Johnson v. Garrett Plaintiffs' Proposed Findings of Fact and Conclusions of Law
Public Court Documents
November 6, 1989

Cite this item
-
Brief Collection, LDF Court Filings. Johnson v. Garrett Plaintiffs' Proposed Findings of Fact and Conclusions of Law, 1989. 61a02d02-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/871b6198-17ea-4bed-ad10-79b0bd88826d/johnson-v-garrett-plaintiffs-proposed-findings-of-fact-and-conclusions-of-law. Accessed May 17, 2025.
Copied!
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION GRADSON A. JOHNSON, et al., Plaintiffs, -vs- H. LAWRENCE GARRETT, III, Secretary of the Navy Defendant. CASE NO. 7 3-702-CIV-J-12 PLAINTIFFS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW JULIUS L. CHAMBERS CHARLES STEPHEN RALSTON RONALD L. ELLIS CORNELIA PILLARD CLYDE E. MURPHY NAACP Legal Defense and Educational Fund, Inc.99 Hudson Street Suite 1600 New York, New York 10013 (212) 219-1900 BILL LANN LEE NAACP Legal Defense and Educational Fund, Inc.634 Spring Street Los Angeles, California 90014 EDWARD DAWKINS 421 West Church Street Jacksonville, Florida 32202 Counsel For Plaintiffs TABLE OF CONTENTS PAGE PART I ..................................................... 1 INTRODUCTION ............................................... ! Overview ............................................. i The Disparate Treatment Case ........................ 3Legal Principles................................. 3 Evidence ......................................... 6 The Disparate Impact Case .......................... 7 Legal Principles................................. 7Evidence ......................................... 9 HISTORY OF PROCEEDINGS ..................................... 14 FINDINGS OF FACT ........................ ! ! ! ! ! ! ! ! ! 19 PATTERN AND PRACTICE OF DISPARATE TREATMENT .............. 19 THE FUNCTION AND ORGANIZATION OF N A R F .................... 19 THE FUNCTION OF N A R F ...................... ! ! ! . * . * ! 19 THE ORGANIZATIONAL STRUCTURE OF NARF 21NARF'S JOB CLASSIFICATION S Y S T E M .............. * * * 23 ANECDOTAL AND DOCUMENTARY PROOF OF DISPARATE TREATMENT . 29 THE SELECTION PROCESS.......................... ! ! ! 2 9 1973 CIVIL SERVICE COMMISSION REPORT ANDEEO AFFIRMATIVE ACTION PLANS .................. 41 EEO DOCUMENTS .......................... ! ! ! ! ! ! ! 45 MANAGERIAL HOSTILITY TO PROMOTION OF BLACK EMPLOYEES* ! 47 DENYING BLACK EMPLOYEES INFORMATION ABOUT THE SELECTIONP R O C E S S ......................................... 53 DENYING BLACK EMPLOYEES DETAILS........... * ! ! . * ! ! ' 55DENYING BLACK EMPLOYEES TRAINING 62 DENYING BLACK EMPLOYEES A FAIR OPPORTUNITY FOR POSITIVE PERFORMANCE EVALUATIONS, SUPERVISORY APPRAISALS AND AWARDS....................................... 64 NARF'S PROMOTION PROCEDURES PERMITTED MANAGEMENT * TO SUBJECTIVELY EVALUATE RATING CRITERIA AND TOENGAGE IN SUBJECTIVE DECISION MAKING ............ 68 Qualifications Not Determinative For WhiteEmployees................................... 73 Subjective Decision Making By The Rating Panels . 75 i Cancellation Of Certificates .................... 79 THE PATTERN OF DISCRIMINATION WAS PERVASIVE FOR BLACKSUPERVISORS, ARTISANS, AND WORKERS .............. 80 FAILURE TO ADHERE TO MERIT PRINCIPLES AND REGULATIONS . 98 FAILURE TO INCLUDE BLACKS ON RATING PANELS .......... 100 FAILURE TO IMPLEMENT AN EFFECTIVE UPWARD MOBILITY P R O G R A M .........................................103 FAILURE TO POST ANNOUNCEMENTS........................ 10 6 FAILURE TO CORRECT SUPERVISORY APPRAISAL FORM ........ 107FAILURE TO REVISE JOB QUALIFICATIONS ................ 107 FAILURE TO RESTRUCTURE JOBS TO ELIMINATE DEAD ENDPOSITIONS.......................................108 FAILURE TO CURB THE HARASSMENT OF BLACK EMPLOYEES . . . 109PRODUCTION CONTROL ................................... 113 STATISTICAL PROOF OF DISPARATE TREATMENT .................. 116 SUMMARY OF STATISTICAL PRESENTATION .................. 116 STATISTICAL METHODS EMPLOYED ........................ 120WORK FORCE PROFILES...................................... . THE PLAINTIFFS' DATA B A S E ...................... ! ! ! 12 4PLAINTIFFS' STATISTICAL RESULTS................ .. ’ 127 MOVEMENT BETWEEN GS AND FWS PAY SYSTEMS.............. 13 0 RELATIVE IMPORTANCE OF COMPETITIVE AND NONCOMPETITIVEM O V E S .............................................. THE COMPETITIVE SELECTION PROCESS............ * * * i32 DEFENDANT'S TEAM OF EXPERT WITNESSES.............. j 13 4THE DEFENDANT'S DATA B A S E S ...................... ’ ’ 134 DEFENDANT'S COMPETITIVE PLACEMENT ANALYSIS .......... 138APPLICANT RATES FOR BLACK EMPLOYEES ................ [ 146DEFENDANT'S MOVEMENT ANALYSIS .................. j 147 DEFENDANT'S NONCOMPETITIVE PLACEMENT ANALYSIS ........ 148CAREER LADDERS ....................................... 149 APPRENTICE P R O G R A M .................. ! ! ! . * . * ! ! ! 151 DEFENDANT'S ANALYSIS OF TEMPORARY PROMOTIONS ........ 152 DEFENDANT'S ANALYSIS OF THE UPWARD MOBILITY PROGRAM . . 152DEFENDANT'S PROMOTION ANALYSIS ...................... I53 FAILURE TO VALIDATE SELECTION PROCEDURES ............ 155 DEFENDANT'S ARGUMENT THAT BLACK EMPLOYEES LACKED PRIOREXPERIENCE.......................................... DEFENDANT'S ARGUMENT THAT FEW EMPLOYEES PROGRESSED " INFWS J O B S ............................................ PLAINTIFFS' REBUTTAL MOVEMENT ANALYSIS 165 DEFENDANT'S SURREBUTTAL ARGUMENT THAT QUALIFIED PEOPLEARE MORE LIKELY TO BE PLACED.................... 17 0 DEFENDANT'S SECOND SURREBUTTAL ARGUMENT THAT QUALIFIEDPEOPLE GET P L A C E D .............................. ... CLAIMS OF DISPARATE IMPACT ................................. 173 INDIVIDUAL DISPARATE TREATMENT .......................... 173 GRADSON JOHNSON........................ 17 4 MARCUS GARVEY ELLISON................ . * ! ! ! ! . . * . ’ 177 ii WILLIE ROBINSON ....................................... 182S.K. S A N D E R S ............................................ ANDREW NORRIS ......................................... 191 WILLIE MORAN ......................................... 195 PART I I I ................................................... ... CONCLUSIONS OF L A W ..................................... | I97 JURISDICTION ............................................... 197 PATTERN AND PRACTICE OF DISPARATE TREATMENT ............... 197 CLASSWIDE CLAIMS OF DISPARATE IMPACT ...................... 203 INDIVIDUAL DISPARATE TREATMENT .......................... 219NAMED PLAINTIFFS.............................. ’ ’ * 223Gradson Johnson.................................* * [ 225Marcus Ellison ....................................... 226 Willie Robinson.....................................[ 229 Andrew Norris.................................. * [ 230 S. K. SANDERS............................ ! ! ! ! ! . ’ ! 231 PART I V ................................................... ... FURTHER PROCEEDINGS ....................................... 233 CERTIFICATE OF SERVICE ............ PART I INTRODUCTION A. Overview The underlying premise of plaintiffs7 case is that black NARF employees are denied a fair opportunity to obtain promotion and thereby reach their full potential in the work force. This fundamental denial is accomplished through a promotion/selection system in which discrimination is a "standard operating procedure", International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977) ("Teamsters"). NARF7 s system relies on a series of discretionary and subjective judgments which evidences a purposeful practice of disparate treatment of blacks, and has an unjustified disparate impact on black employees. The defendant's subjective decision making system, is a multistep promotion process that is primarily distinguished by the numerous opportunities that it offers the virtually all-white supervisory force to make subjective judgments that directly and adversely impact the promotional opportunities of black employees. Indeed, the system requires supervisors to make wide ranging subjective rating, appraisal, training and assignment decisions, as well as such fundamental decisions as whether the position will be filled by outside hire or internal selection, and if filled by internal selection, whether the position will be filled by competitive or noncompetitive means. 1 Blacks as a class of employees, regardless of their pay plan and grade, are systematically victimized by this selection system. As a result of the operation of this system, class members receive fewer career-enhancing details and training; poorer supervisory ratings; lower ratings from the rating panels; and therefore are selected for promotion less often than similarly situated white employees. Specifically, plaintiffs contend that a comparison of similarly situated black and white employees demonstrates that blacks are less likely than whites to be promoted; and, that this discrepancy has continued throughout the period relevant to this lawsuit, notwithstanding the knowledge of the defendant. The underlying premise of NARF's defense is that the complexity of the jobs involved somehow justifies employment procedures that are discriminatory. Congress, in enacting Title VII and amending it to include employees of the federal government, has rejected this premise. Plaintiffs do not contend that unqualified blacks must be promoted in proportion to their appearance in the work force. Title VII commands that blacks must not be presumed less qualified then whites and that the failure of blacks, who are similarly situated to whites, to achieve a reasonable share of employment opportunity within the defendant's work force is evidence that discrimination is present. Here, the evidence establishes a violation of Title VII by NARF under both the Disparate Treatment and Disparate Impact theories of discrimination. 2 B. The Disparate Treatment Case Plaintiffs' ability to attack this system is unaffected by the Supreme Court's decision in Wards Cove Packing Co. Inc.. v. Atonio. 490 U.S. --- , 104 L. Ed 2d 733, 109 S. Ct. (1989) ("Atonio"). In the first instance, Atonio only addresses the issue of the parties respective burdens in the context of a Disparate Impact case. Here, plaintiffs have challenged the defendant's promotion system under both the Disparate Treatment and Disparate Impact theories of discrimination. Second, Atonio confirms, rather than inhibits, the ability of plaintiffs to attack a "subjective decision making" system id. at 751, as a single practice under the disparate impact theory. Additionally, in this case, the statistical evidence of both parties establishes that the NARF's use of the merit selection process is a discrete promotion practice, within a system that includes both competitive and noncompetitive means of advancement, and that this practice accounts for the disparate impact suffered by black employees seeking advancement. 1 1. Legal Principles The decision of the United States Supreme Court in Atonio. was concerned exclusively with the Disparate Impact analysis, and did not explicitly or implicitly affect the judicial framework for determining Disparate Treatment specified in Teamsters and other cases. In Teamsters. 431 U.S. at 335-36 n. 15, the Supreme Court stated: 3 " 'Disparate treatment . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. [Citation omitted] Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII. " Statistics can establish discriminatory motive by demonstrating a consistently adhered-to practice, Sweeney v. Board of Trustees, Keene State College. 569 F.2d 169, 177-79 (1st Cir. 1977), and may alone justify the an inference of a discriminatory motive and thus establish a prima facie disparate treatment violation. Hazelwood School District v. United States. 433 U.S. 299, 307-308 (1977); Davis v. Califano. 613 F.2d 957, 962-65 (D.C. Cir-. 1979) ; Seqar v. Civiletti . 25 FEP Cases 1453 (D.D.C. 1981). The courts have relied upon a variety of evidence to buttress class action claims of improper motive or discriminatory intent, including historical, individual and circumstantial evidence and perpetuation of prior discrimination.1 In particular, the use of subjective criteria may create or strengthen an inference of discrimination since the rejection of PacTe v-_B-S;_Indus., Inc.. 726 F.2d 1038, 1046 n. 91(5th Cir. 1984) (historical, individual and circumstantial evidence); Payne v. Travenol Laboratories, Inc.. 673 F.2d 798, ®17. (.5th cir-), reh'q denied. 683 F.2d 417 (5th Cir.), cert denied, 459 U.S. 1038 (1982) (testimony of specific instances of discrimination against plaintiff class members) ; Pavne v. Travenol— Laboratories,__Inc. . supra. Van Aken v. Young. 541 F.Supp. 448, 457 (E.D. Mich. 1982), aff'd. 750 F.2d 43 (6th Cir. 1984) (the undisputed existence of discrimination priofr to the enactment of the equal opportunity law) . j. 4 an otherwise qualified individual on the basis of subjective considerations provides an opportunity for unlawful discrimination and entitles plaintiff to an inference of discrimination. Burrus v. United Tel. Co.. 683 F.2d 339 (10th Cir.) cert denied. 459 U.S. 1071 (1982); O'Brien v. Skv Chefs Inc^, 670 F. 2d 864 (9th Cir. 1982) . Reliance on procedures involving the use of vague and subjective criteria can serve to corroborate statistical evidence of discrimination. United States v. Hazelwood School District. 534 F.2d 805, 813 (8th Cir. 1976), rev'd on other grounds. 433 U.S. 299 (1977) In a class wide disparate treatment case, the allegedly discriminatory conduct is not a single, isolated decision affecting only one. individual, but rather a broadly applicable practice of intentional discrimination affecting the class as a whole. In such a case, plaintiffs establish a prima facie case by introducing statistical and other evidence of a "standard operating procedure" of class wide disparate treatment, Teamsters, 431 U.S. at 336; see also Page v. U.S. Indus.. Tnc., 726 F.2d 1038, 1046 n.91 (5th Cir. 1984), or by proving the class wide application of a facially discriminatory policy. T^ans— World Airlines v. Thurston. 469 U.S. Ill, 121 (1985). Proof of a prima facie case shifts the burden of persuasion, not the burden of production, to the employer. See Teamsters. 431 U.S. at 360; Thurston, 469 U.S. at 122-25. Once plaintiff has borne his burden of proof to establish a violation of Title VII, defendant then has the burden of establishing what is, in 5 essence, an affirmative defense. The decision of the Supreme Court in Atonio, did not alter these respective burdens. Once an employer has set forth its proffered reasons for its actions, the plaintiff may prove pretext either directly, by persuading the court that a discriminatory motive more likely motivated the employer, or indirectly, by showing that the employer's proffered explanation is unworthy of credence. Bell v. Birmingham Linen Serv.. 715 F.2d 1552, 1557 (11th Cir. 1983), cert denied, 467 U.S. 1204 (1984); Fields v. Bolaer. 723 F.2d 1216, 1219 (6th Cir. 1984); Tate v. Weyerhaeuser Co. . 723 F.2d 598, 603 (8th Cir. 1983), cert denied. 469 U.S. 847 (1984); Thorne v . City of El Sequndo. 726 F.2d 459, 465 (9th Cir. 1983), cert denied, 469 U.S. 979 (1984); Martinez v. El Paso County. 710 F.2d 1102, 1104 (5th cir. 1983). 2. Evidence The defendant has a particularly tough burden in this case because its affirmative action plans so clearly commit NARF to remedying the very discriminatory practices challenged in this lawsuit. Unfortunately, NARF did not do so. The plans, in fact, demonstrate the pretextual nature of any justification belatedly presented. Management was presented with feasible remedial options but refused to implement them in any meaningful fashion during the liability period. Plaintiffs established discrimination under the Disparate 6 Treatment theory, by the introduction of documentary, anecdotal and statistical proof of discrimination. The evidence presented by plaintiffs unequivocally established that the policies and practices of the defendant were applied differently to blacks than to whites, and that the defendant was aware of this effect but failed to take remedial action. The Civil Service Commission report established in 1973 the problems regarding details, training, and promotion boards, and every narrative Affirmative Action plan has reiterated these problems and suggested alternatives such as rotating details, adding blacks to promotion boards and more training details for blacks, however these recommendations have yet to be implemented. This evidence was collaborated by testimony from class members, and in many instances, witnesses for the defendant, who confirmed that black employees were indeed affected by problems first identified in 1973. Additionally, the testimony of NARF's Deputy EEO Officers, covering a combined period from 1972 to 1977 and 1980 to 1988, confirmed that management at NARF was repeatedly made aware of the problems that existed and the remedial action required, but that NARF was consistent in its refusal to address these problems. C. The Disparate Impact Case 1. Legal Principles The Supreme Court has uniformly held, that once the plaintiff establishes a prima facie disparate impact case under 7 §703 (a) (2), the burden shifts to the employer to show that the challenged practice is justified. See. e.g.. Griggs v. Duke Power Co.. 401 U.S. 424, 431,432 (1971) ("The touchstone is business necessity"; "Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question"). The Supreme Court's Atonio decision does not eviscerate the Disparate Impact Theory. Rather, the Court held that the language of its prior cases was misinterpreted as requiring the employer to bear the burden of persuasion rather than one of production. The Court emphasized that the employer's burden was nevertheless substantial: it must produce evidence that "a challenged practice serves, in a significant wav, the legitimate employment goals of the employer", and that "[a] mere insubstantial justification . ✓ . will not suffice". 104 L.Ed.2d at 752. Though we have phrased the query differently in 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 way, the legitimate employment goals of the employer. Watson. 101 L.Ed 2d 827' N.Y. Transit Authority v. Beazer. 440 U.S. at 587, ^•31; Griggs, 401 U.S. at 432. The touchstone of this inquiry is a reasoned reviewed 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 ° ̂ spurious, seemingly neutral employment practices. 104 L.Ed 2d at 752-53. 8 The Supreme Court's decision in Atonio does not alter the conclusion that a subjective decision making system can be challenged under the Disparate Impact theory. Indeed Atonio is clear that a subjective selection system is a practice, that can be challenged under the Disparate Impact approach Atonio. 104 L.Ed.2d at 751 ("use of 'subjective decision making'" is a practice that can be challenged along with objective practices); Watson v. Fort Worth Bank & Trust Co.. 487 U.S. ____, 101 L.Ed.2d 827, 848, 108 S. Ct. 2777, ____ (1988) ("Watson") (application of Disparate Impact analysis "to a subjective or discretionary promotion system"). NARF, therefore, is wrong in stating that the various elements of its subjective decision making system must be separately quantified. The plaintiffs in a case such as this are not required to^ exhaust every possible source of evidence, if the evidence actually presented on its face conspicuously demonstrates a job requirement's grossly discriminatory impact. If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own. Watson, 101 L.Ed 2d at 846; Atonio. 104 L.Ed 2d at 747 n. 6. 2. Evidence In this case plaintiffs have proved that "subjective decision making" is the practice which causes the disparate impact on blacks seeking promotion. Moreover, the testimony and documentary evidence - particularly the 1973 Civil Service Commission report, the subsequent Affirmative Action Plans, and 9 the testimony of the defendant's Deputy EEO Officers demonstrate via admissions, that supervisory discretion in performance appraisals, evaluations, selections for details and temporary promotions and rating panel evaluations have a disparate impact on black employees' promotional opportunity. Moreover, plaintiffs' statistics show by pay plan, grade, and occupation series that blacks are adversely affected by this practice. Even if the Court were to hold that plaintiffs were required to specify a discrete practice within the defendant's subjective decision making system which accounts for the disparate impact on black employees, the statistical evidence demonstrates that the Merit Promotion Process is that discrete practice. As repeatedly demonstrated by witnesses for both and defendant, the Merit Promotion Process, although only one of several means of attaining advancement within NARF, accounts for the disparate impact suffered by black employees. The documentary, anecdotal and statistical evidence presented by plaintiffs to establish Disparate Treatment, is relevant and sufficient to establish plaintiffs' claim of Disparate Impact. The evidence establishes that the defendant's practice of operating a subjective decision making system had a disparate impact on black employees. The defendant here failed to come forward at trial with admissible evidence to justify the use of its subjective decision making system. Instead the defendant relied on the efforts of 10 its statistical experts to establish that its promotion system did not have a discriminatory impact on black employees. No evidence was presented that the system was valid. The defendant's expert, Mr. Ruch, admitted that he had done no validation study and had not examined the manner in which the Navy's promotion procedures were implemented at the NARF. Similarly, defendant's personnel expert, Mrs. Kay Marti, admitted that no validation study had been done. Since the defendant was unable to offer any evidence that this system has was valid or that alternatives recommended to the defendant but untried were inappropriate to address this disparate impact, the evidence, viewed in its totality, demonstrates a violation of Title VII under the Disparate Impact theory. The evidence in this case — statistical, documentary and anecdotal - establishes a classwide violation of Title VII under both the Disparate Treatment and Disparate Impact theories of ^̂ -®c--̂’i®iriation; that the named plaintiffs have suffered as a result of this discrimination; and that the named plaintiffs and other members of the class are entitled to have their individual claims of discrimination evaluated under the standard established by the Supreme Court in Franks v. Bowman Transportation Co. 424 U.S. 747 (1976) ("Franks") and Teamsters in subsequent proceedings. 11 Plaintiffs respectfully submit their Proposed Findings of Fact and Conclusions of Law for consideration by this Court in rendering its decision. The Proposed Findings outline the history and scope of this class action, which was brought on behalf of black employees challenging the promotion policies of the Jacksonville, Florida, Naval Air Rework Facility (NARF), H. Lawrence Garrett, III, Secretary of the Navy. The Proposed Findings describe the organization and function of the NARF, the nature of its work force, and the method of advancement within the Facility. In addition, these Findings recount elements of the past history of discrimination at NARF and describe the background and component parts of the promotion system at issue , in this action. The statistical evidence presented by the parties is discussed, along with an explanation of the manner in which the promotion system operated in fact; the problems that plagued the system; and, the defendant's failure to show that the selection system was valid. The Findings also set forth numerous examples of the defendant's continued awareness that racial discrimination existed at NARF, and the Facility's failure to address, redress or eliminate the causes or effects of its discriminatory practices. Finally, the historical information, statistical evidence, and analyses of the selection procedures are buttressed by Findings on the class member testimony. Plaintiffs also submit herein a set of Conclusions of Law establishing the legal framework within which the facts of this case should be reviewed. 12 Throughout this document, the following record citations are used: "P. Exh. No." designates Plaintiffs' Exhibits; "D. Exh. No." designates Defendant's Exhibits; "T.T." refers to Trial Transcript testimony: "Depo" refers to Deposition testimony. \ 13 HISTORY OF PROCEEDINGS 1. This action was instituted when Plaintiff Andrew Norris, filed an administrative Third Party group complaint on behalf of a group called Concerned Minorities of NARF, on April 26, 1973, which was refiled on June 4, 1973. The Third Party Complaint made allegations of class wide discrimination, alleging that qualified black employees were being systematically denied equal employment opportunity at the facility by virtue of policies and practices that had the intent and effect of limiting and classifying black employees on the basis of their race. NARF rejected the complaint on August 19, 1973! Complaint at 6; Amendment To Complaint at 1-2; P. Exh. No. 267 at Vol III p. 84- 85. 2. On June 4, 1973, plaintiffs Andrew Norris, Gradson A. Johnson, Marcus G. Ellison, Willie Robinson, and S.K. Sanders, all filed individual administrative complaints alleging racially discriminatory employment policies at NARF.2 Specifically, the complaint of Mr. Norris, and the other named plaintiffs alleged that the NARF engaged in racial discrimination against black employees as a matter of custom, tradition, policy, pattern and ky limiting and classifying blacks to deprive them of Willie Moran, who is now deceased, also filed an administrative complaint. By Order dated April 20, 1983, this Court substituted his widow, Mrs. Emma Moran, for Mr. Moran in the limited capacity of class member. 14 equal employment and promotional opportunities. Complaint at 6 ; Amendment To Complaint at 2. 3. Following the rejection of their Third Party and Individual Administrative Complaints by NARF, the plaintiffs timely filed this lawsuit on September 13, 1973. Complaint. 4. By Order dated December 5, 1978, the Court denied NARF's Second Motion for Summary Judgment as well as their Motion to Dismiss. These motions challenged the Court's jurisdiction based on the individual claims and administrative complaints. The Court ruled that the charges were an adequate basis for the lawsuit. The Court denied NARF's motion to reconsider on July 19, 1979. 5. On August 22, 1980, and again on September 14, 15, and 16, 1982, the Court heard plaintiffs' Motion for Class Certification. In particular the Court considered the accuracy and reliability statistical exhibits and data bases offered by plaintiffs to establish the propriety of class certification. By Order dated April 25, 1983, the Court certified this action as a class action, and defined the class to include, "black employees at NARF who are employed, or who were employed on or after March 24, 1972, at NARF". Order at 9. On February 23, 1987, the Court ordered that: [T]he class in this case is redefined to include all black employees of NARF who are now employed or who were employed on or after April 1, 1973 and who are or were permanent employees eligible for promotion. Order at 1-2. 15 6. By Order dated February 27, 1985, the Court ordered that the trial of this matter would be "bifurcated into Stage One to determine the question of liability and, if liability is found, Stage Two to determine individual entitlement to relief for members of the class." Order at 2. 7. By Order dated May 6, 1985, this Court upheld and/or amodified sanctions imposed on plaintiffs by the Magistrate in connection with delays in the development of plaintiffs' computerized data bases and the statistical exhibits. Those sanctions prohibited the introduction of evidence by plaintiffs on a number of factual questions and required plaintiffs to identify various statistical trial exhibits, and to make their expert available for deposition. The requirements of those sanctions having been met, this' Court concludes that the defendant has been allowed sufficient access to discoverable information, so as to allow NARF to properly prepare its case for without suffering any prejudice, and consistent with the aim of the sanctions.3 * 1 During the course of the trial the defendant objected on seven separate occasions to plaintiffs' evidence on the basis of the sanctions imposed during pretrial discovery by the Magistrate. Specifically, the defendant asserted that the evidence being offered violated sanctions prohibiting evidence (1) "challenging any of the specific eligibility standards as being inconsistently applied", 1 T.T. at 65-66 (Clark), 6 T.T. at 69—77 (Shapiro); (2) showing that blacks were inadequately represented on any promotional board, 1 T.T. at 168-170 (Ware) 2 T.T. at 76-87 (Guy), 9 T.T. at 40-41 (Mack); (3) showing the concentration of blacks caused by an employment classification system in the production controllers division, that there were placement levels for which blacks were otherwise qualified but were not placed, and showing systematic exclusion of blacks from specific departments and high level positions, 6 T.T. at 48-51, 16 61-63, 65-66 (Shapiro), 6 T.T. at 69-77 (Shapiro); and, (4) being outside the time frame of the litigation, 3 T.T. at 162-163 (Bailey), 10 T.T. at 6-7 (Vanderhorst). Plaintiffs responded by asserting as to (1) that the intent of the sanctions was to prevent testimony that was aimed at challenging specific eligibility requirements that had not been identified to the defendant during pretrial discovery. Plaintiffs further noted that they had "not challenged specific eligibility standards", and that the thrust of their case continued to be the pattern of subjective decision-making, not the identification of specific eligibility requirements; (2) that the sanctions were derived from plaintiffs inability to provide, in what the Magistrate considered a timely fashion, an evaluation of the Pro-Op files, which would indicate which particular promotion panels had an insufficient number of blacks, and the number of blacks and whites on those panels. The plaintiffs further responded that the sanction did not apply to the testimony of individual witnesses, whose information was unrelated to plaintiffs statistical evaluation of the Pro—Op fil®s, and who at all times were available for deposition by the defendant; (3) that the purpose of the P.Exh. No. 10X was not to show concentration of blacks in the production controllers position or in occupation series 1152, but for the purpose of addressing the movement of black and white employees into and out of 1152 and to show crossover between the FWS and GS pay categories; (4) that the testimony went to the question of the witnesses qualifications, but was additionally relevant in that the defendant's pre—Act history is relevant in support of a showing of a pattern and practice of discrimination, and (5) plaintiffs additionally responded to the objection to the testimony of Dr. Shapiro at 6 T.T. at 69-77, (evaluation of the Pro-Op^ files)^ arguing that his testimony made no reference to specific eligibility standards, and was addressed instead to the reason for plaintiffs' determination that an evaluation of the pro-ops was not an appropriate means for determining the impact or intent of the defendant's promotional system. Specifically Dr. Shapiro testified that the various elements of the defendant's selection system did not operate separately, and therefore there was no way to do a statistical analysis of the steps in the process since they were neither clearly defined or separable steps. Consequently plaintiffs analyzed the data in terms of the actual movement of employees that would capture all the different ways of moving within the system. Each of the defendant's objections were overruled, at least insofar as the offered evidence did not conflict with the sanctions. Additionally, as to the defendant's objections to testimony regarding the racial makeup of rating panels, the Court 17 ■ •U'l'vii »> —■ k +*+ —Xs ,<I>AW '---------- .O u ’.kAwCVw-i.t ■ ’_.: .-• 8. By Order dated February 9, 1988, discovery in this action was closed as of April 7, 1989. 9. This cause was tried before the Court from May 22, through July 14, 1989. held,_ that the disputed testimony went to the question of consciousness or intention of discrimination, and allowed the testimony on this issue, reasoning that the sanction would not, however, permit plaintiffs "to show that there were certain boards on which the blacks were inadequately represented". 18 PART II FINDINGS OF FACT PATTERN AND PRACTICE OF DISPARATE TREATMENT THE FUNCTION AND ORGANIZATION OF NARF THE FUNCTION OF NARF 1. The Naval Air Rework Facility, NARF, is a depot level maintenance facility of the Naval Shore Establishment. It is a quasi-commercial activity with civilian personnel and naval officer upper management. The mission of NARF is to provide aviation maintenance, engineering, logistics, and support services to the fleet. Joint Pretrial Stipulation at V-l. 2. There are six Naval Air Rework Facilities in the country, including NARF Jacksonville. The Navy maintains a large fleet of fixed-wing and rotary-wing aircraft, a percent of which is continually in for rework and overhaul. id. 3. NARF is a large industrial complex. It covers 102 acres, has about 41 buildings, and employed roughly 2450-3100 people at any given time during the 1973-1982 time period. Stipulation at V-2 . 4. NARF performs standard depot level maintenance functions for aircraft, engines, aircraft components, and ground support 19 equipment. The aircraft and its engine(s) and components are completely taken apart, cleaned, inspected, refurbished, repaired, rebuilt, reassembled, inspected, and tested by NARF. It manufactures parts when commercial sources are not available, provides technical and professional services in support of rework of specific aircraft, engines, and aircraft components, and performs calibration of electronic instruments. Id. 5. The main function of NARF is the rework, repair, and modification of aircraft engines, components (including flight instruments, electronics, test equipment, mechanical and hydraulic systems, metal surfaces, electrical systems, and ordnance), and ground support equipment (including tow tractors, aircraft power] units, hydraulic jacks, and work stands). A number of different aircraft are reworked at NARF, including the A-7 attack bomber and the P-3 patrol plane. Engines and components reworked at NARF may be from aircraft being simultaneously reworked, or may be inducted separately. Some of the engines and components reworked at NARF are from aircraft reworked elsewhere. Stipulation at V-ll-12. 6. The aircraft, engines, components, and ground support equipment reworked at NARF are complex and varied, as are the industrial processes performed. Stipulation at V-12. 7. The basic work flow through NARF can be categorized as rework/repair, manufacturing, and calibration. All products undergoing rework/repair require basically the same set of steps to be performed: induction, initial examination and evaluation 20 (E&E); disassembly; follow-up E&E; repair; inspection; reassembly; and test. Stipulation at V-10. 8 . The work performed at the NARF throughout the period from 1975 through the present was quite similar. The vast majority of the required knowledges, skills and abilities have been the same or substantially similar throughout this time period. Stipulation at V-ll. THE ORGANIZATIONAL STRUCTURE OF NARF 9. NARF's Commanding Officer is held accountable for the efficiency, effectiveness of performance, and economy of operations. NARF is run by military personnel at a management level above_ the department level. Reporting to the Commander (and the Executive Officer) are the Production Officer, the Management Services Officer and Comptroller, and the Quality Assurance Officer. In addition, the Safety Director and the Deputy Equal Employment Opportunity Officer report to the Commander. Stipulation at V-6-7 . 10. Organizationally, departments are subdivided into divisions. Divisions are subdivided into branches. Branches (in the case of the Production Department) are subdivided into shops. 11. The NARF consists of departments, which are divided into divisions, branches, sections, and shops. The departments as of May 1987 were as follows: 000 Commanding Officer's Staff 200 Management Controls Department and Comptroller 21 300 Engineering Department 400 Quality and Reliability Assurance Department 500 Production Planning and Control Department 600 Production Engineering Department 700 Material Management Department 800 Flight Check Department 900 Production Department Stipulation at V-13-14. 12. The Production Department employs more than 50 percent of the civilians employed by Jacksonville NARF, and is divided into four divisions: Process and Manufacturing Division; Avionics Division; Weapons Division; and Power Plant Division. Stipulation at V-14. 13. NARF employs individuals in a wide variety of job classifications, each encompassing different specialized skills and abilities. Work on aircraft involves a number of job classifications, including Equipment Cleaners, Sandblasters, Sheet Metal Mechanics, Aircraft Mechanics, Aircraft Electricians, Electroplaters, and painters. Work on engines is performed primarily by Aircraft Engine Mechanics as well as by Equipment Cleaners, Sandblasters, Electroplaters, Machinists, Painters, and Pneudraulic Systems Mechanics. Work on components is performed by employees in a wide variety of job classifications, including Electronics Mechanics, Instrument Mechanics, Electronic Integrated Systems Mechanics, Aircraft Mechanics, Sheet Metal Mechanics, Welders, Aircraft Electricians, Aircraft Ordnance Systems Mechanics, Electrical Equipment Repairers, Powered 22 Support Systems Mechanics, and Machinists. Stipulation at V-12- 13 . 14. In addition to a broad range of job classification in these production jobs, NARF also employs a variety of non-production employees. These include different types of engineers (aerospace, electronics, and mechanical) and technicians to provide design services and technical engineering guidance; Production Controllers, Planners and Estimators, and Progressmen to schedule, monitor, and expedite the flow of work; Quality Assurance Specialists to monitor and maintain the quality of work; numerous trade employees to maintain the physical plant at which the work is done; Tools and Parts Attendants to store and deliver materials, tools, and parts; and various' clerical, accounting, computer, and management personnel to provide administrative services. Stipulation at V-13. NARF'S JOB CLASSIFICATION SYSTEM 15. NARF's jobs are organized in standard categories established by federal law and regulation, and administered by the Office of Personnel Management, formerly the United States Civil Service Commission. 16. The Pendleton Act established a centralized personnel agency to monitor and control civil service employment in the federal government. This agency, originally the United States Civil Service Commission later became the Office of Personnel 23 Management as a result of the Civil Service Reform Act of 1978. Joint Pretrial Stipulation at V-15. 17. The Office of Personnel Management publishes the Federal Personnel Manual which contains rules and regulations governing civilian personnel management in the federal government and instructions and guidance for the implementation, administration, and review of federal personnel programs. Id. 18. The Office of Personnel Management also has the primary responsibility for organizing and systematizing the personnel policies and procedures for federal agencies. Joint Pretrial Stipulation at V-16. 19. The General Schedule (GS) pay system includes positions which are primarily professional, administrative, technical, or clerical in nature. 20. The Office of Personnel Management has developed tification standards for GS positions which are published in the Handbook X-118,_Qualification Standards for Positions Under the— General--Schedule. This handbook presents the minimum qualifications in terms of the knowledges, skills, and abilities (KSAs) required for selection to each position as well as the minimally qualifying level of education or amount of experience. D. Exh. Nos. 241-43. 21. The Federal Wage System (FWS) covers skilled trades, craft, and labor jobs. Jobs in FWS are organized into occupations and job families which are defined in terms of the nature of the work performed. 24 22. The Office of Personnel Management has developed qualification standards for FWS jobs. These are described in the Handbook X-118C. Internal Qualification Guides for Trades and Labor Occupations. as supplemented by Officer of Personnel Management internal qualification guides. The handbook includes a general explanation of the FWS system; identifies knowledges, skills and abilities and other personnel characteristics, collectively known as basic worker requirements, necessary for selection; examining guidelines and a description of the process for rating applicants. Joint Pretrial Stipulation at V-18. 23. NARF acts within a framework, defined by the Office of Personnel Management in the Federal Personnel Manual, of which Department of Defense personnel policy issuances, Department of the Navy issuances, and command and activity (e.g., NARF) directives and instructions are a part. 24. The jobs at NARF are classified into two major pay systems: (1) the General Schedule (GS) pay system which includes the "white collar" positions, and (2) the Federal Wage System (FWS) pay system which includes the "blue collar" jobs. Within each pay system, the various jobs are further identified by pay plan and occupational series. The following lists the pay plans for both the GS and FWS pay systems: Pay System GS FWS Pay Plan Code GM GS WG Pay Plan General Schedule Merit Pay Plan General Schedule Wage Grade 25 WS Wage Supervisor WL Wage Leader WD Production Facilitation WN Supervisory Production Facilitation WT Apprentice WP Printing YV Summer Aid YW Student Aid Prior to the implementation of the Coordinated Federal Wage System in the early 1970's, blue collar positions were designated according to the Wage Board system. One result of the Coordinated Federal Wage System was the reorganization of the Wage Board pay plans. The WB (trade, craft and manual labor rating), WX (inspector rating), and WY (supervisor inspector rating) pay plans were discontinued. They were replaced, respectively, by WG, WG, and WS pay plans. Joint Pretrial Stipulation at V-19-20. 25. The Office of Personnel Management assigns specific series numbers to jobs in either the GS pay system or the FWS pay system. For the GS pay system, job series numbers range from 1 to 2,499. Numbers 2,500 and above are used for FWS jobs. The complete identifying code for any given job consists of first, the two letter pay plan designation (WG, GS, etc.), followed by the four digit occupation code, (e.g., 5704), followed by a one 26 or two digit designation of level (e.g., 07 or 7 to indicate grade 7). Joint Pretrial Stipulation at V-20. 26. All blue collar occupations (Federal Wage System) at NARF are identified by a four digit code. The first two digits indicate the job family. The second two digits specify the particular occupation. For example, 8600 identifies the engine overhaul family. The third and fourth numbers ranging from 01 to 99, stand for specific occupations within the family. For example, 8602 identifies the aircraft engine occupation within the engine overhaul family. Joint Pretrial Stipulation at V-20- 21. 27. Each pay schedule is divided into levels, identified by numbers, and generally an employee identified by a higher grade number in either the General Schedule or the Federal Wage System has higher rate of pay than an employee identified by a lower grade level. There are, however, exceptions to this rule. For example, a top step of a particular grade may exceed the first step of a higher grade, thus making the actual pay of the lower grade employee exceed that of the higher grade employee, if the lower grade employee is at the top step of the grade when the higher grade employee is at the first step of the grade. Each pay level is further divided into steps, and the higher the step the higher the base rate of pay. Thus a WG-10, step 2 is likely to be paid more than a WG-10, step 1. The Federal Wage System grades are divided into five steps with each higher successive step representing a higher rate of pay. The General 27 Schedule follows the same basic pattern, and there are, in most grades, ten steps, each having a progressively higher rate of pay in each grade. Given the same numerical level and step, an employee in the regular non-supervisory schedule (WG) makes less than an employee in the leader schedule (WL), and an employee in the leader schedule (WL) makes less than an employee in the supervisory schedule (WS) . For example, the following hourly rates were taken from the March 23, 1980, Jacksonville wage rates: WG-10/Step 1 is paid $8.84 WL-10/Step 1 is paid $9.72 WS-10/Step 1 is paid $11.50 Joint Pretrial Stipulation at V-21-22. 28. The’ Office of Personnel Management groups the trades and labor jobs (FWS) into five categories: (1) Worker-trainee jobs; (2) support jobs; (3) Apprentice jobs; (4) Jobs emphasizing trade knowledge; and (5) High-level supervisory jobs. The workers at NARF fall heavily in the group (4) of "Jobs emphasizing trade knowledge." Joint Pretrial Stipulation V-22 - 23. 29. Under the FWS system a person can start at the helper level, move to the worker level, and then to the journeyman level. At the top level is the foreman. Additionally, some of the job positions at NARF only utilize one or two of the grade levels even though there are more on the books (in the Civil Service Standards) . Another path for becoming a journeyman is to enter as an apprentice, an4 complete the established training program 28 to become a journeyman. There may be more than one journeyman level. Most helpers enter at wage grade (WG) level 5 and most workers are wage grade level 7 or 8. Skilled journeymen are usually wage grade 9, 10, or 11. Once an employee reaches the foreman level, his designation usually becomes Wage Supervisor (WS). Joint Pretrial Stipulation at V-22-23. ANECDOTAL AND DOCUMENTARY PROOF OF DISPARATE TREATMENT THE SELECTION PROCESS 1. NARF utilizes a multistep promotion process in which individual supervisors have numerous opportunities to affect the promotion decision. NARFrS rating and selection criteria reguire subjective evaluation by management officials, and its promotional procedures require management officials to make discretionary decisions throughout the process. Pretrial Stipulation at V-25 - V-38; 1 T.T. at 57-70 (Clark); 16 T.T. at 38 (Marti). 2. Once a supervisor determined that a vacancy existed, management had the responsibility to decide whether to fill the vacancy through competitive merit promotion procedures or other means including noncompetitive methods. 16 T.T. at 161-62 (Marti); 12 T.T. at 52; D. Exh. No. 4100 at 28. Management was supposed to get input from the Civilian Personnel Office but was not required to heed the advice. Id. 29 3. Management also had the final responsibility of defining the area of consideration. In most cases, the Civilian Personnel Office made the decision based on management's past experience in filling the job. 16 T.T. at 167-68 (Marti). 4. If management decided to fill the vacancy through competitive merit promotion procedures, a crediting or rating plan was prepared by the Civilian Personnel Office staffing specialist in conjunction with management. 16 T.T. at 176-177. Sometimes the staffing specialist met with "subject matter experts", usually in fact the supervisors of the target position, in order to determine what qualifications are required for the job. The staffing specialist often did not have to meet with the supervisors because the Civilian Personnel Office was in constant contact with supervisors. Id. The determination of qualifications was supposed to be incorporated into the crediting plan. In making this determination the staffing specialists and supervisors were supposed to consult Office of Personnel Management and Civilian Personnel Office documents regarding the position, and determine a screen-out element for the position. NARF officials had considerable discretion to adjust the requirements to suit local needs. Pretrial Stipulation at V—26; 11 T.T. at 16 (Robinson); P. Exh. No 119; 16 T.T. at 11 (Marti); 6 T.T. at 123 (Shapiro); 17 T.T. at 42 (Marti). 5. The screen out element was the first rating element designated in the Office of Personnel Management Handbook X118C. Federal Wage System (FWS) applicants must meet this requirement 30 in order to establish basic eligibility for the position. Only after meeting this requirement could they compete for promotion and be rated by the panel. 17 T.T. at 23 (Marti). The rating plan for first-level supervisor for the WG-2600 Electronic Equipment Installation Family was typical. The screen-out element was the general "ability to lead or supervise". 16 T.T. at 143-44, 151 (Marti). In order to assess the ability to lead, raters were supposed to use five factors: "ability to communicate", "integrity", "willingness to accept policy", "fairness and equal treatment", and "knowledge of job". Id. at 146-47. Deciding how to rate employees on these factors required the use of judgment by the raters. 10 T.T. at 153-176 (Marti). 6. The next determination was whether the vacancy should be announced as a discrete open and closed promotional announcement, (Pro-Op) or whether it should be an open continuous promotional announcement (Pro-Op). An open continuous promotional announcement is one in which after an initial cutoff date for the first vacancy, applications continue to be accepted. Subsequent applications were rated and eligible applicants were integrated into the existing registers, but there was no specification of how periodically that could be done. Pretrial Stipulation at V-26. In open continuous announcements the initial cutoff date could be manipulated to effect the available pool of applicants. 6 T.T. at 75; 14 T.T. at 128-129. 7. Later in the time period there were multiple listing announcements and again the times that were selected were 31 discretionary because the announcement could be reopened for the receipt of new applications either biannually or at some point when there were not enough eligible applicants to meet the needs of the user, another discretionary decision. Pretrial Stipulation at V-26 - V-27. 8. Promotional opportunity announcements provided a brief description of the duties to be performed, the qualification requirements, and the elements which would be rated. For General Schedule (GS) positions, a statement regarding time-in-grade requirements was also included. Pretrial Stipulation at V-27. 9. An applicant was supposed to review the vacancy announcement, complete a Personal Qualifications Statement, SF 171, and deliver it to the Civilian Personnel - Office. The applicants were supposed to address the rating elements shown in the announcement, and describe their experience and training on the SF 171. The vacancy announcement requested that applicants include the appropriate supervisory appraisals completed by their immediate supervisors and/or their latest annual performance ratings, also completed by their supervisors. Other materials submitted by employees included awards, training, beneficial suggestions, recommendations and letters of commendation. Typically, a separate application was required for each announcement in which the applicant was interested. When an announcement covered several types of positions, a separate application was required for each. Pretrial Stipulation at V-27 - V-28; 16 T.T. at 83 (Marti). 32 10. The SF 171 application was used both to rate and select employees for promotion. In applying the rating standards, the rater looked at the SF 171, the individual's supplemental sheet and anything else attached to the application, such as appraisals, awards, training, education, recommendations, certificates, beneficial suggestions and letters. 16 T.T. at 151-55 (Marti). The selecting official was given applications of all individuals on the certificate to use in making selections. Id. at 180-81. 11. It is impossible to specify the separate weight of any single element of the promotion process. 17 T.T. at 4 (Marti). The Navy's personnel expert could not specify the impact or weight of supervisory appraisals, performance evaluations, awards, training, experience or any other particular document used in the promotion process. Id. 12. The Performance Rating Report and the Merit Promotion Supervisory Appraisal required the supervisor to make subjective judgments regarding the employee's performance and to rate the employee as Outstanding, Satisfactory or Unsatisfactory on the following elements: Quality of Work: "A. Job Knowledge"; "B. Work Planning and Organization"? "C. Accuracy"; D. Ability To Interpret Written Instructions" . Quantity of Work: "E. Work Production"; "F. Ability To Work Under Pressure"; "G. Promptness of Action." Adaptability: "H. Cooperation"; "I. Ingenuity"? "J. Dependendability". The form also asked the supervisor to provide an Overall Annual Rating. 33 13. Upon reviewing the application, the staffing specialist determines who is eligible to apply for the position, or sometimes meets with the subject matter experts who will serve on the rating panel, to determine who is eligible to apply for the position. The staffing specialist reviewed the application against the qualification requirements for the position as published in the PPM Handbook X-118, Qualification Standards for Positions Under the General Schedule (X-118) for white collar positions, or the 0PM Handbook X-118C. Job Qualification System for Trades and Labor Occupations (X-118C) for blue collar jobs, as modified by local, Navy or Department of Defense instructions, to determine basic eligibility. An additional document, Internal Qualification Guides for Trades and Labor Jobs, was also used for blue collar jobs. Pretrial Stipulation at V-28. 14. Applications for GS positions that were determined to meet the qualification requirements were then sent to the rating panel to be evaluated. Applications for FWS jobs that were determined to meet the acceptable level on the screen-out element were then sent to the rating panel for final rating evaluation. Pretrial Stipulation at V-28 - V-29. 15. The basic eligibility determination procedures were <3ifferent for GS and FWS pay systems. GS positions had time—in- grade requirements imposed by 0PM. FWS jobs did not have time- in-grade requirements, however, eligibility of candidates for FWS jobs was determined at two points: by a staffing specialist and by the rating panel. The eligibility of candidates for GS 34 positions was determined solely by the staffing specialist. Pretrial Stipulation at V-29. The rating panel, on which the supervisor may sit, often has at least the two functions: to determine who is eligible to apply for the position, and to rate the actual applicants. 16. For FWS positions, a candidate may have been determined to be qualified by the staffing specialist but when the application was sent to the rating panel, the panel, might find the candidate ineligible. Pretrial Stipulation at V-29 - V-30. It follows that the design of the process dictates that when an FWS candidate is ruled ineligible, you cannot tell whether the ruling came from the staffing specialist or the ruling came from the rating panel. 17. The rating panel was made up of two or more management representatives who were knowledgeable about the position or job to be filled and were at the same or higher grade level as the vacancy. Sometimes the supervisor of the vacant position was one of the subject matter experts who served on the rating panel. Pretrial Stipulation at V-29. 18. The subject matter experts were supposed to independently review the applications, supervisory appraisals and any supplemental data against the crediting plan. For each candidate, panel members recorded their evaluation of each crediting plan element and added up the scores on the elements to obtain a total raw score for the candidate. The evaluations were reviewed by the chairman of the rating panel and the staffing 35 specialist. 16 T.T. at 42 (Marti). Pretrial Stipulation at V-29 - V—30. Though sometimes panel members totalled and discussed scores without the participation of the staffing specialist. 3 T.T. at 113. 19. The rating process required raters or staffing specialists to make subjective evaluations of applicants by assigning scores to rating elements. For example, with respect to the rating of an applicant on the ability to lead or supervise, NARF's personnel expert testified that the rating plan stated that a score at the 2 level indicated "potential or fair experience", such as the experience of an artisan without supervisory experience. 16 T.T. at 150-51 (Marti). A score of 3 was for "good experience," such as having a lead position jvith approval of small amounts of leave, assigning work load and making sure things went along but no actual supervisory duties Id.. A score of 4 was for outstanding or excellent experience, and might be that the individual has held a snapper position or held a lead for a considerable amount of time at NARF, private industry, or the military. Id.. In order to determine if an applicant's experience as a leader rated a 3 or 4, the rater was supposed to look at the duties of supervision and balance them against the five rating factors of ability to communicate, integrity, willingness to accept policy, fairness and equal treatment and knowledge of job. Id. at 151-52. Time as a leader would only be "one of many factors that we look at." Id.. Other factors were quality of 36 performance, particular duties, work situation, and "the entire situation". Id. at 152-53. 20. Generally, where there was a difference in ratings of more than two points on the total raw score given by two panel members for a particular candidate, the reasons for the differences were discussed and resolved. FWS job applicants who did not achieve an average score of two points per element were rated ineligible. For example, a FWS job crediting plan may have had six elements. To be basically eligible, the applicant must have achieved at least two points on the Screen-Out Element, as determined by the Staffing Specialist's initial evaluation, and a total score of 12 points as determined by the Rating Panel. An applicant with a total score of 11 would have been ineligible in this • instance. At the conclusion of the rating panel's deliberations, the applications were returned to the staffing specialist. Pretrial Stipulation at V-30. 21. The staffing specialist was supposed to make a second review after the rating panel completed its task to determine whether the raw scores were in agreement. The raw scores were then converted to numerical equivalents by use of an Office of Personnel Management published conversion table. The Civilian Personnel Office, then prepared a certificate listing the names of the candidates from which the Selecting Official could choose. The procedures as to which names were listed on the certificate changed several times during the period, but the highest rated 37 candidates were always supposed to be included. Pretrial Stipulation at V-30 - V-32. 22. In order to be considered highly qualified, an applicant had to receive a score of 85 or higher. 1 T.T. at 68 (Clark) . Candidates with scores from 70.0 to 84.9 were considered qualified. In the event there were ties in the numerical scores, the staffing specialist normally broke them based on the length of qualifying experience, or the length of service of the applicants. Pretrial Stipulation at V-31. 23. Selecting officials had several options in the selection process. They could use a selection advisory or recommending panel, they could conduct personal interviews, they could make the selection, based on the applications alone, or they could select no one. Section advisory boards were not used very often. 16 T.T. at 110 (Marti) . They were used primarily for upward mobility positions. Id. There was no requirement for an interview. Id. 24. If no one was selected, particularly in an open continuous promotional announcement, the selection process would go back to the staffing specialist who would continue to collect applications and ultimately submit them back to the panel. 16 T.T. at 39 (Marti). Pretrial Stipulation at V-33. 25. Selecting officials were not required to use any criteria. Selecting officials were not restricted to the knowledge, skills and abilities in making selections. 16 T.T. at 111 (Marti). The discretion of the selecting official to select or nonselect from 38 a certificate of eligible was absolute. Id. at 165-67 (Marti). See. e.g.. 23 T.T. at 112 (Aton). 26. In sum, the design of the defendant's promotion system insured that its operation was interdependent, and that the supervisors and subject matter experts would play an important and recurring role in the determination of who gets promoted. 27. The supervisor over the position that has been announced, is likely to be a member of the rating panel and may also be advising the selecting official. The supervisor may rate the very people from whom the selections are to be made, prior to the issuance of the certificate. The supervisor may determine who is eligible or ineligible to be rated and, together with the staffing specialist, have developed the crediting plan or requirements for the job, which has the effect of determining who is going to meet the eligibility requirements. At every step there are people who are participating in other steps of the process, and their entangled subjective judgments have a critical impact on an applicant's chances for promotion. 28. The promotion process may begin and end with the selection picking no one, only to then issue another announcement for the same position in which the process has to start all over again as though the first process never occurred. Even after a certificate is issued, it is still possible to issue a supplemental certificate to add a list of names or name to the first certificate. An applicant may be judged ineligible in the initial step of the application procedure or an applicant may be 39 judged ineligible by the rating panel much further down the line in the promotion process. Moreover, the whole process may be side-stepped by the use of a non-competitive procedure such as a temporary assignment or a temporary transfer or a temporary promotion which does not require the use of a formal promotional announcement. 16 T.T. at 42, 161-62 (Marti). Promotion could also result from reclassification and upgrades, or a promotion could result from enhancement of duty. Pretrial Stipulation at V-41; 19 T.T. at 177 (Sanderson). Also after May 7, 1981, when there were five or fewer promotional eligibles for a particular position, no formal evaluation was conducted and all applications were referred directly to the selecting official, thereby shortcutting the whole procedure. Id. at 25. 29. Although outside hires were technically done through Orlando, the actual ratings were often done at the NARF because that's where the subject matter experts were. 10 T.T. at 13-14. Mrs. Vanderhorst described how the process worked in certain crafts under Mr. Barilla's jurisdiction: "We also handled the 171s that would come in from^ Orlando. When people would apply for the jobs, they'd send their applications into Orlando. Orlando would send the applications to Jacksonville to us, manpower would get them, I would type up the listing of the supervisors that were going to evaluate the applications, and when they finished I would pack them up, give them to Helen Brown and she would send them back down to Orlando."Id. 30. Since subject matter experts from the NARF rated applications from Orlando as well as internal applicants they 40 could determine who would be hired from outside as well as who would be promoted from inside. 31. The Navy's personnel expert was unaware of any validation studies on any element of the competitive merit staffing process, other than defense exhibits. 17 T.T. at 33-34 (Marti) . No written validation study was presented by the Navy. 1973 CIVIL SERVICE COMMISSION REPORT AND EEO AFFIRMATIVE ACTION PLANS 32. Plaintiffs presented evidence that NARF management had knowledge of discriminatory promotional practices and admitted its existence in contemporaneous written reports. The reports also show that NARF failed to correct admitted problems. The testimony of NARF Deputy EEO officers and NARF employees was corroborative. 33. Among the duties of the U.S. Civil Service Commission, now the Office of Personnel Management, was to audit how federal agencies implement the personnel policies and procedures promulgated by federal ■ statute and regulation. During the 1973- 85 period, the Commission conducted one such audit. P. Exh. No. 1? 16 T.T. at 160-61 (NARF's personnel expert knew of no other audits or reviews of NARF's promotion system). 34. The 1973 Civil Service Commission report concluded that "[m]erit principles and/or regulations are not being adhered to fully in promotion actions". P. Exh. No.l at 13—14. The report found "no significant change in the traditional employment 41 patterns of [black] employees" and stated, "[b]lacks are predominately found in the lower wage grade positions," id. at 8, as well as an underlying problematic and/or discriminatory denial of detail assignments, training, awards, and supervisory appraisals. 35. The critical conclusions of the 1973 Civil Service Commission report were accepted by NARF's management. P. Exh. No. 1 at letter of Captain Boeing, dated 28 September 1973, which declared that it would take remedial action. Id. 36. In 1973 and later years, NARF itself prepared affirmative action plans in which it admitted the existence of the promotional discrimination challenged by plaintiffs and resolved to remedy various specific problems, such as denial of training, awards, supervisory appraisal and performance evaluations, detail assignments and unfair rating panels. See infra. As discussed below in detail, the affirmative action plans constitute admissions by NARF's management that promotional discrimination existed, and that remedial measures were necessary to eradicate discrimination. These remedial measures, which were never implemented to any significant degree, included rotating detail assignments, adding blacks to promotion boards and giving blacks more training. 37. NARF's EEO (Equal Employment Opportunity) Affirmative Action Plans, which discuss NARF's compliance with Title VII and other legal and regulatory prohibitions of employment discrimination, prepared between 1973 and 1978 contain narrative assessments of 42 problems or objectives, and remedial action required. P. Exh. No. 2 (February 1973 AAP and June 1973 AAP); P. Exh. No. 3; P. Exh. No. 5; P. Exh. No. 6. Such narrative assessments are absent from later plans. E.g. . P. Exh. No. 7; P. Exh. No. 11. 38. NARF's EEO Affirmative Action Plans were prepared by the staff of the EEO office, and reviewed, modified, and signed by the Commanding Officer. P. Exh. No. 2 (February 1973 AAP & June 1973 AAP); P. Exh. No. 3; P. Exh. No. 5; P. Exh. No. 6; P. Exh. No. 7; P. Exh. No. 11. NARF' s Commanding Officer was the NARF' s EEO Officer Id., 1 T.T. at 80-82 (Ware), and was the final arbiter of what went into the Plans. Id. at 19-21. The Plans were also approved at higher levels. 1 T.T. at 82 (Ware). 39. Although NARF's Affirmative Action Plans refer generally to ^irionties", blacks are the only minority employees present in any significant numbers, and general references to minorities in the Plans were to blacks. 1 T.T. at 130 (Ware). 40. Walter Ware, who testified under subpoena, was NARF's Deputy EEO Officer between December 1972 through March 1977. 1 T.T. at 74-75. His duties were to monitor and advise the Commanding Officer of EEO problems and conditions, 1 T.T. at 78, including briefing the Commanding Officer monthly, and sometimes weekly. 1 T.T. at 78-79. Ware also supervised the EEO office. 1 T.T. at 80-81 41. Edvie Jean Guy, who testified under subpoena, was NARF's Deputy EEO Officer between September 1980 through September 1988 43 2 T.T. at 61-62. Her duties were the same as Ware's. 2 T.T. at 62-63. 42. Dwayne Clark worked as an Equal Opportunity Specialist at NARF from 1973 to 1976, and his responsibilities included counseling aggrieved employees during the informal process or pre-complaint stages of the Title VII complaint process, and attempting to resolve the complaint with members of management, identifying and keeping track of statistical data to track the relative progress of minority and white employees, and drafting Affirmative Action Plans during this period. 1 T.T. at 53-55. 43. As member of the Equal Opportunity Committee Dwayne Clark was required to assess and identify the problems encountered by blacks in obtaining promotions and determine why blacks were not obtaining training opportunities. 1 T.T. at 50-51. 44. Mr. Clark was reassigned as a Labor Relations and Employee Relations Specialist in the NAS Civilian Personnel Office in 1976, and subsequent to that was reassigned as a Personnel Management Specialist. As a Personnel Management Specialist Mr. Clark's responsibilities included writing disciplinary actions against employees, that is recommending the level of action based upon the degree of severity of the infraction, and as a Classification Specialist, evaluating and analyzing the grade level or pay plan level of both wage grade and general schedule positions. 1 T.T. at 55-56. 44 EEO DOCUMENTS 45. An evaluation of NARF's personnel management practices conducted in 1973 by the U.S. Civil Service Commission found that: There has been no significant change in the traditional employment patterns for [black] employees, except for the [recent promotion of] two wage supervisors . . . Blacks are predominantly found in the lower wage grade positions, with a limited number in lower grade Classification Act [GS] positions . . . [w]ith the exception of the recently appointed EEO Coordinator, GS-9, there are no [blacks] in positions GS-9 and above. P. Exh. No. 1 at 8. 46. NARF's work force statistics for November 1972, the eve of the Civil Service Commission Report, showed the following distribution of black employees: GRADE TOTAL BLACK PERCENTAGE OFPAY PLAN GROUPS EMPLOYEES EMPLOYEES BLACK EMPLOYEES WAGE GRADE 1-3 5 3 60%4-6 135 100 74%7-9 655 98 15%10-12 972 33 3%13 + 19 1 5% ALL WG 1786 235 13% GRADE TOTAL BLACK PERCENTAGE OFPAY PLAN GROUPS EMPLOYEES EMPLOYEES BLACK EMPLOYEES WAGE 4-6 8 5 62%SUPERVISORY 7-9 12 0 010-12 108 0 013 + 24 0 0 ALL WS 153 5 3% GENERAL 1-3 50 6 12%SCHEDULE 4-6 133 6 5%7-9 328 3 1%10-12 135 0 013 + 25 0 0 45 ALL GS 671 15 2% P. Exh. 2, June 1973 AAP at Attachment 3 47. The February 1973 and June 1973 Affirmative Action Plans stated that: "Employees in lower level dead end positions, especially . . . [blacks], need improved avenues for advancement. P. Exh. No. 2, February 1973 AAP at 3, June 1973 AAP at 4. 48. According to the 1974 Affirmative Action Plan, "[d]ead end positions should be eliminated by restructuring when possible." P. Exh. No. 3, Part C at 3. 49. NARF's 1976 Affirmative Action Plan stated that: "Our ongoing assessment of the EEO Program indicates there is a need for improvement in the representation of [blacks] . . . in higher levels, both General Schedule and Wage Grade." P. Exh. No. 5, Part B. 50. According to NARF's April 1977 Affirmative Action Plan, "[t]here continues to be a need to determine the availability of personnel, including [blacks] . . . having underutilized skills that can be effectively utilized by the facility". P. Exh. No. 6 at 31. 51. Blacks continued to be found predominately in lower wage grade dead end positions, with no significant changes, during the time that Ware and Guy were Deputy EEO Officers. 1 T.T. at 128- 29 (Ware), 2 T.T. at 65 (Guy). 52. Dead end jobs that blacks held included cleaning shop, industrial cleaners, laborers, truck operators, packagers and 46 other low level positions with no promotional opportunity above WG 5 or 6. 1 T.T. at 130 (Ware). 53. Deputy EEO Officer Ware observed that, although restroom facilities were no longer labeled "colored" or "white", blacks continued to go to the former colored restroom because they felt intimidated. 2 T.T. at 36-38. 54. During the 1980-88 period when Guy was Deputy EEO Officer, blacks still occupied dead end jobs, such as laborer, warehouse worker, transportation worker, and painter, and were concentrated in lower grade levels. 2 T.T. at 65. There were very few blacks above GS 9. Id. at 65-66. Guy brought the problem to the attention of the Commanding Officer, and recommended increasing the number of Upward Mobility positions and filling a higher percentage with blacks Id.. The recommendations were not implemented. Id. at 66-67. The high percentage of whites getting upward mobility jobs did not change significantly. Id. at 68-69. See also, infra Statistical Proof of Disparate Treatment, f 110; 14 T.T. at 90; D. Exh. No. 4111 at 3; 14 T.T. at 92; D. Exh. No 4111 at 5. 55. From 1980-88, blacks continued to hold very few apprentice positions. 2 T.T. 67 (Guy). MANAGERIAL HOSTILITY TO PROMOTION OF BLACK EMPLOYEES 56. NARF's supervisory force was virtually all-white. In 1973 the Civil Service Commission reported that only 3% (5 of 152) of NARF Wage Supervisory employees were black and none of the upper level General Schedule employees above grade level 9 (0 of 160). P. Exh. No. 1, Attachment 3. 57. The Civil Service Commission found in 1973 that "[mjanagers and supervisors do not fully support the EEO Program" and that "[m]any managers and supervisors characterize EEO as a give-away program." P. Exh. No. 1 at 8. 58. The June 1973 Affirmative Action Plan stated that "[a] better understanding of the purpose and importance of the EEO Program is needed by all echelons of management". P. Exh. No. 2, June 1973 AAP at 7. 59. The 1977 Plan recommended that "EEO officials should provide input to department directors on a continuing basis". P. Exh. No. 6 at 3L. 60. As late as 1977, Affirmative Action Plan stated, as a "problem or objective", to "[ijncrease supervisory awareness of human factors/sensitivity in management". P. Exh. No. 6 at 19. 61. In the opinion of the Deputy EEO Officer, the EEO program did not have a significant impact as of 1977 on awareness of managers regarding the- capabilities of blacks. 1 T.T. at 149 (Ware). 62. The Deputy EEO Officer from 1980-88 observed that lack of full support for the EEO program on the part of supervisors and managers continued to be a problem. The need of supervisors to increase their awareness of the capabilities of black employees also continued to be a problem. 2 T.T. at 73-74 (Guy). 48 63. Deputy EEO Officer Ware recommended that performance of EEO responsibilities be included in the performance ratings of supervisors. 1 T.T. at 153-55. Some Commanding Officers accepted this recommendation and some did not. Id.. Even when the recommendation was accepted, the EEO office played no role in the rating process other than to object sometimes when a supervisor with EEO complaints against him got an outstanding EEO rating, and found problems with implementation of the policy. The EEO office never received permission to provide input on supervisory ratings on a continuing basis Id. 64. Deputy EEO Officer Guy observed that supervisors received an outstanding performance rating on EEO matters even though they did not fully support the program. 2 T.T.at 75. Her office was never given input into supervisory EEO ratings. Id. 65. Deputy EEO Officer Ware transferred to a personnel office position in order to get promoted after he was told that his Deputy position would not be elevated to GS-12. A month after he left, the job was advertised as a GS-12 position. Ware concluded that management did not like the EEO message and decided to shoot the messenger for bringing bad news. 1 T.T. at 177-79 (Ware). 66. Deputy EEO Officer Ware reported to the Commanding Officer that blacks were using racially segregated restrooms because they felt intimidated, 1 T.T. at 79; 2 T.T. 36-38, and that there was a separate lunchroom for blacks. Id. . He also reported that there were several supervisory organizations without blacks. Id. at 79-80. 49 67. The Civilian Personnel Office worked as staff for management in making its personnel decisions, but did not make the decisions. 16 T.T. at 135, 167 (Marti). The Navy's personnel expert, an employee of the Civilian Personnel Office, considered herself to be a member of the management team at NARF. 16 T.T. at 137-38, 139-40 (Marti). 68. The finding that blacks "are underrepresented in the Civilian Personnel Office in other than clerical positions" was included in NARF's Affirmative Action Plans for 1977, 1976, and 1974. P. Exh. No. 6 at 15; P. Exh. No. 5 at 5; P. Exh. No. 3 at 5. 69. The Civilian Personnel Office was not sensitive to EEO efforts, according to Deputy. EEO Officer Ware. 1 T.T. at 136. The absence of blacks in positions of responsibility in the Civilian Personnel Office, according to Deputy EEO Officer Ware, contributed to traditional recruitment patterns. 1 T.T. at 136. 70. The Navy's personnel expert was unable to testify that the Ci-Vul i.9.ri Personnel Office complied with all regulatory or statutory authorities on personnel selection between 1973 and 1982. 16 T.T. at 136 (Marti). According to the Navy's P®^’s<->̂risl expert, the Civilian Personnel Office never monitored the merit staffing process to see if it had a racially disparate impact. 17 T.T. at 16 (Marti). The Navy's personnel expert testified that she did not know if managers involved in the promotion process considered race. 17 T.T. at 15 (Marti). 50 71. The Navy's personnel expert was unaware of any validation studies on any element of the competitive merit staffing process, other than defense exhibits. 17 T.T. at 33-34 (Marti) . No written validation study was presented by the Navy. 72. Class member Lawrence Mack, a highly trained WG-11 Maintenance Machinist, was discouraged from applying for a supervisory position when his foreman, the selecting official, Mr. Stevens, admitted to Mr. Mack: "I am a redneck and a bigot". 9 T.T. at 37, 39. Mr. Stevens allowed that he might well have told Mr. Mack "You can assume that I'm a redneck and a bigot". 20 T.T. at 147. He testified that he made the statement to other black employees as well. Id. 73. The Commanding Officer told plaintiff Sanders after Sanders was denied a promotion in 1971, that "it's the same old black and white thing". P. EXh. No. 261 at 81-82. 74. Class member Bowman served on promotional rating panels, and observed black employees being rated lower because of their race by white supervisors, and white employees being rated higher by white supervisors based on their family relation to other employees or personal knowledge. 3 T.T. at 65-67. 75. Mr. Bowman observed that panel members favored relatives of white NARF employees and persons residing in predominantly white neighborhoods. Mr. Bowman also testified that panelists asked one another whether they personally knew an applicant, 3 T.T. at 66, drew conclusions about the race of an applicant by reference to his zip code or the school district in which he resided. 3 51 T.T. 67. On one occasion, Mr. Bowman observed a supervisor reject an applicant without even reading his application on the ground that the applicant was related to a black employee. 3 T.T. at 67. 76. Class member Bowman observed that black employees were disproportionately given the low rating of "satisfactory" while white employees were disproportionately rated "outstanding". 3 T.T. at 69. 77. Notwithstanding the EEO training offered to supervisors at NARF, the reaction of the supervisors to such training was negative, in that their actions with regard to minority employees did not change significantly. 1 T.T. at 114-115. 78. Mr. Sanderson, an Electronic Measurement Equipment Mechanic Foreman, testified for the defendant that from 1980 until 1984 he became an EEO Counselor, and that during this period he also served on six to ten rating panels, and on several occasions served as the Commander's EEO representative to the rating panel. 19 T.T. at 174. 79. Mr. Sanderson testified that in 1980 or 1981 he made two trips for the purpose of recruiting minority employees; one to Biloxi, Mississippi and one to Detroit, Michigan. 19 T.T. at 175. Mr. Sanderson testified that NARF's minority recruiting efforts in which he participated involved placing ads in local newspapers and visiting local unemployment compensation offices. The recruitment efforts of the NARF personnel did not involve 52 visiting local community colleges, military facilities, or the local airports. 19 T.T. at 185-186. 80. Mr. Sanderson testified that his efforts at minority recruitment led to the processing of one applicant Mr. Sanderson thought to be qualified, but that applicant was subsequently not selected. 19 T.T. at 184. Notwithstanding the fact that Mr. Sanderson characterized his efforts at minority recruitment as "unsuccessful", 19 T.T. at 183, Mr. Sanderson, did not make any recommendations regarding how the process of minority recruitment could be improved on future trips; nor was he aware of and recommendations made by any other members of his group. 19 T.T. at 185. DENYING BLACK EMPLOYEES INFORMATION ABOUT THE SELECTION PROCESS 81. The Civil Service Commission found in 1973 that "[a] significant number of employees are poorly informed on local merit promotion . . . procedures." P. Exh. No. 1 at 19. 82. Blacks did not appear on merit promotion certificates in part because blacks were not familiar with how to go about applying for promotions. 1 T.T. at 173 (Ware). 83. Black employees were poorly informed regarding local merit promotion procedures, and had less information than white employees. 1 T.T. at 156—60 (Ware). The EEO office instituted classes to teach employees about promotion procedures, including how to fill out Standard Form 171 applications, relevant documents, information about rating panels, areas for improvement 53 of performance. Id. White employees exchanged such information among themselves. Id. at 163-64. Without the classes, blacks did not have access to the information. Id. 84. As late as 1977, NARF's Affirmative Action Plan found that "[t]he awareness of employees . . . regarding local Merit Promotion actions and/or projected vacancies needs to be increased", P. Exh. No. 6 at 30, and that action was needed by department superintendents and the Civilian Personnel Office to "[c]ounsel employees regarding local merit promotion procedures." P. Exh. No. 6 at 15. 85. White employees had more information than blacks about local merit promotion procedures as a result of word of mouth advertising of promotional opportunities and their personal associations with the predominately white supervisory force. l T.T. at 163-64 (Ware). 86. Deputy EEO Officer Ware found that white employees continued to receive assistance on obtaining promotions from other white employees throughout the time of his service. 1 T.T. at 164 — 65. 87. Class member Neal testified that white supervisors would alert white employees of job openings in advance of the formal job announcement, while withholding this information from black employees until it would be too late to prepare an effective application. 10 T.T. at 73, 109. 88. Deputy EEO Officer Guy observed that many blacks did not know how properly to fill out applications and that it was still 54 necessary to provide training during the 1980-88 period. 2 T.T. at 74 (Guy). 89. In serving on rating panels, class member Littles observed that many blacks did not know how to fill out promotion applications to meet CPO requirements. 3 T.T. at 27 (Littles). 90. Class member Littles was rated ineligible when he applied for promotion to rigger, despite his experience and background until a white supervisor, whom Littles had taught rigging, assisted him in rewriting the promotion application. 3 T.T. at 14-15, 28-29, 33-34 (Littles). DENYING BLACK EMPLOYEES DETAILS 91. The 1973 Ciyil Service Commission evaluation found that: "[M]isassignments and illegal details exist throughout the production organization . . . . Details are not properly documented and many extend over 120 days." P. Exh. No. 1 at 5. 92. NARF ' s Affirmative Action Plans document that black employees, were denied details. See infra. 93. NARF's June 1973 Affirmative Action Plan required department superintendents to "[establish a procedure for rotating employees to duties within their ratings or positions, to duties of a higher level, or to a different line of work, so that equal opportunity is afforded with respect to gaining experience that qualify them for higher paying or more desirable jobs." P. Exh. No. 2, June 1973 AAP, at 5. 55 94. NARF's 1974 Affirmative Action Plan required all supervisors to "[s]trongly emphasize the need to insure that all employees are provided equitable treatment in the use of details and cross training assignments". P. Exh. No. 3, Part C at 8. 95. NARF's 1976 Affirmative Action Plan required department superintendents to "[i]nsure that . . . [blacks] are provided equal opportunity to serve in temporary/acting supervisor jobs." P. Exh. No. 5 at 9. 96. According to NARF's 1977 Affirmative Action Plan, blacks "need to receive a more equitable share of details and temporary assignments/promotions." P. Exh. No. 6 at 31. 97. As late as 1978, NARF reported in its Affirmative Action Plan that "[a]t the department level there is a need to s y s t e m a t i c a l l y ensure that . . . t e m p o r a r y assignments/promotions, and collateral duties are being extended equitably to all employees". P. Exh. No. 11, Part C at second unnumbered page. 98. Blacks did not get assignments to "snap", i. e. details and temporary promotions td> supervisory positions, which enhanced an employees prospects for promotion. 1 T.T. at 138 (Ware) . The EEO office proposed that details and temporary promotions be rotated in a nondiscriminatory way in order to increase training opportunities for blacks. Id. at 166-67 (Ware). 99. The Commanding Officer ordered a rotation of details and temporary promotions to allow employees to work in areas other than their own in order to gain experience for future promotional 56 opportunities. However, rotation was not actually implemented to any great extent and the problem of misassignments and illegal details continued. 1 T.T. at 141-42 (Ware). 100. As of 1977, there was still a problem with equitable distribution of details and temporary assignments/promotions to black employees. 1 T.T. at 143 (Ware). 101. From 1980-88, blacks continued to receive very few details and reassignments to better jobs. Deputy EEO Officer Guy brought the problem to the attention of the Commanding Officer and management. She recommended that details be rotated equitably, but found that details, in fact, were not rotated equitably and that blacks did not come close to receiving details equal to their representation in the work force. 2 T.T. at 70-71 (Guy). • 102. Although class member Leroy Littles performed supervisory rigger work during the Korean War, he was assigned to a general helper position and not promoted to rigger until 1965. 3 T.T. at 9-16 (Littles). 103. Class member Leroy Littles worked as a WG-5 general helper, a position held by -other black employees as well, while performing journeyman level rigger work, a position held by whites until 1965. 3 T.T. at 5-6 (Littles). 104. Class member Leroy Littles performed the work of a journeyman-level rigger while assigned to the lower level position of general helper. His job duties did not change when he was promoted. 3 T.T. at 5-16. 57 105. Class member Bowman was detailed to foreman or "snapper" in the aircraft cleaning shop between 1954-61, and in fact ran the shop although the Painting Shop and Public Works foreman were supposed to be running the shop. 3 T.T. at 41-45. The only supervisory duties he did not perform was approval of leave. Id. . 106. Bowman and other black supervisors were denied the opportunity to go on field trips, which Bowman believes were useful for supervisors. 3 T.T. at 50-51 (Bowman). 107. The branch foreman, Mr. Gonzalez, testified he would have sent Mr. Bowman on a field trip only if he were required to do so. 22 T.T. at 30 (Gonzalez). 108. Class member Bowman and the other black equipment cleaner foreman were denied the opportunity to serve on details to a higher level supervisory 'position from 1961 until the 1980's, when a recently appointed white aircraft equipment cleaner foreman successfully challenged the policy of not permitting cleaner foreman to serve in such positions. 3 T.T. at 51-52, 56 (Bowman). 109. Bowman did not seek promotion to a higher than first level supervisor because equipment cleaning was a dead end occupation and his inability to obtain details to higher level jobs. 3 T.T. at 56-57 (Bowman). 110. Bowman was denied the opportunity to be detailed or loaned to shops outside of equipment cleaning to gain experience for promotion purposes from 1951 to 1988. 3 T.T. at 57-58 (Bowman). ' i 58 111. As equipment cleaning supervisor, class member Bowman was directed to detail his black employees to demeaning janitorial jobs in other shops. 3 T.T. at 61-62 (Bowman). A [Bowman] Not only did I observe, I was involved in assigning — as far as being told to assign and send employees to different shops to do cleaning work, demeaning jobs. As far as an example, whenever the — they had an inspection in the Hydraulics Shop, which is a very clean shop because of the hydraulic components — Bearing Shop because the bearing components had to be clean, I would have to send employees under my supervision, which was black, to clean these shops while the white employees assigned to these shops were standing around and watching them cleaning. I would question it to my section, "Why do we have to do this? They said, "Because you're cleaners. You're equipment cleaners. You're aircraft cleaners." Well, this is scrubbing floors. So those type things were very demeanful to the black employees under my supervision and myself. ■ And I was also assigned to supervise these people in doing these demeaningful jobs. 3 T.T. at 61 (line 23) - 62 (line 16). 112. White aircraft equipment cleaning shop employees were detailed or loaned at the request of management to gain experience for eventual promotion to higher level jobs in other shops. 3 T.T. at 62-65; P. Exh. No. 138. Only one or two black employees were ever detailed to other shops. Id. 113. Class member Sylvester Bailey testified that he was not assigned to details that would have given him additional relevant experience to improve his chances of promotion. 3 T.T. at 166. 114. Details or loans of employees routinely were allocated on the basis of a shop requesting particular employees by name. 22 T.T. at 116 (Gonzalez). Thus, employees known to personnel in 59 the requesting shop were more likely to be assigned to details. 22 T.T. at 116. (Gonzalez). 115. Class member John Grier testified that his temporary work assignments did not provide the kind of experience that generally leads to promotions at NARF. 3 T.T. at 147. For example he was loaned to the cylinder cleaning shop in the power plant division, where he did sandblasting. 3 T.T. at 142. In the painting shop he cleaned aircraft parts to prepare them to be painted. 3 T.T. at 142-43. In the packing shop he packed and unpacked aircraft parts and drove a tow motor. 3 T.T. at 143. in the electroplating shop he did bead blasting. 3 T.T. at 144. in the Tool Attendant Shop he filled tool boxes and issued them to new employees as they came in. 3 T.T. at 144. 116. Class member George Peterson, an Aircraft Engine Mechanic, testified that while his white co-workers were loaned to higher level jobs in other shops, Mr. Peterson requests for such assignments were repeatedly denied. 9 T.T. at 101-106. For example, white mechanics were loaned to the Engine Test Cell shop, the Quality Assurance shop, the Engine Evaluation shop, and the Ops Analysis shop. 9 T.T. at 102. These shops generally had high advancement potential. 9 T.T. at 103-04. Some of the white employees then received promotions to work permanently in the shops to which they had been loaned. 9 T.T. at 103-06. 117. However, although he did not request such assignments, Mr. Peterson was loaned to the lower-level shops in which training opportunities and advancement potential were severely limited. 9 60 T.T. 106-08. The shops to which he was loaned include the cleaning shop, transportation shop, plating shop, paint shop, and plasma spray shop. 9 T.T. 106-07. White employees were not loaned to the cleaning shop, and Mr. Peterson was loaned more frequently to the paint shop than the white employee who were occasionally loaned there. 9 T.T. at 107-08. 118. Mr. Peterson requested snapping assignments, but never received them. 9 T.T. at 108. White employees of the same grade, but with less training and experience than Mr. Peterson, were given snapping assignments. 9 T.T. at 108. 119. When Mr. Peterson was injured and his doctor directed that he be assigned light duty, Mr. Peterson was detailed to the transportation shop instead of to the logs and records desk as he had requested. 9 T.T. at 101. In the transportation shop, he drove a tow motor to transport aircraft, and lifted aircraft parts onto a motorized vehicle to transport them around the plant. 9 T.T. at 101, 120-121. 120. Mr. Ardes H. Hall, a witness for the defendant, was a supervisor at NARF in electronics from 1968 until his retirement in June of 1989. Mr. Hall testified that while many requests for employees to be detailed from his shop were instigated by the Manpower Office and Hall's second level supervisor, it was also the case that he could declare certain workers in his shop surplus if he did not need his full complement of workers. 20 T.T. at 112-116. 61 121. Mr. Hall testified that he kept a record in his attendance log of the employees detailed from his shop, which indicated the shop to which they had been detailed. However, notwithstanding this testimony, Mr. Hall did not contradict the testimony of class member Robinson, that Mr. Robinson got a disproportionate share of undesirable details; nor was the attendance log introduced into evidence. 20 T.T. at 113-114, 123. 122. Mr. Hall's testimony was ambiguous regarding the frequency of his knowledge of where a detailed employee would be sent. 20 T.T. at 120. 123. Mr. Hall's testimony was inconsistent with that of other supervisors who testified that specific employees were frequently requested for details. 20 T.T.. at 121; 22 T.T. at 116 (Gonzalez) DENYING BLACK EMPLOYEES TRAINING 124. The 1973 Civil Service Commission evaluation found that: identification of training needs and evaluation of training received need improvement." P. Exh. No. 1 at 19. 125. The finding that black employees "are provided infrequent opportunities to attend training sessions" was included in NARF's Affirmative Action Plans for 1973, 1974, and 1976, and the finding that black employees need to be afforded training on a more equitable basis was included in the 1977 Plan. P. Exh. No. 2, February 1973 AAP at 5, June 1973 AAP at 7; P. Exh. No. 3, Part C at 7; P. Exh. No. 5 at 9; P. Exh. No. 6 at 31 62 126. As late as 1978, NARF reported in its Affirmative Action Plan that "[a]t the department level there is a need to systematically ensure that training . . . [is] being extended equitably to all employees." P. Exh. No. 11, Part C at second unnumbered page. 127. The Commanding Officer and EEO office identified lack of training opportunities to blacks as a problem in NARF's Affirmative Action Plans because black employees got low promotional ratings as a result of not being selected for training as often as whites. 1 T.T. at 145 (Ware). 128. The EEO office had no influence in selecting employees for training except for EEO training. Deputy EEO Officer Ware sought input because there were complaints about lack of training opportunities for blacks year after year. 1 T.T. at 146-47 (Ware). 129. During 1980-88, Deputy EEO Officer Guy observed that the problem of blacks not being assigned training in proportion to their representation in the work force continued. She brought the problem to the attention of management and recommended that training opportunities be given fairly to all employees regardless of race. Her recommendation was not implemented to any great extent. 2 T.T. at 71-72 (Guy). 130. Employees were selected for promotion enhancing training by the same foremen who were subject matter experts on the rating panels. 1 T.T. at 63 (Clark). 63 131. Dwayne Clark was consistently denied training that would have facilitated his ability to get promoted in his craft field. 1 T.T. at 112-113. This continual denial led to his decision to make move from the FWS to the GS pay schedule. 132. Class member Andre Neal was consistently denied training opportunities that would have enhanced his ability to obtain promotion. 10 T.T. at 81-82, 85, 107. DENYING BLACK EMPLOYEES A FAIR OPPORTUNITY FOR POSITIVE PERFORMANCE EVALUATIONS. SUPERVISORY APPRAISALS AND AWARDS 133. In 1973, the Civil Service Commission found that: [Minorities have not received awards in the same proportion as their representation in the total work force. According to a NARF report, as of December 1972,, Minority employees accounted -for 9.1% of the total population. Yet, they receive only 4.2% of the "outstanding" ratings granted, 5.9% of the sSP's granted, and none of the Quality Step Increases. P. Exh. No. 1 at 8-9. < 134. The 1974 Affirmative Action Plan stated that "[m]anagement needs to have a better knowledge of the skills of present employees." P. Exh. No. 3 at 5. 135. NARF's 1977 Affirmative Action Plan stated that "[t]here is a need to increase the awareness of managers and supervisors regarding the capabilities of . . . Blacks." P. Exh. No. 6 at 29. 136. NARF's Affirmative Action Plans for February 1973, June 1973, 1974, 1976, and 1977 stated that the civilian personnel office and department superintendents should develop a skills survey and skills bank to identify underutilized and nonutilized 64 employees. P. Exh. No. 2, February 1973 AAP at 3, June 1973 AAP at 4; P. Exh. No. 3, Part C at 5; P. Exh. No. 5 at 6; P. Exh. No. 6 at 15. 137. As late as 1978, NARF still reported in its Affirmative Action Plan that "[t]here remains a need for a skills survey of the entire work force," and that "the planning and preparation phase" should be undertaken jointly by management officials, the civilian personnel staff, the data processing department and EEO office. P. Exh. No. 11, Part C at second unnumbered page. 138. Blacks never received a fair share of awards or high performance ratings when Ware was Deputy EEO Officer from 1973- 77, 1 T.T. at 148 (Ware) or when Guy was Deputy EEO Officer from 1980-88, 2 T.T. at 72-73. 139. When he served on rating panels, class member Littles observed that blacks got scored low because they got satisfactory, but not outstanding, supervisory appraisal ratings. 3 T.T. at 25-27; 23 T.T. at 103-104 (Aton) (Aton selected Mr. Tommy Smith over class member Andre Neal because Smith had consistent outstanding performance evaluations). 140. Class member Bowman observed black employees being rated lower because of their race by white supervisors, and white employees being rated higher by white supervisors based on their family relation to other employees or personal knowledge. 3 T.T. at 65-67. 141. Class member Bowman observed that black employees were disproportionately given the low rating of "satisfactory" while 65 white employees were disproportionately rated "outstanding". 3 T.T. at 69. 142. No black employee was selected to serve on the NARF-wide Beneficial Suggestion Committee from the Process Division until 1985 or 1986. 3 T.T. at 48 (Bowman). 143. Class member George T. Peterson has worked at NARF from 1977 until the present. 9 T.T. at 87. Mr. Peterson is currently employed as an Aircraft Engine Mechanic. During the period that Mr. Peterson was classified as a WG-8 in this craft, his supervisor, Mr. Jimmie Thornton, described Mr. Peterson as having complete mastery of the job, doing more than was required, and being capable of complete repair and troubleshooting. 21 T.T. at 81-3 (Thornton). Mr. Peterson trained others also trained other employees in his shop. 21 T.T. at 83 (Thornton). His supervisor evaluated Mr. Peterson's work as 99 per cent accurate. 9 T.T. at 95-96; 21 T.T. at 83 (Thornton). He increased shop production by reducing errors. 21 T.T. at 83 (Thornton). See also P. Exh. No. 279. Although Mr. Peterson did not need and was not given supervision, he was paid at the WG—8 rate though he performed at the WG—9 or WG-10 level. 9 T.T. at 93-94, 124; 21 T.T. at 76 (Thornton). Mr. Peterson's performance evaluation scores did not accurately reflect the high quality of his work performance. 9 T.T. at 99, 128-29. His overall scores were never in the highest range triple outstanding — although his scores on individual components of the evaluation were always outstanding or highly satisfactory. 9 T.T. at 99. White co-workers whom Mr. Peterson 66 had trained received higher performance evaluation scores, 9 T.T. at 100, although he worked as well as they did. 20 T.T. at 60 (Hagler). Mr. Graziano testified that Mr. Peterson worked at below normal production, 20 T.T. at 49, but he also admitted that his knowledge of Mr. Peterson's work is based on only one or two days with him. 144. Not until 1988, after Mr. Peterson had filed an EEO complaint, was he promoted to WG-10. 9 T.T. at 98. He was awarded back pay to 1987, when he had applied for and been denied positions as a WG-9 and WG-10 mechanic. 9 T.T. at 98-99. 145. Class member Neal testified regrading the fact that he never received an overall outstanding performance rating (3 0's), notwithstanding the fact that white employees in his shop regularly received them. Mr. Neal noted that his performance ratings were only satisfactory, notwithstanding the fact he consistently met performance goals established by the Facility. 10 T.T. at 74. 146. The only explanation Mr. Neal ever received from his supervisor for his failure to award Mr. Neal anything greater than satisfactory, was Mr. Neal's activity as part of the Minority Employees of NARF. 10 T.T. at 75. Vjf 67 NARF'S PROMOTION PROCEDURES PERMITTED MANAGEMENT TO SUBJECTIVELY EVALUATE RATING CRITERIA AND TO ENGAGE IN SUBJECTIVE DECISION MAKING 147. Employees have been evaluated in three broad categories: (1) Quality of Work; (2) Quantity of Work; and (3) Adaptability. 148. Under quality of work there were four factors which were graded separately as outstanding, satisfactory or unsatisfactory. These were described as: A. JOB KNOWLEDGE - Knowledge of present job and ability to apply this knowledge. B. WORK PLANNING AND ORGANIZATION - Ability to plan ahead and organize work. C. ACCURACY - How well does employee perform assigned duties? D. ABILITY TO INTERPRET WRITTEN INSTRUCTIONS - General, Technical. 149. Under quantity of work there were three factors which were graded separately. These were described as: E. WORK PRODUCTION - Amount of work an individual produces. F. ABILITY TO WORK UNDER PRESSURE. G. PROMPTNESS OF ACTION. 150. Under adaptability there were three factors which were graded separately. From October 1975 to February 1979 they were described as: H. COOPERATION - Ability to get along with others and work in harmony. I. I. INGENUITY - Ability to suggest and apply new ideas. 68 J. KNOWLEDGE, PARTICIPATION, SUPPORT OF MANAGEMENT'S SPECIAL PROGRAMS. In February 1979 the form was revised and J. was replaced by "J. DEPENDABILITY - Refers to the scheduling of leave and presence on the job site.” The old J. was revised as "K. KNOWLEDGE, PARTICIPATION, SUPPORT OF MANAGEMENT'S SOCIO ECONOMIC PROGRAMS" and put in a separate section. 151. Until February 1979, the broad categories were not separately graded. Instead, each individual factor, such as "job knowledge," had descriptions which characterized how well an employee met that factor. The highest rating was a "1" for each factor. The points for each of the factors were added together. If the total was 10-12, the adjective "outstanding" was used and a separate justification had to be written. A total of 13-45 was described as "satisfactory" and above 45 was considered "unsatisfactory." 152. In February 1979 the form was revised so that the employee was given a separate rating in each of the three broad categories as well as each of the factors. The choice of rating is either outstanding, satisfactory, or unsatisfactory. An employee who receives outstanding in all three major categories (commonly referred to as "three 0's" during the trial) is given a monetary payment. Although the number ratings for individual factors were eliminated, the descriptive material was retained in the same order (that is, the first description listed would have been graded a "«1," the second, a "2," etc). 69 153. Unlike the evaluations before 1979, there were no instructions on the form indicating how the individual ratings should be translated into an overall rating. An example of the effect of this change on the subjectivity of the process is shown in the evaluation of Gradson Johnson for February 1978 to February 1979. P. Exh. No. 98. Under quality of work, Mr. Johnson received three outstandings and one satisfactory, but his overall rating was satisfactory. In adaptability, Mr. Johnson received two outstandings and one satisfactory, but his overall rating was satisfactory. Moreover, if Mr. Johnson's individual ratings are converted into numerical scores, he received nine grades of "l" and two grades of "2," or a total of 11. This would have given him an overall rating of outstanding under the rules prevailing before 1979. P. Exh. No. 95. 154. Even the evaluations before 1979, however, were subjective since the supervisors could arbitrarily decide which factor to check. Again the evaluations of Gradson Johnson provide evidence of this problem. In his evaluation for February 1975 to February 1976 his supervisor graded him "2" yet described his job knowledge as follows: "Demonstrates excellent job knowledge and applies it well to situations arising daily. Learns easily and has acquired a great deal of knowledge in the past year in a new job situation." P. Exh. No. 95. Similarly, Mr. Johnson was graded "2" in ability to interpret written instructions, yet his supervisor described his work as follows: 70 "Works with technical and general info daily - schematics, blueprints[,] technical manuals [-] and interprets and applies the info with facility." Id. Mr. Johnson was not told why he was rated "2" instead of "1" or how he could improve his grade. 9 T.T. at 147. 155. Although Mr. Johnson did not do anything different the next year, his rating, from the same supervisor, on ability to interpret written instructions improved to a grade of "1." p. Exh. No. 96. The descriptive part of the report stated: "Mr. Johnson is skilled at reading and interpreting blueprints, schematics, technical manuals and applying them to the work situation." Id. The grade on this factor went down the very next year to a "2." All that this same supervisor had to say was: "Works daily with blueprints, schematics, technical manuals and interprets info with ease." P. Exh. No. 97. During the period of this last annual evaluation, Mr. Johnson also was rated by the supervisor for purposes of promotion. P. Exh. No. 99. On the very same element. the supervisor gave Mr. Johnson the highest rating and said: "Has little difficulty in the interpretation and application of even the most complex technical data encountered in his work."Id. 156. Officials were instructed not to give out too many 8 T.T. at 102 (Shuman) ;outstanding ratings. (Gonzalez). 71 22 T.T. at 81 157. The commanding officer had authority to make the final decision on all promotions. When Captain Bowen noticed that Henry Singleton was still a WG-6 production dispatcher in 1974, he told the division superintendent to make Mr. Singleton a GS-7 production controller immediately and Singleton was placed in a GS-5 position without an announcement being issued and without having to make an application. 7 T.T. at 112-15 158. Charles Sneed applied for a promotion to supervisor in 1974. 7 T.T. at 169. While he was snapping in the position, his supervisor told him that a white male, James Hoffman, had been selected for the job and sent him back on the line. Id. A sign had already been painted saying, "Jim Hoffman, Supervisor." Id. at 173. Captain Bowen told Mr. Sneed that he had made no final decision. Id. at 169. The captain asked Mr. Sneed if he still wanted the job "knowing that they already selected the man they wanted." X^. at 173. Mr. Sneed said he was ready to assume the responsibility and he was promoted. 159. Employees filed their applications by leaving them in a designated box at CPD. 7 T.T. at 126-28. 160. In 1982 Rufus Wright filed his 171 for a GS-7 quality assurance specialist, but CPD never contacted him. 7 T.T. at 126- 28. When he talked to a staffing specialist at CPD he was told that they could not find his 171. Id. 161. In 1983 Rufus Wright applied for a GS-9 production controller by leaving his application at the box at CPD. 7 T.T. 72 at 129-30. CPD could not find his 171. Wright testified that a staffing specialist told him that "at certain times things happen with paperwork." 7 T.T. at 129-30. 162. When Rufus Wright was ruled "ineligible" for a GS-9 production controller position by CPD he went to talk to a staffing specialist, Jeffrey Neal. 7 T.T. at 130-32. Mr. Neal said he did not have enough experience but would be eligible in December. Id. When Mr. Wright applied again in December, he was again rated ineligible. When he talked to Linda Provencal, a different staffing specialist, Ms. Provencal said her interpretation of X-118 that he was ineligible was "based on her judgment only." Id. 163. In 1985, Rufus Wright applied for a GS-9 production controller position. 7 T.T. at 140-41. He was rated 85 (highly <Iualified) i but was not selected while seven to nine whites were promoted. Id. Wright went to the EEO officer who told him to keep putting in applications. 7 T.T. at 142-43. Mr. Wright submitted a new 171 with more information, yet got a lower rating of 78. Id. Despite the lower rating, he was promoted. Id. Qualifications Not Determinative For White Employees 164. White employees were promoted to supervisory positions without knowledge of the underlying trades. John Cromer was made the foreman of the sheet metal and welding shop in 1972 or 1973. In 1976, he was made foreman of the joinder shop which included journeyman in painting, woodworking and carpentry. His training 73 in welding consisted of some trade school in approximately 1957 and some unspecified work in a shipyard. 2 0 T.T. at 179. His training as a carpenter consisted of three months during the summer in high school and six months as a carpenter helper where he "just bluffed [his] way through and got in as a carpenter." 20 T.T. at 180-81. He had no training as a painter. 20 T.T. at 183. He had no training in woodcrafting. 20 T.T. at 184. 165. Cromer described the process this way: "Q. How did you get to be the foreman of the joinder shop? A. I was detailed to that. The government has a right to detail you. And then as I was there for a period of time and they were having problems with the shop and it seemed to run a lot smoother once I got there, and I guess they just decided they'd leave me alone." i Id. at 182. No vacancy was ever announced for the position: "Q. Was there a vacancy announced; did you get that job permanently? A. No, there was never a vacancy announced. All they do is just write it into your job description. Q. You mean they change your job description to indicate that you continued to foreman? A. Yes, sir, it's very easily done with the stroke of a pen." 166. In contrast, class member Beverly George has worked at NARF for fifteen years, and although promotion to a supervisory role the logical next step for a woman with her gualifications, she has repeatedly been denied promotion to supervisor. Ms. George's qualifications include: her long tenure at NARF, including 74 experience as a snapper 4 T.T. at 39-41; her training in Interpersonal Problem Solving, 4 T.T. at 49, P. Exh. No. 156, and management techniques, 4 T.T. at 49-50; and repeated receipt of the highest performance awards from her supervisors. 4 T.T. at 41. 167. Ms. George applied three times for a position as shop supervisor. 4 T.T. at 42. She received a promotion rating of 92.5 for the shop supervisor position, 4 T.T. at 48; P. Exh. No. 153, but was never promoted to shop supervisor. 4 T.T. at 38. In 1984, Ms. George was passed over for the supervisor position in favor of Mr. Cogdill, a white employee whose promotion rating was identical to hers. 4 T.T. at 42-43 ; D. Exh. No. 1496. In 1988, Mr. Baldasso, an Asian employee, was "promoted to Cleaning Shop supervisor. 4 T.T. at 43. Ms. George was more productive and had more relevant experience for the position of shop supervisor than Mr. Cogdill and Mr. Baldasso. 3 T.T. 69-70, 72- 75 (Bowman); 4 T.T. 42-44. Ms. Marti testified that Ms. George was not placed on the certificate with the other applicants who received the same promotion rating because, while Ms. George had worked at NARF for many more years, the other applicants were deemed to have more "specialized experience" than she did. Ms. Marti did not, however, define the "specialized experience" that Ms. George ostensibly lacked. 23 T.T. at 164-65. Subjective Decision Making Bv The Rating Panels 75 168. How an individual completed a 171 was more important than their actual qualifications. Clarence Hester had been a supply- sergeant in the Army. 4 T.T. at 72. He had also worked as a material expediter at the NARF. 4 T.T. at 71. In both of these positions he learned skills which would help qualify him for a job as a production controller. 169. Mr. Hester applied for GS-5/7 positions through Orlando but was rated ineligible. 4 T.T. at 78. He went to Jeffrey Neal, a staffing specialist at CPD, who suggested ways to write his 171. 170. After he became permanent, Mr. Hester again applied for GS- 5/7 positions internally and was again rated ineligible. 4 T.T. at 82. He went back to Mr. Neal who actually reworded the 171 for him, but added no new information. (4 T.T. at 82-83. Although he had previously been found ineligible at the GS-5 level, Mr. Hester was then rated 97 for a GS-7 position and selected. Id. ; 5 T.T. at 10—11. See also, 14 T.T. at 148-149 (Palmer). 171. In 1977 class member Andre Neal and five other black employees applied for a GS-7 promotion. Thirteen whites, but no blacks were promoted. Mr. Neal then filed a complaint regarding the rejection of the blacks for promotion. Mr. Neal's initial rating was 78 or 79, and indeed no black received higher than 82. However, following the complaint and several months later, Mr. Neal's application was re-rated, and scored this time as 96.9. In 1978, Mr. Neal received the promotion to GS-7. 10 T.T. at 75- 78. The re-rated SF-171 submitted by Mr. Neal was identical to 76 prior SF-171 that had been rated in the high 70's. 10 T.T. at 8 8 . 172. Mr. Neal applied for supervisory positions at NARF on eight different occasions, and while he was rated eligible on each occasion he was never awarded the position. 10 T.T. at 85-88. Mr. Neal, also testified that his experience at NARF was consistent with the complaints he heard from other employees in his capacity as president of the Minority Employees at NARF. 173. Rating panels were able to determine race by looking at such things as zones, zip codes and schools. 9 T.T. at 57-59 (Sawyer); 3 T.T. at 67 (Bowman). 174. White applicants were given ratings of 85 or better, highly satisfactory. 9 T.T. at 57-59. 175. White panel members tried to get Eugene Sawyer to go along with high ratings for less gualified whites, but he refused. When the panel deadlocked, Sawyer was not asked to be on the rerating panel. 9 T.T. at 57-59. 176. The rating panels made a subjective judgment regarding the number of points to give an applicant on each of the elements of the crediting plan. 1 T.T. at 61 (Clark). 177. The rating panels considered an applicant's annual performance rating, supervisory appraisal, beneficial suggestions, training, and any other types of contributions that were related to the position being filed. 1 T.T. at 62 (Clark); 16 T.T. at 42 (Marti), 21 T.T. at 135-136 (Fox). 77 178. The interpretation of the crediting plan by the rating panel members, and the extent of their discretion in interpreting that plan was a major problem in the inconsistency of ratings received by black and white employees. 1 T.T. at 65-76 (Clark) 179. Rating panel members would often disagree about what was or was not credible training for a particular position. 1 T.T. at 62-63 (Clark). 180. Mr. Harry M. Bailey, a witness for the defendant, was employed by the NARF in 1955, and served as a Foreman Electronics Mechanic, and member of various rating panels from 1972 until his retirement in 1989. 22 T.T. at 177. Mr. Bailey did Merit Promotion ratings for applications from NARF and from Orlando. 2 2 .T.T. at 177, 182. As a member of a Rating Panel, the reviewers would consider the SF—171, the supervisor appraisal, and their performance rating. The material reviewed covered areas such as ingenuity as well as experience. 22 T.T. at 179- 180; P. Exh. No. 119. 181. Mr. Ardes H. Hall was a supervisor at NARF in electronics from 1968 until his retirement in June of 1989. In particular, Mr. Hall was class member Willie Robinson's supervisor from 1968 until Mr. Robinson's promotion to supervisor in 1983. 20 T.T. at 111- 112. 182. Mr. Hall's testimony was supportive of the conclusion reached by Mr. Dwayne Clark, among others, that the rating panel judgments were highly subjective, and that individual panel members might disagree on the value of experience. Specifically, 78 Mr. Hall, not withstanding 21 years as a supervisor, and other testimonial and documentary evidence regarding the importance of details in obtaining experience which would enhance an employee's ability to obtain promotion, answered the following questions in the negative. Q. Are there any assignments that individuals in your shop might get as a result of a detail that you believe would have been beneficial for their ability to obtain promotion?A. No. 20 T.T. at 123. Q. My question then, Mr. Hall, is in your position as a member of a rating panel, when an individual came before you to be rated for promotion and he had received some experience that might be outside of his regular trade, would you recognize that or would that have any impact on your rating of the individual? A. Basically, no. 20 T.T. at 124-125. Cancellation Of Certificates 183. NARF officials had a practice of closing announcements when the person they wanted to apply did not apply. 7 T.T. at 49. 184. In 1973 class member Sylvester Bailey applied for a promotion to aircraft surface treatment worker foreman, and was found eligible for that position, D. Exh. No. 285/bl. However no certificate was issued for that job. D. Exh. No. 285/bl; 22 T.T. 35-36. Mr. Gonzales, who was then general foreman, does not recall why a certificate was not issued. 22 T.T. at 36. 79 185. Class member John Grier worked on and off as a snapper in the cleaning shop for approximately ten years. 3 T.T. at 144-45. During this period he regularly sought to work outside the cleaning shop, applying for a merit promotion as an aircraft worker, see D. Exh. No. 1581, and for an Upward Mobility position as a metallizer, see D. Exh. No. 1582, but was denied both positions. 3 T.T. at 145. See D. Exh. Exh. No. 1590 The certificate of employees eligible for promotion to metallizer indicates that Mr. Grier was highly qualified for this position, however he was not selected. Mr. Grier was tied for first place on the certificate of eligibles for the aircraft worker job, however that certificate was cancelled. 21 T.T. at 38 (Barilla). THE PATTERN OF DISCRIMINATION WAS PERVASIVE FOR BLACK SUPERVISORS. ARTISANS. AND WORKERS 186. The aircraft equipment cleaning shop was predominantly black. 3 T.T. at 47-48 (Bowman) . Prior to 1971, the only whites were three assigned to work cleaner, indoor equipment cleaning. Id. at 58-61, 71. After 1971, more whites were hired into the cleaning shop. Id. 187. Class member John Bowman worked in the cleaning shop his entire career from 1951 to 1988, including two years military service. 3 T.T. at 3 9-41 (Bowman) . Prior to arriving at NARF, Mr. Bowman graduated from high school, studied business administration for two years at the college level, and was trained as a metal smith for six months in a vocational 80 3 T.T. at 38.education program. 3 T.T. at 38. From 1952 to 1954, while he served in the United States Army, Mr. Bowman served as a squad leader supervising fifteen to twenty persons. 3 T.T. at 39. 188. Mr. Bowman was the first black to serve on rating panels for aircraft equipment cleaners. No blacks selected cleaners. 3 T.T. at 49-50 (Bowman). 189. Mr. Bowman, supervised Beverly George for 14 years in the aircraft cleaning shop, and rated Ms. George's potential to be a supervisor higher than Mr. Cogdill, a white employee promoted to supervisor over her, because of her greater promotional experience in the shop. 3 T.T. at 72-75 (Bowman) ; D. Exh. No. 1496. He believed Ms. George's potential outweighed, the potential of Mr. Baldasso, a non-black employee because of her much greater experience and training. Id. See also, 3. T.T. at 69-70; 4 T.T. at 42-44. 190. Mr. Bowman assessed Beverly George as a very good employee with a lot of on-the-job experience on the basis of 14 years of supervising her work. 3 T.T. at 72 (Bowman). He rated her outstanding two or three times and assigned her to snap independently at night. Id.. John Grier, according to Bowman, was an excellent employee in the aircraft cleaning shop, with good potential for promotion to other jobs, including upward mobility jobs, on the basis of his 25 years of experience, work on loans, good reports from others, and his ability to pick up things easily. 3 T.T. at 76- 77. 81 192. As a supervisor after 1975, class member Littles supervised black employees. 3 T.T. at 18 (Littles). Littles was the first black to serve on rating panels in the Plant Maintenance Division after he became a foreman in 1975. 3 T.T. at 19-20 (Littles). 193. As a supervisor, Littles observed that supervisors would refer him to black helpers to get information about operation of shop. 3 T.T. at 24-25 (Littles). 194. When he was a rigger, class member Littles unsuccessfully recommended class member Abraham Scott, an industrial cleaner, for the carpenter position because Scott did a good job remodeling Littles7 office and had carpenter credentials. 3 T.T. at 23-24 (Littles). 195. Class member Sylvester Bailey worked at NARF from 1955 until his retirement in 1985. 3 T.T. at 161. Prior to 1955, Mr. Bailey served in the United States Army, where he supervised a squad of twelve persons. He left the Army in 1952 with a ten- point veteran's preference. 3 T.T. at 162. At NARF, Mr. Bailey worked as a WG-5 labor cleaner for approximately five years, cleaning work areas and bathrooms, and then as a [WG-5 ?] e<3uipment cleaner for the remaining 25 years, stripping, sandblasting and corrosion—treating airplanes and parts. 3 T.T. at 161, 163. 196. Sylvester Bailey, according to Bowman, was an excellent cleaning shop employee who was an excellent snapper with very good potential to work in upward mobility positions. 3 T.T. 82 at 77-78 (Bowman). Bowman rated Bailey higher on potential for a supervisory position than Adams, a white employee who was promoted to supervisor over Bailey, on the basis of Bailey's longer experience, snapping record and production record. Id. at 79-80. 197. Mr. Bailey repeatedly applied for and was denied promotions. In the late 1950's, he applied for and was denied work as a sheet metal worker. 3 T.T. at 165. In the early 1970's, he applied for and was denied an Upward Mobility Position as an electroplater. 3 T.T. at 164. When he initially applied to NARF, Mr. Bailey had received a score of 91 on a test administered by NARF for the position of electroplating apprentice, but was not assigned to that position. 3 T.T. 162- 63. In 1973, Mr. Bailey applied for and was denied an Upward Mobility Position as a painter. 3 T.T. at 164, 167. 198. Class member Lawrence E. Mack worked at NARF from 1973 to the present. 9 T.T. at 29-30. Mr. Mack started as a WG-10 ^^intsnance machinist in the plant maintenance machine shop. 9 T.T. at 32. In approximately 1978, Mr. Mack, along with all other employees who applied, was promoted to WG-ll maintenance machinist. 9 T.T. at 32, 45. Maintenance machinists manufacture, install, align and repair machine parts. 9 T.T. at 32. WG-ll maintenance machinists have additional responsibilities for maintenance and repair of the relatively complex, computer-controlled NC machines. 9 T.T. at 32. 83 199. Prior to coming to NARF, Mr. Mack attended a three-year program at the West Columbia Technical Trade Center, where he was the only student in a class of 24 to graduate with a diploma, as opposed to the less advanced certificate. 9 T.T. at 30-31. In the Trade Center program, he learned to operate and repair machines, and to manufacture parts. 9 T.T. at 30. He then worked as a machinist for six months at Eastman Kodak, and for two years as a Class A (highest grade) machinist at the Jacksonville Shipyard. 9 T.T. at 31. Mr. Mack was the first and remains the only black machinist in the plant maintenance machine shop at NARF. 9 T.T. at 32-33. 200. Work assignments in the shop were not handed out in order to the next available machinist. 9 T.T. -at 44. Mr. Mack was assigned to the dirtier and more hazardous jobs, such as jobs involving respiratory exposure to fine dust in the sandblast shop, 9 T.T. at 33, and exposure to toxic fumes in the crawl space under a shop floor. 9 T.T. at 33-34. Even after he was trained to work on the more complex machines, Mr. Mack was assigned to work on them less frequently than white co-workers. 9 T.T. at 36—37. At least one white machine operator, with the knowledge of supervisory personnel, repeatedly refused to cooperate with Mr. Mack. 9 T.T. at 34. When the operator's machine was broken and Mr. Mack was sent to repair it, the operator refused to explain the problem to Mr. Mack. 9 T.T. at 34. When Mr. Mack notified his supervisor, the supervisor sent a white employee to find out from the operator what was wrong with 84 the machine and to relay the information to Mr. Mack. 9 T.T. at 34. 201. In 1982 or 1983, while Clarence Hester was a GS-7 production controller, he asked his supervisor, Roger Boone, how he could get into the new 700 Division. 4 T.T. at 86-87. Mr. Boone told him "not to worry about the 700 Division, that it was going to fold." Id. at 87. The employees in the 700 Division were equipment specialists and basically were concerned with ordering materials. Id. Mr. Hester was accustomed to that kind of work and wanted to get back to it. Id. Moreover, he could pick up computer skills and get away from manual work in that division. Id. 202. All 700 Division employees in Mr. Hester's area were in the GS classification and were in career ladders where they could promote without competition up to GS-9. Id. at 88. White employees from Mr. Hester's division (500) were transferred to 700 without notice or announcement ("[W]e came to work, and the next day they were in 700.". Id. at 87. Mr. Hester did not receive his GS-9 until ’1988. Id. at 88. 203. In 1981 Irene Vanderhorst was selected for a quality assurance specialist, GS-5/7/9, upward mobility training program. 10 T.T. at 19-21. 204. In quality assurance there were three areas: 410, 420 and 430. Id. at 22. Branch 410 works in the office and writes instructions. Id. Branch 420 works on the floor inspecting the work product of the artisans. Id. Branch 430 does 85 investigations. Id. The top grade in 410 and 420 is GS-11 and in 430 is GS-9. 10 T.T. at 51-52. 205. The quality assurance interns were supposed to rotate through each of the branches and then to be permanently assigned after training. Id. at 20-21. Mrs. Vanderhorst submitted a memorandum requesting assignment to branch 410. Id. at 46. She never received a reply and was never assigned to 410, but was assigned to 420. 206. White females, Nettles and Davis, who entered the program after Mrs. Vanderhorst, were taken out of the training program and placed in 410. Id. at 20-21. 207. Abraham Scott wanted to work as a woodworker at the NARF since that was the area of his training. He had been a licensed general contractor in Florida since 1968 or 1969. 8 T.T. at 190- 92. He could maintain homes, business places and churches. Id. He had carpentry skills, could read plans and had knowledge of the relevant building materials. Id. He had built VA and FHA homes. Id. He had worked as a maintenance specialist at NAS ('Navy had 525 houses on the base. I was inspector over all the contractors."). id. at 192. 2 08. Mr. Scott was working as a WG-5 equipment cleaner when he was detailed to the woodworking area. P. Exh. No. 237. After 87 days in woodworking, Mr. Scott was told that the woodworking supervisor alleged that he (Scott) was not qualified and that he would be sent back to his regular position. 9 T.T. at 7-8. Mr. Scott got all six employees in the shop to sign statements 86 attesting to his ability. Id. Mr. Scott testified that he had performed the full duties of a woodworker without supervision. Id. at 9. Despite his qualifications Mr. Scott was sent back to his regular job. 209. Mr. Scott had a meeting with Mr. Stevens [on] , the director of plant services. 9 T.T. at 12. Stevens told Scott to apply for a woodworker job, but to bring his 171 for Stevens to review first. Id. Mr. Scott redid his 171 that night and even included a step-by-step instruction on how to build a house. Id. Stevens was so impressed with the instructions that he asked Mr. Scott for a copy to help him build a house. Id. Mr. Stevens remembers that he told Mr. Scott to "update" his 171 and confirms that Mr. Scott prepared an excellent instruction for building a house. ("He had a very well written layout of how you basically construct a house. I was so impressed with that I asked him to give me a copy of it.") 20 T.T. at 132-33. 210. About two weeks after his application for a woodworker position, Mr. Scott was told by Stevens that Kay Marti at CPD had said that he was ineligible. 9 T.T. at 14. Mr. Scott went to see Mrs. Marti: So I immediately went over to CPD to talk to Miss Kay Marti. And I walked in, I asked her, I ask, Miss Kay Marti, I would like to know is all of this that's going on, is this going on my records, you saying that I'm not eligible, I want to know if it's going on my record. She went back, she came back, she said, I cannot find your record. Say, Give me — put in another 171. I say, I have put in a 171, I would like to know where is it, what happened to it. She went back and she came back with the 171 and said that she 87 would let me know. Then she called Mr. Steven [sic] and told him I was eligible as a woodworker. 9 T.T. at 14. 211. The strip shop was "practically all blacks." 8 T.T. at 24 (Sneed). 212. Ulysses Shuman has worked at NARF from 1959 to the present. 8 T.T. at 91-92. He currently works as a WS-9 aircraft painter foreman. 8 T.T. at 92. Prior to coming to NARF, Mr. Shuman had approximately 10 years of experience painting automobiles, buses, trucks, motorcycles and other vehicles. 8 T.T. at 92. He gained additional painting experience while serving in the United States Army from 1953 to 1955, where he gained experience painting Army trucks, jeeps and barracks. 8 T.T. at 92-93. In the Army, Mr. Shuman served as a as squad- leader, supervising a crew of ten to fifteen men. 8 T.T. at 93. 213. Mr. Shuman was hired at NARF as a WG—6 aircraft cleaner, stripping aircraft and their component parts. 8 T.T. at 93. in 1961-62, while he was rated as a cleaner, Mr. Shuman was detailed to the paint shop for over a year. 8 T.T. at 93-94. The painting supervisors observed the high quality of his work and promised that Mr. Shuman would be promoted to a painter rating then next time the rate was available. 8 T.T. at 94. Three years later, in 1964, Mr. Shuman was promoted to WG-ll aircraft insignia painter. In 1968, he completed instructors' training school and became a certified instructor. In 1971-72, he helped 88 set up the painters7 instruction program. 8 T.T. at 98; 22 T.T. at 50 (Gonzalez). From 1976, he worked as an instructor, but was still paid according to his grade as a painter. 8 T.T. at 98. In 1979, Mr. Shuman was promoted temporarily to aircraft training instructor, and the position was made permanent in 1980. 8 T.T. at 97-98. 214. Mr. Shuman was sent on no field trips as a paint instructor, and only one as a painter. 8 T.T. at 99. Defendant's witness Mr. Gonzales testified that Mr. Shuman went on two field trips as a painter, although one was to an adjacent facility in Jacksonville. 22 T.T. at 29. White employees who went on field trips away from Jacksonville were promoted to foreman before Mr. Shuman. 8 T.T. at 99. 215. Mr. Shuman repeatedly requested snapper duties, both orally and in writing, but was rarely assigned, and for only brief periods. 8 T.T. at 100. White employees were more frequently assigned to snapper duties. 8 T.T. at 100. Defendant's witness Mr. Hunt confirmed that he did refuse to let Mr. Shuman snap in other shops. 22 T.T. at 185-86; D. Exh. No. 4176. Mr. Shuman was loaned only to the aircraft cleaning shop, where he was required to do work substantially below his grade. 8 T.T. at 100. White employees were loaned to shops with more advancement potential where they could learn new skills. 8 T.T. at 101. Mr. Gonzales testified that he would not allow any paint instructors, black or white, to go on field trips, 22 T.T. at 29, or to be detailed to other shops, 22 T.T. at 51-52, because he needed the 89 instructors to teach other employees. Mr. Shuman's duties as an instructor, however, apparently did not preclude him from being sent on details to the cleaning shop. 8 T.T. at 100. 216. Prior to 1974, Mr. Shuman's work performance evaluations did not reflect the high quality of his work. 8 T.T. at 101. Mr. Hunt, for example, characterized Mr. Shuman as an outstanding employee, but testified that he never formally rated Mr. Shuman as "outstanding". For several years, Mr. Shuman received ratings of only "highly satisfactory." 8 T.T. at 101. 217. Starting in 1974, Mr. Shuman received outstanding achievement awards for his work three years in a row. 8 T.T. at 101. D. Exh. No. 3178 (1973-74); D. Exh. No. 3179 (1974-75); D. Exh. No. 3T80 (1975-76) . Although 1977 was an exceptionally productive and active year for him, and his shop supervisor rated him "outstanding," the branch supervisor refused to award him the "outstanding" rating because he had already received it in the three prior years. 8 T.T. at 102; 22 T.T. at 58 (Gonzalez); see D. Exh. No. 3181. Although the specific descriptions of Mr. Shuman's work performance provided on 1977 evaluation forms were identical to descriptions provided on 1976 forms, compare D. Exh. No. 3181 with D. Exh. No. 3180, the numerical scores assigned to that performance in 1977 were one point less favorable in each of three categories - amounting to the precise total number needed to disqualify Mr. Shuman by one point from receiving another "outstanding" award. 90 218. Mr. Shuman testified that segregation of break rooms for employees at NARF persisted through 1975, 8 T.T. at 102, and that even after the signs designating race were removed, segregation persisted. 8 T.T. at 103. For example, when a black employee tried to serve himself coffee in the white employees7 break room, because coffee was not available in the black employees7 break room, supervisor Raleigh Bryant told him the get back where he belonged. 8 T.T. at 103 (Shuman) . Once the black employees7 break room was closed, all the employees used the room previously used exclusively by the white employees, but the lockers were used in a segregated pattern, with white employees on one side of the room and black employees on the other. 8 T.T. at 104. 219. In 1973, Mr. Shuman applied for a promotion to paint shop supervisor. 8 T.T. at 104. The section supervisor had recommended Mr. Hoffman, a white employee for the job, see D. Exh. No. 289/dl, and he directed Mr. Shuman to paint Mr. Hoffman's name on a sign for the shop supervisors7 office door. 8 T.T. at 104. The Commanding Officer ultimately selected not Hoffman, but Charley Sneed, a black employee, for the supervisor job. 22 T.T. at 38 (Gonzalez). The section supervisor directed Mr. Shuman to take down the sign with Mr. Hoffman's name on it, but did not direct Mr. Shuman to paint a sign for Mr. Sneed. 8 T.T. at 105. 220. In 1977, Mr. Shuman again applied for a temporary shop supervisor job. 8 T.T. at 105. Again he was passed over for the 91 promotion, this time in favor of Rufus Lewis, a less experienced white painter. 8 T.T. at 105; 22 T.T. 70 (Gonzalez). 221. In 1979, and again in 1982, the shop supervisor position opened up, but Mr. Shuman did not apply for the position because he was applying instead for a promotion to aircraft training instructor. 8 T.T. at 107. Additionally, in 1982 the branch supervisor, Mr. Gonzalez, informed Mr. Shuman that another employee was already slated for the supervisor job. 8 T.T. at 107. In 1984, Mr. Shuman applied for a shop supervisor position, and was passed over in favor of Mr. Grant Richardson, a white employee with seven years of painting experience, in contrast to Mr. Shuman's experience of over twenty years. 8 T.T. at 108. Mr. Shuman filed an EEO complaint protesting his non-promotion to supervisor, and was promoted to WS-9 Aircraft Painter Foreman in 1986, retroactive to 1984. 8 T.T. at 108-109. He was only the second black employee to be promoted to supervisor in the paint shop, 22 T.T. at 88 (Gonzales) , and he supervised a primarily white work force there. 23 T.T. at 10-11 (Hunt). 222. It was the established policy that a new shop supervisor be escorted to his work area and introduced to the shop employees. 8 T.T. at 111-12. Mr. Shuman had personally observed such procedure in at least ten cases during his 27 years in the paint shop. 8 T.T. at 111. When he was promoted to shop supervisor, however, Mr. Shuman was merely told where his shop was located, and left to find his own way and to introduce himself to the men he would supervise. 8 T.T. at 109-12. 92 223. As shop supervisor, Mr. Shuman had a work leader working directly under him assisting him in supervising the paint shop employees. 8 T.T. at 110-11. With the knowledge of higher management, Mr. Shuman's white work leader, Gene Rose, refused to cooperate with Mr. Shuman, and routinely undermined his authority. 8 T.T. at 112-120. Mr. Rose had served as temporary foreman in the paint shop for approximately a year prior to Mr. Shuman' s placement there. 23 T'.T. at 9 (Hunt) . Mr. Rose and two other white employees, Mr. Westover and Mr. Bennie, were particularly hostile to Mr. Shuman. Many problems occurred during the period Mr. Rose acted as work leader under Mr. Shuman. Mr. Rose slowed work preparing an aircraft so that it was not ready for a scheduled Quality Assurance inspection. 8 T.T. at 113. He then falsely blamed the inefficiency on Mr. Shuman. 8 T.T. at 113; 23 T.T. at 13-16 (Hunt); see D. Exh. No. 4155 (May 19, 1986 memo from Ulysses Shuman to Julian S. Hunt, Jr.). Mr. Rose repeatedly obstructed the work of Quality Assurance inspectors. 8 T.T. at 121, 122. See e.q.. D. Exh. No. 3229 (June 18, 1986 memo from Ulysses Shuman to Gene Rose). 224. One morning, upon returning to his office from a meeting, Mr. Shuman found a toy alligator on his desk along with a note reading "Nigger, get out of this shop, we don't want you here." 8 T.T. at 115. Soon thereafter he found graphite grease on his doorknob. 8 T.T. at 115. He also found sticky sealant on his office chair. 22 T.T. at 197-99 (Hunt). Within two months of his promotion to supervisor, Mr. Shuman entered’, his office to 93 use the phone and found a hangman's noose hanging beside the telephone adjacent to his work space. 8 T.T. at 124; 22 T.T. at 144-45. The NARF investigation concluded that the noose was directed not at Mr. Shuman but at a white employee whose work space was next to Mr. Shuman's. 2 2 T.T. at 14 6; D. Exh. No. 4161. The investigation was conducted by Mr. Ingle, a white section supervisor who had previously reprimanded Mr. Shuman for clocking out two minutes early, 23 T.T. at 19 (Hunt), and against whom Mr. Shuman had made EEO complaints. 22 T.T. at 152 (Hunt). 225. Approximately one month later, Mr. Shuman discovered that Mr. Bennie and Mr. Westover had done a clearly inadequate job priming an aircraft to be painted. 8 T.T. at 116. Mr. Shuman had them re-^>rime the aircraft, and then- signed leave slips for them and let them go for the remainder of the day. 8 T.T. 116. The men then complained on the captain's hotline that Mr. Shuman had forced them to work on their leave time, and Mr. Shuman was suspended for fourteen days. 8 T.T. at 116-17. The suspension was based on a NARF finding that the cause was an unintentional error on Mr. Shuman's part in filling out unfamiliar time recording documents. 22 T.T. at 213 (Hunt). The suspension was recommended by Mr. Ingle. D. Exh. No. 4158. When Mr. Shuman complained to the Labor Relations specialist, Linda Anderson, about the suspension, Ms. Anderson was not responsive. Instead, she told Mr. Shuman to go to Mr. Ingle, 21 T.T. at 112-13, notwithstanding the record of conflict between the two men. After Mr. Shuman appealed the suspension, it was reduced from 94 fourteen days to three. 8 T.T. at 117-18. Mr. Shuman filed a complaint to protest the suspension, but his complaint has not yet been resolved. 8 T.T. at 118. 226. In Mr. Shuman's 30 years of experience in the paint shop, he knows of no other supervisor who was cautioned, reprimanded or suspended due to problems with employees' time records. 8 T.T. at 182. A witness for the defendant testified that there had been two incidents in which supervisors in other shops were suspended for fourteen days, in each case for intentional falsification of documents. 21 T.T. at 91-92 (Anderson). 227. Mr. Westover and another employee made a false report against Mr. Shuman alleging that Mr. Shuman had stolen government property. 8 T.T. at 118-19, 127. Investigators took Mr. Shuman to his home and searched it, but found not a single item of government property. 8 T.T. at 119. A. [Shuman] Yes. After that Mr. Ingle called me down to his office one morning and he said, Mr. Shuman, through the captain's hot line we have got a report that you have been stealing Government property. And he said, Detective Bennie would like to see you at the main gate. So I went to the main gate to see Detective Bennie. Detective Bennie repeated the same thing that M. Ingle had. He said, Mr. Shuman, I'm going to have to take you home to your house to investigate your home to see whether or not you have any Government property stored into you house do you have any objections? And I said, No. I didn't ask him if I was under arrest; I assumed that I was. So he took me home, him and another detective? I do not know his name. When we got to my house they got out first, they opened the back door of the car, let me out. All of my neighbors standing out looking at me. 95 So, anyway, we went on into the house. I opened up the house, they went all through my house. They could not find not one pencil. So after the investigation they put me back into the car, they brought me back into the Naval Air Station and they said, Okay, Mr. Shuman, you can return to work. 8 T.T. at 118 (line 21) - 119 (line 18). 228. Mr. Shuman repeatedly wrote to his supervisors to complain about Mr. Rose's failure to cooperate as work leader. 8 T.T. at 120; see D. Exh. Nos. 4155, 3229, 3230. Mr. Rose refused to recognize Mr. Shuman's authority, instead contacting Mr. Richardson, a white supervisor of the shift that alternated with Mr. Shuman's, regarding problems on Mr. Shuman's shift. 22 T.T. at 203 (Hunt). Management supported Mr. Rose, although the Quality Assurance Department told management that Mr. Rose was wrong about a dispute with Mr. Shuman, and management had to send a formal apology to Quality Assurance for Mr. Rose's behavior and admitting Mr. Shuman was correct. 2 3 T.T. at 13-16, 3 3-36 (Hunt). Management also cited Mr. Shuman for inspecting work on an airplane fuselage without wearing a painter's harness, although other foremen,' including NARF's management witness, Mr. Hunt, did the same. 23 T.T. at 22-23. Ultimately, management decided to resolve the problem by transferring Mr. Shuman, instead of Mr. Rose, 8 T.T. at 120. No special cause would have been required for the transfer of Mr. Rose. 23 T.T. at 18 (Hunt). 229. Mr. Shuman suffered a great deal of stress from the both failure of Mr. Rose and the employees he led to cooperate with 96 him, and from the failure of higher management to assist him in resolving problems in his shop. 8 T.T. at 124. See e.q. . D. Exh. No. 3225 (May 28, 1986 Memo from Julian S. Hunt, Jr. to Ulysses Shuman stating that "you should be able to use effective supervisory leadership to correct Mr. Rose); D. Exh. No. 3230 (July 15, 1989 memo from Ulysses Shuman to Linda Anderson re: awaiting Ms. Anderson's reply to June 18, 1989 letter). 230. Black personnel at NARF frequently were told that they were unqualified for jobs for which they had not yet applied and been formally evaluated. 22 T.T. at 32 (Gonzalez). Class member Bowman's inability to gain experience snapping for the section supervisor discouraged him from seeking promotion to a position higher than cleaning shop supervisor. 3 T.T. at 56-57, 80-81, 96. 231. Class member Lawrence Mack, a highly trained WG-11 Maintenance Machinist, was discouraged from applying for a supervisory position in 1984-85, when his foreman, the selecting official ? Mr. Stevens, told Mr. Mack, "I am a redneck and a bigot". 9 T.T. at 37; 39. Under the circumstances, Mr. Mack believed it would be futile for him to apply for the supervisory job. 9 T.T. at 37-39. 232. In 1988, when a supervisory job again opened up, Mr. Mack was again discouraged from applying. While he had previously been rated equally with other machinists, when it became clear that certain of his co-workers would be applying for the supervisory position, Mr. Mack began to receive slightly lower 97 The supervisor gave other workersratings. 9 T.T. at 39-40. higher ratings to improve their opportunities for promotion. 9 T.T. at 40. FAILURE TO ADHERE TO MERIT PRINCIPLES AND REGULATIONS 233. In 1973, the U.S. Civil Service Commission found that "[m]erit principles and/or regulations are not being adhered to fully in promotion actions, "citing problems concerning planned management action, promotion of employees who failed to meet basic qualifications, use of detailing to qualify candidates, the failure to expand the area of consideration and the identification of the minority status of minority employees on promotion certificates. P. Exh. No. 1 at 13-14. 234. As late as 1976 and 1977, the Affirmative Action Plans found that "[a] number of employees are assigned to positions which do not fully utilize their skills" and that action was needed by department superintendents and the Civilian Personnel Office to "[c]ounsel employees regarding local merit promotion procedures and kinds of jobs for which qualified." P. Exh. No. 5 at 6, P. Exh. No. 6 at 15. 235. Deputy EEO Officer Ware observed that NARF's failure to adhere to merit principles and regulations had a disparate impact on the promotional opportunities of black employees. 1 T.T. at 165-66 (Ware). 236. The need for "[i]ncreased emphasis" to place blacks "within selection range on CSC certificates and merit promotion 98 •• ■«•. - ̂ C . - - V VtS— -..i - - l V ' ■uj'iV.l'* certificates" was found to be a "problem" in NARF's Affirmative Action Plans for 1974, 1976, and 1977. P. Exh. No. 2, February 1973 AAP at 3, June 1973 AAP at 4; P. Exh. No. 3, Part C at 6; P. Exh. No. 5 at 8; P. Exh. No. 6 at 17. 237. The June 1973 Plan instructed department superintendents to "[cjonduct a study to determine why . . . [blacks] are not coming within selection range on CSC and merit promotion certificates, or if they are within selection range, why they are not being selected" and to "initiate appropriate action to overcome deficiencies found". P. Exh. No. 2, June 1973 AAP at 6. The same instructions were included in the 1974, 1976, & 1977 Plans. P. Exh. No. 3, Part C at 7, P. Exh. No. 5 at 8, P. Exh. No. 6 at 18. 238. NARF has discretion to fill a permanent vacancy when a particular task needs to be accomplished. Rather than promote blacks to such positions, the NARF would detail them without pay and thus deprive them of promotional opportunities. 239. Marcus Ellison, although a GS-7, was performing the work of a GS-8 control center manager for nine months without pay. 7 T.T. at 52—54. Not until he complained did he receive compensation. P. Exh. No. 50. No vacancy was announced for the position while Mr. Ellison was performing the duties until after he complained. P. Exh. No. 46. 240. Irene Vanderhorst was hired as a GS-3 clerk-typist. She was told that this was all the was available. She was assigned as a GS-5 secretary to the branch chief, Mr. Barilla. 10 T.T. at 12- 99 13. She received an outstanding evaluation from Mr. Barilla. 10 T.T. at 49-50; P. Exh. No. 278. Among his comments concerning her performance were: "Quick to grasp all essential elements of the position." "Needs only to be shown or told one time." "Can be counted on to get the job done; willing to expand extra effort to learn all phases of the job." The position was never opened as a vacancy while Mrs. Vanderhorst was encumbering it. Mrs. Vanderhorst was next detailed to work as a secretary for Mr. Worthington in a GS-4 position. This position was not announced while Mrs. Vanderhorst was tencumbering it. ■ 241. Abraham Scott was permanently assigned as a WG-5 equipment cleaner in 1977 when he was detailed for 130 days to a WG-6 tool and parts attendant. 8 T.T. at 19 5-97. When he complained and asked to be paid the commanding officer held that he should be paid only for the last ten days. P. Exh. No. 237. Mr. Scott became a permanent WG-6'in 1979. 8 T.T. at 195. FAILURE TO INCLUDE BLACKS ON RATING PANELS 242. The 1974 Plan found, as a "problem or objective", the need to "[i]mprove representation of [blacks] . . . on boards and committees, and insure that their functions are meaningful and significant,". p. Exh. No. 3, Part C at 2. 100 243. The 1976 Plan required that department superintendents assign "[q]ualified . . . [blacks] . . . to serve on Merit Promotion Rating Panels". P. Exh. No. 5 at 8 244. The 1977 Plan stated that " [q]ualified [blacks] will be assigned to serve on Merit Promotion Rating Panels". P. Exh. No. 6 at 17. 245. The EEO office recommended to the Commanding Officer that it designate qualified blacks to serve on merit promotion rating panels as EEO observers. Initially, the recommendation was accepted for three years and then the policy was rescinded by a new Commanding Officer so that the EEO office could no longer recommend representatives. 1 T.T. at 170-72 (Ware). 246. Initially, the representative was an observer who was not a voting member of the panel. Then, one of the regular members of the panel was designated by management as the EEO member responsible for ensuring that discrimination did not occur. 17 T.T. at 19 (Marti). 247. Ms Guy, the Deputy EEO Officer for the 1980-88 period, recommended that blacks should serve as voting members and not merely as observers. Her recommendation was not accepted and the EEO office had no role in selecting employees to be observers. They were selected by management, where the job was located or by the selecting official. The EEO office merely provided a five minute briefing. 2 T.T. at 88-89 (Guy). 248. Deputy EEO Officer Guy observed that blacks continued not to serve on rating panels. She recommended that blacks be assigned 101 to panels because blacks were being screened out for promotion in the rating process. 2 T.T. at 76, 88 (Guy). 249. Supervisors who prepared an employee's supervisory appraisal or performance evaluation were permitted to serve on the employees's promotion panel. 17 T.T. at 9 (Marti). 250. The Navy's personnel expert encountered serious infractions requiring the convening of a new rating panel several times. The infractions involved panel members discussing personal information about an employee and panel members passing rating sheets among each other. 17 T.T. at 20-21 (Marti). 251. Although he was a aircraft equipment foreman from 1961, class member Bowman did not serve on any rating panels to fill permanent positions until 1971. 3 T.T. at 45-46 (Bowman). 252. Although class member Bowman was certified by the Civil Service Commission to rate applications for positions in all aircraft trades in 1977, P. Exh. No. 139, he was permitted to serve only on panels to rate aircraft equipment cleaning employees. 3 T.T. at 46-47 (Bowman). 253. Class member Lawrence Mack, a highly trained WG-11 Maintenance Machinist, was not allowed to serve on rating panels m his craft, while white machinists of similar grade were so assigned. 9 T.T. at 40-41. when he participated on panels in the capacity of EEO observer, he was not shown the papers under review, nor was he permitted to participate in the discussion. 9 T.T. at 42. 102 254. Notwithstanding Mr. Robinson's experience as a graduate apprentice and years of service as a. WG-11, Radio Mechanic, Mr. Robinson did not serve as a voting member of any rating panels. 11 T.T. at 21. FAILURE TO IMPLEMENT AN EFFECTIVE UPWARD MOBILITY PROGRAM 255. The need to "[djevelop an upward mobility program that will provide for full utilization of skills and for development of employee potential" was found in NARF's 1973 Affirmative Action Plans. P. Exh. No. 2, February 1973 AAP at 3, June 1973 AAP at 4. 256. According to the 1974 Affirmative Action Plan, "[p]otential rather than experience and education would be the major factor considered in filling upward mobility positions." P. Exh. 3, Part C at 6. The 1976 Plan stated that: Selections for [upward mobility] positions must be based on assessment of potential rather than experience and education and must be followed by development of individual training plans for selectees. P. Exh. No. 5 at 7. 257. The 1977 NARF Affirmative Action Plan found that "[s]upport of the Upward Mobility Program (UMP) on a facility wide basis appears to be in decline" and needed "to be improved on a facility-wide basis." p. Exh. No. 6 at 31. 258. NARF'S 1978 Affirmative Action Plan stated that "[t]here is considerable misunderstanding and confusion concerning the Upward Mobility Program at this activity, and this has resulted in 103 limited management support and employee interest. P. Exh. No. 11, Part C at fourth unnumbered page. 259. NARF reported in its 1978 Affirmative Action Plan that "[c]oordination is needed between management officials, the civilian personnel staff and the EEO office to systematically identify those jobs which may be appropriately filled through the Upward Mobility Program." P. Exh. No. 11, Part C at fourth unnumbered page. 260. Upward Mobility Program positions did not require experience or qualifications. 1 T.T. at 132 (Ware) 2 61. The Upward Mobility Program was supposed to be the major program to overcome problems of blacks in dead end positions. It * allowed managers to certify blacks into training positions as a bridge to higher level jobs. White employees, however, received most Upward Mobility Program promotions. 1 T.T. at 131-132 (Ware). The Program did not provide much opportunity for blacks in Deputy EEO officer Ware's opinion. Id. at 133. 262. Class member Beverly George repeatedly sought and was denied upward mobility jobs outside of the cleaning shop. 4 T.T. at 44- 48. She applied and was found qualified to work as a metallizer, 4 T.T. at 45; see P. Exh. No. 154? D. Exh. No. 422/el, as a bearing reconditioner, 4 T.T. at 45; see P. Exh. No. 152, and as an aircraft mechanic, 4 T.T. at 45, 47; P. Exh. No. 155; D. Exh. No. 1493, but received none of those positions. 263. Class member John Grier worked on and off as a snapper in the cleaning shop for approximately ten years. 3 T.T. at 144-45. 104 During this period he regularly sought to work outside the cleaning shop, applying for a merit promotion as an aircraft worker, see D. Exh. No. 1581, and for an Upward Mobility position as a metallizer, see D. Exh. No. 1582, but was denied both positions. 3 T.T. at 145. See D. Exh. Exh. No. 1590. The certificate of employees eligible for promotion to metallizer indicates that Mr. Grier was highly qualified for this position, however he was not selected. Mr. Grier was tied for first place on the certificate of eligibles for the aircraft worker job, however that certificate was cancelled. 21 T.T. at 38 (Barilla). 264. Class member John Grier worked for thirty two years at the NARF, 3 T.T. at 141, and despite the fact that he had the attributes of an ideal candidate for the Upward Mobility Program, he was never included in the program. He applied for an Upward Mobility position as a metallizer, see D. Exh. No. 1582, and although the certificate of employees eligible for that position indicates that Mr. Grier was highly qualified for it, see D. Exh. Exh. No. 1590, Mr. Grier was not selected for the job. 3 T.T. at 145. This was so notwithstanding his high supervisory ratings in just the attributes, such as motivation and potential to develop new skills, that would lead to success in the Upward Mobility Program. Exh. No. 1588 at 4 (Adams); 3 T.T. at 75-77 (Bowman). Mr. Grier ended up spending his entire career in the "dead-end" aircraft cleaning shop, where the highest grade he attained was WG-6. 3 T.T. at 142. 105 265. Class member Sylvester Bailey had very good potential to work in upward mobility positions, 3 T.T. at 77-78 (Bowman), but was never assigned to the Program despite repeated applications. In 1973, Mr. Bailey applied for and was denied an Upward Mobility Position as a painter. 3 T.T. at 164, 167. In the early 1970's, he applied for and was denied an upward mobility position as an electroplater. 3 T.T. at 164. He was denied that position notwithstanding that he had already demonstrated qualifications for electroplating: When he initially applied to NARF, Mr. Bailey had received a score of 91 on a test administered by NARF for the position of electroplating apprentice, but was not assigned to that position. 3 T.T. 162-63. T I FAILURE TO POST ANNOUNCEMENTS 266. According to the Deputy EEO Officer, sometimes vacancies were not posted in all areas or postings removed in other areas. 2 T.T. at 23-24 (Ware). Vacancy announcements were not advertised in the base newspaper when Ware held the Deputy EEO position. Id. 267. Job announcements were not posted by the Civilian Personnel Office. Printed announcements were supposed to be sent through Yard mciil for the shops as well as the official bulletin board by the print shop. 16 T.T. at 185-87 (Marti). 268. The Navy's personnel expert is unable to contradict the testimony of anyone testifying that an announcement was not posted. 17 T.T. at 43 (Marti). 106 FAILURE TO CORRECT SUPERVISORY APPRAISAL FORM 269. According to the Navy's personnel expert, supervisory appraisals prepared by applicants were inflated and rating panels did not put much stock in them, although Office of Personnel Management required raters to consider them. 16 T.T. at 77-78 (Marti). Annual performance evaluations were more restrained because they were required to be approved by higher levels of management. There were a lot of comments about inflated supervisory appraisals during rating panels the expert sat in on id. at 179 and particular supervisors who gave particularly inflated appraisals. Id. at 180. 270. According to the Navy's personnel expert, an employee was supposed to attach a copy of a supervisory appraisal, but if he or she did not, the application was accepted and rated. 16 T.T. at 183 (Marti) . If an appraisal was not submitted, the expert observed that the panel members assume the appraisal was bad. Id. 271. The Navy's personnel expert testified that she was not aware of any effort made during the 1973-82 liability period to make the supervisory appraisal a more accurate measure of performance or potential. 17 T.T. at 10 (Marti). FAILURE TO REVISE JOB QUALIFICATIONS 272. The June 1973 Affirmative Action Plan required department superintendents and the civilian personnel office to "[rjeview qualifications requirements to insure they are realistic, i.e., 107 does the job truly require typing, shorthand, professional skills, etc. Review jobs for possible restructuring and bridging actions". P. Exh. No. 2, June 1973 AAP at 5. The 1974 Affirmative Action Plan required department superintendents and the civilian personnel office to "[r]eview job qualification requirements to insure they are realistic. Insure that the jobs reviewed require the skills requested." P. Exh. No. 3, Part C at 6. 273. Deputy EEO Officer Ware proposed that qualification requirements for jobs should be reviewed to eliminate unnecessary requirements, but unnecessary requirements were eliminated only on some jobs 1 T.T. at 172-73 (Ware) . An example of unnecessary qualification criteria is the apprenticeship program, which screened out blacks because of unnecessarily high mathematics test requirements. Id. at 175- 76. FAILURE TO RESTRUCTURE JOBS TO ELIMINATE DEAD END POSITIONS 274. The 1974 and 1976 Affirmative Action Plans found that: A need exists to provide career ladders for current employees. Dead-end positions should be eliminated by restructuring when possible." P. Exh. No. 3, Part C at 6; P. Exh. No. 5 at 8. Department superintendents and the civilian personnel office were instructed to "[ijdentify and restructure organizations/jobs to provide career patterns and to fully utilize skills and knowledge of employees." Id.. 108 275. The 1974 Affirmative Action Plan required all supervisors to "[r]estructure jobs to provide for upward mobility whenever feasible." P. Exh. No. 3, Part C at 4. The 1976 Affirmative Action Plan required all supervisors and the civilian personnel office to "[r]estructure jobs to provide for upward mobility whenever feasible." P. Exh. No. 5 at 5. FAILURE TO CURB THE HARASSMENT OF BLACK EMPLOYEES 276. Deputy EEO Officer Ware found nooses placed around NARF. 1 T.T. at 176). 277. Deputy EEO Officer Guy, who served from 1980 to 1988 reported incidents of racial harassment to management. She removed several nooses, 2 T.T. at 90-91, and the Commanding Officer removed a noose Id. at 91-92. 278. As late as fall 1987, after several nooses were found, the Commanding Officer issued a memorandum admonishing all NARF employees not to engage in racial harassment. 22 T.T. at 149- 50; D. Exh. No. 4040. 279. Several class members, including Dwayne Clark testified regarding harassment by supervisors and co-workers, including the use of the symbols "KKK" and hangman's nooses. 1 T.T. at 71-71. 280. Class member Neal was hired by NARF in 1973, as a GS-4, Production Control Aide. Prior to his hire, Mr. Neal served in the United States Air Force, attaining the rank of Sergeant, and, working in various military and civilian capacities obtained 109 supervisory experience, and an AA degree from Florida Junior College in Jacksonville, Florida. 10 T.T. at 64-67. 281. Mr. Neal began his career with the Navy working for the Naval Disposal Plant, in Jacksonville, a facility separate from the NARF, but at that time part of the Naval Supply System. Mr. Neal worked as a Material Identifier, WG-5, and applied for a position as a GS-5 Production Controller at NARF. 10 T.T. at 68. 282. Notwithstanding his experience, Mr. Neal was hired by NARF at the GS-4, level, the CPO office asserting that he was seven days shy of satisfying the time in grade requirement for the GS-5 position. Mr. Neal filed a complaint, alleging his treatment was from that afforded a white employee — Richard Walker— however, Mr. Neal was not granted the GS-5 position. 10 T.T. at 69-70. 283. Mr. Neal was harassed by his white supervisors, and his was unable to get the shop manager or foreman to address the activities of these supervisors. 10 T.T. at 70-72. This testimony was unrebutted by the defendant. 284. In 1974 Mr. Neal - became a member of a group called the Minority Employees of NARF, and in 1982, he became president of the organization. Mr. Neal testified that the purpose of the organization was work in an effort to achieve equal parity in jobs, assignments and promotions for black and minority employees. Mr. Neal stated that this was done by monitoring promotions that took place at NARF, and assisting employees having problems in this area; as well as meeting with 110 supervisors, and EEO personnel, and occasionally representing employees during EEO investigations of their complaints. 10 T.T. at 79-80. 285. Class member Neal testified regrading the fact that he never received an overall outstanding performance rating (3 0's) , notwithstanding the fact that white employees in his shop regularly received them. Mr. Neal noted that his performance ratings were only satisfactory, notwithstanding the fact he consistently met performance goals established by the Facility. 10 T.T. at 74. 286. The only explanation Mr. Neal ever received from his supervisor for his failure to award Mr. Neal anything greater than satisfactory, was Mr. Neal's activity as part of the Minority Employees of NARF. 10 T.T. at 75. 287. In 1977 class member Andre Neal and five other black employees applied for a GS-7 promotion. Thirteen whites, but no blacks were promoted. Mr. Neal then filed a complaint regarding the rejection of the blacks for promotion. Mr. Neal's initial rating was 78 or 79, and indeed no black received higher than 82. However, following the complaint and several months later, Mr. Neal's application was re-rated, and scored this time as 96.9. In 1978, Mr. Neal received the promotion to GS-7. 10 T.T. at 75- 78. The re-rated SF-171 submitted by Mr. Neal was identical to prior SF-171 that had been rated in the high 70's. 10 T.T. at 8 8. Ill 288. Following his election as president of the organization, Minority Employees at NARF, the harassment of Mr. Neal significantly increased, as he received his first unsatisfactory performance rating, and was subsequently demoted from GS-9 to GS- 7, which made him ineligible to apply for and upcoming promotion to GS-11. 10 T.T. 81-84. 289. At the time of Mr. Neal's demotion, and when concerns were expressed regarding the quality of this work, Mr. Neal had been performing essentially the same tasks for two and a half years, under two other supervisors, and had consistently received appraisals of highly satisfactory. Mr. Neal subsequently regained his GS-9 rating, and at the time of trial was rated as a GS-9. 10 T.T. at 136-137. 290. Mr. Neal testified that announcements regarding meetings and activities of the organization, Minority Employees at NARF were frequently pulled off of facility bulletin boards or defaced. 10 T.T. at 84. 291. Mr. Neal was consistently denied training opportunities that would have enhanced his ability to obtain promotion. 10 T.T. at 81-82, 85, 107. 292. Mr. Neal applied for supervisory positions at NARF on eight different occasions, and while he was rated eligible on each occasion he was never awarded the position. 10 T.T. at 85-88. Mr. Neal, also testified that his experience at NARF was consistent with the complaints he heard from other employees in his capacity as president of the Minority Employees at NARF. 112 PRODUCTION CONTROL 293. The NARF has had a policy and practice of preventing blacks from becoming production controllers and from being promoted within the production controller classification. This policy has been effectuated by manipulation of the promotion system and by restricting blacks to other classifications where similar skills are required. 294. Two such areas to which blacks have been assigned are the WG classifications of production dispatcher and material expediter. In both of these positions, employees performed essentially the same tasks as production controllers: "Q. How does the job of a production controller differ from the job of materials expediter? A. Both are the same. You do the same work. I mean, we all work together. We work doing the same: work. We track parts; we induct parts; we clock parts in; we issue psrts to the shops. We all do the same thing." 4 T.T. at 7 6 (Hester) ; "Q. Now when you were a production dispatcher at this time, were you doing anything different from the GS-7 production controllers? A. No, doing the same — same work, same thing." 7 T.T. at 109 Singleton); See also 7 T.T. at 36 (Ellison). Both material expediters and production dispatchers were eliminated as categories: "Q. Okay. Earlier you had indicated that the production controllers and the material 113 expediters were doing essentially the same thing. Did anything happen after you had become a production controller to enforce that opinion for you? A. They eliminated all material expediters and changed everybody over to production controllers GS7s. So there was no longer material expediters at the plant." 4 T.T. at 83-84 (Hester). 295. The NARF did not originally have a classification of production controller. The first persons to occupy this position were aircraft mechanics who had been riffed to production dispatchers in 1954. Officials at NARF had gone to Alameda and observed the operation there. They decided to make aircraft mechanics with four years' experience at the journeyman level. All of the qualified mechanics except class member Singleton were transferred to the production controller category. 7 T.T. at 108- 109. 296. The production dispatcher classification became a predominantly black area. See e.g.. 9 T.T. at 167. 297. Production dispatchers were not even allowed to use their experience to qualify for controller positions. 7 T.T. at 36. There was considerable testimony of the inability of class members to get out of dispatcher positions. 298. Henry Singleton began with NARF in February 1947 as an aircraft mechanic helper, general. 7 T.T. at 102-03. 299. Henry Singleton had served in the Air Force from 1942 to 1946 and was a full-fledged mechanic for two years. 7 T.T. at 103-04. s 114 300. Singleton served as a journeyman aircraft mechanic from 1948 to 1954 when he was riffed to a production dispatcher position. 7 T.T. at 105-06. 301. Singleton was the only black aircraft mechanic caught in the RIF. 7 T.T. at 106 302. White mechanics, with at least four years as journeyman, who had been riffed were assigned to a new category, production controller (a GS-7 position) . Singleton remained as a dispatcher, WD or WG-6. 7 T.T. at 108-09. 303. Singleton did not reach the GS-7 level until 1975. 7 T.T. at 114-15. 304. Singleton applied for GS-5 position between 1970 and 1974, including applications after April 1973. ’He finally received a GS-5 in March 1974. 7 T.T. at 110. 305. White individuals were being assigned to GS-5 Production Controller positions for which Singleton was applying.[cite] 306. Singleton received his GS-5 without filing an application at a time when there was no announcement. The commanding officer, Captain Bowen talked to Singleton and that told the division superintendent to make Singleton a GS—7 immediately. The superintendent said that this couldn,t be done, but made Singleton a GS-5. One year later Singleton was made a GS-7. 307. It was not until 1973 that NARF converted production dispatchers to controllers as part of its affirmative action efforts because they were "performing substantially the same 115 duties at different rates of pay". P. Exh. No. 2 at Letter of Captain Yates, 11 May 1973, p.6. STATISTICAL PROOF OF DISPARATE TREATMENT SUMMARY OF STATISTICAL PRESENTATION Both parties in the case presented extensive statistical evidence. The totality of this evidence clearly leads to three uncontroverted conclusions: 1) The pervasive subjective decision making process caused a large statistically significant shortage of job advancements for black employees. 2) The shortage of job advancements for black employees was. caused specifically, in large part, by the merit system promotional opportunities through which black employees were statistically significantly deprived of both immediate promotions and entry into programs which were intended to provide more rapid subsequent promotions. 3) Neither the shortage of black employee advancements, generally, nor the shortage of merit system black employee placements, specifically, was attributable to a lack of job openings or to a deficiency in the prior training and experience of the black employees. A. Plaintiffs showed that black employees received statistically significantly fewer job advancements than similarly situated white employees. (see Iff 26-33). NARF attacked the accuracy of the data base which it had supplied to the plaintiffs, but was able to identify only one alleged error which 116 would have been included in any of the plaintiffs analyses and was unable to identify even one analytical result which would have been the product of alleged errors. (see ff 22-25) B. Plaintiffs showed that the same large statistically significant shortage of black job advancements was obtained when the plaintiffs defined employee qualifications in terms of pay plan, pay grade, and occupational series, the definition of skill level or qualifications which had been adopted by the defendant, and used the statistical computer program which had been written for and used by NARF. (see fH 153-157). NARF proffered no criticism of this analysis. C. Both parties agreed that black employees predominantly held lower paying positions, (see ff 14) D. Both parties agreed that merit system promotions, accounted for approximately one-half of all job advancements. a (see 1f 1f 37 — 39) . NARF itself showed that merit promotions, including promotions into upward mobility and apprentice programs and movements out of such programs, caused a statistically significant adverse shortage of black placements. (see para, nos. 79-84, 86-88). Both sides agreed that NARF's showing was based only upon approximately one-half of the actual competitive placements, the vast majority of the placements not included being placements of white employees. (see ff 67-68). NARF also showed that upward movements within the career ladder and apprentice programs accounted for more than one-half of all noncompetitive placements (see HI 100-104), and that these 117 upward moves within the career ladders and apprenticeships did not contribute to the general shortage of black job advancements, (see 102, 105). Both parties, however agreed that the parity of black and white upward movements within the career ladder and apprentice programs was not inconsistent with a shortage of black employees entering the career ladder and apprentice programs or a shortage of black promotions after leaving the career ladder and apprentice program. (see 102-103). E. Merit system competitive promotions were not only responsible for a shortage of black upward movements, but also caused additional shortages in black upward movement by serving as a barrier to black employees competitively entering the career ladder and apprentice programs, which often led to subseguent upward moves. (The defendant's merit system promotional opportunity analysis included the competitive promotional opportunities for entry into the career ladder and apprentice programs.) F. The potential multiplier effect of these merit system promotions, the fact that NARF's results were produced by only one-half of the actual merit system competitive placements, the applicant flow rate of black employees for the competitive promotional opportunities (see 89-90) , and the failure of NARF to include many moves from the FWS pay system to the GS pay system in its analyses (see f 94), together explain the only apparent inconsistency between the statistical results obtained by the plaintiffs and NARF. Plaintiffs obtained more 118 than twice the number of standard deviations for the shortage of black job advancements than did NARF for the shortage of black placements in the merit system promotions. The apparent discrepancy is only in the size of the shortage, and is reconciled by the fact that the plaintiffs' analyses included all the immediate and consequential shortages directly caused by the merit system shortage of black placements and NARF's analyses did not. (see f 158). G. NARF not only failed to demonstrate the validity of the merit system selection procedure (see 118-129), but totally failed to offer a nondiscriminatory explanation for the shortage of job advancements for black employees. NARF attempted to explain the large statistically significant shortage of black job advancements by arguing that black employees lack the necessary prior experience for advancements to higher level jobs. NARF not only failed to show that black employees had less prior experience than white employees, but actually showed that employees in lower level jobs had the same prior experience as employees in higher level jobs. (see 131-148) H. NARF also attempted to show that job advancement was infrequent for all employees? however, NARF's own data showed that the majority of employees did receive at least one job advancement during their period of employment. (see 149- 152) I. NARF made two attempts two show that qualified employees were the ones who obtained job advancements; however, 119 the defendant actually succeeded in showing that although qualifications may be a path to advancement for white employees, qualifications are not a path to advancement for black employees, (see 159-169) STATISTICAL METHODS EMPLOYED 1. Plaintiffs' principle statistical analyses were conducted by creating a computer work—file which contained each employee's position at the end of each year, or, therefore in effect, the beginning of each next year. The analyses compared the positions in which black and white employees began each year with the positions in which they ended each year. 6 T.T. at 78. 2. Chi-square, in which the proportion of black and white1 employees selected and not selected are compared, is the conventionally accepted statistical method for analyzing the data in 2X2 contingency tables. . 21 T.T. at 60-61. 3. The standard cutoff for statistical significance is the 5 percent two-tailed value. This is 1.96 on the normal curve. 14 T.T. at 39. NARF's expert testified that it isn't as though 1.95 was very different from 1.97, but you have to draw a dividing line someplace and that is the standard one to draw. 14 T.T. at 40. A chi-square value of 3.84 corresponds to a 1.96 value of z for five percent two-tailed. 15 T.T. at 65. 4. The values of z and the square root of chi-square, calculated from a 2X2 table, never differ from each other. The exact probability may differ from the probability associated with 120 the chi-square and z if the expected frequencies are small. 24 T.T. at 61-62. 5. NARF's expert witnesses used a computer program called MULTEVENT for their statistical analyses. 13 T.T. at 40. 14 T.T. at 6. NARF's expert witnesses were unable to identify any refereed publications in which their computer program was discussed. 13 T.T. at 78; 25 T.T. at 135. 6. When the number of pools and selections was very large, it made almost no difference whether the statistical test calculated by the MULTEVENT program was the Mantel-Haentszel z-value or the hypergeometric distribution exact probability. 14 T.T. at 14-18. 7. The defendant's expert witnesses all became aware of the computer program MULTEVENT through the Navy. 15 T.T. at 12-13. The holder of the litigation support contract, Psychological Services, Inc., had never used the computer program MULTEVENT prior to working on this case. 19 T.T. at 116-117. 8. The MULTEVENT computer program is relatively new. Defendant's expert had not used MULTEVENT before. 15 T.T. at 14. To satisfy himself that, MULTEVENT was giving the correct results, defendant's expert felt it necessary to conduct several test examples of the MULTEVENT program, which he would not have felt necessary if he had been using a standard program for chi-square, the normal approximation, z, or Fisher's Exact Test. However, he did not check the results from the actual data used in his reports, or the calculation of ESND, the statistical procedure which is unique in MULTEVENT. 15 T.T. at 14-16. 121 9. The development of MULTEVENT was underwritten by the Office of General Counsel, Department of the Navy, which represented NARF in this proceeding. 15 T.T. at 18. D. Exh. No. 4174, at iv. D. Exh. No. 4173, at 2. The developers of MULTEVENT had checked the program's results by comparing them to the results obtained by MULPOOLS, another program underwritten by the Navy's Office of General Counsel. 15 T.T. at 21. D. Exh. No. 4172, at 24. The MULTEVENT validation report written by the defendant's experts was dated March, 1988. 15 T.T. at 19. 10. Defendant's expert witness testimonial exhibits contain statistics that are represented to be the standard normal distribution statistic, z, are inaccurate. The statistics in question were actually neither z with correction or z without correction, but were ESND, the Equivalent Standard Normal Deviate. 14 T.T. at 168. ESND lies between the z-value without correction and the z-value with correction when there are large enough pools to have reasonable normality assumptions. 15 T.T. at 38-39. 11. There were no known journal articles which refer to MULTEVENT or its procedure of using ESND, the Equivalent Standard Normal Deviate, as though it reflected an exact two-tailed probability. ESND, like the z approximation, required the assumption that the probability distribution was symmetrical. The ESND statistical procedure used by NARF was created and financed by the Navy for the specific purpose of employment discrimination 122 litigation and has never been proposed for use in any other context. 24 T.T. at 62-63. 12. NARF's expert witness agreed that ESND is, in some sense, an artifact and that he understood why someone might object to its use. 25 T.T. at 7-8. 13. The Mantel-Haenszel statistic calculated by MULTEVENT yields a smaller value than that obtained from the conventionally used Pearson's chi-square because the Mantel-Haenszel equation divides the denominator by the value (N2)x(N-l) and the conventional method divides the denominator by the value N3, where N equals the number of candidates in the pool from which placements were to be made. If the pools were large the difference between the two equations would have been small. However, if the individual pools were small, then the difference would have become considerable when the aggregate result was obtained from the summation over the individual pools. 24 T.T. at 86-87. NARF's expert witness agreed that pools should be fragmented as little as one can. 25 T.T. at 61. > WORK FORCE PROFILES 14. In each of the years 1969 to 1979 Black employees were in lower pay grades than were White employees. 6 T.T. at 68. This pattern persisted from 1979 through 1982, the remainder of the time period for which data were presented. 6 T.T. at 85. P. Exh. No. 10MM. The same pattern of Black employees concentrated in the lower pay grades and the WG pay plan was showh for the period 123 April 1, 1973 through December 31, 1982. D. Exh. No. 8D, at Tables D-7 and D-8. Defendant's expert agreed that the percentage of Blacks in lower grade levels was higher. 14 T.T. at 156. 15. The numbers in the plaintiffs' and defendant's work force profiles did not precisely correspond because the plaintiffs counted employees in the position they were actually holding at the end of each year and the defendant counted employees in the position to which they were permanently assigned at the end of each year. 24 T.T. at 42-43. THE PLAINTIFFS' DATA BASE 16. Plaintiffs' used data from NARF's computerized PADs data base to perform their studies. NARF's expert witnesses criticized the computerized PADS data base which NARF regularly used for its own internal equal employment work force analyses, ipal ly because the PADS data base was incomplete in the nature-of-action codes. 11 T.T. at 95. Plaintiffs' expert explained that the plaintiffs' movement analyses had been conducted in a manner which avoided the need to use the nature- of-action codes as a variable in the analysis. 6 T.T. at 136-137. The defendant, likewise, did not use the nature-of-action code in its analyses from its reconstructed litigation base because of the inability to uniquely specify the nature of actions in the official personnel files. 13 T.T. at 11. 17. The PADS data base was the Navy's data base. 17 T.T. at 104. Specific inaccuracies which the defendant's expert claimed to 124 have found in the PADS data base were not communicated to the plaintiffs. 17 T.T. at 104-105. Defendant's expert did not know whether the alleged inaccuracies in race codes would have affected plaintiffs' statistical significance levels. 17 T.T. at 106-107. 18. Surrebuttal criticisms which defendant's expert offered with respect to the Navy's PADS data base were based again upon her attempts, incorrectly, to match the work force profiles counted from the PADS data with the work force profiles counted from the litigation data base which the defendant constructed. 25 T.T. at 81. The numbers in the plaintiffs' and defendant's work force profiles did not precisely correspond because the plaintiffs counted employees in the position they were holding at the end of each year and the defendant counted employees in the position to which they were permanently assigned at the end of each year. 24 T.T. at 42-43. 19. The defendant's Minority Census Reports corresponded with the counts which the plaintiffs calculated from the PADS data base. 24 T.T. at 33. 20. The defendant's expert criticized the promotional opportunity data which the plaintiffs had key-punched, but plaintiffs did not use the data for any of their statistical analyses. 24 T.T. at 33. 21. Neither party used the nature-of-action codes in their analyses. Defendant's critique of the PADS data base with respect to missing data regarding nature-of-action, supervisor 125 identification, awards, and status codes was irrelevant because these variables were not employed by the plaintiffs in their analyses and were not germane to their analyses. 24 T.T. at 35- 36. Surrebuttal criticisms which defendant's expert offered with respect to the Navy's PADS data base, which was supplied to the plaintiffs by the defendants, were based again upon her attempts to match the nature-of-action codes on the PADS data base with the nature-of-action codes on the official personnel folders of the employees. 25 T.T. at 77. Defendant's expert also testified that she used the nature-of-action code in one analysis to identify temporary promotions to be included in the analysis of temporary promotions. 25 T.T. at 84. 22. The defendant's expert asserted that there were some transactions missing from the * PADS data base but provided no count of these transactions nor even one example of a transaction which should have been included in plaintiffs' analyses. 24 T.T. at 37. Likewise defendant's expert asserted that there were 197 extra people and 12 6 missing people on the PADS data base, but did not show that any of these people were present on two successive year-ends and thereby improperly included or improperly excluded in the analyses which the plaintiffs presented. 24 T.T. at 37-39. 23. The defendant's expert claimed that 148 people were racially misidentified in plaintiffs' data base, which had been supplied originally to the plaintiffs by the defendant and corrections to which also had been supplied by the defendant. 24 T.T. at 39. The 126 numbers actually add to 124 not 148, 24 T.T. at 40, and only one person was identified by the defendant's expert to have been included in the analyses. 24 T.T. 40-41. 24. The effect of random errors in a data base would have been to make obtaining statistically significant differences between the treatment afforded Black and White employees more difficult. 24 T.T. at 40-41. 25. Defendant's expert was unable to form an opinion regarding the effect of purported errors in the plaintiffs' data base upon the accuracy of the results obtained by plaintiff. However, he did state that he agreed with plaintiffs' expert regarding the effect if the errors were random and that even if the errors were not random, but were unrelated to race, the errors still would not affect the results. 25 T.T. at 21-22. PLAINTIFFS' STATISTICAL RESULTS 26. Temporary employees were not actually reflected in the movement analyses in the plaintiffs' case-in-chief, even though they were included in the plaintiffs' data base, because temporary employees would not have been in the work force on two successive year ends. 6 T.T. at 88. 27. Plaintiffs' movement analyses in their case-in-chief considered each of the years 1971-1982 separately and each pay grade within each pay plan, separately. 6 T.T. at 89-90. 28. The movements from WB pay plan to WG pay plan occurred in 1970, prior to the period of time included in the plaintiffs 127 movement analyses. Any subsequent movements would have been counted as movements out of WB and would not have been reflected in the results for the WG pay plan. 24 T.T. at 57. 29. A movement out of the WG pay plan would have been a movement to GS or a movement into the supervisory pay plans of the FWS pay system. All such moves would have been clearly advantageous to the employee. 24 T.T. at 59.4 30. In pay plan WG, the rate at which Black employees moved up in grade or out of the pay plan was statistically significantly lower than the rate at which White employees made those moves in the year 1981-1982. The discrepancy was equal to 3.25 standard deviations in 1981-1982. 6 T.T. at 110. P. Exh. No. 10RR. The shortfall in Black movements up to higher WG grades or out of WG to other pay plans was equal to 4.10 standard deviations in 1980- 1981, 2.35 standard deviations in 1979-1980, 2.22 standard deviations in 1978-1979, 1.96 standard deviations in 1975-1976, 2.88 standard deviations in 1974-1975, and 2.94 standard deviations in 1973 — 1974. P. Exh. No. 10RR. For the entire time period which was considered, 1971-1982, the shortfall in black movements upward within the WG pay plan or out of the WG pay plan was over eight standard deviations. The probability that this Several employees testified regarding their decision to leave blue collar or WG positions for white collar or GS positions, because of the view that opportunity for advancements were greater in the GS positions. 1 T.T. at 52 (Clark). For example, Dwayne Clark moved from a WG—10 position to a GS—7 position, after failing to obtain promotion beyond the WG-10 level. 1 T.T. at 52-53. 128 difference between black and white rates of movement could have occurred by chance was less than one in one billion. 6 T.T. at 112. P. Exh. No. 10SS. 31. An analysis combining across all pay plans would produce a large statistically significant result. 6 T.T. at 112-113. An analysis which considered all of the employees, within each pay plan, pay grade, occupational series, and year, separately, produced a black shortfall of moves equal to six standard deviations. This result had a probability of less than one in a million of occurring by chance. 6 T.T. at 130. 32. An analysis of movements by Black and White who were in the occupational series GS-1152 demonstrated that Black employees received statistically fewer movements up in grade or out of the GS pay plan than did White employees during the period 1971-1982; the result was statistically significant at 2.18 standard deviations. 6 T.T. at 114—115. P. Exh. No. 10WW. The occupational series GS-1152, production controllers, was the largest of the GS pay plan occupational series. 12 T.T. at 36. The production controller occupational' series was a career ladder. 12 T.T. at 68 . 33. An analysis which subdivided employees within the GS pay plan into their specific separate occupational series and grades showed that there was a statistically significant under representation of Black employees in the movements being studied. 6 T.T. at 129. An analysis of the same data, restricted to the period April 1, 1973 through 1982 showed that the Black shortfall 129 of movements upward in the GS pay plan or out of the GS pay plan was equal to 2.11 standard deviations. 6 T.T. at 141. MOVEMENT BETWEEN GS AND FWS PAY SYSTEMS 34. Movements into the GS-1152 job series came from the WG work force as well as other GS occupational series. 6 T.T. at 81-82. P. Exh. No. 10X, at 27. D. Exh No.??, at ??. 35. The two pay schedules, FWS and GS, were not two separate worlds of blue collar and white collar employees. There was a large amount of movement from each pay schedule to the other. 6 T.T. at 84. P. Exh. No. 10KK. Over 21% of the GS employees had worked in both the GS and FWS pay systems, not including those GS employees who had moved from the FWS system to the GS system prior to 1970. 13 T.T. at 59. D. Exh. No. 4100, at 16. 36. During the period 1972-1975 production dispatchers in the FWS pay schedule were transferred to production controllers in the GS pay plan. 12 T.T. at 24. There were 4 64 people who moved between the GS pay schedule and the FWS pay schedule. Many of them moved back and forth between the two pay schedules. Most of them moved to the GS production controller, quality assurance specialist or industrial engineering technician from the FWS pay schedule, or conversely, from those three GS occupations to the FWS pay schedule. For these employees the movements between the GS and FWS pay schedules were part of their career. 12 T.T. at 37-38. 130 RELATIVE IMPORTANCE OF COMPETITIVE AND NONCOMPETITIVE MOVES 37. Means other than competitive placement were used to fill positions at NARF. 12 T.T. at 73. A permanent employee could be moved from one organization to another if the employee was deemed to have a skill that somebody wanted or needed, or could be transferred from one series laterally to another, or could receive a temporary promotion if the supervisor was absent and the employee was considered to be able to take the job temporarily. 11 T.T. at 108. 38. Competitive promotion announcements accounted for only approximately one-half of all promotions. 6 T.T. at 70. There were more noncompetitive moves than competitive moves. 14 T.T. at 123. In the WG pay plan the relative importance of competitive and noncompetitive moves varied from year to year; in 1973-1976 there was relatively more noncompetitive activity and in later years there was relatively more competitive activity. 12 T.T. at 47. In the GS pay plan the competitive and noncompetitive moves were approximately half and half. 12 T.T. at 51. 39. The noncompetitive- promotions within the apprentice training program accounted for 65% of all noncompetitive promotions within the FWS pay schedule. D. Exh. No. 4104, at 1. In the GS pay plan the career ladder moves accounted for 57% of all noncompetitive moves. 12 T.T. at 51. 131 THE COMPETITIVE SELECTION PROCESS 40. Plaintiffs did not perform a separate statistical analysis of the competitive promotional opportunities. The defendant's analysis of competitive promotion opportunities demonstrated that there was a statistically significant under-representation of black employees in promotions to positions within the GS pay plan. 6 T.T. at 140-141. 41. The steps of the selection process were not clearly defined and separable. 6 T.T. at 77. In FWS competitive promotions, the rating panel that determined whether an employee was qualified or highly qualified was often the same body that determined whether an individual employee was ineligible for consideration for promotion. 6 T.T. at 74. 42. Employees in both the FWS and GS pay schedules who were judged ineligible for a promotion were not reviewed for a determination of qualifications by the rating panel. 6 T.T. at 74. 43. Employees who applied for open-continuous promotion announcements were not rated until the decision was made to issue a new certificate. 6 T.T. at 75. In open-continuous promotional opportunities, a request for a new certificate would trigger a of the applications received since the last rating panel. 13 T.T. at 141. Not all applicants for promotional opportunities were rated. 14 T.T. at 128. 44. The procedure for determining whether and when to issue a new certificate for open-continuous promotion announcements was 132 subject to abuse by the decision maker to whom knowledge of the composition of the then current applicant pool was available. 6 T.T. at 75. The situation in which a decision could be made not to issue certificates based upon the composition of the pool could occur. 14 T.T. at 128-129. 45. The promotional opportunity announcement procedures were not always followed exactly as they were specified in the regulatory documents. 14 T.T. at 147. 46. There were no minimum time-in-grade requirements for FWS position applicants. The decision as to FWS minimum qualifications often involved the rating panel as well as the staffing specialist. 13 T.T. at 125. D. Exh. No. 4109, at 2. 47. The defendant's expert witness stated that it was possible a selecting official to exert his influence at an earlier point in the promotional opportunity selection process and that the selecting official may have served earlier in the process as a member of the rating panel. 14 T.T. at 128. Additionally, a supervisor may have had input into whether or not an employee was determined to have the .minimum qualifications for a position. 14 T.T. at 147-148. 48. There were applicants who had been rated ineligible and who subsequently had their applications, with no additions, rerated to be eligible. 14 T.T. at 148-189. 133 DEFENDANT'S TEAM OF EXPERT WITNESSES 49. The original litigation support contract between the defendant and Psychological Services, Inc. was for $860,000. 19 T.T. at 111. Add-on contracts more than doubled the initial contract. 19 T.T. at 113. 50. The President of Psychological Services, Inc. selected the team of experts for the defendant and the team members were subcontractors or employees of Psychological Services, Inc. 19 T.T. at 113. The defendant used 20 experts working on this case. 15 T.T. at 161. THE DEFENDANT'S DATA BASES $1. The defendant constructed new data bases, for the purpose of this litigation, using the employees' official personnel folders and the promotional opportunity folders. 11 T.T. at 97. 13 T.T. at 129. 52. The defendant's experts stated that the official personnel folders were incomplete and that some personnel actions had to be erred from the sequence of available information as having to have necessarily occurred. 11 T.T. at 103-104; 14 T.T. at 80. Similarly a date had to be assigned to the inferred transaction. 13 T.T. at 7. There were also mass changes which might be reflected in only one of the official personnel folders of the individual employees affected by the mass change. 11 T.T. at 110- 111. There were documents missing from the official personnel folders. 14 T.T. at 150. Many short assignments, details, 134 particularly those of less than thirty days in duration, were missing from the computerized data bases which were constructed because there were no paper records for these details. 11 T.T. at 117. 53. There was insufficient information to permit the defendant to categorize some movements. 12 T.T. at 52. Defendant's expert witness was dubious about the completeness of the official personnel folders. 14 T.T. at 80. For some noncompetitive movements the documentation in the personnel files did not permit the defendant to distinguish between several possible reasons for the movement; additionally, there were 99 noncompetitive upward movements for which the defendant could find no documentation to support the movement. 12 T.T. at 102-103. 54. There were twelve different methods by which an employee could have obtained a noncompetitive upward movement. 12 T.T. at 52. D. Exh. No. 4100, at 28. The nature-of-action codes did not identify all promotions or indicate multiple alternative reasons for an employee's movement from one position to another; therefore, the defendant's promotion analyses did not utilize the nature-of-action codes. 13 T.T. at 11. 55. The defendant's data bases were constructed such that the skill level of an employee is indicated only to the extent that occupation code and grade level may reflect skill level. 13 T.T. at 72. The defendant's applicant flow analyses for these promotional opportunities did not use the qualifications of the applicants. 14 T.T. at 126. 135 56. The computerized data base for merit staffing, promotional opportunities, was given to the defendant's expert witnesses by the Navy. 14 T.T. at 130. 57. Some promotional opportunity announcements were used simultaneously for positions both at the Jacksonville Naval Air Rework Facility as well as positions at other installations. 13 T.T. at 126. 58. Early in the time period there were documents missing from the promotional opportunity folders. 14 T.T. at 170. Some promotional opportunity announcements covered more than one job series and/or more than one grade, and the defendant's expert witnesses divided the resultant applicant pool into parts. 13 T.T. at 128. 59. Some rating panel dates had to be artificially created because none was available in the documentation. 13 T.T. at 135. Furthermore, the defendant's data base for promotional opportunities did not contain the rating data and, therefore, did not indicate an individual's position on the certificate. 14 T.T. at 156. 60. With respect to the promotional opportunity data, the defendant's standard personnel form which showed that an applicant was no longer interested in a position was not sufficiently specific to permit the distinction between applicants who no longer wished to be considered and applicants who had been selected but then refused the position. 13 T.T. at 142. Absent other evidence, all such applications were treated in 136 the defendant's analyses as withdrawals prior to selection. 13 T.T. at 143. 61. In an open-continuous promotional opportunity announcement, when a person who was deemed eligible submitted an application, the person periodically would be asked to update the application; this would normally happen after a year. 13 T.T. at 143. Defendant's expert witnesses developed a convention that removed all ineligible applicants from the applicant pool after 366 days. 13 T.T. at 144. If more Black applicants than White applicants for the promotional opportunities had been designated as ineligible, then the convention used by the defendant's expert witness of removing these applicants from the applicant pool after 366 days would have had the - effect of reducing the calculated expected number of Black selections or placements. 14 T.T. at 170. 62. The defendant spent two and one-half years constructing its litigation data bases. 13 T.T. at 4. The defendant's data bases, constructed for the purpose of this litigation, were sent to the plaintiff in 1987. 12 T-. T. at 8. A second version of the employee history data base restricted to employees who had been employed during the period beginning on April 1, 1973 was not sent to the plaintiffs until 1988. 12 T.T. at 9. Plaintiffs' statistical analyses were conducted in 1985. 6 T.T. at 115. 63. The defendant's statistical expert knew at the time when the first applicant flow analyses were done, in 1987, for the competitive promotional opportunities that additional 137 supplemental internal analyses would be conducted when the data bases were finally complete. These supplemental analyses were run in 1988. 15 T.T. at 11. 64. In late 1987 or early 1988, defendant's experts checked the races of the individuals in their data bases, after their first reports had been written. 15 T.T. at 13 6. The final data bases were completed between the time of the first reports (beige color) and the second reports (blue color). 15 T.T. at 139. DEFENDANT'S COMPETITIVE PLACEMENT ANALYSIS 65. Defendant's expert witness reports of the competitive promotional opportunities did not contain the numerical descriptions of the applicant pools, certifications, selections, and placements which were actually used in the statistical calculations. 14 T.T. at 89. There was a lower level of aggregation than the computer printouts in the defendant's statistical reports. These were the jspecific promotional opportunity/certificate combinations. 17 T.T . at 87. 66. Some promotional opportunity certificates were issued but not used and the selections were made from an alternative cer^ficate. In these instances when a certificate was not used the certificate did not appear in the defendant's data base. 17 T.T. at 89. P. Exh. No. 256. There also were supplemental certificates that were issued. The supplemental certificates were combined with the original certificate into one certificate in 138 the defendant's data base. 17 T.T. at 91. P. Exh. Nos. 257 and 258. 67. In the defendant's analysis of competitive, promotional opportunities, selections or placements from applicant pools that were all of one race were not reflected in the calculation of disparity between the races or in the statistical tests of those disparities. 14 T.T. at 5. Defendant's expert agreed that uniracial pools did not contribute to the disparity or variance, but he knew of no way to ascertain whether they disadvantaged blacks. 25 T.T. at 13. 68. At least 46% of all white placements from the promotional opportunities were not included in the calculations of defendant s statistical tests, whereas the corresponding figure was that only 7% of the black placements were not included. This happened because uniracial pools did not contribute to the variances and differences calculated by MULTEVENT. 24 T.T. at 77- 78. As many as 147 of the 166 black FWS placements may have been included, no more than 765 of the 1,516 white FWS placements were included. As many as 12 0 of the 12 3 black GS placements were included, no more than 785 of the 1,368 white GS placements were included. 24 T.T. at 79-80. D. Exh. No. 11. Defendant's report did not permit a more precise count of the included placements because the tables did not contain the data for the actual certificates. 24 T.T. at 80. 69. In spite of the inclusion of almost all the black placements and the exclusion of approximately one-half of the white 139 placements, the defendant's statistical analysis of the competitive placements still attained statistical significance. 24 T.T. at 77-78. 70. The defendant's promotional opportunity applicant flow analyses did not consider the qualifications of applicants at all. 14 T.T. at 20. 71. Applicants who had some technical failure in their application were not considered applicants in the defendant's applicant flow analyses of the competitive promotional opportunities. 14 T.T. at 148. 72. A serious problem arose in the competitive promotional opportunities because the content of the applicant pool may not have been determined independently of- the actual selections. A selecting official could have waited until a specific person applied before a request to rate the applicants was made and a certificate issued. Alternatively, the selecting official could have looked at the available pool and have decided not to request that the applicants be rated and no certificate was issued. The procedure did not comport with the classic probability model required by defendant's statistical analyses. 24 T.T. at 69-71. 73. Defendant's expert agreed that open-continuous announcements did not permit the determination of the number of applicants and placements which would occur. 25 T.T. at 15-16. Defendant's expert acknowledged that his pools were subject to some criticism. 25 T.T. at 19. 140 74. The competitive promotional opportunity announcement analyses would not have detected whether black employees did not apply because they did not know about vacancies or because they were led to believe that someone else had been preselected. 14 T.T. at 157. 75. Approximately one-half of the GS applicant flow for the promotional opportunity announcements were external to the Jacksonville Naval Air Rework Facility. 15 T.T. at 8. The decision by the defendant's expert witness to conduct an analysis restricted only to internal applicants for the promotional opportunities was made prior to discovering that so many of the applicants were external. 15 T.T. at 10. 76. Defendant defined an external applicant as someone who was external to the Naval Air Rework Facility; usually this was someone who was a civilian employee of the Naval Air Station in Jacksonville and only on a few occasions would it have meant some other civilian government employee. 15 T.T. at 182. 77. In defendant's expert witness's opinion, if the question was solely the effect of\ the promotional opportunities upon the internal applicants, the analysis limited to internal applicants was in a sense better; however, the internal analyses were incomplete because internal applicants did compete against external applicants, and there was no measure of that in the internal analyses. 14 T.T. at 173. 78. Another of defendant's experts agreed that the most relevant analysis would look only at internal applicants. 15 T.T. at 135. 141 Defendant's expert, in surrebuttal, repeated his opinion that the internal analysis was more relevant but that it would be incomplete not to look at the analysis including both internal and external applicants. 25 T.T. at 49-50. 79. The defendant's expert witness, in his reports, did not aggregate the results of his analyses of competitive promotional opportunities from each separate pay system. 15 T.T. at 36. D. Exh. Nos. 11C and 11E. Defendant's expert testified that aggregating the GS and WG regular merit staffing promotional opportunities would yield a shortfall of 28.261 black placements with a variance of 146.233. This shortfall equaled 2.34 standard deviations (2.30 with the continuity correction). 15 T.T. at 38. 80. If there had been more black applicants for the competitive promotional opportunities, there would have been more expected black placements, and the difference between the black and white placements would have been greater. 15 T.T. at 52-53. 81. Defendant's expert witnesses analysis of all GS regular merit promotional opportunity placements, for all years, for all promotional opportunities, for all grades, yielded a black shortfall equal to 2.01 standard deviations. 15 T.T. at 57. 82. Defendant's statistical analysis of black placements from the promotional opportunities showed a surplus in 1973 and 1977. 15 T.T. at 42. The case was filed in 1972; in mid-1977 the case was assigned to Judge Melton, a status conference was set for October, the Navy's attorney entered an appearance in November, \ \V 142 and the Legal Defense Fund's attorney entered an appearance in December. 15 T.T. at 43-48. 83. Comparing black with non-black permanent placements from the promotional opportunities, the defendant's expert found a consistent under-placement of black applicants: -1.734 equivalent standard normal deviates for the GS pay system, -.917 for the FWS pay system, and -1.34 for the WG pay plan. 15 T.T. at 60. D. Exh. No. 12A, at Tabs C and D, respectively. 84. When defendant's expert considered only internal candidates for the competitive promotional opportunities, the black shortfall in placements was greater in WG than in GS. 15 T.T. at 61. D. Exh. No. 12A, at Tabs F and G, respectively. Defendant's expert acknowledged that these results were closer to the plaintiffs' results than were his previous analyses which included both internal and external applicants. 15 T.T. at 62. Defendant's expert preferred the analyses that were restricted to internal candidates. 15 T.T. at 63. 85. Defendant's expert witness did not know the effect of including external applicants in the promotional opportunity analyses had upon the year-to-year pattern of results. 15 T.T. at 69-71. D. Exh. No. 4109. Defendant's expert's analysis of the competitive promotional opportunities which was restricted to internal applicants included only one order of aggregation, occupational series, for the black/non-black and black/white comparisons, whereas, the earlier analyses which included the 143 external applicants as well as the internal applicants had three orders of aggregation. 15 T.T. at 61. 86. Defendant's expert witness testified that there was a statistically significant under-placement of black applicants as compared to white applicants in the competitive promotional opportunities for positions in the GS pay system. 14 T.T. at 32. D. Exh. No. 4109, at 12. The black shortfall was statistically significant using either of the statistical methods (approximate or exact) employed by the defendant. 14 T.T. at 47. In competitive promotional opportunity placements there was consistently an under-representation of black employees in contrast to the black representation in the applicant pools for these placements, even when the analysis contrasted black with non-black instead of black with White employees. The shortfall in black placements occurred in both the GS and FWS pay systems, in both regular and Upward Mobility Program announcements, in permanent job placements, and in analyses which included the internal applicants only. D. Exh. No. 4112, at 1-2. 87. The plaintiffs' expert witness added up the following results for placements from the defendant's analyses of competitive promotional opportunity announcements: 144 D. Exh. No. Tvne of Selection Difference Variance 20C, Tab 4 GS Black/White -19.024 87.4290 13B, Tab 4 GS UMP Black/White - 1.571 9.8716 2 0E, Tab 4 FWS Black/White - 7.710 76.8129 13D, tab 4 FWS UMP Black/White - 3.925 9.0302 Total -32.130 182.7979 Z is equal to the difference divided by the square root of the variance; z with the correction for contiguity is equal to the difference plus 0.5 divided by the square root of the variance. In this instance, z = —2.376 and z with the correction = —2.3394. If the exact probability and ESND had been used the result would have been between the two z-values. Therefore, the defendant's own statistical analysis of GS merit promotions, GS Upward Mobility promotional opportunities, FWS, and FWS Upward Mobility Programs showed a statistically significant difference between the treatment of black and white applicant, black applicants were statistically significantly under-represented in the selections. 24 T.T. at 74-76. 88. Defendant's expert, in surrebuttal, responded to plaintiffs' expert's aggregation of the defendant's competitive promotional announcement results by introducing a new exhibit which permitted the same aggregation performed by plaintiffs' expert, but restricted only to internal applicants. These internal ions produced a z—value without correction equal to —1.96 145 and a z-value with correction equal to -1.92 with regard to the underplacement of Black applicants in the competitive promotional opportunities. 25. T.T. at 24-26. D. Exh. Nos. 4214 and 4216, at 3 . APPLICANT RATES FOR BLACK EMPLOYEES 89. The applicant flow of black employees for competitive promotion announcements was lower than would have been expected from the distribution of black employees within the work force profiles. 6 T.T. at 70. Defendant's expert witness constructed a model which was designed to identify the feeder occupational series or job groups for applicants for the promotional opportunity announcements. 14 T.T.-at 108-113. The model was unable to predict as many as 45% of the applications which actually were submitted. 14 T.T. at 112. 90. The difference between black and non-black application rates was not statistically significant for each pay system considered separately, however, the variances within the hypothetically modeled pools were large. 14 T.T. at 114. Nevertheless, the black application rate was less than 90% of the non-black application rate from these hypothetically constructed incomplete pools in both the GS and FWS pay systems. 14 T.T. at 115. D. Exh. No. 4113, at 2. 91. The defendant's expert witness concluded that the process of canceling promotional announcements when there were black employees available for selection would not show up strongly if 146 there were a large proportion of black applicants in the pool. The effect would also depend upon the number of positions being filled and the percentage of promotional announcements that were cancelled. 14 T.T. at 155-157. 92. The defendant's expert witness acknowledged that the analysis was not definitive. 14 T.T. at 126. DEFENDANT'S MOVEMENT ANALYSIS 93. Defendant's movement analyses did not separate movements by pay grade and race. 13 T.T. at 27. Black employees received 13.7% of the upward moves within the WG pay plan. 13 T.T. at 26. D. Exh. No. 9D, at Table D—13. However, black employees received only 7.6% of the movements from the WG pay plan to other pay plans, supervisory WS and WL or apprentice WT, within the FWS pay system. 13 T.T. at 28. D. Exh. No. 9D, at Table D-13. Black employees received 37 upward moves from the WG pay plan to the GS pay system, but 18 of these occurred in 1974 when the production dispatcher position was discontinued and many employees moved into the production controller position. 13 T.T. at 29-30. 94. Black employees received 17.65% of the downward moves within the WG pay plan or to other pay plans within the FWS pay system. 13 T.T. at 36. D. Exh. No. 9D, at Table D—25. Black employees received 18.1 percent of the downward moves within the WG pay plan. Black employees received only 4.3% of the downward moves from the WG pay plan to the GS pay system. 13 T.T. at 32. D. Exh. No. 9D, at Table D-25. Downward moves from WG to GS occurred 147 voluntarily as part of employees' careers and with the idea that it would enhance their careers. 13 T.T. at 34; 1 T.T. at 52-53 (Clark). 95. Black employees in the FWS system received 8.1% of the reductions in force. 13 T.T. at 66. D. Exh. No. 1404, at 20. However, black employees received only 5.4% of the repromotions from previous reductions-in-force. 13 T.T. at 68. D. Exh. No. 1404, at 2. 96. Defendant's expert witnesses did no analyses to determine whether there was a difference in racial composition between occupational series which had accretions of job duties and occupational series which did not. 13 T.T. at 70. 1 * DEFENDANT'S NONCOMPETITIVE PLACEMENT ANALYSIS 97. The defendant's analysis of noncompetitive promotions required an attempt to infer in hindsight the pool of employees from which these selections were made. This attempt violated the assumptions of the hypergeometric distribution employed by the MULTEVENT program which required that the content of the urn be specified in order to calculate the probability of picking a specific number of black and white balls out of the urn. The only members of the pool who were clearly identifiable were those people who were actually selected. Defendant's expert then assumed that the pool was made up of the selectees and any one else who was in the same occupational series and grade level at that point in time. By this convention the pool had to contain 148 the selectees but might or might not have contained the other candidates or non-candidates. 24 T.T. at 65-67. 98. Defendant's analyses of non-competitive movements in D. Exh. No. 14J included only 306 movements and less than one half of these movements contributed to the calculated statistics because of the uniracial pools which were retroactively created for these analyses. 24 T.T. at 68. 99. Defendant's expert witness admitted that her report which analyzed non-competitive moves lacked the power to detect discrimination, even if the defendant had an overt policy of promoting no black employees. 17 T.T. at 76. D. Exh. No. 27. CAREER LADDERS 100. Not all employees in the career ladders entered them through competitive merit staffing. 14 T.T. at 125. There were many different methods for entering into a career ladder: merit staffing? the Civil Service Commission register, direct hire, the Upward Mobility Program, the co-op student program, etc. 12 T.T. at 70-72. D. Exh. No.< 4103, at 6. There may have been some additional career ladders for which there was inadequate documentation to identify them with certainty for inclusion in the career ladder analyses. 12 T.T. at 62. Black employees received only 7.0% of upward moves within the career ladders and only 4.7% of the upward moves within the Upward Mobility Program. 13 T.T. at 61. D. Exh. No. 4100, at 27. Movement into the career ladders was not considered by defendant's expert witnesses in 149 their statistical analyses; movement into career ladders may even have occurred without a promotion. 13 T.T. at 62. 101. Entry into the career ladder programs were obtained through competitive promotional opportunities or by direct hiring; once an employee entered a career ladder, successive promotions within the career ladder were noncompetitive. 12 T.T. at 61. However, career ladder employees also received noncompetitive promotions out of the career ladder. 12 T.T. at 74. D. Exh. No. 4103, at 8. 102. The defendant's analysis of career ladder promotions does not include an analysis of entry into the career ladder program or promotion out of the career ladder program; only the 545 promotions within the career ladder were considered. 12 T.T. at 74. D. Exh. No. 4103, at 8. The defendant's analysis of time-to- promotion and survival among the career ladder employees also was restricted to the same 545 promotions within the career ladders. 12 T.T. at 85. D. Exh. No. 4103, at 11—12. These analyses ignored fact, as testified to by the defendant's same expert witness, that for many career ladder employees (production controllers and quality assurance specialists in particular), movements between the GS and FWS pay schedules were part of their career pattern. 12 T.T. at 37-38. Defendant's expert witness only showed that black employees received their share of noncompetitive promotions within the career ladder and Upward Mobility Program, once they got into the programs and became eligible for these promotions. 13 T.T. at 75-76. 150 APPRENTICE PROGRAM 103. Defendant's analysis of promotions within the apprentice training program did not include the question of entry into the apprentice training program. 12 T.T. at 152. The noncompetitive promotions within the apprentice training program accounted for 65% of all noncompetitive promotions within the FWS pay schedule. D. Exh. No. 4104, at 1. Some of the fields in which there were apprentice training programs were the following: electronics measurement equipment mechanic, electronics mechanic, aircraft instrument mechanic, aircraft electrician, machinist, electroplater, sheet metal mechanic, aircraft engine mechanic, and aircraft mechanic. All of these positions lent themselves to an on-the-job training program. 12 T.T. at 153. 104. As skill levels were acquired, an employee could have moved from helper to worker to journeyman. The defendant preferred to look within its own work force for employees skilled enough to promote. 12 T.T. at 175—176. The purpose of the developmental programs was to increase skill levels of employees in those programs. 12 T.T. at 177. The defendant individualized training of the employees within its work force to meet its needs. 13 T.T. at 69. 105. In the period April 1, 1973 to December 31, 1982, there were 92 non-black and 15 black entrances into the apprenticeship D. Exh. No. 4106, at 2. (All of the entrances during the 1973 calender year occurred after April 1, 1973. D.Exh. No. 15C.) Defendant's analysis of entry placements into the apprentice 151 program through competitive promotional opportunities, conducted by a different expert witness for the defendant, included only 22 of the 92 non-black entrances and only 2 of the 15 black entrances into the WT apprentice program. D. Exh. No. 12A, at Tab F. Although black applicants received only two placements (out of a predicted 3.395 placements, the black shortfall was not statistically significant with these small and incomplete numbers. D. Exh. No. 12A, at Tab F. 106. During the period April 1, 1973 through December 31, 1982, the percentage of employees in the WT apprentice program fluctuated between 4.5% and 0.0% of the employees in the FWS pay system. D. Exh. No. 4100, at 2. DEFENDANT'S ANALYSIS OF TEMPORARY PROMOTIONS 107. The defendant's analysis of temporary promotions, considered the occupational series, pay grade, pay plan, and sometimes organizational code of the temporary promotees and the assumed that the appropriate pool from which any temporary promotee was drawn consisted of employees with the same combination of these characteristics. No job analyses were used to make these determinations of the appropriate pool from which a temporary promotee could be drawn. 12 T.T, at 174. DEFENDANT'S ANALYSIS OF THE UPWARD MOBILITY PROGRAM 108. The Upward Mobility Program was designed to provide an opportunity for career advancement to employees who were in low- 152 level, basically dead-end positions. 14 T.T. at 82. The Upward Mobility Program was not conceived solely as an affirmative action program. 14 T.T. at 84. 109. Employees selected from a particular Upward Mobility Program promotional opportunity announcement were not necessarily all assigned the same grade; furthermore, some selected employees were detailed to the grade level. 13 T.T. at 155. 110. Black employees were under-represented in GS competitive placements into the Upward Mobility Program. 14 T.T. at 90. D. Exh. No. 4111, at 3. Black employees were under-represented in FWS competitive placements into the Upward Mobility Program. 14 T.T. at 92. D. Exh. No. 4111, at 5. DEFENDANT'S PROMOTION ANALYSIS Sometime in 1987, the Defendant knew that the combined analysis of promotions was going to be conducted. 15 T.T. at 140. 112. The defendant's expert witness performed a combined analysis of competitive and noncompetitive promotions. Candidate pools for merit staffing, initial Upward Mobility Program selection, and conversion from temporary to permanent positions were restricted to candidates internal to the NARF. Internal was defined as of the date of the issuing of a certificate. 14 T.T. at 119. 113. An employee who competed for a promotional opportunity announcement and was selected in the competition technically may not have received a promotion. All selectees who were so selected were dropped from the analyses; they were neither counted as 153 promotions nor as members of the pool of candidates. 14 T.T. at 120. Candidates for initial placement in the Upward Mobility Program and for conversions from temporary to permanent positions were treated in the same way. Candidates who were selected but whose placements technically were not classified by the defendant as a promotion were not only not counted as a promotion but were also excluded from the candidate pool for the purpose of these analyses. 14 T.T. at 121. 114. There were very few employees who technically received a promotion upon entry into the Upward Mobility Program. 14 T.T. at 121. Only 26 entrants into the Upward Mobility Program were deemed to have been promoted into the Upward Mobility Program; of these 26 employees, 25 were white and one was black. D. Exh. No. 4113, at 3-4. 115. Defendant's expert witnesses excluded from their analyses of the promotions which resulted from selections off of the Office of Personnel Management registers, the applicant pools for which were not included in the litigation data bases prepared by the defendant. 15 T.T. at l'a2. 116. Defendant's expert expressed the opinion that it was interesting and relevant to look at the overall promotion analysis, given the areas at issue in this case. They wanted to look at the whole pie as well as the individual pieces." Occasionally one "can't see the forest for the trees. This was an opportunity to look at the forest." 15 T.T. at 141. 154 117. Employees who took a downgrade from the FWS pay system to the GS pay system were not defined by the defendant as having received a promotion and were not included in the defendant's promotion data base, even though it was an increase in opportunities. 15 T.T. at 157. On the other hand, moves within a pay plan were classified as promotions by the defendant's expert if the employee moved up in grade without any consideration of salary, even though it was possible to move up in grade but into a pay step that did not constitute a change in salary. 15 T.T. at 160. FAILURE TO VALIDATE SELECTION PROCEDURES 118. The determination of an employee's eligibility for promotion is a test, within the meaning of a selection procedure, under the Uniform Guidelines on Employee Selection Procedures. The determinations of whether an employee is qualified or highly ^alified, based upon the employee's scores given by a rating panel, is also a test within the overall selection procedure. 6 T.T. at 23. Defendant's expert witness who served in the administrative capacity of team leader knew of no studies on the validity of the Jacksonville Naval Air Rework Facility promotion system. 15 T.T. at 160-161. 120. Defendant's primary expert witness regarding the validity of the defendant's selection procedures was the president of Psychological Services, Inc., the consulting firm retained by the 155 defendant. He testified that defendant's expert witnesses performed no validation studies of the Jacksonville Naval Air Rework Facilities. 19 T.T. at 46-47. 121. Defendant's expert witness stated that they did not do any job analyses which contained the detail normally done for a content validation study. Furthermore they did not do a criterion-related study. 19 T.T. at 48. 122. Defendant's expert witness asserted that the merit staffing procedures at the Naval Air Rework Facility are job related, based upon the various statutory, regulatory,and procedural documents he studied. 19 T.T. at 87. He looked at the system as a whole and did not evaluate each selection procedure; he looked at the procedures but not their implementation. 19 T.T. at 97-98. He agreed that he could not say that all selections chose the right person and could not estimate the number of proper and improper selections. 19 T.T. at 100. He acknowledged that he had never seen any report that pertained to the relevant time period. 19 T.T. at 107. He acknowledged that two of the exhibits he had relied upon to form his opinion had been given to him by counsel and had been seen by him for the first time on the same day on which he was testifying. 19 T.T. at 106-107. He had not reviewed the defendant's affirmative action plans. 19 T.T. at 108. 123. Defendant's expert acknowledged that he did not know if any job analyses had been conducted at the Jacksonville Naval Air Rework Facility and that he had not made a systematic review of the modifications which the staff of the Naval Air Station would 156 have made to account for idiosyncracies at the local level. 19 T.T. at 110 . The regulations were a starting point and modifications were made at the local level to apply to the specific job rather than the general job. Modifications had been made for at least 15-30 jobs, to the best of the expert witnesses recollection and he acknowledged that he had not reviewed a lot of them. 19 T.T. at 118. 124. The Uniform Guidelines on Employee Selection Procedures includes the following statement: "Job analysis for content validity. There should be a job analysis ... ." D. Exh. No. 4204, Section 14.C.(2), at 164. 125. Defendant's expert and a team of interviewers attempted to identify the major skills necessary for 52 of the jobs at the Jacksonville Naval Air Rework Facility. No attempt was made to differentiate among levels of skill except in the most general way. 19 T.T. at 126. 126. The defendant's expert stated that the Uniform Guidelines on Employee Selection Procedures had a section dealing with prior experience requirements, Section 14.C.6. It was his opinion that this section applied to the selection procedures used at the Naval Air Rework Facility. He read a portion of this section to support his assertion that the procedures used by the defendant were valid. 25 T.T. at 123-124. D. Exh. No. 4204. Defendant's expert did not include the following phrase in the sentence which he read from Section 14.C.6.: "including a specification of 157 D. Exh. No. 4 2 04,level or amount of training or experience." Sec. 14.C.6, at 164. 127. Defendant's expert had no documentation, as required by the Uniform Guidelines on Employee Selection Procedures, to support his conclusion that the selection procedures were valid. 19 T.T. 141. D. Exh. No. 4202, 15.C, at 169 — 171. He based his opinion on a review of the Office of Personnel Management documents. 19 T.T. at 140. Defendant's expert testified that the Office of Personnel Management did not conduct a validation study. 19 T.T. at 142. 128. The plaintiffs' expert testified that defendant's bald assertion of selection procedure validity was not credible absent any data whatsoever. 24 T.T. at 48. D Exh. No. 4204, Sec. 5.D, at 156. Plaintiffs' expert noted further that the use of a coritent- validation strategy for positions which include qualifications such as leadership ability is specifically prohibited by Section 14. C . (1) of the Uniform Guidelines on Employee Selection Procedures. Therefore, the defendant's expert's assertion of content validity was contradicted by the Uniform Guidelines. 24 T.T. at 48. D. Exh. No. 4204, Sec. 14.C.1, at 163. 129. Defendant's expert testified that he did not think that this prohibition on the use of content validation for traits such as leadership applied to the defendant because leadership skill was measured in terms of specific elements. 25 T.T. at 144. The defendant's expert pointed out that the Uniform Guidelines Sec. 14.C.1 was not in agreement with the principles of the Society 158 for Organizational and Industrial Psychology. 25 T.T. at 149. D. Exh. No. 4204, at Sec. 14.C.1. and D. Exh. No. 4203, at 19. 130. The Uniform Guidelines contain a specific claim of consistency only with the "A.P.A. Standards" (American Psychological Association). D. Exh. No. 4204, Sec. 5.C, at 156. DEFENDANT'S ARGUMENT THAT BLACK EMPLOYEES LACKED PRIOR EXPERIENCE 131. Defendant's expert attempted to rebut plaintiff's showing of a large statistically significant difference in the rate at which Black and non-Black employees moved up in pay plans or out of pay plans by arguing that there was a difference in their backgrounds with respect to military training and experience prior to their employment at the Jacksonville Naval Air Rework Facility. 18 T.T. at 182. 132. Defendant's expert acknowledged that census data did not define the labor pool for the Jacksonville Naval Air Rework Facility, no matter whether the census data were for the United States, Florida, or Jacksonville. 19 T.T. at 13. Census data had no relevance to the promotion opportunities or the qualifications of black and white employees at the Jacksonville Naval Air Rework Facility. 24 T.T. at 49. 133. Defendant's expert maintained that skills were not learned on the job, but must be brought with the employee or attained through an apprenticeship program at the Naval Air Rework Facility. 19 T.T. at 80. 159 134. Defendant's expert presented no inferential statistics or even the numbers of black and white employees with their relevant military training background. 19 T.T. at 10. 135. Defendant's analysis of the employees' prior military training and experience excluded the data for 200 to 300 employees because he could not identify their military experience. 19 T.T. at 4. The data base included the remaining employees who were in the FWS pay system or who were GS production controllers or technicians. 19 T.T. at 9. 136. Defendant's expert defined relevant prior training dichotomously as either having aviation maintenance experience or not having aviation maintenance experience. 19 T.T. at 4. Aviation maintenance experience was defined to include skills such as electronics, machinists, and radar fire control which the expert witness considered’ transferable. 19 T.T. at 7-8. Other trade experiences utilized at the Jacksonville Naval Air Rework Facility, such as painting, carpentry, sandblasting, electroplating, or welding, were not included as relevant experience. 19 T.T. at' 8. Relevant military experience could be ascertained only for employees who had been in the Navy, because the Navy was the only service branch which provided such data. 19 T.T. at 16. 137. Defendant's expert acknowledged that knowing an individual's technical rank in the Navy would not determine the grade level at which that individual would be expected to be hired at the Jacksonville Naval Air Rework Facility. 19 T.T. at 26.\ 160 138. The number of years of military service or experience was not in the data base used by the expert. 19 T.T. at 9. 139. The exhibits which defendant's expert offered showed only the percentages of black and non-black employees in the FWS pay system who had military experience. The exhibits showed that the percentage of employees who had no military experience was relatively the same for all FWS employees as for FWS employees in pay grade WG-9 and higher. 19 T.T. at 10-11; D. Exh. No. 4128. 140. Although Defendant's expert offered exhibits which allegedly showed the background experience of those employees who were promoted to WG-9 or higher, no comparison was made between the employees who were promoted and the employees who were not promoted. 19 T.T. at 28. One exhibit showed that black employees constituted 2.2-s of those with military experience who were promoted to WG-9 or higher, but there was no indication of the percentage of black employees with military experience who would have been eligible for a promotion to WG-9 or higher. 19 T.T. at 29. D. Exh. No. 4130. 141. None of the exhibits presented by the defendant, as part of attempt to attribute the differences in black and white advancement rates to prior military training and experience, showed the composition of the pools from which the promotions were made either with respect to race, experience, or both. 19 T.T. at 29. The defendant offered no exhibit showing even the number or percentage of black and white employees with or without prior military experience or specific skills. 19 T.T. at 30. 161 142. An assertion that the employees in WG grades 9 and above were qualified provided no information regarding the qualifications of the employees who were in WG grades below grade 9. In fact, NARF's expert's own testimony showed that the employees below grade 9 had the same qualifications as those in grades 9 and above, if the expert's definition of qualification was employed. 24 T.T. at 49-50. D. Exh. No. 4128, at 1. 143. Defendant's expert offered only innuendo that black employees were less qualified than white employees. 24 T.T. at 50. He claimed that white employees were older than black employees in order to imply that the white employees were more experienced. However the same data could also be used to conclude that the Jacksonville Naval Air Rework Facility previously discriminated against black individuals more than it subsequently discriminated against black individuals. In either event, there was no evidence that a difference in age translated into a difference in relevant experience. 24 T.T. at 50-51. 144. Defendant's expert did not show that white and black employees differed in their number of years of prior military experience. 24 T.T. 52. 145. Plaintiffs' expert pointed out the defendant's expert's testimony regarding the importance of prior experience and training was contradicted by other testimony offered by the defendant regarding training programs, upward mobility programs, and temporary assignments at the Jacksonville Naval Air Rework Facility. 24 T.T. at 54-55. 162 146. Another one of the defendant's expert witnesses had given the following testimony: 1) As skill levels were acquired, an employee could move from helper to worker to journeyman because NARF preferred to look within its own work force for employees skilled enough to promote. 12 T.T. at 175-176. 2) The purpose of the developmental programs was to increase skill levels of employees in those programs. 12 T.T. at 177. 3) The defendant individualized training of the employees within its work force to meet its needs. 13 T.T. at 69. 147. Defendant's expert acknowledged that specialized training and updating of skills took place while employees were at NARF. 19 T.T. at 31. For example, white aircraft mechanics, whose testimony was presented by NARF, testified that military aviation maintenance work was less heavy and less intensive that the aircraft work performed at NARF, and that they need on the job training and classroom training at NARF before they could perform NARF work. E.g., 20 T.T. at 45-46, 48 (Graziano); 20 T.T. at 57- 58 (Hagler). 148. Plaintiff's expert, also noted that the alleged importance of prior training and experience was not relevant to the plaintiffs' statistical showing that black and white employees comparably situated in the same grade and occupational series moved upward at statistically significantly different rates. 24 T.T. at 56. 163 DEFENDANT'S ARGUMENT THAT FEW EMPLOYEES PROGRESSED IN FWS JOBS 149. The defendant's expert witness attempted to rebut plaintiff's showing that black employees in the WG pay plan had fewer upward or outward movements than white employees by arguing that only a total of forty employees had progressed from the lower WG grades (grades 0 to 5) to the higher WG grades (grades 9 and above) during the relevant time period. 19 T.T. at 82. D. Exh. No. 4148. However, apprenticeships were not included in the tabulations. 19 T.T. at 86. 150. The count of 4 0 moves from the lower grades up through the grades did not include moves by employees who began their upward moves before the time period considered, even if they completed their progression during that time period. 19 T.T. at Likewise, the count did not include moves by employees who began their upward moves during the time period considered but completed their progression after the end of the time period. 19 T.T. at 134. Similarly, an employee who moved up from the lowest WG grade to the highest GS grade was not included in the count. 19 T.T. at 133-134. 151. The plaintiffs' expert pointed out that there were only 475 employees, by defendant's expert's count, who had any opportunity to move from the lower WG grades (grades 0-5) to the higher WG grades (grades 9+) during this period of time. Of course, some or many of these employees could have been employed for only a short period of time within the longer period of time under consideration and, therefore, did not really have an opportunity 164 to move up. Nevertheless, 256 of the 475 employees, 53.89%, actually did move up and out of the lower WG pay grades (grades 0-5). Additionally, 817 out of 1705 employees, 47.92%, in the middle WG pay grades (grades 6-8) actually did move into the higher WG pay grades (grades 9+) . There obviously was a great deal of movement. 24 T.T. at 45-46. 152. If there had been as little upward movement in the FWS pay system as defendant's expert tried to imply, it would have been truly astounding that plaintiffs were able to attain statistically significant results at the level at which they attained them. 24 T.T. at 47. PLAINTIFFS' REBUTTAL MOVEMENT ANALYSIS 153. Plaintiffs offered new movement analyses in rebuttal which met the criticisms of the defendant's expert witnesses in the following ways: 1) The data base was reduced to the period April 1, 1973 through December 31, 1982. 2) The computer program MULTEVENT was used and the Mantel-Haenszel z-values were calculated. 3) The set>of employees in the data base was reduced to include only permanent employees. 24 T.T. at 90-91. 154. The results of plaintiffs' rebuttal analysis were as follows with respect to the individual pay plans: 165 Black White Black White Expect Dif- Var- zwocPay zwc PI. Emol. Emol. Chance Chance B1 .Ch. fer ianc GS 533 6745 153 1352 154.87 -1.87 81.47 -0.21 -0.15 WB 14 270 13 180 11.59 1.41 .92 1.47 0.94 WD 36 1151 2 70 2.05 -0.05 1.72 -0.04 0.00 WG 2130 12922 212 1268 312.60 -100.6 138.77 -8.54 -8.50 WL 1 3 1 0 1.00 0 0 WN 0 118 0 8 0.00 0 0 WS 112 1166 11 121 14.41 -3.41 7.35 -1.26 -1.07 Tot. 2872 22357 392 2999 496.53 -104.5 230.23 -6.89 -6.86 24 T . T. at 96-98. P. Exhi. No. 270. 166 155. The results of plaintiffs' rebuttal analysis were as follows with respect to the individual years: Yr Black White Black White Expect Dif-- Var- ZWOC ZWC Enrol. Enrol. Chance Chance Bl.Ch. fer ianc 73 295 2494 16 111 14.20 1.80 6.87 0.69 0.50 74 267 2292 46 446 59.57 -13.57 26.16 -2.65 -2.56 75 315 2516 59 379 69.23 -10.23 23.40 -2.12 -2.01 76 298 2337 26 211 32.37 - 6.37 17.77 -1.51 -1.39 77 287 2209 31 257 39.58 - 8.58 21.68 -1.84 -1.73 78 279 2269 32 200 37.48 - 5.48 19.25 -1.25 -1.14 79 279 2204 30 222 38.74 - 8.74 21.71 -1.88 -1.77 80 258 1960 37 ' 318 44.43 - 7.43 24.84 -1.49 -1.39 81 289 1984 41 332 65.31 -24.31 29.75 -4.46 -4.36 82 305 2110 74 523 95.62 -21.62 38.82 -3.47 -3.39 Tot. 2872 22375 392 <2999 496.53 -104.5 230.23 -6.89 -6.86 24 T.T. at 98. P. Exh. No. 271. 167 156. The results of plaintiffs' rebuttal analysis with respect to occupational series GS-1152 were as follows: Black White Black White Expect Dif- Var- zwoc zwc Empl. Empl. Change Change B1■Ch. fer ianc ____ ____ 169 1584 45 376 55.17 -10.17 24.80 -2.04 -1.94 24 T.T. at 98-99. P. Exh. No. 272. The result was clearer if GS- 1152 pay grades 5 and above were considered because the one pay grade below 5, i.e., pay grade 4, had a small positive difference. 24 T.T. at 100. P. Exh. No. 272, at 2. 157. In the final rebuttal analysis, employees were stratified by occupational series as well as pay plan and pay grade, so that the comparison was between black and white employees who were in the same occupational series, pay plan, and pay grade at the beginning of each year. 24 T.T. at 91. Subdividing the employees into their occupational series as well as pay plan and pay grade, using the Mantel-haenszel statistic yielded an overall statistically significant result at more than 5.8 standard deviations which corresponds to a probability of approximately one-in-one-million. 24 T.T. at 101. 168 The results of this final rebuttal analysis were as follows with respect to Pay Black PI. Errol. the individual pay plans: White Black White Expect Enrol. Chancre Chancre Bl.Ch. Dif fer Var- ianc ZWOC zwc GS 533 6745 153 1352 169.05 -16.05 51.36 -2.24 -2.17 WB 14 270 13 180 11.81 1.19 0.66 1.46 0.85 WD 36 1151 2 70 1.99 0.01 1.61 0.01 0.00 WG 2176 12922 212 1268 267.14 -55.14 90.46 -5.80 -5.75 WL 1 3 1 0 1.00 0 0 WN 0 118 0 8 0 0 0 WS 112 1166 11 121 12.27 - 1.27 3.77 -0.66 -0.40 Tot. 2872 22375 392 2999 463.27 -71. 27 147.87 -5.86 -5.82 24 T.T. at 101. P. Exh. No. 273 • 158. The statistical results of the experts for the two parties actually corroborated 'each other. Defendant's expert obtained approximately two standard deviations for the promotional opportunities only. Plaintiffs' expert obtained over five standard deviations, but his analysis included all upward movements, at least four times as many movements as included by the defendant's analysis of competitive placements. The value of z increases as the square root of the number of observations, therefore, the defendant's expert's result corresponded to more 169 than four standard deviations, if he had included as many of the placements as the plaintiffs' expert included. 24 T.T. at 130. DEFENDANT'S SURREBUTTAL ARGUMENT THAT QUALIFIED PEOPLE ARE MORE LIKELY TO BE PLACED 159. Defendant offered data to show that applicants with either prior relevant military experience, as previously defined in their case-in-chief, or with apprenticeships, were statistically significantly more likely to be placed from competitive promotional opportunities within the FWS pay system. 25 T.T. at 39-40. D. Exh. Nos. 23 and 23A. 160. However, no attempt was made by defendant's expert to match the definition of prior relevant experience to the specific occupational series of the promotional opportunity. An applicant applying for a painting position was considered qualified if he had only prior electrical experience but would be considered unqualified if he had only prior painting experience because of the definition of relevant prior experience that was employed. 25 T.T. at 58-59. The defendant's expert witness did not mean to assert that the applicants considered qualified, under this definition, were the most qualified individuals. 25 T.T. at 61. 161. No analysis was done for the GS pay system. 25 T.T. at 61. 162. Defendant's expert further noted that most of the difference (40 of the 46 excess placements) was not whites with qualifications getting jobs instead of blacks without *3̂ ^̂ fixations, but was actually whites with qualifications 170 getting jobs instead of whites without qualifications. 25 T.T. at 40-41. There was a very small difference between placements for black applicants with qualifications and black applicants without qualifications. To the best of the expert witness's recollection unqualified blacks may have done very slightly better than qualified blacks. 25 T.T. at 53. 163. Defendant's expert stated that the difference between placements for qualified and unqualified whites produced a larger difference between qualified and unqualified applicants than was obtained when race was taken into account. 25 T.T. at 54. 164. Defendant's expert was asked the following question. "If in fact at the NARF there was discrimination against blacks in selection, -but as between whites — whites with qualifications were preferred over whites without qualifications — is there something in your analysis that would detect that situation?" He gave the following answer. "I've got to think about that one for a minute. (Pausing) I don't believe so. I think I probably could have designed such an analysis if I had thought of it, but I didn't." 25 T.T. at 54-55. DEFENDANT'S SECOND SURREBUTTAL ARGUMENT THAT QUALIFIED PEOPLE GET PLACED 165. The defendant offered a second expert witness on surrebuttal to argue that the plaintiffs had failed to recognize that people in the same pay plan, pay grade, and occupational series did not all have the same prior experience and, therefor^, did not all 171 have the same probability of being selected for a promotion. 25 T.T. at 100. 166. This second surrebuttal expert also employed the definition of relevant prior military experience used by the previous experts. The witness presented data showing the number and percentage of the promotees who had the defined qualifications, but no comparison of promoted and nonpromoted black and white employees was presented. 25 T.T. at 101-102. D. Exh. No. 4224. The exhibit dealt only with people who were promoted in the FWS system. 25 T.T. at 138. D. Exh. No. 4224. 167. The second surrebuttal expert described a statistical analysis in which the combined competitive and noncompetitive promotion analysis which the defendant used in the case-iri-chief was rerun using the additional variable of qualifications, as previously defined by the defendant's experts. This analysis showed that the FWS shortfall in black promotions was reduced by 1.5 selections; no analysis was conducted on the GS selections. 25 T.T. at 113-114. D. Exh No. 4226. 168. The second surrebuttal expert also described a conditional logit analysis to show the effect of the defined qualifications in 1) the FWS combined competitive and noncompetitive promotions previously analyzed by this expert and, 2) the FWS competitive promotional opportunity announcements previously analyzed by the first surrebuttal expert. 25 T.T. at 119. No analysis was done of the GS pay system. 25 T.T. at 122. She asserted that the 172 inclusion of qualifications into these conditional logit analyses decreased the Black shortfalls. 25 T.T. at 120. 169. The second surrebuttal expert admitted that, "Now, I do not yet have a measure of the difference in the importance of those qualifications for black employees relative to non-Black. ..." 25 T.T. at 124. She testified further that, "I have not done a separate study for black employees only, as I said, because there are not very many black employees who have the kind of related military training and apprentice training that we are using in this particular case. And as has been mentioned a number of times, it is a relatively crude measure, a yes/no variable that does not account for everything." 25 T.T. at 125. CLAIMS OF DISPARATE IMPACT 1. Plaintiffs hereby incorporate and adopt by reference all of the Findings of Fact set forth in Parts I and II of the Proposed Findings of Fact and Conclusions of Law. INDIVIDUAL DISPARATE TREATMENT ^* Plaintiffs hereby incorporate and adopt by reference all of the Findings of Fact set forth in Parts I and II of the Proposed Findings of Fact and Conclusions of Law. 173 GRADSON JOHNSON 2. Gradson Johnson began working at the NARF in 1952 when he was hired as a radio mechanic helper. 9 T.T. at 135. He had prior training in welding and blueprint reading while he was in the armed services and had had vocational training of lx years (including both classroom and bench work) in radio mechanics. 9 T.T. at 135-36; 9 T.T. at 166. When he tried to get the mechanic rate at the NARF he was told that he needed bench training. Id. 3. In 1964, Mr. Johnson transferred to production dispatch. 9 T.T. at 137. While in production control Mr. Johnson received a certificate for Control Center Proficiency Training, including 180 classroom hours and 1584 hours of on the job training. P. Exh. No. 92. In 1971, Mr. Johnson applied for a GS-7 position but was rated unqualified. 9 T.T. at 1*62. He was told that he had to have special training to get from the WG dispatcher category to the GS controller category. Id. At the time the dispatchers and the controllers were performing the same functions (writing parts, writing requisitions, ordering parts, chasing parts) except that the controllers were allowed to sign requisitions to buy parts. 9 T.T. at 164-65. 4. Mr. Johnson went through the training that NARF required, applied for a GS-5 and received it in December 1973. Two years later, he applied for a GS-7 and received it. In 1978 he applied for a GS-8 and received it. 9 T.T. at 163-65. 5. Mr Johnson received a certificate in 1978 for a 40-hour Navy 174 correspondence course in supervision and management. P. Exh. No. 93 . 6. Mr. Johnson applied for a GS-9 in 1979, received a rating of 93.3 but was not selected. P. Exh. No. 239. In October 1981, all GS—8s were converted to GS-9s. 9 T.T. at 164(7); P. Exh. No. 104 at 1. Mr. Johnson applied for a GS-10 in 1981 or 1982 but did not receive it. Id. He applied for a GS-11 in 1983, was rated qualified but not selected. Id. 7. Mr. Johnson has consistently received outstanding psrfontiance ratings. P. Exh. Nos. 94-98. For the period February 1974 to February 1975 he received outstanding ratings in "Quality and Adaptability factors." P. Exh. No. 94. For the period February 1975 to February 1976 he received outstanding ratings in "accuracy," "ability to work under pressure," and "cooperation." P. Exh. No. 95. For the period February 1976 to February 1977 he received outstanding ratings in "accuracy," "ability to interpret written instructions," "ability to work under pressure," and "cooperation." P. Exh. No. 96. For the period February 1977 to February 1978 he received outstanding ratings in "accuracy," "ability to work under pressure," "promptness of action," and "cooperation." P. Exh. No. 97. For the period February 1978 to February 1979 he received a rating of outstanding in "job knowledge," "accuracy," "ability to interpret written instructions," "work production," "ability to work under pressure," "promptness of action," "cooperation," 175 "dependability," and "knowledge, participation, support of management's socio-economic programs." P. Exh. No. 98. 8. In 1975, the supervisory appraisal which accompanied Mr. Johnson's application for promotion included the highest marks for "job knowledge," "accuracy," "ability to interpret written instructions," "initiative dependability," and "cooperation." P. Exh. No. 99. 9. Although Mr. Johnson was not selected for a GS-10 position when he applied in 1981 or 1982, he was responsible for "helping" the new supervisor in 1982. 9 T.T. at 160-61. The supervisor, Richard Walker, was new to the aircraft parts area and had previously worked with computers. Id. at 160. Although Walker was "taking over the control center," Mr Johnson would have to go with him to morning meetings before division heads "to explain what we were doing and where were the parts located, when they were due out and when we are expecting them. Id. This went on for about a month. Id. 10. Richard Walker recommended Mr, Johnson for a special achievement award in January 1983. P. Exh. No. 102. In that recommendation he confirmed his dependence on Mr. Johnson [H] e is responsible for the operation of the control center in my absence. He keeps me informed of potential work stoppages and trouble areas that need my attention. Id. Among his comments were: "Mr. Johnson is highly knowledgeable of his job duties & responsibilities." "He understands all functions as a GS-9 production controller." 176 "He has the ability to analyze problems and develop procedures to improve work production." "He consistently produces highest quality work and is accurate and thorough in assigned duties." "He works better under pressure and does not panic due to heavy workload or demanding circumstances." Id. Walker recommended a sustained superior performance award since Mr. Johnson "exceed[ed] standards in all elements of his performance." Id. 11. Mr. Johnson retired in 1985 as a GS-9. 9 T.T. at 173. MARCUS GARVEY ELLISON 12. Marcus Ellison began at NARF in 1950 as an Aircraft helper. 7 T.T. at. '2 8 , 13. In that position he cleaned, stripped and painted aircraft. 7 T.T. at 29. 14. Ellison was promoted to a helper general position where he assisted aircraft mechanics and received on the job training. Next he was promoted to Aircraft Mechanic General where he got his own tools and did , jobs at the direction of a mechanic. In [date] he was promoted to production dispatcher. 7 T.T. at 29- 31. 15. As a production dispatcher, Ellison was doing essentially the same thing as a production controller. 7 T.T. at 36. Ellison also had a certificate for successfully completing a course in blueprint reading for naval aircraft. 7 T.T. at 33-34? P. Exh. No. 37. 177 16. Ellison was told that his experience as a production dispatcher did not qualify him for a production controller position and that he had to take a special course in order to become eligible. Although the course was instituted, Ellison was not allowed to take it. 7 T.T. at 35-36. 17. Ellison applied for GS-5 Production Controller positions between April 1973 and October 1974 when he was promoted to that level. 7 T.T. at 37. Ellison applied for promotion to GS-7 positions. The difference between a GS-5 and a GS-7 was the amount of monetary authority when ordering. 7 T.T. at 43. On announcement 87-75 he was rated ineligible. P. Exh. No. 225. He later applied again under the same announcement number and was rated 91.6. P. Exh. No. 224. He finally got a GS-7 position in October 1976. 7 T.T. at 41. When Ellison was applying for the GS-7 level those jobs were being awarded to white employees. 7 T.T. at 45. 18. After receiving a GS-7 position, Ellison tried to promote to the GS-8 level. He applied in 1977, was rated highly qualified, but was not selected. A white employee received the position. 7 T.T. at 45-46. He applied again in 1978, announcement numbers 128-78 and 233-78, and was rated highly qualified with a score of 89.1 on each. P. Exh. Nos. 226 and 227; 7 T.T. at 46-49. Four whites and one black were selected for GS-8 positions in 1978. 7 T.T. at 51. 19. Ellison applied again for a GS-8 in 1980 but was not selected. 7 T.T. at 45. Instead he was temporarily assigned to a 178 GS-8 position, control center manager. P. Exh. No. 45; 7 T.T. at 52-54. He remained in that position from July 1980 until [date] 1981. During this period of time the NARF did not open the position up for a permanent promotion nor did it pay Mr. Ellison for occupying this high level position. 7 T.T. at 56. By memo dated February 11, 1981, Mr. Ellison complained about this situation and requested that he be paid backpay for encumbering the position for nine months. P. Exh. No. 45. The foreman over the control division responded, by memo dated February 19, 1981, by asking that Mr. Ellison's position be filled by temporary promotion or detail. P. Exh. No. 44. He further indicated that the position was "highly important to our productive efforts." Id. By memo dated March 3* 1981, Mr. Ellison .requested a response to his February 11, 1981 memo. P. Exh. No. 46. By memo dated March 18, 1981, the division director responded by saying that he would note Mr. Ellison's "very satisfactory" performance on his employee jacket but said nothing about paying Mr. Ellison. P. Exh. No. 47. 20. Mr. Ellison went to the EEO office to complain, but the EEO person tried to dissuade him from filing a compliant. 7 T.T. at 61. His supervisor, Mr. Boone told him not to file and he, Ellison would get the next vacancy. 7 T.T. at 62-63. Mr. Ellison filed his EEO complaint, but it was two days late. 7 T.T. at 66- 67. Nevertheless, the commanding officer agreed that Ellison should receive backpay for the period for which he served in the GS-8 position which exceeded 120 days. P. Exh. No. 50; 7 T.T. at 179 68-72. The first 120 days would simply be considered a detail and a personnel action form would be prepared indicating that Mr. Ellison was temporarily promoted from December 9, 1980 to March 21, 1981. Id. 21. During the period May 1, 1980 to May 1, 1981, Mr. Ellison's supervisor rated him "outstanding" in job knowledge, stating that he "has gained a superior knowledge of his program and he has the ability to apply knowledge in an outstanding manner." P. Exh. No. 54 at 1. The supervisor also rated Mr. Ellison "outstanding" in accuracy, stating that he has maintained a superior reduction in error rates while experiencing numerous short comings in processes under way." Id. ^The supervisor also rated Mr. Ellison "outstanding" in the amount of work produced, stating that he "has maintained a superior productivity record. His program has remained on schedule almost the whole rating period." Id. The supervisor also rated Mr. Ellison "outstanding" in ability to work under pressure, stating that "[p]ressure and adverse conditions has[sic] not shown to effect[sic] Mr. Ellison's ability to perform in a superior manner at all." Id. at 2. The supervisor also rated Mr. Ellison "outstanding" in cooperation, stating that he "has proven his adaptability in cooperating to the highest with all personnel that he has come into contact with. Outstanding this rating period." The supervisor also rated Mr. Ellison "outstanding" in dependability, stating that Mr. Ellison was "[a]bove approach[sic]. Completely dependable in 180 advance planning of his leave and remaining on the job." Id. In the comments section, Mr. Ellison's supervisor stated that: Mr. Ellison has been very instrumental in the supporting efforts of the J52 engine program. During a period of this rating period Mr. Ellison very satisfactorily carried out most of the duties of the control center manager. This position was vacated on 11 August 1981. Mr. Ellison's knowledge of the J52 engine components and their application has been an asset. He has displayed a willingness to take on extra responsibility. Mr. Ellison has been a dependable employee and a credit to the production success of his program. P. Exh. No. 54 at 3. 22. Mr. Ellison applied for a GS-8 position in May 1981 under announcement 190-81 and was rated 90.8. P. Exh. No. 232. This was only 1.7 points higher than he had received in 1978 for GS-8. P. Exh. No. 2^6. He was not selected, but white employees were. P. Exh. Nos. 233 and 234; 7 T.T. at 73-74. Of the six white persons selected, four came into the department after Mr. Ellison and one was not in the department when selected. 7 T.T. at 92-93. At least one of them had reached the GS-11 level by the time that Mr. Ellison retired. 7 T.T. at 94. 23. In 1981, GS-8 production controllers were converted to GS-9 level. 7 T.T. at 86. Mr. Ellison filed his SF 171 for a GS-9 position. He was promoted in January 1982. 7 T.T. at 99. 24. Mr. Ellison applied for GS-11, supervisory positions, both before and after reaching the GS-9 level. 7 T.T. at 87-88. P. Exh. No. 236. He received outstanding evaluations and was selected as professional of the month. 7 T.T. at 89. He was temporarily promoted to GS-11 for thirty days in 1986, but never 181 selected for permanent promotion. 7 T.T. at 90. January 1987 as a GS-9. Id. He retired in WILLIE ROBINSON 25. Mr. Robinson attended Florida A & M University, where he studied electricity and received a B.S. Degree in Industrial Education in 1950. 11 T.T. at 4. 26. During World War II, Mr. Robinson served as an electrician in the Corp of Engineers. Mr. Robinson also served in the Korean War as an artillery fire control officer. At the time of his separation from the service Mr. Robinson held the rank of First Lieutenant. Mr. Robinson continued to serve his country in the reserves for the next twelve yearns and achieved the rank of Captain. 11 T.T. at 4-5. 27. Mr. Robinson was first employed by NARF in 1951, however his employment was interrupted after two months by service with the United States Army during the Korean conflict. Told he was not eligible for reemployment rights, Mr. Robinson applied and was accepted into the apprentice training program in electronics. 11 T.T. at 6. 28. Following completion of the apprentice program in 1958, Mr. Robinson was assigned as a Radio Mechanic Helper, as opposed to Journeyman Radio Mechanic. 11 T.T. at 7. 29. After the filing of a complaint regarding this assignment, Mr. Robinson was made a Production Dispatcher, a position which did not allow him to practice his craft. However, during this 182 period, from 1958 until approximately 1962, Mr. Robinson was repeatedly loaned to departments which could use his electronics training, even though he received neither the pay or rating for that work. 11 T.T. 8. 30. Mr. Robinson was subsequently moved back into his craft area as a Radio Mechanic, WG-10 in 1963 or 64 (the position to which most Apprentice graduates are originally assigned), and the following year he was promoted to WG-11 Radio Mechanic. 11 T.T. at 8-9. 31. Mr. Robinson remained a WG-11 from 1964 until 1983. During this period Mr. Robinson applied for a number of positions including, electronics mechanic, supervisory positions, production controller positions, as well as EEO and other counseling positions. 11 T.T. &t 9. 32. Mr. Robinson applied for the position of Electronics Mechanic Foreman, WS-12, a position for which he was rated highly qualified, (85) . The employee who received the position was Mr. Micheal Ceballos, Jr., a non-black, who graduated from the aPPrentice program three years after Mr. Robinson. 11 T.T. at 10-11; P. Exh. No. 112 (Announcement No. 196-74). 33. Mr. Robinson applied for, but was denied the position of Electronics Mechanic, WG-12, Announcement Number 19-73, and received a Notice of Rating of 85 (Highly Qualified), the position was awarded to a white male. 11 T.T. at 11; p. Exh. No. 113; D. Exh. No. 287-D; 21 T.T. at 133 (Francis Fox). 183 34. Mr. Robinson's rating sheets are instructive with regard to the arbitrariness of the rating system. For example, D. Exh. 287 D(3) , shows the ratings Mr. Robinson received from the three member rating panel for Announcement Number 19-73. This rating took place in 1975. All three raters gave Mr. Robinson a total raw score of 21, and his final score was 85.0, or highly qualified. On the seven elements considered, one rater rated only the first element on the poor, average, above average, outstanding scale, rating Mr. Robinson as average as opposed to above average as the other two raters did. With regard to elements two, three, four, and five, two raters, rated Mr. Robinson above average. On element six the two raters rated Mr. Robinson outstanding. And on element seven, one rater rated as average, the other rated Mr. Robinson as poor. However, notwithstanding the differences in the verbal scale used by the raters, the point values given by each of the individual raters was exactly the same. That is on element one, notwithstanding the fact that two raters rated Mr. Robinson above average, while one rate Mr. Robinson . average, each rater rated assigned Mr. Robinson, a point value of 3. On elements two, three, four and five each rater rated assigned Mr. Robinson a point value of 3. On element 6 each rater, assigned Mr. Robinson a point value of 4. And on element seven, notwithstanding a rating of average by one rater and poor by another, each rater assigned Mr. Robinson a point value of 2. If follows that it cannot be claimed that the verbal ratings correspond precisely to the numerical values. 184 Indeed the relative values assigned are plainly determined by the whim of the rater. One of the raters included the following narrative in describing Mr. Robinson's capabilities: "Needs less than normal supervision; Has the ability & training to select & use correct tools; Has knowledge skills to locate malfunctions and repair; Has ability to select and use complex test equip[ment]; Apprentice trained." D. Exh. No. 287 D (3). 35. Mr. Robinson applied for, but was denied the position of Electronics Foreman, WS-12. Mr. Robinson was rated eligible for the position, however it was awarded to Mr. Francis F. Fox, a white male. 11 T.T. at 12; P. Exh. No. 115. 36. Mr. Robinson applied for the position of Electronic Integrated Systems Mechanic Foreman, WS-12, Announcement No. 227- 76. Mr. Robinson was found ineligible for this position by virtue of the determination that he failed to pass the screen out element, here, the ability to supervise. As a result Mr. Robinson was not rated for the position. Mr. Robinson was qualified for this position by virtue of his experience in the area and training in the apprentice program. 11 T.T. at 13. 37. Mr. Robinson filed a complaint regarding his failure to pass the screen out element for the position of Electronic Integrated Systems Mechanic Foreman, WS-12, Announcement No. 227-76, and an investigation was conducted by Navy personnel regarding the complaint. 11 T.T. at 16-17; P. Exh. No. 119. 38. The Navy issued a report indicating that: A comparison of the qualifications used in Merit Promotion Announcement 227-76 with Handbook X-118C 185 reveals that job elements 3, 5 and 7 used in the announcement were deleted from this job family in February 1975. Chapter II of Handbook X-118C provides for the deletion, addition or change of job elements and provides that where such changes are made, appropriate justification must be established. No evidence exists in the case file provided that such justification was made. P. Exh. No. 119 at 2 f 4. Similarly, while the Navy report acknowledges the fact that Mr. Robinson had prior supervisory experience, including his experience as a Captain in the United States Army Reserve, the report did not recommend any change in the finding of ineligibility based on that experience. 11 T.T. at 16-17; P. Exh. No. 119 at 2 f 6. 39. During this same period Mr. Robinson applied for several other positions involving ratings of WG-12, WS-12 and WS-11. 11 T.T. at 17. 40. In 1983 Mr. Robinson was promoted to WS-11. 11 T.T. at 17. 41. During the period from 1973 to 1983 Mr. Robinson applied for, but was denied supervisory positions in Production Control and for positions as an Equal Employee-tit Opportunity official.. 11 T.T. at 18. 42. Mr. Robinson was often detailed to places that offered no benefit insofar as offering him experience that would enhance his opportunity for advancement or promotion. For example, Mr. Robinson was detailed or loaned to the engine shop where he worked on cylinders for reciprocating engines; he was loaned to the cleaning shop, where he worked cleaning aircraft engine i once the aircraft was disassembled; he was loaned to the 186 plating shop, a dead end job which offered less opportunity than his actual position. 11 T.T.. at 19. 43. In contrast, white employees in his area would be detailed to white collar areas in production control, or, on the line, where electronic equipment would be installed in the aircraft. 11 T.T. at 19. Experience on the line would have been particularly relevant to the position of Electronic Integrated Systems Mechanic Foreman, WS-12, the position for which Mr. Robinson was found ineligible. 20 T.T. at 125 (Hall) 44. In 1979 Mr. Robinson was detailed to Production Control, however when he ultimately applied for a position in the Production Control area he was not given the benefit of that experience and was ruled ineligible. 11 T.T. at 11. 45. Mr. Robinson's yearly supervisory appraisals, were generally highly satisfactory. And, while he occasionally received an outstanding rating he never received "Three 0's", for overall outstanding performance. 11 T.T. at 10-11.. 46. Notwithstanding Mr. Robinson's experience as a graduate apprentice and years of service as a WG-11, Radio Mechanic, Mr. Robinson did not serve as a voting member of any rating panels. 11 T.T. at 21. 47. While it is true in theory that a journeyman should be able to handle more complex equipment than a worker, in practice you often have over qualified workers, who learn their craft from on-the-job training and through years of experience. These workers can and often are assigned to do the job of journeymen, 187 and form the pool of employees who would be eligible for promotion to journeyman positions. 11 T.T. at 34. 48. D. Exh. 2792 49. Mr. Barry J. Sanderson became an Electronics Mechanic Foreman, WS-12, in 1980 and a Electronic Measurement Equipment Mechanic General Foreman, WS-17. Like Mr. Robinson, Mr. Sanderson is a former apprentice, having begun his apprentice training in Norfolk, Virginia, and completed his training in Jacksonville. As is the case with Mr. Robinson, in addition to his craft training, Mr. Sanderson also has a college degree. However unlike Mr. Robinson, Mr. Sanderson does not have any related military experience, and completed his apprentice training in 1970, eight years after Mr. Robinson completed his. 19 T.T. at 168. 50. In 1973 Mr. Sanderson received an upgrade as a result of a reclassification. This was not a merit promotion, though he moved form WG-11 Electronics Mechanic to WG-12, and also received an increase in pay. 19 T.T. at 177. 51. Mr. Sanderson sat’ on a rating panel that considered Mr. Robinson's application for promotion, and reviewed his SF 171. D. Exh. 2878. 52. Mr. Sanderson testified that while serving on the rating panel that reviewed Mr. Robinson's SF 171 he found that the 171 addressed all the critical elements, and but felt that Mr. Robinson was better qualified than was indicated on the 171. Mr. Sanderson testified, however, that he found the 171 to be 188 inadequate in that it "wasn't extremely neat" and was "somewhat disorganized", and that the supervisory appraisal was only satisfactory. Mr. Sanderson further testified that neatness and organization was a factor considered by the raters, since the lack of same makes the rater's job more difficult. 19 T.T. at 182-182. S.K. SANDERS 53. Plaintiff Sanders served in the Army during the Second World War as an aircraft mechanic helper performing troubleshooting and electronic test equipment work. P. Exh. No. 78, P. Exh. 261 at 35-37. He received on the job training in electrical, hydraulic and instrument panel systems. Id. Sanders also worked at the post exchange. Id. at 39-40. He received an automobile mechanic certificate in 1947. Id. at 40, 42. 54. Plaintiff Sanders started at NARF in 1948 as a Laborer. P. Exh. 261 at 44. He was assigned to aircraft disassembly as a helper general in 1949. Id. at 45. He was production dispatcher from 1961 to 1973. Id. at 283-84. He was promoted to GS-5 in 1973, after going through blueprint and mechanical drawing training. Id. at 107-08, 289. The training was unnecessary. Id. 55. Plaintiff Sanders applied for a promotion to GS-7 in aircraft production controller in 1969. P. Exh. 261 at 289. Sanders got a score of 89.3 on the production controller examination for GS-6 and 7 in 1969 and was rated highly eligible. 189 Id. at 290. He, however, did not receive notice of the score or rating until 1975, when he eventually received a promotion to GS- 7. Id. at 290-91, P. Exh. No. 89. 56. During the 1969-75 period, the following occurred: Five white employees were promoted to GS-6 jobs over Sanders. P. Exh. No. 261 at 292. Sanders applied for a GS-7 aircraft production controller position in 1971 and was found ineligible. Id. at 303-04. He applied for a GS-7 electronic production controller position, id. at 78-80, 304, but this application was not considered for the promotion. D. Exh. No. 4172 at Decuers Statement, p. 1. When he complained, he was marked ineligible. Id. Sanders was also denied an upward mobility promotion in 1975 to GS-7 industrial engineering technician with eventual mobility to GS-9 although rated as having excellent or above average potential. P. Exh. No. 261 at 310-11, P. Exh. No. 90. Had he been promoted to GS-7 earlier he would have qualified. P. Exh. No. 261 at 310-11. 57. Captain Heile, the Commanding Officer, told Sanders to supplement one of his applications to production controller. After Sanders was denied promotion to production controller, Captain Heile told him that "it's the same old black and white thing." P. Exh. No. 261 at 81-82. 58. A majority of the production dispatchers in the production control department were black. P. Exh. 261 at 282. In 1971, only one of 134 production controllers were black. Id. at 282- 83, D. Exh. No. 4172 at EEO counselors report, p.2. 190 59. Production dispatchers trained production controllers who usually came off the bench as journeymen. P. Exh. 261 at 231. For example, plaintiff Sanders helped train two white employees promoted over him to controller in 1969. Id. at 66-67. 60. Plaintiff Sanders performed the work of a GS-7 and GS-9 production controller although his job title was production dispatcher from 1961-73. P. Exh. 261 at 65-66, 135-36, 284-86, P. Exh. 84, 85. 61. Sanders retired on disability for reasons of health in 1976. P. Exh. 261 at 262-63. 62. Plaintiff Sanders has been treated since 1960 for paranoid ideation due to exposure to toxic chemicals on the job. 11 T.T. at 46-47 (Miller) . Sanders was unable to testify at the trial because testimony would have adversely affected his health, id. at 51. ANDREW NORRIS 63. Mr. Andrew Norris was employed by the Defendant, Jacksonville, NARF, in -January, 1957, P. Exh. No. 267 at 24, and retired in 1981. P. Exh. No. 167 at 87. 64. Mr. Norris received training in electronics from the Radio Institute of the United Educational Broadcasting Association of America; the Coyne Electronic Institution of Chicago; and the Apprentice School of the Naval Air Rework Facility. P. Exh. No. 267 at 24. 191 65. Mr. Norris was hired as a WG-5, radio mechanic helper and was promoted to Electronic Worker, WG-8, in 1969. P. Exh. No. 267 at 25-26. 66. Mr. Norris served as president of the group, Minority- Employees of NARF, P. Exh. No. 2 67 at 27, whose purpose was to assist minority employees at NARF in seeking equality of job opportunity, promotions, job training and assignments. P. Exh. No. 267 at 28. 67. During the pre-Act period, supervisors were often openly hostile to black employees. P. Exh. No. 260 at 54. 68. In 1973 Mr. Norris was denied a promotion to WG-11, and told to resubmit his application, notwithstanding the promotion of 13 white individuals from his shop. P. Exh. No. 260 at 57-69. 69. Following his failure to get promoted in 1973, Mr. Norris felt it would be futile to make any inquiries regarding his failure to be promoted.’ P. Exh. No. 260 at 78. 70. In May 1975 Mr. Norris was again found eligible for promotion but was not selected for the WG-11 position. P. Exh. No. 260 at 81. 71. The selecting official had the discretion of selecting an individual for a position who was rated lower than highly qualified or best qualified. That is, notwithstanding the appearance of individuals with scores of 85 or above, the selecting official could choose an individual with scores of 72 or 75. P. Exh. No. 260 at 92. 192 72. In 1976 Mr. Norris was again turned down for promotion to WG-11. Mr. Norris's rating was 79.3, and notwithstanding the additional experience of passing years, and resubmitting his application, his numerical rating remained constant. P. Exh. No. 260 at 96, 107, P. Exh. No. 260 at Vol II p. 29-30. 73. Mr. Norris continued to apply for promotion and resubmit his application (SF 171 and/or supplemental sheets), without effect, until 1977. P. Exh. No. 167 at 97-105; P. Exh. No. 260 at Vol III p. 109-110. 74. Following years of rejection for promotion and his failure to improve his numerical rating beyond 79.3, Mr. Norris came to believe promotion was being deliberately withheld from him for discriminatory reasons. P. Exh. No. 260 at 109-111. These suspicions were confirmed during a conversation Mr. Norris had with Captain Brandell, wherein the Captain asserted "its kind of file a complaint against your supervisor and expect him to promote you". P. Exh. No. 260 at 110. 75. Mr. Moran was similarly effected by his inability to raise his rating substantially above 84.4, notwithstanding the passage of intervening years, additional experience and complaints to the commanding officer. P. Exh. No 260 at Vol. II p. 45-48. 76. Mr. Norris testified at deposition that his continued failure to be promoted served to discourage him from applying for a variety of more senior or supervisory position. P. Exh. No. 260 at Vol II p. 53-55. Similarly Mr. Norris testified that the racial attitude and actions of his supervisor also discouraged 193 him from applying. Specifically Mr. Norris testified regarding his supervisor, Mr. Aaron's refusal to allow a black trainee to learn anything other than manual labor type tasks in the shop. P. Exh. No. 260 at Vol II p. 56-57. 77. Mr. Norris applied for promotion pursuant to announcement numbers 19-72, P. Exh. No. 260 at Vol II p. 74, and 1973. 78. Mr. Norris testified at deposition that the use of all white supervisors and the nonrepresentation of blacks on promotion or rating panels, and the subjective decision making they utilized served to disproportionately disqualify black employees. P. Exh. No. 260 at Vol II p. 78-79, 90-92. 79. Mr. Norris testified that he consistently received performance appraisals of satisfactory; rarely if ;ever receiving highly satisfactory from his white supervisors. P. Exh. No. 260 at Vol II p. 94-116. 80. Mr. Norris testified at deposition regarding the use of detailing by department heads and management to allow favored employees experience which would be helpful in obtaining a highly qualified rating and therefore enhance an employee's prospects for promotion. P. Exh. No. 260 at Vol III p. 91-92. 81. During the 1970's Mr. Norris was detailed from his parent electronic shop to the fuel control shop; a detail that could not provide any experience which would be helpful in obtaining promotion. P. Exh. No. 260 at Vol III p. 116-117. 82. Mr. Norris testified at deposition that his detail to the fuel control shop was an act of reprisal following his 194 discussion with the Captain regarding the failure of blacks to obtain promotion and equal job opportunities. P. Exh. No. 260 at Vol III p. 117-119. 83. Mr. Norris served on the EEO Committee for five years. P. Exh. No. 267 at 36. 84. Mr. Francis Fox was employed by the NARF from April 1965 until January, 1986. Mr. Fox was hired as a WG-11, Electronics Mechanic, and was promoted in 1971 to WS-11. 21 T.T. at 125-126. 85. Mr. Francis Fox was on various rating panels which rated Mr. Norris. From 1973 until 1977, Mr. Norris rating remained 79.3, or qualified, and while his application was often noted for "Good performance", it also carried an indication that "No change in [his] previous grade was necessary" . 21 T.T. at 139, 140-141; D. Exh. No 287/D-2. 86. In 1980 and 1981, while Mr. Sanderson served as Mr. Norris's supervisor, rated him as highly satisfactory or outstanding and encouraged him to do more complex tasks with a view toward preparing him for promotion. 19 T.T. at 180. WILLIE MORAN 87. Mr. Willie W. Moran was employed by the NARF from February 1942 through June 1973. P. Exh. No. 267 at 63. 88. Mr. Moran received electronics training in the United States Army from 194 3 to 194 6, and when he left the service he underwent on-the-job training at NARF for two additional years 195 before being obtaining a Radio Mechanic Rate of WG-10 in 1948. P. Exh. No. 267 at 63-65. 89. Mr. Moran was promoted in 1959 to Electronic Mechanic WG-11 and to Electronics Mechanic System, WG-12 in 1963. This was the highest rate ever received by Mr. Moran. P. Exh. No. 267 at 65, 70. 90. Mr. Moran applied for promotion to supervisory positions on many occasions, however notwithstanding the fact that he served as temporary supervisor on many occasions, he was never rated highly qualified and was never promoted. P. Exh. No. 267 at 71, 73-75. 196 PART III CONCLUSIONS OF LAW JURISDICTION 1. The Court has jurisdiction of this action and plaintiffs have fully complied with the jurisdictional prerequisites set forth in 42 U.S.C. § 2000e-16(c). 2. This case is properly maintainable as a class action and the plaintiffs are proper class representatives. 3. The administrative complaint of Plaintiff Andrew Norris and the Third Party administrative group complaint filed by the Concerned Minorities of NARF, are sufficiently broad in scope to cover all the practices challenged in the judicial complaint filed in this case. Griffin v. Carlin. 755 F.2d 1516, 1522’ (11th Cir. 1985); Evans v. U.S. Pipe & Foundry Co.. 696 F.2d 925, 929 (11th Cir.1983); Eastland v. Tennessee Valley Authority. 704 F.2d 613, 617 (11th Cir.), Modified 714 F.2d 1066 (1983), cert, denied sub nom. , James_v_.__Tennessee Valiev Authority. 465 U.S. 1066 (1984). PATTERN AND PRACTICE OF DISPARATE TREATMENT 4 * The tw° subparts of §703 (a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et sea.. state; It shall be an unlawful employment practice for an employer: \ 197 1. to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or 2 . to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. §2000e-2(a). This statutory language establishes a comprehensive framework embracing both forms of employment discrimination; disparate treatment and disparate impact. 5. The Supreme Court has applied §703(a)(1) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et sea, in a variety of circumstances involving intentional discrimination. See e. cj. , McDonnell Douglas Corp. v. Green r 411 U.S. 792 (1973) ("McDonnell Douglas") (individual disparate treatment) ; Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702 (1978) (direct evidence of a policy of disparate treatment); International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977) ("Teamsters") (pattern or practice of disparate treatment). 6. If persons of one race receive different treatment from persons of another race who are otherwise similarly situated, and there is not adequate nonracial, explanation for the different treatment, then it is reasonable to infer that race was a factor in the disparate treatment. 198 7. In Teamsters. 431 U.S. 324, 335-36 n. 15, the Supreme Court stated: "Disparate treatment" . . . is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. [Citation omitted] Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII. 8 . The courts have relied upon a variety of types of evidence to find improper motive or discriminatory intent, including historical, individual and circumstantial evidence. Page v. U.s. Indus. ,_Inc. . 726 F.2d 1038, 1046 n.91 (5th Cir. 1984). Thus, testimony of specific instances of discrimination against plaintiff class membe.rs, Payne v. Travenol Laboratories. Inc.. 673 F.2d 798, 817 (5th Cir.), reh'q denied. 683 F.2d 417 (5th Cir.), cert denied, 450 U.S. 1038 (1982), and the undisputed existence of discrimination prior to the enactment of the equal opportunity law, Payne v. Travenol Laboratories. Inc., supra, Van Aken v. Young, 541 F.Supp. 448, 457 (E.D. Mich. 1982), aff'd. 750 F.2d 43 (6th Cir. 1984) ; have each been used to buttress class action claims and support a finding of discriminatory intent. 9. The use of subjective criteria may create or strengthen an of discrimination since the rejection of an otherwise individual on the basis of subjective considerations provides an opportunity for unlawful discrimination and entitles plaintiff to an inference of discrimination. Burrus v. United 199 Tel. Co. , 683 F.2d 339 (10th Cir.)/ cert denied. 459 U.S. 1071 (1982); 0'Brien v. Sky Chefs Inc.. 670 F.2d 864 (9th Cir. 1982). 10. In proving a disparate treatment case statistics can establish discriminatory motive. Sweenev v. Board of Trustees. Keene State College. 569 F.2d 169, 177-79 (1st Cir. 1977). Indeed, gross statistical disparities alone may justify an inference of a discriminatory motive and thus establish a prima facie disparate treatment violation. Hazelwood School District 2L=_United States. 433 U.S. 299, 307-308 (1977) ("Hazelwood"); Davis v. Califano, 613 F.2d 957, 962-65 (D.C. Cir. 1979); Seaar v. Civiletti. 508 F.Supp. 690 (D.D.C. 1981). 11. Reliance on procedures involving the use of vague and subjective criteria can serve to corroborate statistical evidence of discrimination. United States v. Hazelwood School ' 534 F. 2d 805, 813 (8 th Cir. 1976) , rev'd on other grounds. 433 U.S. 299 (1977). 12. In class actions and other cases involving claims of intentional discrimination against members of a race, statistical or other evidence of a "pattern or practice" of disparate treatment is sufficient to establish a prima facie violation in the absence of direct evidence of intentional discrimination. Teamsters, 431 U.S. at 360; Franks v. Bowman — ‘̂ar>sportation— Co. , 424 U.S. 747, 751 (1976) . "The burden then sĥ -f̂ -s the employer to defeat the prima facie showing of a pattern or practice by demonstrating that [plaintiffs'] proof is either inaccurate or insignificant." Teamsters. 431 U.S. at 360. 200 See also Hazelwood. 433 U.S. at 310. If the employer fails to rebut the prima facie case, the court concludes that a violation has occurred and enters appropriate class wide declaratory and injunctive relief without hearing further evidence. Teamsters, 431 U.S. at 361. 13. In a class wide disparate treatment case, the allegedly discriminatory conduct is not a single, isolated decision affecting only one individual, but rather a broadly applicable practice of intentional discrimination affecting the class as a whole. In such a case, plaintiffs establish a prima facie case by introducing statistical or other evidence of a "standard operating procedure" of class wide disparate treatment, Teamsters, 431 U.S. at 336; see also-Page v. U.S. Indus.. Inc.. 726 F.2d at 1046 n. 91, or by proving the class wide application of a facially discriminatory policy. Trans World Airlines v. Thurston, 469 U.S. Ill, 121 (1985). Proof of a prima facie case shifts the burden of persuasion, not the burden of production, to the employer. See Teamsters. 431 U.S. at 360; Thurston. 469 U.S. at 122-25. Once plaintiff has borne his burden of proof to establish a violation of Title VII, defendant then has the burden of establishing what is, in essence, an affirmative defense. see Guardian's Association v. Civil Service Commission. 463 U.S. 582, 598 (1983) (White, J., announcing the Court's judgment and delivering an opinion joined by Rehnquist) (employer has burden of demonstrating business necessity as an "affirmative defense to claims of violation" of Title VII.) 201 14. The decision of the United States Supreme Court in Wards Cove Packing Co. Inc., v. Atonio. 490 U.S. -- , 104 L.Ed 2d 733, 109 S.Ct. (1989), which addressed the disparate impact approach, did not explicitly or implicitly overrule Teamsters. 15. Once an employer has set forth its proffered reasons for its actions, the plaintiff may prove pretext either directly, by persuading the court that a discriminatory motive more likely motivated the employer, or indirectly, by showing that the employer's proffered explanation is unworthy of credence. Bell 2L-_Birmingham Linen Serv. . 715 F.2d 1552, 1557 (11th Cir. 1983), cert denied, 467 U.S. --- (1984); Fields v. Bolaer. 723 F.2d 1216, 1219 (6th Cir. 1984); Tate v. Weyerhaeuser Co. . 723 F.2d 598, 603 (8th Cir. 1983), cert denied. 469 U.S. --- (1984); Thorne v. City of El Segundo. 726 F.2d 459, 465 (9th Cir. 1983), cert denied, 469 U.S. --- (1984); Martinez v. El Paso Countv. 710 F.2d 1102, 1104 (5th cir. 1983). 16. Plaintiffs established discrimination under the disparate treatment theory by the introduction of documentary, anecdotal and statistical proof af discrimination. 17. The evidence presented by plaintiffs established that NARF's policies and practices applied differently to blacks than to whites, and that the defendant was aware of this effect but to act. For example, the 1973 Civil Service Commission report established the existence problems regarding details, training, and promotion boards, and every narrative Affirmative Action plan in the 1973-85 period reiterated these problems. 202 The Affirmative Action Plans required remedial actions, such as rotating details, adding blacks to promotion boards and more training for blacks. NARF, however, failed to implement these recommendations in any meaningful fashion during the liability period. 18. The defendant's refusal to adopt the remedies or modifications to its practices which were consistently recommended since 1973 , and which would have addressed the discriminatory nature of its promotion system, establishes that NARF's belatedly proffered explanations for this failure are mere pretext, and that the defendant is in violation of Title VII. CLASSWIDE CLAIMS OF DISPARATE IMPACT 19. In enacting §703(a)(2), of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seg., "Congress required the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.'" Dothard v. Rawlinson. 433 U.S. 321, 328 (1977) ("Dothard") (quoting Griggs. 401 U.S. at 431). The gist of [a §703(a)(2)] claim . . . does not involve an assertion of purposeful discriminatory motive. it is asserted, rather, that these facially neutral qualifications work_ in fact disproportionately to exclude women from eligibility for employment. . . [T]o establish a prima facie case of_ discrimination, a plaintiff need only show that. the facially neutral standards in question select for hire in a significantly discriminatory pattern. J \ 203 20. Title VII "police[s]" not only the problem of intentional discrimination through the disparate treatment analyses available under §703 (a) (1), but also "the problem of subconscious stereotypes and prejudices," Watson v. Fort Worth Bank & Trust Co., 487 U.S. --- , 101 L.Ed 2d 827, 108 S. Ct. at 2786 (part II B) (1988) ("Watson"), and "built-in practices preserved through form, habit or inertia." S. Rep. No. 88-867 at 11. The latter purpose derives from the terms of §703(a)(2) and, as Congress recognized, is enforced by application of the disparate impact analysis articulated in Griggs and Atonio. 21. When a plaintiff proves that a facially neutral practice has significant adverse impact, the plaintiff has established the very conduct that §703 (a) (2) prohibits. Watson. 108 S. Ct. at 2794 (Blackmun, J., concurring in part and concurring in the judgment) ("unlike a claim of intentional discrimination, which the McDonnell_Douglas factors establish only by inference, the disparate impact caused by an employment practice is directly established by the numerical disparity"); see Sattv. 434 U.S. at 144 ("Griggs held that a violation of §703 (a) (2) can be established by proof of a discriminatory effect"). Similarly, in both the direct evidence (Thurston ̂ and pattern or practice ional discrimination (Teamsters) models, the prima facie case directly establishes the discrimination prohibited by §703(a)(1). The direct evidence and pattern or practice models, the disparate impact model, were developed for analyzing 204 evidence concerning employment practices and policies that affect large numbers of people on a classwide basis. 22. The Supreme Court has uniformly held that, once the plaintiff establishes a prima facie disparate impact case under §703 (a) (2), the burden shifts to the employer to show that the challenged practice is justified. See, e.q.. Teal. 457 U.S. at 446 ("employer must . . . demonstrate that any given reguirement [has] a manifest relationship"); New York City Transit Authority v_5— Beazer, 440 U.S. 568, 587 (1979) (prima facie case "rebutted by [employer's] demonstration that its narcotics rule . . . 'is job related'"); Dothard. 433 U.S. at 329 (employer must "prov[e] that the challenged requirements are job related"); Albemarle £aPer— Co,;— v . — Moody, 422 U.S. 405, 425 (1975) ("Albemarle") (employer has "burden of proving that its tests are 'job related'"); Griggs, 401 U.S. at 431, 432 ("The touchstone is business necessity"; "Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question"); see also Watson. 108 S. Ct. at 2794 > (Blackmun, J., concurring in part and concurring in the judgment). 23, In Wards Cove Packing Co. Inc., v. Atonio. 490 U.S. -- , 104 L.Ed 2d 733, 109 S.Ct. (1989) ("Atonio"), the Court held that the language of its prior cases was misinterpreted as requiring the employer to bear the burden of persuasion, rather than one of production. However the Court emphasized that the employer's burden was nevertheless substantial: the employer must produce 205 evidence that "a challenged practice serves, in a significant wav, the legitimate employment goals of the employer", and that "[a] mere insubstantial justification . . . will not suffice". 104 L.Ed.2d at 752. 24. Atonio cites the Court's prior decisions with approval and provides no reason to believe that the standards it clarifies would have led to decisions for the employer in Griggs. (the Court rejected the explanation of a company vice-president that the challenged requirements "generally would improve the overall quality of the work force", because the explanation did not meet the standards of the EEOC Guidelines) , in Albemarle (the Court rejected the validation study of a psychologist, because it did not meet the standards of the EEOC Guidelines) , or in Dothard. (no validation evidence offered to justify height requirement with adverse impact). 25. It is critically important to distinguish between an employer's heavy burden of production in a disparate-impact case under Griggs and Atonio, and the incomparably lighter burden of producing an "articulation" in an individual case under Texas Dept._of Community Affairs v. Burdine. 450 U.S. 248 (1981). In an individual disparate treatment case, it is appropriate to impose a minimal burden of production on the employer because the plaintiffs prima facie showing is itself "not onerous II / Burdine. 450 U.S. at ?5Tr and does not in itself establish a violation of §703(a)(l). An articulation burden however is inappropriate where the prima facie showing includes substantial 206 statistical and other evidence of a standard operating procedure of discrimination, and itself constitutes direct evidence of a §703 (a)(1) violation. 26. Moreover the nature of the burden of production should be construed as consistent with Burdine and United States Postal Service Board of Governors v. Aikens. 460 U.S. 711 (1983), which held that, the requirements of a prima facie case as well as the burdens of production and persuasion are concepts designed to focus the factfinder's inquiry, rather than strict evidentiary strictures. These burdens are framework for considering the evidence and determining whether or not the court is persuaded that the evidence as a whole, pro and con liability, supports a finding that Title VII has been violated. When, as in this case and those just cited, there has been a full trial, the issue of prima facie case drops out, and the question becomes whether the judge is persuaded that the test or other challenged practice is discriminatory because it has a disparate impact unjustified by the defendant's legitimate needs. To speak precisely, the existence of a "prima facie case" in the specialized Title VII sense of a case strong enough to shift the burden of production to the defendant becomes moot once the lawsuit is tried. Yet in its older sense of evidence sufficient to defeat a defendant's motion for directed verdict, the existence of a prima facie case remains an issue - or would if there were jury trials in Title VII cases. Since there are not, it is simpler and clearer just to ask whether at the conclusion of the trial the evidence pro and con liability supports a finding of violation. Mien V. Seidman, (FDIC), (7th Cir. July 27, 1989), Slip opinion at 5.5 This Court's denial of defendant's Rule 41(b) Motion is consistent with this analytical framework. See 11 T.T. at 75-76. Here, the Court rejected the defendant's motion, plainly stating 207 27. The Supreme Court has approved the application of disparate impact analysis "to a subjective or discretionary promotion system". Watson. 101 L.Ed.2d at 848, a formulation at odds with the notion that the various elements of the defendant's subjective decisionmaking system must be separately quantified. The plaintiffs in a case such as this are not required to exhaust every possible source of evidence, if the evidence actually presented on its face conspicuously demonstrates a job requirement's grossly discriminatory impact. If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own. See also, Watson. 101 L.Ed 2d at 846; Atonio. 101 L.Ed 2d at 747 n 6. 28. A subjective decisionmaking system is itself a practice, requiring a showing of disparate impact just like objective P^^^tices. Atonio. 104 L.Ed.2d at 751 ("use of subjective the necessity of hearing the case in its entirety before rendering a decision, thus effectively ruling that plaintiffs had met their prima facie burden, at least in the traditional sense, that is, that sufficient evidence had been put before the court to demand a response from the defendant. There are many matters that I think that the Court must consider in connection with the degree to which the plaintiffs have established a prima facie case, but I just simply don't think that it would be appropriate at this time to attempt to address the complexities of that without hearing the defendant's case. I think that it would be best for the defendants to submit their testimony and then the Court will rule on the matter in its entirety when I've heard all the testimony. I just think that's the best way that this case should be handled. And so with that ruling, we will be ready to proceed. 11 T.T. at 75-76. 208 decision making" is a practice that can be challenged along with objective practices); Watson. 101 L.Ed.2d at 848. 29. Subjective criteria and practices having an adverse impact serve to corroborate a claim of illegal discrimination. Nantv v. Barrows Co.. 660 F.2d 1327, 1334 (9th Cir. 1981) ("Subjective job criteria present potential for serious abuse and should be viewed with much skepticism . . . [They] provide[ ] a convenient pretext for discriminatory practices."); United States v. Hazelwood School District. 534 F.2d 805, 813 (8th Cir. 1976), rev'd on other grounds. 433 U.S. 299 (1977); Wade v. Mississippi Cooperative Extension Service. 528 F.2d 508, 514 (5th Cir. 1976). 30. Statistical evidence may be used to establish a prima facie case under both the; disparate treatment and the disparate impact theories of liability. Teamsters. 431 U.S. at 339, n.20; Griggs; Alabama v. United States. 304 F.2d 583, 586 (5th Cir. 19620, aff'd per curiam, 371 U.S. 37 (1962); Pettwav v. American Cast— Iron_Pope Co.. 494 F.2d 211, 231 n.44 (5th Cir. 1974); United States v. Ironworkers. Local 86. 443 F.2d 544, 551 (9th Cir.), cert denied. 404 U.S. 984 (1971). 31. "Statistical significance" is a term of art that indicates the likelihood of an association between long-term results of an employer's selection process and minority group status. D. Baldus & J. Cole, Statistical Proof of Discrimination. 1980. 32. Statistics are a means of summarizing information so that inferences can be drawn from the data. Plaintiffs' studies are both descriptive and inferential, and statistical inferences can 209 be drawn from each of these studies. It is not required that every possible showing be drawn, but merely that a credible showing which is sufficient to raise an inference be made. Harrison v. Lewis. 559 F.Supp. 943 (D.D.C. 1982); Phillips v. Joint Legislative Committee. 637 F.2d 1014, 1025 (5th Cir. 1981); Seqar v.__Civiletti, 508 F.Supp. 690 (D.D.C. 1981); Grant v. Bethlehem Steel Corp.. 635 F.2d 1007, 1015 (5th Cir. 1980); Rowe v. General Motors Corp.. 457 F.2d 348 (5th Cir. 1972). 33. Z-statistics have been frequently used in employment discrimination cases to determine statistical significance. See, e,.g. , Jurgens v. Thomas. 29 FEP Cases 1561, 1568-69 n.15 (N.D. Tex. 1982); Vuyanich v. Republic National Bank. 505 F.Supp. 224, 349 (N.D. Tex. 1980); Rich v. Martin Marietta Corp.. 467 F.Supp 587, 601 (D. Colo. 1979). The propriety of using numbers' of standard deviations, which the Z-value computes, was recognized in Hazelwood. 433 U.S. at 308-309 n. 14. 34. As absolute certainty is not achievable using statistical techniques, one must make a judgment as to how much of a risk one is willing to run of rejecting a true hypothesis. The courts accept statistical evidence as prima facie proof of discrimination when there is a 5% or less probability (one chance in twenty) that the observed disparity is due to chance. This corresponds to a "significance probability" of .05 and a Z-value of a 1.96. Wilmore v. Wilmington. 699 F.2d 667, 670 (3rd Cir. 1983) ; Contreras v._City of Los Angeles. 656 F.2d 1267, 1273 (9th Cir. 1981), cert, denied, 455 U.S. 1021 (1982); Little v. Master- 210 Bilt Products. Inc.. 506 F.Supp. 319, 329 (N.D. Miss. 1980); Segar v. Civiletti. 508 F.Supp. 690, 696 (D.D.C. 1981); Vuvanich v. Republic National Bank. 505 F.Supp. 224, 348 (N.D. Tex. 1980); Reynolds v. Sheet Metal Workers. Local 102. 498 F.Supp. 952, 967 (D.D.C. 1980), aff 'd. 702 F.2d 221 (D.C. Cir. 1981); Davis v. Dallas, 483 F.Supp. 54, 58 (N.D. Tex. 1979). Because the Z-value of 1.96 also equates to 1.96 standard deviations, this approach is consistent with the "two or three standard deviation" approach suggested by the Supreme Court in Hazelwood. 433 U.S. at 309 n.14. Vuvanich. 505 F.Supp. at 348. 35. However, as the courts have specifically stated, there is nothing magical about a ".05" level of statistical significance. See, e.q., EEOC v. American National Bank. 652 F.2d 1176, 1192-93 • (4th Cir. 1981); Harrison v. Lewis, supra. In fact, .05 is an arbitrary threshold. Harrison v. Lewis. supra. Segar v. Civiletti, supra; Vuvanich v. Republic National Bank, supra, at 347- 348. Thus, statistical evidence may still be probative of discrimination even though the probability is greater than .05. "As the probability > of an event's occurrence in a non- discriminatory environment decreases, the significance of the results increases in a continuous fashion. Hence it is no surprise that courts have recognized that a result falling just short of the chosen level of significance is nearly as important as a result just surpassing the chosen level." Vuvanich. supra. 505 F.Supp. at 348, citing, e.q., Reynolds v. Sheet Metal Workers, supra, 498 F.Supp. at 967; Pennsylvania v. Rizzo. 466 211 F.Supp. 1219, 1231 (E.D. Pa. 1979); Watkins v. Scott Paper Co. . aff'd on this point 530 F.2d 1159, 1187 n.40 (5th Cir. 1976), cert, denied. 429 F.2d 906, 915 & n.ll (5th Cir. 1973). The court in Vuvanich found a prima facie case when a disparity had a probability of .06. 505 F.Supp. at 379-80. 36. The courts, upon evaluating the probative value of a statistical showing, have also concluded that "many statistically insignificant differences, if they all tend in the same direction, can become significant when considered together." Harrison v. Lewis, supra at 32. 37. It is appropriate in this case to examine the disparate impact of NARF's selection system as a whole. "When upper level positions are being filled, often based on subjective evaluations, statistical evidence as to the overall hiring practices of the employer is especially significant." Anderson 3L=— Albuquerque, 690 F.2d 796, 802 (10th Cir. 1982). Use of aggregate data for the Merit Promotion System is particularly appropriate here, because the discriminatory impact of promotion to WG-7, for example, 'kept many blacks from being eligible for WG-9 or WS positions. This in turn led to smaller numbers of blacks in the higher grades, which means than any observed disparities are less likely to be statistically significant. As a result, it is not unfair in this case to take account of "any patterns inferable from the total range of hiring decisions affecting all categories during a charged period of discrimination." EEOC v. American National Bank. 652 F.2d 1176, 212 1194 (4th Cir. 1981), rehearing denied. 680 F.2d 965 (1982), cert. denied. 103 S.Ct. 235 (1982). Here, for example aggregating the GS and WG regular merit staffing promotional opportunities would yield a shortfall of 28.261 Black placements with a variance of 146.233. This shortfall equaled 2.34 standard deviations (2.30 with the continuity correction). 15 T.T. at 38. 38. Courts have stated that it is generally preferable, where possible, to aggregate data because larger samples yield more reliable results. Lilly v. Harris-Teeter Supermarket. 720 F.2d 326, 336 n.17 (4th Cir. 1983); Melani v. Board of Higher Education, 31 FEP Cases 639, 643 (S.D.N.Y. 1977). Moreover, courts have rejected efforts by defendants to rely on statistical analysis b&sed on fragmented data. The court in Vuvanich v. Republic— National_Bank, said of one such effort: "While only scattered instances of statistical significance are present, this may be due in no small part to the 'divide—and—conquer' aspect inherent in the fragmentation of the workforce into job families or even into broad family groups". 505 F.Supp. at 379 (footnote omitted). The court proceeded to aggregate the data and found in part that it showed adverse impact. Id. at 379-80. See also id. at 332, where another attempt by defendant at fragmentation was rejected: ". . .no reason appears to the court why the units of observation needed to have consisted of so few individuals that such statistical difficulties arose". A cohort analysis Pro^^ere(̂ by this defendant in another employment case was similarly rejected because it divided the workforce into such 213 small segments that statistical significance was lost. Trout v. Hidalgo, 517 F.Supp. 873, 884-85 )D.C. 1981), aff'd on this issue sub nom.. Trout v. Lehman. 702 F.2d 1094, 1106 (D.C. 1983). Finally, in at least two other cases, district court decisions have been remanded for not examining plaintiff's aggregate statistical evidence. Ezell v. Mobile Housing Bd. . 709 F.2d 1376, 1382 (11th Cir. 1983); Wheeler v. City of Columbus. 686 F.2d 1144, 1151 (5th Cir. 1982). 39. The defendant's statistical analysis of competitive, promotional opportunities, selections or placements seeks to rebut plaintiffs prima facie case by offering an analysis which, in addition to severely fragmenting the work force into such small segments that its statistical method retains "extraordinarily low power to detect" disparities, Trout. 517 F.Supp at 885, also fails to include any applicant pools that were all of one race. Where this approach was found to result in 15 percent of the women, and 38 percent of the men being excluded from the analysis, it was found that such a cohort analysis was insufficiently reliable to rebut plaintiffs' case. Trout. 517 F.Supp. at 885-886. Here, at least 46% of all white placements were not included in the calculations of defendant's statistical tests, and only 7% of the black placements were not included, therefore the uniracial pools did not contribute to the disparity or variance found in the analysis, and the ability of the defendant's calculations to detect race based disparities is similarly limited. Moreover, in spite of the inclusion of almost 214 all the black placements and the exclusion of approximately one- half of the white placements, the defendant's statistical analysis of the competitive placements still attained statistical significance. 40. Plaintiffs must demonstrate to the court's satisfaction that their statistical comparisons are meaningful, however they need not present a prefect statistical analysis. Dothard v. Rawlinson, supra 433 U.S. at 329-31. See Phillips v. Joint Legislative Committee. 637 F.2d 1014, 1025 (5th Cir. 1981); Davis — — Califano/ 613 F.2d 957 (C.C. Cir. 1979) . See also, Bazemore v̂ — Friday, 478 U.S. 385 (1986) ("[a] plaintiff in a Title VII suit need not prove discrimination with scientific certainty ..." 478 U.S. at 400, Brennan, J., concurring for a unanimous Court)); EEOC v. General Tel. Co.. — F . 2 d-- , 50 FEP Cases 1316 (9th Cir. 1989) (". . . the defendant cannot rebut an inference of discrimination by merely pointing to flaws in the plaintiff's statistics." 50 FEP at 1321); Catlett v. Missouri Highway and Transp. Comm'n, 828 F.2d 1260 (8th Cir. 1987) cert denied. 108 S.Ct. 1574 (1988); Palmer v. Shultz. 815 F.2d 84 (D.C. Cir. 1987)' Sobel v. Yeshiva Univ.. 839 F.2d 18 (2d Cir. 1988) 41. A defendant may rebut plaintiff's prima facie case of adverse impact by attacking the accuracy, relevance and reliability of plaintiff's statistical evidence, however it must demonstrate how specific errors actually have effected the statistical results obtained by plaintiff's method. Trout v. Lehman, 702 F.2d 1094 (D.C. Cir. 1983); Capaci v. Katz & 215 Besthoff, Inc.. 711 F.2d 647 (5th Cir. 1983), cert, denied. 466 U.S. 927 (1984). 42. Potential applicant flow data may be utilized to establish adverse impact: where the application process itself does not adequately reflect the actual potential applicant pool; where otherwise qualified people might be discouraged from applying because of a self-recognized inability to obtain a fair opportunity of being promoted; or, where actual applicant flow data is either unavailable or unreliable. Dothard v. Rawlinson. supra 433 U.S. at 321; James v. Stockham Valves & Fittings Co. 559 F.2d 310, 335 (5th Cir. 1977) cert. denied, 433 U.S. 1034 (1978). See also, Griggs. supra. 401 U.S. at 430 n.6. 43. The denial of details and training, the insufficient evaluations received by members of the plaintiff class, and the other evidence of disparate impact and treatment presented by plaintiffs, led to an applicant flow of black employees for competitive promotion announcements which was lower than would have been expected from the distribution of black employees within the workforce. -The impact of these discouraged applicants taints the use of applicant flow data, and supports the use of movements studies of the type introduced by plaintiffs in this case* Atonio, 104 L.Ed. 2d at 748, n.7 (citing Teamsters. 431 U.S. at 265). 44. The evidence establishes that the defendant's "subjective decision making system" is the practice which causes the disparate impact on blacks seeking promotion. The testimony and 216 documentary evidence, particularly the 1973 Civil Service Commission report, each of the subsequent Affirmative Action Plans, and the testimony of the defendant's Deputy EEO Officers, demonstrates via admissions that supervisory discretion in performance appraisals, evaluations, selections for details and temporary promotions and rating panel evaluations have a disparate impact on blacks. 45. Likewise the statistical evidence shows by pay plan, grade, and occupation series that blacks are adversely affected by this practice. 46. The evidence adduced at trial explicitly details how the failure of blacks to receive training opportunities and temporary promotions, the impact of negative supervisory appraisals and evaluations, the impact of the supervisors' discretionary input in determining the eligibility requirements for various jobs; and other subjective aspects of the selection system all contribute to the practice's disparate impact on black employees. 47. The statistical evidence offered by both parties confirms that the defendant's selection system, utilizing as it does a variety of interlocking subjective determinations, has a clear <̂isPar^te impact on black employees. Moreover within that system, which includes both competitive and noncompetitive means of advancement, the defendant's Merit Promotion Process specifically accounts for the disparate impact suffered by black employees. Merit system competitive promotional opportunities 217 directly and immediately caused a shortage of black upward movements and also directly but subsequentially caused additional shortages of black upward movements by serving as a barrier to black employees competitively entering the career ladder and apprentice programs which were so rich in subsequent upward moves. 48. The documentary, anecdotal and statistical evidence presented by plaintiffs to establish Disparate Treatment, is likewise relevant and sufficient to establish plaintiffs' claim of Disparate Impact. The evidence establishes that the defendant's practice of operating a subjective decision making system had a disparate impact on black employees. 49. The defendant produced no evidence that its subjective decision making system, as applied at the Naval Air Rework Facility, with its attendant disparate impact on the plaintiff class "serves, in a significant way, the legitimate employment goals of the employer." Atonio. 104 L.Ed.2d at 752. Instead the defendant relied on the efforts of its statistical experts to establish that its promotion system did not have a discriminatory impact on black employees. For example, no evidence was presented that the system was valid, that it had been validated in accordance with the EEOC guidelines, or that alternatives recommended to the defendant but untried were inappropriate to address this disparate impact. The defendant's expert, Mr. Ruch, admitted that he had done no validation study and had not examined the manner in which the Navy's promotion 218 procedures were implemented at the NARF. Similarly, defendant's personnel expert, Mrs. Kay Marti, admitted that no validation study had been done. 50. The evidence, viewed in its totality, demonstrates that the defendant is in violation of Title VII under the Disparate Impact theory. INDIVIDUAL DISPARATE TREATMENT 51. Plaintiffs hereby adopt and incorporate by reference all of the Conclusions of Law set forth in Part III, Paragraphs 1 through 49 of these Proposed Findings of Fact and Conclusions of Law. 52. The Supreme Court ha& provided guidance for the order of proof and the allocation of burdens in individual disparate treatment cases: First, the plaintiff has the burden of proving by the preponderance of the evidence, a prima facie case of discrimination.Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by the preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Burdine, 450 U.S. at 252-53, citing McDonnell Douglas. 411 U.S. at 802-04. 53. The burden of going forward and establishing a prima facie case is not a heavy one. To satisfy this requirement, a 219 plaintiff need only raise an inference that the defendant acted with discriminatory intent. Most frequently, plaintiffs establish their prima facie case using the Supreme Court's model of motivational inferences in McDonnell Douglas. 411 U.S. at 802. This formula, which, if met, eliminates the most common non-discriminatory reasons for any disparate treatment, requires a plaintiff to show: (1) that he is a member of a protected class; (2) that he applied and was qualified for the job; (3) that though qualified, he was rejected, and (4) that after his rej ection, the position remained open and the employer continued to seek applications from persons of plaintiff's qualifications.6 54 • McDonnell_Douglas therefore allows the plaintiff to shift the burden of production from himself to the defendant once plaintiff negates "the two most common legitimate reasons" for an employment decision: lack of qualifications or absence of a job vacancy. Teamsters, 431 U.S. at 358 n. 44. Therefore, proof of the McDonnell— Douglas elements establishes a prima facie case of illegal motivation. These objective elements create "an inferei"ice of discrimination because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Furnco Construction Corp. v. Waters. 438 U.S. 567, 577 (1978). . 6 THis formulation is not rigidly applied, but may be modified to fit the type of employment practice being challenged. 220 55. If the plaintiff establishes these elements, the burden of production then shifts to the defendant to articulate some legitimate non-discriminatory reason justifying the employment action. However, failure of the defendant to articulate a reason that is both legitimate and non-discriminatory will result in a judgment, as a matter of law, for the plaintiff.7 Burdine, 450 U.S. at 254. This is because when "all legitimate reasons for rejecting an applicant have been eliminated [or no reasons have been articulated]...it is more likely than not the employer, whom we generally assume acts with some reason, based his decision on an impermissible consideration." Furnco. supra. 56. To rebut the presumption created by plaintiff's prima facie circumstantial case, the defendant's burden is to "articulate some legitimate nondiscriminatory reason for the employee's rejection." McDonnell Douglas. 411 U.S. at 802. "The defendant need not persuade the court that it was actually motivated by the proffered reasons," Burdine. 450 U.S. at 254, nor present clear and convincing evidence of non-discrimination, but simply must present evidence raising a "genuine issue of fact" as to whether 7 The ̂ Court in Burdine held that plaintiff's prima facie case established a "legally mandatory, rebuttable presumption" of discrimination. 450 U.S. at 255, n.7, 101 S.Ct. at 1094 n.7. Thus, the decision in Burdine means that the "inference" created by a grima facie case is not merely a "permissible" one that allows for the inference of the fact in issue, but rather is a "rebuttable presumption" that requires a finding in favor of the party who ̂has the benefit of the presumed fact. For more detailed discussions of the differences between presumptions and inferences, see generally C. McCormick, McCormick's Handbook of the Law of Evidence §§ 336-347 (2d ed. E. Cleary 1972) and 9 J Wigmore, Evidence §§ 2483-2540 (Chadbourn rev. 981). 221 "the plaintiff was rejected, or someone else preferred, for a legitimate nondiscriminatory reason." Burdine, 450 U.S. at 254. 57. However, the reason articulated by the defendant must contradict the prima facie case. It must be clear, specific, legitimate and articulated through the introduction of admissible evidence. 450 U.S. at 254—55. The burden of production thus requires the defendant to meet the plaintiff's prima facie case as well as providing the plaintiff a fair opportunity for rebuttal. Id. at 255-56. 58. The defendant cannot simply rest on conclusory allegations in the pleadings or argument of counsel. An articulation not admitted into evidence does not suffice. 450 U.S. at 255 n.9. The employer is required to -prove that the reason set forth actually exists. If the factfinder does not believe that the reason articulated actually exists, or that the defendant believed that it existed, there is no premise from which the factfinder can infer that the articulated reason, rather than the proscribed criteria, motivated the employment decision. Lanphear v. Prokop, 703 F.2d 1311, 1317 (D.C. Cir. 1983). 59. Once the defendant has produced admissible evidence that would allow a trier of fact to rationally conclude that the articulated reason actually exists, the initial presumption drops from the case, and plaintiff may meet his ultimate burden of persuasion by establishing that the defendant's proffered reason is a pretext for discrimination. Burdine. 450 U.S. at 256. Several types of evidence may be probative of pretext. For 222 instance, in the promotion context, a plaintiff may produce evidence that the defendant departed from its normal business procedure, that the reason articulated was not uniformly applied, or that the procedures by which a decision was made were excessively subjective. Colin-Sanchez v. Marsh. 733 F.2d 78, 82 (10th Cir. 1984). The plaintiff may also present facts concerning the employer's general policy and practice with respect to minority employees. See, e.q. . Harris v. Birmingham Bd. of Educ., 712 F,2d 1377. 1382 (11th Cir. 1983). 60. Plaintiff's initial prima facie evidence should be combined with the evidence arising from cross-examination in order to determine whether defendant's articulated reasons are legally sufficient or whether they should be discredited. NAMED PLAINTIFFS 61. A review of the entire record indicates that each of the named plaintiffs has met their obligation to sustain their burden of proving that,the defendant intentionally discriminated against them. 62. Notwithstanding their qualifications, each of the named plaintiffs was denied promotion during the relevant period. 63. The evidence establishes that the promotion system utilized by the defendant, is so rife with discrimination, that the Court finds that the defendant has failed to articulate legitimate, nondiscriminatory reasons for its failure to offer promotion to 223 the named plaintiffs or that such reasons, when offered, are pretextual. 64. The plaintiffs established a prima facie case that production dispatchers were qualified to hold positions as production controllers. The testimony of class members demonstrated that individuals in these categories performed essentially the same job duties. The defendant presented no evidence to contradict this testimony. Although class members testified that the NARF told them that experience as dispatchers would not make them eligible for controller positions, this does not serve as an articulated reason for non—selection in the absence of evidence that the jobs are different. 65. The testimony also showed that production dispatchers were predominantly black while production controllers were almost all white. The Court concludes that this was part of a pattern and practice to restrict the employment opportunities of black employees and was not based on a difference in qualifications or interest on the part of black employees. 66. The testimony concerning the NARF's position with respect to dispatchers, however, does establish a case of discouragement since it was futile for individuals in dispatcher jobs to apply for controller positions. The court therefore concludes that it is not necessary for a plaintiff to have actually applied for a controller position if it can be shown that such a plaintiff would have applied if not for policies of the NARF. 224 Gradson Johnson 67. Had it not been for the NARF's discriminatory policies regarding production dispatchers, Mr. Johnson would have applied for a GS-7 production controller position in 1973. He had already applied for such a position in 1971, but was found ineligible. 68. Mr. Johnson was qualified for a GS-7 position in 1973. He had nine years' experience as a dispatcher. Although it rated Johnson unqualified, the Navy never denied that dispatchers and controllers were doing the same thing. In fact, the Navy never articulated any reason why Mr. Johnson should not have been promoted to a job as a production controller. 69. Mr. Johnson would have been eligible for a GS-9 production controller in 197 5 if he had been selected for a GS- 7 position in 1973. 70. Based upon Mr. Johnson's actual advancement and the strength of his appraisals, the Court concludes that he would have progressed at least to the GS-11 level by 1981 if he had been allowed to use his- experience as a dispatcher. Mr. Johnson displayed leadership abilities that were recognized by his supervisors but which was not translated into promotion to supervisory positions. 71. Mr. Johnson established a prima facie case with respect to the GS-9 position he applied for in 1979. He was highly qualified with a score of 93.3. The Navy did not articulate any 225 reason for his non-selection and Johnson is entitled to judgment on that claim. 72. Mr. Johnson established a prima facie case with respect to the GS-10 position he applied for in 1981 or 1982. He was qualified. The Navy did not articulate any reason for his non selection and Johnson is entitled to judgment on that claim. 73. Mr. Johnson established a prima facie case with respect to the GS-11 position he applied for in 1983. He was highly qualified with a score of 86.3. The Navy did not articulate any reason for his non-selection and Johnson is entitled to judgment on that claim. Marcus Ellison 74. Had it not been for NARF's discriminatory policies regarding production dispatchers, Mr. Ellison would have applied for a GS-7 production controller position in 1973. He continually applied for upper level positions, but was told that his experience as a dispatcher did not qualify him for controller positions. 75. Mr. Ellison was qualified for a GS-7 position in 1973. He had more than thirteen years' experience as a dispatcher. Although the Navy told Ellison that he had to take a special course (which he never got to take), it never denied that dispatchers and controllers were doing the same thing. In fact, the Navy never articulated any reason why Mr. Ellison should not have been promoted to a job as a production controller. 226 76. Mr. Ellison would have been eligible for a GS-9 production controller in 1975 if he had been selected for a GS- 7 position in 1973. 77. Based upon Mr. Ellison's actual advancement and the strength of his appraisals, the Court concludes that he would have progressed at least to the GS-11 level by 1981 if he had been allowed to use his experience as a dispatcher. Mr. Ellison displayed advanced skills and knowledges which were recognized by his supervisors but which were not translated into promotion to supervisory positions. 78. Mr. Ellison established a prima facie case with respect to the GS-7 position he applied for in 1975. Although he was rated ineligible at first and later got a 91.6 (highly qualified) on the same announcement, these ratings did not reflect his years of experience as a dispatcher. The Navy did not articulate any reason for his non-selection and Ellison is entitled to judgment on that claim. 79. Mr. Ellison established a prima facie case with respect to the GS—8 position he applied for in 1977. He was rated highly qualified, but not selected. The Navy did not articulate any reason for his non-selection and Ellison is entitled to judgment on that claim. 80. Mr. Ellison established a prima facie case with respect to the two GS-8 positions he applied for in 1978. He was highly qualified each time, with the same score of 89.1, but was not 227 selected. The Navy did not articulate any reason for his non selection and Ellison is entitled to judgment on that claim. 81. Mr. Ellison established a prima facie case with respect to the GS-8 position of control center manager beginning in July 1980. Although he did not apply because the Navy did not announce a vacancy, the Navy nevertheless assigned Mr. Ellison to do the work. When Mr. Ellison complained, the Navy announced a vacancy. Because of the discretion the NARF has in deciding whether to open a position for merit promotion, it cannot avoid liability by not formally declaring a vacancy. Mr. Ellison demonstrated that he was qualified by actually doing the job. The Navy did not articulate any reason for his non-selection and Ellison is entitled to judgment on that claim. 82. Mr. Ellison•established a prima facie case with respect to his application for a GS-8 position in May 1981. He had already demonstrated his ability to perform at that level while working as control center manager. Moreover, he had been rated highly l3ualified with a score of 90.8. The white individuals selected had less experience in the department than Mr. Ellison. The Navy did not articulate any reason for his non-selection and Ellison is entitled to judgment on this claim. 83. Mr. Ellison established a prima facie case with respect to his application for a GS-11 position in 1984. He was rated ied, with a score of 80, but was not selected. The Navy did not articulate any reason for his non-selection and Ellison is entitled to judgment on that claim. 228 Willie Robinson 84. Mr. Robinson established a prima facie case with respect to his application for the WG-12 position of Electronics Mechanic in 1973. He was highly qualified, with a score of 85, but was not selected. The Navy did not articulate any reason for his non selection and Robinson is entitled to judgment on that claim. 85. Mr. Robinson established a prima facie case with respect to his application for the WS-12 position of Electronics Mechanic Foreman in 1974. He was highly qualified, with a score of 85, but was not selected. The white person selected had graduated from the apprentice program three years after him. The Navy did not articulate any reason for his non-selection and Robinson is entitled to judgment on that claim. 86. Mr. Robinson established a prima facie case with respect to his application for the temporary WS-12 position of Electronics Mechanic Foreman in 1975. He was highly qualified, with a score of 85, but was not selected. The Navy did not articulate any reason for his non-selection and Robinson is entitled to judgment on that claim. 87. Mr. Robinson established a prima facie case with respect to his application for the WS-12 position of Integrated Systems Mechanic Foreman in 1976. He was rated ineligible on the screen out element - ability to supervise - but was qualified by virtue of his experience. Although the Navy did not specifically justify Mr. Robinson's non-selection on the basis of a lack of 229 supervisory experience, such an articulation would have been a pretext since the Navy was aware of Mr. Robinson's experience in the military and reserves as an officer. Robinson is entitled to judgment on that claim. 88. Mr. Robinson established a prima facie case with respect to his application for the WG-12 position of Electronics Mechanic in 1981. Although he was gualified for the position, a foreman who reviewed his SF 171 testified that Robinson was better qualified than was shown on the application and criticized the application for not being "neat." If this testimony was an attempt at articulating a reason, the court finds that neatness is not job- related and therefore cannot serve as an articulation. Andrew Norris 89. Mr. Norris established a prima f&cie case with respect to his application for the WG-11 electrical worker position in 1973. He had received training in electronics both before and after starting work with the NARF and had experience as a radio mechanic helper and, Electronic worker, WG-8. The Court, therefore, concludes that he was qualified. The Court notes that Mr. Norris' rating did not improve though he gained many years of experience. The Court concludes that the ratings received by Mr. Norris did not accurately reflect his qualifications. The Navy did not articulate a legitimate reason for his non-selection. 90. Mr. Norris established a prima facie case with respect to his application for the WG-11 electrical worker position in 1975. 230 He was rated qualified by the Navy but was not selected. The Navy did not articulate a legitimate reason for his non selection. 91. Mr. Norris established a prima facie case with respect to his application for the WG-11 electrical worker position in 1976. He was rated qualified by the Navy but was not selected. The Navy did not articulate a legitimate reason for his non selection. 92. The Court concludes that Mr. Norris was discouraged from applying for promotions after 1977 because of his failure to get a different rating over the years and negative comments from the commanding officer. S. K. SANDERS 93. Mr. Sanders established a prima facie case with respect to his application for GS-7 production controller in 1969. He had ps^fornisd the work of a GS—7 and GS—9 production controller form 1961 to 1973 although his title was production dispatcher. Moreover, his notice , of rating was 89.3 which was highly <3ualifi-ed. Although this vacancy was announced in 1969, it remained open into the relevant time period and Mr. Sanders did not receive his rating until 1975. The Court concludes that Mr. Sanders could have received this promotion at any time since 1969 and that the Navy's liability for not promoting him begins on April 1, 1973. The Navy did not articulate any reason for Mr. Sanders' non-selection. 231 94. Mr. Sanders established a prima facie case with respect to his application for GS-7/9 upward mobility promotion to industrial engineering technician in 1975. He was rated as having excellent or above average potential and would have qualified if he had been promoted earlier to a GS-7 position. It is not a legitimate nondiscriminatory reason that Mr. Sanders did not hold a GS-7 position since it was the Navy's discrimination which prevented him from achieving that level earlier than 1975. PART IV FURTHER PROCEEDINGS 1. The defendant has violated Title VII by allowing its officials to discriminate on the basis of race in each of the respects found in this opinion. 2- Plaintiffs are entitled to an order enjoining future discrimination and assisting the victims of past discrimination to their rightful place, to awards of back pay and front pay, and to an award of counsel fees and costs. 3. Counsel for the parties are directed to meet forth with and to attempt to reach agreement on the relief to be provided. If the parties have been unable to reach full agreement within 60 days of the date of this Order, plaintiffs shall file their proposals for the conduct of Stage Two Proceedings within twenty days of the expiration of this period of consultation. 233 Respectfully submitted, JULIUS L. CHAMBERS CHARLES STEPHEN RALSTON RONALD L. ELLIS CORNELIA PILLARD CLYDE E. MURPHY NAACP Legal Defense and Educational Fund, Inc.99 Hudson Street Suite 1600 New York, New York 10013 (212) 219 — 1900- BILL LANN LEE NAACP Legal Defense and Educational Fund, Inc.634 Spring Street Los Angeles, California 90014 EDWARD DAWKINS 421 West Church Street Jacksonville, Florida 32202 Counsel For Plaintiffs November 6, 1989 234 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Plaintiff's Proposed Findings of Fact and Conclusions of Law was mailed postage prepaid to counsel for defendant as listed below: JOSEPH D. MAGRI United States AttorneyJOHN E. LAWLOR, III Assistant United States AttorneyPost Office Box 600 Jacksonville, FL 32201 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, DC 20360-5110 JAMES A. DIKEMAN Assistant Counsel Litigation Support Office Naval Air Rework Facility Naval Air Station Jacksonville, Florida 32212 this 6th day of November 1989 235