High v. Kemp Brief in Opposition for the Respondent

    J v-

No. 84-3070 c < ^ f ~

IN THE UNITED 
FOE THE

STATES COURT OF APPEALS 
ELEVENTH CIRCUIT

ERNEST L. GRIFFIN, e: al . ,
Plaintiffs-Appallants, Cross-Appellees,

v .

PAUL N. CARLIN, Postmaster General,
De f endant-Appellee, Cross-App e11 ant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLORIDA

PETITION
SUGGESTION

FOR REHEARING AND 
OR REHEARING SN BANC

OF COUNSEL:
tour s A . Cox

General Counsel
Stephen E. Aipern

Associate General Counsel 
Office of Labor Law

Lynn D. Poole 
Attorney
United Stares Postal 
Service

RICHARD K. WILLARD
Actinq Assistant Attorney Ge

ROEERT W. MERKLE
United Stares Attorney

ROBERT 3. GREENSPAN
E . ROY HAWKENS
HAROLD J . KRENT

Atto m e  vs, Appellate Staff
Civil Divi sion. Room 3348
Department cl Justice
Washington . D.C. 20530
TeIeohcne: (202) S33-315S

-  1



TABLE OF CONTENTS
PAGE

STATEMENT OF COUNSEL REGARDING EN BANC SUGGESTION..............
STATEMENT OF THE ISSUES.............................................. 1
STATEMENT OF THE COURSE OF PROCEEDINGS AND

DISPOSITION OF THE CASE............................................ 2
FACTS.................................................................... 2
ARGUMENT................................................................ 6
T. THE PANEL SUBVERTED ACCEPTED TITLE VTI

PRINCIPLES BY TRANSFORMING A DISPARATE TREATMENT 
CASE INTO A DISPARATE IMPACT CASE, THEREBY SHIFTING 
THE BURDEN TO THE EMPLOYER TO DEMONSTRATE THE 
VALIDITY OF ALL FACETS OF ITS EMPLOYMENT
PRACTICES......................................................... 6

II. THE PANEL ERRED BY RULING THAT THE DISPARATE
MODEL CAN BE USED TO CHALLENGE SUBJECTIVE PROMOTION PROCEDURES AND THE FINAL RESULT OF THE
OVERALL PROMOTION PROCESS..............................  .11

CONCLUSION............................................................. 15

CERTIFICATE OF SERVICE.............................................. 15

l



TABLE OF AUTHORITIES

Cases :
Allen v. Prince George's County, 7 37 F.2d 
] 2 99 (4 th C ir . 19S4 .............................................. 4

Anderson v. City of Bessemer, 105 S. Ct. 1504 
( 1985 ............................................................... 4

Connecticut v. Teal, 457 U.S. 440 ( 19821.................... 12
Contreras v. City of Los Angeles, 656 F . 2d 
1267 (9th Cir. 1981), cert. denied , 455
U.S. 1021 (1982 )................................................  14
Dot ha rd '7. Raw 1 i ns o n , 433 U.S. 321 ( 19 7 7).................6,12
Furnco Construction Co. v. Waters, 4 3 8 U.S. 567 

. ................................................................ 14
General Electric Co. v. Gilbert, 429 U.S. 125 
( ................................................................... 1 2

'* Griggs v. Duke Power Co., 401 U.S. 424 (1971 )..........5,6 , 12

International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977 )........................ 6,1 2

* McDonnell Douglas Corp. v. Green, 411 U.S. 792( 19 7 3 ................................   2 ,7 , 1 3

Pope v. City of Hickory, 679 F.2d 20 (4th Cir.
198 2 )............................................................... q

Porter v . Adams, 639 F.2d 273 (5 th Cir. 1981).............. 10
* Pouncy v. Prudential Insurance Co., 668 F .2d 795

(5th Cir. 19«2)............................................... 9 '13
* Pullman-Standard v. Swint, 456 U.S. 273 (198 2).............. 4

Robinson v. Polaroid Corp., 732 F .2d 1010 
( 1 st Cir. 1984 ).................................................. 9

Segar v. Smith, 7 38 F.2d 1249 (D.C. Cir. 1984), 
petit ion for c e r t . filed ................................. 5,8,11

* Texas Department of Community Affairs v.
Bu rd i ne , 450 U.S. 248 (1Q81).......................... 2,6,8,14



Statute and Regulation: 
Title v x i ............ pass lm

* Cases and authorities chiefly relied upon are rnarked by 
asterisks.

- i i i -



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 84-3070

ERNEST L. GRIFFIN, et al.,
Plaintiffs-Appellants, Cross-Appellees, 

v.
PAUL N. CARLIN, Postmaster General,

Defendant-Appellee, Cross-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF FLQRIDA

PETITION FOR REHEARING .AND 
SUGGESTION FOR REHEARING SN BANC

STATEMENT OF THE ISSUES
1) Whether an employer in a Title VII disparate treatment 

class action, to rebut plaintiffs' claim of purposeful 
discrimination based on a statistical disparity, must bear the 
burden of identifying and then validating all practices which 
conceivably might explain the statistical disparity even though 
plaintiffs have not alleged that any specific practice 
violates Title VII under a disparate impact theory.

2) Whether under the disparate impact model, the employer 
must bear the burden of validating both subjective promotion 
procedures and the final results of the overall promotion 
process.



STATEMENT OF THE COURSE OF PROCEEDINGS 
AND DISPOSITION OF THE CASE

At stake in this case is the orderly and just administration 
of Title VII litigation. Complex, class-wide suits require 
courts to engage in careful analysis and evaluation of the 
evidence in accord with the substantive principles of law 
underlying the statute. The panel in this case departed from 
these principles in ways that not only caused it to reach the 
wrong result in this case, but also will have seriously harmful 
effects on the conduct of future Title VII litigation. The- 
oanel simply ignored the method of-proof for disparate treatment 
cases prescribed in Texas Department of Community Afiairs v. 
Burdine, 450 U.S. 248 (1381), and McDonnell Douglas Coro, v. 
Green, 411 U.S. 732 (1373), and formulated insread a conflicting 
analytical framework that automatically converts a disparate 
treatment case into a disparate impact case whenever plaintiffs 
base their allegations of purposeful discrimination on a 
statistical disparity in the workforce.

FACTS
Plaintiffs, black employees of the United States Postal 

Service at Jacksonville, Florida, commenced the instant Title 
VII action on July 7, 1372. They alleged that the Postal 
Service discriminated in making assignments and promotions, 
although they did not specify any employment practice in 
particular which adversely affected the opportunities for blacks 
to advance in the Postal Service hierarchy. The district court 
certified a class consisting of black employees at the 
Jacksonville Post Office and all black applicants and

2



Afterprospective applicants for employment at that office.
much discovery and intervening events not directly relevant to
this petition, a consolidated amended complaint was filed on
November 12, 1931. Slip op. at 2770.^

On September 8, 1982, the district court dismissed
plaintiffs' disparate impact claims on the ground that
plaintiffs’ pleadings had failed to apprise the Postal Service
as to which employment practices would be challenged on this
theory. The court reasoned chat

none of plaintiffs' pleadings have put 
defendants on notice as to which employment 
practices will be challenged on this theory.
Sven plaintiffs' resoor.se to the pending 
Morion to Dismiss does not allege which 
practices would be so challenged * * *.
Plainriffs have had ample opportunity to give 
defendants such notice and yet they have not 
done so. There is no question but than 
defendants would be grossly prejudiced if 
plaintiffs were allowed to proceed under this 
theory [(emphasis supplied) (R.E. 141).]

The court also held that in any event, only objective, facially
neutral employment practices could be challenged on a disparate
impact theory. The case thus proceeded to trial under a
disparate treatment theory. Slip op. at 2771.

In the same order, the district court dismissed the portion 
of plaintiffs' complaint that challenged use of written tests in 
the promotion process because plaintiffs had failed to exhaust 
administrative remedies as to the testing issue. The panel has 
reversed the district court on that issue. Slip op. at 2774.
2 Before trial, the Postal Service made a continuing effort to 
understand the nature of plaintiffs' disparate impact claims.
It filed an interrogatory requesting detailed information on 
these impact claims, and plaintiffs responded that they would 
answer when they had more information (R. at 2292). Defendants 
consequently filed objections to this answer, but withdrew that 
objection on plaintiffs' assurance that they would respond "when 
they have the information available to do so." R. at 2303. 
Plaintiffs never responded.



The district court ultimately found that the Postal Service 
did not discriminate systematically against blacks seeking 
supervisory positions. The Court found the Postal Service's 
statistical evidence to be more credible than plaintiffs', and 
it discounted plaintiffs' anecdotal evidence of purposeful 
discrimination.

A panel of this Court reversed in part. With respect to
plaintiffs' disparate treatment claim, the panel held that the
district court erred in discrediting plaintiffs' statistics

3 _concerning promotional decisions. Slip op. at 2777-2778.

The panel's disparate treatment holding gave little or no 
weight to the careful findings of the district court in its 302 
page opinion. See R.E. at 148-449. The district court, in 
weighing the probative value of two sets of statistics with 
respect to the appropriate labor pool, necessarily made 
credibility judgments in ruling for the Postal Service. It was 
for the trial court to decide, given the availability of "other, 
better, evidence in the form of applicant flow analyses," what 
weight to give the testimony proffered by both sides. Allen v. 
Prince George's County, 737 F.2d 1299, 1305 (4th Cir. 1984).
As the Supreme Court has made clear:

[D ]iscriminatory intent is a finding of fact 
to be made by the trial court; it is not a 
question of law and not a mixed question of 
law and fact * * *.

Pullman-Standard v. Swint, 456 U.S. 273, 289-290 (1982).
See also Anderson v. City of Bessemer, 105 S. Ct. 1504 
(1985). But the panel viewed the conflicting testimony on 
statistics as presenting "a matter of law," slip op. at 2778, 
and thus made a de novo finding as to the appropriate labor 
pool. The panel, therefore, clearly erred under Pullman- 
Standard in supplanting the trial court's evaluation of the 
evidence presented. This manifest abuse of the "clearly 
erroneous" standard presents an additional ground for en banc 
review.

In fact, the panel seemingly ignored the findings of the 
district court when it remanded the disparate treatment claim

(CONTINUED)



The panel instructed the district court on remand to apply the 
analysis that was recently formulated by the D.C. Circuit in 
Seqar v. Smith, 738 F.2d 1249 (D.C. Cir. 1934), petition for 
cert. filed. Specifically, if plaintiffs on remand establish a 
prima facie case of disparate treatment, the burden will shift 
to the Postal Service not only to explain ohe disparity by 
reference to facially neutral business procedures, but to 
demonstrate the validity of those practices under a disparate 
impact analysis. Slip op. at 2778-2781.

Finally, the panel held that the disparate impact model 
could be used to challenge not only objective standards but also 
subjective promotion procedures, such as interviewing, 
recommendations, and the like. The panel emphasized that Title 
VII requires the elimination of all "artificial, arbitrary, and 
unnecessary barriers to employment." Slip op. at 2775-2773. 
Because either subjective selection procedures or the 
interaction of multi-component selection procedures may create 
arbitrary and unnecessary barriers to employment, the Court 
concluded than such procedures’ should be subject to disparate 
impact challenges. Id.

J (FOOTNOTE CONTINUED)
for the district court to consider the craft work force 
statistics. Slip op. at 2773. The district court had already 
concluded that "[e]ven if plaintiffs' statistical study were 
reliable and credible * * * the Court could draw no inference of 
intent to racially discriminate in promotions by the 
Jacksonville Post Office from the results." R.E. at 436.

5



ARGUMENT
I. THE PANEL SUBVERTED ACCEPTED TITLE VII PRINCIPLES 

BY TRANSFORMING A DISPARATE TREATMENT CASE INTO A 
DISPARATE IMPACT CASE, THEREBY SHIFTING THE BURDEN 
TO THE EMPLOYER TO DEMONSTRATE THE VALIDITY OF ALL 
FACETS OF ITS EMPLOYMENT PRA.CTICSS.

The substantive principles of law underlying Title VII 
recruire that disoarate treatment claims and disparate impact 
claims be analyzed differently. When class-wide claims of 
disparate treatment are in issue, "[p]roof of discriminatory 
motive is critical." International Brotherhood or Teamsters v. 
United States, 431 U.S. 324, 335 n.15 (1977). In contrast, 
the employer's motive is irrelevant in a disparate impact case. 
Id. at 335. Once plaintiffs have shown that a particular 
employment practice has a disparate impact, thereby establishing 
a prima facie case, the employer will be held liable unless it 
can justify that practice on the basis of business necessity. 
Dothard v. Rawlinson, 433 U.S. 321, 329 (1977); Griggs v. Duke 
Power Co., 401 U.S. 424, 430 (1971). The panel, by 
automatically converting a disparate treatment case into a 
disparate impact case and then placing the burden on the 
employer to prove the business necessity of facially-neutral 
employment practices, has seriously distorted well-established 
Title VII analysis.

The panel's ruling conflicts with the Supreme Court's 
careful description of the method and order of proof to be 
followed in disparate treatment cases. In 3urdine, the Court 
explained that the burden on the defendant is "to rebut the 
presumption of discrimination [raised by plaintiffs' prima facie 
case] by producing evidence that the plaintiff was rejected, or

6



someone else was preferred, for a legitimate, nondiscriminatory 
reason." 450 U.S. at 254. The Court then held that if the 
employer presents "a legitimate reason for the action" the 
burden shifts back to the plaintiff to show that the proffered 
reason was not the true reason for the employment decision, but 
was a pretext for discrimination. 450 U.S. at 255-256; see also 
McDonnell Douglas Coro, v. Green, supra. This method of proof 
nowhere contemplates a remairenien'c that the employer show the 
business necessity of the legitimate, nondiscriminatory reason 
for the employment decision. Indeed, the panel's decision 
effectively eliminates the burden placed upon plaintiffs by 
McDonnell Douglas to prove pretext.

In determining whether a practice asserted by an employer as 
a defense to a disparate treatment charge is a legitimate, 
nondiscriminatory reason for the observed disparity, the court 
may properly evaluate the reasonableness of the practice. But 
the purpose of that inquiry is simply to determine whether the 
employer had, in fact, intentionally discriminated against 
plaintiff -- i.e., whether the asserted practice was legitimate, 
or merely a pretext for discrimination. Under the panel's 
ruling, however, the evaluation of the asserted employment 
practice is not limited to this inquiry. Instead, it wrongly 
changes the focus of the inquiry from whether purposeful 
discrimination occurred to whether there is a business necessity 
for the practice. Without the foundation of a disparate impact 
case -- in which plaintiffs identify, plead, and present 
evidence that a particular employment practice has a disparate 
impact on a protected class -- there is no legal basis for

7



requiring the employer to prove the business necessity of a
A.facially neutral practice.*

The panel's revision of the Surdine analysis, as even it 
acknowledged, slip op. at 2774, conflicts with the rule in most 
other circuits. See Pouncy v. Prudential Insurance Co., 668 
F.2d 795 (5th Cir. 1982); Robinson v. Polaroid Corn., 732 F.2d 
1010, 1014 (1st Cir. 1934); Pose v. City of Hickory, 679 F.2d 
20, 22 (4th Cir. 1982). These circuits recognize that "[t]he 
discriminatory impact model of proof in an employment discrimina 
tion case is not * * * the appropriate vehicle from which to 
launch a wide ranging attack on the cumulative effect of a

’ Indeed, the burden imposed upon the employer in this case is 
greater than that imposed by the D.C. Circuit in Segar v.
Smith, supra. There, the Court held that:

[W]hen an employer defends a disparate 
treatment challenge by claiming that a 
specific employment practice causes the 
observed disparity, and this defense 
sufficiently rebuts the plaintiffs' initial 
case of disparate treatment, the defendant 
should at this point face a burden of proving 
the business necessity of the practice.
[Emphasis supplied. 738 F.2a at 1270.]

In Griffin, unlike Segar, defendants never relied on any 
specific employment practice to explain the statistical 
imbalance. The Postal Service chose instead to rebut 
plaintiffs' claims of intentional, systematic discrimination by 
analyzing those aspects of the promotion process most completely 
subject to the control of the Jacksonville Post Office, that is, 
promotion after employees attained the hiring register. When 
defendants demonstrated that there was no discrimination in that 
area, they rested, and did not attempt to identify a cause or 
causes for the disparities identified by plaintiffs. In 
applying the Segar analysis to the circumstances of this case, 
the panel therefore is requiring the Postal Service not only to 
justify the employment practices that caused the statistical 
disparity, but to identify those practices that conceivably 
could have contributed to the disparity. In essence, the panel 
is requiring the Postal Service to make a prima facie disparate 
impact case for plaintiffs, and then rebut it.

8



company's employment practices. Pouncy, supra, 668 F.2d a
800. If plaintiffs wish to use the disparate impact model, they
must identify a particular practice and present evidence showing
that it has a disproportionate, adverse effect on them or
members of their class. See Pope v. City of Hickory,

5sunra.
The panel's ruling also undercuts an important goal of Title 

VII by virtually eliminating the possibility for conciliation 
between plaintiffs and employers. Porter v. Adams, 639 F.2d 
273, 277 (5th Cir. 1981) ("conciliation, rather than litigation, 
is a recognized goal of Title VII"). A carefully constructed 
administrative process has been made a prerequisite to bringing 
suit so that, to the extent possible, differences can be worked

D Moreover, the practical difficulties that this rule would 
cause in other federal employment cases are enormous. Virtually 
all employment qualification determinations in the federal civil 
service, whether for initial placement, promotion, or entry into 
training programs, are based on minimum qualification standards 
published by OPM. The panel's ruling could place at issue the 
validity of innumerable qualification standards, with the 
consequent staggering expense of validation of such standards, 
even in the absence of any challenge to those standards under a 
disparate impact theory. Litigation against any individual 
agency would threaten the employment practices of the entire 
government, because the Court's ruling could require a federal 
agency to show the business necessity of a standard prescribed 
government-wide by OPM. When objective employment 
qualifications are published, and thus readily available to 
plaintiffs, and plaintiffs have not charged or proved that any 
such practice violates Title VII under a disparate impact 
theory, there is no justification for imposing such burdens on 
the government as an employer.

So, here, too, the Postal Service publishes employment 
qualifications, and they are readily available to plaintiffs.
The expense of validating these qualifications would be 
substantial, see infra, and the mere expense could very well 
serve as a disincentive to the Postal Service to derend Title 
VII actions even when such course of action is in the public 
interest.

9



out informally between employer and employee without resort'to 
litigation. The panel's theory, allowing conversion of a 
disparate treatment case to a disparate impact case in mid­
trial, circumvents the administrative process and the 
possibility of conciliation between employee and employer prior 
to trial. Indeed, because the panel's opinion does not require 
plaintiffs to identify any particular employment practice at 
all, it renders the exhaustion requirement all but 
superfluous. See Brown v. General Services Administration,
425 U.S. 320, 332 (1976).

Thus, the court of appeals' ruling automatically converting 
a disparate treatment case into a disparate impact case in the 
midst of litigation will have an immediate and crippling effect 
on orderly procedure and fair resolution of Title VII .cases.
Here, for instance, the Postal Service will have the cumbersome 
task of determining what led to the statistical disparity and 
then validating all potential factors, even though plaintiffs 
have reoearedly failed to identify any practices as violative of 
Title VII. This would require the Postal Service to ascertain 
which of its numerous tests and/or registers, or other possible 
qualification standards, interview processes, considerations 
regarding experience, seniority, discipline or attendance might 
be responsible for the statistical imbalance.

There is no need to speculate about the added burden that 
the Postal Service would have to bear in defending this lawsuit 
if, as the panel held, plaintiffs could convert the disparate 
treatment case into a disparate impact case. The district court 
specifically found that "defendants would be grossly prejudiced

10



if plaintiffs were allowed to proceed under [a disparate impact]
£theory." R.E. at 141. But under the panel's analysis,

"gross prejudice" is apparently irrelevant to the inquiry. In 
the face of a statistical disparity, employers must as a matter 
of course identify and validate all employment practices which 
conceivably contribute to the disparity, despite the possible 
prejudice. That plaintiffs in this case repeatedly failed to 
identify which practices they were challenging is of no concern 
to the panel. Thus, the enormous expense and difficulties for 
employers, and particularly the federal government, that will be 
caused by the rule announced by the panel argues scrongly for en 
banc review.^

II. THE PANEL ERRED BY RULING THAT THE DISPARATE IMPACT 
MODEL CAN BE USED TO CHALLENGE SUBJECTIVE PROMOTION 
PROCEDURES AND THE FINAL RESULT OF THE OVERALL 
PROMOTION PROCESS.

The
applies
greater

panel's holding that the disparate impact analysis 
to subjective promotion procedures places an even 
burden upon the employer. According to the panel, upon

The expense of validating tests and procedures long since 
abandoned will be an enormous financial burden, one which may 
well chill the Postal Service's litigation efforts. The Postal 
Service informs us that it reported to the court in Contreras v. 
Carlin, Mo. C-82-560S (C.D. Cal.), that the expense of 
validating three tests alone amounted to approximately two 
million dollars. By imposing such a burden on employers, the 
panel's decision unfairly skews the course of the litigation.
7 A petition for certiorari is currently pending m  Segar. We 
will inform the Court of any further action raken in that 
case. While we believe that the weighty issues implicated in 
the panel's decision warrant further review, at a minimum, this 
Court should hold the instant petition pending the Supreme 
Court's disposition of the Segar petition.

11



plaintiffs' presentation of a prima facie case based upon 
statistical disparity, the defendant must not only identify and 
defend the validity of all pertinent objactive'promotion 
practices, it must identify and validate subjective practices as 
well. That burden is not only contrary to Supreme Court 
precedent, but it simply is unworkable.

The Supreme Court first developed a discriminatory impact 
analysis in Griggs v. Duke Power Co., supra■ There an 
employer used objective personnel selection devices —  an 
education requirement and standardized tests —  to select 
employees. Similarly, every other Supreme Court disparate 
impact case of which we are aware has involved an objective 
selection device, or rule, used to classify applicants or 
employees for the purpose of making personnel decisions. See, 
e.g., Connecticut v. Teal, 457 U.S. 440 (1982) (written 
examination); General Electric Co. v. GiIbert, 429 U.S. 125, 137
140 (1976) (exclusion of disabilities due to pregnancies from 
disability plan); Doth'ard v. Rawlinson, supra, 433 U.S. at 328- 
332 (height and weight requirements). Conversely, where 
subjective decisions are involved, the Court has employed the 
disparate treatment model. See, e.g., International Srotnernood 
of Teamsters v. United States, supra.

Indeed, the Supreme Court has stressed that subjective 
factors simply cannot be analyzed within the disparate impact 
framework. In McDonnell Douglas Coro, v. Green, supra, 411 
U.S. at 806, an employee alleged that the employer refused to 
hire him because of his prior involvement in civil rights 
activities, and he alleged that the employer structured its

12



hiring policies so 
vacating the court 
that the disparate 
subjective busines

as to exclude qualified black applicants, 
of appeals decision, the Court emphasized 
impact analysis is not applicable to 

s decisions:

In

But Griggs differs from the instant case in 
important respects. It dealt with 
standardized testing devices which, however 
neutral on their face, operated to exclude 
many blacks who were capable of performing 
effectively in the desired positions. * * * 
[Here, the employer] does not seek [the 
applicant's] exclusion on the basis of a 
testing device which overstates what is 
necessary for competent performance * * * 
and,.in'the absence of proof of pretext or 
discriminatory application of such a reason, 
this cannot be thought the kind of 
"artificial, arbitrary, and unnecessary 
barriers to employment" which the Court found 
to be the intention of Congress to remove.

411 U.S. at 306. Therefore, in 
subjective practices, the Court 
impact model is inappropriate.

evaluating an employer's
has held that the disparate
See also Bouncy, supra, 668 F.2d

at 800-801.
Moreover, because there is no accepted method of validating 

subjective business practices, the panel's decision is simply 
unworkable. The employer would presumably be forced to identify 
each component of the promotion process -- interviewing, 
recommendations, private encouragement -- and then demonstrate 
the business necessity of each step along the way. The panel 
nowhere explains how interview evaluations can possibly be 
validated. The panel's rule therefore invites courts to second 
guess managerial discretion. See generally Burnco Construction 
Co. v. Waters, 438 U.S. 567, 576-578 (1978). Subjective 
standards and practices, which by their nature leave much
discretion to expert personnel judgments are not susceptible of



validation in the same way that test scores, or height or weight 
limitations are, and in some instances may not be susceptible to 
validation at all. As the Supreme Court counselled in Burdine, 
supra, Title VII was "not intended to 'diminish traditional 
management prerogatives.'" 450 U.S. at 259 (creation omitted). 
See also Contreras v. City of Los Angeles, 656 F.2d 1267, 1278 
(9th Cir. 1981) ("[t]he legislative history, of Title VII 
clearly reveals that Congress was concerned about preserving 
employer freedom, and that it acted eo mandats employer color­
blindness with as little intrusion into the free enterprise 
system as possible"), cert. denied, 455 U.S. 1021 (1982).

In sum, the panel has drastically shifted the allocation of 
burdens in Title VII cases and, in so doing, has effectively 
abolished the well-established distinction beteween the 
disparate treament and disparate impact models. Pursuant to the 
panel's decision, whenever plaintiffs assert a statistical 
disparity, the employer must identify all factors, both 
objective and subjective, which may have contributed to that 
disparity, and then sustain an additional burden of validating 
each factor identified. Under the panel's analysis, a 
conclusion of discrimination may in essence reflect no more than 
an employer's failure to prove business necessity for each step 
of the promotion process.

14



CONCLUSION
For the foregoing reasons, the Court should grant rehearing

or rehearing en banc.
Respectfully submitted,

OF COUNSEL:
Louis A. Cox

General Counsel
Stephen E. Alpern

Associate General Counsel 
Office of Labor Lav

.Lynn D. Poole 
Attorney
United States Postal 
Service

RICHARD K . WILLARD
Acting Assistant Attorney General

ROBERT W. MERKLE
United States Attorney

ROBERT S. GREENSPAN 
E . ROY HAWKENS 
HAROLD J . KRENT

Attorneys, Appellate Staff 
Civil Division, Room 3348 
Department of Justice 
Washington, D.C. 20530 
Telephone: (202) 633-3159

MAY 1985 CERTIFICATE OF SERVICE
I hereby certify that on this 17th day of May, 1985 I served

a copy of the foregoing Fetition for Rehearing and Suggestion
for Rehearing En Banc upon Plaintiffs-Appellants, Cross-
Appellees by causing copies to be mailed, postage prepaid, to:

Charles S. Ralston, Esquire 
Gail J. Wright, Esquire 
Penda Hair, Esquire 
99 Hudson Street, 16th Floor 
New York, New York 10013-2815
B. Walter Kyle, Esquire 
1248 West Edgewood Avenue 
Jacksonville, Florida 32208-2768

f HAROLD J. KRENT
Attorney

15



STATEMENT OF COUNSEL REGARDING EN 3ANC SUGGESTION 
1. I express a belief, based on a reasoned and studied 

professional judgment, that the panel decision is contrary to 
the following precedents of. the Supreme Court: Texas Department
of Community Affairs v. Surdine, 450 U.S. 248 (1981), and 
McDonnell Douglas Corp. v . Green, 411 U.S. 792 (1973).

2. I further express a belief, based on a reasoned and 
studied professional judgment, that this appeal involves 
questions of exceptional importance:

a) .Whether an employer in a Title VII 
disparate treatment, class action, to rebut 
plaintiffs' claim of purposeful 
discrimination based on a statistical 
disparity, must bear the burden of 
identifying and then validating all practices 
which conceivably might explain the 
statistical disparity even though plaintiffs 
have not alleged that any specific practice 
violates Title VII under a disparate impact 
theory.
b) Whether the disparate impact model can be 
used to challenge subjective promotion 
procedures and the final results of the 
overall promotion process.

■HAROLD JV KRENT 
Attorney of Record 
for the United States



GRIFFIN v. CARLIN 2767

Ernest L. GRIFFIN, et al„ 
Plaintiffs-Appellants,

Cross-Appel lees, 
v.

Carl CARLIN. Postmaster General. 
Defendant-Appellee, 

Cross-Appellant.
No. 84—3070.

United States Court of Appeals, 
Eleventh Circuit.

March 28, 1985.

Black employees and former employ­
ees of certain post office brought Title VII 
action alleging, inter alia, discrimination in 
promotions. The United States District 
Court for the Middle District of Florida, 
Susan H. Black, J., certified the suit as a 
class action, dismissed plaintiffs’ challenge 
to written tests used in promotion process, 
and all disparate impact claims and found 
no disparate treatment in promotions, 
awards, discipline and details, and cross 
anpeals were taken. The Court of Appeais, 
Tuttle, Senior Circuit Judge, held that: (1) 
disparate impact theory could be used to 
challenge end result of multicomponent 
promotion process and to challenge subjec­
tive elements of that process; (2) craft 
work force was the appropriate labor pool 
rather than supervisory register for pur­
poses of determining whether plaintiffs’ 
statistics established a prima facie case of 
disparate treatment; furthermore, if, on 
remand, plaintiffs were able to establish 
prima facie case, defendants could not re­
but the presumption of discrimination by 
reliance on the supervisory registers or 
written tests unless those procedures had 
been validated as required under a dispar­

ate impact analysis; (3) third-party com­
plaint couid serve as administrative basis 
for the suit; and (4) district court did not 
abuse its discretion in certifying the suit as 
a class action.

Reversed in part, affirmed in part, and 
remanded.

1. Civil Rights ®=>38

Judicial complaint in Title VII action is 
limited to scope of the administrative inves­
tigation which could reasonably be expect­
ed to grow out of the charge of discrimina­
tion. Civil Rights Act of 1964, § 701 et 
seq., as amended, 42 U.S.C.A. § 2000e et 
seq.

2. Civil Rights <5=38

Postal Service employee’s administra­
tive complaint, which charged that quali­
fied blacks were being systematically ex­
cluded in training and development and op­
portunities for advancements, challenged 
aspects of Postal Service's employment 
practices which would reasonably include 
testing; thus, trial court erred in dismiss­
ing portion of employee’s complaint chal­
lenging use of written tests as a condition 
of promotion for failure to exhaust admin­
istrative remedies. Civil Rights Act of 
1964, § 701 et seq., as amended. 42 U.S. 
C.A. § 2000e et seq.

3. Civil Rights 3=9.10

Disparate impact theory could be used 
to challenge end result of multicomponent 
promotion process and to challenge subjec­
tive elements of that process. Civil Rights 
Act of 1964, § 701 et seq., as amended, 42 
U.S.C.A. § 2000e et seq.

Synopsis. Syllabi and Key Number Classification 
COPYRIGHT D 1985 by WEST PUBLISHING CO.

The Synopsis. Syllabi and Key Number Classifi­
cation constitute no part of the opinion of the court.



2768 GRIFFIN v. CARLIN

4. Civil Rights <2=43
In a disparate treatment case proof of 

discriminatory motive or intent is essential. 
Civil Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.

5. Civil Rights <5=43. 44(1)
Prima facie case of disparate treat­

ment may be established by statistics alone 
if they are sufficiently compelling and the 
prima facie case is enhanced if plaintiff 
offers anecdotal evidence to bring the cold 
numbers convincingly to life; once plaintiff 
establishes prima facie case of disparate 
treatment, burden shifts to defendant to 
rebut the inference of discrimination by 
showing plaintiffs statistics are misleading 
or by presenting legitimate nondiscrimina- 
tory reasons for the disparity and if de­
fendant carries that burden, presumption 
raised by prima facie case is rebutted and 
plaintiff must prove that the reasons of­
fered by employer were pretextual. Civil 
Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.

6. Federal Courts <5=850
Reviewing court may not reverse deci­

sion of district court unless court's findings 
of fact, whether subsidiary or ultimate 
fact, are clearly erroneous or court erred 
as a matter of law.

7. Civil Rights <5=44(4)
Federal Courts <£=955

Where’ promotions to supervisory posi­
tions in Postal Service were made almost 
exclusively from internal work force based 
in part on craft work force experience craft 
work force was the appropriate labor pool 
rather than supervisory register for pur­
poses of determining whether plaintiffs’ 
statistics establish a prima facie case of 
disparate treatment; furthermore, if, on

remand, plaintiffs were able to establish 
prima facie case, defendants could not re­
but the presumption of discrimination by 
reliance on the supervisory registers or 
written tests unless those procedures had 
been validated as required under a dispar­
ate impact analysis. Civil Rights Act of 
1964, § 701 et sea., as amended, 42 U.S. 
C.A. § 2000e et seq.

8. Civil Rights <£=44(4)
In disparate treatment case alleging 

discrimination in Postal Service’s system 
for promotions to higher, level supervisory 
positions and to nonsupervisory positions, 
trial court’s findings that plaintiffs’ statis­
tics and those promotions showed a mix of 
positive and negative deviations and that 
such results were typical of nondiscrimina- 
tory environment were not clearly errone­
ous; furthermore, trial court’s findings 
that blacks were not discriminated against 
in giving of awards and that race was not a 
statistically significant factor in the imposi­
tion of discipline were not dearly errone­
ous. Civil Rights Act of 1964, § 701 et 
seq., as amended. 42 U.S.C.A. § 2000e et 
seq.

9. Federal Courts <s=951
If, on remand, district court found a 

pattern or practice of discrimination 
against class of black employees and for­
mer employees of Postal Service, that 
should be taken into consideration in 
court's evaluation of individual claims. 
Civil Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.

10. Civil Rights <5=32(1)
Prerequisite to filing of Title VII law­

suit is the exhaustion of administrative 
remedies. Civil Rights Act of 1964,



GRIFFIN v. CARLIN 2769

§ 717(c), as amended, 42 U.S.C.A. § 2000e- 
16(c).

11. Civil Rights ®=32(1)
Inasmuch as the confusing Civil Ser­

vice Commission regulations in existence in 
1971 provided no clear means by which 
class action claims could be raised at the 
administrative level and that the adminis­
trative complaint filed by the Postal Ser­
vice employee satisfied the purpose of the 
administrative exhaustion requirement, em­
ployee’s third-party complaint satisfied re­
quirement of exhaustion of administrative 
remedies and could serve as the basis for 
Title VII class action suit. Civil Rights Act 
of 1964, § 717(c), as amended, 42 U.S.C.A.
§ 2000e-16(c).

12. Federal Civil Procedure <3= 162
Federal Courts <£=>317
Questions concerning class certifica­

tion are left to sound discretion of district 
court; assuming district court's determina­
tion is made within parameters of class 
action rule, its decision on class certifica­
tion will be upheld absent an abuse of 
discretion. Fed.Rules Civ.Proc.Rule 23, 23 
U.S.C.A.

13. Federal Civil Procedure <£=134.10
Named plaintiffs raised claims within 

periphery of claims raised by one plaintiff’s 
administrative complaint and therefore 
were proper named plaintiffs and the 
claims raised by those 22 plaintiffs satis­
fied the commonality and typicality require­
ments of class action rule and those plain­
tiffs also satistied adequacy of representa­
tion requirement; thus, district court did 
not abuse its discretion in certifying class 
consisting of all past, present, and future 
black employees of certain post office in 
Title ’VII suit alleging discrimination in pro­

motions. Fed.Rules Civ.Proc.Rule 23(a), 28 
U.S.C.A.; Civil Rights Act of 1964, § 701 et 
seq., as amended. 42 U.S.C.A. § 2000e et 
seq.

14. Civil Rights <t=38
Only issues that may be raised in a 

Title VII class action suit are those issues 
that were raised by representative parties 
in their administrative complaints, together 
with those issues that may reasonably be 
expected to grow out of the administrative 
investigation of their claims. Civil Rights 
Act of 1964, § 701 et seq., as amended, 42 
U.S.C.A. § 2000e et seq.

15. Federal Civil Procedure C=1S4.10
In a Title VII suit, it is not necessary 

that members of the class bring an admin­
istrative charge as the prerequisite for join­
ing as coplaintiffs in the litigation; it is 
sufficient if they are in a class and assert 
the same or some of the same issues. Civil 
Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.

16. Federal Civil Procedure <S=164
Adequate representation requirement 

of class action rule involves questions of 
whether plaintiffs’ counsel are qualified, 
experienced, and generally able to conduct 
a proposed litigation, and whether plain­
tiffs have interests antagonistic to those of 
the rest of the class. Fed.Rules Civ.Proc. 
Rule 23(a), 28 U.S.C.A.

Appeals from the United States District 
Court for the Middle District of Florida.

Before KRAVITCH and JOHNSON, Cir­
cuit Judges, and TUTTLE, Senior Circuit 
Judge.



2770 GRIFFIN v. CARLIN

TUTTLE, Senior Circuit Judge:

Ernest Griffin and 21 other black em­
ployees and former employees ' of the 
United btates Postal service ac Jackson­
ville, Florida, appeal from a decision of the 
district court finding no classwide or indi­
vidual discrimination under Title VII of the 
Civil Rights Act of 1964, as amended, 42 
U.S.C. § 2000e-16. Appellants contend 
that tne district court erred in excluding 
their challenge to written tests used in the 
promotion process, in excluding all dispar­
ate impact claims, and in finding no dispar­
ate treatment in promotions, awards, disci­
pline, and details. On cross-appeal, the 
Postal Service argues that the district 
court erred in allowing a third-party com­
plaint to serve as the administrative basis 
for this suit and in certifying this suit as a 
class action.

On August 29, 1971, Griffin filed with 
the United States Civil Service Commission 
a complaint under the third-party compiaint 
procedure authorized by then-current regu­
lations of the Commission and of the Postal 
Service. 5 C.F.R. § 713.204(d)(6) (1971); 39 
C.F.R. § 747.5(a) (1971). The compiaint 
stated:

Please accept this letter as a third par­
ty discrimination complaint against Post­
master J.E. Workman of the Jackson­
ville, Florida Post Office. This discrimi­
natory complaint is based on race since 
qualified blacks were and are still being 
systematically excluded in training and 1

1. (1) D'Alver L. Wilson, Distribution Clerk; (2) 
Charles C. .McRae, Clerk: (3) Richard Deloney, 
Mailhandler; (4) Samuel George, Clerk: (3) Al- 
phonso West, Clerk; (6) Erno Denefield. Mail- 
handler; (7) Thaddeus E. Raysor, Clerk; (S) 
Margie L. Raysor, Distribution Clerk: (9) Joe 
Bailey, Jr., Clerk: (10) Andrew Edwards, Carri­
er; (11) Claude L. Smith, Clerk Technician; (12)

development and opportunities for ad­
vancements.

The Postal Service investigated the com­
plaint and found no discrimination.

On July 7, 1972, plaintiffs filed a class 
action suit in federal district court chal­
lenging defendant's use of discriminatory 
assignment and promotion methods and 
other discriminatory employment practices. 
On January 9, 1973, the district court en­
tered an order authorizing plaintiffs to pro­
ceed as representatives of a class and dis­
missing that portion of the plaintiffs’ com­
plaint which challenged the use of written 
tests in the promotion process. The dis­
missal was based on the court’s finding 
that plaintiffs had failed to exhaust admin­
istrative remedies as to the testing issue.

In 1976, plaintiff Griffin was fired from 
the Postal Service. He appealed the dis­
charge under the then-existing regulatory 
scheme to the United States Civil Service 
Commission. In that appeal, he raised the 
claim that he had been discriminated 
against because of his race and that the 
action was part of a pattern and practice of 
racial discrimination and reprisal against 
those persons challenging discrimination. 
Griffin timely filed a supplemental com­
plaint in the present action raising .those 
claims. On the district court's order, a 
consolidated amended complaint was filed 
on November 12, 1981. This complaint 
again alleged discrimination against blacks 
in defendant s assignment and promotion 
methods and other employment practices.

Smith M. Morgan. Clerk Technician; (13) Jesse 
L. Wilcox. Clerk; (14) Harvev J. Harper, Clerk- 
da) Joyce A. Scales, Clerk; (16) Albert Jackson.
Jr., Mailhandler; (17) Kenneth A. Rosier, Distri- 
uiition Clerk; (18) Andrew D. Martin, Jr., Clerk; 
(19) James Williams, Clerk; (20) John H. Fowl­
er, Mechanic; (21) Dons D. Galvin, Relief Win­
dow Clerk.



GRIFFIN v. CARLIN 2771

On September 8, 1982. the district court 
dismissed plaintiffs’ disparate impact 
claims on the grounds that plaintiffs’ plead­
ings had failed to put defendants on notice 
as to which employment practices would be 
challenged on this theory and that only 
objective, facially neutral employment prac­
tices could be challenged on a disparate 
impact theory. Thus, the case proceeded to 
trial on a disparate treatment theory.

The Jacksonville Post Office employed an 
average of 1,880 persons during the period 
covered by this lawsuit. Approximately 32 
percent of these employees were black. 
The employees included clerks, mail han­
dlers, city carriers, window clerks, and mo­
tor vehicle operators.

The Jacksonville Post Office promotes 
persons to supervisory positions almost en­
tirely from within its work force. The pro­
cess for promotion to initial supervisory- 
positions has undergone some changes dur­
ing the period covered by the lawsuit. In 
1968, the Post Office used two written ex­
aminations, one for vehicle services and 
one for the post office branch. In order to 
be placed on the supervisory register and 
be eligible for promotion, employees had to 
attain a particular score on the examina­
tion. The top 15 percent of the employees 
on the register were placed in the “zone of
c o n s i d e r a t i o n ’’ a n d w e r e  n o t i f i e d  o f s u p e r -

2 .
Year Pace Levels l —6 Levels 7 & Above H at 7 -
1969 Black 720 10 1 %

Other 1131 171 13%
1970 Black 711 12 2%

Other 1133 171 13%
1971 Black 666 11 2%

Other 1134 166 13%
1972 Black 647 11 2 %

Other 1063 166 13%
1973 Black 756 17 2%

Other 1230 162 12%
1974 Black 753 23 3%

Other 1221 177 13%
1975 Slack 744 27 4%

Other 1213 185 13%

visory vacancies. In 1972, the zone of con­
sideration standard was eliminated and per­
sons who had attained a passing score on 
the examination were evaluated and graded 
by- their supervisors. Those receiving an 
“A” rating were eligible for immediate pro­
motion. In 1976, the examination was elim­
inated and employees were instead re­
quired to complete a training program as a 
precondition for promotion. In 1978, the 
Postal Service initiated the Profile Assess­
ment System for Supervisors (PASS) which 
made eligibility for the supervisory regis­
ters dependent on both supervisory assess­
ment and self-assessment. No written ex­
amination was used under the PASS pro­
gram. Under all of these promotion sys­
tems, promotion advisory boards inter­
viewed and recommended eligible candi­
dates for promotion, and the final selection 
was made by the Postmaster.

Both plaintiffs and defendants relied 
heavily on statistical data. Plaintiffs’ sta­
tistics showed that blacks are far more 
likely to noid jobs at level 4 or lower and 
far less likely to hold jobs at or above level 
7, the initial supervisor/ level.,2 According 
to plaintiffs, the probabilities that the 
grade distributions shown in their tables 
would occur by chance are one in 10,000. 
Plaintiffs' statistics showed that while 35

Year Race Levels 1-6 Lcveis 7 4  Above H a l  7*
1976 Black 723 23 4%

Other 1159 186 14%
1977 3lack 712 23 4% .

Other 1122 131 14%
1973 3lack 702 43 6%

Other 1103 133 14%
1979 3lack 680 63 9%

Other 1106 227 17%
1980 3!ack 734 51 6%

Other 1189 195 14%
1981 Black 723 46 6%

Other 1225 185 13%

Source: Table 12. Plaintiffs' Exhibit ■*!.



GRIFFIN v. CARLIN

percent of the work force is biack, blacks 
held only 5 percent of all supervisor/ jobs 
in 1969 and only 21 percent in 1981. These 
statistics also indicated that blacks were 
promoted to supervisory positions in num­
bers far lower than expected from 1964 
through 1976. Plaintiffs contend that the 
kev to the under-representation of blacks in 
supervisory positions is their under-repre­
sentation on the supervisory registers. 
Their statistics indicated that the probabili­
ties that the number of blacks on the regis­
ters could have occurred by chance ranged 
from 15 in one hundred trillion in 1968 to 
67 in 100,000 in 1977.3

Plaintiffs’ statistics were based on the 
use of the entire craft work force of the 
Jacksonville Post Office as the applicant 
pool for supervisory positions. The 
government contends that the appropriate 
pool is those individuals on the supervisory- 
registers. Using this pool, the govern­
ment’s statistics showed no evidence of 
systemic discrimination against blacks 
seeking supervisory positions.

Plaintiffs’ statistics showed a consistent 
statistically significant over-disciplining of

3.
Craft Reij!isters Probability

Register White Black White Black

1968 1084 583 86 3 .1481 D-12’
1970 1070 580 123 16 .4160 D— 10
1973 1053 617 216 49 .1206 D-i 1
1974 1055 652 155 71 .1399 D-Ol
1975 982 627 220 34 .32-16 D-06
Mav '77 949 641 81 26 .2436 D-03
Dec. 77 949 641 39 32 .6700 D-03
1978 PM 933 611 14 5 .1708

Vab 933 611 16 9 .4413
CS 933 611 105 59 .1811
MP 933 611 116 93 .9492

*D-12 indicates that in the number to the left the decimal point 
shouid be followed by 12 zeroes, and so on.

Source: Tabie 2. Plaintiffs’ Exhibit *1.

blacks in comparison to their numbers in 
the relevant work force. Blacks, who con­
stitute 35 percent of the work force, re­
ceived between 52 and 67 percent of the 
discipline.4 The government concedes that 
blacks are disciplined more often than 
whites, but argues that factors other than 
race explain the disparity. Defendants’ 
statistics illustrated that black employees 
at the Jacksonville Post Office are. on the 
average, younger than white employees 
and take more time off from work. The 
Postal Service statistics also demonstrated 
that, controlling for the number of previ­
ous offenses, black employees did not re­
ceive more severe punishment than white 
employees.

In finding no discrimination, the district 
court held that plaintiffs' statistical tables 
had negligible probative value. This find­
ing was based in part on the court’s deter­
mination that plaintiffs’ expert had failed 
to control for relevant variables, such as 
the fact that promotions were made only 
from those on the supervisor/ registers. 
In addition, the court noted that defendants 
were able to point out errors in many of

4.
Incidences of Disciplinary Action by Race. Percentage of 

Discipline and Year.

Year 3iack Other Total Probability
* % 4 %

1969 66 54% 57 46% 123 .001
1970 77 66% 39 34% 116 .COl
1971 63 65% 34 35% 97 001
1972 51 65% 23 35% 79 .001
1973 38 55% 31 45% 69 COl
1974 100 51% 98 49% 198 .001
1975 324 64% 182 36% 36 .001
1976 161 56% 124 44% 235 .001
1977 22 •67% 11 33% 33 .001
1973 204 53% 144 41% 348 .001
1979 154 55% 124 45% 278 .001
1980 178 52% 165 48% 343 001
1981 305 52% 235 48% 590 .001

Source: Table 9.1. Plaintiffs’ Exhibit *1.



GRIFFIN v. CARLIN 2773

plaintiffs tables, that many of plaintiffs’ 
tables provided no raw data, and that the 
credibility of plaintiffs' expert was under­
cut by his presentation at the last minute 
of a substantially new statistical report. 
The court found the report prepared by 
defendant’s expert to be a reliable and 
credible analysis of the promotion practices 
at the Post Office. The court also found 
that, based upon the government's statis­
tics, it is likely that there were different 
characteristics, patterns of conduct, or re­
actions to circumstance which explain the 
different levels of discipline.

Appellants introduced the testimony of 
24 black class members to bring their sta­
tistical evidence to life. The district court 
concluded that appellants had not produced 
a single witness who had demonstrated a 
claim of discrimination. The court found 
that many of plaintiffs’ witnesses were not 
believable, that others were mistaken that 
they were eligible for promotion, that oth­
ers were not as qualified as the employee 
selected, that some of the promotions chal­
lenged had gone to black employees, and 
that there were other non-discriminator/ 
reasons to explain the other alleged in­
stances of discrimination. I.

I. DISMISSAL OF PLAINTIFFS'
■ CHALLENGE TO THE WRITTEN 

TESTS
The district court's order of January 9, 

1973, dismissed that portion of plaintiffs’ 
complaint challenging the use of written 
tests as a condition of promotion. The 
court noted that the requirement of ex­
haustion of administrative remedies is sat­
isfied when the issues .(a) are expressly 
raised in the pleadings before the adminis­
trative agency, (b) might reasonably be ex­
pected to be considered in a diligent investi­
gation of those expressly raised issues, or

(c) were in fact considered during the inves­
tigation. The court held, however, that the 
Postal Service had not had an opportunity 
to consider the issue of the written test.

[1,2] The starting point for determin­
ing the permissible scope of a judicial com­
plaint is the administrative charge and in­
vestigation. The judicial complaint is limit­
ed to the scope of the administrative inves­
tigation which could reasonably be expect­
ed to grow out of the charge of discrimina­
tion. . Evans v. L.S. Pipe & Foundry Co., 
696 F.2d 925, 929 (11th Cir.1983); Eastland 
v. Tennessee Valley Authority, 714 F.2d 
1066. 106< (11th Cir.1983), cert, denied sub 
nom., James v. Tennessee Valley Authori­
ty’ —  U.S. -----, 104 S.Ct. 1415, 79
L.Ed.2d 741 (1984). Griffin’s administra­
tive complaint charged racial discrimination 
in that “qualified blacks were and are still 
being systematically excluded in training 
and development and opportunities for ad­
vancements.” We hold that Griffin’s com­
plaint clearly challenged aspects of defend­
ant’s employment practices which would 
reasonably include testing. The written 
examinations were an integral part of the 
promotional scheme from 1968 through 
1976 because employees became eligible for 
promotion to supervisory positions only by 
attaining a passing score on the examina­
tion. Thus, the impact of the written tests 
should have been encompassed in a reason­
able investigation of this charge of system­
ic discrimination in promotions.

In fact, the investigative report prepared 
by the Postal Service at the conclusion of 
its investigation contains numerous refer­
ences to the written tests. The report con­
tains copies of both the 1968 and 1971 
supervisory registers, and indicates that 
only one black was in the zone of consider-



2774
GRIFFIN v. CARLIN

ation for promotion. The investigator’s re­
port indicates that almost half or" the 31 
black employees interviewed referred to 
the- supervisory register or the written ex­
amination. Several of these specifically in­
dicated that they were ineligible for super­
visory positions because they had failed the 
written examination.

e find that the testing issue was or 
should have been included in a reasonable 
investigation of the administrative com­
plaint. We therefore reverse the order of 
the district court dismissing plaintiffs' chal­
lenge to the written tests and remand for 
consideration of that claim.

II. DISMISSAL OF DISPARAGE IM­
PACT CLAIMS

[3] In the court below plaintiffs sought 
to reiy on a disparate impact theory as well 
as on a disparate treatment theorv. Plain­
tiffs sought to apply the disparate impact 
theory both to the final results of the mul­
ti-component promotion process and to sev­
eral component parts of that process, in- 
c.udmg promotion advisory boards, awards,

A1" 6' In 'tS °rder of September S,’ 
the district court granted defendant's 

motion to dismiss all claims by plaintiff 
based on a disparate impact theory. The 
court found that disparate impact analysis 
is appropriate only to challenge objective, 
facially neutral employment practices, and 
not to challenge either the cumulative ef­
fect of employment practices or subjective 
decision-making. The court further found 
that plaintiffs' pleadings had failed to put 
deie.niants on notice as to which employ­
ment practices would be challenged on a 
disparate impact theory.

The district court relied on Pouncy v. 
Prudential Insurance Company o f Amer­
ica, 668 F.2d 795 (5th Cir 1982). and on

tirarns v■ Ford Motor Co., 651 F.2d 609 
(8th Cir.1981). In Harris, the Eighth Cir­
cuit neid that a subjective decision-making 
system.cannot alone form the foundation 
tor a disparate impact case. Id. at 611 In 
Pouncy, the Fifth Circuit stated:

The discriminatory impact mode! of 
proor in an employment discrimination 
case is not, however, the appropriate ve­
hicle from which to launch a wide rang­
ing attack on the cumulative effect of a 
company's employment practices 
We require proof that a specific practice 
results m a discriminatory impact on a 
c.ass in an employer's work force in or­
der to allocate fairly the parties' resoec- 
tive burdens of proof at trial.. . .  Identi­
fication by the aggrieved partv of the ' 
specific employment practice responsible 
for the disparate impact is necessary so 
that the employer can respond by offer- 
mg proof of its legitimacy.

Id. at 300-01.

, A recent Eleventh Circuit decision re- 
ierrea to the Pouncy case and indicated 
that use of the disparate impact model to 
attack the excessive subjectivity 0f a per­
sonnel system is “troublesome.” The court 
stated, however:

Former Fifth Circuit precedent, how­
ever, indicates that subjective selection 
and promotion procedures may be at­
tacked under the disparate impact theo- 
7oq ^  Johnson v. Uncle Ben's, Inc.,
628 F._d 419, 426-27 (5th Cir.1980) va- 
catea 451 U.S. 902. 101 S.Ct. 1967, 68 
L.£d.2d 290 (1981), modified and a ffd  
m part rev’d in part. 657 F.2d 750 (5th 
tir.1981), cert, denied, 459 U.S. 967 103 
S.Ct. 293, 74 L.Ed.2d 277 (1982).

^ o TenneSSee VaLley Authority,<04 F d 613, 619-20 (11th Cir.1983), cert, 
denied suo nom., James v. Tennessee Val-



GRIFFIN v. CARLIN

ley Authority, —  U.S. -----, 104 S.Ct.
1415. 79 L.Ed.2d 741 (1984). In Eastland. 
the Court declined to decide whether the 
prior Fifth Circuit case law was distin­
guishable because the Court found that 
plaintiffs had failed to prove discrimination 
under the disparate impact theory.

In this case the issues of whether the 
disparate impact model can be used to chal­
lenge the final results of a multi-component 
selection process and whether the disparate 
impact model can be used to challenge sub­
jective elements of a selection process are 
squarely before us.' We find that we are 
bound by former Fifth Circuit precedent to 
allow disparate impact challenges to the 
end result of multi-component selection 
procedures and to subjective selection pro­
cedures.5 6 Further, we hold that even if 
these prior Fifth Circuit cases were not 
binding, use of the disparate impact theory 
to challenge the end result of multi-compo­
nent selection processes and to challenge 
subjective elements of those processes is 
appropriate. We therefore reverse the or­
der of the district court dismissing plain­
tiffs’ disparate impact claims.

Several decisions of the former Fifth Cir­
cuit, binding on this panel, applied a dispar­

5. Fifth Circuit decisions prior to October 1. 
1981, are binding in this Circuit and cannot be 
overruled except by the court acting en banc. 
Bonner v. Citv of Prichard, 661 F.2d 1206, 1207 
(11th Cir.1981).

6. We note that while many subseo.uent Fifth 
Circuit cases have followed Pouncy, see e.g., 
Carroll v. Sears, Roebuck & Co., 70S F.2d 183, 
138 (5th Cir. 1983) ("The use of subjective crite­
ria to evaluate employees in hiring and job 
placement decisions is not within the category 
of facially neutral procedures to which the dis­
parate impact modei is applied."), at least one 
posi-Pouncy Fifth Circuit decision has applied 
disparate impact analysis to a subjective promo­
tional system. Page v. U.S. Industries, Inc., 726 
F.2d 1038 (5th Cir.1984). In Page, the Court 
noted the Pouncy decision but stated:

ate impact analysis to the end result of 
multi-component selection processes con­
taining subjective elements. For example, 
in Johnson v. Uncle Ben's, Inc., 628 F.2d 
419, 426-27 (oth Cir. 1980), vacated, 451 
U.S. 902, 101 S.Ct 1967, 68 L.Ed.2d 290 
(1981), modified and affid in part, rev'd 
in part, 657 F.2d 750 (5th Cir. 1981), cert, 
denied. 459 U.S. 967, 103 S.Ct. 293, 74 
L.Ed.2d 277 (1982), the court applied a dis­
parate impact analysis to a promotion sys­
tem based on the use of subjective supervi­
sory evaluations. See also, •Crawford v. 
Western Electric Co., Inc., 614 F.2d 1300, 
1318 (5th Cir.1980) (applying disparate im­
pact analysis to index review system in­
volving subjective elements); Rowe v. Gen­
eral Motors Corp.. 457 F.2d 348, 354-55 
(5th Cir.1972) (applying disparate impact 
analysis to promotion system involving 
foreman’s recommendations).

Even if we were not bound by these 
decisions to allow application of disparate 
impact analysis to the end result of a multi- 
component promotion process and to pro­
cesses involving subjective elements, we 
would still be inclined not to follow the 
decision of the current Fifth Circuit in 
Pouncy.* The Supreme Court first articu-

It is clear that a promotional system which 
is based upon subjective seiection criteria is 
not discriminatory per se. Consequently, 
such a system can be facially neutral but vet 
be discriminatorily applied so that it impacts 
adversely on one group. In using a disparate 
impact analysis, the district court pointed out 
that many of this Court's decisions examine 
the classwide impact of a subjective promo­
tional system. See. e.g„ dames v. Slockham 
Valves di Fittings Co., 559 F.2d 310 (5th Cir. 
1977), cert, dented. 434 U.S. 1034, 98 S.Ct. 767, 
54 L.Ed.2d 731 (1973); Ro-.ve v. General .'do- 
tors Corp.. 457 F.2d 348 (5th Cir.1972). We 
agree with the district court’s assessment that 
the subjective promotional system in this case 
indeed may have had a classwide impact. 
Thus, we examine the defendant's promotion-



GRIFFIN v. CARLIN

laced the disparate impact model of discrim­
ination, under which proof of discriminato­
ry intent is not necessary, in Griggs v. 
Duke Power Co., 401 U.3. 424, 91 S.Ct. 
849, 28 L.Ed.2d 158 (1971), In Gnggs, the 
Court indicated that Tide VII requires “the 
removal of artificial, arbitrary, and unnec­
essary barriers to employment” which “op­
erate as built-in headwinds' for minority 
groups and are unrelated to measuring job 
capability.” Id. at 431-32, 91 S.Ct. at 853- 
54. The Court in Gnggs did not differenti­
ate between objective and subjective barri­
ers, and, in tact, the Court made frequent 
rerere.nces to “practices” and “proce­
dures,” terms that clearly encompass more 
than isolated, objective components of the 
overall process.7

In the recent case of Connecticut v. 
Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 
L.Ed.2d 130 (1982), the Supreme Court held 
that the “bottom line" result of a promo­
tional process could not be used as a de­
fense to a disparate impact challenge to a 
particular selection procedure used in that 
promotion process. The Court emphasised 
the holding in Gnggs that Title VII re­
quires the elimination of “artificial, arbi­
trary, and unnecessary barriers to employ­
ment,” and again did not differentiate be­
tween objective and subjective criteria nor 
give any indication that a disparate impact 
challenge could not be made to a promo­
tional system as a whole. See 457 U.S. at 
448-452, 102 S.Ct. at 2532-2534. The 
Court noted the legislative historv of the 
1972 amendments to Title VII, 86 Scat.

al system under the disparate impact model
as well.

Id. at 1046. We note also the recent decision of 
the D.C. Circuit in Segar v. Smith, 738 F.2d 
1249, 1288 n. 34 (D.C.Cir.1984) ('Though these 
practices arguably encompass some subjective 
judgments as to agents performance, we find

103-113, which extended Title VII to feder­
al government employees. The Court 
pointed out that Congress recognized and 
endorsed the disparate impact analysis em­
ployed in̂  Griggs. The Court specifically 
cited the Senate Report (S.Rep. No. 92-415_, 
p. 5 (1971)), which stated:

Employment discrimination as viewed 
.oday is a . . .  complex and pervasive 
phenomenon. Experts familiar with the 
subject now generally describe the prob­
lem in terms of 'systems’ and ‘effects’ 
lather than simpiv intentional wrongs.

Connecticut v. Teal, 457 U.S. 440, 447 n. 8, 
102 S.Ct. 2525, 2531 n. 8, 73 L.Ed.2d 130. 
The dissenters in Teal, while disagreeing 
with the Court’s conclusion that the bottom 
line could not be used as a defense, clearly 
indicated their understanding that dispar­
ate impact challenges could be made to the 
t.otai selection process. The dissenters 
stated that “our disparate-impact cases 
consistently have considered whether the 
result of an employer's total selection pro­
cess had an adverse impact upon the pro­
tected group.” Id. at 458, 102 S.Ct. at 2537 
(Powell, J„ dissenting) (emphasis in origi­
nal).

We have repeatedly held that subjective 
practices such as interviews and supervi­
sor}' recommendations are capable of oper­
ating as barriers to minority advancement. 
See. e.g.. Johnson, 628 F.2d" at 426; Rowe 
457 F.2d at 359; Miles v. M.N.C. Corp., 750 
F.2d 367, 871 (11th Cir. Jan. 13, 1985). 
exclusion of such subjective practices from 
the reach of the disparate impact model of

that disparate impact appropriately applies to 
them.')

7. Eg., 401 U.S. at 430, 91 S.Ct. at S33 ("prac­
tices, procedures, or tests'-); id. at 431, 91 S.Ct. 
at 853 ("practices'-); id  at 432, 9! S.Ct. at 354 
("employment procedures or testing mecha­
nisms ); id  ("any given requirement”).



GRIFFIN v. CARLIN

analysis is likely to encourage employers to 
use subjective, rather than objective, selec­
tion criteria. Rather than validate educa­
tion and other objective criteria, employers 
could simply take such criteria into account 
in subjective interviews or review panel 
decisions. It could not have been the in­
tent of Congress to provide employers with 
an incentive to use such devices rather 
than validated objective criteria.

Likewise, limiting the disparate impact 
model to situations in which a single com­
ponent of the process results in an adverse 
impact completely exempts the situation in 
which an adverse impact is caused by the 
interaction of two or more components. 
This problem was recognized in the recent 
Eighth Circuit decision in Gilbert v. City of 
Little Rock, Ark.. 722 F.2d 1390 (8th Cir.
1983), cert, denied, —  U.S.----- , 104 S.Ct.
2347, 80 L.Ed.2d 820 (1984). The Court 
there held that the district court's finding 
of no discrimination under a disparate im­
pact theory was incorrect because “the dis­
trict court neglected to adequately consider 
the interrelationship of the component fac­
tors and, more specifically, whether the 
oral interview and performance appraisal 
factors . . .  had a disparate im pact....” 
Id. at 1397-98.

Finally, we note that the Uniform Guide­
lines on Employee Selection Procedures. 29 
C.F.R. § 1607, developed by the four feder­
al agencies with responsibility for enforc­
ing Title VII, interpret the disparate impact 
model to apply to all selection procedures, 
whether objective or subjective. The 
Guidelines define the selection procedures 
to which a disparate impact analysis applies 
as follows:

Any measure, combination of meas­
ures, or procedure used as a basis for 
any employment decision. Selection pro­
cedures include the full range of assess­

ment techniques from traditional paper 
and pencil tests, performance tests, train­
ing programs, or probationary periods 
and physical, educational, and work expe­
rience requirements through informal or 
casual interviews and unscored applica­
tion forms.

29 C.F.R. § 1607.16(0.).
We therefore reverse the.order of the 

district court dismissing plaintiffs’ dispar­
ate impact claims and remand to that Court 
for consideration of the plaintiffs' disparate 
impact challenges to the final result of the 
defendants’ overall promotion process and 
to specific components of that process 
whether subjective or objective.

III. DISPARATE TREATMENT IN 
PROMOTIONS, DETAILS, DISCI­
PLINE, AND AWARDS

After the district court eliminated plain­
tiffs’ disparate impact claims, plaintiffs 
proceeded to trial on a disparate treatment 
theory. After consideration of plaintiffs’ 
statistical and anecdotal evidence, the dis­
trict court held that plaintiffs had failed to 
prove any class-wide discrimination.

[4,5] In a disparate treatment case 
proof of discriminatory motive or intent is 
essential. International Brotherhood of 
Teamsters v. United States, 431 U.S. 324, 
335-36 n. 15, 97 S.Ct 1843, 1854-55 n. 15, 
52 L.Ed.2d 396 (1977). In an action alleg­
ing class-wide discrimination plaintiffs 
must “establish by a preponderance of the 
evidence that racial discrimination was the 
company's standard operating procedure— 
the regular rather than the unusual prac­
tice.” Id. at 336, 97 S.Ct at 1855. A 
prima facie case of disparate treatment 
may be established by statistics alone if



277S GRIFFIN v. CARLIN

thev are sufficiently compelling. East- 
land. 704 F.2d at 613 (11th Cir.1983). The 
prima facie case is enhanced if the plaintiff 
offers anecdotal evidence to bring "the cold 
numbers convincingly to life." Teamsters, 
431 U.S. at 339, 97 S.Ct. at 1S56.

Once plaintiff establishes a prima facie 
case of disparate treatment, the burden 
shifts to defendant to rebut the inference 
of discrimination by showing that plain­
tiffs’ statistics are misleading or by 
presenting legitimate non-discriminatory 
reasons for the disparity. The defendant 
does not have to persuade the court that it 
was actually motivated by the proffered 
reasons. It is sufficient if the defendant 
raises a genuine issue of fact as to whether 
it discriminated. Texas Department of 
Community Affairs v. Burdine, 430 U.S. 
248, 254, 101 s 'C t 10S9, 1094, 67 L.Ed.2d 
207 (1981). If the defendant carries this 
burden, the presumption raised by the pri­
ma facie case is rebutted, and the plaintiff 
must prove that the reasons offered by the 
employer were pretextuai. Id. at 256, 101 
S.Ct. at 1095.

[6] This Court may not reverse the deci­
sion of the district court unless plaintiffs 
establish that the court’s findings of fact, 
whether of subsidiary or ultimate fact, are 
dearly erroneous or that the court erred as 
a matter of law. Pullman-Standard v. 
Swint. 456 lT.S. 273. 2S5-90, 102 S.Ct 1781. 
1788-91, 72 L.Ed.2d 66 (1982); Giles v. 
Ireland, 742 F.2d 1366, 1374 (11th Cir. 
1984). We now consider the court’s find­
ings as to each of the four challenged 
practices under this standard.

A. Promotions
[7] Although, as noted above, the dis­

trict court was critical of plaintiffs’ statis­
tics for several reasons, a key reason for

the court’s discrediting of the statistics 
concerning promotion to first level supervi­
sor, was that plaintiffs used the craft work 
force as the labor pool rather than using 
those employees on the supervisory regis­
ters. In making this criticism, the court 
erred as a matter of law because it exclud­
ed the first step of the promotion process, 
that of getting on the supervisory register. 
During the time period covered by this suit, 
that first step involved both objective ele­
ments, such as passing the written exami­
nation, and subjective elements, such as 
supervisory evaluations. When promotions 
to supervisory positions are made almost 
exclusively from the internal work force 
and when the primary qualification for pro­
motion is experience in the craft work 
force, the appropriate comparison is to this 
work force rather than to those on the 
supervisory register, who have already 
been screened by the agency through the 
use of various procedures. See Johnson, 
623 F.2d at 425; Carroll, 708 F.2d at 192. 
Because it is unclear whether the district 
court would have found plaintiffs' statistics 
sufficient to establish a prima facie case if 
it had considered the craft work force to be 
the appropriate labor pool, we must re­
mand this issue for further proceedings.

On remand if the plaintiffs establish a 
prima facie case of disparate treatment, the 
burden will shift to defendant to rebut the 
inference of discrimination by showing that 
plaintiffs' statistics are misleading or by 
presenting legitimate non-discriminatory 
reasons for the disparity. Burdine, 450 
U.S. at 254, 101 S.Ct at 1094. The district 
court relied in part on defendant’s statistics 
concerning the percentages of employees 
on the supervisory registers to find plain­
tiffs' statistics misleading. Appellants con­
tend that defendant cannot rely on the su-



GRIFFIN v. CARLIN 2779

pervisory registers to rebut the presump­
tion of discrimination unless the %vritten 
tests used in determining eligibility for the 
registers have been validated in compliance 
with Griggs. The Postal Service argues 
that it can rebut a prima facie case by 
articulating a reason which is non-discrimi- 
natory on its face and that it is not re­
quired to prove or validate its reason.

The necessity of validating selection de­
vices identified by employers to rebut a 
prima facie case of disparate treatment 
was exhaustively analyzed in a recent opin­
ion by Judge Wright for the District cf 
Columbia Circuit. In Segar v. Smith, 73S 
F.2d 1249 (D.C.Cir.1984), the Court dis­
cussed the nature of the burden on a de­
fendant in a pattern or practice disparate 
treatment case as follows:

The defendant must at least make a 
“clear and reasonably specific showing, 
based on admissible evidence, that the 
alleged nondiscriminatory explanation in 
fact explains the disparity. Burdine. su­
pra, 450 U.S. at 253-255, 101 S.Ct. at 
1093-1095. In the context of an individu­
al plaintiffs claim of disparate treat­
ment. the Court in Burdine suggested 
that a defendant need do no more than 
make such an articulation. Id. at 253- 
254, 101 S.Ct. at 1093-1095. Though the 
principles on which Burdine is oased are 
fully applicable to pattern or practice 
cases, the specific definition of the rebut­
tal burden on an employer in an individu­
al plaintiffs disparate treatment case 
should not be unthinkingly applied to 
class actions such as the present 
case. . . .

In the context of an individual’s suit, 
the bare articulation of a legitimate non­
discriminatory explanation generally 
suffices to undermine a plaintiffs initial 
proof . . .  because the plaintiff s prima

facie case will typically consist of the 
low-threshold showing of McDonnell 
Douglas Corp. v. Green. 411 L.d. 792, 93 
S.Ct. 1817, 36 L.Ed.2d 668 (1973).

When a defendant in a pattern or prac­
tice class action offers such an explana­
tion, the circumstances differ in two cru­
cial ways. First, to make an initial show­
ing of disparate treatment in such cases 
the plaintiff class will typically have 
presented statistical evidence showing 
pervasive disparities and eliminating 
most, if not all, potential nondiscrimina­
tory explanations for the observed dis­
parities. Though the employer is not 
required to meet a burden of persuasion 
in rebutting the disparate treatment 
claim, the nondiscriminatory explanation 
must cast sufficient doubt on the plain­
tiffs’ proof to permit the trier of fact 
legitimately to decline to draw an infer­
ence of discrimination from that proof. 
The bare articulation of a nondiscrimina­
tory explanation, while sufficient to re­
but an individual plaintiff s low-threshold 
McDonnell Douglas showing, generally 
will not suffice as a rebuttal to a typical 
class-wide showing of pervasive discrimi­
nation . . . .

Second, the employer's effort to rebut 
the pattern or practice claim by articulat­
ing a legitimate nondiscriminatory expla­
nation may have the efiect of putting 
before the court all the elements of a 
traditional disparate impact case. By its 
explanation of an observed disparity -he 
employer will typically pinpoint an em­
ployment practice (or practices) having a 
disparate impact on a protected class. 
And to rebut plaintiffs’ case the employ­
er will typically' be required to introduce 
evidence showing that the employment 
practice in fact caused the observed dis­
parity. See Burdine, supra, 450 U.S. at



2730 GRIFFIN v. CARLIN

258, 101 S.Ct. at 1096 (“defendant will 
normally attempt to prove the factual 
basis for its explanation”). In this situa­
tion, between the plaintiffs’ prima facie 
showing of disparity and the defendant’s 
rebuttal explanation of the disparity, the 
essential elements of a disparate impact 
case will have been placed before the 
trier of fact. Such a case is ripe for 
resolution using disparate impact analy­
sis. Though the plaintiffs in a disparate 
treatment case bear the burden of per­
suasion as to the existence of a disparity, 
the defendant bears the burden of prov­
ing the business necessity of the prac­
tices causing the disparity. Albemarle 
Paper Co. [r. Moody ], supra, 422 U.S. 
[405] at 425, 95 S.Ct. [2362] at 2375 [45 
L.Ed.2d 2S0 (1975) ]. Thus when an em- 

_ plover defends a disparate treatment 
challenge by claiming that a specific em­
ployment practice causes the observed 
disparity, and this defense sufficiently 
rebuts the plaintiffs’ initial case of dis­
parate treatment, the defendant should 
at this point face a burden of proving the 
business necessity of the practice.

Id. at 1268-70 (some citations and foot­
notes omitted).

Judge Wright noted that some other cir­
cuits, including the Fifth Circuit in Pouncy, 
have expressed a reluctance to apply dis­
parate impact analysis in this situation. 
The reluctance of these courts is based in 
part on the perceived unfairness of placing 
on the defendant the dual burden of articu­
lating which of its employment practices 
caused the adverse impact and of proving 
the business necessity of the practice and 
in part on the risk that an employer will be 
forced to justify the entire range of its 
employment practices when a plaintiff 
shows only that a disparity exists. Id. at 
1270.

The Segar Court found these concerns to 
be both unpersuasive and difficult to har­
monize with the purposes of Title VII. The 
Court noted that the rebuttal burden will 
be placed upon an employer only after a 
plaintiff class has shown a disparity in the 
positions of members of the class and the 
majority group who appear to be comoar- 
ablv qualified. The Court pointed out:

The defendant will in all likelihood 
point to a specific job. qualification or 
performance/evaluation rating as the ex­
planation for the observed disparity. 
Thus application of disparate impact in 
this situation will not, the- fears of the 
Pouncy court notwithstanding, place on 
the employer any additional burden of 
articulation; to rebut the disparate treat­
ment claim the employer will have had to 
articulate which employment practices 
cause an observed disparity. Nor will 
the employer be forced to justify all of 
its employment practices. The employer 
will be required to show the job related­
ness of only the practice or practices 
identified as the cause of the disparity.

Id. at 1271. The Court also noted that the 
purpose of Title VII is the removal of arti­
ficial, arbitrary and unnecessary barriers 
to employment which operate invidiously to 
discriminate on the basis of race or other 
impermissible classifications. The Court 
stated:

This purpose is not well served by a 
requirement that the plaintiff in every 
case pinpoint at the outset the employ­
ment practices that cause an observed 
disparity between those who appear to be 
comparably qualified. Such a require­
ment in effect permits challenges only to 
readily perceptible barriers; it allows 
subtle barriers to continue to work their 
discriminatory effects, and thereby



GRIFFIN v. CARLIN 2781

thwarts the crucial national purpose that 
Congress sought to effectuate in Title 
VII. “It is abundantly clear that Title 
VII tolerates no discrimination, subtle or 
otherwise.’’ McDonnell Douglas Corp., 
supra, 411 U.S. at SOI, 93 S.Ct. at 1S24. 
Thus when unnecessary- employer-creat­
ed barriers have been brought into the 
open through adjudication of a pattern or 
practice disparate treatment claim, these 
barriers should be evaluated under the 
disparate impact theory, as Congress in­
tended them to be.

Id. at 1271-72.
We agree with the analysis by the Court 

in Segar. Thus on remand, if the plaintiffs 
are able to establish a prima facie case of 
disparate treatment, the defendants may 
not rebut the presumption of discrimination 
by reliance on the supervisory registers or 
the written tests unless those procedures 
have been validated as required under a 
disparate impact analysis.

[8] Although the focus of plaintiffs' ap­
peal concerning discrimination in promo­
tions is on promotions to initial supervisory 
positions, plaintiffs also challenge defend­
ant’s system for promotions to higher level 
supervisory positions and to non-supervi­
sor; positions. The district court found 
that plaintiffs' statistics on these promo­
tions showed a mix of positive and negative 
deviations and that such results are typical 
of a non-discriminatory environment. We 
cannot say that these findings by the dis­
trict court are clearly erroneous.

B. Details

Plaintiffs alleged that blacks were dis­
criminated against in the awarding of de­
tails, i.e., temporary assignments to higher 
level positions to fill in for absent emdoy-

ees and to gain experience in those jobs. 
The plaintiffs contend that being assigned 
to a detail increases one's chances for per­
manent promotion at a later date. The 
district court found plaintiffs’ statistics on 
details unconvincing for a number of rea­
sons, but a primary reason was that plain­
tiffs statistics compared the number of 
employees detailed to the number of em­
ployees in the craft work force. The Court 
thus found that plaintiffs failed to control 
for other variables which were important in 
determining who was assigned to details, 
including the nature of the detail, and the 
experience, availability, and location of the 
employee. The Court found defendant’s 
statistics on details more convincing. De­
fendant’s statistics compared the number 
of employees detailed to a combination of 
the total number of employees in the craft 
and the number of employees on the super­
visory register. Apparently, preference in 
details is given to employees on the super­
visory register, but employees who are not 
on the register also often receive details. 
The Court’s conclusions with respect to de­
tails are infected by the same error that 
infected its conclusions as to promotions to 
initial level supervisory positions. The 
Court erroneously relied upon statistics by 
the defendant comparing those emplovees 
decailed to those employees on the supervi­
sory register. As discussed above, this is 
not the appropriate comparison. There­
fore, the Court's conclusions with respect 
to details are reversed and remanded for 
further proceedings.

C. Awards
The plaintiffs alleged that blacks were 

discriminated against in the giving of 
awards. The district court found that the 
studies by both plaintiff and defendant 
showed that blacks were sometimes award­



2732 GRIFFIN v. CARLIN

ed fewer awards than whites _ and some­
times more. The court also found that 
other characteristics, including perform­
ance levels, may account for any unequal 
distribution of awards. We cannot say 
that the court's findings as to awards are 
clearly erroneous.

D. Discipline

Both parties and the court agree that 
black employees at the Jacksonville Post 
Office receive a higher percentage of disci­
pline as a group than white employees. 
The court nevertheless found that race was 
not a statistically significant factor in the 
imposition of discipline at the Jacksonville 
Post Office. In so finding, the court relied 
both on the fact that there are internal and 
external review mechanisms for discipli­
nary actions at the Post Office and on data 
produced by the defendants showing that 
there are significant differences in the 
characteristics of the black and white post­
al employees. The court stated:

The system by which discipline is im­
posed at the Jacksonville Post Office, 
however, has innumerable checks and 
balances. Both internal reviews and sev­
eral methods of appeal are available to 
all employees. Disciplinary actions are 
subjected to such scrutiny as to substan­
tially reduce the likelihood of unwarrant­
ed discipline. Thus, there is the clear 
likelihood that the disciplinary actions 
are reflective of the employee’s conduct, 
not race.

Consistent with that likelihood are data 
which showed that there are significant 
differences in the characteristics of the 
black and white postal employees. The 
data shows, and the court finds, that 
black employees at the Jacksonville Post

Office are younger and take more leave 
than their white counterparts . . .  It is 
likely that there are other different char­
acteristics. patterns of conduct, or reac­
tions to circumstances which exist be­
tween groups of employees__  [The de­
fendant’s statistics], thus, permit the 
Court to infer that race is not a statisti­
cally significant factor in the imposition 
of discipline at the Jacksonville Post Of­
fice.

We cannot say that the court’s findings 
with respect to discipline are clearly errone­
ous.

IV. INDIVIDUAL CLAIMS

[9] The district court ruled that “as a 
matter of law .. .  no class representative 
or class member who testified established a 
claim of racial discrimination.” We vacate 
this judgment for reconsideration in light 
of our findings on the class claims dis­
cussed above. If the district court on re­
mand should find a pattern or practice of 
discrimination against the class, this should 
be taken into consideration in the court's 
evaluation of the individual claims. See 
Donaldson v. Pillsbury Co., 554 F.2d'825, 
833 (8th Cir.), cert, denied, 434 U.S. 856, 98 
S.Ct. 177, 54 L.Ed.2d 128 (1977).

V. EXHAUSTION OF ADMINISTRA­
TIVE REMEDIES

[10,11] A prerequisite to the filing of a 
Title VII lawsuit is the exhaustion of ad­
ministrative remedies. Brown v. General 
Services Administration. 425 U.S. 820, 
832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 
(1976); 42 U.3.C. § 2000e-16(c). Griffin 
filed an administrative complaint in 1971 
under the then-existing third-party com-



GRIFFIN v. CARLIN 2783

plaint procedure.8 Civil Service Commis­
sion regulations required agencies to set up 
two different administrative procedures to 
deal with discrimination complaints. See 5
C.F.R. §§ 713.211-.222, .251 (1971). The 
tirst procedure was to cover administrative 
review and determination of complaints of 
discrimination by individual empiovees. 
Id., §. 713.211—.222. The second was to 
cover review of personnel policies at the 
request of “third parties.” 9 In its cross­
appeal, the government argues that the 
third-party complaint procedure does not 
provide a proper administrative foundation 
for civil suit. Here, the trial court rejected 
this argument.

Two courts that have considered this is­
sue previously have held that the third-par­
ty complaint procedure cannot satisfy the 
requirement of exhaustion of remedies. 
James v. Rumsfeld, 580 F.2h 224. 227-28 
(6th Cir.l9<8); Caton v. Canal Zone 
Government, 522 F.Supp. 1, 8 (D.C.Z.19S1), 
at'fd. 669 F.2d 21S (5th Cir.1982). Neither 
of these decisions, however, addressed the 
confusing state of the Civil Service Com-

8. Griffin appealed to the Civil Service Commis­
sion following his discharge in 1976. This prop­
erly exhausted administrative remedies as to his 
discharge, but could not support all of this suit 
which challenges both discharge and other per­
sonnel practices dating back to 1969.

9. 5 C.F.R. § 713.251: Third party allegations of 
discrimination.

(a) COVERAGE. This section applies to gen­
eral allegations by organizations or other third 
parties of discrimination in personnel matters 
within the agency which are unrelated to an 
individual compiaint of discrimination subject 
to §§ 713.211 through 713.222.

(b) AGENCY PROCEDURE. The organiza­
tion or third party shall state the allegation with 
sufficient specificity so that the agency mav 
investigate the allegation. The agency mav re­
quire additional specificity as necessary to pro­
ceed with its investigation. The agency shall 
establish a file on each general allegation, and 
this file shall contain copies of ail material used

mission regulations governing federal em­
ployee complaints at the time Griffin filed 
his third-party complaint.

Prior to 1977, there was no clear means 
by which a federal employee could raise 
class claims. The Civil Service Commission 
would not allow an individual complaint to 
include class claims. Barrett v. United 
States Civil Service Commission, 69 
F.R.D. 544, 549, 552 (D.D.C.1975). If one 
filed an individual complaint with the agen­
cy and tried to raise class claims in court, 
the government would argue that there 
had been no exhaustion because the class 
claims were not raised in the agency. See 
McLaughlin v. Callaway, 382 F.Supp. 885, 
891 (S.D.Ala. 1974). If one filed a third
party complaint, as here, the government 
would argue that such a complaint was not 
an appropriate basis for a civil action. See 
Swain v. Hoffman, 547 F.2d 921, 923 (5th 
Cir. 1977). When Swain and McLaughlin 
reacr.ed the Fifth Circuit simultaneously, 
the Court held that class action suits could 
be maintained based on individual com-

in making ;he decision on the allegation. The 
agency snail furnish a copy of this file to the 
party submitting the allegation and shall make 
it available to the Commission for review on 
request. The agency shall notify the partv sub­
mitting the allegation of its decision, including 
an> corrective action taken on the general alle­
gations, and snail furnish to the Commission on 
request a copy of its decision.

(c) COMMISSION PROCEDURES. If the 
third party disagrees with the agency decision, it 
may, within 30 days after receipt of the deci­
sion, request the Commission to review :t. The 
request should be in writing and shail set forth 
with particularity the basis for the request. 
When the Commission receives such a request, 
it shail make, or require the agency to make, 
any additional investigations the Commission 
deems necessary. The Commission shail issue a 
decision on the allegation ordering such correc­
tive action, with or without back pay, as it 
deems appropriate.



2784 GRIFFIN v.'CARLIN

plaints. Strain. 547 F.2d at 924; 
McLaughlin v. Hoffman. 547 F.2d 913, 921 
(5th Cir. 1977). The problem presented by 
the regulatory scheme was resolved when 
the court in Barrett. 69 F.R.D. at 552. 
ordered the Civil Service Commission to 
accept class claims in the future. This led 
to revocation of the third party complaint 
regulations and issuance of comprehensive 
class action regulations, now found at 29 
C.F.R. §§ 1613.601 et seq.

Griffin sought in good faith to raise ciass 
claims under the obscure regulatory 
scheme existing prior to 1977. The govern­
ment should not be allowed to take advan­
tage of ambiguities created by its own reg­
ulations. The purpose of the administra­
tive exhaustion requirement is to put the 
agency on notice of all issues in contention 
and to allow the agency an opportunity to 
investigate those issues. The complaint in 
this case did put the agency on notice of 
the issues raised and the agency conducted 
a thorough investigation. Thus the pur­
pose of the exhaustion requirement has 
been fulfilled. Because the confusing Civil 
Service Commission regulations in exist­
ence in 1971 provided no clear means by 
which class action claims could be raised at 
the administrative level, Barrett, 69 F.R.D. 
at 553, and because the administrative com­
plaint filed by Griffin in this case satisfied 
the purpose of the administrative exhaus­
tion requirement, we hold that, in this case, 
the district court correctly found that Grif­
fin’s third-party complaint satisfied the re-

10. Fed.R.Civ.P. 23(a) Prerequisites to a Class 
Action. One or more members of a class may 
sue or be sued as representative parties on be­
half 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 claims or defenses of the repre­
sentative parties are typical of the claims or

quirenent of exhaustion of administrative 
remedies.

VI. CERTIFICATION OF CLASS AC­
TION

On cross-appeal the government con­
tends that the district court erred in certi­
fying this class action and in failing to 
decertify the class prior to judgment. The 
government argues that the commonality, 
typicality, and adequacy of representation 
requirements of Fed.R.Civ.P. 23 were not 
met.10

[12,13] Questions concerning class cer­
tification are left to the sound discretion of 
the district court. Assuming the district 
court's determination is made within the 
parameters of Rule 23, its decision on class 
certification will be upheld absent an abuse 
of discretion. Freeman v. Motor Convoy, 
Inc.. 700 F.2d 1339, 1347 (11th Cir.1983). 
This class was originally certified by the 
district court on January 9, 1973. The 
class consists of all past, present, and fu­
ture black employees of the Jacksonville 
Post Office.11 In response to a defense 
motion to dismiss the class ciaims in 1982, 
the district court gave a detailed opinion 
dated September 8, 1982, explaining its rea­
sons for allowing the class to proceed as 
certified in 1973. We hold that the district 
court did not abuse its discretion in allow­
ing this suit to proceed as a class action.

"The commonality and typicality require­
ments of Rule 23(a) tend to merge.’’ Gen­
eral Telephone Co. o f Southwest v. Fal-

defenses of the ciass, and (4) the representative 
parties will fairly and adequately protect the 
interests of the class.

11. As originally certified, the class included ap­
plicants for employment, but applicants were 
dropped from the ciass prior to trial.



GRIFFIN v. CARLIN 2785

con, 457 U.S. 147, 157 n. 13. 102 S.Ct. 2364, 
2371 n. 13, 72 L.Ed.2d 740 (1982). In this 
case, both requirements turn on a two-step 
inquiry. First, we must determine whether 
the 22 named plaintiffs raise claims within 
the periphery of the claims raised by Grif­
fin's administrative complaint and hence 
are proper named plaintiffs. Next, if the 
first inquiry is answered in the affirmative, 
we must determine whether the claims 
raised by these 22 plaintiffs satisfy the 
commonality and typicality requirements.

As discussed above, this suit began with 
the filing of a third-party complaint by 
Ernest Griffin under the then-existing Civil 
Service Commission procedures. The in­
vestigation of the third-party complaint- 
considered both issues of discrimination 
against Griffin personally and issues of 
discrimination against other named plain­
tiffs and class members. The investigative 
report indicated that while Griffin was on 
the supervisory register, he was not within 
the ‘‘zone of consideration” and therefore 
was not eligible for promotion. In addi­
tion, the investigation included subsequent 
allegations by Griffin that he had received 
a suspension and that he had been threat­
ened with termination. Thus, Griffin was 
directly affected by the discrimination al­

12, The 13 identified areas were:
(1) Lack of training and development in su­
pervisory positions for blacks.
(2) No black employees are in Customer Rela­
tions.
(3) No blacks are assigned as Postal Inspec­
tion Aides.
(4) Poor representation of blacks on Postmas­
ter's Promotional Advisory Board.
(5) Little or no recognition given blacks with 
college degrees. Qualified black employees 
with college degrees have not been trained for 
higher positions.
(6) Lack of advancements have caused blacks 
to leave Postal Service.
(7) Only token blacks appointed to Level 7 
and above.

leged in his third-party complaint. In addi­
tion, an affidavit prepared by Griffin at the 
request of the Postal Sendee investigator 
identified 13 specific areas of discrimina­
tion against blacks in the Jacksonville Post­
al Sendee.12

[14,15] The only issues that may be 
raised in a ciass action claim are those 
issues that were raised by representative 
parties in their administrative complaints, 
together with those issues that may rea­
sonably be expected to grow out of the 
administrative investigation of their claims. 
Eastland v. 'Tennessee Valley Authority, 
553 F.2d 364, 372 (5th Cir.1977), cert, de­
nied, 434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.2d 
479 (1977). It is not necessary that mem­
bers of the class bring an administrative 
charge as a prerequisite to joining as co­
plaintiffs in the litigation. It is sufficient if 
they are in a class and assert the same or 
some of the same issues. As co-plaintiffs, 
however, they must proceed within the pe­
riphery- of the issues which Griffin could 
assert. Oatis v. Crown Zellerbach Corp., 
398 F.2d 496, 499 (5th Cir.1963); see Jack- 
son v. Seaboard Coast Line R. Co., 678 
F.2d 992, 1005 (11th Cir.1982). In this 
case, we find that the issues asserted by

(8) No blacks in Finance Office, Transfer 
Clerks. Administration. Training Section and 
Safety Division. Only one black in personnel.
(9) Caucasians not on supervisor's roster are 
being used on 204B [details].
(10) Qualified blacks in Custodian Section not 
promoted. Caucasian brought from outside 
for foreman position with no experience.
(11) Postmaster in direct violation of Execu­
tive Order No. 11478 C(2), 3 a, d, 3, 8, 9 3nd
13.
(12) No blacks appointed to Postmaster's Ad­
ministrative Staff.
(13) No black supervisors assigned to first 
floor at West Bay Annex.



2736 GRIFFIN v. CARLIN

co-plaintiffs are within the periphery of the 
issues asserted by Griffin in his administra­
tive complaint and fully investigated by the 
Postal Service. Thus, the 22 named plain­
tiffs are appropriately named as co-plain­
tiffs.

We turn, therefore, to the question of 
whether the claims of these plaintiffs satis­
fy the commonality and typicality require­
ments of Rule 23(a). The Supreme Court 
has recently reaffirmed that litigants seek­
ing to maintain class actions under Title 
VII must meet the requirements of Rule 
23. Falcon. 457 U.S. at 156, 102 S.Ct. at 
2370 (1982). The class claims-must be lim­
ited to those “fairly encompassed” by the 
named plaintiffs’ claims. Id. at 158, 102 
S.Ct. at 2371. In this case, information in 
the record by the time the district court 
issued its final pre-trial order approving 
class certification reflected that the 22 
named plaintiffs had claims relating to 
tests and other procedures used to get on 
the supervisor/ registers; promotion from 
the supervisor; registers; promotions to 
other high level positions; discipline; train­
ing, particularly for higher level positions; 
awards; and details.

The district court’s opinion of September 
8, 1982, gave careful consideration to the 
requirements of Falcon. The court found 
that the 22 named plaintiffs had alleged 
sufficiently diverse employment practices 
that the court might infer that discrimina­
tory treatment was typical of defendant's 
promotion practices and that defendant’s 
promotion practices were motivated by a 
pervasive policy of racial discrimination. 
The court found that these allegations 
were sufficient to bridge the gap between 
the named plaintiffs' individual claims and 
those made on behaif of a class of all black 
employees. The district court did not

abuse its discretion in making this determi­
nation.

[16] The Postal Service also contends 
that plaintiffs failed to meet the Fed.R. 
Civ.P. 23(a) requirement that they fairly 
and adequately represent the interests of 
the class. The Postal Service asserts sev­
eral alleged errors and lack of prepared­
ness by plaintiffs’ counsel. The adequate 
representation requirement involves ques­
tions of whether plaintiffs' counsel are 
qualified, experienced, and generally able 
to conduct the proposed litigation, and of 
whether plaintiffs have interests antagonis­
tic to those of the rest of the class. John­
son v. Georgia Highway Express, Inc,. 417 
F.2d 1122, 1125 (5th Cir.1969). The district 
court did not abuse its discretion in deter­
mining that plaintiffs satisfied the ade­
quate representation requirement.

VII. CONCLUSION
In conclusion, we hold that the district 

court erred in dismissing plaintiffs’ chal­
lenge to the written examinations and in 
dismissing plaintiffs' disparate impact 
claims. We further hold that the district 
court erred as a matter of law in its evalua­
tion of plaintiffs’ disparate treatment 
claims regarding promotions to initial level 
supervisory positions and selection for de­
tails. We affirm the district court’s find­
ings of no discrimination under the dispar­
ate treatment theory with respect to disci­
pline, awards, and promotions above the 
initial supervisor; level and to non-supervi- 
sory positions. We affirm the holdings of 
the district court that plaintiffs had ex­
hausted their administrative remedies and 
that this case was appropriately certified as 
a class action. We vacate the district 
court's determination on the individual 
claims of discrimination for reconsideration



GRIFFIN v. CARLIN 2787

in light of its subsequent determinations of REVERSED IN PART, AFFIRMED IN 
the class claims.M PART, AND REMANDED.

13. The plaintiffs objected to the district court course, vacated along with the decision on the 
order requiring them to pay the government s merits, 
costs of S62.513.16. This award of costs is, of

Adm. Office, U.S. Courts—West Publishing Company, Saint Paui, Minn.