Griffin v. Bolger Brief for Cross-Appellees and Reply Brief for Appellants

    IN THE
UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
No. 84-3070

ERNEST L. GRIFFIN, et al.,
Plaintiffs-Appellants- 

Cross-Appellees,
v .

WILLIAM F. BOLGER,Postmaster General,
Defendant-Appellee- Cross-Appellant.

On Appeal from The United States District Court 
for The Middle District of Florida 

Jacksonville Division

BRIEF FOR CROSS-APPELLEES AND 
REPLY BRIEF FOR APPELLANTS

JULIUS LeVONNE CHAMBERS 
GAIL J. WRIGHT CHARLES STEPHEN RALSTON 
PENDA HAIR99 Hudson Street 

16th Floor
New York, New York 10013 
(212) 219-1900

W. BENJAMIN KYLE1248 W. Edgewood Avenue 
Jacksonville, Florida 32208

Attorneys for Plaintiffs-AppeHants-Cross-Appellees



IN THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 84-3070

ERNEST L. GRIFFIN, et al., 
Plaintiffs-Appellants-Cross-Appellees,

v .
WILLIAM F. BOLGER,
Postmaster General,

Defendant-Appellee-Cross-Appellant.

On Appeal from The United States District Court 
for The Middle District of Florida 

Jacksonville Division

STATEMENT REGARDING PREFERENCE

In accordance with local Rule 22(f)(3) 
plaintiffs-appellants state that this case is not entitled to 
preference in disposition and processing.

ounselforPlaintiffs-Appellants



IN THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 84-3070

ERNEST L. GRIFFIN, et al . , 
Plaintiffs-Appellants-Cross-Appellees,

v .
WILLIAM F. BOLGER,
Postmaster General,

Defendant-Appellee-Cross-Appellant.

On Appeal from The United States District Court 
for The Middle District of Florida 

Jacksonville Division

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Local Rule 22(f)(4) piaintiffs-appel1 ants 
respectfully request that this appeal be orally argued. This 
matter involves numerous complex issues with regard to actions 
instituted pursuant to Title VII of the Civil Rights Act, as 
amended. First, the appeal addresses the proper scope of Title 
VII lawsuits as based upon administrative complaints. Further, 
the appeal concerns the appropriate standards of proof in pattern 
and practice class actions. In addition, this matter concerns 
the nature of individual determinations in employment dis-



crimination cases. P1aintiffs-appel1 ants contend that the 
district court found no discrimination on the basis of erroneous 
evidentiary standards, and that the named plaintiffs and class 
members are entitled to a trial on their individual claims. 
Finally, this appeal concerns the appropriateness of assessing 
costs against unsuccessful plaintiffs in Title VII lawsuits when 
the federal government is the defendant.

script, which resulted from a four and one half week trial, is 
4,500 pages; and the lower courts' opinion is in excess of 300 
pages. PIaintiffs-appel1 ants submit that oral argument would 
clarify the presentation of the facts and facilitate the res­
olution of the legal arguments.

The record in this appeal is voluminous. The tran-

Respectfully submitted,



Page

Table of Authorities i;L
Statement of the Issues on the Cross Appeal 1
Statement of Facts Relating to the Cross

Appeal ^
Summary of Argument ®

Statement of Jurisdiction 10
Argument ^

I. Plaintiffs Exhausted All Available 10
Administrative Remedies

II. This Case Is A Proper Class Action 17
A. The Class Certification Is 17

Consistent with Falcon
B. Plaintiffs Satisfied The 21

Requirements of Rule 23
III. The Evidence Establishes Dis- 25

crimination
IV. Individual Claims 24
V. Defendants Are Not Entitled to 36

Their Costs
Append ix

TABLE OF CONTENTS



TABLE OF AUTHORITIES
Cases

Page
28
22

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)
Bachman v. Collier, 73 F.R.D. 300 (D.D.C. 1976)
♦Barrett v. U.S. Civil Service Commission, 690 F.R.D.

544 (D.D. C. 1975) 8' X1' 12
Bright v. Macy, 278 F. Supp. 215 (D. Md. 1967)
Carroll v. Sears Roebuck & Co., 708 F.2d 183 (5th 

Cir. 1983)
Castaneda v. Partida, 430 U.S. 482 (1977)
Chandler v. Roudebush, 425 U.S. 840 (1976)

17

30
34
14

Cir. 1981)
♦Cooper v. Federal Reserve Bank of Richmond, ---U.S. _

52 U.S.L.Week 4853 (1984) 9, 18,
Council of the Blind v. Regan, 709 F.2d 1521 (D.C. Cir 

1983)
U.S.Crown, Cork & Seal Co. v. Parker,

76 L.Ed.2d 628 (1983)
De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 

225 (7th Cir. 1983)
Donaldson v. Pillsbury Co., 554 F .2d 825 (8th

Cir. 1977) 2i' 22'
♦Eastland v. Tennessee Valley Authority, 553 F.2d 364 

(5th Cir. 1977) 12'
Eisen v. Carlisle and Jacquelin, 417 U.S. 156 (1974)
Ezell v. Mobile Housing, 709 F.2d 1376 (11th Cir. 

1983)
Fleming v. Travenol Laboratories, 707 F.2d 829 (5th 

Cir. 1983)

30, 32

23, 36

18

36

18

23, 36

16, 32
25

8

18

* Cases principally relied upon,
l



424 U.S. 747 36Franks v. Bowman Transportation Co., (1976)
♦General Telephone Company v. Falcon, 457 U.S. 147 

(1982) 9' 18'
Gibson v. Local 40, Longshoreman's Union, 543 F.2d 

1259 (9th Cir. 1976)
Gilchrist v. Bolger, 733 F.2d 1551 (11th Cir. 1984)
Griggs v. Duke Power Co., 401 U.S. 424 (1971)
Hazlewood School District v. United States, 433 U.S. 

299 (1977)

19,

James v. Rumsfeld, 580 F.2d 224 (6th Cir. 1978)
Johnson v. Georgia Highway Express, Inc. 417 F.2d

1122 (5th Cir. 1969) 2
♦Lawler v. Alexander, 698 F.2d 439 (11th Cir. 1983)
Lewis v. Smith, 731 F.2d 1535 (11th Cir. 1984)
Lilly v. Harris-Teeter Supermarket, 720 F.2d 326 

(4th Cir. 1983)
Love v. Pullman Co., 404 U.S. 522 (1972)
McLaughlin v. Callaway, 382 F. Supp. 885 (S.D.

Ala. 1974)
McLaughlin v. Hoffman, 547 F.2d 918 (5th Cir. 1977)
Nelson v. United States Steel, 709 F.2d 675 (11th 

Cir. 1983)
Payne v. Travenol Laboratories, Inc., 565 F.2d 

895 (5th Cir. 1982)
Porter v. Adams, 639 F.2d 273 (5th Cir. 1981)
Pouncy v. Prudential Ins. Company of America, 668 F.2d 

795 (5th Cir. 1982)

23

21

37
28

33
12

25
33
14

19
15

11

12

18

22

16

28

* Cases principally relied upon.

li



President v. Vance, 627 F.2d 353 (D.C. Cir. 1980)
Richardson v. Byrd, 709 F.2d 1016 (5th Cir. 1983)
*Seaar v. Smith, F .2d , 35 F.E.P. Cases 31 (1984)V y --- 9, 27, 28, 30,
Senter v. General Motors Corp., 532 F.2d 511 (6th 

Cir. 1976)
Simmons v. Brown, 15 F.E.P. Cases 1244 (4th 

Cir. 1977)
Simmons v. Schlesinger, 13 F.E.P. Cases 1765 (4th 

Cir. 1976)
Swain v. Hoffman, 547 F.2d 921 (5th Cir. 1977) 11,
Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th 

Cir. 1975)
Teamsters v. United States, 431 U.S. 324 (1977)
Vuyanich v. Republic National Bank, 723 F.2d 1195 

(5th Cir. 1984)
Williams v. T.V.A., 552 F .2d 691 (6th Cir. 1977)
Zipes v. T.W.A., 455 U.S. 385 (1982)

Other Authorities:
Federal Personnel Manual Letter No. 713-17, Nov. 3, 1972 
5 C.F.R. § 713.281
Memorandum for United States Attorneys and Agency 

General Counsel from Griffin B. Bell, Aug. 31,
1977, reprinted in Emp. Prac. Guide (CCH) 5046

The Federal Government as Employer: Problems andIssues in Enforcing the Anti-Discrimination Laws,
10 Ga. L. Rev. 717 (1976)

29 C.F.R. §§ 1613.601 et seq.,
29 C.F.R. § 1613.242

* Cases principally relied upon.



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 
No. 84-3070

ERNEST L. GRIFFIN, et al.,
Plaintiffs-Appellants- 

Cross-Appellees,
v.

WILLIAM F. BOLGER,
Postmaster General,

Defendant-Appellee- 
Cross-Appellant.

On Appeal from The United States District Court 
for The Middle District of Florida 

Jacksonville Division

BRIEF FOR CROSS-APPELLEES AND 
REPLY BRIEF FOR APPELLANTS

Statement of the Issues on the 
Cross Appeal

I. Whether the plaintiffs exhausted the administra­
tive remedies available to them under the Civil Service 
Commission regulations in 1971?

II. Whether it was within the district court's dis­
cretion to permit the case to proceed as a class action on 
behalf of present and former employees of the Jacksonville
Post Office?



PRELIMINARY STATEMENT
The briefs of the parties now make it abundantly 

clear that the central issues before this court are related
i

to two questions:
1. Was there discrimination against Blacks in 

promotions to supervisory positions in the Jacksonville Post 
Office from 1969 through 1981?

2. Was there discrimination in the imposition of 
discipline against Blacks during the same period of time?

The defendant is now attempting to avoid a de­
cision on the merits of those claims by raising a number of 
spurious procedural issues relating to exhaustion of ad­
ministrative remedies and the propriety of the maintenance 
of the case as a class action. In support of its position 
the defendant has dusted off a number of arguments relating 
to the regulations governing administrative complaints in 
the federal sector that have long been abandoned by the 
government itself. The arguments raised by the government 
in its cross-appeal will first be addressed, and we then 
will reply to its arguments in response to our appeal.

STATEMENT OF FACTS RELATING TO THE 
CROSS APPEAL

We have already set out in our main brief a sub­
stantial number of the facts relating to the issue of ex­
haustion of administrative remedies, particularly in connec­
tion with the testing issue. Here, we will set out more

2



fully the facts concerning the administrative record as 
it relates to the maintenance of a class action and the 
evidentiary record before the Court when it determined 
to certify the class.

In 1971 the lead plaintiff Ernest Griffin, filed 
a third-party complaint of racial discrimination that was 
accepted and investigated by the United States Postal Service.
The complaint made a number of allegations and centering 
on the claim that "qualified blacks were and are still 
being systematically excluded in training and development 
and opportunities for advancement". (R. 41.) More specifical­
ly, it was alleged that there was a lack of training and develop­
ment in supervisory positions for Blacks and that only 
token blacks [were] appointed to level seven and above." (R.
63.) A number of other specific allegations relating to 
the exclusion of Blacks from higher level positions and 
the unwarranted detailing of Whites were made. (R. 63.)
The relief sought included assurances that Blacks would 
be given details and opportunities to reach higher level
and administrative positions. (R. 43.)

The investigation conducted by the Postal Service
included discussions with Mr. Griffin and a significant 
number of additional Black employees. (R. 64). As we 
have already discussed, a number of the Blacks interviewed 
complained that they had not been able to get on the super­
visory register because they had failed the test. (R. 78,
80; 4). Various other of the persons interviewed complained

3



concerning details, discipline, training and a variety 
of other practices. (R. 72-83.)

The investigator discussed the various factual
allegations and although he rejected most of them, he found 
that the allegation that only token Blacks have been appointed 
to level 7 and above, i,e., supervisory and management 
positions, was supported since the five Black employees 
at level 7 and higher represented only 4% of the total 
number of employees level 7 and higher, compared with Black 
employees being 32% of the Post Office workforce. (R. 99,
84. )

With regard to Mr. Griffin in particular, he 
was on the supervisory register established in February 
18, 1971. However, there was only one Black within the 
zone of consideration and therefore with a high enough 
score to be eligible to be promoted. Mr. Griffin was not 
that person. (R. 93.) It is further clear from the record 
that Mr. Griffin made the specific allegation that he had 
not been promoted to a supervisory position because of 
his race. (R. 3.)

After the complaint was filed in court on behalf 
of Mr. Griffin and 22 other named plaintiffs, the defendant 
filed a motion to dismiss. One of the grounds of the motion 
was that a class action could not be maintained under 
Rule 23, Fed. R. Civ. P. (R. 34.) Attached in support 
of the motion was the certified record of a portion of

4



the administrative file, including the investigator's report 
which set out in detail the allegations, statistical infor­
mation, summaries of the interviews of Black class members 
and the various findings. (R. 36-107). Thus, at the 
instance of the defendant, Judge Tjoflat had before him not 
simply the bare allegations of the complaint, but a 72 page 
document which set out in significant detail the allegations 
and factual background behind the class claims. Moreover, 
there were further submissions in the form of an affidavit 
by plaintiff Griffin setting out the circumstances surrounding 
the class action complaint and an affidavit by the Director 
of the Postal Service Office of Equal Employment Compliance 
attaching the Postal Services' May 12, 1972 disposition of 
the complaint. (R. 132-42; 152-62) Thus, when the initial 
decision allowing the case to proceed as a class action was 
made, the Court had a substantial factual basis for its 
decision.

By the time Judge Black issued her final pre-trial 
order approving the class certification, there was far more 
information in the record. In response to interrogatories 
filed by the defendant, each of the claimed plaintiffs sub­
mitted detailed information explaining their individual 
claims and their relationship to the claims of other Blacks. 
(R. 854-1373A; 1446-1502; 1743-1756; 2199-2778.) In those
responses the names of various other persons who, it was

1/claimed, had suffered discrimination were given. - These

1/ See, e.g., R. 927; 1017; 1096-97; 1113; 1269; 1355; 
1467-68.

- 5 -



responses demonstrated that the 23 named plaintiffs had
claims relating to the tests and various other procedures

2/used to get on the supervisory registers, — promotion from
3 /the supervisory registers, — promotions to other high level 

• . 4 /  5 /positions, — discipline, — training, particularly for 
higher level positions, —^ awards, —  ̂ details; -^in other 
words, claims covering the range of employment practices 
complained of in the lawsuit.

Further, in 1976 plaintiff Griffin was fired from 
the Post Office. He appealed the discharge under the then 
existing regulatory scheme to the United States Civil Ser­
vice Commission. (R.E. 30-88). In that appeal he raised 
the claim that he had been discriminated against because of 
his race and that the action was part of a pattern and practice

2/ R. 866; 921; 1133; 1207; 1796; 1960; 2026; 2046; 2267.
3/ R. 972; 1122; 1207; 1226; 1361; 1456-57; 1783; 1824.
4/ R. 861; 1215-18; 1251; 1340; 1353; 1869.
5/ R. 1113; 1212-13; 1243; 1260; 1271; 1271; 1500.
6/ R. 861; 1226.
7/ R. 2264; 2267.
8/ R. 861; 1284; 1298; 1324; 1900; 1912; 1947; 2199-2200.

6



of racial discrimination and reprisal against those persons 
challenging discrimination. (R.E. 32-33). The appeal was 
rejected and he timely filed a supplemental complaint in the 
present action raising these claims. (R. 335-398).

Subsequently, Judge Black ordered that the plain­
tiffs file a consolidated complaint combining the original 
claims as of 1972 and the claims raised in the amended com­
plaint . (R. 1647).

Attached to both the supplemental complaint and 
the consolidated amended complaint were the documents making 
up the administrative file relating to Mr. Griffin's dis­
charge. (R.E. 30-88). From these documents it was clear 
that Mr. Griffin presented a claim representative of the 
general claim that discipline was imposed in a discriminatory 
fashion. Further, in responses to interrogatories filed by 
plaintiffs a number of examples were given of Whites who had 
committed similar offenses to that of Mr. Griffin but did 
not suffer the same penalty. (R. 1788; 1893; 1959-60).
Again, all of this documentation was before the district 
court when it granted final class certification prior to 
trial.

At trial the testimony of 20 class members, both 
plaintiffs and nonplaintiffs, in addition to voluminous

9_/ The defendant did not request a hearing on class cer­
tification, nor did he challenge the documentation before 
the court when it made its ruling.

7



statistical data was presented. Since there were no appli­
cants for initial hire among the class members, and in light 
of the decision in General Telephone Co. v. Falcon, 457 U.S. 
147 (1982), the plaintiffs abandoned at trial any claim to 
represent applicants for employment, although they did raise 
some issues concerning initial placement after hire. Thus, 
the class as finally defined for the purpose of trial and 
decision, was present and past employees of the Postal Ser­
vice raising claims concerning promotions, details, disci­
pline, training, and awards, which claims were all represented 
by named plaintiffs. Indeed, the two central claims, the 
opportunity for promotion to higher level positions, and 
discipline were represented directly by the claims of the 
lead plaintiff, Ernest Griffin.

SUMMARY OF ARGUMENT
I.

Plaintiffs fully exhausted the remedies available 
to them to raise class claims of discrimination in 1971.
The Civil Service Commission's regulatory scheme at that 
time was confusing and contradictory; it was not until 1977, 
as a result of the order in Barrett v. United States Civil 
Service Commission, 69 F.R.D. 544 (D.D.C. 1975), that the 
regulations were amended to permit the filing of adminis­
trative class action claims of discrimination against 
federal agencies.

II.
The class certification in this case was within 

the discretion of the district court. Contrary to defendant's

8



Falcon, 457 U.S. 147argument, General Telephone Co. v.
(1982) did not disapprove of broad class actions generally.
Cooper v. Federal Reserve Bank of Richmond, --- U.S. ---, 52
U.S.L. Week 4853 (June 25, 1984). In a case where named 
plaintiffs present claims representative of a broad class, 
certification is proper. This is such a case; the named 
plaintiffs adequately represent the class of present and 
past Black employees of the Jacksonville Post Office who 
have claims relating to promotions, discipline, and related 
matters.

III.
The evidence before the trial Court, taken as a 

whole and analyzed under correct legal standards, establishes 
discrimination in promotions and discipline. The trial 
court, and appellee here, would impose improper standards of 
proof on plaintiffs in a Title VII action. Segar v. Smith, 
___ F.2d ___, 35 F.E.P. Cases 31 (D.C. Cir. 1984).

IV.
The issue of individual claims must be remanded 

for reconsideration in light of the established classwide 
discrimination. Even if the finding of no class discrimina­
tion is upheld, class members have the right to pursue any 
individual claims of discrimination they have. Cooper v. 
Federal Reserve Bank of Richmond, supra.

V.
Defendant is not entitled to recover his costs 

for the reasons set out in detail in our main Brief.

9



Statement of Jurisdiction 
Jurisdiction is based on 28 U.S.C. § 1291, this 

being an appeal from a final order of the court below.
ARGUMENT

I.
PLAINTIFFS EXHAUSTED ALL AVAILABLE ADMINISTRATIVE REMEDIES.

Defendant argues here that plaintiffs cannot 
maintain a class action in court because they sought to 
raise claims through the vehicle of a "third-party" com­
plaint of discrimination, rather than through filing an 
individual complaint of discrimination. The problem with 
this argument is that it misconstrues the state of the Civil 
Service Commission's regulations governing federal employee 
complaints at the time the administrative complaint was 
filed, and disregards the prior admissions of the government 
before the Fifth Circuit in 1975 relating to these matters.

In fact, there was no clear means by which a 
federal employee could raise class claims of discrimination 
prior to the enactment by the Civil Service Commission of 
class action regulations in April, 1977. Thus, the defen­
dant seeks to defeat a decision on the merits of plaintiffs 
claims by resurrecting long discredited arguments.

Prior to April, 1977, the administrative regula 
tions governing the filing of claims by federal employees 
focused almost entirely on individual claims of discrimina­
tion. Thus, if a federal employee attempted to raise a 
claim of classwide discrimination under the individual complaint

10



procedures contained in 5 C.F.R. Part 713, those claims 
would be rejected by the agency and by the Civil Service 
Commission as being "beyond the purview" of the individual 
regulations. — / If the complainant then went into federal 
court had attempted to raise class claims in connection with 
his individual discrimination complaint the government would 
argue that the plaintiff had failed to exhaust administra­
tive remedies because he had not filed a "third- party 
complaint under then 5 C.F.R. S 713.251. — 7 See McLaughlin
v. Callaway, 382 F. Supp. 885, 891 (S.D. Ala. 1974).

On the other hand, if a third-party complaint was 
filed to raise class claims, as was done by the plaintiff 
here, and then an action was brought in federal court, the 
government would argue that the third-party complaint pro-

J  1 4.cedure due not provide a basis for suing m  federal court.
See Swain v. Hoffman, 547 F.2d 921 (5th Cir. 1977).

The government played this game of "heads I win, 
tails you lose" with some success until it was caught when

10/ See Appendix to this Brief, pp. 44a-46a Barrett v̂ _  ̂
UnitedPstates Civil Service Commission, 69 F.R.D. 544 (D.D.
C 1 9 7 5)* Ralston. The Federal Government as Employer:__Prob­
lems and Issues in Enforcing the Anti-Discrimination Laws,
10 Ga. L. Rev. 717, 728 (1976).
11/ See the Appendix to this Brief, pp. 4a et seg., for 
the regulations as they existed from 1969-72 and the changes 
made in November, 1972.

11



McLaughlin and Swain arrived at the Fifth Circuit at the 
same time. As noted, in McLaughlin, the government had 
successfully argued in the Southern District of Alabama that 
the failure of the plaintiff to file a third-party complaint 
precluded his raising class claims, while in the Northern 
District of Alabama in Swain it successfully argued (as it 
attempts here) that a third-party complaint could not be 
used as a basis for a federal court action. Faced with these 
simultaneously contradictory positions the government was at 
last forced to admit that in fact there was no way that an 
employee could successfully raise class claims adminis­
tratively and therefore there was no administrative remedy 
that could or needed to be exhausted. 12/ Therefore, a 
class claim could not be rejected in court for any failure 
to exhaust, and it could proceed if the requirements of Rule 
23 were met. In light of this admission the Fifth Circuit 
held that class actions could be maintained against federal 
agencies. Eastland v. Tennessee Valley Authority, 553 F.2d 
364 (5th Cir. 1977), Swain v. Hoffman, 547 F.2d 921 (5th 
Cir. 1977); McLaughlin v. Hoffman, 547 F .2d 918 (5th Cir.

12/ In its Brief in McLaughlin the government conceded 
that, "As interpreted by the Civil Service Commission the 
regulations do not permit filing of a class action adminis 
trative complaint." Appellee's Brief in 5th Cir. No. 75—
2261, p. 13.
13/ See also Williams v. T.V.A., 552 F.2d 691 (6th Cir.
1977)“ with al~l respect to the Sixth Circuit, its decision 
relied on by defendant, James v. Rumsfeld, 580 F.2d 224 (6th 
Cir. 1978), contains no discussion of the history of the 
regulations and of the fact that federal employees were not 
allowed to raise class claims in connection with an individual 
EEO complaint.

12



While all of this was going on in this Circuit, 
the government had been successful in convincing the Fourth 
Circuit that a class action should be denied because of a 
failure to file a third-party complaint. On petition for 
rehearing, however, appellants were able to bring to the 
Fourth Circuit's attention the intervening brief filed by 
the government in McLaughlin. The Fourth Circuit therefore 
vacated its prior decision and, based on the government s 
admission of error, rejected the argument that there was a 
failure to exhaust. Simmons v. Brown, 15 F.E.P. Cases 1244 
(4th Cir. 1977), withdrawing, Simmons v. Schlesinger, 13 
F.E.P. Cases 1765, 1773-74, 1776 (4th Cir. 1976). See 546 
F. 2d at 1100.

The problem raised by the regulations was finally 
solved as a result of litigation in Barrett v. U.S. Civil 
Service Commission, 69 F.R.D. 544 (D.D.C. 1975). In Barrett 
the attempt of the plaintiffs to raise class claims in 
their individual complaints had been rejected by both the 
agency and the Civil Service Commission. Id. at 546-47. An 
action in the nature of mandamus was brought, and the dis­
trict court found either that there was indeed no way to 
raise class claims, or that the regulations were so hope­
lessly opaque on the subject that it was unclear to anyone

13



14/ The courthow to go about doing so. Id. at 549-53. —
therefore ordered the Civil Service Commission to permit the 
raising and processing of class claims in the future. In 
response, the CSC revoked the third-party complaint pro­
visions and enacted comprehensive class action regulations, 
now found at 29 C.F.R. §§ 1613. 601 et seq.

Thus, as this Court recently noted in Lewis v. 
Smith, 731 F.2d 1535 (11th Cir. 1984), it has only been 
since April 1977 that federal employees have been required 
to exhaust the class regulations promulgated as a result of 
the order in Barrett. Subsequently, the Attorney General of 
the United States issued a directive to all United States 
Attorneys and federal agencies that the government would no 
longer oppose class certification on the ground that special 
rules applied to it that did not apply to other employers. 15/

14/ The Solicitor General of the United States acknowledged 
the correctness of Barrett to the Supreme Court in the Brief 
of the United States filed in Chandler v. Roudebush, 425 
U.S. 840 (1976), when it said:

A district court . . . has recently in­
validated Commission rules that effec­
tively prohibited administrative class 
actions. Barrett v. United States Civil 
Service Commission  ̂  ̂ . i_u/

40/ The Civil Service Commission has now 
approved in concept the propriety of ad­
ministrative class actions . . . .

Brief of Respondent, p. 65.
15/ Memorandum for United States Attorneys and Agency General 
Counsel from Griffin B. Bell, Aug. 31, 1977, reprinted in 
Emp. Prac. Guide (CCH) 1f 5046. The directive is reproduced 
in the Appendix to this Brief.

14



Although the defendant will probably try to argue that this 
directive is entitled to no acknowledgement by this Court, 
or that he is under no legal or ethical obligation to follow 
it, it clearly states the true position of the government of
the United States.

This history was brought to the attention of the 
defendant and the court below when the defendant sought a 
dismissal of the action for failure to exhaust administrative 
remedies. It is therefore somewhat surprising to counsel 
for plaintiffs to have the defendant reargue the same issue 
without bringing to this Court's attention in any way the 
prior history of the regulations and the very arguments it 
now seeks to make.

In short, the government's argument with regard 
to exhaustion of remedies is spurious and, at best, disin­
genuous. Mr. Griffin, a lay person, sought in good faith to 
raise class claims through a regulatory scheme that was

16/obscure, complicated, and almost impossible to understand.—  
He filed what appeared from the regulations to be the way to 
raise class claims. The fact that the regulations did not 
provide for notification of the right to bring an action in 
court was of no moment, because at the time he filed none of 
the regulations had such a provision, since the government 
and the Civil Service Commission took the position

16/ See Love v. Pullman Co., 404 U.S. 522, 527 (1972); 
zloes v. T.W.A., 455 U.S. 385, 397 (1982).

15



that there was no right to file an action under any circum- 
stanCes. ^  It was only in November, 1972, that the regu­
lations were amended to insert 5 C.F.R. § 713.282 (now 29
C.F.R. § 1613.282) providing for notification of the right 
to file a civil suit in connection with an individual EEO 
complaint. —  ̂ This case was filed in court in July, 1972, 
and it was not until April, 1977, when the class action 
regulations were promulgated, that what is now 29 C.F.R. § 
1613.642, providing for notification of the right to sue in 
connection with a class complaint was added. Hence, this 
case is clearly distinguishable from Porter v. Adams, 639 
F.2d 273 (5th Cir. 1981), which involved a single section 
setting up alternative means to raise the same claim (viz., 
reprisal), one of which included a reference to the sections 
in the regulations containing the right to sue provision 
while the other did not.

17/ Indeed, it was the Civil Service Commission's practice 
Hot to notify complainants of their right to file an action 
in court for any complaint filed prior to the effective da 
of Section 717 of the Equal Employment Opportunity Act of 
1972. See Eastland v. TVA, 553 F .2d 364 (5th Cir. 1977).
18/ We have reproduced in the appendix Federal Personnel 
Letter No. 713-17, Nov. 3, 1972, which transmitted the 
amended regulations. See p. 37a of the Appendix showing the 
addition of the right-to-sue provision, § 713.282. See 
Hackley v. Roudebush, 520 F.2d 108, 137 n. 117, and text at 
137-41, for a discussion of other aspects of the 1972 changes
in the regulations.

16



Thus, the government's argument here basically
stands for the proposition that it can set traps, spring
them, and then have legitimate claims of its own employees
thrown out of court because of its own opaque, obscure, and
misleading regulatory scheme. Faced with a similar argument
by the government in a different context a court said.

. . . this court will not allow
the government to take advantage 
of ambiguities created by forced 
interpretation by administrative 
agencies of their own regulations 
in order that they might play fast 
and loose with the substantial 
rights of government employees.

Bright v. Macy, 278 F. Supp. 215, 219 (D. Md. 1967). Surely
justice and equity require an equally resounding rejection
of the government's argument here.

Finally, the defendant ignores the fact that Mr. 
Griffin raised class claims administratively when he was 
fired from his job. He did this through the then available 
remedy of an appeal to the Civil Service Commission on Feb­
ruary 8, 1977, also before the class regulations were issued, 
but after the order in Barrett. (See R.E. pp. 32-33).

II.
THIS CASE IS A PROPER CLASS ACTION.

A . The Class Certification Is Consistent with Falcon
Defendant argues at some length that the district 

court below incorrectly certified the case as a class action 
in 1972, and persisted in that improper certification through­
out the litigation. The government's arguments basically

17



misconstrued what occurred below, and the appropriateness of 
a class action in this case.

Defendant's fundamental reliance is on General 
Telephone Company v. Falcon, 457 U.S. 147 (1982). However, 
that reliance is misplaced for a number of reasons. Falcon 
does not hold that an across-the-board, or broad class action, 
is prohibited under Rule 23. Indeed, the Supreme Court, by 
Justice Stevens, the author of Falcon, recently described 
its holding as simply that a single plaintiff cannot "nec­
essarily" represent a broad class. Cooper v. Federal Reserve
Bank of Richmond, _____U.S. _____, 52 U.S.L. Week 4853, 4856

18/(1984) (emphasis added). —
The problem in Falcon was that a single plaintiff 

with one narrow claim attempted to represent all claims that 
could be presented by all Hispanic employees and applicants 
for employment in one action. Here the facts are far 
different.

First, excluded from the class definition were 
applicants for employment. Thus, the class is limited to 
present or past employees of the Post Office, a class to

18/ See also, Richardson v. Byrd, 709 F.2d 1016, 1019-20 
TIth Cir. 1983); Nelson v. United States Steel, 709 F.2d 675 
(11th Cir. 1983); Ezell v. Mobile Housing, 709 F.2d 1376 (11th Cir. 1983). De La Fuente v. Stokely-Van Camp, Inc.,
713 F.2d 225 (7th Cir. 1983); Fleming v. Travenol Laboratories, 
707 F.2d 829 (5th Cir. 1983). See also, Council of the 
Blind v. Regan, 709 F.2d 1521, 1544-47, 1545, n. 58 (D.C.
Cir. 1983) (Robinson, J.; cone.)

18



which all of the named plaintiffs belong. Second, this is
not an instance where a single plaintiff with a single claim 
seeks to represent claims unrelated to how he had been affec­
ted personally. Compare, Vuyanich v. Republic National 
Bank, 723 F.2d 1195 (5th Cir. 1984). Cf., Lilly v. Harris- 
Teeter Supermarket, 720 F.2d 326 (4th Cir. 1983). Rather, 
this is an action brought on behalf of 23 named plaintiffs 
who represent a wide range of issues and problems directly 
related to their own circumstances. The lead plaintiff, 
Ernest Griffin, was both denied promotion to a supervisory 
position and was disciplined by being fired from the Post 
Office. The Amended Complaint, which sets out in detail the 
circumstances surrounding his claims, clearly establishes
that his claims are typical of Black employees who com-

19/plained about promotions and discipline. —

19/ Defendant's argument that Mr. Griffin did not rely on 
the disciplinary action against him to support his class 
claims is not accurate. A basis of his appeal to the Civil 
Service Commission from his discharge was that his:

. . . removal is part and parcel of a 
racially discriminatory and retaliatory 
pattern or practice in which supervisors 
have subjected Mr. Griffin, members of 
the class in Griffin v. U.S. Postal 
Service, and similarly situated black 
employees to denial of equal employment 
opportunities in discipline, assignments, 
promotions and transfers, working condi­
tions, etc.

R.E. 32-33. The removal of Mr. Griffin was specifically 
relied upon as an example of discriminatory discipline and 
reprisal in the Amended Consolidated Complaint. R.E. 28-29. 
As Falcon holds (457 U.S. at 160) the pleadings can be re­
lied upon under appropriate circumstances to certify a class. 
Here, there was no question but that Mr. Griffin is black 
and that he was discharged. Therefore, his claim was clearly 
typical of the claim that Blacks were subjected to dis­
criminatory discipline. See also R. at 1788; 1893; 1959-60.

19



The other named plaintiffs similarly represent a 
variety of claims relating to promotions and discharges as 
well as employment practices that directly affect promotions 
and discharges. Thus, there are complaints concerning the 
supervisory examinations, improper performance evaluations, 
being disciplined for a variety of reasons, denials of awards, 
and denials of training. — ^ As the facts make clear, all 
of these matters impact on an employee's ability to be pro­
moted or on the likelihood that he or she will be subjected

4

to disq'pline in the future.
Further, this is not a case where the district 

court, in finally determining the class certification issue, 
had no record before it. Early in the litigation the court 
had before it the administrative record, filed by defendant, 
including a detailed investigation and discussion of the 
class claims. The district court certified the class prior 
to trial and in response to plaintiffs' motion and defen­
dant's opposition at a time when through discovery a sub­
stantial record had been developed and was available for 
making the determination.

Finally, the fact that the scope of the class or 
its parameters may have evolved during the course of the 
litigation in no way whatsoever viates the correctness of 
the certification. Indeed, Rule 23 specifically provides

20/ See supra, at pp. 5-6.

20



be modified depending onthat the class certification may 
the changing circumstances of the case. Falcon, su£ra at

160.
B. Plaintiffs Satisfied the Requirements of Rule 23(aK.

1. Numerositv: The Defendant Has Not Contested.
That Numerosity Was Established.

2 Tvniralitv : The Claims of The Representative
* plrties Were Typical of The Claims of The Class.

The typicality requirement of Rule 23(a)(3) has 
been interpreted to mean that plaintiffs seeking to certify 
a class must demonstrate that other members of the class 
have the same grievances as the named plaintiffs. Taylor v._ 
^fewav Stores, Inc., 524 F.2d 263, 268-71 (10th Cir. 1975); 
ftreen v. Cauthen, 379 F. Supp. 361, 372 (D.S.C. 1974). Although 
individual class members may suffer from discriminatory 
practices that are factually different in detail from the 
plaintiffs' the rule is still satisfied where discrimination 
is based on the same unlawful employment practices. Donaldson, 
v. Pillsbury Co., 554 F . 2d 825 ( 8th Cir. 1977); Gibson v_._
Local 40, Longshoremen's Union, 543 F .2d 1259, 1264 (9th 
Cir. 1976); Senter v. General Motors Corp., 532 F.2d 511,
523-524 (6th Cir. 1976).

In their complaint, plaintiffs alleged discrimina­
tory practices in promotions, training, details, discipline, 
and career advancement programs generally. These practices 
affected the entire class of plaintiffs regardless of rank, 
employment status, salary, or supervisory position. The

21



fact that each named plaintiff did not share each and every 
complaint with all other class members does not foreclose 
satisfaction of the typicality requirement as long as "plain­
tiffs have demonstrated a sufficient nexus to enable them to 
represent other class members suffering from different prac­
tices motivated by the same policies". Payne v. Travenol 
Laboratories, Inc., 565 F.2d 895, 900 (5th Cir. 1982) (emphasis 
added).

Evidence of overall patterns of employment, particu­
larly with regard to the underrepresentation of Blacks in 
higher level positions, were before the district court in 
the investigator's report that is part of the administrative 
record; those figures establish typicality. Statements by 
class members, based on their affidavits, attesting to claims 
similar to the named plaintiffs were also part of that record. 
(R. 72-83). Of course evidence that other class members claim 
to be victims of pervasive discriminatory conduct may be 
considered in support of class certification. Donaldson, 
supra, 554 F.2d 825, 830-31 (8th Cir. 1977); Bachman v.
Collier, 73 F.R.D. 300 (D.D. C. 1976). In response to defen­
dant's various Interrogatories, the plaintiffs provided 
lists of other past and present Postal Service employees who 
allegedly suffered from discriminatory practices.

Furthermore, various named plaintiffs presented 
sufficient evidence at trial to at least make out prima 
facie cases of individual discrimination. The presentation

22



of these individual claims suggests a "personal interest in 
establishing the various claims of discrimination sufficient­
ly parallel to the interests of the other class members to
assure a vigorous representation of the class." Donaldson,

21/supra, 554 F.2d at 831 (8th Cir. 1977). — '

3. Commonality: Questions of Law and Fact
Common to The Class
The commonality and typicality requirements tend

22/to merge. Falcon, supra, 457 U.S. at 157, n. 13. —  The
central idea behind the requirement is that named plaintiffs 
share common grievances and claims with unnamed class mem­
bers. Falcon indicates a plaintiff must identify "the ques-

21/ Defendant makes much to-do over the fact that the lead 
plaintiff did not testify. Of course, there is no require­
ment that any class member, including the named plaintiffs, 
present their individual claims at Stage I of a Title VII 
class action. Indeed, in Cooper the Supreme Court suggested 
that it was the better practice not to litigate fully indi­
vidual claims in conjunction with deciding whether there has 
been classwide discrimination. 52 U.S.L. Week at 4857.
Here, anecdotal testimony was given only to illustrate the 
patterns the statistics showed. In any event, for class 
certification purposes the merits of Mr. Griffin's claims 
would not be at issue, only whether his claims were sufficient­
ly typical of those of the class. The administrative records 
introduced into the record clearly demonstrated that he had 
not been promoted to supervisor (R. 93) and that he had been 
disciplined. (R. 30-88).
22/ "Both serve as guideposts for determining whether 
under the particular circumstances maintenance of a class 
action is economical and whether the named plaintiff's claim 
and the class claims are so interrelated that the interests 
of the class members will be fairly and adequately protected 
in their absence." Ibid.

23



tions of law or fact that [are] common to the claims of 
[named plaintiffs] and members of the class he sought to
represent." Id. at p. 158.

Plaintiffs here established sufficient similarity 
in the types of claims between named plaintiffs and class 
members. Numerous items were introduced into the record to 
demonstrate that the type of complaints raised by the named 
plaintiffs were common to all members. Among those com­
plaints were denials of promotion opportunities, details, 
training, and discipline. This proof, in the form of the 
administrative record and interrogatory answers, was 
available to the court.

Of course, even if factual disparities exist 
within a class, courts have uniformly held that such dis- 
parties are superceded by alleged operation of a pervasive 
discrimination employment policy. Thus, the common nucleus 
need not embrace all operative facts. Johnson v. Georgia 
Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969). Evidence 
of many claims which both named plaintiffs and other class 
members share suggests an overall pattern of discriminatory 
practices that surely satisfies the commonality requirement.

In sum, defendant's argument boils down to asking 
this Court to exercise hindsight in light of the ultimate 
decision on the merits. Falcon, of course, squarely holds 
that this is not appropriate to overrule the exercise of 
a district court's discretion. 457 U.S. at 160.

24



4. Adequacy of Representation. The Representative 
Parties Will Fairly And Adequately Protect The 
Interest of The Class.
The adequacy of representation requirement involves 

a two-prong test. First, plaintiffs must show that counsel 
is qualified, experienced and generally competent to conduct 
the proposed litigation. Second, the named plaintiffs cannot 
have interests which are antagonistic to all or part of the
class. Johnson v. Georgia Highway, supra; Eisen v._Carl isle
and Jacquelin, 417 U.S. 156 (1974). There is no factual 
evidence whatsoever suggesting a conflict between plaintiffs 
interests and the interests of other class members. To 
the contrary, plaintiffs' continued pursuit of this litigation 
for more than a decade attests to their commitment to the 
interests of the class.

In sum, the lower court properly certified a 
class of all past and present black employees at the Jacksonville 
Post Office. Plaintiff properly satisfied the prerequisites 
of Rule 23(a) and qualified for class action status under 
Rule 23(b)(2).

III.
THE EVIDENCE ESTABLISHES DISCRIMINATION 

When one cuts through the various arguments made in 
defendant's brief with regard to the merits of this case, there 
are left standing a number of unrefuted and irrebuttable facts. 
First, consistently throughout the entire time period Blacks 
have been under-represented in supervisory positions in com­
parison to their representation in the relevant labor force,

25



i.e., the craft workforce. As the defendant is forced to admit, 
all promotions to supervisory positions are from the internal 
workforce; therefore, that labor force is the appropriate basis 
for comparison. Second, there is a clear and consistent over­
disciplining of Blacks when compared to their representation in 
the workforce, even if one takes into account and assumes 
correct the various proffered explanations of defendant. This 
over—representation is at statistically significant levels above 
two standard deviations.

These facts are established by defendant's statistics,
23/as we have demonstrated in our initial brief. Thus, con­

trary to defendant's arguments, we have relied here upon sta-

23/ As we have noted in our main Brief, Table 2 of defendant's 
expert's reports (RE 456-57), has the same figures for repre­
sentation on the supervisory registers as were used by plain­
tiffs' expert in PX 1, Table 2. When one applies the Hazlewood- 
Peques-Lilly binomial formula to the figures in defendant's 
table, (see our Main Brief at 52-53, n. 55) there is shown a 
consistent underrepresentation of Blacks in the registers from 
1969-77 at statistically significant levels. For example, in 
1970, when blacks were 32% of the work force according to the 
EEO investigator's report, they were 11.5% of those on the super­
visory register (17 of 148; RE 456). It would be expected that 
there would be 47.36 (32% of 148) Blacks on the register. Therefore

n = total employees on register 
p = black percentage of the workforce 

1-p = white percentage of the workforce 
Q = actual number of Blacks on register 
E = expected number of Blacks on register = np
S = standard deviation = i---—-- ------ynp (1-p)

number of standard deviations = Q-ES
In 1970, n = 148, p = .32, 1-p = .68, Q = 17, E = np = 47.36,
S 148 ( . 32) ( .68) = 5.67, and number of standard deviations 
= Q-E = 47.36 ~ 17 = 5.35 

S 5.67The same calculation (using 36% Black work force) shows under­
representation at the level of 3.064 standard deviations in 1975 
and 2.189 standard deviations in 1977.

26



istical evidence introduced by either or both sides which is 
consistent with each other and with the district court s fin­
dings. The issues here are the conclusions to be drawn from 
that statistical evidence and the appropriate legal standard to 
be applied in determining whether there has been discrimination 
in violation of Title VII.
A. Promotions

As we have discussed at length in our initial brief, 
the district court erred in terms of the burdens of proof 
imposed on the parties, and defendants perpetuate those errors 
in its arguments here. The correct analysis and the appropriate 
way to assess evidence such as developed here has recently been 
discussed at length by Judge Skelly Wright in Segar v. Smith,
___F.2d ___, 35 F.E.P. Cases 31 (D.C. Cir. 1984). In that case
there was a similar pattern of Blacks being promoted into super­
visory and higher level positions at rates below their represen­
tation in the workforce from which promotions were made. As 
here, that pattern was attacked as demonstrating disparate
treatment of Black employees.

The defendant in Segar attempted to explain the under­
representation of Blacks by the argument that Blacks lacked a 
qualification for the higher level positions. The Court in 
Segar rejected this defense because it demonstrated that a 
particular job qualification had had a disparate impact on 
Blacks, and that therefore, in order to rely on that explanation

27



to rebut a prima facie case of disparate treatment, the 
defendant had to demonstrate that the qualification was "legi­
timate" in the sense that it was job related. In other words, 
the defendant by mounting a defense based on a particular step 
in the process and a specific job qualification, transformed a 
disparate treatment case into an impact one. 35 F.E.P. Cases at 
43-46, 59. It thereby cast upon itself the burden established 
by Griggs v. Duke Power Co., 401 U.S. 424 (1971) and Albemarle 
Paper Co. v. Moody, 422 U.S. 405 (1975).

We have already argued in our initial brief that the 
defendant, faced with the clear fact that Blacks are under-re­
presented on the supervisory registers from which supervisory 
promotions are made, has sought to explain that fact by the 
effect of the tests which had to be passed in order to get on 
the registers. We have argued that the exclusion of an affirma­
tive attack by plaintiffs on those tests was error; but 
Segar makes it clear that even if plaintiffs did not affirmative­
ly attack the test or other job qualification, its job 
relatedness (or validity) becomes an issue if it emerges as 
a matter of defense that the device was the reason for the 
low representation of Blacks. 35 F.E.P. Cases at 44.

Such a result is eminently correct, and Segar also 
explains why an application of the decision of the Fifth 
Circuit in Pouncy v. Prudential Ins. Co., 668 F.2d 795 (5th 
Cir. 1982) to such a situation is inappropriate. As the 
Court in Segar notes, it is the defendant employer who has 
particular and specific knowledge concerning its employment

28



system. It is, therefore, to be expected that it will be
as a result of the employer's explanation for an observed
under-representation that the operative effect and impact
of a particular qualification standard or step in the
process will emerge. Id. at 44-45.

Here, the defendant specifically relies on the
step in the process by which persons got on the register,
that is, the test or other procedures during the relevant 

24/time period, — and the court below criticized plaintiffs'
statistics on the specific ground (taken at the urging of
defendant) that plaintiff's studies did not account for the

25/effect of the tests. — '

Defendant's claim here that somehow or other he 
would be prejudiced by the raising of the issue of the 
impact of the tests is nonsense. Defendant has known from 
the beginning of this litigation in 1972 that the issue of 
the impact of the test and other processes by which em­
ployees were placed on the supervisory registers was a 
central issue. It was defendant who objected to the issue 
of the tests being raised back in 1972; it was defendant 
who refused to produce any validity studies; and it was 
defendant's counsel who finally, after making an enormous 
point over the question of prior notice of a desire to obtain 
validity studies, finally admitted at trial that if there were

24/ See, e.g ., R. 3349. 
25/ RE 246-48.

29



any, he did not know what or where they were. (Tr. 1585-86; 
1604. )

Moreover, defendant's counsel are fully aware of 
the past history of this litigation and of its connection 
with parallel litigation in North Carolina, Chisholm v. U.S. 
Postal Service, 665 F.2d 482 (4th Cir. 1981). They are also 
aware that in both cases it was clear that the central issue 
with regard to the Postal Service's promotion policies was 
the impact of the same tests on Black employees. (see also 
TR 1592-93.)

To claim now that they have been surprised by, or 
would be prejudiced or unable to defend against, a claim 
that the tests had a disparate impact is simply a trans­
parent attempt to squirm out of a trap of defendant's own 
making. Plaintiffs attempted to raise the question of the 
tests in 1972, and if defendant had not successfully ob­
jected the issue would have been fully litigated and the 
defendant could have had ample time to conduct validity 
studies to attempt to demonstrate their job relatedness.

Defendant's success in having the issue excluded 
and its own decision to rest on that "victory", and not to 
validate the tests, leaves it in a very deep hole of its own 
digging. The under-representation of Blacks in the super­
visory force is clear. The law is also clear that such 
under-representation, when promotion is from the internal
workforce, puts the burden on the employer to come forward

26/with a satisfactory explanation of the result. — The only

26/ See Carroll v. Sears Roebuck & Co., 708 F.2d 183, 192-3 
l5th Cir. 1983); Segar v. Smith, supra.

30



explanation, the effect of the test in excluding Blacks from 
the supervisory registers, simply demonstrates disparate 
impact, casting on the defendant a further burden of demon­
strating job relatedness. Segar v. Smith, supra. Defendant 
has not done so.

Although plaintiffs must prevail based on this 
reasoning, we still continue to urge that the court below 
erred in excluding the issue of testing from this case. We 
have set out in detail in our initial brief the facts sur­
rounding the administrative complaint, its investigation, 
and the appropriate scope of the investigation, all of 
which were under the complete control of the defendant. 
Appellants' Brief pp. 35-41. These facts make it clear that 
the issue of the impact of the tests on the promotion of 
Blacks to higher positions was raised by the administrative 
complaint. Indeed, the exclusionary effect of the tests was 
investigated and was admitted to be within the scope of any 
proper investigation.

The defendant's attempt to explain away the clear 
testimony of its own director of EEO to the effect that he 
could have been referring to discriminatory usage of the 
tests is laughable. No such construction can reasonably be 
placed on the discussion quoted in our Brief at p. 40,
n. 40, particularly since the entire purpose of the deposition 
was to lay a factual foundation for obtaining an overruling
by the district court of its earlier order. There is no

31



hint that the questions related to or could be construed as 
a mere inquiry into the misuse of the tests by supervisors. 
In any event, the question of testing was excluded rn toto 
by the decision of the district court; there is no hint in 
the order that it was limited to the disparate impact of the 
tests.

Of course, the issue of the exclusion of the tests 
is a legal one, i,e., whether or not the question of testing 
was one which could reasonably could have been expected to 
grow out of the administrative complaint. That issue is a 
matter of law and has always been treated as such. See, 
e.q., Chisholm v. U.S. Postal Service, 516 F. Supp. 810, 
868-69 (W.D.N.C. 1980), aff'd, 665 F.2d 482 (4th Cir. 1981); 
Eastland v. T.V.A., 553 F.2d 364, 372 (4th Cir. 1972); 
President v. Vance, 627 F.2d 353 (D.C. Cir. 1980).

The effect of the trial court's decision to exclude 
the testing issue was to eliminate from consideration a key 
step in the process of selecting supervisors. Thus, the 
analysis was limited to the last two steps in a three step 
process. The first step was to get on the supervisory 
register by, depending on the time period involved, taking 
the examination, getting a high performance rating, taking 
supervisory training, or being rated highly by the PASS 
System. The second step was for persons on the register to 
apply for specific positions and be interviewed by a Pro­
motion Advisory Board. The third step was the actual se-

32



lection from those who were referred by the Board. The
defendant's statistics looked at steps two and three, and

 ̂ . 27/the district court's decision was based on that showing.
The exclusion of the first step therefore, was directly 
contrary to this Court's decision in Lawler v. Alexander,
698 F.2d 439 (11th Cir. 1983), which held it was error not 
to consider the entire three stages of the promotion process 
of a federal agency.
B. Discipline

With regard to discipline, again we have discussed 
at length in our original brief the undisputed statistics, 
and the inferences that must be drawn therefrom. The dis­
trict court decision was not based on a holding that the 
defendant had explained away the clear statistical dis 
parities shown. Rather, it was based on the erroneous legal 
conclusion that the burden was on the plaintiff to demonstrate 
the impossible, i.e,, that Blacks and Whites behaved the 
same and, therefore, that the differences observed were the 
result of discrimination. Such has never been the burden 
imposed in disparate treatment cases.

Defendant's further attempts to minimize the statis­
tical disparity shown also must fail. Segar squarely holds

27/ Thus, the defendant continues to define applicants as 
persons already on the register who apply for specific pro­
motions (Brief, 51-52). This approach excludes the crucial 
first step of getting on the register by taking the test, 
etc. Since the testing issue was excluded because of defen­
dant's motion to dismiss, there is no actual applicant flow 
data in the record showing the numbers of persons who took 
the test. Therefore, the proper comparison goup is the 
labor force from which the test-takers came, viz., the craft 
labor force. See Hazlewood School District v. United States, 
433 U.S. 299, 308, n. 13 (1977).

33



that a showing of a probability at the .05 level (2 standard 
deviations) is sufficient to require an inference that chance 
could not explain the observed result. 35 F.E.P. Cases at 
54-55. Nor can statistical showings be dissipated by dividing 
the class into so many subgroups that statistical significance 
disappears. Rather, it is necessary to reaggregate so that 
the impact on the entire class may be measured. Id. at 
57. &

IV.
Individual Claims

In our original brief we discuss in general terms 
the district court findings with regard to the anecdotal 
testimony of class members. Defendant attempts to draw 
some inference from the fact that all of the court s fin­
dings with regard to all of the class member witnesses were 
not discussed. However, in a 75 page brief (in contrast to 
the 120 pages requested) it would be impossible to discuss 
in the necessary detail the more than 100 pages of the 
district court findings with regard to individual claims.
We, therefore, selected some particularly clear examples Oj. 
class member testimony rejected by the court with little or 
no basis.

28/ Another one of defendant's arguments— that because 
Blacks were disciplined more by black supervisors there 
could not be racial discrimination— is wrong as a matter of 
law. Castaneda v. Partida, 430 U.S. 482 (1977).

34



Defendant characterizes Leroy Robinson's testimony 
as "incredible". However, it cannot be disputed that the 
Merit System Protection Board held in Mr. Robinson's favor 
and reversed the attempt to discharge him because he had 
critized the local Post Office management for racial dis­
crimination. It is clear that that action was illegal 
and violated not only the First Amendment but Title VII and 
the applicable regulations, and was a particularly egregious 
example of the claim of reprisal against the class. (See 
RE 26). The district court, without providing any factual 
basis, simply made the conclusory statement that this aborted 
attempt at retribution was "justified," a vivid illustration 
of the lengths the court went to in order to arrive at 
the highly improbable conclusion that from 1969 to 1981 
there had not been a single instance in which any Postal 
Service action in Jacksonville, Florida, violated Title 
VII.

Mr. Robinson gave testimony of other instances 
that was completely uncontradicted. Thus, he made out 
an unrebutted case of discrimination which entitled him to 
individual relief. The example of Mrs. Bacon concerning 
the refusal to credit her test score was similarly dealt 
with even though the defendant did not put a shred of 
evidence to contradict her testimony. Many other examples 
could have been given if space constraints had not dictated 
otherwise.

35



Of course, upon a reversal by this Court of the 
holding that there was no classwide discrimination the 
findings as to individual cases will have to be vacated for 
reassignment in light of the appropriate applicable stan­
dards as dictated by Teamsters v. United States, 431 U.S.
324 (1977) and Franks v. Bowman Transportation Co., 424 
U.S. 747 (1976). See, Donaldson v. Pillsbury Co., 554 F.2d 
825 (8th Cir. 1977).

Further, under Cooper v. Federal Reserve Bank of
Richmond, ____ U.S. _____, 52 U.S.L.W. 4853 (1984) the
finding of no classwide discrimination is not determinative 
of individual claims. As held by the Supreme Court, if the 
class is decertified as defendant requests, all class members 
will have the right to pursue their individual claims or to 
institute their own class action free of any finding that
binds the class. Crown, Cork & Seal Co. v. Parker, ___
U.S. ___, 76 L .Ed.2d 628 (1983). If, on the other hand,
this Court holds that the class was properly certified, 
individual class members can still pursue their individual 
claims, although they would be bound by a finding of no 
classwide discrimination. Cooper, supra.

V.
DEFENDANTS ARE NOT ENTITLED TO 
THEIR COSTS.

We have already set out in some length the argu­
ments why costs may not be assessed in this case. Defen­
dant claims that the directive from the Attorney General

36



should simply be disregarded by this Court. To do so would 
be both inappropriate and inequitable for the reasons set 
out in our initial brief. With regard to the time frame 
involved it is true that the directive was issued in 1978; 
however, the vast bulk of the court costs that were awarded 
below accrued during the time period after the defendants' 
motion to dismiss was denied in 1980 and the trial which 
ended in late 1982. The directive of the Attorney General 
was not rescinded until April 1, 1983, and therefore bars 
recovery of all of the costs that have been requested.

1984) supports our argument. There, this Court squarely 
held that the denial of costs to a prevailing party was 
appropriate under some circumstances. Id. at 1556-57. For 
the reasons set out in our main Brief, equitable considera­
tions mandate that costs be denied to the defendant.

Gilchrist v. Bolger, 733 F.2d 1551 (11th Cir.

\ l U-LiX uo uevuiNwr, crLaiyir5CJrco
GAIL J. WRIGHT 
CHARLES STEPHEN RALSTON

/

PENDA HAIR
99 Hudson Street 
16th Floor
New York, New York 10013

W. BENJAMIN KYLE
1248 W. Edgewood Avenue 
Jacksonville, Florida 32208

Attorneys for Plaintiffs-Appellants

37



CERTIFICATE OF SERVICE ^a_v\<
I hereby certify that on August 8̂  1984, copies

of the Brief were served on counsel for defendant listed
below, by depositing them in the United States mail, first
class postage prepaid:

Wyneva Johnson, Esq.
Office cf Labor Law
United States Postal Service
475 L 'Enfant Plaza West, S.W.
Washington, D.C. 20260-1131
Ernst D. Mueller, Esq. 
Assistant U.S. Attorney 
P.O. Box 600Jacksonville, Florida 322017? /? r

/ >
n

CHARLES STEPHEN RALSTOJ 0 .IN



A P P E N D I X
Documents and Regulations 
Relating to Class Action 

Complaints

✓



MEMORANDUM FOR UNITED STATES ATTORNEYS 
AND AGENCY GENERAL COUNSELS

Re: Tide VII Litieation

In 1972, as additional evidence of our Nation's deter­
mination to guarantee equal rights to all citizens, Congress 
amended Title VII of the Civil Rights Act of 1964 to provide 
Federal employees and applicants for Federal employment with 
judicially*enforceable equal employment rights. The Department 
of Justice, of course, has an important role in the affirmative 
enforcement of rights under the Act, in both the private and 
public sectors. To effectively discharge those responsibilities, 
we must ensure that the Department of Justice conducts its 
representational functions as defense attorneys for agencies 
in suits under the Act in a way that will be supportive of and 
consistent with the Department's broader obligations to 
enforce equal opportunity laws. This memorandum is issued 
as part of what will be a continuing effort by the Department 
to this end.

Congress, in amending Title VII, has conferred upon Federal 
employees and applicants the same substantive right to be free 
from discrimination on the basis of race, color, sex, religion, 
and national origin, and the same procedural rights to judicial 
enforcement as it has conferred upon employees and applicants 
in private industry and in state and local governments.
Morton v. Mancari, 417 U.S. 535 (1974); Chandler v. Roudebush,
425 U.S. 8£0 (1976). And, as a matter of policy, the Federal 
Government should be willing to assume for its own agencies no 
lesser obligations with respect to equal employment opportunities 
than those it seeks to impose upon private and state and local 
government employers.

In furtherance of this policy, the Department, whenever 
possible, will take the same position in interpreting Title VII 
in defense of Federal employee cases as it has taken and will 
take in private or state and local government employee cases.
For example, where Federal employees and applicants meet the

la



2
V

criteria of Rule 23 of the Federal Rules of Civil Procedure 
they are also entitled to the same class rights as are 
private sector employees. Albemarle Paper Co. v. Moody 
422 U.S. 405, 414 (1975). Further, the*Department of 
Justice has acquiesced in the recent rulings of the 
Fifth and Sixth Circuit Courts of Appeals that it is 
unnecessary for unnamed class members to exhaust their 
administrative remedies as a prerequisite to class 
membership. Eastland v. TVA 553 F.2d 364 (5th Cir. 1977).

1 iams v. TVA , ___F. 2d ("6 th Cir. 1977) . Cons equen tly
we will no longer maintain that each class member in a 
Title VII suit must have exhausted his or her administrative remedy.

In a similar vein, the Department will not urge 
arguments that rely upon the unique role of the Federal 
Government. For example, the Department recognizes that 
the same kinds of relief should be available against the 
Federal Government as courts have found appropriate in 
private sector cases, including imposition of affirmative 
action plans, back pay and attorney's fees. See CoDeland
v. Usery, 13 EPD 111,434 (D.D.C. 1976.); Day v~MatHi^i---
5T0 F._d 1083 (D.C. Cir. 1976); Sperling v. United States,
 ̂ F. 2d 465 (3d Cir. 1975) . Thus, wniie the Department 
might oppose particular remedies in a given case, it will 

t urge that, different standards be applied in cases agains 
the Federal Government than are applied*in other cases.°

The Department, in other respects, will also attempt 
to promote the underlying purpose of Title VII. For example 
the 1972 amendments to Title VII do not give the Government 
a right to file a civil action challenging an agency finding 
of discrimination. Accordingly, to avoid any appearance on 
the Government's part of unfairly hindering Title VII law 
suits, the Government will not attempt to contest a final 
agency or Civil Service Commission finding of discrimination 
by seeking a trial de novo in those cases where an employee 
who has been successful in proving his or her claim before 
either the agency or the Commission files a civil action 
seeking only to expand upon the remedy proposed by such final decision.

2a



3

The policy set forth above does not reflect, and should 
not be interpreted as reflecting, any unwillingness on the 
part of the Department to vigorously defend, on the merits, 
claims of discrimination against Federal agencies where 
appropriate. It reflects only a concern that enforcement of 
the equal opportunity laws as to all employees be uniform and consistent.

In addition to the areas discussed above, the Department 
of Justice is now undertaking a review of the consistency of 
other legal positions advanced by the Civil Division in 
defending Title VII cases with those advocated by the Civil 
Rights Division in prosecuting Title VII cases. The objective of 
this review is to ensure that, insofar as possible, they will 
be consistent, irrespective of the Department's role as either 
plaintiff or defendant under Title VII. As a part of this 
review, "the Equal Employment Opportunity Cases" section of 
the Civil Division Practice Manual (§3-37), which contains 
the Department's position on the defense of Title VII actions 
brought against the Federal Government, is being revised.
When this revision is completed, the new section of the Civil 
Division Practice Manual will be distributed to all 
United States Attorneys’ Offices and.will replace the present 
section. Each office should rely on the revised section of 
the Manual for guidance on legal arguments to be made in Title VII 
actions. In order to ensure consistency, any legal arguments 
which are not treated in the Manual should be referred to the 
Civil Division for review prior to their being advocated to 
the court.

This policy statement has been achieved through the 
cooperation of Assistant Attorney General Barbara Babcock 
of the Civil Division who is responsible for the defense of 
these Federal employee cases, and Assistant Attorney General 
Drew Days of the Civil Rights Division who is my principal 
adviser on civil rights matters. They and their Divisions 
will continue to work closely together to assure that this 
policy is effectively implemented.

GRIFFIN B. BELL

August 31, 1977
3a

DOJ-1977-09



?USLISKED IN ADVANCE Or INCORPORAT.ON
in  f p m  c h a p t e r  H 3 &EB1 Sura* 590-1

RETAIN UNTIL SUPERSEDED-

a d v ance copy
FPM LTR. NO. 113-17

Washington, D.C. 2G^T5 
November 3, 1972

UNITED STATES CIVIL SERVICE COMMISSION

federal personnel manual system
letter

FPM LETTER NO. 713-17  

SUBJECT: Revisions in E qual Opportunity Regulations (P a r t 713)

Heads of Departments and Independent Establishments:

The purpose o f  t h i s  L e t t e r  T ^ S d ^ t r a S l i t  th e  r e v is e d

i n  co n n ectio n  w ith  th e s e  ch a n g es.

The r e g u la to r y  ch an ges have ^ ^  ^ ^ ^ . . ^ t r s S e n ^ h ^ t h e  s y s t S  o f  
Opportunity A ct o f  1972 (P . - •  9 L>^  a r e  d e s ig n e d t o  a s s u r e  em ployees
d is c r im in a t io n  c o m p l a i n * J S t  t o ~ f ? i r  and f a s t  a d ju d ic a t io n  o f  d is c r in in a -  
and a p p lic a n ts  Ox t h e i -  n g h  t  .  „ ove a f f ir m a t iv e ly  in  a cco rd a n ce
t i o n  co m p la in ts  and t o  a s s u r e  th a t  a g e n c ie s  ^ove a p e r s o n s .
Alh  th e  la v  in  e f f e c t i n g  e q u a l employment o p p o r t u n e  f o r  a l l  p

Ax, p t op-261 r e g a r d in g  c o n s u lt a t io n  
In  a cco rd a n ce  w ith  th e  requirem e * td o n s  were  a d o n ted  a f t e r  c o n s u l-

' v i t h  in t e r e s t e d  g ro u p s, th e  » » »  o r g a n is a t io n s ,  women's g ro u p s,
t a t io n  w ith  r e p r e s e n ta t iv e s  o f  C x v il n g h . s  organ
la b o r  o r g a n is a t io n s  and F e d e r a l a g e n c ie s .

SIGlUFICAlfE CHANCES ADOPTED
The fo l lo w in g  i s  a summer-, <* “ ■’01 ch a n ses  13 th e  r e S“ i 9 t l 0 n s ;

o To em phasize th e  a f f l i c t i v e  a s p e c t s  o f  agen cy

7 13 . 203( a ) ;  and 7 1 3 - 2 0 1 ( d ) ( l ) )

o  A g e n c ie s  a r e  r e q u ir e d  S f S L l S f S  3E0
o ^ m a t te r s lf f e c t in g ^ th e ^ e a ip lo y m e n t  and advancem ent o f  women. 

(S e c t io n  7 1 3 .2 0 4 ( c ) )

INQUIRIES:
CSC CODE 71 
distribution

Office of Federal Equal Deployment Opportunity (Code 101-27612 
or 21120, or 632-7612 or 1120 

3, Equal Deployment Opportunity
ITM (ad van ce e d i t io n  l im ite d )

4a



j f U ' f l . M i i i '

??W kl5: fl§-. l l l - l l

f
\ \

*  t i l l s  w S d S e s S / S S f r l S r ^ o f a c i a l s .
(i§S?i9B Tl3:§OMf))

§ A s s i e s  3re required to make £*®s^ ^ e®g“ °Sttng thos^who 
I l H K f  SffibbathSn otherSban Sunday) when ‘-be accommodation

a ^ - M j s s ^ s .Of the ?s?jcy. ^  * vJl a i n t arises in this connection, the 
S S i f b a s  t £  duty to demonstrate Its inability to accommodate. 
^jSectdpn '713 • 20̂ + (g))

, . .J. -nntaetine an EEO Counselor is extended from
« ® *  g u - d J -  ftomlhe date of the alleged discriminatory

Tu E ( s ) ( l ) ( i > )  « *  agencies jr.

" g E E E E l E “ E E E  S ^ ^ a ^ f ^ e c t o r
g J g E X r d i n a t o r  and - y  other^officials designated for tnis 
ia»ryy?.c -yjr °ss;u'-i ' v— • 1 v ,v "

^ counselors are nrohibited from attempting in any way to restrain
* i ^ ^ n  from filing a complaint of discrimination. Counselor 

l a y  iiotiadvise a person not to file a complaint. (Section
^Jl3..(a))

. rTTKe -time -limit for completion of counseling has been converted
*  E s E t E  days to 21 calendar days for consistency w t h

limits which are stated in calendar days. (Section
77J£.^13(a))
T-e +h^ f-inal counseling inter'/iew is not completed in 21 days, 

s  S E E E l o r  must on the 21st day notify the person counseled of 
E v E t  to f U e  a complaint at any time thereafter and up to 
Eisy1'.after the final’ interview has been conducted. (Section
;il3^_13 (a))

„ T-p after investigation'of the complaint an adjustment is not ar- 
c° f i i l d E E e  Eplainant is allowed 15 days instead of seven from 

'the date of receipt of the proposed disposition to reques 
* £ M /  The complainant's request must be in writing. (Section
1-713 ̂ 217 (b))

o -"When-there is a finding of discrimination, agencies must take 
“ "Earnedia i-ae t ion, with or without back pay, as appropriate, and 

S?-review-'the case to determine if disciplinary action should 
Ibe-^kenrand record the basis for the decision to take or n - 
-iake'idisciplinary action. (Section 71.3-2^1(0))

5a



FPM. Ltr. No. 713-17 (3)

o Where an action otherwise appealable to the Commission involves 
a discrimination issue, the agency must inform the employee of his 
right to elect to proceed under this part.. (Section 713-236)

o A complaint is deemed filed (for the purpose of determining the 
running of time limits) on the date it is delivered to an agency 
official designated to receive complaint or, if mailed to such 
officials, on the postmark date. (Section 713-2lMa ) (3))

o Agencies are required to acknowledge receipt of complaints in 
writing and in the acknowledgement notice advise the complainant 
of all his rights, including appeal to the Commission and right 
to file a civil action. (Section 713.21^(a)(3))

o Expedited procedures are provided for action on complaints of 
coercion or reprisal by a complainant, his representative, or 
by a witness. Allegations may be handled during the hearing 
on the original complaint, or, if a charge arises before a hear­
ing, agencies will be required to investigate and report to the 
Commission on actions taken on the charge within 15 days of 
receipt of the charge. (Section 713-262)

o Agencies are required to furnish the investigative file promptly 
frt -hVio r,r'™"r'2- ° 2nd. nncvid.2 hir cn cppcn't'uii— "tc « ---y~
file with appropriate officials. (Section 713.217(a))

o Complaints must be resolved within 180 days of filing. Agencies 
are required to report monthly to the Commission on pend-ng com­
plaints. If a decision on the cacplaint has not been made within 
75 days of filing and the Commission has not been requested to 
supply a complaints examiner within that period of time, ‘-he agency 
will be required to take whatever measures the Commission considers 
appropriate to expedite processing or the Commission may assume 
responsibility for processing the complaint, including making the 
investigation (on a reimbursable oasis) and requiring the agency 
to propose a disposition to the complainant within 15 days of 
receipt of the investigator's report. (Section 713.220(e))

o A recommendation for a finding of discrimination by a Complaints 
Examiner will become a final decision of discrimination binding 
on the agency 30 days after the recommendation is made, where 
the agency has failed to issue a final decision within 180 days 
of filing of the complaint. (Section 713.220(d))

o Remedial action on behalf of applicants or employees in cases 
where there is a finding of discrimination must be taken by the 
agency. If an applicant has been denied employment because of •

6a



FPM Ltr. No. 713-17 C4)

discrimination, the agency shall offer him employment and the 
•title and grade denied him. Appointment shall be retroactive to 
the date the applicant would have been hired. 3ack pay shall be 
awarded from the beginning of the retroactive period. 3oth the 
appointment and the back pay may not extend from a date earlier 
than 2 years prior to the date the complaint was initially filed.
Similar action (including back pay) shall be taken when it is 
determined that an employee was discriminated against and it is 
reasonable to believe that he was denied a promotion, or other 
employment benefit. Back pay liability where there is a retro­
active promotion is limited to two years prior to the date the 
complaint was filed but in any event not to exceed the date the 
complainant would have been promoted.
Findings of discrimination involving awards of back pay and 
retroactive appointments or promotions may be made by the agency 
or by the Commission on their own motion and not based on com­
plaints. In such event, the period of retroactivity may extend 
up to two years prior to the date the finding of discrimination 
was recorded, but in-the case of a retroactive promotion not to 
exceed the date the. employee would have been promoted absent the 
discrimination.
Where there is a finding of discrimination and it is not clear 
that exceot for the d i m i r a t i o n  the complyIiiauu would have 
been promoted, he must be given consideration for promotion to 
a position for which he is qualified before consideration is 
given to other candidates and if not selected, the agency,must 
record the reasons for such nonselection. Similar priority 
consideration must be given to an applicant where there is find­
ing of discrimination but no reasonable certainty that the com­
plainant would have been hired. (Section 713-271)

o Complainants must be notified of their rights under the complaint 
procedures and the time limits applicable thereto including the 
right to file a civil action in an appropriate U.S. District 

. Court. (Section 713.281)
Notice of right to file a complaint must be provided by the 
Counselor; the receipt of the complaint must be acknowledged by 
the Director of EEO or EEO Officer and the complainant advised 
of his administrative rights and right to file a civil action; 
and the decision letter on a complaint must inform the com­
plainant of his right to appeal to the Commission and to file a 
civil action in an anpronriate U.S. District Court. (Sections 
713.213(a); 713.2lMa)(3); 713-215; 713.217(c); 713.220(d); and 
713.221(d))

7a



* it
 l»i

*iTV~m m*itm TTiil •*- .,mii>l—i r  -- ---* an ■iitaU 4

F?M Ltr. No. 713-17 (5)

o Complaints by third parties or organizations must =e investigated 
by the agency and the agency must prepare a file reflecting ohe 
-results of the investigation and make the file available l,o the 
complaining parties along with its decision on the complaint.
Within 30 days, the complaining party may request that the decision 
be reviewed by the Commission which may require additional investi­
gation by the agency or make its own investigation and order such 
corrective action, including back pay,-as it deems appropriate.
(Section 713.251)

o Officials conducting discrimination complaint hearings are 
referred to as "Complaint Examiners" in lieu cf "Appeal 
Examiners". In addition to present authority, they are also 
authorized to reauire the appearance of an employee of any _
Federal agency if he has information pertinent to the complaint 
under consideration. (Section 713-218(c))

EFFECTIVE DATES
With the exception of section 713-271, the regulation changes become 
effective December 1, 1972. Section 713-271 dealing with remedial action, 
including back pay, is retroactive to March 2k, 1972, the elective da e 
of enactment of The Equal Employment Opportunity Act of 19 f̂ -

ACTIONS REQUIRED BY AGENCIES
Agencies must take certain actions 
regulations to assure employees of

prior to the effective date of the 
their rights under the regulations:

1. All persons responsible for the administration of the equal 
employment opportunity program must be advised as quickly as 
possible of the changes in the regulations and the way in 
which the changes affect their responsibilities. Directors 
of Equal Employment Opportunity, Equal Employment Opportunity 
Officers, Federal Women Coordinators and other officials have 
new or changed responsibilities as explained in the reflation 
changes noted above and they must be informed of these responsi­
bilities.

2 . All final decisions made on or after March 2k, 1972, which 
involved a finding of discrimination must be reviewed to 
determine if back pay or retroactive promotion or appointment
is in order ; if so, such action should be taken. Section 713-271 
of the regulations should be cited as authority for the action.

3 . Officials authorized to receive complaints must be advised to 
forward complaints immediately upon receipt to the Director of 
Equal Enroloyment Opportunity or an Equal Employment Opportunity 
Official* so there will be no delay in undertaking processing of 
complaint. The Director of Equal Employment Opportunity or 
appropriate Equal Employment Opportunity Official will order 
the investigation.

t
- 8a -



FPM Ltr. No. 713- 17 (6)

h. Take all feasible steps to publicize the following information:
o The names and addresses of the Director of Equal 

Employment Opportunity, the Federal Women's Program 
Coordinators, and the appropriate EEO Officer and 
Counselors.

o The time requirements for contacting an EEO Counselor.
This information must be posted permanently on official 
bulletin boards but other means, such as employee 
bulletins and letters, should be used to make sure 
employees know who to contact in connection with a 
complaint of discrimination and the time limits for 
contacting a counselor.

5. Prepare required notices to complainants and distribute them to 
appropriate officials for their use in discrimination complaint 
processing. (See samples attached.)
Undertake any training programs necessary to acquaint counselors 
and other EEO officials of their responsibilities under the 
revised regulations. Commission training programs in Washington 
and in the field will be available to assist agencies in this 
regard.

7- rteview-the agency's entire complaint processing system and make 
necessary changes to assure that all complainants will receive a 
final decision within 180 days of filing.

8. Take special measures immediately to make a final agency decision 
in all discrimination complaint cases pending over lSO.days.

By direction of the Commission:

Bernard Rosen 
Executive Director

Atta chment
1. Regulations 
2-6 Sample notices

9a



Attachment 1 tc FPM Ltr. 713-17

Part 713 - EQUAL OPPORTUNITY

(Present regulations are shown in right-hand column "  l"aterial
Ts bracketed; added material 'is shown in left-hand column)

SUBPART A. [RESERVE*^
SUBPART B. equal opportunity without

regard to  race, color, religion , sex , 
OR national origin

713.201 Purpose and applicability
713.202 General policy
713.203 Agency program
713.204 Im plem entation of agency program
713.205 Commission review and evaluation of agency

program operations

Review

Agency Regulation* for Prejetting  
Complaint* of Ditcrimination

713.211 General
713.212 Coverage
713.213 Precom plaint processing
713.214 Filing and presentation of complaint
713.215 Rejection or cancellation of com plaint
713.216 Investigation
713.217 A djustm ent of com plaint and offer of hearing
713.218 Hearing

r.eiauonsm p to otner agency appellate pro­
cedures

713.220 Avoidance of delay
713.221 Decision by head of agency or designee
713.222 Com plaint file

Appeal to the CommU*ion

713.231 E ntitlem ent
713.232 Where to appeal
713.233 Time limit
713.234 Appellate procedures
713.235 /"Appellate review]by the Commissioners
713.236 ~~Relationship to  other appeals

Report* to the Com m ie**

713.241 Reports to the Commisaion-y.

on complaintsThird-Partv Allegations
713.251 Third-party allegations of discrimination 

"rpedom from Reprisal or Inteffpyence
713.261 Freedom from reprisal
713.262 Review of allegations of reprisal 

R p m H 1'*1 Actions
713.271 Remedial actions

B-ipht To File a Civil Action
713.281 Statutory right
713.282 Notice of right
713.283 Effect on administrative processing

10a



- - -

Attachment 1 to FPM Ltr. 713-1-~ (-)

H U M i i i n  a r m " r n i a M

S tB P A R T  C. MINORITY GROUP STATISTK S 
SYSTEM

; 86 Scat. Ill;,J

d e c is io n  or o th e r  f in a l  a c tio n  on

713.301
713.302

Applicability- 
Agency systems

SUBPART D. EQUAL OPPORTUNITY W ITHOUT 
REGARD TO POLITICS, MARITAL STATUS, OR 

PHYSICAL HANDICAP
713.-401 Equal opportunity -without regard to  politics, 

m arital status, or physical handicap Adthoritt: The provisions of this part 713 issued 
under 5 U.S.C. 1301. 3301, 3302, 7151-7154. 730ri
E.O. 10577; 3 CFR, 1954-1953 Comp., p. 213, E.O. 
11222, 3 C FR  1964-1965 Comp., o. 306, E.O. 11478, 
3 C F R  1969 Comp.)

SUBPART A. [RESERVED] 
SUBPART 3. EQUAL OPPORTUNITY 
WITHOUT REGARD TO RACE, COLOR, 
RELIGION, SEX, OR NATIONAL ORIGIN

General Previsions
Sec. 713.201 Purpose and applicability, (a) 

Purpose. This subpart sets forth the regulations 
under which an agency shall establish a con­
tinuing affirmative program for equal oppor­
tunity m employment and personnel operations 
without regard to race, color, religion, sex, or 
national origin and under which the Commission 
will review an agency's program and entertain 
an appeal from a person dissatisfied with an 
agency's /processing of] his complaint of dis­
crimination on grounds of race, color, religion, 
sex, or national origin.

(b) Applicability. (1) This subpart applies (i) 
to military department as defined in section 
102 of title 5, United States Code, executive 

^agencies (other than the General Accounting 
Office) as defined in section 105 of title 5, United 
States Code, -Mhe United States Postal Serv­
ice, and the Postal Rate Commission,4- and 

~to the employees thereof, including employees 
paid from nonappropriated funds, and (ii) to 
those portions of the legislative and judicial 
branches of the Federal Government and the 
government of the District of Columbia having 
positions in the competitive service and to the 
employees in those positions.

(2) This subpart does not apply to aliens 
employed outside the limits of the United 

-States.

11a



Attachment 1 to F?M Ltr. 713-17 (3)
Sec. 713.202 General policy. I t is the policy 

of the Government of the United States and 
nf the government of the District of Columbia 
to provide equal opportunity in employment 
for all persons, to prohibit discrimination in 
employment because of race, color, religion, 
sex, or national origin, and to promote the full 
realization of equal employment opportunity 
through a continuing affirmative program in 
each agency.

Sec. 713.203 Agency program. The head 
of each agency shall exercise personal leadership 
in establishing, maintaining, and carrying out 
a continuing affirmative program designed to 
promote equal opportunity in every aspect of 
agency personnel policy and practice in the 
employment, development, advancement, and 
treatment of employees. Under the terms of its

and assure that the principal and 
operating officials responsible for 
carrying out the equal employment opportunity program meet established 
qualifications requirements

program, an agency shal]£ to the maximum 
extent possiblg:

(a) Provide sufficient resources to administer 
its equal employment opportunity program in a 
positive and effective manner^'

(b) Conduct a continuing campaign to eradi­
cate every form of prejudice or discrimination 
based upon race, color, religion, sex, or national 
origin, from the agency’s personnel policies and 
practices and working conditions, including 
-disciplinary action against employees who 
engage in discriminatory practices;

(c) Utilize to the fullest extent the present skills of employees by all means, including the 
redesigning of jobs where feasible so that tasks 
not requiring the full utilization of skills of 
incumbents are concentrated in jobs with lower skill requirements;

(d) Provide the maximum feasible oppor­
tunity to employees to enhance their skills 
through on-the-job training, work-study pro­
grams, and other training measures so that they 
may perform at their highest potential and 
advance in accordance with their abilities;

(e) Communicate the agency’s equal em­
ployment opportunity policy and program and
its employment needs to all sources of job 
candidates without regard to race, color, re­
ligion, sex, or national origin, and solicit their 
recruitment assistance on a continuing basis;

- 12a -
I I M l II ■ U T -  ■■II" W H F



Attachment 1 to FPM Ltr. 713-17

labor

as many
,Federal Women's Program-----Coordinators, and other persons

(f) Participate at the community level with 
other employers, with schools and universities, 
and with other public and private groups in 
cooperative action to improve employment 
opportunities and community conditions that 
affect employability;

(g) Review, evaluate, and control mana­
gerial and supervisory performance in such a 
manner as to insure a continuing affirmative 
application and vigorous enforcement of the 
policy of equal opportunity, and provide 
orientation, training, and advice to managers 
and supervisors to assure their understanding 
and implementation of the equal employment 
opportunity policy and program;

(hi Provide recognition to employees, super­
visors, managers, and units demonstrating 
superior accomplishment in equal employment 
opportunity;

(i) Inform its employees and recognized 
jgmployej}organizations of the affirmative equal 
employment opportunity policy and program 
and enlist their cooperation;

(j) Provide for counseling employees and 
applicants nv no utsinsve uusjf nave ueen uis- 
criminated against because of race, color, 
religion, sex, or national origin and for resolving 
informally the matters raised by them;

(k) Provide for the prompt, fair, and impar­
tial consideration and disposition of complaints 
involving issues of discrimination on grounds of 
race, color, religion, sex, or national origin; and

(l ) Establish a system for periodically evalu­
ating the effectiveness of the agency’s overall 
equal employment opportunity effort.

Sec. 713.204 Implementation of agency pro­
gram. To implement the program established 
under this subpart, an agency shall:

(a) Develop the plans, procedures, and 
regulations necessary to carry out its program 
established under this sub part;

(b) Appraise its personnel operations at 
regular intervals to assure their conformity 
with the policy in section 713.202 and its
program established in accordance with section 
713.203;

(c) Designate a Director of Equal Employ-
_ ment Opportunitv/'/andU^uch] Equal Employ-

ment Opoortuniiy Ofncer^fand] Equal Employ- 
ment Opportunity Counselors- as in ay be 
necessary, to assist the head of the agency to 
carry out the functions described in this sub-

13a



and the qualifications of the 
persons so designated

national and regional equal 
employment opportunity

«

complaints

subject to section 713-251;

„ „ t  m .11 organizational m itt *nd auona 
. t ntrencv. The functioning K  the Uirectnr
■ ot Equal

ConnaeloB

«*>«■■the tameri"r nThr;S S J  ol the head ol hi. agency, and sh jl be 
given the authority necessary '-o enable h 
farry out his responsibilities under the regul

^ , taA ^ i Stobth“  Direetor ot Equa Employ -

T n A d S ' ^ h e ' r ^ a g e n c y  • - *

eegnlat.ona r.por-.. 7l3.202 and the
^ ' “p r o ^  Weired to be es.abh.hed

tin., to . £  
sufficiency of the total agency program for 
equal employment opportunity and 
thereon to the head of the agency with recom­
mendations as to any improvement or corTec“°° 
seeded. Including .

(3) When authorized by the head 
aeency making changes in programs and 
j^ocedures designed to eliminate discnmina^ory 

- practices and improve the agency's program for 
oqual employment opportunity; ,
^ (4 )  Providing for counseling, by an Equal 
Employment Opportunity Counselor, of an> 
aggrieved employee or applicant for eroplo - 
£ S  who believes that he has been discnmi- 
nated against because of race, color, rehgum. 

i ,  or national origin and for attempting to 
resolve on an informal basis the matter rai- 
by the employee or applicant before a <-om- 
p[aint of discrimination may be hied under
section 713.214 ; . , in-r^ripa-(5) Providing for the receipt and invesne
J n  of individun^oiupliim^of discnmmation

‘ inpersonnel matters withm the agency, subje,
to sections 713.211 through .13-----

(6) Providing for the receipt, investigation, 
and disposition of general allegations by organi­
zations or other third parties of d.scnminatK 
“  r ^nnnel m a t t e n T the .urencyj^hich

------- "areP unrelated to an indivutudal complaint • I
discrimination subject to sections . l o - l  
through 713.222, under procedures determined 
by thl agency to be appropriate, - t h  notifica­
tion of decision to the party submitting -  
allegation}

Attachment 1 to FPM Ltr. 713-17 <5>

14a



Attachment 1 to FPM Ltr. 713-17 (6)

(e) Insure that equal oppor- __
tunity for women is an integral part 
of fhe agency's overall program by 
assigning to the Federal Women's 
Program Coordinators the function of 
advising the Director of Equal 
Emolovment Oooortunitv on matters 
affecting the employment and advance 
ment of women;

(f) Publicize to its -----
employees and post permanently
on official bulletin boards:
(1) The names and addresses of 
the Director of Equal Employment 
Opportunity and the Federal Women's 
Pyogrcini Coordinators > 2
(2) The name and address of the 
appropriate Equal Employment 
Opportunity Officer;

(7) When authorized by the head of the 
agency, making the decision under section 
713.221 for the head qf the agency on complaints 
of discrimination and ordoring such corrective 
measures as he may consider necessary, in­
cluding the recommendation for such disciplin­
ary tuition as is warranted by the circumstances 
when an employee has been found to have en­
gaged in a discriminatory practice; and

(8) When not authorized to make the de­
cision for the head of the agency on complaints 
of discrimination, reviewing, at his discretion, 
the record on any complaint before the de­
cision is made under section 713.221 and making 
such recommendations to the head of the agency 
or his designee as he considers desirable, in­
cluding the recommendation for such disciplin­
ary action as is warranted by the circumstances 
when an employee is found to have engaged in 
a discriminatory practice;

ITe) Publicize to its employees:
(1) The name and address of the Director of 

Equal Employment Opportunity;
(2) Where appropriate, the name and^ ad­

dress of an Equal Opportunity Officer; and]

(3) The name and address of the Equal 
Employment Opportunity Counselor and the 
organizational units he serves; his availability 
to counsel an employee or [qualified] appucant 
for employment who believes that lie has been 
discriminated against because of race, color, 
religion, sex, or national origin; and the re­
quirement that an employee or jqualineqj ap­
plicant for employment must consult the Ooun- 
solor as provided by section 713.213 about his 

-allegation of discrimination because of race, 
color, religion, sex, or national origin before a 
complaint as provided by section 713.214 may 
be filed; a

and



Attachment 1 to FPM Ltr. 713-17 (7)

(4) Time limits for contact­ing an Equal Employment Opportunity Counselor;

employee o r a p p lic a n t ,  i t  has a duty  in  a other applicants or employees; ang<“

(i) Submit annually for the 
review and approval of the Comm\ssion 
written national and regional equal employment opportunity plans of actio 
Plans shall be submitted in a format
include, but not be limited to --

tlj Provision tor the establisnment 
of training and education programs designed 
to provide maximum opportunity for employees 
to advance so as to perform at their highest 
potential;

(2) Description of the qualifications, 
in terms of training and experience relating 
to equal employment opportunity, of the 
principal and operating officials concerned 
with administration of the agency's equal 
employment opportunity program; and

agency shall comply with the rules, 
regulations, orders, and instructions 
issued by the Commission.

(by substitution of another 
qualified employee, 
hardship on ____________

■4PJ Make reasonable accommodations to 
the religious needs of applicants and employees, 
including the needs of those who observe the 
-Sabbath on other than Sunday, when those 
accommodations can be made J^by a grant of
leave, a change of a tour of duty, or other 
means’) without undue I interference with) the

If an agency cannot accommodate an business of the agencyjp r with the rights of

complaint arising under this subpart to 
demonstrate its inability to do so;

_j(g)jMake readily available to its employees a
copy of its regulations issued to carry out its 
program of equal employment opportunity.'/(h)

; and

p^gge^ibed by the Commission and shal1

(3) Description of the allocation of 
personnel and resources proposed by the 
agency to carry out its equal employment 
opportunity program.

Sec. 713.205 Com m ission rev iew  and 
evaluation of agency program operations. The
Commission shall review and evaluate agency 
program operations periodically, obtain such 
reports as it deems necessary, and report to the 
President as appropriate on overall progress. 
When it finds that an agency’s program opera­
tions are not in conformity with the policy set 
forth in section 713.202 and the regulations in 
this subpart, the Commission shall require im­
provement or corrective action to bring the 
agency’s program operations into conform­
ity with this policy and the regulations in this 
subpart.#.The head of each department and

16a



Attachment 1 to FFM Ltr. 713-17 (3)

with that agency

(Section 713.251 applies to general 
allegations by organizations or other 
third parties.)

issues in

issues in

21 calendar days

A gency R egu la tion s fo r  P rocessing  
C o m p la in ts  o f D iscrim in a tio n

Sec. 713.2 U General. An agency shall ensure 
that its regulations governing the processing of 
complaints of discrimination on grounds of race, 
color, religion, sex, or national origin comply 
with the pr nciples and requirements in sections
713.212 through 713.222.

Sec. 713.212 Coverage, (a) The agency shall 
provide in its regulations for the acceptance of 
a complaint from any aggrieved employee or 
amolicant for employment^who believes that he 

' has been discriminated against 1 ecause of rare, 
color, religion, sex. or national origin. A com­
plaint may also be filed by an organization for 
the aggrieved person with his consent.

(b) Sections 713.211 through 713.222 do not 
apply to the consideration by an agency of a 
general allegation of discrimination by an or­
ganization or other third party which is unre­
lated to an individual complaint of discrimina­
tion subject to sections 713.211 through 713.222.

Sec. 713.213 Precomplaint processing, (a) 
An agency shall require that an aggrieved person 
who believes that he has been discriminated 
against because of race, color, religion, sex, or 
national origin consult with an Equal Employ­
ment Opportunity Counselor when he wishes 
to resolve the matter. The agency shall require 
the Equal Employment Opportunity Counselor 
to make whatever inquiry he believes necessary 
into the matter; to seek a solution of the matter 
on an informal basis; to counsel the aggrieved 
person concerning the [merits ofjthe matter; to 
keep a record of his counseling activities so as 
to brief, periodically, the Equal Employment 
Opportunity Officer on those activities; and, 
when advised that a complaint of discrimination 
has been accepted from an aggrieved person, 
to submit a written report to the Equal Em­
ployment Opportunity Officer, with a copy to 
the aggrieved person, summarizing his actions 
and advice both to the agency andthe aggrieved 
person concerning the /merits ofj the matter. 
The Equal Employment Opportunity Counselor 
shall, insofar as is practicable, conduct his final 
interview with the aggrieved person not later 
than fl5 workdays}after the date on which the

17a



i ' ''— ■amime ntiini -1"

If the final interview is not concluded 
yithin 21 days and the matter has not 
reviously been resolved to the satis­
faction of the aggrieved person, the 
aggrieved person shall be informed in 
writing at that time of his right to 
file a complaint of discrimination.
The notice shall inform the complainant 
of his right to file a complaint at 
any time after receipt of the notice 
up to 15 calendar days after the final 
interview (which shall be so identified 
in writing by the Equal Employment 
Opportunity Counselor) and the appropriate 
official with whom to file a complaint.
The Counselor shall not attempt in any 
way to restrain the aggrieved person 
from filing a complaint.

The agency snail assure that full(b) me agem-j - - ---------- .cooperation is provided by all employees 
to the Equal Employment Opportunity Counselor 
in the performance of his duties under this
sectioif.
(c)

and be signed by the complainant. 
The complaint may be delivered in 
person or submitted by mail.

30
30

or his representative 
an appropriate official
(2) The appropriate officials to 

receive complaints are the head of the 
agency, the agency's Director of Equal 
Employment Opportunity, the head of a 
field installation, an Equal Employment 
Opportunity Officer, a Federal Women’s 
Program Coordinator, and such other 
officials as the agency may designate 
for that purpose. Upon receipt of the 
complaint, the agency official shall 
transmit it to the Director of Equal 
Employment Opportunity or appropriate 
qual Employment Opportunity Officer 
who shall acknowledge its receipt in 
accordance with subparagraph (3) ot 
this paragraph.

Attachm ent 1 to  FPM L t r .  713- 1 7  (9 )

matter was called to his attention by the 
ag g rievedperson jfhe  Equal Employment 
Opportunity Counselor shall advise the ag­
grieved person in the final interview of his right 
to file a complaint of discrimination with the 
organization’s Equal Employment Opportunity 
Officer if the matter has not been resolved to his 
satisfaction and of the time limits governing the 
acceptance of a complaint in sectionr713.214j 
The Equal Employment Opportunity Counselor 
shall not reveal the identity of an aggrieved 
person who has come to him for consultation, 
except when authorized to do so by the ag­
grieved person, until the agency has accepted a 
complaint of discrimination from him.

____ 1(b)} The Equal Employment Opportunity
---- Counselor shall be free from restraint, inter­

ference, coercion, discrimination, or reprisal in 
connection with the performance of his duties 
under this section.

Sec. 713.214 Filing and presentation of 
compiaint. (a) Time limits. (1) An agency shall 
require that a complaint be submitted in writing 
by the complainant or his re presen tative^] The

___ "___4- onmnloinf. fnT nrOCCSSIIlZagency may accept the complaint for processing 
in accordance with this subpart only if—

(i) the complainant brought to the attention 
of the Equal Employment Opportunity 
Counselor the matter causing him to 
believe he had been discriminated against 
within flol calendar days of the date of
that matter, or, if a personnel action, 
within flol calendar days of its effective
dateffand

(ii) the" complainan^submitted his written 
complaint to (the Equal Employment 
Opportunity Officer) within 15 calendar 
days of the date of his final interview 
with the Equal Employment Opportunity 
Counselor.

------ >

18a



Attachment 1 to FPM Ltr. 713-17 (10)

(3) A complaint shall be deemed filed 
on the date it is received, if delivered 
to an appropriate official, or on the date 
postmarked if addressed to an appropriate 
official designated to receive complaints.
The agency shall acknowledge to the com­
plainant or his representative in writing 
receipt of the complaint and advise the^ 
complainant in writing of all his adminis­
trative rights and of his right to file a _ 
civil action as set forth in section 713.281, 
including the time limits imposed on the 
exercise of these rights.

(A)

The head of the agency or his designee 
may reject a complaint which was not 
timely filed and shall reject those 
allegations in a complaint which are 
not within the purview of section 
713.212 or which set forth identical 
matters as contained in a previous 
complaint filed by the same complainant 
which is pending in the agency or has 
been decided by the agency. He may cancel 
a complaint because of failure of the 
complainant to prosecute the complaint.
He shall transmit the decision to reject 
or cancel by letter to the complainant 
and his representative.

and of his right to file a civil action 
as described in section 713.281.

ft2)1 The ncencv shall extend the time limits 
“in this section (i) when the complninnnt shows 

that he was not notified of the tipie limits and 
was not otherwise aware of them, or that lie 
was prevented by circumstances beyond his 

-control from submitting the matter within the 
time limits, or (ii) for other reasons considered 
sufficient by the agency.

(b) Presentation oj complaint. At any stage 
in the presentation of a complaint, incltulin 
the counseling stage under section 713.213. tin 
complainant [shall be free from restraint, inter­
ference, coercion, uisciimmuiiwn, «i ““lit
shall have the right to be accompanied, repre­
sented, and advised by a representative of Ins 

-own choosing. If the complainant is an employee 
-of the agency, he shall have a reasonable amount 

of official time to present his complaint if lie is 
otherwise in an active duty status. If the com­
plainant is an employee of the agency and he 
designates another employee of the agency as 
his representative, the representative shall [be 
free from restraint, interference, coercion, dis­
crimination, or reprisal, and shulljliave a reason­
able amount of official time, if he is otherwise in 
an active duty status, to present the complaint.

Sec. 713-215 Rejection or cancellation of 
comolaint. jvfhen the head of the agency, or 

* his designee, decides to reject a complaint be­
cause it was not timely filed or because it is 
not within the purview of section 713.212 or to 
cancel a complaint because of a failure of the 
complainant to prosecute the complaint or be­
cause of a separation of the complainant which 
is not related to his complaint, he shall transmit 
the decision by letter to the complainant ana 
his representative] •>Tho decision letter shall 
inform the complainant of his right to appeal 
tho decision of the agonev to the Commission 
and of the time limit within which the appeal 
mav he suhmitteilffrf

19a



aflwrA— UfeiM f M ta f i i i k i ■jfrflfitaafali

Attachment 1 to FPM Ltr. 713-17 (11)

Sec. 713.216 Investigation, (a) The Equal 
Employment Opportunity Officer shall advise 
the Director of Equal Employment Oppor­
tunity of the acceptance of a complaint. The 
Director of Equal Employment Opportunity 
shall provide for the prompt investigation of 
the complaint. The person assigned to investi­
gate the complaint shall occupy a position in 
the agency which is not, directly or indirectly, 
under the jurisdiction of the head of that part 
of the agency in which the complaint arose. 
The agency shall authorize the investigator to 
administer oaths and require that statements 
of witnesses shall be under oath or affirmation, 
without a pledge of confidence. The investi­
gation shall include a thorough- review of the 
circumstances under which the alleged discrimi­
nation occurred, the treatment of members of 
the complainant’s group identified by his com­
plaint as compared with the treatment of other 
employees in the organizational segment in 
which the alleged discrimination occurred, and 
any policies and practices related to the work 
situation which may constitute, or appear to 
constitute, discrimination even though they 
have not oeen expressly cited by tue com­
plainant. Information needed for an appraisal 
of the utilization of members of the complain­
ant’s group as compared to the utilization of 
persons outside the complainant’s group shall be 
recorded in statistical form in the investigative 
file, but specific information as to a person’s 
membership or nonmembership in the com­
plainant’s group needed to facilitate an adjust­
ment of the complaint or to make an informed 
decision on the complaint shall, if available, be 
recorded by name in the investigative file. (As 
used in this subpart, the term "investigative 
file” shall mean the various documents and 
information acquired during the investigation 
under this section—including affidavits of the 
complainant, of the alleged discriminating offi­
cial, and of the witnesses and copies of. or 
extracts from, records, policy statements, or 
regulations of the agency—organized to show 
their relevance to the complaint or the general 
environment out of which the complaint arose.) 
If necessary, the investigator may obtain infor­
mation regarding the membership or nonmem­
bership of a person in the complainant's group 
by asking each person concerned to provide 
the information voluntarily: he shall not require 
or coerce an employee to provide this informa­
tion. jTke agency shall furnish the complainant 
or his representative a copv of the investigative 
filej

20a



.**
|*U

1U
iiiim L l

Attachment 1 to FPM Ltr. 7 1 3 - 1 7 (1 2)

For this purpose, the agency shall 
-u.msh the complainant or his 
representative a copy of the in­
vestigative file promptly after 
receiving it from the investigator, 
and provide opportunity for the com-

discuss th* investigative U I e  wi™  appropriate officials.

' J ?  G ? T t0r °f Equal Employment Op­portunity shall arrange to furnish to the person
fthe. mVeSti?ation a " 'ri“ en aiithori-

ohiints ( r  inveiti"ate « P « ts  of com- plau t ,  of discrimination. (2) to require „n
; V6eS ,°f the “gency to cooperate with him 

the conduct of the investigation, and (3) to 
require employees of the agency having anv 
knouledge of the matter complained of to
S u f  teSiln!0ny/Illder °ath or “ffiraiution without a pledge of conndence.

J i 3'217 AdJ'ustment complaint and 
offer of hearing (a) The agency shall provide 
an opportunity for adjustment of the complaint 
on an informal basis after the complainant ha's 
ren  ewed the investigative file^f an adjustment 
f the complaint is arrived at, the terms of the 

adjustment shall be reduced to writing and 
made part of the complaint file, with a copy „f
he terms of the adjustment provided ‘the 

jcomnlninanr  ̂ 1 e

ll Che/gency dees not carry out, or —  
aCti0n by r-.

not “ y ■■«><*-
= co«plai„ant the“ ga "  Z u ‘ \ ° £

the complainant's writLn raoues"' r!i"
l'nr?r»'tbTPl-lnt £°r fUrth"  P ~ « « :

teems M

notice that he desires * h? f tH 
(3) of his r ip h r  J t  h e a r in §> and the h p . V  uSh CO a decision by head of the agenev or sic a 
without a hearing. 7 hl desiSnee 
15-day

0f ,he '““paint L-
arm ed at the complainant shall be notified m

j - g ^ n d T o f  the proposed disposition Z re,
In that notice, the agency shall advise the com­
plainant of -»his right to a hearing with a 
subsequent decision by the head of the a-enev 
or his designee and his right to such a d.-ci>L,*-
comnl a Unng’ Th° ,l®uncF »1»«H allow the complainant seven calendar days from receipt
of the notice to notify the agency whether or 
not he wishes to have a heurimr)

(c) If the complainant fails to notify the

‘t s . d  ot 'a i t c

SKm for tlie hen,I „f

- 21a -



Attachment 1 to FPM Ltr. 713-17 (13)

and of his right to file a civil 
action as described in section 
713.281.

Complaints 
a complaints

complaints

a complaints

complaints
complaints

complaints

Employment Opportunity Officer shall trans­
mit the decision by letter to the complainant 
and his representative which shall inform the 
complainant of his right of appeal to the Com- 
mission and the timelimit applicable theretnfllf 
the Equal Employment Opportunity Officer 
does not issue a decision under this paragraph, 
the complaint, together with the complaint file, 
shall be forwarded to the head of the agency, 
or his designee, for decision under section 
713.221. _

Sec,713.218 Hearing, fa > /■ 1 ppeahjexaminer. 
The hearing shall be held by /an appeals) ex
aniiner who must be an employee of another 
agencv except when the agency in which the 
complaint arose is (1 ) the government of the 
District of Columbia or (2) an agency which, 
by reason of law. is prevented from divulging 
information concerning the matter complained 
of to a person who has not received the security 
clearance required by that agency, in which 
event the agency shall arrange with the Com­
mission for the selection of an impartial em­
ployee of the agency to serve as/'appeals) ex- 
ammer. if or purposes of this paragraph, theT\ ... .wi . t tv . r . .. ii.u wc u
single agencv.) The agency in which the com­
plaint arose shall request the Commission to 
snnnlv the name of /an appeals] examiner who 
has been certified by the Commission as quali­
fied to conduct a hearing under this section.

(b) Arrangement* tor hearing. The agency in 
which the complaint arose shall transmit the 
complaint file containing all the documents 
described in section 713.222 which have been 
acquired up to that point in the processing of 
the complaint, including the original copy of 
the investigative file (.which shall be considered 
by tliefappenls] examiner in making his recom­
mended decision on the complaint), to the {ap­
peals! examiner who shall review the complaint

complaints

file to determine whether further investigation 
is needed before scheduling the hearing. When 
the /appeals] examiner determines that further 

'•■t investigation is needed, he shall remand the 
complaint to the Director of Equal Employ­
ment Opportunity for further investigation or 
arrange for the appearance of witnesses neces­
sary to supply the needed information at the 
hearing. The requirements of section. 713.210 
applv to any further investigation by the 
,icrpn--v on the cmnlaint. The/unnealslcxannner

----- 1 shall schedule the hearing for a convenient
time and place.

- 22a -



-*i
 tt.

-UM
JU

Mi
.

iiwi n rate «ua
*
i

:-^-».a.-r ■K̂AiM

Attachment 1 to FPM Ltr. 713-17 (14)

complaints

complaints

complaints

complaints
complaints

complaints

complaints
any agency subject to this subpart

may
an employee of any Federal agency
determines is necessary to furnish, 
information pertinent to the com­
plaint under consideration. The 
complaints

An agency to whom a request is made-

complaints
not administratively impracticable^ 
administratively impracticable ____

to whom request is mad<

(c) Conduct of hearing. (1) Attendance at the 
hearing: is limited to persons determined by the 

JappealsJ examiner to have a direct connection 
with the complaint.

(2) The (appeals] examiner shall conduct the
hearing so as to bring out pertinent facts, includ­
ing the production of pertinent documents. 
Rules of evidence shall not be applied strictly, 
but the /appeals] examiner shall exclude irrele­
vant or unduly repetitious evidence. Informa­
tion having a bearing on the complaint or em­
ployment policy or practices relevant to the 
complaint shall be received in evidence. The 
complainant, his representative, and the repre­
sentatives of the agency at the hearing shall be 
given the opportunity to cross-examine wit­
nesses who appear and testify. Testimony shall 
be under oath or affirmation.

(d) Powers of [appeal*} esant iner. In addition 
to the other powers vested in the (appeals)
examiner by the agency in accordance with this 
subpart, the agency shall authorize the{appealsj
examiner to:

(1) Administer oaths or affirmations;
fO\ T? t .u- l.«,w * --»
(3) Rule on offers of proof;
(4) Limit the number of witnesses whose 

testimony would be unduly repetitious; and
(5) Exclude any person from the hearing for 

contumacious conduct or misbehavior that 
obstructs the hearing.

(e) Witnesses at heading. The /appeals] ex- 
amtner shall requesTjTIIe agency to make

available as a witness at the hearing an employee 
requested by the complainant when he deter­
mines that the testimony of the employee is 
n e c ta ry . ffe/shalj]also request the appearance 
of /any other employee] whose testimony he

Jclesires to supplement the information in the
investigative file. The appeals] examiner shall 
give the complainant his reasons for the denial 
of a request for the appearance of employees 
as witnesses and shall insert those reasons in 
thp rpcnrd of the hearing. jThe agencv] shall 
make its employees available as witnesses at a 
hearing on a complaint when requested to do 
«=o bv the fnppealsJexaminer and it is Jad minis- 
trativeiy practicable} to comply with the re
quest. When it is jnoi administratively practica­
ble] to comply with the request for a witness, 
the ngeney^shnll provide an explanation to the

- 23a -

t-



Attachment 1 to FPM Ltr. 713-17 (15)

complaints
complaints

complaints

An employee of an
he is -------
a witness, -

complaints

(appeals^ examiner. If the explanation is in­
adequate. the jiippealsjexaminer shall so advise
the agencv and request it to make the employee 
available as a witness at the hearing. If the 
explanation is adequate, the /appeals]examiner 
shall insert it in the record of the hearing, 
provide a copy to the complainant, and make 
arrangements to secure testimony from the 

' employee through a written interrogatory. 
Employees of the] agency shall be in a duty 
status during the time /they are/made available 
as fitnesses. Witnesses shall be free from 

—restraint, interference, coercion, discrimination,
or reprisal in presenting their testimony at the 
hearing or during the investigation under 
section 713.216TJ

(f) Record of hearing. The hearing shall be 
recorded and transcribed verbatim. All docu­
ments submitted to, and accepted by, the 
Appeals)examiner at the hearing shall be made 
part of the record of the hearing. If the agency 
submits a document- that is accepted, it shall 
furnish a copy of the document to the com­
plainant. If the complainant submits a docu-

complaints

document available to the agency representa­
tive for reproduction.

(g) Findings, analysis, and recommendations. 
The /appeals} examiner shall transmit to the 

■L_ head of the agency or his designee (1) the com­
plaint file (including the record of the hearing),

complaints

complaints

complaints

complaints

which do not bear directly 

which bear on ------ ------

(2) the findings and analysis of the/appeal^ ex­
aminer with regard to the matter which gai e 
rise to the complaint and the general environ­
ment out of which the complaint arose, and (3) 

rprommended decision of theianpealsj ex­
aminer on the merits of the complaint, including 
recommended remedial action, where appropri­
ate, with regard to the matter which gave rise 
to the complaint and the general environment 
out of which the complaint arose. Thejippe-.ilsj 
examiner shall notify the complainant of the 
date on which this was done. In addition, the

_/appeals) examiner shall transmit, by separate
letter to the Director of Equal Employment 
Opportunity, whatever findings and recommen­
dations he considers appropriate with respect to 
conditions in the agencvfhaving no bearing]on 
the matter which gave rise to the complaint or 

^  tlie seneral environment out of which the com­
plaint arose.

24a



Attachment 1 to FPM Ltr. 713-17 (16)

within 180 calendar days after 
it was filed, including

complaints

Sec. 713.219 Relationship to other agency 
appellate procedures. ->(a) Except as provided 
in paragraphs (b) and (c) of this section, when 
an employee*-  makes a written allegation of 
discrimination on grounds of race, color, reli­
gion, sex, or national origin, in connection with 
an action that would otherwise be processed 
under ->n grievance or appeals system*-  of the 
agency^the agency may process the allegation 
of discrimination under -Mhat system when 
the system*-  meets the principles and require­
ments in sections 713.212 through 713.220 and 
the head of the agency, or his designee, makes 
the decision of the agency on the issue of dis­
crimination. That decision on the issue of dis­
crimination shall be incorporated in and become 
a pan  of the decision on the grievance or appeal.

->tb) An allegation of discrimination made 
in connection with an appeal under subpart B 
of part 771 of this chapter shall be processed 
under that subpart.

(c) An allegation of discrimination made in 
connection with a grievance under subpart C' 
of part 771 of this chapter shall be processed 
under this part.*-

sec. 713.220 Avoidance of delay, (a) The 
complaint shall be resolved promptly. To this

end, both the complainant and the agency 
shall proceed with the complaint without undue 
delay so that the complaint is resolven|~except 
in unusual circumstances, within 60 cTdendar 
days after its receipt by the Equal Employ­
ment Opportunity Officer, exclusive of) time 
spent in the processing of the complaint by 
the jap peals) examiner under section 713.218. 
•fc-fcjWhen the complaint has not been resolved 
within this limit, the complainant may appeal 
to the Commission for a review of the reasons 
for the delay. Upon review of this appeal, the 
Commission may require the agency to take 
special measures to ensure prompt process­
ing of the complaint or may accept the 
appeal for consideration under section 713.234T]

(b) The head of the agency or his designee 
may cancel a complaint if the complainant 
fails to prosecute the complaint without undue 
delay. However, instead of cancelline for failure 
to prosecute, the complaint may be adjudicated 
if sufficient information for that purpose is 
available.

25a



nr̂ rnmm't J

Attachment 1 to FEM Ltr. 713- 17 (17)

(c) The agency shall furnish the 
Commission monthly reports on-all com 
plaints pending within the agency in a 
form specified by the Commission. If an 
agency has not issued a final decision, 
and has not requested the Commission to 
supply a complaints examiner, within 7o 
calendar days from the date a complaint 
was filed, the Commission may require 
the agency to take special measures to^ 
ensure prompt processing of the complaint 
or may assume responsibility for pro- 
cessing the complaint, including supp y 
ing an investigator to conduct any 
necessary investigation on behalf of the 
agency. When the Commission supplies 
an investigator, the agency shall reim­
burse the Commission for all expenses 
incurred in connection with the investi­
gation and shall notify the complainant 
in writing of the proposed disposition 
of the complaint no later than 15 calen­
dar days after its receipt of the in-
vestigative report.

(d) When the complaints examiner nas 
submitted a recommended decision finding 
discrimination and the agency has not 
issued a final decision within 180 cal­
endar days after the date the complaint 
was filed, the complaints examiner's 
recommended decision shall become a 
final decision binding on the agency 
30 calendar days after its submission to 
the agency. In such event, the agency 
shall so notify the complainant of the 
decision and furnish to him a copy of the 
findings, analysis, and recommended deci­
sion of the complaints examiner under 
section 713.218(g) and a copy of the 
hearing record and also shall notify him 
in writing of his right of appeal to the 
Commission and the time limits applicable 
thereto and of his right to file a civil 
action as described in section 713.281.

- 26a -



Attachment 1 to FEW Ltr. 713-1-7 (18)

When there has been no hearing, the—  
decision shall contain the specific 
reasons in detail for the agency's 
action, including any remedial action 
taken.

complaints

coraplaints

crwri f  f* t a a c nn c -fn Hot-ail

Sec. 713.221 Decision by head of agency 
or designee, (u) The head of the agency, or 
his designee, shall make the decision of the 
agency on a complaint based on information 
in the complaint file. A person designated to 
make the decision for the head of the agency 
shall be one who is fair, impartial, and objective.

—>(b)(1) The decision of the agency shall 
be in writing and shall be transmitted by letter 
to the complainant and his representative.

(2) When there has been a hearing on the 
complaint, the decision letter shall transmit a 
copy of the findings, analysis, and recommended 
decision of the (appeal^ examiner under section 
713.218(g) and a copy of the hearing record. 
The decision of the agency shall adopt, reject, 
or modify the decision recommended by the

jnppealg] examiner. If the decision is to reject 
or modify the recommended decision, the de- 
cision letter shall spt. forth the freâ on-i] for re­
jection or modification-

(3) When there has been no hearing and no 
decision under section 713.217(c), the decision 
letter shall set forth the findings, analysis,
and decision of the head of the agency or his 
designee.

(c) The decision of the agency shall require 
any remedial action authorized by law deter­
mined to be necessary or desirable to resolve 
the issues of discrimination and to promote

, whether or not there is a finding of____ the policy of equal opportunity
discrimination. When discrimination 
is found, the agency shall require 
remedial action to be taken in accord­
ance with section 713.271, shall review 
the matter giving rise to the complaint 
to determine whether disciplinary action 
against alleged discriminatory officials 
is appropriate, and shall record the basis 
for its decision to take, or not to take, 
disciplinary action but this decision shall 
not be included in the complaint file.

27a



Attachment 1 to FPM Ltr. 713-17 (19)

(d) The decision letter shall inform the com­
plainant of his right to appeal the decision of

of h is  r ig h t  to  f i l e  a c i v i l  a c t io n ______the agency to the Commission (and of the time
in  accordance w ith  s e c tio n  713.281, limit within which the appeal may be sub-
and of the  tim e l im its  a p p lic a b le  mittedj
th e r e to .

Sec. 713.222 Complaint file. The agency 
shall establish a complaint file/containing^all 

. Except as provided in  se c tio n  iirn»iiTn«nrR pertinent "to the complaint. The
7 1 3 .2 2 1 (c ), th i s  f i l e  s h a l l  co n ta in

•

(a )  the  n o tic e  of the  Equal Employment 
O pportunity  Counselor to  the aggrieved 
person under s e c tio n  7 1 3 .2 1 3 (a ), (b )

(c )  -------- --------------------------------
(d) --
(e )

( f )  __________________________

<g>

(h)

( i )

com plain ts

_itpitMllV liiV. i UUC V. UU1C5
. r r n  .U1-littil tue

written report of the Equai Employment Op­
portunity Counselor under section 713.213 to 
the Equal Employment Opportunity Officer on 
whatever precomplaint counseling efforts were 
made with mrard to the complainant’s case. f(b)j 
the complaint, ftc'j the investigative file. jTdi] if
me compiaint is withdrawn by the complainant, 
a written statement of the complainant or his 
representative to that effect, Jfe)f if adjustment 
of the complaint is arrived it under section 
713.217, the written record of the terms of the 
adjustment, j(f)7 if no adjustment of the com- 
plornt is arrived at under section 713.217, a 
copy of the letter notifying the complainant of 
the proposed disposition of the complaint and 
of his right to a hearing,/(gd if decision is made
under section 713.217(c), a copy of the letter to 
the complainant transmitting that decision, fch)] 
if a  hearing was held, the record of the nearing, 
together with the [appeals] examiner’s findings, 
analysis, and recommended decision on the 
merits of the complaint, f(ij] if the Director of 
Equal Employment Opportunity is not the

28a



Attachment 1 to  FPM L tr . 713-17 (20)

(k)

or a portion  th e re o f , for 
reasons covered by sec tion  
713.215;

designee, the recommendations, if any, 
him to the head of the agency or his design , 
and Fifiif decision is made under section .13-2 . 

-“Tcbpy of the letter transmitting the decision 
of the' head of the agency or his designee. T 
complaint file shall not contain any document 
that has not been made available to the 
complainant or to his designated physician 
under section 294.401 of this chapter.

Appeal to the C om m ission

Sec. 713.231 Entitlement, (a) Except as 
provided by paragraph (b) of this section, a 
complainant may appeal to the Commission the 
decision of the head of the agency, or his

(u* To reject his complaint ["because (i) it 
~L" was not timely tiled, or (u) it was not within 

the purview of the agency’s regulations^or
(2) To cancel his complaint gi)J because of 

the complainant’s failure to prosecute his 
complain£"or (a) because of the complainant s 
separation which is not related to his complainj;

(3) On the merits of the complaint, under 
section 713.217(c) or 713.221, but the decision 
does not resolve the complaint to the com­
plainant’s satisfaction.

(b) A complainant may not appeal to the 
Commission under paragraph (a) of this 
section when the issue of discrimination giving 
rise to the complaint is being considered, or 
has been considered, in connection with any 
other appeal by the complainant to the Com- 
mission.

Sec 713.232 Where to appeal. The com­
plainant shall file his appeal in writing, either 
personally or by mail, with the Board of 
Appeals and Review, U.S. Civil Service Com­
mission, Washington, D.C. 20415.

Sec. 713.233 Time limit, (a) Except as 
provided in paragraph (b) of this section, a 
complainant may file an appeal at any time 
after receipt of his agency's notice of final 
decision on his complaint but not later than 
15 calendar days after receipt of that notice.

(b) The time limit in paragraph (a) of this 
section may be extended in the discretion 
of the Board of Appeals and Review, upon a 

-showing by the complainant that he was not 
notified of the prescribed time limit and was 
not otherwise aware of it or that circumstances 
beyond his control prevented him from filing 
an appeal within the prescribed time limit.

29a



Attachment 1 to FPM Ltr. 713-1-7 (21)

Sec. 713.234 Appellate procedures. The 
Board of Appeals and Review shall review the 
complaint file and all relevant written rep- 

• resentations made to the board. The board may
remand a complaint to the agency for further 
investigation or a rehearing if it considers that 
action necessary or have additional investiga­
tion conducted by Commission personnel- This 
subpart applies to any further investigation or 
rehearing resulting from a remand from the 
board. There is no right to a hearing before the 
board. The board shall issue a written decision 
setting forth its reasons for the decision and 
shall send copies thereof to the complainant, 
his designated representative, and the agency. 
When corrective action is ordered, the agency 
shall report promptly to the board that the 
corrective action has been taken. The decision

but sh a ll contain a n o t ic e ______  t of the board is final,/and there is no further
of the r ig h t to  f i l e  a c iv i l  right to appey.
ac tio n  in accordance with Sec. 713.235 Review by the Commis-
Section 713.282 - sioners. The Commissioners may, in their dis­

cretion, reopen and reconsider any previous 
decision when the partv requesting reopening 
submits written argument or evidence which 
tends to establish that:

(1 ) New and material evidence is available 
that was not readily available when the previous 
decision was issued;

(2) The previous decision involves an errone­
ous interpretation of law or regulation or a mis­
application of established policy; or

(3) The previous decision is of a precedential 
nature involving a new or unreviewed policy 
consideration that may have effects beyond the 
actual case at hand, or is otherwise of such an 
exceptional nature as to merit the personal 
attention of the Commissioners.

Sec. 713.236 Relationship to other appeals. 
When the basis of the complaint of discrimina­
tion because of race, color, religion, sex, or 
national origin involves an action which is 

. otherwise appealable to the Commissionf^the
and the complainant having keen case, including the issue of discrimination, will
formed by the agency of h is  r ig  ^  t>e processed under the regulations appropriate
proceed under th is  subpart e to that appeal when the complainant makes a
proceed by appeal to -he omrai ’ timely appeal to the Commission in accordance

with those regulations.

R eports to the C om m ission

_____Sec. 713.241 Reports to the Commission
______________ _I Each agency shall report to the Commission

on complaint s information concerning precomplaint counseling
tatus and disposition of complaints 
subpart at such times and in such 
the Commission nr°scribes^__^^_

30a



Third Party Allegations

Sec. 713.251 Third-partv allegations of discrimination, (a) Coverage. 

This section applies to general allegations by organizations or other 

third parties of discrimination in personnel matters within the agency 

^bich are unrelated to an individual complaint of discrimination subject 

to section 713.211 through 713.222.
(b) Agency procedure. The organization or other third party shall 

state the allegation with sufficient specificity so that the agency may 

investigate the allegation. The agency may require additional specifi­

city as necessary to proceed with its investigation. The agency shall 

establish a file on each general allegation, and this file shall con­

tain copies of all material used in making the decision on the allegation. 

The agency shall furnish a copy of this file to the party submitting the 

allegation and shall make it available to the Commission for review on 

request. The agency shall notify the party submitting the allegation of 

its decision, including any corrective action taken on the general 

allegations, and shall furnish to the Commission on request a copy of

its decision. .
(c) . Commission procedures. If the third party disagrees with the 

agency decision, it may, within 30 days after receipt of the decision, 

request the Commission to review it. The request shall be in writing and 

shall set forth with particularity the basis for the request. When the 

Commission receives such a request, it shall make, or require the agency 

to make, any additional investigations the Commission deems necessary.

The Commission shall issue a decision on the allegation ordering such 

corrective action, with or without back pay, as it deems appropriate.

Attachment 1 to FEM Ltr. 713-17 (22)

31a



Attachment 1 to FPM Ltr. 713-17  (23)

Freedom from Reprisal or Interferences

Section 713.261. Freedom from reprisal, (a) Complainants, their 

representatives, and witnesses shall be free from restraint, inter­

ference, coercion, discrimination or reprisal at any stage in the 

presentation and processing of a complaint, including the counsel­

ing stage under section 713, or any time thereafter.

Sec. 713.262 Review of allegations of reprisal. (a) Choice of review 

procedures. A complainant, his representative, or £ witness who alleges 

restraint, interference, coercion, discrimination, or reprisal in connec­

tion with the presentation of a complaint under this subpart, may, if «
an employee or applicant, have the allegation reviewed as an individual 

complaint of discrimination subject to section 713.211 through 713.222 

or as a charge subject to paragraph (b) of this section.

(b) Procedure for review of charges. (1) An employee or applicant 

may file a charge of restraint, interference, coercion, discr.mination, or 

reprisal in connection with the presentation of a complaint with an appro­

priate agency official as defined in section 713.214 (a) (2) within 15 

calendar days of the date of the alleged occurrence. The charge shall 

be in writing and shall contain all pertinent facts. Except as provided 

in subparagraph (2) of this paragraph, the agency shall undertake an 

appropriate inquiry into such a charge and shall forward to the Commission 

within 15 calendar days of the date of its receipt a copy of the charge

- 32a -

T’-f "'"'V'-'M



f

i

f - - ... 3̂ katim
■■ ̂ĝ âfeagtaaafciKiaM —

Attachment 1 to FPM Ltr. 713-17 (2A)

and report of action taken. The agency shall also provide the charging 

party with a copy of the report of action taken. When the agency has 

not completed an appropriate inquiry 15 calendar days after receipt 

of such a charge, the charging party may submit a written statement 

with all pertinent facts to the Commission, and the Commission shall 

require the agency to take whatever action is appropriate.

(c) When a complainant, after completion of the investigation of 

his complaint under section 713.216, requests a hearing and in connection 

with that complaint alleges restraint, interference, coercion, discrimina­

tion, or reprisal, the complaints examiner assigned to hold the hearing 

shall consider the allegations as an issue in the complaint at hand or 

refer the matter to the agency for further processing under the procedure

cnosen oy the complainant- pui-u^ni. ^  F— 6 ^ ’“ thic

Remedial Actions

Sec. 713.271 Remedial actions. (a) Remedial action involving 

an applicant. (1) When an agency, or the Commission, finds that an 

applicant for employment has been discriminated against and except for 

that discrimination would have been hired, the agency shall offer the 

applicant employment of the type and grade denied him. The offer shall 

be made in writing. The individual shall have 15 calendar days ffom 

receipt of the offer within which to accept or decline the offer. Failure 

to notify the agency of his decision within the 15-day period will be con­

sidered a declination of the offer, unless the individual can show that 

circumstances beyond his control prevented him from responding within the

- 33a -
T orTT-



time limit. If the offer is accepted, appointment shall be retroactive 

to the date the applicant would have been hired, subject to the limita­

tion in subparagraph (4) of this paragraph. Back pay, computed in the 

same manner prescribed by section 550.804 of this chapter, shall be 

awarded from the beginning of the retroactive period, subject to the 

same limitation, until the date the individual actually enters on duty. 

The individual shall be deemed to have performed service for the 

agency during this period of retroactivity for all purposes except 

for meeting service requirements for completion of a probationary or 

trial period that is required. If the offer is declined, the agency 

shall award the individual a sum equal to the back pay he would have 

received, computed in the same manner prescribed by section 550.804 of 

this chapter, from the date he would have been appointed until the date 

the offer was made, subject to the limitation of subparagraph (4) of this 

paragraph. The agency shall inform the applicant, in its offer, of his 

right to this award in the event he declines the offer.
(2) When an agency, or the Commission, finds that discrimination 

existed at the time the applicant was considered for employment but does 

not find that the individual is the one who would have been hired except 

for discrimination, the agency shall consider the individual for any 

existing vacancy of the type and grade for which he had been considered 

initially and for which he is qualified before consideration is given 

to other candidates. If the individual is not selected, the agency 

shall record the reasons for non-selection. If no vacancy exists, the 

agency shall give him this priority consideration for the next vacancy 

for which he is qualified. This priority shall take precedence over

Attachment: 1 to FPM Ltr. 7 l3-L7 (25)

34a



Attachment 1 to FBM Ltr. 713-^7 (26)

priorities provided under other regulations in this chapter.

(3) This paragraph shall be cited as the authority under which 

the above-described appointments or awards of back pay shall be made.

(4) A period of retroactivity or a period for which back pay is 

awarded under this paragraph may not extend from a date earlier than 

two years prior to the date on which the complaint was intitially filed 

by the applicant. If a finding of discrimination was not based on a 

complaint, the period of retroactivity or period for which back pay is 

awarded under this paragraph may not extend earlier than two years 

prior to the date the finding of discrimination was recorded.

« (b) Remedial action involving an employee. When an agency, or

the Commission, finds that an employee of the agency was discriminated 

aeainst and as a rpsnl r of chat- o'-rimi nnticr '.:zz denied en 

benefit, or an administrative decision adverse to him was made, the agency 

shall take remedial actions which shall include one or more of the following, 

but need not be limited to these actions:

(1) Retroactive promotion, with back pay computed in the same 

manner prescribed by section 550.804 of this chapter, when the record 

clearly shows that but for the discrimination the employee would have 

been promoted or would have been employed at a higher grade, except 

that the back pay liability may not accrue from a date earlier than 

two years prior to the date the discrimination complaint was filed, but, 

in any event, not to exceed the date he would have been promoted. If a 

finding of discrimination was not based on a complaint, the back pay 

liability may not accrue from a date earlier than two years prior to the 

date the finding of discrimination was recorded, but, in any event, not 

to exceed the date he would have been promoted.

35a



Attachment 1 to FPM Ltr. 713-17 (27)

(2) Consideration for promotion to a position for which he is 

qualified before consideration is given to other candidates when the 

record shows that discrimination existed at the time selection for 

promotion was made but it is not clear that except for the discrimi 

nation the employee would have been promoted. If the individual is not 

selected, the agency shall record the reasons for nonselection. This 

priority consideration shall take precedence over priorities under other 

regulations in this chapter.
(3) Cancellation of an unwarranted personne1 action and restoration 

of the employee.
(4) Expunction from the agency's records of any reference to 

or any record of an unwarranted disciplinary action that is not-a 

personnel action.
(5) Full opportunity to participate in the employee benefit 

denied him (e.g., training, preferential work assignments, overtime 

scheduling).

Right to File a Civil Action

Sec. 713.281 Statutory right. An employee or applicant is 

authorized by section 717 (c) of the Civil Rights Act, as amended,

84 Stat. 112, to file a civil action in an appropriate United States 

District Court within:

(a) Thirty (30) calendar days of his receipt of notice of 

final action taken by his agency on a complaint,

(b) One hundred-eighty (180) calendar days from the date of 

filing a complaint with his agency if there has been no 

decision,

36a



- -  -  - -
tt~ ii' - a tm *

Attachment 1 to FPM Ltr. 713-17 (2S)

( c )

28

Thirty (30) calendar days of his receipt of notice 

of final action taken by the Commission on his complaint, 

or,
(d) One hundred-eighty (180) calendar days from the date of 

filing an appeal with the Commission if there has been 

no Commission decision.
Sec. 713.282 Notice of right. An agency shall notify an 

employee or applicant of his right to file a civil action, and of the 

30-day time limit for filing, in any final action on a complaint under 

section 713.215, 713.217, or 713.221. The Commission shall notify an 

•employee or applicant of his right to file a civil action, and of the 

30-day time limit for filing, in any decision under section 713.234.
Sec. 71^.2SS gffo/*<~ nn a^miriisfr_tire rrcccccing. The 111 Ij..*, 

of a civil action by an employee or applicant does not terminate agency 

processing of a complaint or Commission processing of an appeal under 

this subpart.

- 37a -



■■Mg
--— ig > .

i
1

f-i

j

11
i
i
i

Attachment 2 to FPM Ltr. 713-17

Subject: 

From:

To:

NOTICE OF RIGHT TO FILE A DISCRIMINATION COMPLAINT

EEO Counselor DATE.
(Specific Installation)

Name of Person Counseled

This is to inform you that although counseling on the matter you 
brought to the attention of the EEO Counselor has not been com­
pleted, 21 calendar days have gone by since you first contacted 
the Counselor and you are now entitled, if you want to do so, to 
file a discrimination complaint if you believe you have been dis­
criminated against on the basis of race, color, religion, sex or 
national origin.
If you do not file a complaint at this time, counseling will 
continue and your right to file a complaint will also continue 
until 15 calendar days AFTER THE FINAL INTERVIEW with the 
Counselor. The Counselor will -inform you in writing when the 
final counseling interview is conducted.

If you file a complaint, it must be in writing and be filed in 
person or by mail with the Director of Equal Employment Opportunity 
(provide specific mailing address), or any of the following officials 
authorized to receive discrimination complaints:

o Agency Head
(Provide address)

o Installation Head
(Provide address)

o EEO Officer
(Provide address)

o Federal Women's Program Coordinator 
(Provide address)

Note to Agency:
A copy of this notice should be kept by the Counselor. If a 
complaint is filed, the copy should accompany the Counselor's 
report on his counseling activities and made a part of the com­
plaint file. This notice should be given by the Counselor to 
the person counseled 21 calendar days after the Counselor was 
first consulted on the matter by the employee or applicant.

*9V. 38a



Attachment 3 to FPM Ltr. 713-17

Subject: NOTICE OF FINAL INTERVIEW WITH EEO COUNSELOR

From: EEO Counselor DATE:
(Specific Installation)

To: Name of Person Counseled

This is notice of the final counseling interview in con­
nection with the matter you presented to the EEO Counselor.

If you believe you have been discriminated against on the 
basis of race, color, religion, sex or national origin, you 
have the right to file a COMPLAINT OF DISCRIMINATION WITHIN 
15 CALENDAR DAYS AFTER RECEIPT OF THIS NOTICE.

The complaint must be in writing and may be filed in person 
or by mail with the Director of Equal Employment Opportunity 
(provide specific mailing address), or any of the following 
officials authorized to receive discrimination complaints:

o Agency Head
(Provide address)

o Installation Head
(Provide address)

o EEO Officer
(Provide address )

o Federal Women's Program Coordinator 
(Provide address)

Note to Agency:
A copy of this notice should be kept by the Counselor. If a 
complaint is filed, the copy should accompany the Counselor's 
report on his counseling activities and made a part of the 
complaint file.

39a



Attachment 4 to FPM Ltr. 713-17

Subject: 

From:

To:

NOTICE OF RECEIPT OF DISCRIMINATION COMPLAINT

Director of EEO DATE:
(or other appropriate official)

Complainant

The purpose of this notice is to acknowledge receipt of your 
discrimination complaint and to provide you with written notifi­
cation of your rights as well as the time requirements for 
exercising those rights. If you have further questions as<c your 
EEO Counselor or Equal Employment Opportunity Officer.

o Your complaint will be investigated. Based on the in­
formation developed by the investigation an effort at 
an adjustment on an informal basis will be made. You 
will receive a copy of the investigative report and 
have an opportunity to discuss it with an appropriate 
agency official.

o If an adjustment of the complaint is arrived at, the 
terms of the adiustment will be reduced tn wri finer and 
you will be provided a copy.

o If an adjustment of the complaint is not arrived at, you 
will be notified in writing of the proposed disposition 
of the complaint. You will also be notified .of your right 
to a hearing by an EEO Complaints Examiner who will recom­
mend a decision to your agency, or to a decision by the 
agency head or his designee without a hearing. If you want 
a hearing, or a decision by the agency head or his designee 
without a hearing, you must NOTIFY THE AGENCY IN WRITING 
WITHIN 15 CALENDAR DAYS OF RECEIPT OF THE PROPOSED DISPO­
SITION OF YOUR COMPLAINT.

o If you fail to request a hearing or to ask for a decision 
by the agency held without a hearing within the 15 days of 
your receipt of the proposed disposition, that disposition 
will become the final decision of the agency. YOU MAY 
APPEAL THE FINAL AGENCY DECISION ON YOUR COMPLAINT TO THE 
COMMISSION WITHIN 15 CALENDAR DAYS CR YOU MAY FILE A CIVIL 
ACTION IN AN APPROPRIATE U. S. DISTRICT COURT WITHIN 30 DAYS

40a



Attachment 4 Co F?M Ltr. 713-17 (2)

o If you are dissatisfied with the final decision of 
the agency (after a-hearing or without a hearing), 
you may appeal to the Civil Service Commission 
within 15 calendar days of receipt of the notice or 
within 30 days you may file a civil action in an 
appropriate U.S. District Court.

o If vou decide to appeal to the Commission's Board of 
Appeals and Review you will still have an opportunity 
to file a civil action in U.S. District Court within 
30 days after receipt of the Board's decision, or 
within 180 days of your appeal to the Board if no 
final decision has been rendered.

o If the agency" has not issued a final decision on 
your complaint within 180 days of the date it was 
filed, you may file a civil action in an appro­
priate U.S. District Court.

Note to Agency:
' A copy of the notice as given to the complainant should be

filed by the agency in the complaint file.

41a



Attachment 5 to FPM Ltr. 713-17

Subject: NOTICE OF PROPOSED DISPOSITION OF DISCRIMINATION COMPLAINT

From: EEO Officer DATE:

lot Complainant

The purpose of this notice is to inform you of the proposed 
disposition of your discrimination complaint and your rights 
if you are dissatisfied with the proposed disposition.

-o PROPOSED DISPOSITION

(State the specific proposed disposition of the 
complaint)

o RIGHT OF HEARING

If you are dissatisfied with the proposed dis- 
• position, you may request a hearing and decision

by the agency head or his designee, if YOU NOTIFY 
THE AGENCY WITHIN 15 CALENDAR DAYS OF RECEIPT OF 
THE NOTICE that you desire a hearing.

o RIGHT OF DECISION WITHOUT A HEARING

If you are dissatisfied with the proposed dis­
position, you may request a decision by the head 
of the agency or his designee without a hearing.

If you fail to notify the agency of your wishes within the 15 
day period, the EEO Officer may adopt as the agency's final 
decision the proposed disposition shown above and will so 
notify you in writing. Upon receipt of notification you may 
appeal to the Civil Service Commission within 15 calendar days 
or file a civil action in a Federal District Court within 30 
days.

If you appeal to the Commission, you may still file a civil 
action within 30 days of receipt of the Commission decision 
or within 180 days of your appeal to the Commission if you 
have not received a final decision from the Commission.

Note to Agency:

A copy of the notice as given to the complainant should be 
filed by the agency in the complaint file.

42a



• r i s k . jurfirnT

Attachment 6 to FPM Ltr. 713-17

Subject: NOTICE OF FINAL DECISION OF AGENCY

From: Agency Head or Designee DATE:

To: Complainant

Attached to this notice is the final decision of the agency on 
your complaint of discrimination. If you are dissatisfied with 
this final decision, you have the following appeal rights:

o You may appeal to the Civil Service Commission
within 15 calendar days of receipt of the decision.

o You may file a civil action i~ an appropriate U. S. 
District Court within 30 days of receipt of the 
decision.

o If you elect to appeal to the Commission, a civil 
• action in a U. S. District Court may be filed within

30 days of receipt of the Commission's final decision.

o A civil action may also be filed anytime after 180 
days or rue aate ot initial appeal to the Commission, 
if there has not been a final decision rendered.

Note To Agency:

This form is to be used under the following circumstances:

(1) when a discrimination complaint is rejected or 
cancelled;

(2) when a proposed disposition is adopted after 
failure to request a hearing or decision by 
the agency without a hearing;

(3) when a final agency decision is made after a 
recommended decision by the Complaints Examiner; 
and,

(4) when an agency makes a final decision on the 
merits without a hearing.

A copy of the notice as given to the complainant should.be 
filed by the agency in the complaint file.

0 a«I-130

i

:
;ilr?
I

43a



UNITEDv̂ V a TES c iv il  s e r v i c e  c o m  Ml ••*4 Pill TO
APPEALS review eoard

W A S H I N G T O N .  O . C .  2 0 4 1 S

2 9 1974-^nr
ARB illiiO: ka

------ OTTiitrrt 13, 1974TOO! axrcUMCC

REGISTERED MAIL - RETURN RECEIPT REQUESTED 
Mr. Allen Black, Jr.
N.A.A.C.P. Legal Defense and 

Educational Fund 
V7estem Regional Office 
12 Geary Street
San Francisco, California 94108

Dear Mr. Black:
This is In further reference ta~>'urrr-apgeal to the Appeals Review 
Board on behalf of Ik^Gloria A. Williams; from the decision issued 
on May 17, 1974, by rSxaTfT/Assistant AdTTlnistrator for Equal Oppor­
tunity Programs, National Aeronautics and Space Administration,
Johnson Space Center, which rejected portions of the complainant's 
formal complaint of discrimination.
The record reveals that the complainant, a Clerk Typist, GS-4, 
contacted an Equal Employment Opportunity Counselor on February 21,
1974, and submitted a formal complaint of discrimination based on 
race (31ack) and sex (female) on April 29, 1974. In this formal 
complaint the complainant contended that she had been discriminated 
against relative to her non-selection for the position of General 
Supply Specialist, CS-2001-5, in January 1974 and that she had been 
discriminated against on a continuing basis relative to job assignments, 
promotions, job classification, and opportunity for training. In 
addition the formal complaint alleged as follows:

Also, I believe that females, as a class, 
and minorities, as a class, have been and 
are discriminated against because of the 
Center’s personnel policies and practices 
as they pertain to recruitment, hiring, 
initial assignments, job classifications, 
merit promotions, training opportunities, 
retention, and In the terms, conditions, 
and privileges of employment.

In Its decision of May 17, 1974, the agency stated in part
Your complaint of discrimination, received 
by the Office of Equal Opportunity Programs,

Before: McDonald, Tillman, and Roel,
Board Members. By majority 
vote, Member Roel disagreeing.

THE MERIT SYSTEM— A GOOD INVESTMENT IN GOOO GOVERNMENT



2

has been accepted on the issues relative 
to the allegations of discriminatory actions  ̂
against you as an individual. Complaints 
based on general allegations of discrim­
ination against minorities as a class and 
females as a class must be filed under 
procedures outlined in the U. S. Civil 
Service Commission Federal Personnel 
Manual, Section 713.251 . . . .

The appeal to the Board concerns the agency rejection of the general 
allegations of discrimination included in the formal complaint and 
quoted above.
The Board has reviewed the record in this case and has determined 
that the agencv rejection of the general allegations of discrimination 
was' proper. In this regard the Board notes section 713.212 of the 
Civil Service regulations which provides as follows:

(a) The agency shall provide in its 
regulations for the acceptance of a 
complaint from any aggrieved employee 
or applicant for employment with that 
agency who believes that he. has been 
discriminated against because of race, 
color, religion, sex, or.national 
origin. . . .
(b) Sections 713.211 through 713.222 do 
not apply to the consideration by an 
agency of a general allegation of dis­
crimination by an organization or other 
third party which is unrelated to an 
individual complaint of discrimination 
subject to section 713.211 through 713.222.
(Section 713.251 applies to general 
allegations by organizations or other 
third parties.)

There is no provision in the Civil Service regulations for the 
processing of general allegations of discrimination within the 
context of individual complaints of discrimination. General 
allegations are not within the purview of section 713.212 of

- -45a



3

the Civil Service regulations and must be raised by an organization 
or other third Darty under the provisions of section 713.251. ihe 
agency has noted in its final decision that the acceptance* of the 
complainant's individual complaint of discrimination would not 
preclude the filing of additional allegations under section 713.251 
and that it was continuing to process the individual and specific 
allegations under section 713.212.
Based on the above, the Appeals Review Board hereby affirms the 
final agency decision of ilay 17, 1974.
Civil Service regulations provide that decisions of the Eoard are 
final and there is no further right of administrative appeal. How­
ever, if the complainant is not satisfied with this decision, the 
complainant is authorized by section 717 (c) of the Civil Rights Act 
of 1964, as amended on March 24, 1972, to file a civil action in an 
appropriate U. S. District Court within 30 calendar days of the receipt 
of this decision.

For the Commissioners:

cc:
Ms. Gloria A. Williams 
3400 Luca 02 
Houston, Texas 77021
Director of Equal Employment Opportunity 
National Aeronautics and 

Space Administration 
Code U
Washington, D. C. 20546

Sincerely yours,

'Chairman