.

(b) The Counselor shall (1) advise 
the aggrieved person of the discrimi­
nation complaint procedures, of his/ 
her right to representation through­
out the precomplaint and complaint 
processes, and of the right to anonym­
ity only during the precomplaint proc­
ess; (2) make whatever inquiry is be­
lieved necessary; (3) make an attempt 
at informal resolution through discus­
sion with appropriate officials; (4) 
counsel the aggrieved person concern­
ing the issues involved; (5) inform the 
Equal Employment Opportunity Offi­
cer and other appropriate officials 
when corrective action is believed nec­
essary; (6) keep a record of all counsel­
ing activities; and (7) summarize ac­
tions and advice in writing both to the 
Equal Employment Opportunity Offi-

A - 1 4



(Con11)

r

cer and the aggrieved person concern­
ing the issues in the personnel man­
agement policy or practice.

(c) The Counselor shall conduct a 
final interview and terminate counsel­
ing with the aggrieved person not later 
than 30 calendar days after the date 
on which the allegation of discrimina­
tion was called to the attention of the 
Counselor. During the final interview, 
the Counselor shall inform the ag­
grieved person in writing that counsel­
ing is terminated, that he/she has the 
right to file a class complaint of dis­
crimination with appropriate officials 
of the agency, and that he/she has a 
duty to assure that the agency is im­
mediately informed if legal represen­
tation is obtained.

(d) The Counselor shall not attempt 
in any way to restrain the aggrieved 
person from filing a complaint nor to 
encourage the person to file a com­
plaint.

(e) The Counselor shall not reveal 
the identity of an aggrieved person 
during the period of consultation, 
except, when authorized to do so by 
the aggrieved person.

(f) The agency shall ensure that full 
cooperation is provided by all employ­
ees to Counselors in the •performance 
of their duties under this section. 
Counselors shall have routine access 
to personnel records of the agency 
without unwarranted invasion of pri­
vacy.

(g) Corrective action taken as a 
result of counseling shall be consistent 
with law, Executive order, and Civil 
Service regulations, rules, and instruc­
tions.
(Sec. 717 of Title VTI of the Civil Rights Act 
of 1964. 42 U.S.C. 2000e-16, Reorganization 
Plan No. 1 of 1978 (43 PR 19807) and Execu­
tive Order 12106 (44 FR 1053))
[37 FR 22717. Oct. 21. 1972. Redesignated at 
43 FR 60901, Dec. 29. 1978, and amended at 
45 FR  24133. Apr. 9. 19801

§ 1613.603 Filing and presentation of a 
class complaint

(a) The complaint must be sumbit- 
ted in writing by the agent or his/her 
representative and be signed by the 
agent.

(b) The complaint shall set forth 
specifically and in detail: (1)A  descrip­

tion of the agency personnel 
ment policy or practice giving 
the complaint; and (2) a descript 
the resultant personnel actioc 
matter adversely affecting the age

(c) The complaint must be fUedtttjfp  
later than 15 calendar days after^ttfffr 
agent's receipt of the notice of 
interview with the Counselor.

(d) The officials with whom 
plaints may be filed are the heat^ 
the agency, a designee of the head jog* 
the agency, and the Director of Eqi i^ -  
Employment Opportunity. ‘ - 3MP

(e) A complaint shall be deemSr*' 
filed on the date it is postm arked;^ 
in the absence of a postmark, on the? 
date it is received by an official with 
whom complaints may be filed. - ^

(f) At all stages, including counsel-’ 
ing, in the preparation and presenta­
tion of a complaint, "or claim and" 
appeal from a decision on a complaint,: 
or claim, the agent or claimant shall' 
have the right to be accompanied, rep­
resented, and advised by a representa­
tive of his/her own choosing, provided 
the choice of a representative does not 
involve a conflict of interest or conflict 
of position. The representative shall 
be designated in writing and the desig­
nation made a part of the class com-; 
plaint file.

(g) If the agent is an employee in an 
active duty status, he/she shall have a 
reasonable amount of official time to 
prepare and present his/her com­
plaint. Employees, including attor­
neys, who are representing employees 
of the same agency in discrimination 
complaint cases must be permitted to 
use a reasonable amount of official 
time to carry out that responsibility 
whenever it is not Inconsistent with 
the faithful performance of their 
duties. Although there is no require­
ment that an agency permit its own 
employees to use official time for the 
purpose of representing employees of 
other agencies, an agency may do so at 
its discretion. If the use of official 
time is not granted in such cases, em­
ployees may be granted, at their re­
quest, annual leave, or leave without 
pay.

A-15



( C o n ' t )

r

< (613.604 Acceptance, Rejection or Can* 
cellatlon.

(а) Within 10 calendar days of an 
,gency’s receipt of a complaint, the 
Jgency shall forward the complaint, 
jong with a copy of the Counselor’s 
^port and any other information per­
using to timeliness or other relevant 
jji-cumstances related to the com­
plaint, to the Commission. The Com- 
jission shall assign the complaint to a 
Complaints Examiner who may be an 
jniployee of the Federal Employee Ap­
pals Authority and who is not an em­
ployee of the agency in which the 
Complaint arose.
‘ (b) The Complaints Examiner may 
tcommend that the agency reject the 
Complaint, or a portion thereof, for 
my of the following reasons:
(1) It was not timely filed:
(2) It consists of an allegation ldentl- 

ul to an allegation contained in a pre- 
nous compliant filed on behalf of the 
ome class which is pending in the 
gency or which has been resolved or 
Kided by the agency;
(3) It is not within the purview of 

sis subpart;
(4) The agent failed to consult a 

Counselor in a timely manner;
(5) It lacks specificjity and detail;
(б) It was not submitted in writing or 

ns not signed by the agent;
(7) It does not meet the following 

prerequisites:
(i) The class is so numerous that a 

ansolidated complaint of the mem­
bers of the class is impractical;
(li) There are questions of fact 

smmon to the class;
(Hi) The claims of the agent of the 

:ltss are typical of the claims of the 
*iass;
dv) The agent of the class, or his/ 

*r representative will fairly and ad- 
wately protect the interests of the 
dus;
(c) If an allegation is not included in 

,J|* Counselor’s report, the Com- 
>*»ints Examiner shall afford the 
*«nt 15 calendar days to explain 
Jhether the matter was discussed and 
* D°t. why he/she did not discuss the 
N ation with the Counselor. If the 
^Planation is not satisfactory, the 
'■ ^mplaints Examiner may recommend 
■7 l the agency reject the allegation. 
'• the explanation is satisfactory, the

Complaints Examiner may refer the 
allegation to the agency for further 
counseling of the agent.

(d) If an allegation lacks specificity 
and detail, the Complaints Examiner 
shall afford the agent 15 calendar 
days to provide specific and detailed 
information. The Complaints Examin­
er may recommend that the agency 
reject the complaint if the agent fails 
to provide such information within 
the specified time period. If the infor­
mation provided contains new allega­
tions outside the scope of the com­
plaint, the Complaints Examiner must 
advise the agent how to proceed on an 
individual or class basis concerning 
these allegations.

(e) The Complaints Examiner may 
recommend that the agency extend 
the time limits for filing a complaint 
and for consulting with a Counselor 
when the agent, or:his/her representa­
tive, shows that he/she was not noti­
fied of the prescribed time limits and 
was not otherwise aware of them or 
that he/she was prevented by circum­
stances beyond his/her control from 
acting within the time limit.

(f) When appropriate the Com­
plaints Examiner may recommend 
that a class be divided into subclasses 
and that each subclass be treated as a 
class, and the provisions of this section 
then shall be construed and applied 
accordingly.

(g) The Complaints Examiner may 
recommend that the agency cancel a 
complaint after it has been accepted 
because of failure of the agent to pros­
ecute the complaint. This action may 
be taken only after the Complaints 
Examiner has provided the agent a 
written request, including notice of 
proposed cancellation, that he/she 
provide certain information or other­
wise proceed with the complaint, and 
the agent has failed to satisfy this re­
quest within 15 calendar days of his/ 
her receipt of the request.

(h) An agent must be informed by 
the Complaints Examiner in a request 
under paragraphs (c) or (d) of this sec­
tion that his/her complaint may be re­
jected if the information is not pro­
vided.

(i) The Complaints Examiner’s rec­
ommendation to the agency on wheth­
er to accept, reject, or cancel a com­

A - 1 6



( C o n ' t )

plaint'shall be transmitted in writing 
to the agency, the agent, and the 
agent’s representative. The Complaint 
Examiner’s recommendation to accept, 
reject, or cancel shall become the 
agency decision unless the agency re­
jects or modifies the decision within 10 
calendar days of its receipt. The 
agency shall notify the agent, the 
agent’s representative, and the Com­
plaints Examiner of its decision to 
accept, reject, or cancel a complaint. 
Notice of a decision to reject or cancel 
shall inform the agent of his/her right 
to proceed with his/her Individual 
complaint of discrimination, and to 
appeal the final agency decision on 
the matter to the Office of Review 
and Appeals and of his/her right to 
file a civil action.

8 1613.605 Notification and opting out
(a) After acceptance of a class com­

plaint, the agency, within 15 calendar 
days, shall use reasonable means, such 
as delivery, mailing, distribution, or 
posting, to notify all class members of 
the existence of the class complaint.

(b) A notice shall contain: (1) The 
name of the agency or .organizational 
segment thereof, its location, and the 
date of acceptance of the complaint:
(2) a description of the issues accepted 
as part of the class complaint; (3) an 
explanation that class members may 
remove themselves from the class by 
notifying the agency within 30 calen­
dar days after issuance of the notice: 
and (4) an explanation of the binding 
nature of the final decision on or reso­
lution of the complaint.

8 1613.606 Avoidance of delay.
The complaint shall be processed 

promptly after it has been accepted. 
To this end. the parties shall proceed 
with the complaint without undue 
delay so that the complaint is proc­
essed within 180 calendar days after it 
was filed.

8 1613.607 Freedom from restraint, inter­
ference, coercion, and reprisal.

(a) Agents, claimants, their repre­
sentatives, witnesses. Directors of 
Equal Employment Opportunity, 
Equal Employment Opportunity Offi­
cers, Equal Employment Opportunity 
Investigators, Equal Employment Op­

portunity Counselors, and oq£« 
agency officials having responsihnj^ 
for the processing of discrimination 
complaints shall be free from 
straint, interference, coercion, .~a?5r 
reprisal at all stages in the presenff* 
tion and processing of a complaint; ftf 
eluding the counseling stage und»!
5 1613.602, or any time thereafter'

(b) A person identified In paragraph 
(a) of this section, if a Federal employ* 
ee or applicant, may file a complaint 
of restraint, interference, coercion, .or 
reprisal in connection with the preset 
tation and processing of a complaint; 
of discrimination. The complaint shall 
be filed and processed in accordance 
with provisions of Subpart B.

8 1613.608 Obtaining evjdence concerning 
the complaint.

(a) G eneral (1) Upon the acceptance 
of a complaint, the agency head or 
his/her designee shall designate an 
agency representative. The agency 
representative shall not be an alleged 
discriminating official or any individu­
al designated under § 1613.204(c) cf 1 
this part.

(2) In representing the agency, the 
agency representative shall consult 
with officials, if any, named or identi­
fied as responsible for the alleged dis­
crimination, and other officials of the 
agency as necessary. In such consulta­
tion, the agency representative will be 
subject to the provisions of Civil Serv­
ice regulations, rules, and instructions 
concerning privacy and access to indi­
vidual personnel records and reports.

(b) Development o f  evidence. (1) The 
Complaints Examiner shall notify the 
agent, or his/her representative and 
the agency representative that a 
period of not more than 60 calendar 
days will be allowed both parties to 
prepare their cases. This time period 
may be extended by the Complaints 
Examiner upon the request of either 
party. Both parties are entitled to rea­
sonable development of evidence on 
matters relevant tp the issues raised in 
the complaint. Evidence may be devel­
oped through interrogatories, deposi­
tions, and requests for production of 
documents. It shall be grounds for ob­
jection to producing evidence that the 
information sought by either party is

A - 1 7



( C o n  * t )

irrelevant, overburdensome, repeti­
tious, or privileged.

(2) In the event that mutual cooper­
ation fails, either party may request 
the Complaints Examiner to rule on a 
request to develop evidence. When the 
Complaints Examiner renders his/her 
report of findings and recommenda­
tions on the merits of the complaint- a 
party’s failure to comply with the 
Complaints Examiner’s ruling on an 
evidentiary ̂ request may be taken Into 
account.

(3) During the time period for devel­
opment of evidence, the Complaints 
Examiner''may, In his/her discretion, 
direct that an Investigation of facts 
relevant to the complaint, or any por­
tion thereof, be conducted by an In­
vestigator trained and/or certified by 
the Commission.

(4) Both parties shall furnish the 
Complaints Examiner all materials 
which they wish him/her to examine 
and such other material as he/she 
may request.
§ 1613.609 Opportunities for resolution of 

the complaint
(a) The Complaints Examiner shall 

furnish the agent or his/her repre­
sentative and the representative of the 
agency a copy of all materials ob­
tained concerning the complaint and 
provide opportunity for the agent to 
discuss material^ with the agency rep­
resentative and attempt resolution of 
the complaint.

(b) At any time after acceptance of a 
complaint, the complaint may be re­
solved by agreement of the agency and 
the agent to terms offered by either 
party.

(c) If resolution of the complaint is 
arrived at, the terms of the resolution 
shall be reduced to writing, and signed 
by the agent and the agency head or 
his/her designee. A resolution may In­
clude a finding on the issue of discrim­
ination, an award of attorney’s fees or 
costs, and must Include any corrective 
action agreed upon. Corrective action 
in the resolution must be consistent 
with law. Executive order, and Civil 
Service regulations, rules, and instruc­
tions. A copy of the resolution shall be 
provided to the agent.

(d) Notice of the resolution shall be 
given to all class members in the same

manner as notification of the accept­
ance of the class complaint and shall 
state the terms of corrective action, if 
any, to be granted by the agency. A 
resolution shall bind all members of 
the class.

(e) If the agency does not carry out, 
or rescinds, any action specified by the 
terms of the resolution for any reason 
not attributable to acts or conduct of 
the agent, his/her representative, or 
class members, the agency upon the 
agent’s written request shall reinstate 
the complaint for further processing 
from the point processing ceased 
under the terms of the resolution. 
Failure of the agency to reinstate the 
complaint is grounds for appeal by the 
agent to the Appeals Review Board.
(Sec. 717 of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. 2000e-16, Reorganization 
Plan No. 1 of 1978 (43 FR 19807) and Execu­
tive Order 12106 (44 FR  1053))
[37 FR 22717, Oct. 21, 1972. Redesignated at 
43 FR  60901, Dec. 29, 1978, and amended at 
45 FR  24133, Apr. 9, 19801

91613.610 Hearing.
On the expiration of the period al­

lowed for preparation of the case, the 
Complaints Examiner shall set a date 
for a hearing. The hearing shall be 
conducted in accordance with 5 CFR 
772.307(c).

9 1613.611 Report of finding* and recom­
mendation*.

(a) The Complaints Examiner shall 
transmit to the agency head or his/ 
her designee: (1) The record of the 
hearing: (2) his/her findings and anal­
ysis with regard to the complaint: and
(3) his/her report of findings and rec­
ommended decision on the complaint, 
including corrective action pertaining 
to systemic relief for the class and any 
individual corrective action, where ap­
propriate, with regard to the person­
nel action or matter which gave rise to 
the complaint.

(b) The Complaints Examiner shall 
notify the agent of the date on which 
the report of findings and recommen­
dations was forwarded to the agency 
head or his/her designee.

A - 1 8



( C o n ' t )

8 1613.612 Agency decision.
(aXl) Within 30 calendar days of re­

ceipt of the report of findings and rec­
ommendations issued under § 1613.611, 
the agency head or his/her designee 
shall issue a decision to accept, reject, 
or modify the findings and recommen­
dations of the Complaints Examiner.

(2) The decision of the agency shall 
be in writing and shall be transmitted 
to the agent of his/her representative, 
along with a copy of the record of the 
hearing and a copy of the findings and 
recommendations of the Complaints 
Examiner.

(3) When the agency's decision is to 
reject or modify the findings and rec­
ommendations of the Complaints Ex­
aminer the decision shall contain the 
specific reasons in detail for the agen­
cy’s action.

(b) If the agency has not issued a de­
cision within 30 calendar days of its re­
ceipt of the Complaints Examiner’s 
report of findings and recommenda­
tions, the findings and recommenda­
tions shall become the final agency de­
cision. The agency shall transmit the 
final agency decision and the record of 
the hearing to the agent or his/her 
representative within 5 calendar days 
of the expiration of the 30-day period.

(c) The decision of the agency shall 
require any remedial action author­
ized by law determined to be necessary 
or desirable to resolve the issue of dis­
crimination and to promote the policy 
of equal opportunity, whether or not 
there is a finding of discrimination. 
When discrimination is found, the 
agency shall (1) advise the agent and 
his or her representative that any re­
quest for attorney’s fees must be docu­
mented and submitted within 20 calen­
dar days of receipt, (2) review the 
matter giving rise to the complaint to 
determine whether disciplinary action 
against alleged discriminatory officials 
is appropriate, and (3) record the basis 
for its decision to take, or not to take, 
disciplinary action but this decision 
shall not be recorded in the complaint 
file.

(d) When the final agency decision 
provides for an award of attorney’s 
fees and/or costs, the amount of these 
awards shall be determined under 
l 1613.271(c). When the agency deter­
mines not to award attorney’s fees or

costs, the agency shall set forth ia w. 
decision the specific reasons for deny, 
ing the award.

(e) The agency shall inform the 
agent or his/her representative of the 
right to appeal the final agency decl- 
sion to the Commission’s Office af 
Review and Appeals and his/her right 
to file a civil action in accordance with 
§ 1613.641 of the regulations, and of 
the time limits applicable thereto.

(f) A final agency decision on a 
complaint shall be binding on all mem­
bers of the class and the agency.
(Sec. 717 of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. 2000e -16, Reorganization 
Plan No. 1 of 1978 (43 FR 19807) and Execu­
tive Order 12106 (44 FR 1053))
[37 FR  22717, Oct. 21. 1972. Redesignated at 
43 FR 60901, Dec. 29, 19.78, and amended at 
45 FR  24133, Apr. 9. 1980)

8 1613.613 Notification of class members 
of decision.

Class members shall be notified by 
the agency, through the same media 
employed to give notice of the exist­
ence of the class complaint, of the 
agency decision and corrective action, 
if any. The notice, where appropriate, 
shall include information concerning 
the rights of class members to seek in­
dividual relief, and of the procedures 
to be followed. Notice shall be given by 
the agency within 10 calendar days of 
the transmittal of its decision to the 
agent.

8 1613.614 Corrective action.
(a) When discrimination is found, an 

agency must eliminate or modify the 
personnel policy or practice out of 
which the complaint arose, and pro­
vide individual corrective action, in­
cluding an award of attorney’s fees 
and costs, to the agent in accordance 
with i 1613.'271 of this Part. Corrective 
action in all cases must be consistent 
with law, Executive order, and Civil 
Service regulations, rules and instruc­
tions.

(b) When discrimination is found 
and a class member believes that but 
for that discrimination he/she would 
have received employment or an em­
ployment benefit, the class member 
may file a written claim with the head 
of the agency or the Director of Equal

A - 1 9



( C o n ' t )

t

Employment Opportunity of the 
agency within 30 calendar days of no­
tification by the agency of the deci­
sion of the agency.

(c) The claim must include a specific, 
detailed showing that the claimant is a 
class member who was affected by a 
personnel action or matter resulting 
from the discriminatory policy or 
practice within not more than 135 cal­
endar days preceding the filing of the 
class complaint.

(d) The agency shall attempt to re­
solve the claim for relief within 60 cal­
endar days after the date the claim 
was postmarked, or, in the absence of 
a postmark, within 60 calendar days 
after the date it was received by an of­
ficial with whom claims may be filed. 
If the agency and claimant do not 
agree that the claimant is a member of 
the class or upon the relief to which 
the claimant is entitled, the agency 
shall refer the claim, with recommen­
dations concerning it, to the Com­
plaints Examiner.

(e) The Complaints Examiner shall 
notify the claimant of the right to a 
hearing on the claim and shall allow 
the parties to the claim an opportuni­
ty to submit evidence and representa­
tions concemipg the claim. If a hear­
ing is requested. It shall be- conducted 
in accordance with 5 CFR 772.307(c). 
If no hearing IS requested, the Com­
plaints Examiner, in his/her discre­
tion, may hold a hearing to obtain nec­
essary evidence concerning the claim.

(f) The Complaints Examiner shall 
issue a report of findings and recom­
mendations on the claim which shall 
be treated the same as a report of 
findings and recommendations under 
§5 1613.611 and 1613.612.

(g) If the Complaints Examiner de­
termines that the claimant is not a 
member of the class or that the claim 
was not timely filed he/she shall rec­
ommend rejection of the claim and 
give notice of his/her action to the 
agency, the claimant, and his/her rep­
resentative. Such notice shall include 
advice as to the complainant's right to 
appeal to the Office of Review and Ap­
peals or to file a civil action in accord­
ance with the provisions of this part.
(Sec. 717 of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. 2000e-16. Reorganization

Plan No. 1 of 1978 (43 FR 19807) and Execu­
tive Order 12108 (44 FR 1053))
137 FR 22717, Oct. 21, 1972. Redesignated at 
43 FR 60901, Dec. 29. 1978,. and amended at 
45 FR 24133, Apr. 9. 19801,

Appeal to the Commission

g 1613.631 Appeal to the Office of Review 
and Appeals.

(a) An agent may appeal to the 
Office of Review and Appeals the deci­
sion of the head of the agency or his/ 
her designee: (1) To reject or cancel 
his/her complaint, or a portion there­
of; for reasons covered by § 1613.604; 
(2) to refuse to reinstate the complaint 
for further processing in accordance 
with the provisions of $ 1613.609(e); 
and (3) on the merits of the complaint, 
the issue of attorney’s fees and costs 
and/or corrective action.

(b) A claimant may appeal to the 
Office of Review and Appeals from a 
decision of the head of the agency or 
his/her designee: (1) To cancel or 
reject a claim for individual relief in 
accordance with § 1613.614(f) and (g); 
and (2) on the merits of his/her claim 
for individual relief including attor­
ney’s fees or costs.

(c) An appeal may be filed at any 
time after receipt of the agency’s final 
decision, but not later than 15 calen­
dar days after receipt of that decision 
except when the appellant shows that 
he/she or his/her representative was 
not notified of the prescribed time 
limit and was not otherwise aware of 
it, or that he/she or his/her repre­
sentative was prevented by circum­
stances beyond his/her control from 
appealing within the prescribed time 
limit.

(d) An appeal shall be deemed filed 
on the date it is postmarked, or, in the 
absence of a postmark, on the date it 
is received by the Office of Review and 
Appeals. The Office of Review and Ap­
peal’s review will be made upon the 
existing record to determine if the 
agency decision is in accord with appli­
cable law. Executive order, or Civil 
Service regulations, rules, and instruc­
tions and is supported by substantial 
evidence.
(Sec. 717 of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. 2000e-16, Reorganization

A - 2 0



( C o n ' t )

I

.P lan  No. 1 of 1978 (43 PH 19807) and Execu­
tive Order 12106 (44 FR  1053))
[37 PR 22717, Oct. 21, 1972. Redesignated at 
43 PR 60901, Dec. 29, 1978, and amended at 
45 FR  24133. Apr. 9, 19801

§ 1613.632 Reopening and reconsideration 
by the Commissioners.

The Commissioners may reopen and 
reconsider any previous decision of a 
Commission office on their own 
motion or at the request of either 
party in accordance with provisions of 
5 CFR 772.312(a)(1).

Civ il  Actions

§ 1613.641 Statutory right.
(a) An agent who has tiled a com­

plaint or a claimant who has filed a 
claim for relief based on race, color, 
religion, sex, and/or national origin 
discrimination is authorized to file a 
civil action in an appropriate U.S. dis­
trict court:

(1) Within 30 calendar days of his/ 
her receipt of notice of final action 
taken by his/her agency on a com­
plaint or claim:

(2) After 180 calendar days from the 
date he/she filed a complaint or claim 
with his/her agency if there has been 
no decision on the complaint or claim:

(3) Within 30 calendar days of his/ 
her receipt of the decision of the 
Office of Review and Appeals on his/ 
her appeal; or

(4) After 180 calendar days from the 
date he/she filed an appeal with the 
Office of Review and Appeals, if there 
has been no Office of Review and Ap­
peals decision.

- For purposes of this Part, the decision 
of an agency shall be final only when 
the agency makes a determination on 
all of the issues in the complaint, in­
cluding whether or not to award attor­
ney's fees and costs. If a determina­
tion to award attorneys fees is made 
the decision will not be final until the 
procedure is followed for determining 
the amount of the award as set forth 
in § 1613.271(c).

(b) An agent who filed a complaint 
or a claimant who has filed for relief 
based on age discrimination, is author­
ized to file a civil action in an'appro- 
priate U.S. district court.

(Sec. 717 of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. 2000e -16, Reorganization 
Plan No. 1 of 1978 (43 FR 19807) and Execu- 
tlve Order 12106 (44 FR 1053))
[37 FR 22717, Oct. 21, 1972. Redesignated at 
43 FR 60901. Dec. 29. 1978. and amended at 
45 FR 24133. Apr. 9. 1980]

§ 1613.642 Notice of right.
When the agent alleges that the 

agency discriminated against a class 
on the basis of race, color, religion, 
sex, national origin,'and/or age, or a 
claimant files for relief, the agency or 
the Commission shall notify him/her 
of his/her right to file a civil action in 
any final action on a complaint, or 
claim, under §§ 1613.604, 1613.612,
1613.614, or 1613.631.

§ 1613.643 Effect on administrative proc- 
essing. 1

The filing of a civil action by an 
agent or claimant does not terminate 
agency processing of a complaint or 
claim or Office of Review and Appeals 
processing of an appeal under this sub- 
part.

A-21



F . P . M .  C h a p t e r  3 1 5  §  1 - 4  ( 1 9 8 1 )

1 - 4 .  D E F IN IT IO N  O F  N O N C O M P E T IT IV E

In this chapter it is stated that certain actions, such 
as reinstatements and transfers, may be made non- 
competitively. This means that the actions may be 
made without regard to civil service registers of eli- 
gibles or to the priorities required for making tem­
porary appointments outside the register. Although 
the actions are noncompetitive, they are made with 
regard to merit and fitness, as prescribed by law. To 
be eligible for reinstatement or transfer, an employee 
must generally meet the minimum competitive stand­
ards for the position (see chapter 338 for details about 
standards applied).

t

A - 2 2



335-3

F . P . M .  C h a p t e r  3 , 3 5 ,  S u b c h a p t f e r  1  ( 1 9 8 1 )

S u bchap ter 1. G eneral Provisions

1 - 1 .  IN T R O D U C T IO N

Section 335.103 of part 335 of title 5, Code of 
Federal Regulations, requires each agency to adopt 
and administer a “ program designed to ensure sys­
tematic means c f  selection for promotion according 
to merit.’ ’ This chapter provides the framework for 
ensuring fair consideration and merit selection while 
affording agencies maximum flexibility to develop, 
negotiate and manage their own merit promotion 
programs.

1 - 2 .  D E F IN IT IO N S

a. Position change  is a promotion, demotion, or 
reassignment made during an employee’s continuous 
service within the same agency. A position change 
by any of these methods may also involve a change 
of official headquarters or post of duty within the 
agency. (General regulatory provisions are contained 
in appendix A.)

b. Prom otion  is the change of an employee to a 
position at a higher grade level within the same job 
classification system and pay schedule or to a position 
with a higher rate of basic pay in a different job 
classification system and pay schedule.

c. Dem otion  is the change of an employee to a 
lower grade when both the old and the new positions 
are under the General Schedule or under the same 
wage grade schedule, or to a position with a lower 
rate of basic pay when both the old and new positions 
are under the same type ungraded wage schedule or 
in different pay method categories.

d. Reassignm ent is the change of an employee 
from one position to another without promotion or 
demotion.

e. A rea o f  consideration  is the area in which the 
agency makes an intensive search for eligible candi­
dates in a specific promotion action. The minimum 
area  o f  consideration  is the area designated by the 
promotion plan in which the agency should reasonably 
expect to locate enough high quality candidates, as 
determined by the agency, to fill vacancies in the

positions covered by the plan. (When the minimum 
area of consideration produces enough high quality 
candidates and the agency does not find it necessary 
to make a broader search, the minimum area of con­
sideration and the area of consideration are the same.)

f. Qualified candidates  are those who meet estab­
lished qualifications requirements for the position.

g. Best qualified candidates  are measured against 
other candidates. They are qualified candidates who 
rank at the top when compared with other eligible 
candidates for a position. A reasonable number of the 
best qualified candidates are referred for selection.

h. Selective fa c to rs  are knowledges, skills, or 
abilities essential for satisfactory performance on the 
job and represent an addition to the basic standard for 
a position. The following are examples of appropriate 
selective factors for determining eligibility when the 
factors are essential for successful job performance.

(1) Ability to speak, read, and/or write a language 
other than English;

(2) Knowledges and abilities pertaining to a cenain 
program or mission, when these cannot readily be 
acquired after promotion; and

(3) Ability in a functional area (for example, abil­
ity to evaluate alternative ADP systems).

1 - 3 .  M E R IT  P R O M O T IO N  P L A N S

a. Responsibility for prom otion plans. The agency 
headquarters is responsible for ensuring that:

(1) There is a merit promotion plan covering all 
positions to which promotion is made;

(2) The agency’s merit promotion plans operate 
compatibly with each other; and

(3) The requirements of this chapter are met.
(b) C o v e ra g e  of m erit p rom otion  plans. (1) A 

merit promotion plan establishes the procedures and 
practices for filling specified types of positions. The 
number of plans will be determined by such factors 
as position grouping and location.

(2) A plan must be appropriate for all the positions 
covered.

Federal Personnel Manual
Inst. 262

May 7, 1981



i w y i M v /1  i w i i  n m - >  u » u - i \ i i r \ L ,  r  i . n v c : » i i - n  i

. (Con't)
. 1 - 4 .  M E R I T  P R O M O T IO N  R E Q U IR E M E N T S

R eq u ire m e n t 1
Each agency must establish procedures for pro­

moting employees which are based on merit and are 
available in writing’to candidates. Agencies must list 
appropriate exceptions, including those required by 
law or regulation (see 1-5). Actions under a pro­
motion plan— whether identification, qualification, 
evaluation, or selection of candidates— shall be made 
without regard to political, religious, or labor orga­
nization affilation or nonaffiliation, marital status, 
race, color, sex, national origin, nondisqualifying 
physical handicap, or age, and shall be based solely 
on job-related criteria.

R eq u irem en t 2

Areas of consideration must be sufficiently broad 
to ensure the availability of high quality candidates, 
taking into account the nature and level of the posi­
tions covered. Agencies must also ensure that em­
ployees within the area of consideration who are ab­
sent for legitimate reason, e.g. on detail, on leave, 
at training courses, in the military service, or serving 
in public international organizations or on intergov­
ernmental Personnel Act assignments, receive appro­
priate consideration for promotion.

R e q u irem en t 3

To be eligible for promotion or placement, candi­
dates must meet the minimum qualification standards 
prescribed by the Office o f Personnel Management 
(OPM). Methods of evaluation for promotion and 
placement, and selection for training which leads to 
promotion, must be consistent with instructions in 
FPM Supplement 3 3 5 -1 . Due weight shall be given 
to performance appraisals and incentive awards.

R eq u irem en t 4

Selection procedures will provide for manage­
ment’s right to select or not select from among a group 
of best qualified candidates. They will also provide 
for management's right to select from other appro­
priate sources, such as reemployment priority lists, 
reinstatement, transfer, handicapped, or Veterans 
Readjustment eligibles or those within reach on an 
appropriate OPM certificate. In deciding which source 
or sources to use. agencies have an obligation to de­
termine which is most likely to best meet the agency 
mission objectives, contribute fresh ideas and new 
viewpoints, and meet the agency’s affirmative action 
goals.

Inst. 262
May 7, 1981

R eq u irem en t 5

Administration of the promotion system will in­
clude recordkeeping and the provision of necessary 
information to employees and the public, ensuring 
that individuals’ rights to privacy are protected. Each 
agency must maintain a temporary record of each 
promotion sufficient to allow reconstruction of the 
promotion action, including documentation on how 
candidates were rated and ranked. These records may 
be destroyed after 2 years or after the program has 
been formally evaluated by the OPM (whichever 
comes first) if the time limit for grievance has lapsed 
before the anniversary date.

1 - 5 .  C O V E R E D  P E R S O N N E L  A C T IO N S

a. Competitive procedures in agency promotion 
plans apply to all promotions under Section 335.102 
of the civil service regulations and to the following 
actions.

(1) Temporary Prom otions. Competitive inservice 
procedures must be used for temporary promotions 
over 120 days in higher graded positions (prior service 
under all details to higher graded positions or tem­
porary promotions is included whether competitive 
or noncompetitive during the preceding 12 months). 
The conditions for making temporary promotions are 
as follows:

(a) Temporary promotions must be for a definite 
period of 1 year or less, but may be extended for a 
definite period not to exceed 1 additional year (sec. 
335.102(f)).

(b) The OPM may authorize a temporary promo­
tion for a longer period than 2 years when it finds the 
needs o f the service require it. Requests for approval 
of extensions beyond 2 years involving positions at 
G S -1 5  and below should be submitted to the director 
of the region where the position is located. For po­
sitions at G S -15  and below in the Washington D.C. 
Metropolitan Area, requests should be sent to the 
Associate Director, Staffing Services. All requests 
involving positions at G S -1 6  and above should be 
sent to the Associate Director Executive Personnel 
and Management Development.

(c) Adverse action procedures apply to the return 
of an employee to his or her regular position after a 
temporary promotion lasting more than 2 years (sec. 
752.401(c)(7)).

(d) A temporary promotion may be made perma­
nent without further competition provided the tem­
porary promotion was originally made under com-

Federal Personnel Manual

A - 2  4



Subchapter I. Uenerai rrovisions

 ̂ petidve procedures and the fact that it might lead to a 
perm anent promotion was made known to all potential 

candidates.
(e ) A  tem porary promotion may not be used for the 

purpose* o f training or evaluating an em ployee in a 

higher grade position.
(2 ) Term Prom otions. Com petitive inservice pro­

cedures must be used for term  promotions to higher 
graded positions. The conditions for making term pro­

m otions are as follow s:
(a ) A fter entering into a form al agreem ent with 

O P M , an agency m ay promote an em ployee for a 
limited term  in excess of 2  years but not m ore than 4  
years to com plete a designated project or assignm ent; 
or as part o f a planned rotational system  for a definite 
period. Upon the approval of O P M , agencies may 
extend the period 1 year for a total of 5 years. However, 
O PM  will only consider extensions on a case-b y-case  

basis (5  C F R  3 3 5 .1 0 2 (g )) .
(b) O PM  m ay authorize the additional year only 

when it finds the needs o f the service require it.
( c )  A term  p rom otion  m ay be m ade perm anent 

without any further com petition provided the term  
promotion was originally made under com petitive pro­
cedures and the fact that it might lead to a permanent 
prom otion was m ade known to  all potential candidates.

(3 ) Selection for details for m ore than 120 days to a 

higher grade position or to a position with known 
promotion potential (chapter 3 0 0 , subchapter 8).

|  (4 ) Selection for training which is part o f an autho­

rized training agreem ent, part o f a promotion program , 

o r required before an em ployee m ay be considered for 

a prom otion. (See chapter 4 1 0 , section 3 - 6 c . )  f
(5 )  Reassignm ent or demotion to a position with 

m ore promotion potential than the position last held 
( e x c e p t  a s  p e r m i t t e d  b y  r e d u c t i o n - i n - f o r c e  

regulations).
(6 )  Transfer to a higher grade position.
(7 )  R ein statem en t to a perm anent or tem porary  

position at a higher grade than the last grade held in a  
nontem porary position in the com petitive service.

b. Com petitive procedures do not apply to:
(1) A  prom otion resulting from  the upgrading of a 

position without significant change in the duties and 
responsibilities due to  issuance of a  new classification  
standard or the correction  o f an initial classification  

error.

(2 ) A  position change permitted by reduction-in- 

force regulations (see chapter 351).
c . A gencies may at their discretion except other 

actions from  their plans. These include, but are not 

limited to:
(1) The two types of career prom otions:
(a) A promotion without current com petition when 

at an earlier stage an em ployee was selected from  a 
civil service register or under com petitive promotion  
procedures for an assignm ent intended to prepare the 
employee for the position being filled (the intent must 
be made a  matter of record and career ladders must be 
docum ented in the promotion plan); or

(b) A  promotion resulting from  an em p loyee’s posi­
tion being classified at a higher grade because of addi­

tional duties and responsibilities.
(2 ) A  career ladder promotion following noncom ­

petitive conversion of a cooperative education student 
in accordance with the requirements of FP M  chapter 

3 0 8 .
(3 )  A  position ch ange from  a p osition  having  

known promotion potential to  a position having no 

higher potential.
(4 )  A  tem porary promotion of 120 days or less.
(5 ) Selection of a candidate from  the Reem ploy­

ment Priority List for a  position at a higher grade than 
the one last held in the com petitive service.

(6 ) Repromotion to a grade or position from  which  
an em ployee was demoted without personal cause and 

not at his or her request.
(7 ) Consideration of a candidate not given proper 

consideration in a com petitive promotion action.

1 - 6 .  G R IE V A N C E S

Em ployees have the right to file a com plaint relating 
to a promotion action. Such com plaints shall be re­
solved under appropriate grievance procedures. The 
standards for adjudicating com plaints are set forth in 
Part 3 0 0  of title 5 ,  C ode of Federal Regulations. W hile  
the procedures used by an agency to identify and rank  
qualified candidates are proper subjects for formal 
com plaints or grievances, nonselection from  am ong a 
group of properly ranked and certified candidates is not 
an appropriate basis for a form al com plaint or griev­
ance. There is no right of appeal to the O P M , but the 
OPM  may conduct investigations o f substantial viola­

tions of O PM  requirem ents.

Inst. 282 
April 2,1982Federal Personnel Manual



338-7

F . P . M .  C h a p t e r  3 3 8 ,  S u b c h a p t e r  3  ( 1 9 8 1 )

S u b ch ap ter 3 . Q ualification Standards

3 - 1 .  G E N E R A L

Qualification standards control the movement of 
employees into and within the Federal service by pre­
scribing the experience, skills, knowledges, and abil­
ities required for filling positions. The person to be 
selected for any position in the competitive service 
(whether under the General Schedule or not) must 
meet the standard the OPM has established for that 
position. The standards established for the entrance 
level jobs in many occupations are developed to pre­
dict not only ability to perform the duties of the po­
sition, but also potential to perform more difficult and 
responsible duties in positions at higher grades in the 
occupation. An agency must obtain prior approval of 
the OPM for any exception to the qualification stand­
ards other than those provided for noncompetitive 
actions in section 3 -3  below. (Guidance on the ap­
plication of qualification standards to individuals is 
found in part 11 of Civil Service H andbook  A’-1 1 8 . 
See also Chapter 271, Subchaptei 4. Development of 
Qualification Standards.)

3 - 2 .  A P P R O V E D  S T A N D A R D S  F O R  
C O M P E T IT IV E  A P P O IN T M E N T S

a. G en eral. For appointments from registers, OPM 
will have determined the appropriate qualification 
standard. For appointments outside the register, the 
appropriate qualification standard is determined in 
accordance with the instructions in this section.

b. Single agen cy  positions. For positions peculiar 
to a single agency, apply the special standards issued 
to the individual agency by OPM.

c. O th e r G en eral Schedule positions. Apply the 
standards in H andbook X - l  18, or in probational ex­
amination specifications. When there is no applicable 
standard in H andbook X - l  18 or a probational ex­
amination specification, apply the standard in the lat­
est appropriate examination announced in the civil 
service jurisdiction in which the position is located.

d. T ra d e s  an d  la b o r jo b s . Apply the sets of ap­
proved job elements in H andbook X - l  18C, J o b  Qual­
ification System fo r  Trades an d  L abor Occupations. 
May 1% 9, according to the provisions of that hand­
book and other applicable OPM qualificatiion guides; 
the standard indicated in the latest appropriate ex­
amination in the civil service jurisdiction where the 
job is located; or the appropriate probational exami­
nation specification. (However, apply mandatory ex­
amining guides for W B -3800  Metal Worker and 
W B -2600  Electronic Mechanic in the August 1964 
edition of H andbook X - l  ISC . Qualification Stand­
ards f o r  Wage B oard  Positions, until the guides are 
rescinded.) After June 30, 1970, the sets of job ele­
ments in the 1969 edition of H andbook X -I IS C  will 
be mandatory for all trades and labor jobs.

e. P ostal field serv ice  positions. Apply the stand­
ards in H andbook X - l  I SB.

f. D ifferent s ta n d a rd s . In an area where there is 
an open-competitive examination with standards dif­
ferent from those in H andbook X - l  18. apply the 
standard in the examination announcement until the 
announcement is closed.

3 - 3 .  A P P R O V E D  S T A N D A R D S  F O R  
IN S E R V IC E  P L A C E M E N T  A C T IO N S

a. G e n e ra l. It is the OPM ’s general policy that the 
standards for inservice placement actions are the same 
as the standards for competitive actions. The same 
standard applies to an employee moving from one 
position to another as to a new appointee. Except as 
provided for below, the standards identified in section 
3 -2  apply in inschfice placement actions. If, how­
ever, the standard in a Competitive examination that 
is open  is different from the published standard, agen­
cies have the option of using either the standard in 
the open-competitive examination or the published 
standard (including approved sets of job elements 
listed in appendices A ‘and B. H andbook X - l  1 8 0 )  
When the standard of an open-competitive examina-

Federal Personnel Manual
Inst. 262

May 7, 1981

A - 2 6



(Con't)
tion is applied, no written test will be required on a 
pass-or-fail basis except as prescribed in paragraph 
3 -3d  below. If the standards in an appropriate closed 
announcement are to be used for inservice placement, 
prior approval of the appropriate examining office of 
OPM is required.

b. M in im um  s ta n d a rd s . The standards identified 
in section 3 -2 ,  with the modifications and exceptions 
shown below, apply at a minimum in filling positions 
by promotion, appointment of present or former em­
ployees. position change, or transfer, or by reem­
ployment outside the commuting area of a former 
employee from the reemployment list. (Guidance on 
establishing qualification standards for promotion is 
found in chapter 335.)

c . C o n v ersio n s an d  ap p o in tm en ts th rou gh  in- 
serv ice  p lacem en t a c tio n . ( I ) In general the standards 
identified in section 3 -2  apply to:

(a) Inservice conversion to career or career-con­
ditional employment covered in section 7 -2  of 
chapter 315, or under Executive orders imple­
menting section 2(a) of the Ramspeck Act.

(b) Career or career-conditional appointments un­
der special authorities covered in subchapter 
6 of chapter 315.

(2) The OPM may waive the written test when the 
test is one of aptitude and it is practicable to establish 
equivalent experience and training requirements. In 
addition, the written test will be waived if the nominee 
has passed the test in an appropriate competitive ex­
amination conducted by an OPM office or board of 
examiners within five years before the date of the 
request for conversion.

(3) Experience and training of employees recom­
mended for an action covered in ( I ) above are credited 
up to the date of recommendation.

d. W ritte n  an d  p e rfo rm a n ce  tests. Except for 
those occupations listed in H andbook X - l  18, part 11, 
section IV , the OPM provides that agencies may 
waive test requirements for inservice placement ac­
tions. This recognizes that for employees in the com­
petitive service, alternative ways to measure quali­
fications are available and preferred. Optional use of 
written tests by agencies for inservice placement ac­
tions must comply with the provisions of FPM chapter 
335 and FPM S u pplem en t  3 3 5 -1 , Appendix A, 
Uniform Guidelines on Employee Selection Procedures.

e. O th e r  m od ification s to s ta n d a rd s . Occasion­
ally, the OPM finds it advisable to authorize inservice 
placement requirements different from those used for

open-competitive announcements. Usually these 
modifications recognize alternative ways for the can­
didate to show that he/she possesses the knowledges, 
skills, and abilities required to perform the work. The 
information on actual work performance available for 
inservice placement actions allows qualifications de­
terminations of this nature that would not be feasible 
in competitive examinations. Any modification of 
competitive requirements, unless specifically de­
scribed in the qualification standard, must be ap­
proved by the appropriate office of OPM.

f. E x ce p tio n s . (1 ) Agencies may make exceptions 
to qualification requirements, subject to the restric­
tions in (2) below, when an employee is:

(a) Reassigned or demoted in reduction in force, 
or reemployed from the reemployment priority 
list.

(b) Entitled to grade retention as provided by 5 
U .S.C . 5362 and Part 536 of OPM regulations 
and placed in a position no lower than the grade 
to which downgraded and no higher than his/ 
her retained grade.

(c) Reassigned or demoted between positions in 
the same line of work. White-collar positions 
under the General Schedule in the same class 
series, or trades and labor positions in the same 
trade or occupational group, usually are in the 
same line of work when they are enough alike 
to permit change of employees from one po­
sition to another; i.e ., when the knowledges, 
skills, and abilities required for satisfactory 
performance in the new position are no greater 
than those required in the old position.

(d) Reassigned or demoted because of physical in­
capacity which renders him/her incapable of 
performing the duties of his/her present posi­
tion and which is not the result of vicious hab­
its. intemperance, or willful misconduct. In 
addition, reassignments or demotions under 
this subparagraph are subject to the same re­
strictions as assignments of employees in re­
duction in force. (See chapter 351, section 7 -7 . 
For applicable physical standards in inservice 
placement actions, see chapter 339, section
2 -4 .)

(2) (a) An agency may assign an employee by 
displacement or to a vacancy by waiving qualification 
requirements, except for minimum educational qual­
ifications prescribed by OPM, when it determines the 
employee has the capacity, adaptability, and special

Inst. 262
May 7, 1981 Federal Personnel Manual

A-2 7



ouocnapier J . yuuujKuuon standards 338-9

(Con' t)
skills required by the position. However, an agency 
may not waive qualification requirements in the as­
signment o f an employee to a position at a grade, or 
grades, higher than the one occupied at the time of 
reassignment or downgrading. These restrictions also 
apply to waiver of qualification requirements in the 
placement of a former employee whose name appears 
on a reemployment priority list.

(b) Exception authorized by this section is made 
only at the discretion of the agency.

(3) Return from military service. The OPM will 
approve a request for the promotion or reassignment 
of an employee who has returned to duty in his/her 
agency after military service, even though he/she does 
not meet the standard for his/her position provided:

(a) The agency unqualifiedly recommends him/her 
and certifies that he/she lost opportunity for 
promotion or reassignment because of his/her 
military service; and

(b) The OPM finds that his/her training and em­
ployment record indicates that he/she is capable 
of performing the duties of the position.

3 - 4 .  O B T A IN IN G  S T A N D A R D S  

a. G e n e ra l. To fill by competitive action or in- 
service placement action a position for which there

is no approved standard, agencies must either submit 
the case to OPM for prior approval or request OPM 
furnish a standard. The agency should, if possible, 
submit a proposed standard for OPM review. (See 
H andbook X - l  18, part II, section I .)

b. E x ce p tio n . No standard is required when an 
employee is going to a position of the same or lower 
grade or pay level and in the same line of work.

3 - 5 .  E F F E C T I V E  D A T E  O F  Q U A L IF IC A T IO N  
S T A N D A R D S

a. G e n e ra l. Qualification standards are effective 
on the date o f receipt unless otherwise specified by 
OPM. (A reasonable period of time is allowed for 
implementation.)

3 - 6 .  R E C O R D IN G  S T A N D A R D S  AND  
E M P L O Y E E  Q U A L IF IC A T IO N S

a. R e co rd in g  sta n d a rd s  and em ployee qualifi­
ca tio n s . The standard used must be shown on a record 
in the employee’s personnel folder except as noted 
in appendix A. To promote accuracy in applying 
standards and to maintain records for inspection, 
agencies are advised to record those qualifications of 
the employee or applicant which substantiate the de­
termination of eligibility (see appendix A).

Federal Personnel Manual
Inst. 262

May 7, 1981



O P M  X - 1 1 8  S t a n d a r d s

4
r

Defendants' Exhibit 2 in the District Court was the X-118 
qualifications standards for 73 job series, representing sub­
stantially all those used at MARAD Headquarters. Because of 
the length of the exhibit, it will not be reproduced here.

A-2 9



I

1