Johnson v. Garrett Defendant's Proposed Conclusions of Law

    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