Simmon v Schlesinger Petition and Suggestions for Hearing in Banc

    r

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 
NO. 75-2182

JAMES E. SIMMONS, et al.,
Appellants,

vs.
JAMES R. SCHLESINGER, et al.,

Appellees.

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

Norfolk Division

PETITION FOR REHEARING AND 
SUGGESTION FOR REHEARING IN BANC

The petition and suggestion are filed pursuant to 
Rules 35 and 40, Fed. R. App. Pro., from the December 5,
1976 decision of the panel,in this Title VII action 
prosecuted by black federal employees, affirming the lower 
court's denial of a Rule 23 class action, and refusal to 
apply recognized principles of Title VII law to discovery 
and trial of the individual claims of named plaintiffs.
Had this been a Title VII action brought by non-federal em­
ployees, the panel's decision would have been otherwise. 
Appellants respectfully submit that rehearing is appropriate



because the panel overlooked or misapprehended the record and 
applicable law in ruling that federal employees have different 
and fewer rights than all other employees under Title VII. More­
over, the appeal raises questions of exceptional importance 
concerning, first, the principle recently announced by the 
Supreme Court that " [a] principal goal of . . . the Equal Employ­
ment opportunity Act of 1972 . . . was to eradicate 'entrenched 
discrimination in the Federal Service,' Morton v. Mancari, 417 
U.S. 535, 547, by . . . according ' [a]ggrieved [federal] 
employees or applicants . . . the full rights available in the
private sector under Title VII,'" chandler v. Roudebush. ___
U*S. ___, 48 L.Ed. 2d 416, 420 (1976); second, the uniformity
of this court's decisions construing Title VII with respect to 
rights of employees; and, third, the effect of complex, confusing
and much-criticized Civil Service Commission administrative

1/
regulations and procedures on rights of federal employees in2/
court.

1. The panel opinion overlooked or misapprehended that the
purpose of the action is the same as in other "private attorney

3/general" Title VII suits that have come before the Court, viz. * S.

1/ See Chandler v. Roudebush, supra, 48 L.Ed. 2d at 424 n. 9;
Hackley v. Roudebush, 519 F.2d 108, 136-141 and 171 (Leventhal, J.);
S. Rep. No. 92-415, on S.2515, 92d Cong., 1st Sess. at 14-17 (1971)* 
H.R. Hep. No. 92-238, on H.R. 1746, 92d Cong., 1st Sess. at 23-26 
(1971); U.S. Comm, on Civil Rights, The Civil Rights Enforcement 
Effort-1974, vol. V, To Eliminate Employment Discrimination (July
ls7iilip?oyer785(5 £a?~£?3Rtv? ton' Federal Government
2/ For the convenience of the Court, the petition discusses points 
in the order they arise in the panel opinion.
3/ See, e.g., Albemarle Paper Co. v. Moody. 422 U.S. 405 (1975); 
Barnett v. w. T. Grant Co.. 518 F.2d 543 (4th Cir. 1975).

2



'  K  ,

to eliminate across-the-board policies and practices of racial 
discrimination at an industrial plant as they adversely affect the 
rights of both individual named plaintiff black employees and the 
class of black employees and applicants generally. The panel 
opinion, however, mischaracterizes the "’systemic' class discrimi­
nation" claim as "manifestly . . . one not related to the 
individual claims but one that was applicable and relevant to 
the entire personnel organization of the Facility," p. 3 n.* 
(emphasis added), although the complaint expressly asserts that 
named plaintiffs bring the action "on their own behalf and on 
behalf of the class they represent" (A. 4); identifies the potential 
class as similarly situated black employees or applicants (A. 4); 
identifies a broad spectrum of discriminatory policies and 
practices (A. 4-5), and further states that " [e]ach of the 
named plaintiffs has been a victim of some or all of the dis­
criminatory acts of the defendants enumerated above" (A. 6).
The panel opinion’s distortion of the record is fundamental to 
its erroneous decision: it is later used to justify unnecessary
specific class pleading and illegal bifurcation of inter­

i m
related individual-class claims in administrative proceedings, 
see infra at 2-13. The simple fact is that plaintiffs and the 
potential class seek a judicial class action precisely because 
their claims were not and could not have been effectively remedied 
administratively. It is too late in the day to doubt that in a 
Title VII litigation "racial discrimination is by definition

4/ Jenkins v. United Gas Corp.. 400 F.2d 28, 32 (5th Cir. 1968).

3



class discrimination."
5/

2. The panel opinion overlooked or misapprehended that 
named plaintiffs did exhaust administrative remedies prescribed 
by Title VII by submitting their claims of racial discrimination 
to the agency for investigation, p. 12 et secy. The administra­
tive complaint plainly states:

We believe we were discriminated against because 
of our race (Black). We were placed out of the area 
of consideration for the selection to GS-7 Production 
Controller, by the rating panel. This is a process 
that is used when there is a majority of Black appli­cants .

(A. 759). under applicable Title VII standards, this recital of
facts would have sufficed in the private sector to reasonably
result in investigation by the EEOC into like or related policies 

6/ 7/
and practices, including systemwide patterns. in the federal
sector, this recital should have had the same result under clear
direction in the legislative history of the 1972 amendments that
the Civil Service Commission and federal agencies have failed to

8/"address themselves to the various forms of systemic discrimination"
and that they take advantage of "the significant reservoir of
expertise developed by the EEOC with respect to problems of
discrimination11 and "to work closely with EEOC in the development

9/and maintenance of its equal employment opportunity programs."

5/ Hall y. werthan Bag Corp.. 251 F. Supp. 184, 186 (M.D. Tenn.
1966); Qatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968).

6/ See, e.g., Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 197077^ ~ ~  ----
1/ See, , Jenkins v. United Gas Corp., supra, 400 F.2d at 33.
The panel opinion so concedes, p. 25.
8/ S. Rep. No. 92-415, supra at 14.
9/ S. Rep. No. 92-415, supra at 16.

4



If the agency's obligation needed to be clarified any further, 
a federal district court has
present civil Service Commission regulations in issue on the
"exhaustion" question are illegal under Title VII and that the
Commission "must accept, process and resolve complaints of class and
systemic discrimination which are advanced through individual
complaints of discrimination and must provide relief to the class
when warranted by the particular circumstances of each class com-

10/
plaint." However, the agency in the instant case shirked its
legal obligation to fully investigate the charge of discrimination, 
even though named plaintiffs gave the agency explicit notice of 
their belief that at least some systemic patterns were known to 
them when they asserted that " [t]his is a process that is used 
when there is a majority of Black applicants," and even though 
the job histories of named plaintiffs demonstrate that their 
careers and ability to meet "paper" experience and qualification 
standards for promotion have been adversely affected by systemic

n • • 11/policies and practices.
The panel opinion, however, announces the unprecedented 

rule in Title VII litigation that employees must affirmatively 
plead class allegations in addition to a factual statement of their 
charge of discrimination in order later to be able to file a 
judicial class action. This misplaces the administrative burden 
of investigating the class dimension of charges on complainants

10/ Barrett v. u. s .  Civil Service Commission, 10 EPD If 10,586 at 6450 (D.D.C. 1976).
11/ See Brief For Appellants at 9-13. The administrative record in ract does show that one of the investigators requested department and plant-wide racial statistics by grade (A. 814-185) and considered them in recommending relief for plaintiffs (A. 794). The recommenda­tion was not followed.

5



who have neither the statutory or regulatory obligation nor the
ability to investigate their own claims, rather than on the
agency which has both the obligation and ability to fully investi-

12/
gate, resolve and remedy the charge. The administrative process
is designed for informal resolution; it is not a formal proceeding

. . . , 13/m  which common law pleading rules have a place.
3. The panel opinion overlooks or misapprehends that

"Congress . . . chose to give [federal] employees who had been
through [administrative] procedures the right to file a de novo
civil action1 equivalent to that enjoyed by private sector

employees," in suits brought pursuant to 42 U.S.C. § 2000e-16,
Chandler v. Roudebush, supra, 48 L.Ed.2d at 432,that an equivalent
action includes resort to Rule 23 class action procedures; that

con ccdcGCongress specifically cited Qatis and Jenkins (which the opinion/
would permit a class action if this were a private sector case)
with approval in explicating the right to class actions under 42

14/
U.S.C. § 2000e-5 general Title VII procedure sections, and that 
§ 2000e-5 "shall govern [federal] civil actions" brought under 
§ 2000e-16. This is surely enough to pretermit the panel
opinion's long dissertation on "exhaustion" that attempts to 
distinguish what cannot be distinguished, P. 12 et sec. ^

12/ See 5 C.F.R. § 713.216. The employee can only "prosecute" his 
a llmited fashion at an optional administrative hearing, 

136-14118* SeS generally Hackley v, Roudebush, supra, 519 F.2d at
13/ See, e.g., Love v. Pullman Co., 404 U.S. 522 (1972).
-j~/ ^S * Rep* No. 92-415, supra at 27; 118 Cong. Rec. 7168, 756 (Conference Commxttee Section—by—Section Analysis).

See Chandler v. Roudebush. supra, 48 L.Ed. 2d at 423-424.
16/ Chandler simply cannot be distinguished as involving only the 
de novo issue because the right to a plenary judicial proceeding is

6



With respect to "exhaustion," the panel opinion simply
ignores the rule that " [a]pplication of the doctrine to specific
cases requires an understanding of its purposes and of the

17/particular administrative scheme involved." Thus, the opinion
attempts to justify an altogether novel Title VII administrative
pleading requirement by ignoring the obligation of the agency
to investigate the class aspects of cases whether pleaded or 

18/
not. The court relies on mostly non-Title VII non-class 
action cases dealing not with scope of administrative claims,

19/but with the total failure to exhaust administrative remedies.

16/ (cont'd)
basic and properly encompases class action procedures, nor as 
dealing only with "procedure in the judicial proceedings" since 
that is precisely what is in issue because named plaintiffs have 
exhausted. The rule stated in Hackley v. Roudebush, supra, cited 
with approval by Chandler, and lower court decisions(granting 
class actions on the basis of a reading of § 2000e-16 requiring 
the same rights for federal and non-federal employees, that proved 
consistent with Chandler), see p. 21, n. 21 is on point. See also 
Thompson v. Roudebush, N.D. 111. No. 74 C 3719, memorandum opinion 
dated October 12, 1976.
17/ McKart v. United States, 395 U.S. 185, 193 (1969).
18/ See supra at 4-6.
19/ Brown v. G.S.A.. ___U.S.___, 48 L.Ed. 2d 402 (1976), for
example, discusses the administrative process only in terms 
of the need not to exhaust under other judicial remedies and then 
only the regulations on their face. Beale v. Blount, 461 F.2d 
1133 (5th Cir. 1972) and Penn v. Schlesinger, 497 F.2d 970 
(5th Cir. 1974), also 42 U.S.C. § 1981 cases, do not establish 
an alternative Fifth Circuit "exhaustion" standard for federal 
Title VII cases; indeed, Brown specifically overruled the 
Beale-Penn requirement of exhaustion under § 1981. The question 
of federal Title VII class actions is presently before the 
Fifth circuit in three pending cases, McLaughlin v. Callaway,
No. 75-2261; Swain v. Callaway, No. 75-2002 and Eastland v .
TVA, No. 75-1555, with the Civil Division having confessed 
error that the "exhaustion" standard now adopted by the panel 
opinion is erroneous, see infra at 8-9.

7



The opinion uncritically embraces the peculiarities of an
administrative process whose regulations and actual operation
have been condemned by congress, the U.S. Commission on Civil

2 0/
Rights and the courts, particularly provisions whose

21/
illegality under Title VII, the Solicitor General does not 

22/
oppose. Lastly, the panel opinion relies on the purpose of
"conservation of judicial energy" which is not in issue because
specific class claims are unnecessary and which the Supreme Court,

23/
in any event, has disowned in the federal Title VII area.

4. The Solicitor General of the United States has expressly 
conceded that there is no provision in present civil Service 
Commission regulations for administrative class actions by 
approving of the declaratory judgment order in Barrett v, U.S. 
civil Service Commission. ("A district court . . . has recently 
invalidated Commission rules that effectively prohibited 
administrative class actions," Brief For Respondents, Chandler 
v. Roudebush, No. 74-1599 at p. 65. The regulations the Solicitor 
General refers to are still in effect.) Moreover, the Assistant 
Attorney General for the Civil Division of the Department of 
Justice has expressly conceded in the Fifth Circuit that the 
district court erred in holding that the third-party complaint

20/ See supra at 2 n. 1.
21/ See suma at 5 n. 10.
22/ See infra.
23/ Chandler v. Roudebush, supra.

8



process should have been exhausted. This point standing
alone warrants rehearing so that government attorneys can
account for their position before this Court,upon which the
panel opinion relies, although the government is unwilling to
argue for it in the Supreme Court and the Fifth Circuit.

5. The panel opinion overlooked or misapprehended the
futility of named plaintiffs raising claims of and obtaining
relief for class discrimination in "individual" administrative charge
p. 30 et_ seq. First, named plaintiffs indicated on their
administrative charge that there were class dimensions to their

25/
claim and the agency simply did nothing. Thus, the futility
of these named plaintiffs raising and obtaining relief on a 
broader class claim is a_ fortiori obvious. Second, the Civil

24/

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

Brief For The Defendants [-Appellees], McLaughlin v. Callaway,
5th Cir. No. 75-2261 at 13, reversing position taken in, 382 
F. Supp. 885 (S.D. Ala. 1974).
25/ The panel opinion argues that named plaintiffs should not 
only have raised the claim but "prosecuted" it, overlooking or 
misapprehending that the regulations do not contemplate or 
provide for any role for complainants to do anything in the 
investigation phase, see supra at 4-6 . The agency is required 
to "prosecute" the claim. No authority in law or equity requires 
that employees be penalized for the failure of the Civil Service 
Commission and agency to perform its duty.

9



Service Commission regulations on their face and as
authoritatively construed are clear that class claims cannot be

26/raised and remedied in individual charges as such. Third, 
the panel opinion's citation of cases in which agencies and CSC 
"considered" class claims supports the proposition that 
exhaustion of class claims in individual charges is futile.
The cases do not establish that Commission or agencies will 
provide relief for class or systemic discriminatipn; indeed,

2 7,the cases relied on clearly establish precisely the contrary.

26/ 5 C.F.R. § 713.212 provides that the individual complaint
sections do not apply to "general allegation [s] of discrimination 
by an organization or other third party which Tare] unrelated to 
an individual complaint of discrimination" and has been authorita­
tively construed as not permitting "general allegations of discrimi­
nation within the context of individual complaints of discrimination. 
See discussion in Memorandum in Support of Plaintiff's Motion For 
A Reconsideration Of The Order Denying Class Action And For A 
Motion Requiring The Defendants To Answer Interrogatories, filed 
March 31, 1974 (A. 3) at 3-5. For the convenience of the Court 
the memorandum is attached hereto as Appendix A. Moreover, 
effective classwide relief simply is not obtainable; the Com­
mission's Discrimination Complaints Examiner's Handbook at p. 74 
(April 1973) specifically provides:

"In some instances, only one person out of a 
similarly situated group of employees files a 
complaint of discrimination. I.f the Examiner 
finds discrimination in such a case, any specific 
corrective action, for example, promotion, may 
be recommended only for the complainant. Recom­
mended corrective action relevant to the general 
environment at the activity should, of course, 
be brought to the attention of the agency Director 
of Equal Employment Opportunity in the recommended 
decision or by separate memorandum or letter."

The Civil Service Commission Appeals Review Board has specifically 
upheld this policy, see Ralston, The Federal Government As 
Employer, supra, 10 Ga. L. Rev. at 734.
2_7_/ Contrary to the asertion at pp. 32-33, none of the administra­
tive charges in Sylvester v. U. S. Postal Service, 393 F. Supp.
1334 (S.D. Tex. 1975) contained any express class claim, see 
Appendix B. The "class claim" referred to was investigated without 
a class pleading as should have occurred in the instant case.

(cont'd)

10



Fourth, the government has never contended that class claims
could be raised and remedies in individual proceedings or

28/
disputed plaintiffs' showing of futility, and, consequently,
no evidentiary record exists of whether named plaintiffs made or
attempted to make such a claim, although there is a colorable

297 --------------------------------
factual issue. (At the very least, the Court should remand
the case to the trial court for a hearing in light of the Court's 
unanticipated exhaustion rule. Cf., Ettinger v. Johnson. 518 
F.2d 648, 652-653 (3d cir. 1975)). Fifth, assuming again that 
the panel opinion was correct, it is inexplicable why a narrower 
class action is impermissible since named plaintiffs did specifi­
cally assert that " [tjhis is a process that is used when there is 
a majority of black applicants," i.e., stating a specific claim 
for black employees and applicants subject to discrimination in 
staffing or selection procedures.

27/ (Cont'd)
In none of the cases cited did the agency or the Commission 
provide classwide or systemic relief. Indeed, in Williams v.
TVA, 415 F. Supp. 454 (M.D. Tenn. 1976), the very part of the 
opinion cited at p. 34 refuses to treat the class claim as a 
remediable charge in behalf of a class, but only as to "a discrimi­
natory environment which has a direct bearing on the matter 
forming the basis for the individual complaint."
28/ The government only argued that a separate third-party charge 
pursuant to 5 C.F.R. § 713.251 had to be filed, see, e.g., 
Defendants' Brief In Opposition To Maintenance Of Class Action 
And Trial De Novo, filed December 5, 1974 at 1-4 (A. 2) and Brief 
For Appellees at 14 et_ seq.
29/ The attached affidavit of named plaintiffs' counsel, Mr.
Archie Elliott, states that he and named plaintiffs made broad 
class claims, but that the EEO Counselor refused to accept the 
claims and discouraged making them part of the administrative 
charge, see Appendix.C. (Mr. Elliott was counsel for the initial phase of administrative proceedings: named plaintiffs engaged present counsel only after the events in question had occurred).

11



6. The panel opinion overlooked or misapprehended that
Civil Service commission regulations plainly do not permit 
employees to simultaneously file individual and 5 c.F.R. § 713.251 
third-party administrative complaints in an effort to plead class 
claims within the present regulatory scheme, pp. 36-37. Section 
713.251, cited at p. 36-37 n. 38, expressly states "This section 
applies to general allegations by organizations or other third 
parties of discrimination in personnel matters within the agency 
which are unrelated to an individual complaint of discrimination 
subject to §§ 713.211 through 713.222" (emphasis added). Appendix 
III to Reply Brief For Appellants is a Commission decision in 
which the Appeals Review Board authoritatively construed 
§§ 713.212 and 713.251 prohibit employees to file simultaneously: 
"General allegations are not within the purview of section 713.212 
of the civil Service regulations and must be raised by an organi­
zation or other third party under the provisions of section 713. 
251," III-3 (emphasis added). Third-party complaints, in any 
event, do not result in an investigation as such but only a
"management review" and relief in fact provided is wholly 

30/
ineffective. Moreover, the opinion concedes that the Civil
Service Commission regulations, as framed, do not contemplate
a right to sue under Title VII, but correctly decides that

31/
there is such a right now, pp. 39-40. "Exhaustion" of the

30/ Ralston, The Federal Government As Employers, supra, 10 
Ga. L. Rev. at 734 n. 102; see also Appendix A at 6-7.
31/ The opinion, here as elsewhere, misdescribes appellants' 
position; the failure of the Civil Service Commission and government 
attorneys (defending Title VII actions from third-party complaints) 
to recognize a right to sue was raised in Reply Brief For Appellants 
at 5-6, see also Appendix A at 7.

12



Pa^ty complaint procedure thus was futile for named plain­
tiffs .

32/ With resPect to the discovery issue, there is no
doubt that an equivalent de_ novo trial encompasses broad
.. . , . 33/discovery permitted m  non-class action Title VII cases. The
panel opinion, however, overlooked or misapprehended the record
that answers to first interrogatories were sought to prepare for

34/
the individual and class claims, and that defendants did

32/ Cf. Hackley v. Roudebush. supra, 520 F.2d at 157-158;
Chandler v. Roudebush, supra, 48 L.Ed.2d at 420.
13/ McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-07 
(1973); Burns v. Thikal Chemical Corp., 483 F.2d 300 (5th Cir.
1973)? Rich v. Martin Marietta Corp.. 522 F.2d 333 (10th cir. 1975).
34/ The motion to reconsider denying class action and motion to 
compel the defendants to answer interrogatories plainly states, 
Plaintiffs assert that they are entitled to have this litigation 

proceed as a class action through the discovery stages at least 
according to McDonnell Douglas v. Green, 411 U.S. 792 (1973)"
(A. 71). The portion quoted by the panel opinion at p. 46 follows 
soon thereafter, but is cited out of context. The memorandum in support dispells any doubt.

Clearly, if this case does proceed as a 
class action, plaintiffs are entitled to full 
class-wide discovery. We further urge, however, 
that even if this Court~holds that a class action 
is not appropriate, plaintiffs still must be 
allowed to do broad discovery. The Courts have 
consistently held that even an individual claim 
of racial discrimination can only be properly 
judged in the context of information relating 
to the general practice of the employer.
(Emphasis added)

Appendix A at 9, see generally 9-11. Plaintiffs' motion for appeal 
pursuant to 28 U.S.C. § 1292(b) similarly states: "Plaintiffs
assert that their ability to participate in the trial of the 
individual claims of federal employees in the instant case will 
be severely limited and handicapped by the bar on broad discovery 
of racial discrimination in employment practices and denial of the class action" (A. 75) .

13



not provide information sought in a limited subpoena.
The prejudice is per se when plaintiffs are deprived of relevant

2&/discovery to prepare and put on their case, but especially 
so in the instant case where only the defendants were permitted 
to present their selected broad statistical and other system-wide 
data and the district court did rely on such information in 
ruling against named plaintiffs on their individual claims (A. 120- 
121) .

8. Lastly, the panel opinion overlooked or misapprehended 
that the court below erred as a matter of law in its adjudication, 
and that defendants' case for rebuttal, which was hindered in 
no way by discovery limitations, was legally insufficient 
such that reversal and judgment for the plaintiffs on their 
individual claims would be appropriate. Appellants make this 
point even though they suffered clear prejudice and are entitled 
to conduct the broad discovery denied then below in order to 
further develop their prima facie case and to demonstrate the 
pretextual nature of the defenses, because defendants' case was 
so weak that they cannot in any event have prevailed.

35/

35/ Defendants' response to the subpoena duces tecum is set 
forth in a motion for protective order and affidavit of Mr. James 
Early filed May 13, 1975 on the eve of trial (A. 3a). The motion 
states " [t]hat the material sought pertains to the class action 
the maintenance of which has been denied on several occasions;" 
the affidavit states reasons why the material sought in the 
subpoena was not being provided. The motion does recite that 
the Navy had furnished "the plaintiffs with all available 
information regarding the individual plaintiffs lawsuit": this 
information was later submitted as defendants1 exhibits. At no 
time were plaintiffs permitted to conduct discovery of their 
individual claims under procedures set forth in the Federal Rules 
of civil Procedure.
36/ See cases supra, at 13, n. 13.

14



CONCLUSION

For the above reasons, appellants request that the Court 
grant the petition for rehearing and suggestion for rehearing 
en banc.

HENRY L. MARSH, III 
RANDALL G. JOHNSON 
STEPHANIE J. VALENTINE 
HILL, TUCKER & MARSH 

214 East Clay Street 
P. O. Box 27363 
Richmond, Virginia 23261

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
BARRY L. GOLDSTEIN 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Appellants

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Petition 
for Rehearing and Suggestion for Rehearing En Banc was mailed 
this 20th day of December 1976, to Seth M. Lloyd, Lt., JAGC, 
USNR, Department of the Navy, Office of Civilian Manpower 
Management, Washington, D. C. 20390, and to Edward R. Baird, 
Jr., Esquire, Assistant United States Attorney, P. 0. Box 60, 
Norfolk, Virginia 23501, counsel for appellees.

15 Counsel for Appellants





standard government employment dispute. To rut plaintiff's 
position in the proper context, it is necessary to discuss both 
the claims sought to be raised here, and to describe in some 
detail the limited nature of administrative process available 
to raise charges of racial discrimination.

I.
THE CLAIMS ADVANCED 3Y PLAINTIFFS RELATE TO 
DISCRIMINATION AGAINST BLACKS AS A CLASS.

This case involves precisely the kinds of issues that 
have been litigated innumerable times against private employers 
in Title VII suits brought both by employee plaintiffs and

range
of employment and promotion policies that have the effect of
discriminating against blacks ajs a_ class. They seek to correct

. /systemic practices that impinge on their right to equal employ- 
.ment practices as members of the class of black workers affected 
“by stigmatization and explicit or implicit application of a 
badge of inferiority."

:! 2/i| the United States. That is, plarntirrs are attacking

_______________________ !1/ See, e,g,, Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir.j 
• 1968); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122
I (5th Cir. 1969); Moody v, Albemarle paper Company, 474 F.2d 134 j 
| (4th Cir. 1973).
I 2/ See, e,q ,, Graniteville Co. v. EEOC. 438 F.2d 32 (4th Cir. 

1971); United States v. Georgia Power Company, 474 F.2d 906
lj (5th Cir. 1973) .
jj 3/  Sosna v. Iowa, ___ U.S. ___, 43 U.S.L.W. 4125, 4132 n.l

(1975) (White, j., dissenting). Justice white, who dissented
II from the application of established Title VII law to class 

actions generally, went on to point out that Congress had given
j persons aggrieved by such systemic discrimination “standing . . .' 
I| to continue an attack upon such discrimination even though they i 

fail to establish injury to themselves in being denied employ- 
|j ment unlawfully." See, Moss v. Lane Company, Inc., 47.1 F.2d 853 j
I (4th Cir. 1973).1

A ' I



Thus, the complaint alleges that the defendants have taken 
and wil continue to take systemic "personnel actions based on 
discrimination because of race." These actions include, inter, 
alia: recruitment; denials of promotions and supervisory status; 
promotion based on subjective recommendations; discriminator/ 
performance and disciplinary standards; discriminatory assign­
ment into deadend jobs; and failing to have either effective

iarfirmative action programs or an effective complaint procedure | 
(Complaint, pp. 4-5).

The complaint goes on to allege that each of the plaintiffs 
has been aggrieved by those general and systemic practices.
The particular incident that gave rise to their administrative 
complaint and this lawsuit is but one particular instance of 
what they complain of; thus, that incident can be properly as­
sessed only in the context of a fully developed record as to the 
general and systemic employment practices at N.A.R.F.

II.
THE ADMINISTRATIVE COMPLAINT PROCESS DOES 
NOT PERMIT SYSTEMIC CLASS CLAIMS TO BE 
RAISED'AND ADJUDICATED.

This Court based its decision not to permit a class action 
in part on the ground that class claims had not been raised in 
the administrative process. Plaintiffs urge that an examination 
of the administra tive procedures for adjudicating EEO claims 
can not be raised as part of an EEO complaint. Moreover, con­
trary to the argument of the government, the "third-party" com­
plaint procedure under §713.251 does not provide a vehicle where­
by individual complainants can obtain an adjudication of class- 
type claims. Thus, this is a case where there exists no adequate 
administrative remedy that had to be exhausted. see, k . Davis, 
Administrative Law, § 20.07.

A. The Individual Complaint Process
Both the regulations on their face and decisions of the

Civil Service Commission make it clear that class claims can not

- 3 -
A -3

S5ST>?



/ \ I

be made by an individual federal employee filing a complaint of j 
racial discrimination. Thus, individual comolaints are oro- I
cessed pursuant to §§ 713^211-713.222; section 713.212 provides ! 
that those sections do not apply to "general allegation!"s] of 
discrimination by an organization or other third oartv which 
[are] unrelated to an individual complaint of discrimination." ' 
The Civil service Commission has authoratively interpreted this j 
language as not permitting "general allegations of discrimination 
within the context of individual complaints of discrimination." j 
In a case involving NASA, an employee charged that she had been j 
discriminated against when she was not selected for a particular 
promotion. She alleged that:

[M-] inorities, as a class, have been and are 
discriminated against because of the Center's 
personnel policies and practices as they cer­
tain to recruitment, hiring, initial assign­
ments, job classifications, merit promotions, 
training opportunities, retention," and the 
terms, conditions, and privileges of employment.

I
II

These allegations, of course, are of precisely the kind 
made in plaintiffs' complaint here. The Appeals Review Board 
of the civil service Commission, in a letter decision attached 
hereto as exhibit A, affirmed the agency's rejection of these
allegations of class discrimination as part of the individual
complaint. It held that:

There is no provision in the civil service regulations j 
for the processing of general allegations of dis­
crimination within the context of individual com­
plaints of discrimination.

Rather, such allegations can only be raised "by an organization  ̂
or other third party under the provisions of section 713.251."

This interpretation of the regulations has been expanded ! 
in a recent memorandum to all government EEO Directors sent out 
by the Commission's Assistant Executive Director in charge of I
EEO (attached hereto as exhibit B). The memo states that class |

, iallegations can be made by an individual only "as long as the j
allegations relate to general matters and are not related to in­
dividual complaints."

4



bs

'“N
These restrictions on the questions that may be raised by ■ 

individual complaints derive from an action by the Commission 
ij itself in a case raising charges of religious discrimination in '
■ promotions. The 3oard of Appeals and Review (now the Appeals j

and Review Board), found discrimination against Jewish employees, 
generally and ordered relief for the individual complainants 
(3.A.R. decision No. 713-73-455, attached hereto as Exhibit C). 

jj The commission, exercising its authority under §713.235, re-
opened the case for the purpose of establishing binding policy. 1 
It vacated BAR's decision on the ground that the complaint was

jj not "a valid first-partv complaint," since the claim/was a
!! ‘ i•j general rarlure to promote Jewish employees since 1955 (see,

letter of December 19, 1973, attached hereto as Exhibit D).
;i iOne consequence of these rules is that broad evidence of

class-wide discrimination is not even admissible in an EEO
ji;j complaint adjudication. Thus, in B.A.R. decision No. 713-73- 
ij 593 (attached hereto as Exhibit E) , the refusal of the complaints 
lj ’ Examiner to permit certain witnesses at the hearing into an EEO I 
•I complaint was upheld. 3.A.R. held:
ii ' !The other witnesses requested by the complainant would:
1 not have first-hand knowledge of the complainant's

case, and it is assumed that they were to testify 
relative to the equal employment opportunity program 
with respect to Hispanic Americans, and particularly 
to Puerto Ricans. Any complaint involving a minority j group agency-wide is a "third-party" complaint and it ; 
is processed under a different set of procedures.

Finally, another restrictive rule limits the possible
scope of an EEO charge filed under Part 713. An employee must !

Ii Igo to a counsellor within 30-days after some act of discrimi- ;
nation, and only matters occurring within that short period may I

'I I'j. become the basis for the formal complaint. Any concept of a
"continuing violation," a principle long-recognized by the |jj courts in Title VII cases, has been squarely rejected by the 

ij Commission:
As regards the matter of "continuing" discrimination, I 
5 CFR 713-214 establishes a time limit in which a 
matter must be brought to the attention of an EEO 
Counselor before that matter can be accepted as a

-■ , •• •■»



%&ZES3t-

\

valid basis for a complaint. Therefore, the require- ; 
ment implies that a complaint must be over a specific 
employment matter which occurred at a specific time. i 
There is no provision whatsoever for accepting non­
specific complaints of "continuing" discrimination.

Decision dated October 15, 1974, emphasis added (attached hereto,
as Exhibit F).

■j i

3. Third-party Complaints
The government here has argued that the third-party 

■; complaint procedure under §713.251 was available to the plaintiffs
i i; and had to be followed as a condition to their filing a class-

action complaint in court under Title VII. Neither the text of \

:! the regulations nor their application supports the government's :
position. First, 713.251 itself specifically states that it 

, i| applies only to general allegations "by organizations or other
j third carties" that are "unrelated to an individual comolaint of'
ij '  !discrimination." Similarly, the explanatory Memorandum sent out
II * jj! by the Commission (Exhibit 3), makes it clear that a third party'l|
|j complaint is not possible if the allegations relate, to the com- 'II |plaints of any individuals. The general allegations involved
ijj nere, of course, are directly related to the plaintiffs' own com­
il plaints.
ij I

Second, the third-party allegations procedure is not *ad- 
judicatory in nature. As described by the regulation and 

I Exhibit B, its purpose is simply "to call agency management's j 
attention" to allegedly discriminatory policies. Third-party j

;i allegations are "handled solely through an agency investigation, "
jj there is no right either to a hearing or to present evidence in
j| any formal way. Further, the investigation itself:

[I]s not expected to cover individual cases in 
sufficient depth which necessarily would result in |
findings or decisions with respect to those in­
dividuals.

There is no right to an appeal to the civil service Commission, 
rather, only a "review" can be sought. The review is not con- 

! ducted by the Appeals Review 3oard as an adjudication of rights;.



rather it is handled by the Commission's Bureau of personnel
Management Evaluation. At most that review may result in a 
request to the agency to conduct a further investigation; there

iis no adjudication as such.
Third, consistent with the above, the Commission does not : 

consider that the third-party allegation procedure under §713.251 
gives rise to the right to proceed in federal court under Title !
VII. Thus, §713.282 provides when "an employee or applicant" i

iwill be notified of his right to file>- a civil action. It refers 
only to §§713.215, 713.217, 713.220, 713.224, and 713.234, viz./
those sections relating to individual complaints, and excludes :!
any reference to §713.251. In accord with §713.282, the Com­
mission does not notify a third-party complainant of a right 
to bring action when it concludes its review under §713.251(b). 
See, Exhibit G, attached hereto. Finally, the government's 
argument here that exhaustion of remedies under 713.251, is a 
prerequisite to filing a class action is totally inconsistent j 
with its position in cases where third-party complaints have I
been filed. Thus,' in MEAM v. NASA, D.D.C. C.A. No. 74-1832, the 
government has opposed a class action on the ground that under ; 
the regulations discussed above, "Such Third Party complaints

!are administrative matters appealable to the civil service Com- :I
mission, and there is no right to file a civil action thereon." j 
(Memorandum in Support of Motion of Defendants To Strike-, to 
Sever, To Dismiss in Part, and to Remand In Part, p.3).

i-
III.

THIS CASE CAN PROCEED AS A CLASS ACTION

As noted above, plaintiffs have already brought to the 
Court's attention the legislative history Qf and court decisions^ 
under Title VII that they contend establish their right to main­
tain this suit as a class action. Here, we will simply make a j 
few additional points that address themselves to the bases for 1 
the Court's ruling against a class action.

,4-7



First, it is no douot true that particular employment de­
cisions regarding individual federal employees often involve 
questions peculiar to the circumstances of the particular 
employee. However, this is certainly no less true of employees’ 
of private employers, but that fact has never been held to bar 
a class action under Title VII against a private company. In­
deed, such a proposition would totally negate the concent of oat 
tern and practice suits upon which all Title VII actions

iprosecuted by the government are based. The courts have uni­
formly distinguished between the question of the validity of 
general employment practices on the one hand, and that of the 
impact of such practices on individual employees on the other. 
With regard to the former, general declaratory or injunctive 
relief is appropriate; with regard to the latter, individualized 
promotion, hiring, or 'specific back, pay awards may be the proper 
relief. see, e.g,, Moss v. Lane co., Inc., 471 F.2d 853 (4th 
Cir. 1973); Brown v. Gaston County Dyeing Machine co., 457 F.2d!
1377 (4th Cir. 1972). Here, the plaintiffs seek to remedy both;Ithe systemic problems common to all black employees and to ob­
tain relief from the particularized injury they have suffered. 
Moss and 3rown clearly establish that these two goals are not 
exclusive. I

Second, the government has argued that the "employee ag- j 

grieved" language, and the existence of an allegedly effective 
alternative administrative procedure militates against a class ; 
action. We urge that precisely the opposite is the case. in 
Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965), an action under 
Title xi of the 1964 Civil Rights Act brought under the predeces 
sor to Rule 23, the defendants argued that since the United 
States Attorney General could bring a "pattern or practice" 
suit, a "person aggrieved" was restricted to an individual l
action when he sought to enforce Title n. The Fifth Circuit 
rejected this view and held that civil rights actions can be 
brought as class actions generally. When Rule 23 was revised,

""s



the Advisory Committee pointed out 
ally directed towards civil rights 
"action or inaction is directed to 
of this subdivision even if it has 
threatened only as to one or a few 
vided it is based on grounds which 
the class." 39 F.R.D. 102 (1966). 
alleged in this case.

that 23(b)(2) was specific- 
action, and explained that: 
a class within the meaning 
taken effect or is 
members of the class pro- 
have general application to 
Precisely this has been

IV. I
THE DEFENDANTS SHOULD BE REQUIRED TO 
RESPOND TO THE PLAINTIFFS' INTERROGATORIES. '

ii
Clearly, if this case does proceed as a class action, 

plaintiffs are entitled to full class-wide discovery, we 
further urge, however, that even if this Court holds that a 
class action is not appropriate, plaintiffs still must be al­
lowed to do broad discovery. The courts have consistent held i 
that even an individual claim of racial discrimination can only 
be properly judged in the context of information relating to i
the general practices of the employer. See, Burns v. Thiokol !~ IChemical Corporation, 483 F.2d 300, 306 (5th Cir. 1973). Thus,: 
the Supreme Court of the United States in McDonnell Douglas v.
Green, 411 U.S. 792, 804-805 (1972) held in an individual case !i
not brought as a class action, that since "petitioner's general! 
policy and practice with respect to minority employment" (411 !
U.S. at 804-05) is relevant to determining the validity of an j 
individual claim of racial discrimination, "statistics as to 
petitioner's employment policy and practice may be helpful to a 
determination of whether petitioner's refusal to rehire re­
spondent in this case conformed to a general pattern of dis­
crimination against blacks." 4/ The government cannot advance i

4/ It is interesting that the United States in its amicus 
curiae brief filed in McDonnell Douglas at page 11, n.10, 
acknowledged that "the use of statistics and other documentary 
proofs can of course substantially strengthen the plaintiff's case in a private non-class action."



any reason as to why such general information is not relevant 
to deciding an individual claim of a federal employee, since, 
whatever may be the merits of the government's claim that there 
is a difference between federal employees and private employees 
with regard to trials de novo and class actions, the elements 
of proof of a claim of discrimination against any employer are 
the same.

Indeed, the government has consistently, and success­
fully, argued that the Equal Employment Opportunity Commission 
has the right to access to precisely the kind of information i
sought here when it is investigating an individual charge of i 
discrimination. See, Graniteville Co. v. EEOC, 438 F.2d 32 
(4th Cir. 1971); Georgia Power v. EEOC, 412 F.2a 462 (5th Cir. 
1969); Local No. 104 v. EEOC, 439 F.2d 237 (9th Cir. 1971);
Blue Bell Boots, Inc., v. EEOC, 418 F.2d 355 (6th Cir. 1969). 
The Fifth Circuit has applied in Burns v. Thiokol, supra, those 
decisions in deciding whether broad discovery requests in a 
private non-class Title VII action should have been granted. j 

It held that such information was clearly relevant, in a dis­
covery sense, to the proper adjidication of an individual, non- 
class claim. The only reason for the government's now taking 
a position directly contrary to the one advanced in the above 
cases, is that here it is seeking to block access to such in­
formation as a defender against an adequate inquiry into al- i 
leged discrimination.

Under the principles of the above cases, the inter­
rogatories prepounded by the plaintiffs here are clearly 
proper discovery, in that they are designed to lead to relevant 
evidence. The government has long been under a legal duty not , 
to discriminate. The complaint here alleges that NARF has, 
for a long period of time, pursued discriminatory practices, 
of which the particular failure to promote the plaintiffs is 
but the most recent example. The plaintiffs are employees of 
long standing who have consistently been the victims of these 
practices. As demonstrated by their employment records they

10



have been denied promotions and job changes time after time 
over a period of twenty years. The interrogatories seek to 
determine the employment patterns of NARF since I960, a 
period encompassing the employment of the plaintiffs, and a 
Per -̂0<̂  fully consistent with decisions requiring discovery 
against private employers. See, e,q., Burns v. Thiokal. suora, 
where the company was required to give data going back to 1960 ' 
over a claim of undue burden.

j
The interrogatories quoted in notes 4-7 of the Thiokol 

decision are quite similar to those propounded here. Thus, 
here, plaintiffs seek information relating to: (1) the 
organization of NARF, the names and descriotion of all jobs, 
and the race of those occupying them (Interr. No. 1); (2)
applicants for jobs and / their race and qualifications, hiring 
procedures, the procedures for assigning new hires to various i 
jobs, and any tests, manuals, etc., used in the process (Nos. 
2-3); (3) methods of recruitment (Nos. 32-42); (4) training
courses and temporary assignments (Nos. 43-45); (5) the process’
of handling EEO complaints (Nos. 48-51); (6) the race of
persons in all job positions, divisions and organizational 
units (Nos. 52-66); (7) promotions and transfers (Nos. 67-85), !
and other relevant matters. All of this information is 
directly related to the crucial issue in this lawsuit, whether \ 

it proceeds as a class action or as an individual action, viz., 
has there been a pattern of racially discriminatory employment ! 
practices that has affected individual employment decisions? 
Without this information the plaintiffs cannot prepare for 
trial, and the court cannot adjudicate their claims.

Respectfully submitted,

HENRY L. MARSH, III 
WILLIAM H. BASS, III 
STEPHANIE J. VALENTINE 
HILL, TUCKER & MARSH 
214 East Clay Street 
Richmond, Virginia 23261

-  11 -

A-n



t1

JACK GREENBERG 
BARRY L. GOLDSTEIN 
CHARLES STEPHEN RALSTON 

10 Columbus Circle Suite 2030
New York, New York 10019. 

Attorneys for Plaintiffs

!



UNITED STATES POSTAL SL JICE
HEADQUARTERS, SOUTHERN REGION 

Memphis, TN 38166

o u r  r e f .- 201:MG: sc D A T E : August 17, 1972

S U B J E C T :: Equal Employment Opportunity Complaint

T O :
Mr, Harold L. Sylvester 
4327 Worrell Drive 
Houston, TX 77045

This will acknowledge receipt of your letter dated August 7, 1972, 
regarding a complaint of discrimination.

This matter will be given attention as expeditiously as possible.

Office of Equal Employment Compliance

Appendix A



p. 0. Bex 2641 
Houston, Texas 
August 7, 1972

Equal Employment Opportunity Officer TJ» S. Postal Service 
Southern Hegional Office 
llemphis, Texmessee 38166
Pear Sir:
I am filing a formal complaint of discrimination against the 
Houston, Texas Post Office in regard to job assignments, quality 
step increase and superior accomplishment award.

1. Harold L. Sylvester, 4327 Worrell, Houston, Texas 77045
2. Title and Level - Poreman of Hails, Level 9
3* Specific Action or Situation complained of - (a) job 

assignments, (b) quality step increase and (c) superior accomplishment award.
4. Pate of Alleged act of discrimination - June 26, 1972.
5* Postmaster George J. Poitevent and his administrative Personnel.
6. Type of discrimination - Race.
7* I have been discriminated against by the Houston, Texas 

Post Office Personnel in regards to job assignments.
Also, I have not received a quality step increase or 
superior accomplishment award despite my outstanding performance as foreman of mails.

8. Pate of final interview with the Equal Employment Opportunity Counselor July 28. 1972.
I will be represented by Mr. Charles Ballard of N. A. P. P. E.

Respectfully yours,

Harold L. Sylvester 
Poreman of Hails, Tour III

t s - 2



1̂ 327 Worrell 
Houston, Texas 7 7 ^ 5  June 76, 1972

Mr. H duc.rd  I .  ..d ir.cnd  
K.r.n. F.r. ic ‘ * ? i:;t 
1*.01 ?r:Ui*:l In 
General Post Office 
Houston, Texas 77913

Dear* 31;-:
I, Hanoi;’ L. Sylvester, have been discriminated against by too 
Houston, ^exas Post Office in rcrerds to Job assignments.

Also, I have not received a 
accomplishr-ent award despite 
foremen of mails,

q veliiy step inor>. e s c 
wy cutntending ps.vfc:

I would like an appointment with you at the earliest possible 
date to discuss ti.is matter.

Respectfully,

Harold L. Sylvester
Foronnr ojT
G.rV'. - Toiv 3

T~> e-|

,4c/(T * 1

CJt-C. /nA ■

M l

U 0 9,*. a*~



2003 Blodgett 
Houston, Texas 7700/* 
August 2, 1972

Eoual Employment Office 
Attention E E 0 Coordinator 
Headquarters, Southern Region 
U. S. Postal Service 
Memphis, Tennessee 38166

Dear Sir:

I*m filing a formal complaint of discrimination becquse of Race.

1. Rayford V. Pryor, Jr., 2003 Blodgett, Houston, Texas 77COA.

2. Supervisor PS-8

3. Specific Complaint-Piscriminated against in regard to promotion, 
training, Superior Performance awards, evaluation, and-job assign­
ments.

4. Alle ged act of discrimination June 23, 1972.

4-A A continuing obstinate dogma of white Supremacy, Nepotism, 
and Black Tokenism. _

$. Houston, Texas Postmaster George J. Poitevent's promotional, 
assignment and, evaluation personnel.

6. Type of discrimination alleged-Race and Color.

7. I have been and I am now being discriminated against by the Postal 
Service in Houston, Texas because of my race in regard to training, 
Superior Performance awards, evaluation, promotions, and job 
assignments. I have also been harrassed for making inequities 
known.

8. Date of final interview with E E 0 Counselor - July 31. 19?2.
I will be represented by H. L. Sylvester and N. A. A. C. P . s f r Z S

Resp edt f ■ullyxyours,

Foreman Mails, Tour 111 
G P 0, Houston, Texas



2003 Blodgett Street 
Houston, Texas 77004 
June 27, 1972

Mr. Edward L. Edmond 
EEO Specialist 
401 Franklin Avenue 
General Post Office 
Houston, Texas 77013

Dear Sir:
I have been and I am now being discriminated against by the Postal 
Service at Houston, Texas, because of my race and color in regard 
to training, Superior Performance Awards, evaluations, promotions, and 
job assignments. I am also being harassed and punished for making 
inequities known.
I am requesting that you investigate this situation and take action 
to cause correction of these Postal Service Violations.

V. Pryor, Jr.
Foreman, Mails 
GP0, Houston, Texas