Johnson v. Garrett Defendant's Proposed Conclusions of Law
Public Court Documents
November 7, 1989

Cite this item
-
Brief Collection, LDF Court Filings. Johnson v. Garrett Defendant's Proposed Conclusions of Law, 1989. cf2a4008-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/81206b14-8622-4269-9fab-4bf05d68acde/johnson-v-garrett-defendants-proposed-conclusions-of-law. Accessed April 27, 2025.
Copied!
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION GRADSON A. JOHNSON, et al. ) ) Plaintiffs, ) ) v. ) Case No. 73-702-CIV-J-12 ) H. LAWRENCE GARRETT, III, ) Secretary of the Navy, ) ) Defendant. ) _____________________________________ ) DE FENDANT'S PROPOSED CONCLUSIONS OF LAW ROBERT W. GENZMAN United States Attorney DOROTHEA A. BEANE Assistant United States Attorney JAMES H. PHILLIPS Senior Trial Attorney DANIEL E. O'CONNELL, JR. Associate Chief Trial Attorney RICHARD D. HIPPLE Trial Attorney Litigation Office Office of General Counsel Department of the Navy Washington, D.C. 20360-5110 Tel: (202) 746-1020 JAMES R. DIKEMAN Counsel, Class Action Litigation Naval Aviation Depot Naval Air Station Jacksonville, Florida 32212 Tel: (904) 772-5507 DEPARTMENT OF THE NAVY N A V A L A V IA T IO N D E P O T N A V A L A IR S T A T IO N J A C K S O N V IL L E . F L O R ID A 3 2 2 1 2 - 0 0 1 6 IN R E P L Y R E F E R T O November 7 , 1989 Mr. Clyde E. Murphy, Esquire NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, 16th Floor New York, New York 10013 Johnson v. Secretary of the Navy Case No. 73-702-Civ-J-M Mu rp hy: Enclosed arre Defendant's Findings of Fact and Proposed Conclusions of Law. As you can see, we have had a problem with the pagination and automatic paragraph numbering. We hope to fix the problem as soon as possible. When we do we will send you a corrected copy. Sincerely yours, E n d s . ( 2 ) /ames H . Phillips Senior Trial Attorney TABLE OF CONTENTS Part III. Conclusions of Law A. Jurisdictional Basis of Claims Before the Court .......... 1 B. Classwide Disparate Treatment Claims ....................... 30 1. Theories of Discrimination: Treatment versus Impact ................................. 30 2. Elements of Classwide Disparate Treatment ........... 30 3. Proper Weight to be Given to Statistical Proof ..... 32 a. Meaningful Comparisons: Elements of ........... 33 (1) The nature of the work performed .......... 34 (2) The levels, ranges, and nature of the skills required for employees ............. 35 (3) Extent of the employer's reliance on labor markets as a source of skilled employees ...................................... 36 (4) The extent to which the employer utilizes a systematic, comprehensive, and-wel1-defined personnel system ........ 36 (5) The details of the employer's promotion practices .......................... 37 b. Other Fundamental Considerations Relative to the Statistical Evidence ........... 37 4. Defendant's Statistical Comparisons .................. 38 a. Meaningful Comparisons: Relevant Elements ...... 38 (1) Nature of the work ........................... 39 (2) Wide range of disparate occupations ...... 39 (3) Reliance on external labor markets for skilled employees ............. 39 (4) Systematic, comprehensive, and well-defined personnel system .............. 40 b. Defendant's Inferential Statistics ............. 41 (1) Competitive merit staffing statistics .... 41 (2) Noncompetitive promotions .................. 42 (3) Overall promotions ........................... 43 c. Data Accuracy and Statistical Methodology ..... 43 (1) Data Accuracy ................................. 43 (2) Statistical Methodology ..................... 44 5. Plaintiffs' Statistics .................................. 45 6. Other Evidence Relevant to the Class Disparate Treatment Claim ....................... 49 C. Classwide Disparate Impact Claims ........................... 50 1. The Disparate Impact Theory ............................ 50 2. Legitimate Employment Goals and Burden of Proof .... 51 3. Establishing a Legitimate Employment Goals Defense ............................................. 52 4. Plaintiffs' Disparate Impact Allegation ............. 54 5. Testimony by Plaintiffs' Expert .................... 55 6. Plaintiffs' Arguments that the Promotion System is Subjective ........................ 55 a. Staffing specialist ................................ 56 (1) Types of pro-ops ............................. 56 (2) Eligibility determinations ................. 57 b. Rating Panels ....................................... 58 (1) Participation by Black Employees .......... 58 (2) Complaints about Rating Panels ............ 61 (3) Supervisors on Rating Panels .............. 63 c. Alleged Problems with Certificates ............. 64 i i 4 d. Role of Supervisor ................................. 65 (1) The supervisor does not make eligibility determinations ........... 66 (2) Supervisors do not establish crediting plans .................. 66 e. "Feed back Loops" .................................. 67 f. Selecting Officials ................................ 68 D. Anecdotal Allegations of Discrimination ................... 70 1. Burdens of Proof for Anecdotal Allegations .......... 70 2. Anecdotal Allegations ................................... 72 Part IV. Further Proceedings ....................... 77 CONCLUSION ............................................................. 78 l l i V. Part III.___Conclusions of Law A. Jurisdictional Basis of Claims Before the Court 1. This Court has jurisdiction over this action only if the plaintiffs pled and proved at trial the existence of facts sufficient to establish that they complied with the statutory prerequisites to jurisdiction, and that the named plaintiffs had Constitutional standing to challenge the defendant's practices alleged in the complaint. The Court concludes, for the reasons that follow, that plaintiffs failed to establish that this Court has jurisdiction over this action or that any of the named plaintiffs had Constitutional standing to challenge the practices of the defendant alleged in the complaint. 2. Section 717 was added to the Civil Rights Act of 1964 and became effective March 24, 1972. 1 This amendment prohibited discrimination in federal employment on the basis of race, color, religion, sex, or national origin. Section 717(b) directed the Civil Service Commission to issue, "such rules, regulations, orders and instructions as it deems necessary 1 1 Public Law 92-261, codified at 42 U.S.C. sec 2000e-16. 1 V and appropriate to carry out its responsibilities under this section." 2 3. The statute also waived sovereign immunity permitting civil suits by employees or applicants for employment who were dissatisfied with the resolution of their administrative complaints following the exhaustion of administrative remedies specified in, and required by, the statute. The statute also required that a complaint initiating a civil action be commenced within 30 days of the final action of the employing agency or the Civil Service Commission, or after 180 days from the filing of the initial charge if no final action had'been taken.3 2 The powers, functions and duties of the Civil Service Commission were transferred to the Equal Employment Opportunity Commission effective January 1, 1979 by Reorganization Plan No. 1 of 1978, sec. 3, 43 Fed. Reg. 19807, 92 Stat. 3781. This case involves the original regulations promulgated by the Civil Service Commission, and it is those regulations which govern the disposition of the issues in this case. 3 (c) Within thirty days of receipt of notice of final action taken by a ... department ... or by the Civil Service Commission upon an appeal from a decision or order of such ... department ... on a complaint of discrimination based on race ... brought pursuant to subsection (a) of this section, ... or after one hundred and eighty days from the filing of the initial charge with the department ... or with the Civil Service Commission on appeal from a decision or order of such department ... an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 706, in which civil action the head of the department, ... shall be the defendant. (continued...) 2 4. The Civil Service Commission discharged its statutory mandate by promulgating regulations published at 5 C.F.R. Part 713. The Commission directed that the head of each Federal Agency establish and implement a program to carry out the purposes of the Equal Employment Opportunity Act. 5. C.F.R. secs. 713.203 - 713.204. Each federal agency was required by the regulations to establish a procedure for redressing grievances of employees or applicants for employment. Complainants were required to first consult with EEO Counselors to attempt to resolve the complaint informally within the employing agency. 5 CFR sec 713.213(a). The EEO Counselor was required to conclude the informal effort -with a final interview within 21 days of the initial interview and the complainant was then required to file his formal complaint of discrimination with the agency within 15 days after that final interview. 5. The Civil Service Commission established certain requirements for the filing, acceptance, and processing of formal individual complaints of discrimination. The matter giving rise to the complaint must have occurred within 30 calendar days of the date of the first interview with the EEO Counselor, and the formal, written complaint must be 3 3 (...continued) Section 717(c), 42 U.S.C. Sec. 2000e-16(c). 3 submitted to the appropriate official within 15 calendar days of the date of the final interview with EEO Counselor. 5 CFR sec 713.214. 6. 5 C.F.R. sec. 713.215 provided for the rejection or cancellation of formal complaints of discrimination, which are untimely, or for failure of the complainant to prosecute. When an agency cancelled or rejected a complaint its decision to do so was required to be transmitted in writing stating the time limits for filing a complaint with the Civil Service Commission or for filing a civil action. 7. The Civil Service Commission also established procedures by which agencies were required to process "Third Party Allegations" of discrimination. 5 C.F.R. sec. 713.215 required the "third party" to state the allegation with sufficient specificity that the agency could investigate the allegation. The agency was also permitted to require additional specificity to proceed with the investigation. When the agency rendered its final decision, the third party had 30 days within which to request a review by the Civil Service Commission. There was no provision authorizing the filing of a civil suit by a dissatisfied "third party." 8. Plaintiffs presented a paucity of evidence at trial to establish that they properly exhausted administrative 4 remedies prior to initiating this suit. It was their obligation to do so. Most of the following discussion is based on allegations contained in the various motions filed by defendants, and plaintiffs responses thereto, as well as documents appended as exhibits to memoranda in support of and against these motions. 9. Mr. Norris's Individual Complaint of Discrimination. Mr. Norris apparently made a formal administrative complaint of discrimination following informal counseling which Mr. Norris commenced on May 1, 1973. 10. Mr. Norris made the following allegation in this formal individual administrative complaint of discrimination. 4 As a matter of custom, tradition, policy, pattern and practice the Naval Air Rework Facility has engaged in racial discrimination against Black employees by limiting and classifying them in a way which operates or tends to deprive them of equal employment and promotional opportunities. In particular, I was discriminated against on account of race when effective on or about April 1, 1973, certain white employees of the Avionics Department were promoted from WG-8 to WG-11, and I was passed over and not promoted although I have greater seniority in grade and trade than many of them. 11. On January 11, 1974 Mr. Norris was apparently advised that the NARF proposed a finding of no discrimination in 4 This complaint is not in evidence, and there was no testimony concerning the facts and circumstances surrounding the procedures followed in processing it, nor does the record establish the administrative outcome of this complaint. 5 disposition of the formal administrative complaint. By letter dated January 31, 1974 Mr. Norris was advised that the final disposition of his formal administrative complaint was a finding of no discrimination. Mr. Norris was advised of his appeal rights from this decision including the right to appeal the proposed disposition to the Civil Service Commission or to institute a civil action in both the letter notifying him of the proposed disposition of his complaint and in the letter notifying him of the final disposition of his complaint. 5 12. Mr. R o b i n s o n s Individual Complaint of Discrimination. On June 19, 1973, Willie J. Robinson apparently filed a formal individual administrative complaint of race discrimination dated June 4, 1973 alleging that, "... I was discriminated against on account of race when, effective on or about April 1, 1973, certain white employees of the Avionics Division were promoted and I was passed over and not promoted although I have greater seniority in grade than many of them." He further alleged that he consulted EEO counselor Raymond Geiger on May 1, 1973 and that he received his final counseling on May 21, 1973. By letter dated June 26, 1973, Mr. Robinson was notified that his formal individual complaint of discrimination had 5 No evidence or testimony concerning these events was presented at trial. 6 been rejected for the following reasons: Mr. Robinson failed to consult with an EEO counselor within thirty calendar days of the matter causing him to believe he had been discriminated against; the formal complaint of discrimination which constituted the first notice that the NARF had of Mr. Robinson's complaint was received on June 19, 1973, and therefore was untimely; and the complaint was filed without first consulting an EEO counselor as required. 6 Mr. Robinson was duly informed of his right to appeal the rejection of his formal administrative complaint to the U.S. Civil Service Commission within 15 days of his receipt of the decision or to file a civil action within 30 days of the receipt of the decision. He did neither. 7 13. The Individual Administrative Complaints of Willie Moran. Gradson A. Johnson. S.K. Sanders, and Marcus G. Ellison. Messrs. Moran, Johnson, Sanders, and Ellison likewise apparently filed similar formal individual complaints of discrimination dated June 4, 1973. Each of ® In making his formal complaint of discrimination Mr. Robinson misrepresented that he had accomplished the informal counseling which is a prerequisite to filing a formal individual administrative complaint of discrimination. 5 C.F.R. sec. 713.213(a). 7 Neither the complaint nor the other documents surrounding it were offered into evidence. Although Mr. Robinson testified at trial he made no mention of this administrative complaint of discrimination, and in fact did not allege in his testimony that the events which apparently gave rise to this complaint were discriminatory. 7 these complaints was apparently received by the NARF on June 19, 1973. Mr. Moran alleged discrimination in the weapons division, Mr. Johnson alleged discrimination in the Production Control Division, and Messrs. Sanders and Ellison alleged general discrimination at the Naval Air Rework Facility. None of these general complaints alleged any specific date on which any alleged discrimination occurred. 8 Each of these complainants alleged that they had consulted EEO counselor Raymond Geiger, having their initial interviews on May 1, 1973, and their final interviews on May 21, 1973. Each of these gentlemen was notified of the rejection of his complaint by letters dated June 26, 1973. These letters advised the complainants that their complaints were rejected because they failed to allege any date of occurrence of alleged discrimination, 9 and because they had not consulted 8 The form which each of these gentlemen used to file their complaints contains a space in which the complainant is to enter the month, day, and year on which the most recent alleged discrimination took place. Each of these complainants entered, "discrimination is of a continuing nature" in that space in an apparent effort to finesse the requirement that the matter giving rise to the complaint be brought to the attention of an EEO counselor within 30 days of its occurrence. 9 Of course the absence of any date on which the alleged discrimination occurred made it impossible to determine whether any complaint was made within 30 days of the incident of alleged discrimination giving rise to the complaint as was required. 8 Eachwith an EEO counselor relative to their complaint. 10 11 of these complainants was duly informed of his appeal rights, including the right to appeal the decision to the U.S. Civil Service Commission within 15 days, or to file a civil action within 30 days of receipt of the decision. None of the complainants did either. 11 14. The Third Party Complaint signed by Andrew Norris. On June 4, 1973 Andrew Norris in his capacity as President of the Minority Group of NARF, which he described as an unincorporated association of more than 165 employees of the facility directed a complaint to the Commanding Officer of the Naval Air Rework Facility, Jacksonville Florida. The group complained: * * * 1. That the Naval Air Rework facility ... has engaged in a pattern and practice of racial discrimination in employment which has the effect of presently limiting and classifying black employees of the Facility in a manner which deprives or tends to deprive them of employment opportunity because of race. 2. That The Naval Air Rework Facility ... has traditionally followed the practice of restricting certain levels of employment to white employees, 10 Each of these gentlemen, like Mr. Robinson, misrepresented on the form he completed to file his formal individual administrative complaint that he had consulted an EEO counselor, a prerequisite to filing a formal individual administrative complaint of discrimination. 11 With the exception of the Formal Individual Complaint of Discrimination of Mr. Johnson, P. Exh. No. 8 A, none of the other Complaints were offered in evidence, and there was no testimony or other evidence indicating compliance with the procedural requirements in any case. 9 i.e., the journeyman level of the Avionics Division Metal Smith, Electrical and Electronic Supervisors. 3. Black employees of the Naval Air Rework Facility are relegated to, and held in, inferior and entrance levels of employment. 4. Examples of discrimination alleged herein are a. Not a single black person has been employed in the Avionics Division of NARF in the past ten (10) years at the journeyman level. b. A black man has for three (3) years served as acting electronic supervisor in the Weapons Division, but is not deemed by NARF to be qualified to hold that job permanently. c. Many blacks in the Avionics, Weapons, and Production Controllers Division, have seen white employees with much less seniority promoted over them to higher levels of employment. 15. By letter dated June 20, 1973 Mr. Norris was informed that, with regard to the third party complaint, the general allegations contained therein required a sufficient factual basis to raise a reasonable question as to whether discrimination was currently being practiced. Mr. Norris was requested to furnish the following information necessary to permit the Navy to investigate the complaint: a. The names of the 165 employees of the facility that allege discrimination. b. The name of the black employee who has served for three years as an electronic supervisor in the Weapons Division "but is not deemed by NARF to be qualified to hold the job permanently. 10 c. The names of the black employees in the Avionics, Weapons, and Production Controller Division who have seen white employees "with much less seniority promoted over them to higher levels of employment." 16. The requested information was never furnished. 12 Nevertheless, the Navy appointed an investigating officer to investigate the complaint to the extent possible. Following this investigation of the Third Party Complaint a final decision was made by the Commanding Officer that no discrimination was found on the basis of the limited facts which were presented. 13 This decision was made on August 3, 1973. 14 17. The initial judicial complaint in this action was filed on September 13, 1973. An amended complaint was filed on November 15, 1973. 12 This failure to provide requested information would have provided a basis to reject the third party complaint. 5 C.F.R. sec. 713.215(b). 13 The decision letter, as well as the report on which it is based, specifically detail the difficulties encountered in investigating and answering the general allegations with any degree of specificity due to Mr. Norris's failure to cooperate with the investigation by responding to the Navy's request for specific information. Plaintiffs offered none of these documents into evidence at trial. 14 A letter apparently signed by Mr. Norris was identified by Mr. Johnson and admitted into evidence. P. Exh. No. 8F. Mr Johnson provided no further information concerning any of the events after the letter was written. With the exception of the letter, none of the other correspondence surrounding this complaint was offered into evidence. 11 18. The effect of the Thirty Day Suit Filina requirement for Federal Employees alleging violations of Title VII. 42 U.S.C. sec. 2000e-16 waived sovereign immunity and permitted suits by federal employees alleging discrimination based on race subject to certain statutory preconditions including the requirement that suit be filed within 30 days of receipt of a final agency decision on a proper administrative complaint of discrimination. The defendant argues that the suit filing period for federal employees is a jurisdictional requirement, and because it is contained within the waiver of sovereign immunity it must be strictly construed. United States v. Sh e r w o o d . 312 U.S. 684, 61 S.Ct. 767 (1941). 19. Prior to the creation of the Eleventh Circuit the Fifth Circuit recognized the jurisdictional nature of the 30 day suit filing period. Eastland v. Tennessee Valiev A u t h o r i t y . 553 F.2d 364, 369-70 (5th Ci r.) cert, d e n i e d . 434 U.S. 985, 98 S.Ct. 611 (1977). A panel of the Eleventh Circuit distinguished E a s t l a n d . and held that Eastland was no longer good law in light of Zipes v. Trans World Airlines. I n c . . 455 U.S. 385, 102 S.Ct. 1127 (1982). Milam v. United States Postal S e r v i c e . 674 F.2d 860, 862 (11th Cir. 1982). The Eleventh Circuit adheres to this position. S e e . Ross v. U.S. Postal S e r v i c e . 814 F.2d 616 (11th Cir. 1987). However, in the Ross decision the Eleventh Circuit panel acknowledges 12 that " [t]he issue has not been squarely addressed by the United States Supreme Court...," I d . . at 617. 20. The Fifth Circuit has recently reaffirmed the position taken by it in Eastland that the thirty-day suit-filing period prescribed in cases involving federal employee suits premised on Title VII is jurisdictional: There is a critical difference between private discrimination and those premised on a waiver of sovereign immunity by the federal government. Like the Seventh Circuit, we find this difference controlling and the thirty-day filing requirement is thus of jurisdictional weight. Sims v. H e c k l e r . 725 F .2d 1143, 1146 (7th Cir. 1984). Brown v. Department of A r m y . 854 F.2d 77 (5th Cir. 1988). 21. In Zipes v. Trans World Airlines. I n c . . 455 U.S. 385, 102 S.Ct. 1127 (1982), the Supreme Court held that the ninety-day suit filing period prescribed for private sector cases was not jurisdictional, but was subject to equitable tolling. The Court did not have before it, and did not address, the thirty-day period for filing suit prescribed for federal employees or the implications of sovereign immunity on such cases. The issue has yet to be addressed by the Supreme Court. S e e . Stuckett v. United States Postal S e r v i c e . 469 U.S. 895, 106 S.Ct. 274 (1984) (White, J., and Rehnquist, J. dissenting from denial of petition for writ of certiorari) . This Court is bound, however by the Eleventh 13 Circuit precedent which holds that the suit filing requirements are not jurisdictional. 22. Pl aintiffs7 Burden of Pleading and Proving Facts Sufficient to Confer Jurisdiction. The issue of whether the suit filing period is a jurisdictional prerequisite or whether it is subject to equitable tolling or estoppel is largely academic when applied to the facts of this case. It is incumbent upon plaintiffs to plead and prove that the conditions precedent to a Title VII action have been satisfied. See. Jackson v. Seaboard Coast Line Railroad C o . . 678 F .2d 992, 1010 (11th Cir. 1982); Vuksta v. Bethlehem Steel Coro.:. 540 F.Supp. 1276 (1982), aff'd., 707 F.2d 1405, cert, d e n i e d . 464 U.S. 835, (1983). The existence of federal jurisdiction depends on the facts when the complaint is filed. Newman-Green. Inc, v. Alfonzo-Larrain R . . 854 F.2d 916, 918 (7th Cir. 1988), and cases cited therein. Because the law in this Circuit is that the time periods are not jurisdictional, plaintiffs could establish federal jurisdiction by either pleading and proving that the time periods were complied with or that their failure to so comply was subject to equitable tolling of the limitations period. Plaintiffs' did not acknowledge the possible existence of a timeliness problem and made no effort at trial to establish any alternative entitlement to equitable relief from the statutory requirements for any failure on their part to 14 comply with Title VII's procedural requirements. In Cooper v. B e l l . 628 F.2d 1208 (9th Cir. 1980) the Ninth Circuit reviewed the plaintiff's evidentiary requirements for establishing a claim for equitable relief in the Title VII context. 15 The Cooper Court first reasoned that the failure to comply with the filing deadline may be excused if the plaintiff had neither official notice nor actual knowledge of the filing period. Id., at 1212. Second, the Court acknowledged that the failure might be excused if the plaintiff was unaware that he was the object of discriminatory conduct. Id. Third, the Court held that the government could be estopped if there were misrepresentations by an agent of the government upon which the plaintiff ; relied. Id., at 1214. To establish a basis for estoppel against the government the plaintiff must establish that the agent's advice constituted affirmative misconduct; that the plaintiff did not know nor reasonably should he have known that the advice was erroneous; that the agent intended or reasonably could have foreseen that the plaintiff would rely on his advice; that the plaintiff did reasonably rely on the agent's advice; and that the reasonable reliance was the cause of the failure to act in a timely manner, and that the time within which he acted was reasonable in light of all the circumstances. I d . 15 Cooper dealt specifically with the failure to comply with the intra-agency filing deadline. The legal principals are equally applicable here. 15 23. When the complaint reveals that the statute of limitations has run it is the plaintiff's burden of proving that it should be equitably extended. Id., at 1214, n. 11; Dewitt v. United S t a t e s . 593 F.2d 276, 281 (7th Cir. 1979). Certainly, plaintiffs in this case can not, and in fact have not maintained that they were affirmatively misled by any agent of the defendant. Each complainant was clearly apprised of his right to file a judicial action in the letter informing them that their complaints had been either rejected or resolved unfavorably to them. Likewise no plaintiff has claimed lack of notice or knowledge of the filing period. 24. The formal administrative complaints of Messrs. Johnson, Moran, Sanders, and Ellison were properly rejected and cannot form the basis of this judicial action. First, each of these gentlemen failed to consult with an EEO counselor within 30 days of any alleged discrimination. Second, they failed to make any complaint of discrimination to any appropriate official within 30 days of any alleged discrimination. In fact they specified no date whatsoever on which any alleged discriminatory act occurred. Third, although properly advised in the decision letters dated June 26, 1973 that they had the right to file a civil action challenging the rejection of their formal administrative complaints of discrimination this lawsuit was not filed until 16 September 13, 1973, 78 days later and well outside the statutory thirty-day time period. 25. The formal administrative complaint of Mr. Robinson was properly rejected and cannot form the basis of this judicial action. First, Mr. Robinson failed to consult with an EEO counselor within 30 days of the alleged discrimination. 16 Second, Mr. Robinson did not purport to date his formal complaint until June 4, 1973, and it was not received until June 19, 1973. Both of these dates are outside the 30 day limit for initiating the administrative process. Third, although he was properly advised of his right to file a civil action challenging the rejection of his complaint within 30 days of the its rejection on June 26, 1973, this lawsuit was not filed until September 13, 1973. 26. The third party complaint signed by Andrew Norris on behalf of the Minority Group of NARF was made on June 4, 1973. The final decision on that complaint was issued on August 3, 1973. The original complaint in this lawsuit was not filed until September 13, 1973, outside the 30 day statutory suit filing period, assuming arguendo that a third party complaint of discrimination can ever form the basis of a class action lawsuit. See, Griffin v. C a r l i n . 755 F.2d 16 Mr. Robinson alleged discrimination occurring on or about April 1, 1973. 17 1516 (11th Cir. 1985). Construing the available evidence in the light most favorable to the plaintiffs, recognizing that it was their duty to prove that the administrative prerequisites to suit were complied with, and the prejudice to the defendant which resulted from the failure of plaintiffs to present evidence of compliance with the administrative prerequisites which they would only then have an obligation to rebut, the individual administrative complaint filed by Andrew Norris is the only administrative complaint in which the prerequisites to filing a civil action could have even arguably been satisfied. 17 This complaint was not offered into evidence, however, and plaintiffs have accordingly failed to discharge their burden of proving that the prerequisites were satisfied. The failure to properly exhaust administrative remedies or to timely initiate a civil action render the other administrative complaints incapable of supporting the jurisdiction of the Court. As the D.C. Circuit has observed: Congress did not casually impose the requirement that a person charging violation of Title VII by a federal agency initiate his or her complaint with the agency. Nor is the requirement a technicality. Rather, it is part and parcel of the congressional design to vest in the federal agencies and officials engaged in hiring and 17 Even here it is noted that the statute authorizing suit was not complied with. The judicial complaint was filed before either the passage of 180 days from the date of the formal administrative complaint or the receipt of a final agency decision on his formal complaint. 42 U.S.C. sec 2000e-16. Thus the judicial complaint was technically filed too soon in this instance. 18 promoting personnel "primary responsibility" for maintaining nondiscrimination in employment. See 42 U.S.C. sec. 2000e-16(e) ... Brown v. G S A . s u p r a . 425 U.S. at 832, 96 S.Ct. at 1967. * * * Regulations prescribe in detail the administrative procedures available to the charging party, and the statute hinges court review on prior resort to the agency whose employment practice is challenged. Section 717(c) authorizes commencement of a civil action once the agency has taken "final action" on the charging party's complaint or, if no "final action" is taken, after 180 days have elapsed from the filing of the initial charge with the agency. Kizas v. W e b s t e r . 707 F.2d 524, 544 (D.C. Cir. 1983). (footnotes omitted). 27. Assuming Andrew Norris's Individual Administrative Complaint of Discrimination could form the basis for a judicial complaint the judicial complaint would be limited in scope to that encompassed by the individual administrative complaint of Andrew Norris. This is the law in this circuit: The starting point for determining the permissible scope of a judicial complaint is the administrative charge and investigation. The judicial complaint is limited to the scope of the administrative investigation that could reasonably be expected to grow out of the charge of discrimination. Evans v. U.S. Pipe & Foundry C o . . 696 F .2d 925, 929 (11th Cir. 1983); Eastland v. Tennessee Valiev Au th or it y. 714 F.2d 1066, 1067 (11th Cir. 1983), cert, d e n i e d . --- U. S .--- , 104 S.Ct. 1415, 79 L . E d .2d 741 (1984). Griffin v. C a r l i n . 755 F.2d 1516, 1522 (11th Cir. 1985). 28. If Mr. Norris could represent a class based on his administrative complaint the issues that he could raise on behalf of the class are limited. 19 The only issues that may be raised in a class action claim are those issues that were raised by the 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. It is not necessary that members 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 periphery of the issues that Griffin could assert. I d . . at 1532. (citations omitted). 29. As the Supreme Court held in East Texas Motor Freight v. R o d r i q u e z . 431 U.S. 395, 403 (1977), "a class representative must be part of the class and 'possess the same interest and suffer the same injury' as the class members." In this case Mr. Norris has not alleged any injury for failure to gain a competitive promotion under the merit staffing system. His claim of discrimination in failing to be promoted under the CFWS job grading action limits the potential class claims to those arising from a job grading action. 30. When this Court certified the class in this lawsuit, the Order conditioned the certification as follows: "This order and class definition shall be subject to modification as the need for such action becomes apparent [Order of April 25, 1983, p. 9]." The Court relied on Rule 23(c)(1), Fed.R.Civ.P., which states in part "An order [maintaining a 20 class action] may be conditional, and may be altered or amended before the decision on the merits." 31. The Supreme Court noted in General Telephone Co. v. F a l c o n . 102 S .Ct at 2372 that even after thorough consideration of Rule 23(a) requirements, judicial flexibility is allowed to accommodate developments during litigation which may result in the need to modify the certification order, for such an order is "inherently tentative." Citing Coopers & Lvbrand v. L i v e s a y . 437 U.S. 463, 98 S.Ct. 2454, the Supreme Court confirmed: "the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action." F a l c o n . 102 S.Ct., at 2372. 32. Continuing Violation Theory. In United Airlines v. E v a n s . 431 U.S. 553, 97 S.Ct. 1885 (1977) the Supreme Court made it absolutely clear that the critical question in Title VII cases is whether any present violation of the Act exists. The Court observed that, "[a] discriminatory act which is not made the basis of a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed." Id., at U.S. 558, S.Ct. 1889. An employing agency is entitled to treat such a past act as lawful after the complaining employee fails to make a complaint of discrimination within the applicable time period. Id. 21 33. The Eleventh Circuit in Wright v. Revere Copper and Brass I n c . . 836 F.2d 505 (1988) observed that, with regard to the private sector time limits, "[i]t is axiomatic that each plaintiff is entitled to prosecute under title VII any act of discrimination which occurred within 180 days of the EEOC charge.” I d . . at 507. The Court went on to note, however, t h a t , The plaintiffs also seek to prosecute acts of discrimination that occurred more than 180 days prior to the filing of charges with the EEOC ... . The Supreme Court, however, when faced with an untimely filing by a Title VII claimant, laid to rest any such notion: [a] discriminatory act which is not made the basis of a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered it is merely an unfortunate event in history, which has no present legal consequences. United Airlines. Inc, v. E v a n s . 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). I d . . at 507, n. 3. 34. The Eleventh Circuit made an exhaustive analysis of the proper parameters of the continuing violation theory in Roberts v. Gadsden Memorial H o s p . . 835 F.2d 793 (11th Cir. 1988). In Roberts the plaintiff alleged before the District 22 Court discrimination in promotions occurring in 1977, 1978 and 1981. 18 He maintained that incidents constituted a continuing violation such that the earlier two claims were not time barred. The Court observed that, "[u]nder the continuing violation doctrine, '[if] a series of discrete acts of discrimination continues into the statutory filing period, then the cause of action is considered timely filed.'" I d . . at 799-800, citing, Coleman v. Clarke Oil & Refining C o . . 568 F. Supp. 1035, 1040 (E.D. Wis. 1983). However, [t]o revive the otherwise time-barred claim under the doctrine ... it must be part of a pattern or continuing practice out of which the timely-filed incident arose." I d . . at 800. citing, United Airlines v. E v a n s . The Court went on to describe the requirements which must be met by a plaintiff seeking to invoke the continuing violation theory. When an employee files a timely charge for a discriminatory act he may recover for previous acts of discrimination which would otherwise be time barred to the extent that he can meet his burden of proving the existence of a substantial nexus between the acts. See Milton v. We i n b e r g e r . 645 F .2d 1070, 1077 (D.C. Cir. 1981). In Milton the District of Columbia Circuit refused to apply the continuing violation doctrine to resurrect several otherwise time-barred claims in which an employer denied promotions allegedly on the basis of race when the plaintiffs failed to allege a nexus between the events. The court noted that to allow a more liberal application of the doctrine would provide an end-run around the policy underlying title VII's 180 day filing requirement: Protecting employers from the burden of having to defend 18 A finding by the District Court adverse to Mr. Gadsden on his 1977 claim was not appealed. 23 against claims arising out of remote managerial decisions. I d . I d . . at 800. The Court instructed: In determining the existence vel non of such a nexus, a court should not rely upon a superficial factual analysis, but rather should refer to a variety of factors. Such factors include whether the claims were related in subject matter, frequency, and permanence (i . e .. whether the act was sufficiently permanent in nature so as to "trigger an employee's awareness of and duty to assert his or her rights") Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), cert, d e n i e d . --- U.S. --- , 107 S.Ct. 232, 93 L . E d .2d 158 (1986). 35. The Court held that as to the first factor, the only commonality was the fact that both incidents had the same result, Mr. Robertson did not receive a promotion. Mere Commonality of effect is not sufficient to invoke the continuing violation doctrine. Id., at 800, c i t i n g . E v a n s . s u p r a . and Scarlett v. Seaboard Coast Line Railroad C o . . 676 F .2d 1043, 1050 (5th Cir. Unit B. 1982). 36. The second factor, frequency, was likewise unavailing, because two incongruent discriminatory events separated by substantial time hiatus supported a conclusion that the two incidents were discrete and unrelated. 37. As to the permanence factor Roberts admitted that he was aware of his rights in 1978, and he could have asserted them 24 at that time. "A claim arising out of an injury which is "continuing only because a plaintiff knowingly fails to seek relief is exactly the sort of claim that Congress intended to bar by the ... limitations period." I d . . at 801. 38. Finally, the Eleventh Circuit noted that the two decisions were made by different decisionmakers. The only facts which the Court found common to both incidents was the identity of the employee and the entity employing the discriminatory decisionmaker. "Such an identity will always exist where a Title VII plaintiff seeks relief after allowing his rights to lapse." I d . (emphasis in original). 39. The Eleventh Circuit concluded: The District Court essentially found a continuing violation based solely on the identity of the employee and the employer. The court appeared to reach this conclusion because the effect of the discriminatory incidents was the same: the job wrongfully went to a lesser qualified white man each time. The District Court erred as a matter of law in considering the continuing effects of time barred acts in deciding whether a nexus between the two acts existed. See United Airlines v. E v a n s , (citation omitted) The identity of the parties to the discrimination is not sufficient to invoke the continuing violation doctrine. To hold otherwise would render meaningless the ... filing period of the statute. I d . . at 801. 40. Only the individual administrative complaint of Andrew Norris arguably might have met the prerequisites for the 25 maintenance of any civil action. It is solely his discrimination complaint that potentially could have established the parameters of this action. Although on the form on which Norris commenced his formal complaint contains the words "discrimination is of a continuing nature" in the space on the form in which the complainant is to enter the date on which the most recent discrimination occurred, his substantive allegation is solely that he was discriminated against in one alleged promotion action. Even there, the alleged discriminatory promotion action was a job grading action by the Civil Service Commission, as it implemented the CFWS, and not a competitive merit promotion by the NARF. 19 41. Mr. Norris's references to black employees other than himself are cast in the broadest and most conclusory terms imaginable. There can be no doubt that Mr. Norris's individual complaint failed to apprise the Navy as to any incident other than his own alleged failure to be promoted that could serve as the basis for any investigation or the formulation of any relief had an investigation disclosed that the complaint was meritorious. 19 Again, this complaint is not in evidence and cannot be relied on by plaintiffs to carry their burden of establishing that this suit may be heard based on that complaint. 26 42. Furthermore the only concrete allegation concerned a single alleged promotion. Such actions are by definition discrete acts with the only common denominator being that the employees affected by the promotion decision are employed by the same entity. There is no allegation that there is any commonality of positions, qualifications, rating panels, or selecting officials. The promotion decisions involved in this action are indistinguishable from those the Eleventh Circuit in Roberts found incapable of supporting a "continuing violation" theory of recovery as a matter of law. 43. Thus, the potential scope of this lawsuit was limited to the scope of Andrew Norris's individual formal complaint of discrimination. Plaintiffs gain no comfort from the "continuing violation" theory. Andrew Norris's complaint apprises the agency of'a single incident of discrimination relating to a single alleged non-competitive promotion activity. Neither Andrew Norris nor any of the other named plaintiffs have offered any excuse or justification for their failure to properly exhaust administrative remedies with regard to any other alleged acts of discrimination suffered. This failure is exacerbated in this case by Mr. Norris's complete failure to respond in any way to a request by the Navy for details of the allegations he made in his third party complaint which bears the same date as his individual formal complaint of discrimination. 27 44. To the extent plaintiffs assert the continuing violation theory relative to class claims and seek to use comparative statistical evidence to establish such claims under either the disparate impact or disparate treatment theories they must meet the same tests. Plaintiffs must establish a statistically significant disparity both within the relevant time period and prior to it. Further they must establish the requisite nexus between the employment practices challenged within and without the relevant time period. c .f . Roberts v. Gadsden Memorial H o s p i t a l . 835 F.2d 793 (11th Cir. 1988); Woodard v. L e h m a n . 717 F.2d 909 (4th Cir. 1983); Milton v. W e i n b e r g e r . 645 F.2d 1070 (D.C. Cir. 1981). 45. Standing. "Under elementary principles of standing, a plaintiff must allege and show that he personally suffered injury. Griffin v. D u g g e r . 823 F.2d 1476, 1482 (11th Cir. 1987), cert, d e n i e d . 108 S.Ct. 1729 (1988), citing Payne v. Travenol Laboratories. I n c . . 565 F.2d 895, 898 (5th Cir. 1978), cert, d e n i e d . 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978) (5th Cir. 1978). The Eleventh Circuit went on to o b s e r v e , A named plaintiff in a class action who cannot establish the requisite case or controversy between himself and the defendants simply cannot seek relief for anyone — not for himself, and not for any other member of the class. (citation omitted) Moreover, it is not enough that named plaintiff can establish a case or controversy between himself and the 28 defendant by virtue of having standing as to just one of many claims he wishes to assert. Rather, each claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim. I d . . at 1483. 46. Mr. Norris potentially had Constitutional standing to assert only those claims where there was a case or controversy between himself and the defendant. Such standing potentially existed only with regard to the CFWS job grading action, the only allegation he made within the 30 days prior to his initiation of the administrative prerequisites to suit. 29 B. Classwide Disparate Treatment Claims 1• Theories of Discrimination: Treatment versus I m p a c t . 47. "A Title VII action may be based upon disparate treatment or disparate impact or both. In a disparate treatment case proof of discriminatory motive or intent is essential." Eastland v. Tennessee Valiev A u t h o r i t y . 704 F.2d 613, 618 (11th Cir. 1983), c i t i n g . Teamsters v. United States, 431 U.S. 324, 335-36 (1977). "Disparate impact is used to attack employment practices that are facially neutral yet fall more harshly on a protected class of employees. The employer's intent is not at issue." E a s t l a n d , at 619, c i t i n g . Griggs v. Duke Power C o . . 401 U.S. 424 (1971). Analysis of disparate treatment and disparate impact claims varies depending on the type of evidence introduced and whether the case is an individual law suit or a class action. 2. Elements of Classwide Disparate Treatment 48. Actions alleging class-wide disparate treatment are known as pattern or practice cases. In a pattern or practice case plaintiffs must prove "more than the mere occurrence of isolated or accidental or sporadic discriminatory acts. Plaintiffs have to establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure - the regular rather than the unusual practice." T e a m s t e r s . at 336; Maddox v. C l a v t o r . 764 30 F. 2d 1539, 1556-57 (11th Cir. 1985). 49. Application of the McDonnell Douglas - Burdine paradigm to pattern or practice cases has been problematic. "Such a broad and complex inquiry cannot be easily conducted within the bounds of the McDonnell-Douglas (sic) three-part framework, which is better suited to the smaller area of individual claims." M a d d o x , at 1557, citing Perrvman v. Johnson Products Co.. I n c . . 698 F.2d 1138, 1143 (11th Cir. 1983).20 While the specifics of McDonnell Douglas do not translate well to pattern or practice cases, the following concepts are applicable.21 First, plaintiff must establish a prima facie case of a pattern or practice of discrimination, i.e., prove by a preponderance of the evidence that racial discrimination was the employers standard operating procedure. Ea s t l a n d , at 613, c i t i n g . Te am st er s. 431 U.S. at As aptly described by Judge Higginbotham, "In a complex class action, utilizing statistical proof and counterproof, the value of the Burdine sequence— to highlight the issues in contest— is about as relevant as a minuet is to a thermonuclear battle." Vuvanich v. Republic National B a n k . 521 F.Supp. 656, 661 (N.D. Tex. 1981), vacated and re m a n d e d . 723 F .2d 1195 (5th Cir. 1984). 21 The Court in Teamsters spoke of the plaintiff's initial burden in the liability phase of "making out a prima facie case of discrimination," 431 U.S. at 336, 360, which the defendant must attempt to rebut. I d . . at 342, 360. This has led a number of courts to use the McDonnell Douolas- Burdine model to analyze the evidence in the liability phase of class actions. E . g . . Paxton v. Union N a t 11 B a n k . 688 F.2d 552, 567-68 (8th Cir. 1982), c e r t .d e n i e d . 460 U.S. 1083 (1983) ; Croker v. Boeing Co. (Vertol D i v . ) . 662 F2d 975, 990- 91 (3d Cir. 1981) (en b a n c ) . As outlined above I believe the approach is mistaken. 31 358; M a d d o x , at 1557. Second, if plaintiff succeeds in establishing a prima facie case "the burden shifts 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." E a s t l a n d , at 618-19, citing Bu rd in e: Teamsters, 431 U.S. at 360. "It is sufficient if the defendant raises a genuine issue of fact as to whether it discriminated." B u r d i n e . 450 U.S. at 254-255. "Defendant's burden is production not persuasion." E a s t l a n d , at 619. Third, "If defendant meets its burden, plaintiff may show that the asserted explanations are inaccurate or otherwise unworthy of credence. The ultimate burden of persuasion remains at all times with plaintiff." E a s t l a n d , at 619. 3. Proper Weight to be Given to Statistical P r o o f .22 50. It is well accepted that in cases where discrimination is at issue " [s]tatistical analyses have served and will continue to serve an important role". International Brotherhood of Teamsters v. United S t a t e s . 431 U.S. 324, 339 (1977) (citations omitted). Where statistical disparities are sufficiently compelling, they alone can constitute a prima facie case of discrimination. Hazelwood School This discussion, in large part, is applicable to disparate impact claims as well. 32 District v. United S t a t e s . 433 U.S. 299, 307-08 (1977). The Supreme Court has cautioned, however, that statistical analyses "come in infinite variety" and that "their usefulness depends on all of the surrounding facts and circumstances." T e a m s t e r s . 431 U.S. at 339-40. The courts have also recognized that due to "the significant role that statistics can play in discrimination cases and [because] of their inherently slippery nature, it is imperative that they be used properly." Wilkins v. University of H o u s t o n . 654 F.2d 388, 395 (5th C i r . ), r e h ' g d e n i e d . 662 F.2d 1156 (1981), v a c a t e d . 459 U.S. 809 (1982), remanded on other g r o u n d s . 695 F.2d 134 (5th Cir. 1983). The courts have further noted that "[t]he successful prosecution of class-wide employment discrimination claims demands considered and refined statistical analysis ...." Rivera v. City of Wiichita F a l l s . 665 F .2d 531, 547 (5th Cir. 1982). The underlying reason for these concerns is clear — care and refinement are necessary to ensure that the statistical models employed are actually comparing similarly situated employees and are actually measuring the employment practices at issue. a. . Meaningful Comparisons; elements of 51. Several fundamental factual aspects of this case are critical to identifying the controlling legal precedents which the Court should apply when evaluating the statistical comparisons proffered by the parties. As the Eleventh 33 Circuit has noted recently: The Supreme Court has repeatedly warned, "We caution only that statistics are not irrefutable; they come in infinite variety and, like other kind of evidence, may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances." Maddox v. C l a y t o r . 764 F.2d 1539, 1552 (11th Cir. 1985) (quoting from T e a m s t e r s . 431 U.S. at 340) (emphasis added). When evaluating legal precedents, "[d]ecision turns on the particular history and practices of each employer ... ". Ste. Marie v. Eastern Railroad A s so ci at io n. 650 F.2d 395, 397 (2d Cir. 1981). Accord, Eastland v. Tennessee Valiev A u t h o r i t y . 704 F.2d 613, 617 (11th Cir.), modified 714 F.2d 1066 (1983), cert, d e n i e d . 465 U.S. 1066 (1984). There are five major areas which constitute these crucial "surrounding facts and circumstances" that define an employer's particular practices and particular history. They are: (1) The nature of the work pe rf or me d. 52. Meaningful statistics must consider the nature of the work performed. Heaqnev v. University of W a s h i n g t o n . 642 F.2d 1157, 1165 (9th Cir. 1981), overruled on other g r o u n d s . 810 F .2d 1477, 1482 (9th Cir. 1987) (en banc). The key question is whether the job skills require special qualifications or whether the job skills are ones "that many persons possess or can fairly readily acquire." Hazelwood School District v. United S t a t e s . 433 U.S. 299, 308 n.13 (1977) . "That special qualifications within the meaning of 34 Hazelwood are required" can be often determined "from descriptive job titles." Wilkins v. University of H o u s t o n . 654 F .2d at 409 n.37 (citation omitted). A c c o r d . Moore v. Hughes Helicopters. I n c . . 708 F.2d 475, 482-483 (7th Cir. 1980); EEOC v. Radiator Specialty C o . . 610 F.2d 178, 185 (4th Ci r.1979). (2) The levels, ranges, and nature of the skills required for employees 53. When there is a wide range of disparate occupational categories, it is particularly important that refined statistical evidence be proferred. Eastland, 704 F.2d at 624-625; Valentino v. United States Postal S e r v i c e . 674 F.wd 56, 66, 68 (D.D. Cir. 1982); W i l k i n s . 654 F.2d at 398, 405. Under such circumstances, it is not sufficient to only account for qualifications without also controlling for occupation category. As the court in Eastland noted; " . . . Eastland's analyses acount for many objective qualifications, but the failure to control for job category casts doubt on whether the regressions are comparing appropriate groups." 704 F.2d at 625. Accord V a l e n t i n o . 674 F.2d 70-71. It is only where the positions are fungible that statistics do not have to account for qualifications. Powers v. Alabama Dept. of E d u c . . 854 F .2d 1285, 1297 (11th Cir. 1988) 35 (3) Extent of the employer's reliance on labor markets as a source of skilled em pl oy ee s. 54. Statistics based on comparisons without evidence of qualifications are meaningful only if there is "a policy of filling upper level positions through promotion of employees hired at entry-level and trained by the company in the requisite skills." R i v e r a . 665 F.2d at 541 n.16; Fisher v. Procter & Gamble Manufacturing C o . . 613 F.2d 527, 544 (5th Cir. 1980), c e r t , d e n i e d . 449 U.S. 1115 (1981). (4) The extent to which the employer utilizes a systematic, comprehensive, and well-defined personnel system. 55. A systematic, comprehensive, and well defined personnel system includes many of the following featues: written job and position descriptions? documented job qualification standards and job classification standards; and definition and documentation of all or most of the various employment practices and procedures that are utilized. C o m p a r e . Eastland v. Tennessee Valiev A u t h o r i t y . 704 F.2d 613 (11th Cir. 1983), Maddox v. C l a v t o r . 764 F.2d 1539, 1543-44 (11th Cir. 1985), with Fisher v. Procter & Gamble Manufacturing C o . . 613 F .2d 527, 536-37, 545-46 (5th Cir. 1980), cert, d e n i e d . 449 U.S. 1115 (1981). 36 56. The employer's promotion practices should be well defined and well documented. Employees should be given notice of competitive promotion opportunities and an opportunity to apply and compete. C o m p a r e . Rowe v. General Motors C o r p . . 457 F.2d 348, 358-59 (5th Cir. 1972) and Carrol v. Sears. Roebuck & C o . . 708 F.2d 183, 192 (5th Cir. 1983) ("Sears has no written criteria or guidelines for promotion, and does not post notices concering specific job openings or promotion opportunities."), with M a d d o x . at 1543. There should be some reasonable checks and balance relative to the exercise of discretion in the various promotion processes. Ea s t l a n d , at 617 n. 5, M a d d o x , at 1548-49. (5) The details of the employer's promotion practices. b. Other Fundamental Considerations Relative to Statistical Evidence. 57. There are two other aspects that are important to the review of statistical evidence: the accuracy of the underlying databases; and the appropriateness of the statistical methods employed. Relative to the issue of underlying database accuracy, the Manual for Complex Litigation has warned, "The potential benefits that may be derived from comperterized data — as well as the problems such data may create — are substantial both in the discovery 37 process an at the trial." MCL 2d Sec. 21.446 at 59 (emphasis a d d e d ) . With regard to the data bases themselves, ... special inquiry must also usually be made into matters affecting the accuracy of the data output. Notwithstanding the capacity of computers to make tabulations and calculations involving enormous quantities of information ... several sources of potential errors of great magnitude exist. The more common include incorrect or incomplete entry of data, mistakes in output instructions, programming errors, damage and contamination of storage media, power outages, and equipment malfunction. I d . . at 21.446 at 61. The responsibility for establishing the accuracy of the data base lies with the proponent. "The proponent of computerized evidence has the burden of laying a proper foundation by establishing its accuracy." Id. 58. In addition to resolving database issues, Courts are also often required to choose between different statistical methods employed by the parties. Appropriateness of statistical models, propriety of statistical techniques, and accuracy of statistical aggregation procedures are all issues that are often raised. S e e . Coates v. Johnson & J o h n s o n . 756 F.2d 524 (7th Cir. 1985). 4. Defendant's Statistical Comparisons a. Meaningful Comparisons: Relevant Elements 59. Before addressing the specific statistical results proferred by defendant, it is necessary to address each of 38 the fundamental, undelying factors that have been discussed. (1) Nature of the Work 60. The evidence before the Court clearly establishes that special qualifications are required for many of the occupations at NARF. The complex nature of the rework of Naval aircraft is clear from the evidence in the record as to the industrial setting at NARF. The eleven principal trade jobs in the FWS pay system and the nine principal technical jobs in GS that were identified by Dr. Hodgson are clearly the kinds of positions that require special qualifications. (2) Wide Range of Disparate Occupations 61. Again the evidence before the court demonstrates that there are a wide range of disparate occupations with the result that employees at NARF are not fungible. Plaintiff's expert, Dr. Shapiro, agreed on this point with defendant's e x p e r t s . (3) Reliance On External Labor Markets for Skilled Employees 62. NARF is not an employer that brings in all its employees in at the entry level and then trains them in the requisite skills. The testimony of Dr. Charles Haworth establishes the fact that NARF relies heavily on selecting employees with relevant prior military training. The training programs used by NARF were of limited scope. Thus it is clear that relevant qualifications remain an issue for statistical 39 (4) Systematic, Comprehensive, and Well-Defined Personel System. 63. The defendant has submitted both expert testimony and a voluminous set of written materials on this question. A review of the testimony and materials can leave little doubt about the systematic, comprehensive, and definitiveness of the federal civil service personnel system as it operated at NARF. comparisons evaluating the NARF employment practices. (5) The details of the employer's promotion practices 64. That there are extensive written rules, regulation, and procedures governing the promotion practices at NARF is beyond question. The facts are so different from those in Rowe that a comparison is not necessary. 40 Defendant's Inferential Statisticsb . (1) Competitive Merit Staffing Results 65. Defendant's analysis result of the competitive merit staffing program is summarized in the following table: Pay System Tvoe GS FWS Both 1 N Over/ Under Z- Value Over/ N Under Z- Value N Under Z- Value Without Accountina for Qualifications Reg 1236 -6.8 -0.85 1547 -11.0 -1.36 2783 -17.8 -1.62 UMP 93 -2.7 -0.80 90 -1.3 -0.30 183 -4.0 -0.92 Ttl 1329 -9.5 -1.14 1637 -12.3 -1.44 2966 -21.8 -1.87 With Qualification Proxv for FWS Regular Placements Reg 1236 -6.8 -0.85 1547 -6.6 -0.89 2783 -13.4 -1.28 UMP 93 -2.7 -0.80 90 -1.3 -0.30 183 -4.0 -0.92 Ttl 1329 -9.5 -1.14 1637 -7.9 -1.01 2966 -17.4 -1.57 66. Both parties' experts agree that the internal merit staffing results are those most relevant to the class claims before the court. The results disclose no significant disparity adverse to the class. 41 (2) Noncompetitive Promotions 67. Defendant's analyses of the various nomcompetitive promotion program are summarized in the following table: Completions/ Survival Analyses _____Promotions__________ Z-Value_______ Over/ Z Wil- Log- TTL Blk Under Value coxon Rank GS Pay System Career Ladders 545 38 +4.6 + 1.29 -1.956 -1.65 Pro-Op Potential 48 12 +2.1 +1.30 + 0.43 +0.04 Worker Trainee 29 25 + 0.9 + 0.49 + 0.53 + 0.43 Upward Mobility 79 11 + 0.3 + 0.00 +2.63* +2.29* Accretion 39 2 + 0.1 + 0.00 — FWS Pay System Apprenticeships 168 15 -0.1 -0.00 -1.04 -0.98 Worker Trainee 37 24 + 1.6 + 1.11 -0.36 -0.00 Upward Mobility 66 18 -0.7 -0.14 -2.19* -1.64 Accretion 6 2 + 0.7 + 0.43 — N o t e : * indicates statistically significant result " These results do not dissclose a pattern adverse to blacks. In terms of completions or promotions, these results indicate very small disparities in either direction with an overall disparity favorable to blacks. The survival results are mixed. The only program showing significant results is the Worker Trainee program. For the GS pay system the result are significantly favorable to blacks. For FWS the Wilcoxon result, which stresses more heavily the early part of the survival curve, is significantly adverse, while the Log-Rank 42 result is not significant. These results in this one program are mixed at best and do not indicate any overall pattern with respect to the noncompetitive promotions at NARF. (3) Overall Promotions 68. The results of defendant's overall promotion analyses are summarized in the following table: * 1 Pay System GS__________ _________FWS__________ __________ Both Type N Over/ Under Z- Value N Over/ Under Z- Value N Under Z- Value Comp 964 +0.9 +0.07 1226 -6.6 -0.87 2190 -5.7 -0.53 Non- Comp 950 + 1.2 +0.14 1377 + 1.6 + 0.29 2327 +2.8 + 0.37 Ttl 1924 +2.1 +0.20 2604 -5.1 -0.57 4528 -2.9 -0.22 These results, which are those statistics most directly relevant to the class promotion claim do not disclose any disparity over one standard deviation in either direction. For the entire ten-year period, the overall dispairity is - 2.9 black promotions with a Z-Value of -0.22 standard de v i a t i o n s . b. Data Accuracy and Statistical Methodology 1. Data Accuracy 69. Defendant has submitted substantial data on the accuracy of his underlying databases. Specific error rates 43 V. CONCLUSION For all of the foregoing reasons, defendant asks that the Court enter judgment on behalf of the defendant. Respectfully submitted, November 7, 1989 ROBERT W. GENZMAN United States Attorney DOROTHEA A. BEANE Assistant United States Attorney JAMES H. PHILLIPS Senior Trial Attorney DANIEL E. O'CONNELL, JR. Associate Chief Trial Attorney RICHARD D. HIPPLE Trial Attorney Litigation Office Office of General Counsel Department of the Navy Washington, D.C. 20360-5110 Tel: (202) 746-1020 JAMES R. DIKEMAN Counsel, Class Action Litigation Naval Aviation Depot Naval Air Station Jacksonville, Florida 32212 Tel: (904) 772-5507 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant's Proposed Findings of Fact and Conclusions of Law has been served this date upon the plaintiffs by mailing a copy thereof, first class postage prepaid to: Clyde E. Murphy, Esguire Ronald L. Ellis, Esquire NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street 16th Floor New York, New York 10013 Edward W. Dawkins, Esquire 101 East Union Street, Suite 211 Jacksonville, Florida 32202 Date: 7 November 1989 JAMES R. DIKEMAN Counsel, Class Action Litigation for the applicant flow and employee history databases were estimated on a sampling basis. Expert testimony as to the adequacy of the database accuracies was adduced. Plaintiffs have not challenged the accuracy of defendant's databases. The Court is satisfied with defendant's evidence on this issue. 2. Statistical Methodology 70. Plaintiffs' expert, Dr. Shapiro, criticized defendant's statistical technique on several bases. First, Dr. Shapiro testified that defendant's MULTEVENT analysis was not appropriate because it assumed "fixed marginals" which was no the case in the analysis of NARF selections. Dr. Palmer citing a well-known statistical text book noted that Dr. Shapiro was simply wrong. M. Kendall & A. Stuart, The Advanced Theory of Statistics at 580- 85 (4th ed. 1979). See also, M. DeGroot, S. Fienberg, & J. Kadane, Statistics and the Law at 9-10 (1986). 71. Dr. Shapiro also criticized the Mantel-Haenszel statistic as being less powerful than the Pearson chi squared statistic. Again Dr. Palmer noted the plaintiffs' expert was wrong. Defendant' experts were relying on the exact test and not the Mantel-Haenszel. Moreover, Dr. Shapiro's criticism of the Mantel-Haenszel statistic is simple incorrect. Defendant provided a number of statistical references that support the appropriateness of using the Mantel-Haenszel statistic. See also, J. Gastwirth, Statistical Reasoning in Law and Public 44 Policy at 230-33 (1988); D. Kleinbaum, L. Kupper, & H. Morgenstern, Epidemiological Research: Principles and Quantitative Methods at 331 (1982)("The Mantel-Haenszel (MH) test (1959) is the most widely used and recommended method for testing for overall association in a straitified analysis" — The term "stratified" refers to aggregation over separate p o o l s ) . 72. Dr. Shapiro's criticizms of defendant's statistical techniques appear to be without merit. 5. Plaintiffs' Statistics 73. Plaintiffs submitted a number of computer printouts containing statistical analyses. The submission that contains the data must relative to the class claims is Plaintiffs' Exhibit No. 273. The results reported in this exhibit are summarized in the following table: Pool Chanqes Predicted Over/ Z- Total Blk Total Blk Black Chg Under Value Total 25,247 2,872 3,391 392 463.2 -71.3 -5.82 GS 7,278 533 1,505 153 169.1 -16.1 -2.17 WB 284 14 193 13 11.8 + 1.2 + 0.85 WD 1,187 36 72 2 2.0 + 0.0 + 0.00 WG 15,098 2,176 1,480 212 267.1 -55.1 -5.75 WL 4 1 1 1 1.0 0.0 0.00 WN 118 0 8 0 0.0 0.0 0.00 WS 2,278 112 132 11 12.3 -1.3 -0.40 45 74. Across both pay systems, these change analyses results indicate a disparity adverse to blacks of -5.82 standard deviations. In evaluating this result, the Court notes that "[i]f the tested disparity is based on erroneous assumptions or suffers from flaws in the underlying data, then standard deviation analysis is foredoomed to yield an equally faulty result." M a d d o x . 764 F.2d at 1552. Thus this Court must then review the assumptions upon which this analyses is premised and the underlying data. As noted above, the law in this circuit requires that statistical analysis of a widely disparate and highly skilled work force such as that at NARF must both control for job types and account for qualifications. While this change analysis of plaintiffs does control for job series, it does not account for qualifications. Given the diversity and skill levels required in the NARF work force, the failure to account for qualifications in this analysis is a fatal flaw. 75. In addition to this defect in the basis model upon which plaintiffs' analysis is premised, serious questions have been raised about the accuracy and completeness of the underlying database. Despite the fact that, since before the certification hearing, defendant has challenged the accuracy and completeness of the underlying database, plaintiffs have not provided the Court with any data addressing the accuracy of the computer database that they used in their analysis. A simple comparison of the total numbers of changes in plaintiffs' analysis with the total number of promotions in defendant's combined promotion 46 analysis is sufficient to suggest the magnitude of the problems with plaintiffs' database. The resulting difference is even more striking when it is recognized the lateral and downward moves across pay plans would be included in plaintiffs' change counts even though neither is properly classified as a promotions. The comparison is illustrated in the following table (using defendant's black versus white data): De fe nd an t's P l a i n t i f f s ' Promotions Chanaes Black White Total Black White Total FWS 284 2283 2567 239 1647 1886 GS 209 1673 1882 153 1352 1505 Total 493 3956 4449 392 2999 3391 76. Given the evidence submitted by defendants as to the accuracy and completeness of their databases and plaintiffs' failure to provide any error rate information, the Court is left with no option but to rely on the completeness of defendant's data. The Court recognizes that the year-end to year-end comparison method employed by plaintiffs could explain some portion of this substantial difference. However, whether it is defect in method or in data or in both, plaintiffs' analyses are excluding a substantial number of transactions relevant to the issue before the Court in this case. Moreover, defendant's experts presented additional information which raises serious doubt about the accuracy and completeness of plaintiffs' 47 database. 77. Plaintiffs' statistical case is not bolstered by any of the other analyses which they have submitted. Their other inferential analyses not only failed to account for qualifications but even failed to control for job series (and in the first version, failed to exclude data that predated the relevant time period applicable in this c a s e ) . See, M a d d o x , 48 764 F.2d at 1550. Plaintiffs' static workforce descriptive comparisons are similarly flawed. I d . 6. Other Evidence Relevant to the Class Disparate Treatment Claim 78. Another indication that discrimination was not N A R F 's standard operating procedure is its extensive affirmative action plans. While the existence of an affirmative action plan certainly does not preclude the possibility of discrimination, the evidence from high level managers and selecting officials such as Commander Albertolli and Mr. Barilla establish it was not merely a paper exercise. Barriers to advancement were identified. Training programs under a variety of names, UMP, apprenticeship, career ladder and worker trainee, all enabled black employees, among others to advance. This circuit, and others, has recognized the existence of an active affirmative action plan is significant evidence of the absence of a pattern or practice of discrimination. Equal Employment Opportunity Commission v. Datapoint C o r p . . 570 F.2d 1264, 1270 (5th Cir. 1978); Lewis v. National Labor Relations B o a r d . 750 F.2d 1266, 1277 (1985); Coser v. M o o r e . 739 F.2d 746, 751 (2d Cir. 1984) (The existence of a comprehensive affirmative action plan is the antithesis of a pattern or practice of di sc ri mi na ti on). 79. The evidence before the Court relative to anecdotal claims 49 is addressed in Section D of these conclusions. It is sufficient to note here that the anecdotal evidence is not sufficient to rescue plaintiffs' flawed statistical comparisons. C. Classwide Disparate Impact Claims 1. The Disparate Impact T h e o r y . 80. The disparate impact theory may be used to attack subjective as well as objective components of an employment scheme. Wards Cove Packing Co.. Inc, v. A t o n i o . ___ U.S. ___ , 109 S.Ct. 2115 (1989), Watson v. Fort Worth Bank & T r u s t . 487 U.S. ___ , 108 S.Ct. 2777 (1988), Maddox v. C l a v t o r , 764 F.2d 1539, 1548 (11th Cir. 1985), Griffin v. C a r l i n . 755 F.2d 1516, 1522-24 (11th Cir. 1985). "Disparate impact is used to attack employment practices that are facially neutral yet fall more harshly on a protected class of employees. The employer's intent is not at issue." E a s t l a n d , at 619. "The Supreme Court has set out a three-step analysis for evaluating disparate impact suits." M a d d o x , at 1548, c i t i n g . Connecticut v. T e a l , 457 U.S. 440 (1982), Albemarle Paper Co. v. M o o d y . 422 U.S. 405 (1975), Griggs v. Duke Power C o . . 401 U.S. 424 (1971). 1 1. Prima Facie Case of Disparate I m p a c t . 81. "A prima facie case is established by identification of a neutral employment practice coupled with proof of its discriminatory impact." Ea s t l a n d . at 619 (emphasis added), 50 c i t i n g . Johnson v. Uncle Ben's. I n c . . 657 F.2d 750, 753 (5th Cir. 1981) cert, d e n i e d . 450 U.S. 967 (1982). "Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or test, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Wards C o v e , 490 U.S. at _____, 104 L.Ed2d at 751, c i t i n g . Watson v. Fort Worth National Bank and T r u s t . 487 U.S. at _____, 101 L.Ed2d 827, 845, 108 S. Ct. 2777 (1988). "Except where promotion depend almost entirely on mere subjective conclusions drawn without guidance, e . g . . Rowe v. General M o t o r s . 457 F.2d 348, 358-59 (5th Cir. 1972), it is imperative to identify the particular steps in the decision making process which are susceptible to ungoverned discretion." M a d d o x . 1548. 2. Legitimate Employment Goals and Burden of P r o o f . 82. In the second phase, the employer carries the burden of producing evidence of a business justification for his employment practice. The burden of persuasion, however, remains with the disparate-impact plaintiff. "[T]he ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times." Wards C o v e , 490 U.S. at _____, 104 L.Ed2d at 753 (emphasis is original), c i t i n g . W a t s o n , 487 U.S. at ___ , 101 L.Ed2d at 847.23 23 Justice White acknowledged "some of our earlier decisions can be read as suggesting" the employer had the burden of proof with respect to a legitimate business justification defense 51 If plaintiffs establish a prima facie case of disparate impact, the case will shift to any business justification petitioners offer for their use of these practices. This phase contains two components: first, a consideration of the justifications an employer offers for his use of these practices; and second, the availability of alternate practices to achieve the same business ends, with less racial impact. Wards C o v e . 490 U.S. at _____, 104 L.Ed.2d at 752, c i t i n g . Albermarle Paper Co. v. M o o d y , 422 U.S. 405, 425 (1975); W a t s o n . 487 U.S. at _____, 101 L.Ed.2d at 847. 83. Once the employer establishes the first component of the business justification defense, plaintiffs may still prevail on the second component. To do so, respondents will have to persuade the factfinder that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate hiring interest by so demonstrating, respondents would prove that petitioners were using their tests merely as a pretext for discrimination. Wards C o v e . 490 U.S. at _____, 104 L.Ed2d at 753, c i t i n g . Albermarle Paper C o . , _____ U.S. at 425, W a t s o n . 487 U.S. at _____, 101 L.Ed2d 827. Plaintiffs were barred from introducing any evidence on this issue. O r d e r . November 14, 1984, p.3. 3. Establishing a Legitimate Employment Goals D e f e n s e . Though we have phased the guery differently in different cases, it is generally well-established that at the justification stage of such a disparate impact case, the dispositive issue is whether a challenged practice serves, in a significant w a v , the legitimate employment goals of the em pl oy er ... The touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice. A mere insubstantial justification in this regard will not suffice, because such a low standard of review would permit discrimination to be practiced through the use of spurious, seemingly neutral employment 52 practices. At the same time, though, there is no requirement that the challenged practice to be "essential" or "indispensable" to the employer's business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet, and would result in a host of evils we have identified above. Wards C o v e . 490 U.S. at _____, 104 L.Ed2d at 752-53 (citations omitted, emphasis added). The Eleventh Circuit has previously issued decisions similar to the Supreme Court's holding in Wards C o v e . In Eastland the burden on the employer is described as proving "that the practice is related to job performance ..." 704 F.2d at 619, citing D o t h a r d . 433 U.S. 321. The Supreme Court in Beazer found that this relationship exists where the employer's "legitimate employment goals of safety and efficiency ... are significantly served by - even if they do not require - (the challenged neutral practice)." I d . . at 587 n. 31. A high degree of human or economic risk lowers the degree of the relationship that need be shown between the selection criterion and job performance to constitute a legitimate business purpose. See, Schlei and Grossman, Employment Discrimination L a w , p. 170 (1983). Judge Tuttle has explained the criteria. "In determining whether the employer has met its burden, the court looks at the amount of skill required for the position and the economic and human risks involved." Walker v. Jefferson County H o m e . 726 F.2d 1554, 1558 (11th Cir. 1984). He then quoted Spurlock v. United Airlines. I n c . . 475 F.2d 216, 219 (10th Cir. 1972): When a job requires a small amount of skill and training and the consequences of hiring an unqualified applicant are insignificant, the court should examine 53 closely any pre-employment standard or criteria which discriminate against minorities. In such a case, the employer should have a heavy burden to demonstrate to the court's satisfaction that his employment criteria are job-related. On the other hand, when the job clearly requires a high degree of skill and the economic and human risks involved in hiring an unqualified applicant are great, the employer bears a correspondingly lighter burden to show that his employment criteria are jo b-related. W a l k e r . 854 F2d at _____. (Emphasis added.) 2. Plaintiffs' Disparate Impact A l l e g a t i o n . 84. In this case, as in M a d d o x , the thrust of the plaintiffs' case is that the Base's promotion system is so riddled with opportunities for decision-makers to exercise their discretion in an unguided subjective manner that it provides a ready mechanism for whites to vent discriminatory feelings upon black applicants. In short, the facially neutral employment practice that the plaintiffs challenge having substantial adverse impact on blacks is the subjectivity of the promotion process. M a d d o x . 764 F .2d at 1548. Plaintiffs have stated the'ir challenge to defendant's promotion process in the following manner. Plaintiffs have consistently asserted that the essence of their claim is that the promotion system utilized by the defendant - relying as it does on the subjective evaluations of supervisors, promotion panels, and other personnel - has a discriminatory impact on the ability of black employees to get promoted because of its subjectivity... [P]laintiffs ... have ... concentrated on the common denominator in the consistent failure of blacks to gain promotion: to wit, the subjective nature of the evaluative process that is the heart of the promotion procedure. Plaintiffs' Response to Defendant's Memorandum in Limine Regarding the Effect of Discovery Sanctions Imposed on Pl ai nt if fs, at 3?24 see a l s o . 1 T.T. 13-15 (opening ar gu me nt ). 24 Hereinafter cited as Plaintiffs' Response to Defendant's Motion in Limine. 54 The reply by the Eleventh Circuit in the Maddox case is equally applicable here. "Although the appellants insist that the basis entire scheme is subjective, we agree with the District Court that only the selecting panel and, to a slight degree, the ranking panel procedures provide ready mechanisms for discrimination." M a d d o x , at 1548. 3. Testimony by P l a i nt if fs1 E x p e r t . 85. In order to distinguish Maddox and to establish pervasive subjectivity plaintiffs propound a number of arguments and allegations. Plaintiffs begin their assault by stating that in Maddox "... plaintiffs - absent the testimony of an expert witness - were not able to establish the subjectivity of other elements in the process". Plaintiffs' Reply to Defendant's Pretrial B r i e f , at 11. Plaintiffs did not offer expert testimony on the subjectivity of other elements in this case either. Plaintiffs' expert and programmers had no substantive knowledge of the personnel or promotion system.25 4. Plaintiffs' Arguments that the Promotion System is S u b j ec ti ve. 86. Plaintiffs point to the role of the staffing specialist, the 25 Mr. Dwayne Clark, a class member, gave a description of the promotion process. 1 T.T. at 57-68. However, he was not offered as an expert, he had never worked in Employment where the staffing function operates the selection process and agreed that, "If you wanted someone with detailed knowledge about the promotion system, you'd have to go to a (staffing) specialist ..." 1 T.T. at 105, 106. 55 types of promotion opportunities and how they are issued, the operations of the panels, the use of the certificate, the selecting officials and the role of the supervisors, along with some general complaints about the general process in their attempt to establish pervasive subjectivity. a. Staffing specialist. 87. Plaintiffs accurately relate that staffing specialists "generates the crediting plan, the vacancy announcement and the register", and gives guidance on the source of candidates "therefore being involved in all administrative steps of the process." Plaintiffs' Reply to Defendant's Pretrial B r i e f , at 20. That being the case there is no difference here at NARF than there was in M a d d o x . Indeed the presence of the staffing specialist throughout the process it once operates as a check on discretion on the part of the supervisors and ensures compliance with the regulations. Plaintiffs make two specific allegations which could be laid at the feet of the staffing specialist. The type of promotion opportunity used, and the initial eligibility de te rm in at io ns. 1 (1) Types of P r o - o p s . 88. Plaintiffs allege that one of the subjective elements is the "decision" as to whether a promotional opportunity "should be a discrete, open and closed pro-op, or whether it should be an open continuously pro-op...". Plaintiffs' Response to Defendant's 56 Motion in L i m i n e , at 11. However, NARF management did not get to choose which type of vacancy announcement would be used whether open-closed, open-continuous or multiple listing, as related by Kay Marti, "I don't ever remember discussing that with management officials. The Civilian Personnel Office would determine (that) based on how we had filled the jobs in the past." 16 T.T. at 81. (2) Eligibility de te rm in at io ns. 89. Plaintiffs point out that when the applications are received the "staffing specialist reviews the applications to determine whether the filing requirements have been met and whether the minimum qualifications for the positions have been met. Here again there is subjective discretion on the part of the staffing specialists." Plaintiffs' Response to Defendant's Motion in L i m i n e . at 12. Again plaintiffs are using the term "subjective" in a manner inconsistent with the Fifth Circuit's use of the word in Rowe v. General M o t o r s . 90. The staffing specialists have little, if any, discretion in determining whether the applicant was procedural eligible. As explained by the staffing expert, Ms. Marti, "you met the requirements or you didn't." 16 T.T. at 89. That determination was recorded in the pro-op folder. 16 T.T. at 89. Similarly the minimum qualifications requirements, was also a determination that was as circumscribed by objective criteria as could 57 reasonably be expected. As in Maddox "the decisions made at this stage are circumscribed by the criteria ... as one could reasonably expect of any personnel office... . I d .. at 1548. 91. Plaintiffs complain that the FWS eligibility determinations was an example "where supposedly discrete steps in the process in fact do overlap, and one cannot tell when an FWS candidate is ruled ineligible whether the ruling came from a staffing specialists or the rating panel." Plaintiffs Response to Defendants Motion in L i m i n e , at 12-13. Plaintiffs are simply wrong on all accounts. FWS eligibility determination does not "overlap". It operated at NARF as designed by OPM. Further, one can tell from the records whether an FWS candidate is ruled ineligible by the staffing specialist because they failed to meet the screen-out element or by the rating panel because they failed to score an average of two points per element. 16 T.T. at 103 (Marti). b. Rating Pa n e l s . (1) Participation by Black E m p l o y e e s . 92. Plaintiffs allege that unlike the Marine facility in the Maddox case, at NARF no "claim can be made or substantiated by the defendant that ... the facility went to great pains to insure 1 that rating panels included black participants ..." P l a i nt if fs1 Reply to Defendant's Pretrial B r i e f , at 7. It is clear from plaintiffs' own witnesses that it was the policy of the NARF up 58 to 1977 to have black employees serve on rating panels when there were black applicants. After April 1977 the EEO representative was always a voting member. While there was a continuing effort to have blacks serve on rating panels there was no requirement that the EEO representative be a minority. Panel members appointed as the EEO representative were briefed on their duties by the Deputy Chief EEO counselor. 93. Ms. Marti testified, "Up to 1974, there was primarily a nonvoting EEO observer, and the individual would sit in the room with the rating panel members but would not actually rate. Sometime about '75, is when they became a voting member." 16 T.T. at 94. Other evidence shows the change occurred in April 1977. Mr. Walter Ware, a testifying class member, was NARF's Deputy EEO Counselor from December 1972 through 1977. 1 T.T. at 75. Mr. Ware designated EEO observers to be on rating panels. 1 T.T. at 160. In his testimony about the 1977 Affirmative Action Plan Mr. Ware discussed the status of the minorities who served on panels before then. "They began as observers. We had them serve as observers when we didn't have a minority or a female that was qualified to rate. 1 T.T. at 171-72. Mr. Sneed testified that after he was promoted to supervisor in 1974 he served on rating panels because he was black. 7 T.T. at 169, 174. "... I found out later on that through the Equal Opportunity we had to — anytime black ... applicants was involved, they had to have a black rater along with the other." 59 7 T.T. at 174-75. Mr. Ware testified there was "a policy from our upper echelon that we will put minorities and women on panels when minorities and women were applying for a job ... And this went on for about three years and then the policy ceased to exist. A new Captain came on board and we stopped doing it." 1 T.T. at 170-71. 94. In the Affirmative Action Plan for the period of October 1, 1976 through September 30, 1977 one of the actions items was "(2) Qualified women and minorities will be assigned to serve on Merit Promotion Rating Panels." The status of that action was "(2) The procedure for appointing to Merit Promotion Rating Panels have been changed. Qualified minority and female employees are nominated to serve on rating panels." D. Exh. No. 6, at 17. This change did away with non-voting EEO observers. ; 95. Mr. Ware confirmed the change. "At this particular time, that authority or responsibility was taken away from the EEO Office and no longer did we do that as we did prior to this change. From now on we'd say we would put qualified women on that, I no longer had the authority to appoint people as I did in previous years." 1 T.T. at 171. 26 26 Ms. Jean Guy, a testifying class member and N A R F 's Deputy EEO Counselor from September 1980 through December 1988, later approved of the change. 2 T.T. at 62. "I think initially there may have been observers when I got there. But my recommendation, again, was not to have observers because that could not impact the selection." 2 T.T. at 88-89. 60 96. The panel member selected to be the EEO representatives received training from the EEO office for that duty. 19 T.T. at 174-75 (Sanderson); 20 T.T. at 153-54; 21 T.T. at 195-96, 204 (Horn); 22 T.T. at 168, 174-75, 178 (Collins, Cromer, Bailey). Mr. Horn who served on at least 25 rating panels testified his EEO briefings lasted approximately 30 minutes. 21 T.T. at 204.27 (3) Complaints about Rating P a n e l s . 97. Mr. Clark testified the rating panels were "extremely subjective. It was what your eyes saw and your mind saw." 1 T.T. at 61. He testified the crediting plan was the document that's used as a guide. And the subject matter experts made it very clear that it was a guide and that it was their determination based upon their skills level, based upon their knowledges, based upon their technical competency of what was comparable and what was not comparable. 1 T.T. at 67. He said it was common for raters to disagree by more than two points in their ratings. I d . . at 61-62. Ms. Marti disagreed with Mr. Clark's assertion that the crediting plan was only used as a guide. "If by guide you mean they could use them or not use them, absolutely not." 16 T.T. at 101. Prior to the rating the staffing specialists briefed the panel members on duties and responsibilities. Further the panel process forced the members to justify and modify their ratings 27 Plaintiffs anecdotal witnesses show wide-spread integration of the rating panels both before and after the change. Seven of the testifying class members served on rating panels. 1 T.T. at 57 (Clark); 3 T.T. at 19 (Littles); 3 T.T. at 114 (Bowman); 8 T.T. at 4,5 (Sneed); 9 T.T. at 41, 42 (Mack); 9 T.T. at 56 (Sawyer); 10 T.T. at 133 (Gradson J o h n s o n ) . 61 until they agree within two points. Well, during our discussion the panel members would support their rating. If someone assigned a 4, they would show where in the application they got the information in order to assign that score. If it wasn't in the application, then the score would be adjusted ... downward. 16 T.T. at 99 (Marti). 98. Ms. M a r t i 's testimony that the panels were run fairly was amply supported by other witnesses. 19 T.T. at 175; 20 T.T. at 153-54, 177 (Hawkinson, Cromer); 21 T.T. at 73, 130, 197 (Thornton, Fox, Horn); 22 T.T. at 67, 178-80, 190 (Gonzalez, Bailey, Hunt). Mr. Sneed's testimony reflected how carefully the panels were run. "... (W)e had an overseer from CPD looking over the rating panel. You know, you couldn't talk, nothing, in the rating panel." 8 T.T. at 4. On those occasions were there were violations it was quickly dealt with. 99. Testimony establishes the panel members, with rare exceptions, followed the regulations. As a staffing specialist Ms. Marti observed "in excess of 250" panels. 16 T.T. at 97. During this she "busted" only four or five panels for violating procedures. "... I would observe that they were discussing the applications among themselves or they were ... discussing things that were not in the application, stories they knew about them or they went fishing with them or something like that." 16 T.T. at 102. None of the infractions she observed had any racial overtones. I d . 62 100. Mr. Clark observed over a hundred rating panels between the fall of 1969 and August 1976. 1 T.T. at 57, 69-70, 93-95. For all his criticisms Mr. Clark testified that the panels that he sat on were run correctly. "They went by the book, the ones that I sat on ... Let me correct that, some of them ... I've had to interject myself and some of them." And after he did so corrections were made by the panels. 1 T.T. at 109. 101. Similarly, as an EEO observer Mr. Bowman was on panels where the personalities of the applicants were discussed by the panel members. 1 T.T. at 124, 137. "... I brought that to the attention of the Commanding Officer. He corrected it." 1 T.T. at 124. Mr. Bowman reported this through Mr. Ware the Deputy EEO Counselor. 3 T.T. at 138. Shortly afterwards the Commanding Officer put out instructions that "there'd be no more discussion as far as the rating and to adhere strictly to the regulations." Id. (2) Supervisors on Rating P a n e l s . 102. Plaintiffs complain that sometimes the supervisor over the vacant position was one of the subject matter experts who served on the rating panel. Plaintiffs' Reply to Defendant's Pretrial Brief, at 20. Plaintiffs allege that a supervisor who didn't want a particular individual for a position "could accomplish that by giving the person a low rating so that he/she could not appear on the certificate list where supervisor would recommend 63 selection..." Id. But this complaint ignores the OPM requirement that the scores of the panel members had to agree within two points of one another. 16 T.T. at 98 (Marti); D. Exh. No. 6, at 59-60. 103. Plaintiffs' allegations with regards to subjectivity in the ranking panel also fails for the similar reason set forth in M a d d o x . While the ranking panels applications of the crediting plan for the applications " could be somewhat subjective ... several safeguards operate to check the panelists' discretion." M a d d o x . at 1549. The panel members are knowledgeable on the vacancies in question either being an incumbent of such a position or the supervisor of it. They must evaluate each relevant element of each file on a mathematical scale supplied them, then resolve their differences. They must send the scores of each applicant to the personnel office. They do not play any further role in the selection process, and not even the order in which the panel ranked the applicants is known to the selecting panel. M a d d o x , at 1549. Accordingly, the NARF ranking panel procedures are not susceptible to challenge under the allegation of subjectivity. c. Alleged Problems with Ce rt if ic at es. 104. Plaintiffs generally allege that it was difficult to isolate the separate stages in the promotion process. They cited as an example "sometimes after a certificate is issued, it was amended or additional names were added to it by supplemental certificate." Plaintiffs' Reply to Defendant's Pretrial B r i e f , 64 at 22. That amended or supplemental certificates were issued does nothing to establish the alleged difficulty of isolating separate steps in the process. An amended certificate was only issued when an administrative error had occurred which kept an individual off the original certificate. 16 T.T. at 108-09 (Marti). A supplemental certificate was issued only when additional vacancies occurred for the same type position and additional names were required to meet the rule of five for the certificate. 16 T.T. at 109. e. Role of supervisor. 105. Plaintiffs allege the immediate supervisor over the vacancy may: (1) May have determined who was eligible or ineligible to be rated; and (2) May, with the staffing specialist, have determined the requirements for the job. Thus, plaintiffs complain "so in fact every step in the process is blurred, because at every step there are people who are participating in every other step of the process." P l a i nt if fs1 Response to Defendant's Motion in L i m i n e , at 16. Plaintiffs also complain of the subjectivity of the supervisory promotion a p p r ai sa ls.28 28 These should not be confused with the annual performance appraisal also filled out by an employees immediate supervisor. S e e . 16 T.T. at 83 (Marti). 65 (1) The Supervisor Does Not Make Eligibility Determinations. 106. It is not a supervisor who determines whether the applicants are eligible or ineligible to be rated, it is the sole discretion of the staffing specialist. While it is possible for the staffing specialist to confer with the supervisor over the vacancy about eligibility requirements it only occurred rarely. 16 T.T. at 92-93 (Marti). (2) Supervisors Do Not Establish Crediting P l a n s . 107. Plaintiffs complain that the supervisor may participate in determining the qualifications for the job. Plaintiffs_Response to Defendants Pretrial B r i e f , at 16-17. While it was certainly possible for this to occur in theory, the evidence shows that it occurred only rarely and plaintiffs never demonstrated a single instance where a supervisor had helped establish a crediting plan and then was on the rating panel let alone where a supervisor prejudiced the process to the detriment of black employees. 108. Most of the crediting plan were established in the 1970-71 time frame because the new X-118 and X-118C were implemented on January 1, 1971. 16 T.T. at 68 (Marti). Once established, the crediting plans were used over and over again. Every time you had a vacancy come up, you didn't write new criteria; you pulled out the criteria for the Aircraft Mechanic that had been established and used it. You reviewed it, but things weren't changing 66 unless you had a change in the aircraft or you had a change in components or some new tool or something like that, then there was no need to change the criteria. 16 T.T. at 68, 171. Management could have been consulted about whether to use an old Crediting Plan or not but that was not the norm. 16 T.T. at 68. Certainly the Eleventh Circuit say no problems with the staffing specialist contacting a division director or even the immediate supervisor "to determine whether any additional requirements are necessary." M a d d o x . 764 F.2d at 1543. f . "Feed back L o o p s " . 109. Plaintiffs allege there are "feedback loops" in the promotion system that precludes isolating any analysis on the certified to selected step. In fact in the extreme case an open continuously Pro Op could be issued and an individual could apply for that promotion, an not be found eligible or not be given a high rating or not be selected. Then he could be given a temporary promotion to the same position, reapply on the very same Pro Op, go through the same process again and get selected at the next certificate. Thereby in a sense short circuiting the whole process and going through what is conceivably, if you push it to its logical extreme, a continuous feed back loop, each time getting higher and higher in the ratings as more and more experience is acguired in the very job for which the Pro Op was announced. Pl ai nt if fs1 Response to Defendant's Motion in L i m i n e , at 12 n. 1 (emphasis a d d e d ) . It is not a logical extreme to hope that as a person's experience relative to a position increases that their rating should also increase. If the system is working properly the employee's ratings and chances for promotion should increase. 16 T.T. at 102-03 (Marti). 67 110. Plaintiffs also claim to have found "feedback loops" in the selection process itself. The (selection) procedures are summarized on pages 47, 50 and 51. The evaluation tables on page 53 show in bold arrows the feedback loop in the s y s t e m . The process was not unidirectional, step by step, discrete process, but in fact contained feedback loops which meant that the process was such that you could not ascertain necessarily at what stage ineligibility or a low rating o c c u r r e d . P l a i nt if fs1 Reply to Defendant's Pretrial B r i e f , at 20 (emphasis a d d e d ) . However, defendant's diagrams of the selection process did neither portrayed nor contain "feedback loops". Rather, the "bold arrows" simply point to what section selection process will be discussed. 16 T.T. at 118-20 (Marti). Further, based on the extensive documentation kept in each pro-op file one can tell exactly at what point either a FWS or GS candidate was determined to be ineligible. 16 T.T. at 103-04, 115-16 (Marti). g. Selecting o f fi ci al s. 111. Concerning the selecting officials plaintiffs relate that the Defendant's report on the selection process, D. Exh. No. 6, ... states that the selecting officials were entitled to select and not to select from a promotion certificate. Furthermore, it says that selecting officials were allowed to consider more than the candidates K S A s , "knowledges, sills and abilities" required for basic eligibility. This acknowledges another whole set of subjective and unascertainable criteria that could be used by the selecting o f f i c i a l . Plaintiffs' Response to Defendant's Motion in L i m i n e , at 15 n. 2. Additionally, plaintiffs are suspicious of the informal recommendations selecting officials received from subordinated supervisors. I d . . at 16. 68 112 . It is precisely for these types of concerns that the Eleventh Circuit in Maddox found the allegation of subjectivity applicable to the decision by the selecting official. M a d d o x . at 1549. "Although the appellants insist that the basis entire scheme is subjective, we agree with the District Court that only the selecting panel and, to a slight degree, the ranking panel procedures provide ready mechanisms for discrimination." M a d d o x , at 1548. Since the allegation of subjectivity was limited to the decision of the selecting official the court found, "The truly relevant (statistical) comparison would have been that between certified applicants and selected applicants." I d . . at 1553. T h u s , The plaintiffs' claim depends on their showing by preponderance of the evidence that subjectivity, which the evidence shows to be negligible before the interviewing stage, is the neutral practice Have an adverse impact on Blacks. "In making a prima facie case in the Disparate Impact suit, however, the plaintiff must not merely prove circumstances raising an inference of discriminatory impact; he must prove the discriminatory impact at issue." M a d d o x . at 1552- 53, c i t i n g . Johnson v. Uncle Ben's. I n c . . 657 F.2d 750, 753 (5th Cir 1981), cert, d e n i e d . 459 U.S. 967 (1982). In this case, as in Maddox "the truly relevant comparison would have been that between certified applicants and selected applicants." M a d d o x , at 1553. In this case plaintiffs did not analyze that step and as in Maddox "we are left to wonder why (plaintiffs' experts) did not include in his affidavit a comparison of certified interviewees and those selected. This stage in the promotion competition is the very one involving the 69 subjectivity that plaintiffs challenge. Maddox, at 1554. D. Anecdotal Allegations of Discrimination. 113. Plaintiffs' anecdotal cases consist of plaintiffs' allegations subsequent to their administrative complaint and the claims of non-plaintiff class members. Anecdotal allegations can support both theories of discrimination, i.e., pattern or practice and disparate impact. M a d d o x . 764 F2d at 1556, 1557. 1. Burdens of Proof for Anecdotal Al l e g a t i o n s . 114. The parties disagree over the burden of proof for the individual, or anecdotal, claims of discrimination. Plaintiffs urge that the Navy has the burden of disproving the anecdotal allegations by a preponderance of the evidence. The defendant urges application of the McDonnell Douglas - Burdine framework on the anecdotal claims at the liability phase of the case. 115. The burden of persuasion does not shift until after plaintiffs have established a class wide violation of Title VII. ... (P)etitioners here have carried their burden of demonstrating the existence of a discriminatory hiring pattern and practice by the respondents and, therefore, the burden will be on respondents to prove that individuals who reapply were not in fact victims of previous hiring discrimination. Franks v. Bowman Transportation C o . . 424 U.S. 747, 772 (1976), See a l s o . T e a m s t e r s . 431 U.S. at 359 n. 45, 362; Price Waterhouse v. H o p k i n s . _____ U.S. _____, 109 S.Ct. 1775, 1799-1801 (O'Conner J. concurring). 70 116. Thus plaintiffs in this case put the proverbial cart before the horse when they argue they do not have the burden of proof when using anecdotal claims to support their contention of a pattern or practice of discrimination. Accordingly, I have follow the established precedent in the Eleventh Circuit of analyzing individual claims under McDonnell Douglas-Burdine to see if they assist plaintiffs' case. S e e : M a d d o x . at 1556; Eastland v. F r e e m a n . 528 F.Supp. 862 (N.D.Ala. 1981) aff'd sub nom. Eastland v. Tennessee Valiev A u t h o r i t y . 704 F.2d 613 (11th Cir. 1983); Griffin v. Wa i n w r i a h t . 44 FEP 914 (N.D.Fla.) r e v 1d sub n o m . . Griffin v. D u g g e r . 823 F.2d 1476 (11th Cir. 1987) (vacating class certification), cert, d e n i e d , 486 U.S. _____, 108 S.Ct. 1729 (1988). 117. This is not to say that the statistical and anecdotal proof are independent of one another. With regard to both the individual and class claims, all the evidence is relevant and should be considered together. The statistical and other evidence is relevant to the individual claims because it "is often a telltale sign of purposeful discrimination." Teamsters, 431 U.S. at 340 n. 20. The evidence of specific incidents of alleged discriminatory treatment is relevant to the class claims because it may bring "cold numbers convincingly to life." I d . at 339. The Supreme Court in McDonnell Douglas suggested the proper role of statistics as they relate to an individual claim. 71 Other evidence that may be relevant to any showing of pretext includes ... statistics as to the petitioners employment policy and practice may be helpful to a determination of whether petitioner's refusal to hire respondent in this case conformed to a general pattern of discrimination against blacks. 411 U.S. at 804-05 (emphasis a d d e d ) . Accordingly, for the sake of clarity I discussed the witnesses claims separately, but it should be remembered that the evidence relating to one claim may be relevant and persuasive with regard to other individual claims and the statistics. 2. Anecdotal Allega ti on s. 118. This case stands in stark contrast with two of important decisions in Title VII law. In Teamsters v. United States the government put on a mere 40 anecdotal allegations against T . I. M.E.-D.C., a nation wide trucking firm, and its union. 431 U . S. at 328, 338. Based on this testimony the district court found that minority applicants who sought positions "at the company over the years, either had their requests ignored, were given false or misleading information about requirements, opportunities, and application procedures or were not considered on the same basis as whites..." I d . . at 338. The illustrative examples given by the Court were direct evidence of discriminatory intent. A Hispanic who applied for a position "was told by a personnel officer that he had one strike against him ... 'You're a Chicano, and as far as we know, there isn't a Chicano driver in the s y s t e m . '" I d . at 338 n. 19. "The individuals who testified about their personal experiences with 72 the company brought the cold numbers convincingly to life." I d .. at 339. The statistics brought to life were already robust. The "company's inability to rebut the inference of discrimination came not from a misuse of statistics but from 'the inexorable zero.'" I d . . at 342 n. 23. "The company's evidence ... consisted mainly of general statements that it hired only the best qualified applicants. But affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion." I d .. at 343 n. 24. 119. In Rowe v. General M o t o r s , a 1972 Fifth Circuit decision, there was no promotion "system". Employees at the Atlanta plant were not notified of promotion opportunities nor the qualifications for the positions. The immediate supervisor's recommendation was the "indispensable single most important factor" but the foreman had no written guidance on the qualifications needed. The standards "determined to be controlling" were "vague and subjective." Finally, there were no safeguards in the procedure "designed to avert discriminatory practices." 457 F.2d at 358-59. 120. The statistical back drop against which the anecdotal allegations play themselves out bear no resemblance to the inexorable zero. There a total of 4,528 promotions of all types at NARF between 1973 and 1982. Black employees received only three less than expected. Peggy's stats combined. An analysis of 73 the selections of black employees where plaintiffs or their witnesses applied shows that black selections were almost exactly as predicted. Indeed the only result large than one standard deviation was favorable to black applicants. D. Exh. No. 23, at 2 (GS UMP selections are +1.31 standard deviations). 121. The personnel system at NARF is the opposite extreme from what existed at the General Motors plant in Atlanta or T.I.M.E.- D.C. Vacancy notices were posted throughout NARF and contained the skills needed for the position. The immediate supervisor's recommendation was only a minor factor. The initial eligibility determinations and the rating panel criteria were in writing. In addition to the written criteria safeguards in the system included ratings by panel, the ability to appeal eligibility determination and rating panel scores in addition to filing grievances or EEO complaints. 122. Unlike Teamsters there was no direct evidence of discrimination presented by plaintiffs. Here, it was plaintiffs' witnesses who made general statements alleging discrimination and defendant's witnesses giving specific, and usually unchallenged, explanations detailing how the rules and procedures which applied to all employees affected the class members. 123. Plaintiffs witnesses complained when other blacks were selected, often times other testifying class members. 9 T.T. at 74 170-71 (Johnson); 22 T.T. at 18, 30 (Robinson complaining and Ware s e l e c t e d ) ; D. Exh. No. 289 (d)(1) (Shuman complaining when Sneed s e le ct ed ); 9 T.T. at 47-48 (Sawyer complaining when Paschal se le ct ed ) . Plaintiffs witnesses complained even though they were selected or withdrew from competition. 1 T.T. at 48 (Norris); 23 T.T. at 142 and D. Exh. No. 286 (c)(1) (Bailey selected but declined); 9 T.T. at 53, 70 and D. Exh. No. (b)(10) (Sawyer w i t h d r e w ) ; 10 T.T. at 92-94 and D. Exh. No. 2140 (Neal promoted same day as white he alleged was promoted ahead of h i m ) . Or complained even though they were selected the first time they were within range for consideration. D. Exh. No. 492 (Clark). 124. Plaintiffs' witnesses often failed to even establish a bare bones prima facie case. Mr. Bailey failed to apply when a white was selected. 23 T.T. at 148 and D. Exh. No. 4186 (list of a p pl ic an ts ). Or the witnesses did not know if any one was selected. 11 T.T. at 13, 23, 24 and 19 T.T. at 161-62 (Robinson co m p l a i n t ) ; 3 T.T. at 164, 166 (Grier); 10 T.T. at 85-86 (Neal complained about eight nonselections identifying only one se le ct ee ) . Or the vacancy was cancelled. 3 T.T. at 125, 150 (Grier). Other times the witnesses did not identify the qualifications, or if they had the qualifications, or if they were rated qualified. 10 T.T. at 14, 15 (Vanderhorst did not know if rated qu a l i f i e d ) ; 10 T.T. at 55, 56 (Vanderhorst, no evidence on qualifications); 3 T.T. at 164, 166 (Grier, no evidence on qualifications). On other occasions the witness was 75 not qualified for the position. 2 T.T. at 32; D. Exh. No. 317 (d)(4) (George rated ineligible by W a r e ) ; 7 T.T. at 131-35, 146- 49 (Wright did not meet time in grade re quirement). 125. Not only did the Navy place great importance on its EEO program but NARF selected blacks for its highest ranking EEO positions. Two of them E. Jean Guy Deputy EEO Counselor from 1980 to 1988 and Walter Ware, Deputy EEO Counselor from 1972 to 1977, were testifying class members. Finally, the NARFs reaction to noose incidents in 1978 are model of how a concerned employer should react. 22 T.T. at 147-55 (Burcham); D. Exh. No. 4 0 4 0 (report of investigation). Even after it had been determined the nooses had not been hung with racist intent, Captain Burcham still sent out an all hands message banning nooses from the workplace, and ordering training for his supervisors on racial sensitivity. 126. Although a substantial portion of the record involves anecdotal allegations "much of that was unpersuasive and conclusory" and in the end the few incidents of discrimination that were established or left unanswered were "sparse, considering the size of the plaintiff class..." M a d d o x , 764 F .2d at 1557, c i t i n g , Metrocare v. Washington Metro. Area Transit A u t h . . 679 F .2d 929-30 (D.C. Cir. 1982). 76 Part IV. Further Proceedings Defendant will provide the Court with proposed directions for further proceedings when the revised proposed findings are filed. 77 V. CONCLUSION For all of the foregoing reasons, defendant asks that the Court enter judgment on behalf of the defendant. Respectfully submitted, November 7, 1989 ROBERT W. GENZMAN United States Attorney DOROTHEA A . BEANE Assistant United States Attorney DANIEL E. O'CONNELL, JR. Associate Chief Trial Attorney RICHARD D. HIPPLE Trial Attorney Litigation Office Office of General Counsel Department of the Navy Washington, D.C. 20360-5110 Tel: (202) 746-1020 JAMES R. DIKEMAN Counsel, Class Action Litigation Naval Aviation Depot Naval Air Station Jacksonville, Florida 32212 Tel: (904) 772-5507 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant's Proposed Findings of Fact and Conclusions of Law has been served this date upon the plaintiffs by mailing a copy thereof, first class postage prepaid to: Clyde E. Murphy, Esquire Ronald L. Ellis, Esquire NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street 16th Floor New York, New York 10013 Edward W. Dawkins, Esquire 101 East Union Street, Suite 211 Jacksonville, Florida 32202 Date: 7 November 1989 Litigation