Johnson v. Garrett Plaintiffs' Proposed Findings of Fact and Conclusions of Law

    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

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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.

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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.

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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:

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" '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.

\
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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,

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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.

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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.

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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:

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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

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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

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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

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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).

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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.

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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

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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
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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,

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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.

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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.

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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.

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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.

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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

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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

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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.

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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

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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.

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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

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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.

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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.

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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.

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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

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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

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