Nyquist v. Lee Motion to Affirm

    /

r
IN THE

UNITED' STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

, No. 75-2261

NORMAN R. MCLAUGHLIN, etc..
Appellant,«

vs.

HOWARD H. CALLAWAY, et al..
Appellees.

On Appeal From The United States District Court 
For The Southern District Of Alabama

.... Southern Division . .... .. ; - ̂

*:-

,, BRIEF FOR APPELLANT

J. U. BIACKSHER
Crawford, Blacksher & 
Kennedy
1407 Davis Avenue 
Mobile, Alabama 36603i

CARYL P. PRIVETT
Adams, Baker & demon 
Suite 1600 - 2121 Building 
Birmingham, Alabama 35203

-JOSEPH P. HUDSON 
Lawyer & Hudson 
1909 30th Avenue.
Gulfport, Mississippi 39501

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
MORRIS J. BALLER 
BILL LANN LEE

Suite 2030 >
10 Columbus Circle
New York, New York 10019

Attorneys for Appellant

■.si'..



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 75-2261

NORMAN R. MCLAUGHLIN, etc.,
Appellant,

vs.
HOWARD H. CALLAWAY, et al.,

Appellees.

- CERTIFICATE REQUIRED BY FIFTH 
CIRCUIT LOCAL RULE 13(a)

The undersigned, counsel of record for Appellant, 

certifies that the following listed parties have an interest 
in the outcome of this case. The representations are made 

in order that Judges of this Court may evaluate possible dis 

qualification or recusal pursuant to Local Rule 13(a).
(a) Norman R. McLaughlin, named plaintiff;
(b) All past, present and future black employees, 

and employees of Latin American descent of the 
Mobile District of the U. S. Army Corps of 
Engineers; and all black persons and persons 

of Latin American descent who have applied 

for, or might in the future apply for 
employment with,the Mobile District of



the U. S. Army Corps of Engineers, members 

of the potential plaintiff class;

(c) Howard H. Callaway, individually and in his
capacity as Secretary of the Army; Col. Drake 

Wilson, individually and in his capacity as 
District Engineer for the Mobile District,
U. S. Army Corps of Engineers; Gen. Carroll 
Letellier, individually and in his capacity as 
Division Engineer for the South Atlantic Division, 
U. S. Army Corps of Engineers; James R. Schlesinger 
individually and in his capacity as Secretary of 

Defense, all named defendants.

BILL LANN LEE 
Attorney of Record for 
Appellant



TABLE OF CONTENTS

Table of Contents .......................................  i

Table of Authorities .................................... ii

Statement of Issues Presented .......... ............. . - 1

Statement of the Case ................................... 2

Statement of Facts ...................................... 9

Argument

Introduction...........................    26

I. The District Court Erred in Denying Federal 
Employees The Right to Maintain a Class 
Action Pursuant to Rule 23(b) (1) and (b)
(2), Fed. R. Civ. Pro., in Behalf of Other 
Similarly Situated Federal Employees ....... ' 29

A. Class Actions Provided For in The Fed­
eral Rules of Civil Procedure Are Not 
Precluded Or Limited in Any Way By The 
Statutory Language of § 717 of Title
VII ..................................... 33

B. In 1972 Congress Expressly Disclaimed 
Any Intent to Preclude Or Limit Class
Actions to Enforce Title V I I ........... 50

C. Class Actions Provided For in The Fed­
eral Rules of Civil Procedure Are Not 
Precluded Or Limited in Any Way By
Other Civil Action Provisions .......... 57

D. There Is No Effective Way For Federal
Employees to Exhaust Claims of System­
ic, Classwide Discrimination in The 
Administrative Process ................  ’ 64

Conclusion ..............................................  70

j

Page



Cases:

Albemarle Paper Co. v. Moody, 43 USLW 4880 (decided
June 25, 1975)   55

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 37,41,44,58
Alpha Portland Cement Co. v. Reese, 507 F.2d 607

(5th Cir. 1975)   26,61
Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963), cert.

denied. 377 U.S. 972 (1964)   34
Baker v. F & F Investment Co., 489 F.2d 829 (7th Cir.

1973)   60

Bell v. Hood, 327 U.S. 678 (1946) ....................... 62
Blue Bell Boots Inc. v. EEOC, 418 F.2d 355 (6th Cir.

1969)   37
Bolling v. Sharpe, 347 U.S. 497 (1953)“.................  62
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.

1969)................................................. 51
Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974) .....  60
Brown v. General Services Administration, 507 F.2d 

1300 (2nd Cir. 1974), cert. granted, 43 USLW 
3625 (May 27, 1975)   57

Burns v. Thiokol Chemical Corp., 483 F.2d 300
(5th Cir. 1973)   43

Caldwell v. National Brewing Co., 443 F.2d 1044
(5th Cir. 1971)   62

Chisholm v. U. S. Postal Service, W.D. N.C., C.A.
No. C-C-73-148 (decided May 29, 1975)   28,36,43

Copeland v. Mead Corp., 51 F.R.D. 266 (N.D. Ga. 1970) 35
Davis v. Washington, 512 F.2d 956 (D.C. Cir. 1975) ....  62

Dugan v. Rank, 372 U.S. 609 (1963) ...................... 60

Franks v. Bowman Transportation Co., 495 F.2d 398
(5th Cir. 1974)   51

Georgia Power Co. v. EEOC, 412 F.2d 462 (5th Cir. 1969) 43

Graniteville Co. (Sibley Div.) v. EEOC, 438 F.2d 32
(4th Cir. 1971)   37

TABLE OF AUTHORITIES
Page



Griggs v. Duke Power Co., 401 U.S. 424 (1971) .......... 28,37
Grubbs v. Butz, 514 F .2d 1323 (D.C. Cir. 1975) ......... 27,40
Hall v. Werthan Bag Corp., 251 F. Supp. 184 (M.D.

Tenn. 1966)   36

Harris v. Nixon, 325 F. Supp. 28 (D. Colo. 1971) ......  40
Hill v. American Airlines, Inc., 479 F.2d 1057

(5th Cir. 1973)   61
Hodges v. Easton, 106 U.S. 408 (1882) ..................  44

Jenkins v. United Gas Corp., 400 F.2d 28 (5th
Cir. 1968)   26,36,37,42,50,51,53

Johnson v. Georgia Highway Express, 417 F.2d 1122
(5th Cir. 1969)   26,36,37

Johnson v. Railway Express Agency, 43 USLW 4623
(decided May 19, 1975) ......................... 1. 58,61/62

Johnson v. Zerbst, 304 U.S. 458 (1938)   44
Jones v. Callaway, 5th Cir. No. 75-1779 ....    6
Roger v. Ball, 497 F.2d 702 (4th Cir. 1974)   27
Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965), cert.

denied, 384 U.S. 929 (1966).................. 37,38,39,40,41
Larson v. Domestic and Foreign Commerce Corp., 337 U.S.

682 (1949)   60

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) 28,37,41,43

McKart v. United States, 395 U.S. 185 (1969) ......... . . 64
Mean v. NASA, D. D.C., C.A. No. 74-1832 .................  69

Miller v. International Paper Co., 408 F.2d 285
(5th Cir. 1969)   51

Morrow v. Crisler, 479 F.2d 960 (5th Cir. 1973),
aff’d en banc. 491 F.2d 1053 (5th Cir. 1974) .....  26

Morton v. Mancari, 41 L.Ed.2d 290 (1974) ...............  74

Mungin v. Florida East Const. Ry. Co., 318 F. Supp.
720 (M.D.Fla. 1970), aff'd per curiam, 441 F.2d
728 (5th Cir. 1971)   35

Cases (cont'd) Page

iii



Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968) . 41

Oatis v. Crown Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968)   38,41,50,53

Ohio Bell Telephone Co. v. Public Utilities Comm.,
301 U.S. 292 (1937)   44

Paris! v. Davidson, 405 U.S. 34 (1972) .................  64

Penn v. Schlesinger, 490 F.2d 700 (5th Cir. 1973), rev1d 
en banc on other grounds, 497 F.2d 970 (5th Cir.
1974)   60,62,63

Petterway v. Veterans Administration Hospital, 495 F.2d
1223 (5th Cir. 1974)   27,60

Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) .......... 34,35,36

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th
Cir. 1970)...........................................  42,48

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th
Cir. 1970)   60

Sharp v. Lucky, 252 F.2d 910 (5th Cir. 1958) ...........  38,40

Sibbach v. Wilson Co., 312 U.S. 1 (1941) ...............  33
Sperling v. U.S.A., 515 F.2d 465 (3rd Cir. 1975) ......  27,49
Swain v. Callaway, N.D. Ala., C.A. No. 73-H-1088-E

(decided January 28, 1975)   60,68

Swain v. Callaway, 5th Cir. No. 75-2002 ................  28

Sylvester v. U. S. Postal Service, S.D. Tex., C.A.
No. 73-H-2201 (decided April 23, 1975)   28,36,43

Weinberger v. Salfi, 43 USLW 4985 (June 26, 1975) .....  39,64
Young v. International Telephone & Telegraph Co.,

438 F .2d 757 (3rd Cir. 1971) ....................... 60

J

Cases (cont'd) Page

- iv -



Page
Statutes, Rules and Regulations;

Executive Order 11478 ................................... 1,2,63

5 U.S.C. § 7151 ............  .........................  1,2,3,63

28 U.S.C. § 1291 ........................................  8

28 U.S.C. § 1343 (4) ..................................  2,62

28 U.S.C. § 1346 (a) (2) .................................  3

28 U.S.C. § 1361 ........................................  2,57,63

28 U.S.C. §§ 2072, 2073 ................................  33

28 U.S.C. § 2201 ......................................... 2,62

28 U.S.C. § 2202 ......................................... 2,62

42 U.S.C. § 405(g) ......................................  39

42 U.S.C. § 1981 ...................................  1,2,3,57,63

42 U.S.C. § 2000e-16 .................................... 1,2,30

Fed. R. Civ. Proc., Rule 23 ..................   33,37,39,61

Rule 23(b)(1), Fed. R. Civ. Pro....................  2,29,34,35

Rule 23(b) (2), Fed. R. Civ. Pro....................  2,29,34,35

3 C.F.R. 339 (1969) ..................................  2,63

5 C.F.R. §§ 13.211 et seq...............................  30

5 C.F.R. § 251.211......................................  21

5 C.F.R. §§ 713.201, 713.202, 713.271 .................  2,3,63

5 C.F.R. § 713.215 ...................................... 64

5 C.F.R. § 713.251 ................................... 31,46,67,68

5 C.F.R. § 713.282 ...................................... 68

Proposed Amendments to Rule of Civil Procedure,
39 F.R.D. 69 (1969) .................................. 40

- v -



Page
Other Authorities:

Commission Federal Personnel Manual Letter
713-20 dated July 17, 1973 ..........................  46

110 Cong. Rec. 13650-52 ...............................  59

Legislative History of the Equal Employment 
Opportunity Act of 1972 (Com. Print 1971),
Subcom. on Labor and Public Welfare .......  31,40,43,51

52,53,54,55

U.S. Commission on Civil Rights, The Federal 
Civil Rights Enforcement Effort, 1974, Vol.'
V, To Eliminate Employment Discrimination 
(July 1975) ..........................................  48

- vi -



IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 75-2261

NORMAN R. MCLAUGHLIN, etc.,
Appellant,

vs.

HOWARD H. CALLAWAY, et al..
Appellees.

On Appeal From The United States District Court 
For The Southern District Of Alabama 

Southern Division

BRIEF FOR APPELLANT

Statement Of Issue Presented 

In a civil action brought by a black federal employee of 

Latin American descent pursuant to § 717 of Title VII of the 
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16,

§ 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, the Fifth 
Amendment to the United States Constitution, 5 U.S.C. § 7151, 

Executive Order 11478, and applicable regulations to redress 

discrimination in agency employment practices:
1. Whether the district court may deny a federal 

employee the right to maintain a class action



pursuant to Rule 23(b)(1) and (b) (2), Fed. R.

Civ. Proc., in behalf of other similarly situated 
black employees and employees of Latin American 

descent?

i/
Statement Of The Case

On March 28, 1974, after unsatisfactory agency resolution 
of the discrimination charge filed by plaintiff Norman R.
McLaughlin with the Mobile District Office of the U. S. Corps 
of Engineers (hereinafter "Mobile District"), this action was 

brought to eliminate employment practices which discriminate 
against black persons and persons of Latin American descent in 
the Mobile District (R.l-15). Count I of the complaint states 
this suit for declaratory and injunctive relief is brought as a 

class action pursuant to Rule 23(b)(1) and (b)(2), Fed. R. Civ. 
Proc. to protect rights guaranteed by § 717 of Title VII, 42 U.S.C.
§ 2000e-16, 42 U.S.C. § 1981, and the Fifth Amendment under 
jurisdiction conferred by 28 U.S.C. § 1343(4), 42 U.S.C. § 2000e—16 

(c), and 28 U.S.C. §§ 2201 and 2202. Count II states this suit 
is also in the nature of mandamus and brought as a class action 

to compel defendants to execute their duty under, inter alia,
42 U.S.C. §§ 1981, 2000e et seq., 5 U.S.C. § 7151; Executive Order 

11478, 3 C.F.R. 339 (1969); and 5 C.F.R. §§ 713.201 - .202 - .271 
under jurisdiction conferred by 28 U.S.C. § 1361. A third and 
separate count states that this suit is brought under the

1 / citations are to the Record on Appeal, hereinafter "R."; the 
Trial Transcript (Vol. Ill of the Record on Appeal), hereinafter 
"Tr."; and various submissions, including the Administrative Record* 
hereinafter "Admin. R." and trial exhibits, hereinafter "X."

2



Tucker Act, 28 U.S.C. § 1346(a)(2) to enforce rights guaranteed 

under the Fifth Amendment, 42 U.S.C. §§ 1981, 2000e et seq.,

5 U.S.C. § 7151 and 5 C.F.R. §§ 712.201 - .202, - .271. Plaintiff 
sued in his own behalf and on behalf of the class of all past, 

present and future black employees and employees of Latin American 

descent of the Mobile District, and all black persons and persons 

of Latin American descent who have previously applied for or might 
in the future apply for employment with the Mobile District. The 
action sought to restrain defendants from maintaining a policy, 
practice, custom or usage of:

(a) Discriminating against plaintiff and class members 
because of race or national origin with respect to 
hiring, compensation, terms, conditions and privileges 
of employment;

(b) Limiting, segregating and classifying employees of 
the Mobile District in ways which deprive plaintiff 
and class members of equal employment opportunities
and otherwise adversely affect their status as employees 
or applicants for employment because of race or 
national origin;

(c) Refusing to recruit or hire plaintiff and members of 

the class on account of their race or national origin 
generally, and in particular, for positions restricted to 

white persons by policy, practice, and custom;

(d) Refusing to promote or transfer plaintiff and members 
of the class on account of their race or national

3



origin into positions restricted to white persons 

by policy, practice, and custom;
(e) Refusing to give training to plaintiff and members 

of the class on account of their race or national 
origin for positions restricted to white persons by 

policy, practice and custom; and

(f) Failing and refusing to take affirmative steps to 
relieve and remedy racial and national origin dis­
crimination in employment at the Mobile District.

The complaint further states that the named plaintiff,

Mr. McLaughlin, is a black person of Latin American descent, 
who was denied employment as a computer technician GS-4 with* 

the Mobile District; defendant Howard H. Callaway is the 

Secretary of the Army; defendant Col. Drake Wilson is the 
District Engineer of the Mobile District; defendant Gen. Carroll 
Letellier is the Division Engineer of the South Atlantic Divi­
sion which includes the Mobile District; and defendant James R. 

Schlesinger is the Secretary of Defense.
On April 29, 1974, Milton Jones, Jr., a black employee of 

the Mobile District and a member of the class sought to be 
represented by Mr. McLaughlin, moved to intervene as a plaintiff 

and filed an intervenor's complaint. The intervenor's complaint 

states that Mr. Jones was a professional employee who was denied 
promotion to the position of architect GS-12 and that agency 
resolution of Mr. Jones' charge of discrimination was unsatis­
factory (R. 26-53).

4



Plaintiff's first interrogatories to defendants were 
serve<  ̂ori April 1, 1974. The interrogatories concern, inter 
alia> the organizational structure of the District office; any 
Pro9raras to recruit black or other minority employees, any 

investigation, evaluation, recommendation or report on minority 
employment practices; distribution of employees; hiring 

practices; promotion practices; job restrictions on the basis 
of race; and training practices (R. 54-65). At the same time, 
plaintiffs served requests for production of documents and 

requests for admission of facts and authenticity of documents 
concerning some of the same matters (R. 66-84). Attached to 
the latter was a "Department of the Army Special Study of Equal 

Employment in the State of Alabama." Defendants filed objections 
to the first set of interrogatories, the request for production 
of documents and the request for admission (R. 85-90) on 
June 3, 1974, all on the ground that the discovery sought is 

relevant since judicial review in this case is limited to 
the administrative record. A month later, plaintiff filed an 
order compelling answers to plaintiff's discovery which was 
referred to a magistrate (R. 107-09) .

Meanwhile, defendants filed a motion to dismiss or in the 
alternative for summary judgment (R. 96-98) and an objection 
to the motion to intervene on June 3, 1974 (R. 93-95). An 

amendment to the motion to dismiss or in the alternative for 
summary judgment was filed later on July 12 (R. 110-12).

On June 11, 1974, the district court granted plaintiff's 

motion to amend and supplement the complaint in light of receipt

5



of notice of final agency action on Mr. McLaughlin's charge 
of discrimination the month before (R. 99-106). Defendants 
filed the administrative record in Mr. McLaughlin's discrimina­
tion charge with the Mobile District on August 2, 1974.

On September 30, 1974, the district court ordered, adjudged 
and decreed (1) that the "motion" of plaintiff to maintain this 

suit as a class action is denied for failure to exhaust admin­
istrative remedies on the class claims; (2) that the motion to
intervene by Milton Jones, Jr. should be denied and remanded

2/
for further administrative proceeding; and (3) that defendants' 

motion to dismiss or alternatively for summary judgment is denied 
(R. 115-39). With respect to the merits, the court held that 
the Mobile District practice of limiting the area of considera­
tion for job vacancies to its own employees was racially 

discriminatory and ordered a limited trial de novo to determine 

whether or not a bona fide nondiscriminatory misunderstanding 
occurred with .respect to the specific job vacancy plaintiff 
applied for.

On October 23, 1974, plaintiff's motion to compel the 
defendants to answer interrogatories, respond to plaintiff's 
request for production, and request for admissions was granted 
only as to the issues set forth for the limited trial de novo 

(R. 142-43). Defendants' response that the requests for pro­

duction and for admission of facts and authenticity of documents

2/ The district court also gave as a reason for denying inter­
vention that the individual claim of Mr. Jones are not related 
to the individual claim of Mr. McLaughlin. After the denial, Mr. 
Jones' case was assigned to Judge Hand and is before this Court 
on appeal on the issue of recusal. Jones v. Callaway, Fifth 
Circuit No. 75-1779.

6



were inapplicable and partial answers to interrogatories were 

filed November 7th (R. 144-66). On November 11th, plaintiffs 
filed another request for production of documents (R. 167-69).
On November 15th, plaintiff moved to alter or amend the dis­

trict court's orders of September 30th and October 23rd 

concerning (1) proceeding with the class action, (2 ) permitting 

discovery and presentation of evidence of defendants1 employ­
ment practices in support of the class action, and (3) permitting 

discovery and presentation of evidence of defendants' employ­
ment practices in support of the individual action (R. 170-241) . 
Subsequently, an affidavit was filed as an attachment to the 
motion to alter or amend on November 27th (R. 259-62) and 
another with attachments on January 3, 1975 (R. 279-307).

A joint pretrial document was filed on November 26, 1974 
(R. 242-58). The next day plaintiff filed a notice to take 

depositions (R. 263) and defendants filed their answer to 

plaintiff's second request for production of documents (R. 

264-66). The district court continued the case on plaintiff's 
objection that additional discovery was needed (R. 270). There­
after, plaintiff filed a second motion to compel production of 
documents on December 6th (R. 271-72) and defendants filed a 

supplemental administrative record (R. 273-75). The district 

court then denied plaintiff's motion to alter or amend and the 
second motion to compel production on December 31st (R. 276-78).

The trial was held on February 18th and 19th. At the trial 
the district court declined to hear evidence of discrimination

7



against the class (Tr. 185). Plaintiff later filed a motion to 
reconsider the earlier order denying the motion to alter or 

amend (R. 315-22) which the district court denied on March 11th 
(R. 323).

On March 14, 1975, the district court held that plaintiff 

was subjected to racial discrimination in the denial of employ­
ment (R. 324-64). It was ordered, adjudged and decreed that 
the defendants be enjoined from denying Mr. McLaughlin the 
computer technician GS-4 position, back pay be awarded, and 
defendants bear the cost, including reasonable attorneys' fees. 
Thereafter, the parties moved for an award of back pay (R. 
385-97) and plaintiff's motion for attorneys' fees was opposed 
by defendants (R. 365-84). On April 25th, the district court 

ordered back pay and award of attorneys' fees (but not for time 
chargeable to the class action and trial de novo issues) and 
expenses (R. 402-06). A final judgment was also issued (R. 
409-11).

Defendants filed notice of appeal on May 5, 1975. On 

May 27th plaintiff filed notice of cross appeal. This Court 

has jurisdiction to review the denial of class action considera­
tion of this Title VII suit challenging across-the-board employ­
ment discrimination at the U. S. Corps of Engineers facility 

in Mobile, Alabama pursuant to 28 U.S.C. § 1291.

8



STATEMENT OF FACTS

General Patterns and Policies of Employment Discrimination 

Although plaintiff was precluded from conducting dis­
covery and presenting evidence of patterns and policies of 

discrimination in the Mobile District Office of the Corps of 

Engineers in the proceedings below, supra, an investigation 
along those lines is contained in an installation report in 
the "Department of the Army Special Study of Equal Employment 
Opportunity in the State of Alabama," conducted in September- 
October 1972 at about the time Mr. McLaughlin applied for the
computer technician GS-4 position at issue in his individual

_3/
case (R. 72-84). The district court opinion of September 30, 
1974, relies on the results of the study (R. 135-36) . The

3/ The study recounts the events leading to its being 
conducted:

a. In early 1972, an order was entered by the 
U. S. District Court for the Middle District of 
Alabama directing that a certain percentage of 
minority individuals be hired as recruits for the 
Alabama State Police in view of the sitistion of 
racial imbalance within that organization. On 
February 10, 1972, Judge Frank M. Johnson, Jr., 
issued an unprecedented order that Alabama hire 
one black trooper for every white hired until the 
ratio of black troopers reached 25 per cent. The 
brief filed by the Justice Department stated the 
problem candidly:

"Alabama's population in 1970 was 26.2 per cent 
black ... It is not unreasonable to assume that 
had there been no history of systematic discrim­
ination by the Department (of Public Safety) the 
racial mix of its employees would roughly approx­
imate that of the state since it hires all over 
the state."

9



study sets forth the following facts concerning patterns and

policies of discrimination:
4. Recruitment and Placement. There were 107 
black employees (7%) in the Mobile District 
workforce of 1,515 employees on 30 June 1972. 4/ 
Six of these were in GS positions and 101 in 
wage grade positions, of which 53 were on Sea­
sonal appointments working an average of nine

3/ (Continued)
b. The Civil Service Commission was asked to 

supply employment statistics to the Department of 
Justice, and in so doing the Commission noted that 
it "was quite concerned with the allegations about 
minority employment discrimination by Federal agen­
cies in Alabama." It asked the Federal agencies to 
provide a report of steps which have been taken or 
are planned to improve the civilian minority employ­
ment situation in Alabama.

c. In order to provide the basis for recommenda­
tions and actions to improve the situation in Alabama, 
the Assistant Secretary of the Army (M&RA) directed 
the study which is the subject of this report. (R. 75)

The study also referred to the findings of a recent U. S. Civil 
Service Commission inspection of the Mobile District:

Their evaluation of the local plan of action was that 
it did not meet either the Commission's minimum require­
ments or those established by the Department of the Army. 
For example, the plan indicates that numerical goals 
are established because "... progress has been satisfac­
tory in all phases of the EEO Program." With only six 
minority group individuals in class act positions (.6% 
of the workforce) this statement seems entirely inappro­
priate. The Civil Service Commission had directed the 
District to submit a plan of action which would comply 
with requirements of the DA EEO Plan of Action, and 
the team was in full agreement with this action. (R.
77)

4/ In the geographical area of Mobile, Alabama, the work 
force was and is approximately 32% black (R. 5).

10



months of the year. There was one black in a 
class act position above GS-9, one in a wage 
grade position above WG-10, four in Leader posi­
tions, and none in supervisory positions. Except 
for Seasonal, SEY and YOC appointments, there had 
been virtually no recent hiring of black employees 
in the Mobile District. Only six minority group 
employees received promotions in the past year.
Black employees indicated that there were instances 
of discrimination in work assignments to higher 
level work which prevented them from gaining qual­
ifying experience for promotion. Also the manner 
of hiring WAE (Part time When Actually Employed) 
employees appeared to them to be discriminatory 
in favor of whites so that no blacks could receive 
the chance to prove they could do a job on a part 
time basis and qualify themselves for full time, 
permanent employment later, as some whites had 
done. Minority employees stated during the group 
session that the District had made no effort to 
counsel SEY and YOC students to ascertain if they 
planned to seek permanent employment or to assist 
them in applying for civil service ratings or con­
tinuing in cooperative Work-Study programs leading 
to permanent employment. The survey team found 
one staffing specialist in the Civilian Personnel 
Office who stated that she had counseled some of 
the students in this regard. Inquiry revealed, 
however, that no one else in the personnel office 
had taken action to counsel students. (R. 77-78)

Minority employees told the Army investigators that general, 
systemic problems included, inter alia, absence of an EEO pro­

gram, lack of opportunity for promotion and entry into the 
permanent work force, detailing without competition thereby 

allowing preselected individuals to advance, the use of WAE 

employment to qualify friends and neighbors for later permanent 

appointment, and failure of the Civilian Personnel Office to 
communicate job information (R. 78). Mobile District EEO coun­

selors recognized the existence of similar problems.

Information developed during the session indicated 
that the first black individual employed in the 
District was in 1952. Little progress has been made

11



since that time. At least two professional 
employees who were black had left the District 
because of what they felt was an undercurrent 
of discrimination. This was described as being 
a "lack of likeness" in how one was given assign­
ments, training and counseling. A suggestion 
was made that every office set a goal of employ­
ing one minority group employee in the GS category 
However, even such minimum goal setting will 
prove difficult. The statement was made that 
only a few organizations will accept YOC employees.
It was suggested by the Counselors that the YOC 
Program could be enlarged if a major effort was 
made to convince more organizations to open their 
doors to these young people. They also felt that 
students should be given better advice on how to 
obtain permanent employment with the Federal 
Government upon their graduation. They believed 
that this advice and guidance could most properly 
be provided by the Civilian Personnel Office. (R.
79)

The portion of the study dealing specifically with the Mobile 
District concludes that, "The Mobile District has a very long 

way to go to have a viable program in equal employment oppor-
utunity" (R. 79).

Statistics compiled by the Mobile District EEO offices 

in June 1974, three months after suit was filed, indicate the 

June 1972 figure of 107 black employees or 7% of total work 
force had increased to 127 or 8.3%, assuming the overall number 

of employees was constant (R. 136; Admin. Rec., Item 2). The 
district court's assessment was that, "These figures suggest 5

5 / The study also states that, "Perhaps the best summary of 
the problem facing the Mobile District was expressed by the 
Mayor of Pritchard, Alabama, when he stated that the District 
was regarded by nearly all black people as 'that all white 
installation on Airport Boulevard. No one knows what they do, 
except they don't do anything for black folks'" (R. 81).

12



the efforts of the Mobile District of the Corps of Engineers 

in this regard have been puny," and that, "It is ironic to 
note that if this were a suit in the private sector, the 
plaintiff would have established a prima facie case of dis­

crimination" (R. 22).
Although the district court limited the scope of the trial 

to Mr. McLaughlin’s individual complaint, many of the employ­

ment policies the court found discriminatory are in fact 
generally applicable. First, the general practice of limiting 
the area of consideration to the almost all-white Mobile Dis­
trict work force for the filling of job vacancies is described 
in the Mobile District's Civilian Personnel Merit Placement - 

and Promotion Policy (C .X."A",X. 13, SC). The district court, 

which considered the practice because Mr. McLaughlin was per­

sonally subjected to it, characterized the practice as a 
"racially discriminatory limitation which froze out blacks from 

consideration." (R. 138) Second, the district court found 
significant the fact that "the misunderstanding which arose 
was with a person whose sister was an applicant and received 
the appointment" (R. 138). Favoring applicants who were friends

13



and neighbors was cited as a common occurrence by minority 
Mobile District employees, supra, at p. 11 , and the Army
study made the further finding that this was a major discrim­

inatory practice with respect to five of the six major
_6_/

installations in Alabama, including the Mobile District.

Third, the district court held that the practice of favoring 

incumbent employee applicants because of previous training and 
preselection "has the same racially discriminatory impact as 
did the limited area of consideration, which this Court has 

ruled unlawful" (R. 337). This problem came up in Mr. McLaughlin's 
case because the white person selected instead of him for the 
computer technician job was not only the sister of the personnel 

officer but trained and preselected for the job vacancy by her 

supervisor at the Automatic Data Processing Center. The 1972 
Army Study specifically cited this as a general practice black 

employees believed perpetuated racial discrimination, supra, at 
p. 11 . Fourth, the court below found that Mr. McLaughlin did 6

6 / With the single exception of the Huntsville/
Missile Command complex, the selection of "home 
folks" for positions of responsibility seems to 
be a common occurrence. The numbers of related 
individuals on installation payrolls was an 
unexpected finding of this study. One civilian 
personnel office employee had three daughters, a 
son, and a son-in-law all working at the same 
small installation. In another case, a super­
visor 1s wife was employed in the branch over which 
he exercised supervision, in direct violation of 
regulations. Not surprisingly, black employees 
tend to feel that there are considerations other 
than merit at work here. (R. 83)

14



aPPly f°r the computer technician GS-4 position in question 
and not, as the personnel officer claimed, another job for 

which he was patently unqualified (R. 330). At the trial,

Robert E. Brown, a black architect trainee GS-5 at the Mobile 
District, testified to a similar "mistake" by the Personnel 

Office occurring at about the same time Mr. McLaughlin applied
_Z/(Tr. 63-70).

Plaintiff's Application
Plaintiff Norman R. McLaughlin is a black person of Latin 

American descent who in 1972 was employed by the General Services 
Administration as a laborer WG-1 and assigned to custodial 
duties at the offices of the Mobile District of the Corps of 
Engineers. Because of his assignment, Mr. McLaughlin had access 

to vacancy announcements posted on bulletin boards at Mobile 
District buildings (Tr. 11-12). In late September 1972,

7/ Mr. Brown learned of available trainee positions from a 
black employee, applied for the position in person at the 
Civilian Personnel Office, and was told that no such positions 
were available by the then chief of the office. Subsequently, 
Mr. Brown learned from black employees that the trainee position 
he sought to apply for was actually available and one of the 
black employees called the Personnel Office to bring the matter 
to their attention in time for him to apply.

During the hearing of Mr. McLaughlin's administrative 
complaint, Robert A. Runderson, a black employee of the Mobile 
District and initially Mr. McLaughlin's EEO counselor, testi­
fied that some of these and other policies and practices, 
including inter alia, limiting the area of consideration, 
qualifying applicants for permanent jobs through temporary 
assignments, limiting blacks to temporary appointments, and 
not recruiting black YOC students, generally denied blacks 
equal employment opportunity (Admin. R., Exh. 17, pp. 15-22; 
26-30; see R. 134).

15



Mr. McLaughlin unsuccessfully applied for the posted Mobile 
District vacancy of accounts maintenance clerk GS-3, at which 

time he filled out a form SF-171 application for the Personnel 
Office (C . X ."A ", X.16). The application sets forth Mr. McLaughlin's 
extensive job history of working with computers from 1958 to 

1970. Mrs. Rose Gonzalez McKaig, staffing assistant in the 
recruitment and placement branch of the office, processed his 

SF 171 (R. 328-29; Tr. 207). It was Mrs. McKaig's function to 
recruit for vacancies and rate job applicants and she rated 
Mr. McLaughlin's qualifications in September (Tr. 219, 253-54).

In the course of this process, the Personnel Office and 
Mrs. McKaig learned that he was black, and Mrs. McKaig person­
ally became acquainted with his qualifications.

On October 13, 1972, the Personnel Office posted vacancy 

announcements for accountant GS-7, announcement 167-72, and com­

puter technician GS-4, both with the closing date of October 19, 

1972 (R. 327; P.X. 2 and 3). The listed recruiting officer

again was Mrs. McKaig. The same day, Mr. McLaughlin telephoned 

the Personnel Office and told her that he was applying for the 
computer technician GS-4 position (R. 328, 330; Tr. 25-27).

Mrs. McKaig stated that she would make a note of his application 

for the computer technician GS-4 position by title and identifying 
number (Tr. 27-28). Furthermore, she said that it would not be 

necessary to come in and fill out a new Form SF-171 because the 

previous one submitted the month before was still on file 

(R. 328; Tr. 28). The vacancy announcement in question invited

16



telephone applications and it was the standard procedure for 
the Personnel Office to accept applications by telephone 

(Tr. 207-08).
On or about October 16th Mr. McLaughlin personally visited 

the Personnel Office and gave Mrs. McKaig a copy of a U. S. Civil 

Service Commission certificate of eligibility for computer 
specialist operation GS-5 and GS-6 positions (R. 328; Tr. 29-31). 
He requested that his application be referred to an Army 
facility in Charlottesville, Virginia District for three 
computer specialist positions if he did not receive the computer 
technician GS-4 position in the Mobile District. Mr. Mclaughlin 
also gave Mrs. McKaig a list on which he had marked the three 
computer specialist positions (P. X. 7). Whereupon, Mary

Gonzalez Smith, Mrs. McKaig's sister, received the computer 

technician GS-4 appointment on October 22, 1972.
Mrs. Smith was the only other applicant for the computer 

technician GS-4 position. She was employed in the ADP Center 
as a card punch operator and typist GS-3, but was performing 

the work of a computer technician. William Bucher, the chief of 

the ADP Center, arranged for the computer technician GS-4 vacancy 
announcement because he wanted to promote Mrs. Smith (R. 336;
Tr. 132-135). Mr. Bucher had trained her to carry out the duties 

of a computer technician and her original position was eliminated 
when the computer technician job was filled (R. 329; Tr. 83—84). 

If she had not received the appointment, she would have had to 

compete on a seniority basis against other GS-3 employees to

17



determine who was bumped back out of a job. The chief of the 

Personnel Office, Evelyn I. Cave, stated that "planned management 
action is when a supervisor adds duties to an already existing 

job in order to upgrade a particular individual or particular 

employee of the agency" and that the instant computer technician
vacancy resulted from such planned management action (R. 337 ;

_8_/
Tr. 81-83).

The Mobile District's Merit Placement and Promotion Policy 
in effect since June 1969, provides that, "if less than three 
highly-qualified candidates are available, consideration will be 
given to the desirability of extending the area of consideration 
in order to obtain additional highly-qualified candidates."

(C.X."A", X13, p. 6) In practice, vacancy announcements were 
always limited to incumbent Mobile District employees unless the 
"selecting supervisor" and "personnel technician" decided to 

widen it (Tr. 74-76). In the computer technician GS-4 announce­
ment, the selecting supervisor was Mr. Bucher or his deputy 
and the personnel technician, Mrs. McKaig. Mrs. McKaig knew 

that the vacancy resulted from his sister's job being upgraded 

and that her sister would have to go into a reduction in force 
situation if she failed to get the upgraded job (Tr. 234, 236). 
The area of consideration was not enlarged. The Merit placement 

and Promotion Policy requirement that the determination not to 8

8 / Mrs. cave also stated that the purpose of advertising the 
position for bids by others is "to get away from some supervisor 
picking up an individual and causing that person to be promoted. 
You get away from the true merit system."

18



extend the area of consideration will be made a matter of 
written record and be available for review by interested 
employees was not followed (r . 336, Tr. 139-40).

Mr. McLaughlin did not hear anything about his application 
for over a month and so on November 27, 1972, he wrote a letter 
of inquiry to Mrs. McKaig (r . 329; C.X.A, Exh. 20). She subse­
quently responded by telephone and stated, first, that she had 

misunderstood him to apply for the accountant GS-7 position 

rather than the computer technician GS-4 position, and that in 
any event, the Mobile District had a rule limiting the area of 

consideration to current employees only (R. 329; Tr. 215). The 
district court found that because Mrs. McKaig had rated Mr. 

McLaughlin for the accounts maintenance GS-3 position shortly 

before, she should have known he was not qualified for accountant 

GS-7, a higher rated job (R. 329). She did not call this to his 
attention when she said he applied by telephone for accountant 
GS-7, nor did she inquire as to a possible mistake on October 16 
when he came into the office and clearly indicated an interest 
in the computer technician GS-4 job. The conclusion of the 
district court was:

The court finds from the evidence in its 
entirety, the evaluation of the oral testimony, 
and the facially suspect circumstances sur­
rounding the filling of this vacancy, that the 
plaintiff in the telephone conversation, to wit,
October 13, 1972, told Mrs. McKaig he was applying 
for Vacancy Announcement 169-72, computer Tech­
nician, GS-4. Even if she misunderstood his 
application, the existing combination of circum-

19



stances of which she was aware should have 9/
prompted her to make further inquiries (R. 330).

The Personnel office did not consider reopening the vacancy

announcement for the computer technician GS-4 position when

the misunderstanding came to light for the reason that
Mr. McLaughlin was not within the area of consideration anyway

(Tr. 71-74). With respect to the area of consideration, the
district court specifically found that, "The gross racial
imbalance in the Mobile District of the Corps makes the area
of consideration racially discriminatory on its face." (R. 135)

After comparing the qualifications of Mr. McLaughlin and
Mrs. Smith, the district court found that, "plaintiff was better

qualified for the computer technician vacancy than was Mary

Smith" (R. 336). Briefly summarized, the analysis of the district
court was: Both Mr. McLaughlin and Mrs. Smith met the "minimum
qualification requirements" in that both exceeded the minimum

two years of general experience with Mr. McLaughlin having
greater specialized experience in computer operations (R. 330-32;
Tr. 17-25; P.X. 6 and 11). Applicants who met the minimum
qualification requirements are then rated by the criteria of

experience, education and training, past performance and potential
for higher level responsibilities; and categorized as highly

qualified, well .qualified and qualified (R. 332-33).

9/ in addition, the Mobile District Equal Employment opportunity 
Plan of Action, calendar Year 1973 recognized that, "Supervisors 
must be active in counseling and encouraging minority group members 
and women to apply for positions for which they are qualified" and 
that the Personnel Office had this responsibility. (C.X."A", X. 12, 
p. 5). In this connection, Mrs. McKaig testified she did not 
believe she had such a responsibility in 1972 (Tr. 257-58).

20



Mr. McLaughlin would have been rated as high or higher than 

Mrs. Smith on experience (R. 333). Mr. McLaughlin's education 

and on-the-job training with computers were greater than that 

of Mrs. Smith's eight months of unrelated or irrelevant study 

of shorthand (r . 333-34). Subjective supervisory appraisals 

of past performance and potential are difficult to assess and 
compare generally and in the instant case (R. 334-35; Tr. 155-68, 
172-75). Mr. McLaughlin's potential with computers appears 
superior to that of Mrs. Smith (R. 335).

Plaintiff's Administrative Complaint

After the failure of informal conciliation, Mr. McLaughlin 
filed an individual complaint of discrimination on the basis of 

race and national origin on January 29, 1973 with the Mobile 
District EEO Office pursuant to 5 C.F.R. § 251.211 et_ seq.
(Admin. R., Item 21, Incl. 1). The complaint is set forth 
on a form provided by the Department of the Army. The allegations 
of discrimination referred principally to a recital of specific 
events concerning the denial of employment. Among the allegations 

is #7 which states:
The area of consideration is in violation 

of President's Policy of Equal Employment to 
all, because it restricts the opportunity 
100% to Whites, since there is not 1% of Blacks 
at the Corps of Engineers to compete withe (sic) 
the ritualistic requirements set forth by the 
manuevers of the Personnel Department of the 
District Corps of Engineers of the Mobile, Alabama 
Office.

21



In a supplemental affidavit, Mr. McLaughlin further explained 

allegation #7:
MCKIBBIN: Would you please describe how you

believe the area of consideration used 
in the announcement violates the 
President's EEO Policy?

MCLAUGHLIN: Because it restricts the opportunity 
100 per cent to whites of the Mobile 
District. The only blacks who are 
hired by the Corps are eligible for 
restrictive jobs.

MCKIBBIN: What restrictive jobs are you referring
to?

MCLAUGHLIN: Less than GS-3 level.

(C.X. "A”, X. 1, p. 9)
Subsequently, an investigation was conducted by an employee of the 
United States Army civilian Appellate Review Office (hereinafter 

USACARO). The report of the USACARO investigator, dated 
March 29th concludes with the following recommendations:

A. That Mr. McLaughlin be informed that his 
allegation of discrimination is not supported and 
of any further rights to which he may be entitled.

B. That, due to the out of balance employment 
situation, limiting the area of consideration to 
Mobile District employees for future vacancies be 
thoroughly reviewed for complete justification.

C. That the civilian Personnel Office establish 
improved methods for obtaining applicant information.

D. That the civilian Personnel Office staffing 
specialists not be permitted to service and staff 
organizational elements in which relatives are 
employed.

E. That EEO Counselors be fully indoctrinated 
as to the requirements of FPM 713 and CPR 713 with 
regard to policies involving out of balance 
employment situations. (Admin. R«, Item 21, Incl. )

22



On April 23rd the Mobile District EEO office sent Mr. McLaughlin 

a "Notice of Proposed Disposition of Discrimination Complaint" 

(Admin. R., Item 21, Incl. 5) in Which it was stated that the 

District Engineer concurred with the recommendation of the 

investigation officer and denied the complaint since it was 

not supported by the evidence. The letter also stated that 

Mr. McLaughlin had the choice of either requesting a hearing 
by a complaints examiner from the Civil Service Commission if 
he disagreed with the proposed disposition or request a decision 

by the Department of the Army's Director of EEO on the basis of 
the case file. Mr. McLaughlin elected a hearing on April 27th.

A hearing was held May 22, 1973 (Admin. R., Item 17). The 
hearing examiner's Analysis, Findings and Recommended Decision 

were transmitted to the Mobile District on July 11th (Admin. R., 
Item 16). The issues considered by the examiner were:

(1) Was the complainant discriminated against 
on the basis of race (black) because he
was not considered for the Computer Technician 
position (Announcement No. 169-72)?

(2) Was the complainant discriminated against on 
the basis of race (black) because the area of 
consideration for the Computer Technician 
position (Announcement No. 169-72) was limited 
to employees of the Mobile District?
(Admin. R., Item 16) 10/ 10

10 / This issue referred to allegation #7 of Mr. McLaughlin's com­
plaint. The examiner's finding was that:

. . . a situation of racial imbalance exists at 
Mobile District, corps of Engineers. However, it does 
not follow that a promotion announcement which limits 
the area of consideration only to Mobile District 
employees restricts the promotion opportunity 100% to 
whites. There is no evidence to show that the agency, 
when it limited the area of consideration, had any 
knowledge that no black employees would apply for the

23



The examiner recommended a decision of no discrimination on both 
issues and concluded that the evidence fails to support the 
complaint.

This lawsuit was filed March 28, 1974. In a letter

dated May 13, 1974, the Director of EEO for the Department
of the Army informed Mr. McLaughlin of the agency’s decision.

My review and evaluation of all of the evidence 
in your case does not indicate that you were 
discriminated against because of race. The record 
of this case reveals that even if the question 
of whether you properly applied for the computer 
technician position, which is in dispute, were 
resolved in your favor, you still could not have 
been considered for the position. The terms of 
the vacancy announcement limited the area of con­
sideration to employees of the Mobile Engineer 
District. This kind of limitation is a common 
management practice throughout the Department of 
the Army and there is no evidence that the limi­
tation was imposed to exclude blacks or specifically 
to exclude you. Additionally, since at least one 
highly qualified candidate was produced, the 
limitation satisfied the requirements of the Federal 
and the Department of the Army Merit Promotion 
Program. Therefore, I have approved the Complaints 
Examiner's recommendation of no discrimination and 
have rendered a decision to deny your complaint.
A copy of this decision and of the Examiner's 
report have also been forwarded to Mr. LeFlore, 
your representative. However, I do find a racial 
imbalance in the Mobile District and have directed 
that action be taken to correct it and that the 
District report to me the actions taken and planned 
in this connection. (Admin. R., Item 6)

The same day, the Director of EEO informed the Chief of Engineers

of the Department of the Army that, "The record reveals a sub-

(Continued)
10/ position or that none of its black employees^

were eligible to be considered for the position. 
There is no evidence in the record as to how 
many, if any, black employees were eligible for 
consideration. (Admin. R., Item 16)

24



stantial racial imbalance in total employment and in the

grade pattern in the Mobile District. Please take appropriate
action to overcome this and report action taken and planned by

11/
28 June, 1974." (Admin. R., Item 6) The Mobile District's

EEO office forwarded the agency decision letter to Mr. McLauqhlin
12/on May 21, 1974. On June 25th, the Mobile District EEO office

reported on the general actions taken by the District Engineer,

EEO Officer and civilian Personnel Officer on Mr. McLaughlin's
13/

complaint (Admin. R., Item 2).

11/ The district court found that:

Plaintiff made a good faith effort to follow 
the procedures set out in the regulations. Having 
failed to receive satisfaction, plaintiff filed this 
suit because of the 'extensive delay encountered . . .  
in obtaining final administrative action. . . . "  
(Administrative Record, Letter of Dist. Engineer to 
Div. Engineer, Exhibit 9). Plaintiff has met his 
responsibility of following the administrative 
process and has, at long last, received a final 
decision from the agency. He has exhausted his 
remedies. The Department of the Army has come 
forward with no explanation of its dilatoriness and 
apparent nonchalence in taking final action. Such 
delay is deplorable. It appears the plaintiff obtained 
final action only by instituting this suit. (R. 137)

12/ The letter dealing with appropriate action to overcome racial 
imbalance in total employment and in grade pattern was not sent 
to complainant McLaughlin.
12/ With reference to the area of consideration, the report stated

f. Expand the area of consideration for all vacancies, 
GS-1 through GS-4, and WG-1 through WG-5, to include can­
didates eligible for reinstatement, transfer, and those 
from Civil Service Certificates of Eligibles. In addition, 
when only one highly qualified candidate is available from 
within the District for vacancies at grades GS-5 and above 
and WG-6 and above, the area of consideration will auto­
matically be widened to include reinstatement, transfer, 
and candidates from civil Service Certificates of 
Eligibles. p. 3

The report also contained statistics on hiring and promotions. As 
with the EEO Director's letter eliciting the report, Mr. McLaughlin 
was not sent a copy of the report.

- 25 -



ARGUMENT

Introduction

The question presented for review in the context of this 

federal employment discrimination action is not unprecedented 

in this Court. Whether a class action can be maintained to 

enforce equal employment opportunity has been raised by 
defendant employers in the private sector and uniformly 
decided in favor of employees' full access to judicial pro­

cess. See, e.g., Jenkins v. United Gas Corp., 400 F.2d 28 
(5th Cir. 1968); Alpha Portland Cement Co. v. Reese, 507 F.2d 
607 (5th Cir. 1975). Simply stated, federal employees seek no 
more or less than what employees of a private company, see, 
e.g., Johnson v. Georgia Highway Express, 417 F.2d 1122 (5th 

Cir. 1969), or state or local government employer, see, e.g., 

Morrow v. Crisler, 479 F.2d 960 (5th Cir. 1973), aff'd en banc, 
491 F.2d 1053 (5th Cir. 1974) are entitled. The federal 

government, on the other hand, seeks an exemption from the 
kind of private class action challenge to discriminatory policies 

and practices it has consistently encouraged in this and other 

courts against all other alleged discriminators.
Contesting whether class action treatment is permissible, 

however, is but one of several narrow and technical devices 

which government lawyers defending federal agencies in employ­
ment discrimination suits have raised in a concerted manner to

26



forestall full judicial consideration of the merits. Other
such devices include (a) denying federal employees' right to
bring a Title VII action for discrimination occurring prior

14/
to the effective date of the statute; (b) denying federal

employees' right to a plenary trial or trial de novo in favor
15/

of a review of the administrative record only; (c) seeking
remand to agency proceedings to complete an administrative 

16/
record; and (d) denying the existence of alternatxve bases

12/
of jurisdiction for judicial enforcement. The instant case 
is an example of the comprehensive nature of the government's 

defense strategy: The government opposed not only the class
action but any plenary trial (i.e., permitting plaintiff to 
prepare this case by discovery and present evidence in plenary 
judicial proceedings) and the existence of alternative bases. 

The district court, however, did order a trial de novo of 

the individual claim under Title VII, leaving for appeal the 
issue of class action under various civil action provisions.

14/ See, e^. , Koger v. Ball, 497 F.2d 702 (4th Cir. 1974) . _
The Solicitor General recently conceded error on this issue in 
his Memorandum In Response to Petition for Rehearing in 
Place v. Weinberger, October Term, 1974, No. 74-116, petition 
for rehearing pending.
jjj/ See, e . g . , Sperling v. U.S.A., 515 F . 2d 465 (3rd Cir. 1975) .
16/ See, e .q ., Grubbs v. Butz, 514 F .2d 1323 (D.C. Cir. 1975).
17/ See, e.g., Petterway v. Veterans Administration Hospital,
495 F .2d 1223 (5th Cir. 1975).

- 27



If the district court had accepted all of the government's 
contentions, the federal judiciary would be reduced to a rubber 

stamp. The courts would merely review an administrative record 

compiled by agents of the defendant agency concerning what 

happened to a single employee. In this case the district court 

granted a limited trial de novo of the individual claim only. 
Therefore, no broad independent inquiry into or assessment of 
the challenged employment policies and practices was ever con­
ducted, notwithstanding the "plain ... purpose of Congress to 
assure equality of employment opportunities and to eliminate 

those practices and devices which have fostered racially 
stratified job environments to the disadvantage of minority 
citizens." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 

(1973), citing, Griggs v. Duke Power Co., 401 U.S. 424, 429 

(1971) .
The position of the government in this S. D. Alabama case

is that plaintiff should have specifically raised and exhausted
18/

any classwide claims in the administrative process. This 
position contradicts the position of the government in the N.D. 
Alabama case of Swain v. Callaway, Fifth Circuit, No. 75-2002, 

that federal employees in fact cannot raise and exhaust class­

wide claims. Government lawyers successfully argued below in 
that case that what was required was exhaustion of individual

18/ Judge Bue rejected similar contentions in Sylvester v.
U. S. Postal Service, S.D. Texas, C.A. No. 73-H-220 (decided 
April 23, 1975), and Judge McMillan in Chisholm v. U. S. Postal 
Service, W.D. N.C., C.A. No. C-C-73-143 (decided May 29, 1975).

28



claims by all the members of the class —  a virtual impossibility 

—  before a class action could be maintained. In this case, the 
government apparently concedes that one employee can sue in 
behalf of a class all of whose members need not have individually 

exhausted. If it is the "overall" position of the government 

that there is in fact no way to bring an employment discrimina­
tion class action whatever steps plaintiffs take in administra­

tive proceedings, this is clearly at odds with the determination 
of Congress in 1972 to eliminate any exhaustion bar to Title VII 
cla^s.-actions and to eradicate systemic and pervasive unlawful

See infra, at 50 ct seq.

THE DISTRICT COURT ERRED IN DENYING 
FEDERAL EMPLOYEES THE RIGHT TO MAIN­
TAIN A CLASS ACTION PURSUANT TO RULE 
23(b)(1) AND (b)(2), FED. R. CIV. PRO., 
IN BEHALF OF OTHER SIMILARLY SITUATED 
FEDERAL EMPLOYEES

The lower court concluded that a class action could not be 

maintained for claims arising under § 717 of Title VII for 
lack of exhaustion of available administrative remedies because 
Mr. McLaughlin's individual discrimination complaint did not

raise class issues, and a complaint expressly charging

19/ McLaughlin is the only person before the court who has 
prosecuted his claims through the administrative pro­
cess. The allegations of his administrative complaint 
relate to discrimination practiced upon him as an indi­
vidual in his quest for a position as Computer Technician. 
See Appendix A, Plaintiff's complaint. Although^some 
testimony was offered at the administrative hearing con­
cerning a general policy of racial discrimination by the 
Corps, this evidence was admitted for the probative

I.

19/

29



In the instantclasswide discrimination was not brought, 

case the lower court made clear that its ruling on exhaustion 
of classwide claims was the only reason a class action could 
not be maintained. As discussed above, the district court 

reviewed evidence of general, systemic discrimination in the 

record and concluded, "It is ironic to note that if this were a 
suit in the private sector, the plaintiff would have established 
a prima facie case of discrimination." See supra, at pp. 12-13.

The duty of the Civil Service Commission and federal agencies 
to consider systemic, classwide discrimination in the complaint 

resolution process as well as other equal employment opportunity 
programs derives from statutory command, not from the trigger* 
of specific allegations. § 717(a) states "All personnel actions 

affecting employees or applicants for employment ... shall be 
made free from any discrimination based on race, color, religion, 

sex, or national origin." (Emphasis added) The Senate committee 

report explained the meaning of this provision when it expressly 
called into question the assumption of the Civil Service Commis­

sion that "employment discrimination in the Federal Government is 

solely a matter of malicious intent on the part of individuals."

19/ (Continued)

value it might have in deciding plaintiff's claim. 
Administrative Record, Hearing Transcript pp. 4-5.
(R. 126)

The individual complaint was filed under 5 C.F.R. §§713.211 et 
seq. See Attachment A. In fact, class issues were raised.
See supra at pp. 21-25.

20/ The regulations enacted pursuant to § 2000e-16 contem­
plate, and provide procedures for, the maintenance of 
a class action in the administrative process. 5 C.F.R.

30



Another task for the Civil Service Commission 
is to develop more expertise in recognizing and 
isolating the various forms of discrimination which 
exist in the system it administers. The Commission 
should be especially careful to ensure that its 
directives issued to Federal agencies address them­
selves to the various forms of systemic discrimination 
in the system. The Commission should not assume that 
employment discrimination in the Federal Government 
is solely a matter of malicious intent on the part of 
individuals. It apparently has not fully recognized 
that the general rules and procedures that it has 
promulgated may in themselves constitute systemic 
barriers to minorities and women. Civil Service 
selection and promotion techniques and requirements 
are replete with artificial requirements that place 
a premium on "paper" credentials. Similar require­
ments in the private sectors of business have often 
proven questionable value in predicting job perform­
ance and have often resulted in perpetuating existing 
patterns of discrimination (see, e.q., Griggs v.
Duke Power Co., supra n. 1). The inevitable conse­
quence of this kind of technique in Federal employment 
as it has been in the private sector, is that classes 
of persons who are socio-economically or educationally 
disadvantaged suffer a very heavy burden in trying 
to meet such artificial qualifications. Legislative 
History at 423.21/

The House Committee concurred.

Aside from the inherent structural defects the 
Civil Service Commission has been plagued by a 
general lack of expertise in recognizing and isolating 
the various forms of discrimination which exist in the 
system. The revised directives to Federal agencies 
which the Civil Service Commission has issued are

20/ (Continued)

§ 713.251. There has been no attempt to pursue these 
procedures by the plaintiff or any other member or 
representatives of the class. (R. 126-27)

5 C.F.R. § 713.251 is also set forth in Attachment A.

21/ "Legislative History" refers here and hereinafter to 
Subcomm. On Labor of the Senate Comm, on Labor and Public 
Welfare, Legislative History of the Equal Employment Opportunity 
Act of 1972 (Comm. Print 1971).

31



inadequate to meet the challenge of eliminating 
systemic discrimination. The Civil Service Commis­
sion seems to assume that employment discrimination 
is primarily a problem of malicious intent on the 
part of individuals. It apparently has not recog­
nized that the general rules and procedures it has 
promulgated may actually operate to the disadvan­
tage of minorities and women in systemic fashion. 
Legislative History at 84.

There is, in short, no need for extrinsic notice to the agency 

of the possibility of classwide discrimination. It is therefore 

reasonable to expect federal agencies to consider if systemic, 
classwide discrimination is operating whether or not there are 

any complaints. Whether an employee makes allegations of sys­
temic, classwide discrimination in any administrative complaint, 
â fortiori, should be unnecessary to initiate the agency's
statutory obligation to scrutinize every case and search for

22/
indications of general discrimination.

What is at issue is not exhaustion of administrative remedies 
per se, but the wholly technical requirement of specific classwide 
allegations made in the course of administrative exhaustion. The 
scope of exhaustion required in this and other circuits with respect 
to private employee class action litigants is no different than if 
they brought a Title VII action on their own behalf only; it has 
been recognized that a single charge of racial discrimination is. 
sufficient notice for employer self-correction and a predicate for 

class action treatment. See infra, at 42-43. The rule should be 

the same for federal employment so that any complaint, whether 

denominated individual or third-party, should be sufficient exhaust­
ion for a class action suit.

22/ It should also be clear that the very notion of different 
administrative procedures for individual and class complaints is 
itself suspect. See infra at PP« 64 et seq.

- 32 -



The district court's decision approving this class action 

bar is clearly in error. First, the Rule 23, Fed. R. Civ. Pro. 
and the face of § 717 of Title VII indicate that only the exhaustion 
of individual administrative remedies is necessary for judicial 
consideration of class action treatment. Second, Congress expressly 

disclaimed any desire to erect any exhaustion bars to Title VII 

class actions in 1972. Third, class actions to enforce other 
civil action provisions require no greater exhaustion. Fourth, 
the lower court also failed to recognize that there is in fact no 
way for federal employees to effectively raise claims of systemic 
classwide discrimination through either present individual and 

third party procedures.

A . Class Actions Provided For In The Federal Rules Of 
Civil Procedure Are Not Precluded Or Limited In Any 
Way By The Statutory Language Of § 717 Of Title VII.
The ruling of the lower court requiring exhaustion of class­

wide claims in the administrative process fails to address the 
dictates of Rule 23, Fed. R. Civ. Pro. and the language of § 717 

of Title VII. The right of federal employees to bring class actions 
to enforce § 717 guarantees of equal employment opportunity derives 

in the first instance from Rule 23, Fed. R. Civ. Pro. in accordance 
with 28 U.S.C. §§ 2072, 2073. Sibbach v. Wilson & Co., 312 U.S. 1 

(1941). The Federal Rules of Civil Procedure, with certain excep­

tions, extend to "all suits of a civil nature whether cognizable 

as cases at law or in equity or in admiralty." The federal courts 
thus have no discretion to make ad hoc determinations whether spe­
cific civil action statutes permit class action enforcement; class 

actions are permitted unless statutory language expressly precludes 

or limits class action treatment. § 717, by its terms, permits
33



judicial consideration of class actions without the exhaustion 

imposed by the district court.

1. Rule 23(b) (2) Fed. R. Civ. Proc.
Nothing in Rule 23(b)(2) itself requires the district 

court's exhaustion bar. The inquiry required by Rule 23(b)(2) 
was described by the Advisory Committee in the following broad 
terms: "Action or inaction is directed to a class within the

meaning of this subdivision even if it has taken effect or is 
threatened only as to one or a few members of the class, provided 
it is based on grounds which have general application to thegrclass." Proposed Amendments to Rules of Civil Procedure, 39
F.R.D. 69, 102. The technical exhaustion bar to class actions 
imposed by the lower court is thus contrary to the preeminent 
purpose of Rule 23(b)(2) to provide for full adjudication of 

claims against a defendant which have general application to a 

class in practical terms.
Moreover, Rule 23(b)(2) was specifically designed for

"actions in the civil rights field where a party is charged
with discriminating unlawfully against a class, usually one whose

members are incapable of specific enumeration. See Potts v .

Flax, 313 F .2d 284 (5th Cir. 1963); Bailey v. Patterson, 323

F .2d 201 (5th Cir. 1963), cert, denied, 377 U.S. 972 (1964)"
23/

(remainder of citations omitted), supra, 39 F.R.D. at 102.

23/ In the instant case both Rule 23(b)(1) and (b)(2) were 
asserted by plaintiff; the district court refusing to consider a 
class action under either because of the exhaustion bar. Although 
this section of the brief deals only with Rule 23(b)(2), it has 
long been recognized that civil rights class actions are often 
appropriate under both. See, e .g . , Mungin v. Florida East

34



In Potts v. Flax, supra, Judge Brown discussed the purpose of 

civil rights class actions in the context of a school desegre­
gation suit:

Properly construed the purpose of the suit 
was not to achieve specific assignment of 
specific children to any specific grade or 
school. The peculiar rights of specific 
individuals were not in controversy. it was 
directed at the system-wide policy of racial 
segregation. It sought obliteration of that 
policy of system-wide racial discrimination.
In various ways this was sought through suit­
able declaratory orders and injunctions against 
any rule, regulation, custom or practice 
having any such consequences. The case there­
fore had those elements which are sometimes 
suggested as a distinction between those which 
are, or are not, appropriate as a class suit 
brought to vindicate constitutionally guaranteed 
civil rights. 5/

5/ . . .  Additionally, as we have recently 
pointed out, a school segregation suit presents 
more than a claim of invidious discrira.inafion 
to individuals by reason of a universal policy 
of segregation. It involves a discrimination 
against a class as a class, and this is assuredly 
appropriate for class relief. Bush v. Orleans 
Parish School Board, 5 cir., 1962, 308 F.2d 491, 
499, modified on rehearing, 308 F.2d 503. See 
also Ross v. Dyer, 8 Cir., 1962, 312 F.2d 191. 
(Original emphasis) 313 F.2d at 288-89

Judge Brown continued, "Moreover, to require a school system * 51

23/ (Continued)
Coast. Ry. Co., 318 F. Supp 720, 730 (M.D. Fla. 1970), aff'd 
per curiam, 441 F.2d 728 (5th Cir. 1971); Copeland v. Mead Corp.,
51 F.R.D. 266, 268 (N.D. Ga. 1970). The risk of inconsistent or 
varying adjudications with respect to individual members of the 
class and adjudications with respect to individual members which 
would as a practical matter be dispositive of other members not 
parties, in this kind of litigation involving allegations of across- 
the-board racial discrimination in the Mobile District, is of course 
another reason that makes this case appropriate for class action 
treatment. As with Rule 23(b) (2), nothing in 23(b) (1) itself 
requires the district court's exhaustion bar.

35



to admit the specific successful plaintiff Negro child while 
others, having no such protection, were required to attend 

schools in a racially segregated system, would be for the 
court to contribute actively to the class discrimination." 
(Original emphasis) Named plaintiff in the instant case 

asserts no less —  it is systemic, classwide employment discrimi­

nation in the Mobile District of the Corps of Engineers that he 
seeks to raise and remedy in a court of law. in Jenkins v. 
United Gas Corp., 400 F.2d 28 (5th Cir. 1968), Chief Judge 
Brown reiterated for employment discrimination what he wrote 

earlier in Potts, "if class-wide relief were not afforded 
expressly in any injunction or declaratory order issued in 
Employees1 behalf, the result would be the incongruous one 

of the Court— a Federal Court, no less— itself being the instru­
ment of racial discrimination." 400 F.2d at 34. See also, 
Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 

(5th Cir. 1969).
Rule 23(b)(2) class actions are also particularly

24/
appropriate in employment discrimination litigation. The

class action device permits full scale inquiry into general 
employment policies and practices. Judge Gray's reasoning 

in Hall v. Werthan Bag Corp., 251 F. Supp 184, 196 (M.D. Tenn. 
1966) that, "Racial discrimination is by definition a class 

discrimination. If it exists, it applies throughout the class" 24

24 / Compare the analysis set forth in Chisholm v. II.S. Postal 
Service, W.D. N.C., C.A. No. C-C-73-148, decided May 29, 1975 at 
p u 12-13 of slip opinion; Sylvester v. UoS, Postal Service, S.D. 
Tex., CoA. NOo 73-H-220, decided April 23, 1975 at p. 10.

36



has often been cited in employment discrimination litigation.

See, e .g., Jenkins v. United Gas Corp., supra, 400 F.2d at 35; 
Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 

(5th Cir. 1969); Blue Bell Boots Inc, v. EEOC, 418 F.2d 355,
358 (6th Cir. 1969); Graniteville Co. (Sibley Div.) v. EEOC,

438 F .2d 32, 37 (4th Cir. 1971). This principle was also accepted 
by Congress in 1972 in considering the propriety of Title VII 

class actions for employment discrimination. See infra, at 50 et_ sec 
Furthermore, the class action device facilitates framing of 
comprehensive injunctive and declaratory relief for the systemic 
features of employment discrimination Title VII expressly seeks 
to rectify. Griggs v. Duke Power Co., supra, 401 U.S. at 429-30; 
McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 800;
Alexander v. Gardner-Dcnver Co., 415 U.S. 36, 44 (1974). The 
court in Jenkins noted that, "the [Advisory Committee] Note’s 
emphasis on declaratory, injunctive relief is easily satisfied 

by Title VII." 400 F.2d at 34.

2. The Statutory Language of §717 of Title VII
On its face § 717 of Title VII does not preclude or 

limit in any way the Rule 23 right of federal employees to 
bring private enforcement actions in the form of class actions.
In particular, there is nothing concerning different exhaustion 
requirements for individual and class actions. Even in circum­

stances in which the face of a statute is ambiguous for some 

reason, the jurisprudence of this Circuit is clear that class 
actions may be maintained. Thus in Lance v. Plummer, 353 F.2d

37



585 (5th Cir. 1965), cert, denied, 384 U.S„ 929 (1966), the
contention was made that, "the class action filed by the named 
plaintiffs was not an adequate vehicle upon which the trial 
court could enjoin conduct by the named defendants, and those 

in active concert with them, from denying rights to all Negro 

citizens," 353 F.2d at 591, in an action under Title II of the 
Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq. Defendants 

pointed out that Title II (1) authorizes a civil action only 
for preventive relief to "the person aggrieved" by the offender;
(2) authorizes pattern or practice suits by the Attorney General; 
and (3) contains the express provisio that, "The remedies provided 
in this title shall be the exclusive means of enforcing the rights 
based on this title." Considering tnese contentions and the 

whole statute the Court concluded that, "Congress did not intend 

to do away with the right of named persons to proceed by a class 
action for enforcement of the rights contained in Title II of the 

Civil Rights Act." 353 F.2d at 591. The Court in Lance v .
Plummer cited Sharp v. Lucky, 252 F.2d 910 (5th Cir. 1958), also 
a civil rights action, in which the limitation of the authority 
to bring an action under 42 U.S.C. § 1983 "to the party injured" 

was held not to prevent class action proceedings.
In Oat.is v. Crown Zellerbach Corp., 398 F.2d 496 (5th 

Cir. 1968) the issue came up in the Title VII context with 

defendant contending that jurisdiction is absent for class 
action because "(1) pattern or practice suits brought by the 

Attorney General are authorized" and "(2) the administrative,

38



circumvented and avoided if only one person may follow the

administrative route dictate of the Act and then sue on behalf

of the other employees." Citing Lance v. Plummer, the court

again rejected the preclusive contentions on the ground that,

"The Act permits private suits and in nowise precludes the class
25 /

action device." 398 F.2d at 498. The court also specifically
took exception to defendants' contention, not premised on the 

face of the statute, that class actions would displace the EEOC 
role in advancing the purpose of the statute.

Federal employee class actions, a_ fortiori, are not 
precluded or limited by any special exhaustion requirement.

First, the special exhaustion requirement for class action 
suits imposed by the district court rests not on any statutory 
language, as the preclusive devices in all three cases, but only 

on silence. Derogation of Rule 23 rights to maintain a class 25

private remedy intent and purposes of the statute will be

25 / This is not to say that congress cannot ever preclude or limit 
class actions, only that congress must do so in clear and unambiguou 
language. For instance, in Weinberger v. Salfi, 43 USLW 4985 (decided 
June 26, 1975) the Court had before it such a Social Security Act 
provision, 42 U.S.C. §405(g), stating:

"Any individual, after any final decision of the 
Secretary made after a hearing to which he was a 
party, irrespective of the amount in controversy, may 
obtain a review of such decision by a civil action 
commenced within sixty days after the mailing to him 
of notice of such decision or within such further time 
as the Secretary may allow. (Emphasis added).

The Court there held that a class action failed because class member 
did not meet the § 406(g) prerequisite of a final decision made afte 
a hearing to which they were parties, 43 USLW at 4389. A similarly 
worded provision was proposed as an amendment to Title VII in 1972 
and specifically rejected, see infra, at 50-51.

39



action necessarily requires a surer indication of legislative

intent. Imposing such a requirement is especially awkward in
light of the fact that the § 717 civil action scheme was
specifically enacted (a) to cure confusion about general

26 /
exhaustion requirements by providing explicit standards and
, . 27 /(b) to limit rather than to expand exhaustion requirements.

Second, § 717 of Title VII is unlike the statutes considered in

Lance and Sharp in that the equivalent "person aggrieved" language
is not untested, but derives from the general § 706 provision

which had been uniformly construed before 1972 to permit class
actions. Indeed, the "person aggrieved" language had been
expressly construed to permit class actions in which the named

plaintiffs had exhausted only his individual administrative

26/ The House committee report explained that the § 717 civil actio 
right was needed, in part, because, "In many cases, the employee 
must overcome a U. S. Government defense of . . . failure to exhaust 
administrative remedies with no certainty as to the steps reqxiired 
to exhaust such remedies." Legislative History at 425. It would 
thus be anomalous to read into the statutory scheme an extra non- 
statutory exhaustion requirement when it was drafted to avoid just 
such problems of uncertainty.

27/ under § 717(c) a federal employee has the absolute right to 
file a civil action in federal district court 180 days from the 
filing of his administrative complaint no matter what the stage 
of any administrative processing. See Grubbs v. Butz, 514 F.2d 
1323 (D.C. Cir. 1975). Prior to the enactment of § 717(c) it 
had been assumed that final agency action was necessary. See, e.g., 
Harris v. Nixon, 325 F. Supp 28 (D. Colo. 1971). An extra 
exhaustion requirement for class actions hardly comports with a 
scheme that instituted partial or incomplete exhaustion require­
ments to change contrary prior practice.

40



See infra, at pp. 50 et_ seq. Third, § 717 is unlike the 
statutes considered in Oatis and Lance in that the private civil 
action is the only court enforcement merchanism available to 

federal employees' suits by the EEOC or the Department of Justice 
are not authorized (indeed the Department of Justice must defend 
such suits). Plaintiffs federal employees are not merely 
"private attorneys general," see, e.g., Newman v. Piggie Park 

Enterprises, 390 U.S. 400, 402 (1968), as are employees in the 
private sector, they are the only attorneys general.

The plain language of the statute unmistakably indicates 
that Congress intended no exhaustion hurdle for Rule 23 class 

actions. In an analogous context, the Supreme court has 

prohibited courts from reading into Title VII more than the 
precisely specified jurisdictional prerequisites. McDonnell 

Douglas Corp. v. Green, supra, 411 U.S. at 798-99? Alexander v . 
Gardner-Denver Co., supra, 415 U.S. at 47. In Green, the court 
declared that, "we will not engraft on the statute a requirement 
which may inhibit the review of claims of employment discrimination 

in the federal courts," and in Alexander that, Title VII "vests 
federal courts with plenary powers to enforce the statutory 
requirements." It should also be noted that the Supreme Court 
has made clear that purported restrictions on civil action rights 
resulting from events at the administrative stage when employees 

are usually unrepresented are especia3.1y suspect. The Supreme 

Court in Love v. Pullman Co., 404 U.S. 522 (1972), a case

remedy and Congress approved this construction in 1972.

41



involving defendant employer's non-statutory argument that EEOC 
referral to state agency must be in writing rather than merely 

oral, stated that, "Such technicalities are particularly 
inappropriate in a statutory scheme in which laymen, unassisted 

by trained lawyers, initiate the process." 404 U.S. at 527.

This Circuit in Jenkins v. United Gas Corp., supra,
400 F.2d at 30 n. 3, and Sanchez v. Standard Brands, Inc., 431 

F.2d 455 (5th Cir. 1970) had anticipated the rationale of Love.
In Sanchez, one of the issues raised by the defendant employer 
was that the complaint was broader than the scope of the administra­
tive charge, in part because of the specification of classwide 
allegations. This contention was dismissed summarily.

Our consideration of this issue must begin 
with a reiteration of our conviction that 
procedural technicalities are not to stand 
in the way of Title VII complainants. Nothing 
in the Act commands or even condones the appli­
cation of archaic pleading concepts. On the 
contrary, the Act was designed to protect the 
many who are unlettered and unschooled in the 
nuances of literary draftsmanship. It would 
falsify the Act's hopes and ambitions to require 
verl^al precision and finesse from those to be 
protected, for we know that these endowments are 
often not theirs to employ. 431 F.2d at 465.

The Court concluded that, "the'scope' of the judicial complaint

is limited to the 'scope' of the EEOC investigation which can
reasonably be expected to grow out of the charge of discrimination."
431 F.2d at 466. Because racial discrimination is necessarily
class discrimination, it would be normal and reasonable to expect

an individual claim to give rise to agency investigation and

42



resolution of any systemic, classwide discrimination. Compare
McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 408-09;
Burns v. Thiokol Chemical Corp., supra, 483 F.2d 300, 306 (5th
Cir. 1973); Georgia Power Co. v. EEOC, 412 F.2d 462, 468 (5th 

28/
Cir. 1969). As stated above, the Civil Service Commission and 

federal agencies, unlike the EEOC, were even specifically in­

structed by Congress to eradicate previously ignored class dis­
crimination, see supra at 30-31. Indeed, the Senate committee 

report not only found the Civil Service Commission inexpert in 
recognizing and isolating discrimination, it indicated that the
Commission learn from the EEOC's general expertise in dealing

29/
with discrimination. The need to conduct a classwide investi­
gation in every complaint of discrimination, not just certain 

designated class complaints, is thus the same for the Civil 

Service Commission, federal agencies and the EEOC. Whether the 

Civil Service Commission and federal agencies effectively look 
into classwide discrimination is uncertain, see infra at 64 et 

seq., but it is certain that Congress intended to create an 
administrative scheme in which they would do so.

28/ Compare the analysis in Sylvester v, U.S. Postal Service, 
supra, slip opinion at 9-11, and Chisolm v. U.S. Postal Service, 
supra, slip opinion at 14.
29/ The Committee wishes to emphasize the significant

reservoir of expertise developed by the EEOC with re­
spect to dealing with problems of discrimination. 
According, the committee strongly urges the Civil 
Service Commission to take advantage of this knowledge 
and experience and to work closely with EEOC in the 
development and maintenance of its equal employment 
opportunity programs. Legislative History at 425.

43



The reasoning of the lower court also amounts to a waiver

of the opportunity to bring a lawsuit in the form of a class
action by failure to make express administrative classwide

claims of discrimination. Not only are employees almost always
unrepresented when the initial complaint is filed, the agency
provides employees with an individual complaint form that fails

to mention, request or otherwise elicit any classwide claims.

See R. 171. No knowing and intelligent waiver can be said to
30/

occur under such circumstances. Indeed, the form speaks 
exclusively of the individual's specific complaints against 

particular named individual persons. If complainants try to 
make classwide allegations, they are usually discouraged and 

prevented from doing so. See, infra at p. 64. Thus, not only 
is there no knowing and intelligent waiver of rights, but 
actual misrepresentation by the agency concerning its obliga­

tion to provide relief for classwide discrimination. There 

are thus compelling reasons under Rule 23 and § 717 to apply 

the usual rule that "there can be no prospective waiver of an 
employee's rights under Title VII," Alexander v. Gardner-Denver 

Co., supra, 415 U.S. at 51.

30/ The rule has been clear, at least, since Johnson v, Zerbst, 
304 U.S. 458, 464 (1938), citing, Aetna Ins. Co. v. Kennedy,
301 U.S. 389, 393 (1937); Hodges v. Easton, 106 U.S. 408, 412 
(1882); Ohio Bell Telephone Co. v. Public Utilities Comm., 301 
U.S. 292, 306-07 (1937), that, "A waiver is ordinarily an 
intentional relinquishment or abandonment of a known right or 
privilege."

44



In the instant case of course the complainant alleged 

general discrimination to black applicants because of the operation 
of the area of consideration rule to limit employment to the 
mostly white workforce as part of his individual complaint. The 

Mobile District therefore had not only the notice incident to 

any complaint of racial discrimination but express indication 

by the complainant that he believed some systemic, classwide 

discriminatory factors were responsible. Looking to the substance 
and not the form of the individual complaint, it is clear that 
the agency had, as the district court put it, "an opportunity 
to correct its own mistakes before a court is called on to 
act." (r<. 127) The investigative file (C.X."A") contains 
inter alia, a statistical Analysis of Personnel in exhibit 9; 

the 1973 EEO Plan of Action in exhibit 12; the Mobile District's 
Merit Placement and Promotion Policy in exhibit 13; a chart of 
minority group occupational series in exhibit 14; a list of 
awards for fiscal years 1971 and 1972 with minorities isolated 
in exhibit 15; and the Department of the Army's Study of Equal 

Employment Opportunity in the State of Alabama as it pertains to 
the Mobile District and the response of the District in exhibits 26 

and 27. Indeed, the record shows that the agency did claim to make 
some efforts as a result of the complaint and investigation, with 

respect to the area of consideration, hiring and grade-level 

distribution. See supra, at 24-25. To impose after the fact 

an additional and completely unanticipated technical bar generally

45



and in this case especially would contravene the liberal 
letter and spirit of Rule 23 and § 717.

The record is silent whether Mr. McLaughlin was ever 
informed of third party complaint procedures or the implications 

of electing one and not another. Indications are that most 

federal employees are not aware of third party complaints. A 

widely distributed Civil Service Commission pamphlet on How 

the Discrimination Complaints System Works fails to mention 
the existence of any third party procedures at all. See 

Attachment B. Moreover, the face of Regulation 5 C.F.R. § 713.251 

does not state that it is a way for individuals to raise general 
allegations, much less the only way to raise general allegations 
of discrimination. It states only that the regulation is for 
"general allegations by organizations or other third parties of 
discrimination in personnel matters which are unrelated to an 

individual complaint of discrimination." Commission Federal 
Personnel Manual Letter 713-20 dated July 17, 1973, (R. 239-41),
an authoritative construction of § 713.251, also does not state 
the options the district court imposes after the fact on federal 

employees. Indeed the Letter reiterates that the purpose of 

third party complaint procedures is wholly different from 
individual complaint procedures and that individuals should be 

discouraged from invoking the procedures in favor of individual 

complaints.

4. The purpose of third-party procedures is to 
permit organizations which have an interest in 
furthering equal opportunity in Federal employ­
ment to call attention to equal employment 
opportunity problems in Federal agencies which

46



appear to require correction or remedial action 
the agency or by the commission, and ■which, are ̂ 

unrelated to individual complaints of discrimination. 
The third-party provisions of section 713.251 are 
not intended to replace those for individual com— ̂ 
pla"ints of discrimination (including those involving 
more than one complainant), filed by employees or 
applicants for employment and processed under sections 
713.211 through 7~13.222 ; nor are they intended to be 
applied to letters or other inquiries_from employees 
or organizations which are not specifically labeled 
as third-party allegations, unless the commission 
determines that the matter should be processed under 
section 713.251.
5 individual complaints or groups of complainants 
shou]d be advised of the discrimination complaint 
procedures available to them and should be referred 
to an equal employment opportunity counselor. Le.ters 
or other communications from organizations which are 
not specifically filed as third-party allegations 
under"section 713.251 should generally be handled _ 
as ordinary correspondence. Where appropriate m  
the preparation of replies to such correspondence 
agencies should obtain the information necessary to 
determine the validity of any allegations, or other 
information needed to respond to the writer and to 
assure that action is taken where it is indicated by 
the facts. (R. 241) 31/

31/ A recent commission memorandum on Third Party Allegations 
of Discrimination dated January 27, 1975 (R. 317-22)j  
that "The third-party procedures are not designed or intended 
to bi used as a sSbstitate for the EEO counseling and coraplarnt 
procedures."

As the preliminary discussion points up, EEO 
counseling and discrimination complaint procedures 
are available to individual employees or applicants 
who believe they have been discriminated against; and 
third-parties should not be permitted to circumvent 
these procedures— with or without the consent of an 
aggrieved individual— through the filing of a third- 
party allegation on a matter which would be an 
appropriate basis or reason for filing an individual 
complaint of discrimination. Any third-party who 
files allegations under these circumstances should 
be advised regarding the proper channels for pursuing 
individual complaints, and should be
the third-party procedures are not available for th. 
purpose. (R. 318)

47



Resort to the third party complaint procedures the district
court requires for maintaining a class action is thus definitely 

intended only for "the sophisticated or cognoscenti," Sanchez 

v. Standard Brands, Inc., supra, 431 F.2d at 463, in violation 

of Rule 23 and § 717 of Title VII.
Assuming arguendo that an individual federal employee is 

permitted to freely choose between individual and third party 
complaints, present regulations require that if an employee elects 
individual, complaint procedures class allegations cannot generally 

be alleged, investigated or remedied, but if he elects third 
party procedures individual claims cannot be alleged, investigated 
or remedied. See infra at 64 et se%. It is therefore reasonable to

expect that complainants with their own claims would choose 
individual administrative procedures xn the hope that the_r 

claims would be settled short of a lawsuit. It is only 
complainants with individual claims who can be expected to 
step forward to raise most employment discrimination matters.

The vast majority of discrimination complaints filed are in 

fact individual complaints. In fiscal year 1974, commission

records indicate 3,435 individual complaints were filed,
in 1973 - 2,743 and in 1973 - 1,834. U.S. Commission on 
Civil Rights, The Federal civil Rights Enforcement Effort - 

1974, Vol. V, To Eliminate Employment Discrimination at p. 67 

(July 1975) (hereinafter "Civil Rights commission Study").
In contrast, no nation-wide records were kept of the few third 

party complaints filings until fiscal year 1975. Available

48



Commission statistics indicate, however, that in fiscal 

year 1974 only 14 such complaints were filed in Washington,

D. C. where federal employee are most concentrated and can he

expected to be most knowledgeable about their rights. Td at
32/ --

p. 64.

32/  The Third circuit in Sperling v. United States, supra, 515 
F.2d at 474 n. 39, stated that "The District of Columbia of 
course has the highest concentration of federal employees 
anywhere in the nation, and judge Gessell [in Hackley v. Johnson] 
noted that a brief review of the civil docket of the District 
Court for the District of Columbia revealed no less than nineteen 
§ 717 claims awaiting disposition at the time Hackley was decided. 
360 F. Supp at 1249 n. 2."

49



B In 1972 congress Expressly Disclaimed Any Intent 
To Preclude Or Limit class Actions To Enforce 
Title Vl'I

The contention that making administrative allegations of 
classwide discrimination should be a prerequisite to a class 

action suit was rejected by Congress in 1972, along with other 

bars to employment discrimination class actions, in reliance 
upon the decisions of this Court in Oatis v. Crown Zellerbach 
Corp., supra, and Jenkins v. United Gas Corp., supra. These 

cases dealt with the related problem of requiring all class 
members to exhaust their individual remedies and their reasoning 
applies equally well to the particular bar at issue. Moreover, 
only "individual" EEOC complaints were in issue in these cases.

In Qatis v. Crown Zellerbach Corp., supra. Judge Bell 

set forth reasons why exhaustion by all class members will 
not advance the purpose of the Act.

Moreover, it does not appear that to allow 
a class action, within proper confines, would 
in any way frustrate the purpose of the Act 
that the settlement of grievances be first 
attempted through the office of the EEOC. It 
would be wasteful, if not vain, for numerous 
employees, all with the same grievance, to have 
to process many identical complaints with the 
EEOC. If it is impossible to reach a settlement 
with one discriminatee, what reason would there 
be to assume the next one would be successful.
The better approach would appear to be that once 
an aggrieved person raises a particular issue 
with the EEOC which he has standing to raise, he 
may bring an action for himself and the class of 
persons similarly situated and we proceed to an 
examination of this view. 398 F.2d at 498

50



"And the charge itself is something more than the single 

claim that a particular job has been denied him. Rather it is 
necessarily a dual one: (1) a specific job, promotion, etc.

has been denied, and (2) this was due to Title VII forbidden 

discrimination." Jenkins v. united Gas Corp., supra, 400 

F.2d at 32. "[I]t is perfectly clear that no procedural
purpose could be served by requiring scores of substantially 

identical grievances to be processed through the EEOC when a 
single charge would be sufficient to effectuate both the letter 
and spirit of Title VII." Miller v. International Paper Co., 
supra. 408 F.2d at 285; Franks v. Bowman Transportation Co.,
495 F.2d 398, 421-22 (5th Cir. 1974); Bowe v. Colgate-Palmolive 
Co., 416 F.2d 711, 715 (7th cir. 1969). It would be equally 
vain to require federal complainants to formally plead classwide 
discrimination the agency is obligated to scrutinize in order to 

bring a class action that must in any event be judicially approved.

The government seeks by judicial action class action bars

Congress in 1972 specifically refused to legislate. During the
consideration of H. R. 1746 in the House, Rep. Erlenborn

33/
introduced a substitute for the committee bill which proposed, 
in § 706(h), that, "No order of the court shall require . . .  the 

hiring, reinstatement, or promotion of an individual as an 

employee, or the payment to him of any back pay, if such 

individual, pursuant to Section 706(a) and within the time

33/ Legislative History at 425.

51



required by Section 706(d), neither filed a charge nor
34/

was named in a charge or amendment thereto." (§ 706(a)
deals with EEOC charges and § 706(d) with EEOC charge deadlines.) 

Opponents made clear the importance of class actions to Title VII 

enforcement. Rep. Eckhardt argued:
The Erlenborm amendment abolishes class 

actions. It would wipe out class actions in 
the area of equal employment opportunity. In 
this area the courts have held that equal 
employment actions are customarily class action 
whether they are so categorized or not.

But this amendment would prohibit bringing 
class action suits on behalf of a whole class of 
persons— blacks, women, and so forth, who may be 
all suffering the same discrimination. 35/

Similarly, Rep. Abzug argued that:
The Erlenborn bill would eliminate the right 

of an employee? to bring a class action on the 
behalf of all other employees similarly situated, 
a right which now exists under Title VII. My 
fellow colleagues, sex and race discrimination 
are by the very nature class discriminations. Now 
a member of a discriminated against class, or 
several members, can bring suit on behalf of their 
entire class, and seek an award of back pay, 
reinstatement, or injunctive relief. The structure 
and pattern of employment discrimination will remain 
untouched unless large numbers of works are affected. 
An award in favor of one complainant will do little 
to discourage an employer bent on discriminating 
against a class of employees, but an award— or even 
the possibility of an award— on behalf of an entire 
class can effectively discourage this kind of 
unlawful discrimination. 36/

34/ Legislative History at p. 147. 

35/ Legislative History at p. 243. 
36/ Legislative History at p. 276.

- 52 -



The Erlenborn substitute passed in the Mouse with the
37/

exhaustion bar intact.
The Senate committee bill, however, contained no restrictions 

38/
on class actions. The Senate committee stated its intent not

to restrict class actions in its proposed § 706 provisions, 

specifically citing Qatis and Jenkins.
This section is not intended in any way 

to restrict the filing of class complaints.
The committee agrees with the courts that 
title VII actions are by their very nature 
class complaints 16/ and that any restriction 
on such actions would greatly undermine the 
effectiveness of title VII.
167 Oatis v. Crown Zellerbach Corp., 398 F.2d 
496 (C.A. 5, 1968). Jenkins v, United Gas 
Corp., 400 F.2d 28 (C.A. 5, 1968); Blue. Bell 
Boots v. EEOC, 418 F.2d 355 (C.A. 6, 1969);
Local 104, Sheet Metal Workers v. EEOC, 303 
F, supp 528 (N.D. Calif. 1969). Similarly, 
labor"organizations may also petition for relief 
on behalf of their members, chemical workers 
v. Planters Manufacturing Co., 259 F. Supp 365 
(N.D. Miss. 1965); Pulp Sulphite and Paper Mill 
Workers, Local 186 v. Minnesota Mining "and 
Manufacturing Co., 304 F . Supp 1284 (N.D. 
ind. 1969)“. 397

The Senate bill as passed contained no limitations on class 
40/

actions and the Section-By-Section Analysis of S.2515 * 38

37/ Legislative History at p. 332.

38 / Legislative History at p. 335 et sea. 

39/ Legislative History at p. 436.
40/ Legislative History at p. 1779 et seq.

53



reiterated the intent not to limit class actions in any way.

In establishing the enforcement provisions 
under this subsection and subsection 706(f) 
generally, it is not intended that any of the 
provisions contained therein are designed to 
affect the present use of class action lawsuits 
under Title VII in conjunction with Rule 23 of 
the Federal Rules of Civil Procedure. The courts 
have been particularly cognizant of the fact that 
claims under Title VII involve the vindication 
of a major public interest, and that any action 
under the Act involves considerations beyond 
those raised by the individual claimant. As a 
consequence, the leading cases in this area to 
date have recognized that Title VII claims are 
necessarily class action complaints and that, 
accordingly, it is not necessary that each 
individual entitled to relief under the claim be 
named in the original charge or in the claim for 
relief. 41/

The bill that emerged from conference omitted the Erlenborn
provision. The Section-Bv-Section Analysis of H.R. 1746
adopted the Senate Section-By-Section Analysis on class actions,
word for word, adding only the concluding statement that,
"A provision limiting class actions was contained in the House

42/
bill and specifically rejected by the Conference committee." * * *

41/ Legislative History at p. 1773.
42/ Legislative History at p. 1847. The preface of the Analysis 
states its purpose:

This analysis explains the major provision of 
H.R. 1746, the Equal Employment Opportunity Act 
of 1972, as agreed to by the conference Committee 
of the House and Senate on February 29, 1972. The 
explanation reflects the enforcement provisions of 
Title VII, as amended by the procedural and juris­
dictional provisions of H.R. 1746, recommended by 
the Conference Committee.

In any area where the new law does not address 
itself, or in any area where a specific contrary 
intention is not indicated, it was assumed that the

54



The Supreme Court recently affirmed this interpretation 

of the 1972 legislative history in Albemarle Paper Co. v. Moody,

43 USLW 4880, 4883 n. 8 (decided June 25, 1975) from the perspectiv 
of the propriety of back pay to the class:

The petitioners also contend that no backpay 
can be awarded to those unnamed parties in the 
plaintiff class who have not themselves filed 
charges with the EEOC. We reject this contention.
The courts of appeals that have confronted the 
issue are unanimous in recognizing that backpay 
may be awarded on a class basis under Title VII 
without exhaustion of administrative procedures 
by the unnamed class members. See, e.g., Rosen v .
Public Service Gas & Electric Co., 409 F.2d 775,
780 (CA3 1969), 477 F.2d 90, 95-96 (CA3 1973);
Robinson v. LorH^ard Corp., 444 F.2d 791, 802 
(CA4 1971); United States v. Georgia Power Co.,
474 F.2d 906, 919-921 (CA5 1972); Head v. Timken - 
Roller Bearing Co., supra, 486 F.2d, at 876 
(CA6 1973); Bowe v. Colgate-Palmolive Co., 416 
F.2d 711, 719-721 (CA7 1969); United States v .
N. L. Industries, Inc., 479 F.2d 354, 378-379 
(CAS 1973). The Congress plainly ratified this 
construction of the Act in the course of enacting 
the Equal Employment Opportunity Act of 1972,
Pub. L. 92-261, 86 Stat. 103. The House of 
Representatives passed a bill, H. R. 9247, that 
would have barred an award of backpay to an 
individual who'* neither filed a charge [with the 
EEOC] nor was named in a charge or amendment 
thereto.' But the Senate committee on Labor and 
Public Welfare recommended, instead, the re­
enactment of the backpay provision without such 
a limitation, and cited with approval several 
cases holding that backpay was awardable to class 
members who had not personally filed, nor been 
named in, charges to the EEOC. S.Rep.No. 415, 42

42 / (Continued)
present case law as developed by the court would 
continue to govern the applicability and con­
struction of Title VII.

The Section-By-Section Analysis was put before both the Senate 
and the House. Legislative History at 1844-51, 1856.

55



92d Cong., 1st Sess., 27 (1971). See also 
118 Cong. Rec. 4942 (1972). The Senate 
passed a bill without the House's limitation,
118 Cong. Rec. 4944 (1972), and the Conference 
Committee adopted the Senate position. A 
Section-by-Section Analysis of the Conference 
Committee's resolution notes that '[a] pro­
vision limiting class actions was contained in 
the House bill and specifically rejected by the 
Conference Committee,' 118 Cong. Rec. 7168,
7565 (1972). The Conference Committee bill was 
accepted by both chambers. 118 Cong. Rec. 7170,
7573.

The general § 706(f) civil action procedural framework and the 
accompanying legislative history gloss is incorporated by 

reference in § 717(d). Thus the explicit refusal to preclude 

or limit class actions applies equally to federal employee 
Title VII actions. Indeed, it could hardly be otherwise since 

Congress made it clear that systemic, classwide discrimination 
was endemic in the federal service, see supra at 30-31.

Legislative history demonstrates that Congress was actively 

determined not to restrict Title VII class actions in any way. 
Read with the non-prohibitory statutory language, Congress could 
not have intended to permit a class action bar that under present 
regulations and practice is equally as restrictive as requiring 

all persons to file administrative charges. The Civil Service 

Commission and federal agencies cannot do through regulations 
and practice with respect to the rights of federal employees to 

bring class actions a result Congress refused to permit to be 

legislated for all employees.

56



c Class Actions Provided For in The Federal Rules 
Of Civil Procedure Are. Not Precluded Or Limited 
In Any Way 3y Other Civil Action Provisions

In the instant case, class action treatment was also
sought to enforce guarantees contained in 42 U.S.C. § 1981, the 

Fifth Amendment, and various statutory and regulatory prohibition] 

of employment discrimination through a suit in the nature of 
mandamus under 28 U.S.C. § 1361. The lower court considered the 
class action question only in the context of § 717 of Title VII 
and erroneously failed to reach the class action question under 
any of these independent and alternative civil action provisions. 
It is clear, however, that a class action would also be per- .

43/
missible under these provisions in the instant case.

Although the district court did not so rule, the government 
has argued that § 717 of Title VII repealed by implication any 
other avenues of judicial review for civil rights actions against 
racially discriminatory federal agency employment practices.

Brown v. General Services Administration, 507 F.2d 1300 (2nd 
Cir. 1974), cert, granted, 43 USLW 3625 (May 27, 1975). The face

44/
of § 717 indicates the very opposite was intended. In Morton

W  Mancari, 41 L.Ed.2d 290 (1974) the Court had before it a similar

issue involving repeal by § 717. In Morton the appellant argued

43/ § 717(e) expressly states:
Nothing contained in this Act shall relieve 
any government agency or official of its or 
his primary responsibility to assure non­
discrimination in employment as required by 
the constitution and statutes or of its or 
his responsibilities under Executive Order 
11478 relating to equal employment opportu­
nity in the Federal Government.

44/ Whether any exhaustion is required in non-Title VII civil 
action provisions is not at issue because named plaintiff did 
exhaust his individual remedies.

57-



that § 717 had tacitly repealed earlier enacted statutory pre­

ferences in favor of Indian applicants for jobs at the Bureau 

of Indian Affairs. A unanimous Supreme Court rejected that 
contention:

Appellees encounter head-on the 'cardinal rule 
. . .  that repeals by implication are not 
forced.’ . . . They and the District Court read 
the congressional silence as effectuating a 
repeal by implication. There is nothing in the 
legislative history, however, that indicates 
affirmatively any congressional intent to repeal 
the 1934 preference. . . .  The courts are not 
at liberty to pick and choose among congressional 
enactments, and when two statutes are capable of 
co-existence, it is the duty of the courts, 
absent a clearly expressed congressional intent 
to the contrary, to regard each as effective.

41 L.Ed. at 300-01. See also Johnson v.’ Railway Express Agency,

43 USLW 4623 (decided May 19, 1975) in which the court was of the
opinion, "We generally concluded . . . that the remedies available

under Title VII and under § 1981, although related, and although
directed to most of the same ends, are separate, distinct and
independent." 43 USLW at 4626. In Alexander v. Gardner-Denver,

supra, 415 U.S. at 47, the Supreme Court explained,
. . .  the legislative history of Title VII 
manifests a congressional intent to allow an 
individual to pursue his rights under both 
Title VII and other applicable state and 
federal statutes. The clear reference is 
that Title VII was designed to supplement, 
rather than supplant, existing laws and 
institutions relating to employment discrimi­
nation.

In 1964 Senator Tower proposed an amendment to the pending 

Civil Rights Act to make Title VII the exclusive remedy for

58



discrimination in employment. The amendment was defeated on

the floor of the Senate. 110 Cong. Rec. 13650-52. In 1972
Senator Hruska proposed an amendment which would have made Title
VII the exclusive remedy for claims of employment discrimination.

45/
The amendment was opposed by the Department of Justice.

In successfully opposing the Hruska Amendment, Senator Javits 

argued:
There are other remedies, but those other 
remedies are not surplusage. Those other 
remedies are needed to implement the promise 
we make under the constitution to prevent 
discrimination in employment. The laws of 
1866, 1981, as well as the law of 1964 are 
to implement that promise. . . .  Mr. Presi­
dent, the key to the proposition which we 
laid before the Senate— incidentally, this 
has now been the law for the last 8 years 
— is that what this amendment would seek to 
do is cancel away much of that law. It seems 
to me that should not be the attitude of the 
Senate, in face of the fact, as I say, that 
employees are not fully protected by the

45/ The chief of the Civil Rights Division testified,
[W] e are concerned that at this point in time 
there be no elimination of any of the remedies 
which have achieved some success in the effort 
to end employment discrimination. In the field 
of civil rights, the Congress has regularly in­
sured that there be a variety of enforcement 
devices to insure that all available resources 
are brought to bear on problems of discrimination.
. . . [I]t would, in our judgment, be unwise to 
diminish in any way the vareity of enforcement 
means available to deal with discrimination in 
employment. Hearings Before the Senate committee 
on Labor and Public Welfare, 91st Cong. 1st Sess., 
162-163 (1971).

This testimony was quoted by Senators Javits and Williams in
opposing the amendment. Legislative History at 1399-1400, 1404.

59



exclusive remedy which is sought to he com­
pelled by this amendment. 46/

A similar proposal was also rejected by the House Labor Com­

mittee, which expressly approved the decisions in Sanders v .
Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), and Young v . 

International Telephone and'Telegraph Co., 438 F.2d 757 (3d 

Cir. 1971) and expressed its belief that the remedies afforded

by Title VII and § 1981 "augment each other and are not mutually
22/exclusive."

The decision of this Circuit in Penn v. Schlesinger,
490 F.2d 700, 701-05 (5th cir. 1973), rev'd en banc on other 

grounds, 497 F.2d 970 (5th cir. 1974) plainly indicates that 
the district court erred in ruling that a § 1981 action is barred 

without exception by sovereign immunity. Penn specifically 
upheld § 1981 class actions under the exception for ultra vires 
official actions to sovereign immunity under Larson v. Domestic 
and Foreign Commerce Corp., 337 U.S. 682 (1949) and Dugan v. Rank, 

372 U.S. 609 (1963). See Petterway v. V. A. Hospital, supra; 
Bowers v. Campbell, 505 F.2d 1155, 1157-58 (9th Cir. 1974);

Swain v. Callaway, N.D. Ala., C.A. No. 73-H-1088-E (decided 
January 28, 1975) slip opinion at 5-6. See also Baker v. F. & F. 

Investment Co., 489 F.2d 829 (7th Cir. 1973). Nothing on the 
face of § 1981 precludes or limits class actions. The analysis

46/ Legislative History at 1512-14. 

47/ Legislative History at 78-79.

60



of Section I-A. of the brief, supra, on the dictates of 

Rule 23 and the statutory language of § 717 thus applies with equal 
force to class actions pursuant to § 1981. Moreover, the class­
wide allegation bar imposed by the lower court is particularly 
inappropriate. In Alpha Portland Cement Co. v. Reese, 507 F.2d 

607 (5th cir. 1975), a private Title VII case, the issue was 
precisely "whether the scope of a § 1981 class action, otherwise 
proper under F.R. civ. P. 23, is limited by the [Title VII 
administrative] 'like or related' standard." The court held 
that a § 1981 class action need not be restricted.

"There appears to be no reason for labeling 
§ 1981 an independent remedy for purposes 
of individual complaints but not an inde­
pendent remedy for purposes of class actions.
Section 1981 is available to plaintiffs 
without regard to Title VII limitations."
507 F.2d at 610.

The Court later added, "Even if we considered it desirable as 

a matter of policy to erect additional hurdles before a 
plaintiff bringing a § 1981 class action, it is for Congress, 
not the courts to raise them." 507 F.2d at 611 n. 5. The 
issue in the instant case of course concerns not exhaustion 
per se, but a comparable prerequisite in the course of exhaustion. 

The unanimous Supreme Court decision in Johnson v. Railway 
Express Agency. 43 USLW at 4625 reaffirms the reasoning of 

Rfeese and earlier decisions of this and other courts concerning 

the independence of § 1981 actions. See, e.g., Hill v. American 

Air Lines, Inc., 479 F.2d 1057, 1060 n. 5 (5th Cir. 1973);

61



Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir 19711
48/ * ' '

cert, denied. 415 U.S. 916 (1972).

The district court conceded that Fifth Amendment gave rise
to a cause of action, but appeared to further rule that the 

49/
Fifth Amendment was unavailable as an alternative civil action 
provision because § 717 is a preexisting remedy. The Fifth 

Amendment as a source of rights, however, has never been construed 
to be limited in this way. See Davis v. Washington, 512 F.2d 

956 (D.C. Cir. 1975). See also Bolling v. Sharpe, 347 U.S. 497 
(1953); Bivens v. Six Unknown Agents, 403 U.S. 388 (1971);
Bell v. Hood, 327 U.S. 678 (1946). In any event, the denial of 
class action treatment under § 717 by the district court neces­
sarily raises the question of the protection of the rights of 

the class to be free from employment discrimination through a 

class action under the Fifth Amendment. The Fifth Amendment like 
the other provisions under which a class action is sought to be 

maintained contains no preclusion or limit action on class actions, 
and certainly not the pleading bar at issue in the instant case.

48/ to the extent the majority's en b anc decision in Penn v. 
Schlesinger, supra, is inconsistent on exhaustion per se in 
federal employment discrimination suits, Johnson v. Railway 
Express Agency, supra, casts substantial doubt on Penn. Compare 
the dissent in Penn v. Schlesinger en banc, supra, 497 F.2d at 
981-76. ---

49/ Jurisdiction for enforcement of the Fifth Amendment was asserted 
under 28 U.S.C. §§ 1343(4), 1361, 2201 and 2202. See supra at 2.

62



The district court also conceded a potential cause of
50/

action existed under mandamus, but nevertheless asserted 
that § 717 of Title VII provides an "adequate" remedy so 

mandamus need not be considered. This is plainly erroneous as 

to the class since the district court did rule that § 717 did not 

permit the class action sought to be maintained so under the lower 
court's decision § 717 did not provide an adequate remedy for 

the class. See Penn v. Schlesinger, supra, 490 F.2d at 704-05.

The analysis set forth in Section I-A of the brief also applies 
to the Mandamus Act as to § 717, § 1981 and the Fifth Amendment 
none of whose statutory language preclude or limit class actions 
in any way.

50 / The mandamus statute was invoked to compel defendants to 
execute their duty rules in 42 U.S.C. § 1981; § 2000e et seq.; 
5 U.S.C. § 7151; E.O. 11478, 3 C.F.R. 339 (1969); and 5 C.F.R. 
§§ 713.201-.202-.271.

63



D* There Is No Effective Wav For Federal Employees To
Exhaust Claims Of Systemic, Class-wide Discrimination 
In The Administrative Process

It is axiomatic that the doctrine of administrative 

exhaustion should be applied with a regard for the particular
51/

administrative scheme at issue. With respect to the complaint

resolution process of the civil Service Commission and federal 
agencies, the futility of raising any allegation of systemic, 
classwide discrimination is evident.

Although the Mobile District in this case permitted the 

complainant to raise some class allegations, investigated them 
and purported to remedy them, the civil Service commission has 
authoritatively construed the regulations to forbid just such 
a result. 5 C.F.R. § 713.215 provides, concerning individual 

complaints, that complaints "not within the purview of section 
713.212" shall be rejected. The Civil Service Commission’s 
Appeals Review Board in a recent decision concerning NASA 
(R. 215-17) affirmed the agency's rejection of allegations of 
class discrimination as part of the individual complaint and 
ruled, "There is no provision in the Civil Service regulations 

for the processing of general allegations of discrimination

51/ McKart v. United States. 395 U.S. 185, 193 (1969); Parisi 
v. Davidson, 405 U.S. 34, 37 (1972); Weinberger v. Salfi, 43 
USLW 4985, 4990 (1975).

64



within the context of individual complaints of discrimination. 
General allegations are not within the purview of section 713.212 

of the Civil Service regulations and must be raised by an 
organization or other third party under the provisions of section 

713.251." The civil Rights commission Study at p„ 67-68 confirms 

that this construction is the prevailing practice.
When a complaint is filed, the head of the 

agency or designated official may reject any 
portion of the complaint which is of a general 
nature and not related to the individual....[The 
Commission] has consistently held...that complaints 
alleging discrimination against a particular 
class of employees, of which the complainant is 
a member, are not within the purview of the 
standard complaint procedures. 226/ (some foot­
notes omitted) i>

■■■ * * *
226/ See, for example, Appeals Review Board,
Decision in Case No. 713—74—274, Dec. 10, 1973.
The complainant alleged that an agency policy 
of controlling grade escalation, which applied 
to only two job classifications, was discrimi­
natory on the basis of sex, since virtually 
all employees in the two classifications were 
women. The complainant was an employee in one 
of the two job categories. Similarly, a Native 
American employee denied a promotion filed a 
complaint alleging discrimination against Native 
Americans in promotions; the class allegation in 
the complaint was rejected. Appeals Review 
Board, Decision in Case No. 713-74-289, Dec. 17,
1973. Since the commission does not permit the 
regular processing of class-wide complaints, 
some Federal district courts have held that a 
class action law suit is barred. See, e.g.,
Pendleton v. Schlesinger, No. 1689-73 (D.D.C.
Aug. 9, 1974). In November 1974, the NAACP 
Legal Defense and Educational Fund filed a lawsuit 
challenging the Commission's practice of severing 
class allegations from individual complaints.
Barrett v. United States civil Serv. Comm’n,
Civil No. 75-1694 (D.D.C. Nov. 20, 1974). See 
also, letter from William P. Berzak, Chairman,
Appeals Review Board, to Allen Black, NAACP Legal^ 
Defense and Educational Fund, Oct. 18, 1974, which 
affirmed that the commission does not permit 
individuals to include class discrimination 
allegations in their individual complaints.

65



Noting that class and individual claims under Title VII have 
historically been treated simultaneously in light of the fact 

that employment discrimination is by definition class discrimina­

tion, the Civil Rights Commission criticized the bifurcated 
proceedings because "severance of class issues from the individual 

claim in the administrative process can be extremely detri­
mental because it may preclude collection and introduction of 
evidence relating to the class which may be highly material to 

the individual's case." Civil Rights Commission Study at 

68-69. See supra at 43-44. Indeed, even if discrimination 
against a complainant's class is found as a result of an 
individual complaint, the Civil Service commission’s Discrimination 

Complaints Examiners Handbook at 76 (April 1973) prescribes that 

the recommended decision of the hearing examiner can only 
provide a specific remedy for the complainant as part of the 

decision.
In some instances, only one person out 

of a similarly situated group of employees 
files a complaint of discrimination. If the 
Examiner finds discrimination in such a case, 
any specific corrective action, for example, 
promotion, may be recommended only for the 
complainant. Recommended corrective action 
relevant to the general environment at the 
activity should, of course, be brought to 
the attention of the agency Director of 
Equal Employment opportunity in the recom­
mended decision or by separate memorandum 
or letter. (R. 175)

In the instant case in which there was no administrative 

finding of discrimination for the individual, the agency 

followed this rule and the purported remedy for class

66



discrimination was kept hidden from the complainant- See 

supra at 25.
The government in this case argued that the third-party 

complaint procedure under § 713.251 was available to the 

plaintiffs and had to be followed as a condition to their 

filing a class action complaint in court under Title VII.

Neither the text of the regulations nor their application 
supports the government's position. First, § 713.251 itself 
specifically states that it applies only to general allegations 
"by organizations or other third parties" that are "unrelated 

to an individual complaint of discrimination." Similarly, 
a recent explanatory Memorandum sent out by the Commission 
(R. 317-22), makes it clear that a third party complaint is 
not possible if the allegations relate to the complaints 

of any individuals.
Second, the third-party allegations procedure i9 not 

adjudicatory in nature. As described by the regulations and 

the explanatory Memorandum, its purpose is simply "to call 

agency management's attention" to allegedly discriminatory 
policies. Third-party allegations are "handled solely through 
an agency investigation," there is no right either to a hearing 

or to present evidence in any formal way. Further, the investi­

gation itself:
[I]s not expected to cover individual cases in 
sufficient depth which necessarily would result 
in findings or decisions with respect to those 
individuals. (R. 319)

67



There is no right to an appeal to the civil Service Clmmission, 
rather, only a "review" can be sought. The review is not 

conducted by the Appeals Review Board as an adjudication of rights 

rather it is handled by Regional civil Service commission 

directors and the Commission's Bureau of Personnel Management 

Evaluation. At most that review may result in a request to 

the agency to conduct a further investigation; there is no 
adjudication as such.

Third, consistent with the above, the Commission does not 
consider that the third-party allegation procedure under § 713.251 

gives rise to the right to proceed in federal court under Title 
VII. Thus, § 713.282 provides when "an employee or applicant" 

will be notified of his right to file a civil action. It refers 
only to §§ 713.215, 713.217, 713.220, 713-224, and 713.234, viz., 
those sections relating to individual complaints, and excludes 
any reference to § 713.251. In accord with § 713.282, the 
Commission does not notify a third-party complainant of a right 

to bring action when it concludes its review under § 713.251(b). 

Finally, the government’s argument here that exhaustion of 

remedies under 713.251, is a prerequisite to filing a class 
action is totally inconsistent with its position in cases where 

third-party complaints have been filed. In Swain v. Callaway, 
supra, also on appeal before this Circuit, the government's 

argument was:
5 C.F.R. 713.251 provides a method by which 

generalized allegations, unrelated to any 
individual case, may be raised to the agency 
and CSC for consideration and remedy if appro­
priate. The procedures are designed to carry

68



out the Commission’s broad responsibilities 
entrusted to it by Congress. However, the 
procedures are distinguishable from individual 
complaint procedures. See 5 C.F.R. 713.212(b).
They do not provide, and were not intended to 
provide, a vehicle through which 'organizations 
or other third parties' could gain access to 
federal courts. If the LDF relies on 5 C.F.R.
§ 713.281 to support their alleged right to 
file a civil action, such reliance is misplaced 
for this section must be read with 5 C.F.R.
§ 713.282 which provides for notification of 
right to file a civil action in any final action 
on a complaint under sections 713.215, 213.217 (sic), 
713.220 or 713.221. Those sections pertain solely 
to individual complaint procedures. Thus, it is 
concluded that Congress waived sovereign immunity 
only to allow an ’aggrieved federal employee’ to 
seek judicial review and 42 U.S.C. 2000e-16(c) 
may not be extended to organizations such as the 
LDF.

Similarly in Mean v.NASA . D.D.C. C.A. No. 74-1832, the govern­
ment opposed a class action on the ground that under the 
regulations discussed above, "Such Third Party complaints 
are administrative matters appealable to the civil Service 
Commission, and there is no right to file a civil action thereon." 
(Memorandum in Support of Motion of Defendants to Strike, to 
Sever, to Dismiss in Part, and to Remand in Part, p. 3).

In light of the fact that there is no effective way to 
raise claims of systemic, classwide discrimination, denying 
consideration of class action treatment for failure to file a 
third party complaint would clearly be improper. Federal 

employees who exhaust their available individual administrative 
remedies thus should not be penalized by having otherwise valid 

class actions precluded or limited.

69



CONCLUSION

For the above stated reasons, the Court should reverse 
the final judgment of the district court of May 2, 1975 denying 

a class action and remand this case to permit consideration of 
class action treatment.

Respectfully submitted,

J; U. BLACKS HER
Crawford, Blacksher & 
Kennedy
1407 Davis Avenue 
Mobile, Alabama 36603

CARYL P.' PRIVETT
Adams, Baker & Clemon 
Suite 1600 - 2121 Building 
Birmingham, Alabama 35203

JOSEPH P. HUDSON 
Lawyer & Hudson 
1909 30th Avenue 
Gulfport, Mississippi 39501

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
MORRIS J.’ BALLER 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant

70



CERTIFICATE OF SERVICE

I hereby certify that on this 1st day of August, 1975, 

copies of Appellant's Brief were served on counsel for the 

parties by the United States mail, air mail, special delivery, 

postage prepaid, addressed to:

Robert E. Kopp, Esq.
Judith S. Feigin, Esq.
Appellate Section, Civil Division 
United States Department of Justice 
Washington, D. C. 20530

Attorney for Appellant



Attachment B: U.S. Civil Service commission, How The complaint 
System Works (October 1973)

f

on How the Discrimination 
Complaints System Works

" N o  m o r e  s e r i o u s  t a s k  c h a l l e n g e s  o u r  N a t i o n  

d o m e s t i c a l l y  t h a n  t h e  a c h i e v e m e n t  o f  e q u a l i t y  

o f  o p p o r t u n i t y  f o r  a l l  o u r  c i t i z e n s  i n  e v e r y  

a s p e c t  o f  t h e i r  l i v e s  r e g a r d l e s s  o f  t h e i r  r a c e ,  

c o l o r ,  r e l i g i o n ,  n a t i o n a l  o r i g i n ,  o r  s e x . ”

R i c h a r d  M .  N i x o n  

P res id en t o f  th e  U n ited  States

G o v e r n m e n t ’s p r o g r a m  f o r  a s s u r i n g  e q u a l  e m p l o y ­

m e n t  o p p o r t u n i t y  o u t l a w s  b i a s  i n  a n y  p e r s o n n e l  a c t i o n  

in  t h e  F e d e r a l  c i v i l  s e n d e e .  Y e t ,  i n e v i t a b l y ,  t h e r e  w i l l  

b e  t i m e s  w h e n  s o m e  e m p l o y e e s  w i l l  e x p e r i e n c e  s i t u a ­

t i o n s  i n  w h i c h  t h e y  w i l l  b e l i e v e  t h e y  h a v e  b e e n  d i s ­

c r i m i n a t e d  a g a i n s t  b e c a u s e  o f  r a c e ,  c o l o r ,  r e l i g i o n ,  s e x ,  

o r  n a t i o n a l  o r i g i n .  S o  t h e  C i v i l  S e r v i c e  C o m m i s s i o n  

h a s  d e v e l o p e d  a s y s t e m  f o r  a s s u r i n g  t h a t  e m p l o y e e  

c o m p l a i n t s  o f  d i s c r i m i n a t i o n  a r e  g i v e n  f a i r  a n d  f a s t  

c o n s i d e r a t i o n .  T h i s  l e a f l e t  e x p l a i n s  t h e  w h y ,  w h a t ,  h o w ,  

a n d  w h e n  o f  t h a t  s y s t e m .

compEairst system
I n  o r d e r  t o  h e l p  e l i m i n a t e  b a r r i e r s  to  e q u a l i t y  o f  

o p p o r t u n i t y  in  a l l  a s p e c t s  o f  F e d e r a l  e m p l o y m e n t ,  a n  

i m p r o v e d  c o m p l a i n t  s y s t e m  h a s  b e e n  e s t a b l i s h e d  f o r  

t h o s e  w 'h o  f e e l  t h e y  h a v e  b e e n  d i s c r i m i n a t e d  a g a i n s t  

b e c a u s e  o f  r a c e ,  c o l o r ,  r e l i g i o n ,  s e x ,  o r  n a t i o n a l  o r i g i n .  

T h e  p r o c e d u r e s  p l a c e  s t r o n g  e m p h a s i s  o n  r e a c h i n g  

jr ifo rm a l  s e t t l e m e n t s  o f  c o m p l a i n t s .

T h e  c o m p l a i n t  s y s t e m  w i t h i n  e a c h  a g e n c y  c o n s i s t s  

o f  t h e  f o l l o w i n g :

E q u a l  E m p l o y m e n t  O p p o r t u n i t y  C o u n s e l o r s —  

f o r  i n f o r m a l  s e t t l e m e n t  o f  p r o b l e m s

E q u a l  E m p l o y m e n t  O p p o r t u n i t y  O f f i c e r s — f o r  

f o r m a l  c o m p l a i n t s

T h e  D i r e c t o r  o f  E E O — r e s p o n s i b l e  t o  t h e  a g e n c y  

h e a d .

A n y  e m p l o y e e  w h o  f e e l s  t h a t  h e  o r  s h e  h a s  b e e n  

d i s c r i m i n a t e d  a g a i n s t  o n  t h e  b a s i s  o f  r a c e ,  c o l o r ,  r e ­

l i g i o n ,  s e x ,  o r  n a t i o n a l  o r i g i n  m u s t  f i rs t  d i s c u s s  t h e  

p r o b l e m  w i t h  a  t r a i n e d  E q u a l  E m p l o y m e n t  O p p o r t u ­

n i t y  C o u n s e l o r  b e f o r e  m a k i n g  a  f o r m a l  c o m p l a i n t .  

A g e n c i e s  a r e  r e q u i r e d  t o  d e s i g n a t e  E E O  C o u n s e l o r s  a n d  

m a k e  t h e m  a c c e s s i b l e  to  e m p l o y e e s .  T h e  E q u a l  E m p l o y ­

m e n t  O p p o r t u n i t y  C o u n s e l o r  o p e r a t e s  i n d e p e n d e n t l y  

f r o m  t h e  f o r m a l  c o m p l a i n t  s y s t e m ,  a l t h o u g h  h e  m a i n ­

t a i n s  a l i n e  o f  c o m m u n i c a t i o n  w i t h  m a n a g e m e n t  a n d  

t h e  E q u a l  E m p l o y m e n t  O p p o r t u n i t y  O f f i c e r .  I t  is e x ­

p e c t e d  t h a t  p r o b l e m s  w i l l  b e  s o l v e d  m o r e  r e a d i l y  b y  

a v o i d i n g  l e n g t h y  f o r m a l  p r o c e d u r e s  as  m u c h  a s  

p o s s i b l e .

8a



heSp you?
T h e  C o u n s e l o r  w i l l

• L i s t e n  s y m p a t h e t i c a l l y  a n d  h e l p  y o u  s p e c i f i c a l l y  

i d e n t i f y  y o u r  p r o b l e m .

• S t u d y  y o u r  c a s e  i m p a r t i a l l y  a n d  o b j e c t i v e l y ,  

a d v i s i n g  y o u  o f  y o u r  r i g h t s .

• A n s w e r  y o u r  q u e s t i o n s  h o n e s t l y .

•  D i s c u s s  y o u r  p r o b l e m  w i t h  s u p e r v i s o r s  o r  a s s o ­

c i a t e s  w h e n  i t  is  a d v i s a b l e  a n d  i f  it is  a g r e e a b l e  

w i t h  y o u  t o  d o  so.

• A t t e m p t  t o  r e s o l v e  y o u r  p r o b l e m  i n f o r m a l l y .

T h e  E E O  C o u n s e l o r  r e p o r t s  r e g u l a r l y  t o  t h e  E q u a l  

E m p l o y m e n t  O p p o r t u n i t y  O f f i c e r  a b o u t  h i s  a c t i v i t i e s ,  

b u t  h e  w i l l  u s ?  y o u r  n a m e  o n l y  i f  h e  h a s  y o u r  p e r m i s ­

s i o n .  W h e n  a p p r o p r i a t e ,  h e  w i l l  m a k e  r e c o m m e n d a ­

t i o n s  f o r  a c t i o n  t o  t h e  E E O  O f f i c e r  w h e r e  h is  i n v o l v  

m c n t  is n e c e s s a r y  t o  r e a c h  a s o l u t i o n  t o  t h e  p r o f i l e r

Y o u  m u s t  c o n t a c t  t h e  E E O  C o u n s e l o r  w i t h i n  3 

c a l e n d a r  d a y s  o f  t h e  d a t e  o f  t h e  i n c i d e n t  t h a t  g a v e  rii 

t o  y o u r  c o m p l a i n t  o r ,  i f  it is  a p e r s o n n e l  a c t i o n ,  w i t h i  

3 0  c a l e n d a r  d a y s  c f  i t s  e f f e c t i v e  d a t e .

Y o u r  E E Q  C o u n s e l o r  w i l l  d o  h i s  u t m o s t  t o  f i n d  

s o u n d  a n d  a c c e p t a b l e  s o l u t i o n  t o  y o u r  p r o b l e m .  H e  h. 

2 1  c a l e n d a r  d a y s  f r o m  t h e  t i m e  y o u  r e p o r t  y o u r  p ro l  

l e m  t o  a t t e m p t  a n  i n f o r m a l  s e t t l e m e n t .  I f  a t  t h e  e n d  < 

t h i s  t i m e  t h e  p r o b l e m  is  n o t  r e s o l v e d ,  h e  wffll a d v i ;  

y o u  o f  y o u r  r i g h t  to  f i l e  a f o r m a l  c o m p l a i n t  w i t h  t l  

E E O  O f f i c e r  o r  w i t h  c e r t a i n  o t h e r  o f f i c i a l s  o f  t h e  a g e n c  

Y o u  h a v e  t h e  r i g h t  to  b e  r e p r e s e n t e d  a t  a n y  s t a g e  

t h e  p r e s e n t a t i o n  o f  a  c o m p l a i n t ,  i n c l u d i n g  t h e  c o u n s e

I f  y o u  d e c i d e  t o  m a k e  a  f o r m a l  c o m p l a i n t ,  y o u  h a v  

1 5  c a l e n d a r  d a y s  f r o m  t h e  d a t e  o f  y o u r  l a s t  in terv iew  

w i t h  t h e  E E O  C o u n s e l o r  i n  w h i c h  t o  f i l e  i t  i n  w r i t i n  

w i t h  y o u r  E E O  O f f i c e r ,  o r  o t h e r  d e s i g n a t e d  o f f i c i a l  o  

t h e  a g e n c y .

T h e  c o m p l a i n t  m u s t  b e  s p e c i f i c  a n d  m u s t  b e  l i m i t c  

t o  t h e  m a t t e r s  d i s c u s s e d  w i t h  t h e  E E O  C o u n s e l o r .

O n c e  a f o r m a l  c o m p l a i n t  is a c c e p t e d ,  t h e  E E O  O f f i c e  

a d v i s e s  t h e  D i r e c t o r  o f  E q u a l  E m p l o y m e n t  O p p o r t u  

n i t y ,  w h o  a s s i g n s  s o m e o n e  f r o m  a n o t h e r  p a r t  o f  y o u  

a g e n c y  to  m a k e  a n  i n d e p e n d e n t  i n v e s t i g a t i o n  i n t o  t h

9a



m a t t e r .  T h i s  m a j o r  i m p r o v e m e n t  is  t h e  r e s u l t  o f  c o n ­

t i n u i n g  e f f o r t  to  b r i n g  a b o u t  c o m p l e t e  f a i r n e s s  m  t h e  

c o m p l a i n t s  s y s t e m .

A n  i m p a r t i a l  i n v e s t i g a t i o n  is m a d e .  Y o u  a r e  g i v e n  

a c o p y  o f  t h e  i n v e s t i g a t i v e  f i le ,  a n d  t h e  E q u a l  E m p l o y ­

m e n t  O p p o r t u n i t y  O l f i c c r  a g a i n  p r o v i d e s  a n  o p p o r  

tu r i i ty  f o r  a n  i n f o r m a l  a d j u s t m e n t .

Y o u  a r c  t h e n  n o t i f i e d  o f  t h e  p r o p o s e d  d i s p o s i t i o n  

o f  y o u r  c o m p l a i n t .  I f  y o u  a r e  n o t  s a t i s f i e d ,  y o u  h a v e  

f l i c  r i g h t  t o  r e q u e s t  a h e a r i n g ,  w i t h  s u b s e q u e n t  d e c i s i o n  

b y  t h e  h e a d  o f  y o u r  a g e n c y  o r  h i s  d e s i g n e e ,  o r  y o u  m a y  

r e q u e s t  s u c h  a d e c i s i o n  w i t h o u t  a h e a r i n g .

I f  y o u  d o  n o t  a s h  f o r  c i t h e r  o n e  w i t h i n  I t  c a l e n d a r  

d a y s ,  t h e  P . l i O  O f f i c e r  o r  o t h e r  o f f i c i a l  d e l e g a t e d  t h e  

a u t h o r i t y  m a y  a d o p t  t h e  p r o p o s e d  d e c i s i o n  as  t h e  d e ­

c i s i o n  o f  t h e  a g e n c y .
I f  y o u  r e q u e s t  a  h e a r i n g ,  t h e  a g e n c y  a s k s  t h e  C i v i l  

S e r v i c e  C o m m i s s i o n  t o  a s s i g n  t h e  c a s e  t o  a n  E C O  

C o m p l a i n t s  E x a m i n e r  f r o m  a n o t h e r  a g e n c y  ( m o s t  

l i k e l y  t h e  C o m m i s s i o n ) .
T h e  C o m p l a i n t s  E x a m i n e r  r e v i e w s  t h e  f i l e  a n d  h a s  

t h e  o p p o r t u n i t y  t o  r e q u e s t  f u r t h e r  i n v e s t i g a t i o n  a n d  

d e t a i l s .  H e  s c h e d u l e s  a n d  c o n d u c t s  a h e a r i n g .  T h e  h e a r ­

i n g  is  r e c o r d e d  a n d  t r a n s c r i b e d  v e r b a t i m .  T h e  C o m ­

p l a i n t s  E x a m i n e r  m a k e s  f i n d i n g s ,  a n  a n a l y s i s ,  a n d  a 

r e c o m m e n d e d  d e c i s i o n .  T h i s  i n f o r m a t i o n  i s  f o r w a r d e d  

a l o n g  w i t h  t h e  c o m p l a i n t  f i l e  t o  t h e  a g e n c y  h e a d  o r  h is  

d e s i g n e e ,  w h o  is  u s u a l l y  t h e  D i r e c t o r  o f  E q u a l  E m p l o y ­

m e n t  O p p o r t u n i t y .

T h e  a g e n c y  h e a d  o r  h i s  d e s i g n e e  t h e n  m a k e s  t h e  

f i n a l  d e c i s i o n ,  b a s e d  o n  t h e  f i l e ,  g i v i n g  y o u ,  t h e  c o m ­

p l a i n a n t ,  a  c o p y  o f  t h e  C o m p l a i n t s  E x a m i n e r  s r e p o r t .  

I f  t h e  a g e n c y  h e a d  r e j e c t s  o r  m o d i f i e s  t h e  C o m p l a i n t s  

E x a m i n e r ' s  r e c o m m e n d e d  d e c i s i o n ,  h e  m u s t  g i v e  

r e a s o n s  f o r  d o i n g  so .

appeal or 
civil action

I f  y o u  a r e  d i s s a t i s f i e d  w i t h  t h e  a g e n c y ' s  d e c i s i o n  o n  

y o u r  c o m p l a i n t ,  y o u  h a v e  a r i g h t  t o  f i l e  a n  a p p e a l  w i t h  

t h e  C i v i l  S e r v i c e  C o m m i s s i o n ' s  B o a r d  o f  A p p e a l s  a n d

R e v i e w  ( w i t h i n  1 5 d a y s )  o r  y o u  m a y  f i l e  a  c i v i l  a c t i o n  

i n  a U S .  D i s t r i c t  C o u r t  ( w i t h i n  3 0  d a y s ) .  I f  y o u  

a p p e a l  t o  t h e  B o a r d  o f  A p p e a l s  a n d  R e v i e w  a n d  a r e  

d i s s a t i s f i e d  w i t h  t h e  B o a r d ’s d e c i s i o n  o n  y o u r  a p p e a l ,  

y o u  m a y  s t i l l  f i l e  a  c i v i l  a c t i o n  ( w i t h i n  3 0  d a y s  o f  

r e c e i v i n g  t h e  B o a r d ' s  d e c i s i o n ) .

Y o u  a l s o  h a v e  t h e  r i g h t  t o  f i l e  a  c i v i l  a c t i o n  i f  y o u  

d o  n o t  r e c e i v e  a n  a g e n c y  d e c i s i o n  w i t h i n  1 8 0  d a y s  

a f t e r  y o u  f i l e  a f o r m a l  c o m p l a i n t ,  o r  i f  y o u  d o  n o t  

r e c e i v e  a d e c i s i o n  f r o m  t h e  B o a r d  o f  A p p e a l s  a n d  

R e v i e w  w i t h i n  1 8 0  d a y s  a f t e r  y o u  f i l e  a n  a p p e a l .

summary
T h e  U n i t e d  S t a t e s  G o v e r n m e n t  p l e d g e s  e q u a l i t y  o f  

o p p o r t u n i t y  t o  a l l  i ts  e m p l o y e e s .  T h i s  c o m m i t m e n t  h a s  

b e e n  s t r e n g t h e n e d  b y  a c t i o n  p r o g r a m s  t o  m e e t  t h e  g o a l  

o f  e q u a l  o p p o r t u n i t y  i n  a l l  a s p e c t s  o f  F e d e r a l  e m p l o y ­

m e n t .  P r o g r e s s  t o w a r d  e q u a l  o p p o r t u n i t y  h a s  b e e n  

m a d e  i n  r e c e n t  y e a r s .  Y o u ,  t h e  F e d e r a l  e m p l o y e e ,  a r c  

i n v i t e d  t o  m e e t  t h e  ' e x c i t i n g  c h a l l e n g e  o f  w i d e l y  e x ­

p a n d i n g  o p p o r t u n i t i e s .  Y o u r  a b i l i t i e s ,  y o u r  i d e a s ,  y o u r  

c o m m i t m e n t ,  c a n  m a k e  t r u e  e q u a l i t y  o f  o p p o r t u n i t y  a 

r e a l i t y .

inform ation 
in this 
leaflet

T h e  p r e c e d i n g  i n f o r m a t i o n  i s  g e n e r a l  i n  n a t u r e .  I f  

m o r e  s p e c i f i c  i n f o r m a t i o n  is n e e d e d ,  y o u r  E F . O  C o u n ­

s e l o r  o r  E E O  O f f i c e r  w i l l  a s s i s t  y o u  i n  o b t a i n i n g  i t .

U . S .  C I V I L  S E R V I C E  C O M M I S S I O N  

W a s h i n g t o n ,  D . C .

F E D  F A C T S  1 0  

O ctober 1973
U 5 . COVERNMCWT PR INTING O fT lC I i 1 9 7 ) - 0 - 3 2 2 - l3 4 _______________

For sale by th e  S uperintendent  of  D«»cuments 
U.S. Government  Pr int ing Office, Washington.  D C. 2040'J 

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' 10a



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 75-2261

NORMAN R. MCLAUGHLIN, etc.,

Appellant,

vs.

HOWARD E. CALLAWAY, et al.,

Appellees.

On Appeal From The United States District Court 
For The Southern District Of Alabama 

Southern Division

REPLY BRIEF FOR APPELLANT

J. U. BLACKSHER
Crawford, Blacksher & 
Kennedy
1407 Davis Avenue 
Mobile, Alabama 36603

CARYL P. PRIVETT
Adams, Baker & demon 
Suite 1600 - 2121 Building 
Birmingham, Alabama 35203

JOSEPH P. HUDSON 
Lawyer & Hudson 
1909 30th Avenue 
Gulfport, Mississippi 39501

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
MORRIS J. BALLER 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant



"TABLE OF CASES

Page

Albemarle Paper Company v. Moody, __ U.S. __,
45 L. Ed. 2d 280 (1975) ..............................  11,12

Alexander v. Gardner-Denver Corp., 415 U.S.
36 (1974)     5,17

Bolling v. Sharpe, 347 U.S. 497 (1953) ..............  14

Brown v. General Services Administration, 507 F.2d 
1300 (2nd Cir. 1974), cert. granted, 43 U.S.L.W.
3625 (May 27, 1975) .........................   16

Caro v. Schultz, __ F.2d __, 10 EPD ^[10,381
(Sept. 3, 1975)   5

Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th 
Cir. 1970) ,' affirming per curiam, 295 F. Supp.
128 (N.D. Miss. 1969), cert, denied, 400 U.S.
951 (1970)...........................................  8

Chisholm v. U.S. Postal Service, 9 EPD at p„ 7948.... 8,16

Columbia v. Carter, 409 U.S. 418 (1973) ............. 15

Dillon v. Bay City Construction Co., 512 F.2d 801
(5th Cir. 1975) ..................................... 7

Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975).... 5

Drew v. Liberty-Mutual Ins. Co., 480 F.2d 69
(5th Cir. 1973) ..................................... 4

Eastland v. T.V.A., 9 EPD 5 9927, p. 6882 (N.D.
Ala. 1975) ......................................   2

Ellis v. NARF, N.D. Cal. No. C-73-1794 WHO, slip
opinion at 3-7 (September 22, 1975) .......... 2,8,13,15

Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975)......  9

Hackley v. Johnson, 360 F. Supp. 1247 (DDC 1973),
rev'd sub nom. Hackley v. Roudebush, __ F.2d
__ (D.C. Cir. No. 73-2072)..........................  2,5

—  1  -



PAGE

Handy v. Gayler, 364 F. Supp. 676 (D. Md. 1973) ....  2

Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir.
1973) ............................. .................. 7,8

Hurd v. Hodge, 334 U.S. 24 (1948) ...................  16

Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir.
1968) ...............................................  8,12

Johnson v. Railway Express Agency, __ U.S. __,
44 L.Ed. 2d 295 (1975) .............................. 17,18

Jones v. Alfred E. Mayer Co., 392 U.S. 409 (1968)___  17

Lance v. Pluiraner, 353 F.2d 585 (5th Cir. 1965)......  10,11

Long v. Sapp, 502 F.2d 34 (5th Cir. 1974) .... *.....  8

Miller v. Saxbe, 9 EPD 5 10,005 (DDC 1975)........... 16

Morton v. Mancari, 417 U.S. 535 (1974).......... 5,13,16,17

Oatis v. Crown Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968) .................................  8,12,13

Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975)___  4,5,12,14

Predmore v. Allen, 10 EPD 5 10,360, p. 5079
(D. Md. 1975) ....................................... 2,8

Richerson v. Fargo, 8 EPD 5 9751, p. 6135 (E.D.
Pa. 1974)............................................  2

Robinson v. Klassen, 9 EPD 5 9954 (E.D. Ark. 1974)... 16

Sampson v. Murray, 415 U.S. 61 (1974) ................. 5

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th
Cir. 1970) ..........................................  17

Sosna v. Iown, 419 U.S. 393 (1975) ....................  8

Sperling v. United States, 515 F.2d 465 (3rd Cir.
1975)   5,11

Sullivan v. Little Hunting Park, 396 U.S. 229
(1969) ..........................................   17

Table of Cases (continued)



iTable of Cases (continued)

PAGE

Swain v. Callaway, Fifth Circuit No. 75-2002 .......  6,13

Sylvester v. U.S. Postal Service, 9 EPD 5 10,210,
p. 7936 (S.D. Tex. 1975) ........................... 2,7

Tillman v. Wheaton-Haven Rec. Assoc., 410 U.S.
431 (1973) ..........................................  16

United States v. Allegheny-Ludlum Industries, Inc.,
517 F.2d 826 (5th Cir. 1975)   13

Weinberger v. Salfi, __ U.S. __, 45 L.Ed.2d 522
(1975)     9,10,11,12

/

iii



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 75-2261

NORMAN R. MCLAUGHLIN, etc.,

Appellant,

vs.

HOWARD H. CALLAWAY, et al..

Appellees.

On Appeal From The United States District Court 
For The Southern District Of Alabama 

Southern Division

REPLY BRIEF FOR APPELLANT

This reply brief will respond point by point to a number 

of arguments made in appellees' brief. Initially, however, 

exactly what the government's position on federal Title VII 

class actions is should be made clear. The government has now 

abandoned the argument that class actions are permissible in 

federal employment discrimination litigation generally, but 

improper in the instant case because the plaintiff failed to



bring an "administrative class action" through third party-

complaint procedures pursuant to 5 C.F.R. § 713.251. This was

specifically argued by the government and was the reason the

court below precluded a class action.

The regulations enacted pursuant to § 2000e-16 
contemplate, and provide procedures for, the 
maintenance of a class action in the administrative 
process. 5 C.F.R. § 713.251. There has been no 
attempt to pursue these procedures by the plaintiff 
or any other member or representatives of the class.
The Fifth Circuit has recently expressed, in clear 
and definite terms, the necessity of exhausting 
administrative remedies under the 1972 Amendment to 
Title VII before bringing an action in court.
Penn v. Schlesinper, supra ( R .  126-27) (A. 1,1 ~ ). 1/

I i2-
The Civil Division now concedes that the government was wrong,

. . Vtor reasons consistently advanced and documented by plaintiff,

1/ The government has argued against class actions because the 
"administrative class action" remedy was not exhausted in other 
district courts throught the nation. See, Hacklev v. Johnson. 360 
F. Supp. 1247, 1254 n. 11 (DDC 1973); Handy v. Gayler. 364 F. Supp. 
676, 679 (D. Md. 1973); Pointer v. Sampson, 7 EPD 5 9326, p. 7509 
(DDC 1974); Evans v. Johnson. 7 EPD 5 9351, p. 7590 (C.D. Cal. 1974); 
Richerson v. Fargo, 8 EPD 5 9751, p. 6135 (E.D. Pa. 1974); Eastland 
v. T.V.A., 9 EPD 5 9927, p. 6882 (N.D. Ala. 1975); Sylvester v. U.S.
Postal_Service, 9 EPD 5 10,210, p. 7936 (S.D. Tex. 1975); Predmore
v. Allen, 10 EPD 10,360, p. 5079 (D. Md. 1975); Ellis - v. NARF,
N.D. Cal. No. C-73-1794 WHO, Slip opinion at 3-7 (September 22,
1975) (Opinion attached to brief as Appendix A).

2/ R .  170-241, 259-62, 279-307 and 315-22 (A. ).
s ^ j  2_ 3 / — 3̂
•7 .3 S'- ‘f  ci

—  (o' 7.

2



but hitherto opposed by government lawyers.

As interpreted by the Civil Service Commission, 
the regulations do not permit filing of a class 
action administrative complaint. 5 C.F.R. 713.251 
is designed to permit third party complaints and 
not class action complaints. 5 C.F.R. 713.251 is 
not a substitute for the filing of individual 
complaints, and plaintiff could not use 5 C.F.R.
713.251 to prosecute his individual claim on behalf 
of a class. Rather, it is contemplated that groups,
(e.g., civil rights organizations) or other third 
parties will use 713.251 to prosecute "general 
allegations * * * which are unrelated to an individual 
complaint of discrimination." Appellees' Brief at 13.

It is then argued that the holding of the court below nevertheless

should be affirmed on a ground other than that relied on by the

district court. Id. The Civil Division, of course, fails to -

admit that the government has been smoked out on its prior

inconsistent erroneous position and, more importantly, that the

principal ground on which affirmance is sought, that class actions

are statutorily precluded, was necessarily rejected by the
3/

district court.

The statutory preclusion argument now made by the Civil 

Division is that every potential class member must file an 

"individual" administrative complaint pursuant to 5 C.F.R. § 713.211 

et seq., and obtain a final decision on his individual charges 

before any joint action could be brought. Class actions pursuant

3/ If the government had taken its present position —  that there 
is no administrative vehicle for raising class claims —  below, 
the district court might have permitted a class action. The court 
specifically noted the absence of an administrative record as to 
the class claims, which absence would require a full trial de novo 
(R. 127; A. ''2.). If the court had known that there was no such 
record because one could not be made, this factor would not have 
influenced its decision.



to Rule 23, Fed. R. Civ. Pro. in which "one or more members of 

a class may sue . . .  as representative parties on behalf of all," 

the principal vehicle for judicial vindication of civil rights 

guarantees, would simply be eliminated from the arsenal of 

weapons to enforce equal employment opportunity available to 

federal employees. The consequence would be to effectively 

exempt the federal government, the nation's largest employer, 

from judicial scrutiny of classwide, systemic discrimination to 

which all other employers are subject and the federal government 

has long advocated with respect to all other employers.

This in fact is the Civil Division's basic proposition with 

regard to the class action question and other issues such as trial 

de novo, viz., that the law of employment discrimination developed 

by the courts in Title VII cases involving private litigants does 

not apply to suits against the federal government. Unfortunately 

for the government, this Court has already squarely rejected this 

contention in Parks v. Dunlop, 517 F .2d 785 (5th Cir. 1975). There, 

the Civil Division argued that district courts lacked jurisdiction 

to grant Rule 65 preliminary injunctions to federal employees who 

had not fully exhausted administrative remedies. It urged that 

Drew v. Liberty-Mutual Ins. Co., 480 F.2d 69 (5th Cir. 1973), did 

not apply because, "The Court's reasoning . . . applies only to 

discrimination by private employers . . . Brief for Appellant

in No. 75-1786, pp. 17-18. The government also argued generally

4



in Parks, that Alexander v. Gardner-Denver Corp., 415 U.S. 36 (1974),

and other Title VII decisions were inapplicable because they 

involved private employers. instead, Sampson v. Murray, 415 U.S.

61 (1974) governed. See, Brief for Appellant in No. 75-1786, 

at pp. 10-19.

This Court rejected these arguments and squarely held that, 

"The intent of Congress in enacting the 1972 amendments to that 

Act [Title VII] extending its coverage to federal employment was 

to give those public employees the same rights as private employees 

enjoy," 517 F.2d at 787, and distinguished Sampson on that ground. 

The Supreme Court has also so held with regard to substantive 

law in Morton v. Mancari, 417 U.S. 535, 547 (1974) the District 

Of Columbia Circuit has so held with regard to both substantive 

law and remedies in Douglas v. Hampton, 512 F.2d 976 (D.C. Cir.

1975), and the Third and Seventh Circuits with regard to the right 

to plenary judicial hearing and a trial de novo in Sperling v. 

United States, 515 F.2d 465 (3rd Cir. 1975) and Caro v. Schultz,

__ F.2d __, 10 E.P.D. 5 10,381 (Sept. 3, 1975). Most devastating

to the government's position is the reversal by the District of 

Columbia Circuit, on September 29, 1975, of Hackley v. Johnson,

360 F. Supp. 1247 (D.D.C. 1973)> rev'd sub nom., Hackley v.

Roudebush, __ F.2d __ (D. C. Cir;. No. 73-2072). In Hackley, the

Court of Appeals held that "Congress.intended to bestow on federal 

employees the same rights in District Court —  including the right

5



to a trial de novo —  which it had previously mandated for

private sector employees. . . . "  Slip Opinion, p. 1835. The 

Civil Division should not be permitted to frustrate and nullify 

the purposes of a statute whose enactment the Civil Service 

Commission opposed without success in 1972 because it was 

"unnecessary."

1. The Civil Division first contends that plaintiff fails

to meet the typicality requirement of Rule 23 (a) (3). Brief for

Appellees at 15-19. At best, the issue is premature. Because

the court below ruled that a class action was precluded since no

exhaustion of "administrative class action" procedures occurred,

the question of Rule 23(a) prerequisites was never reached. The

government's present statutory preclusion position of course makes

the issue no less premature. Indeed, the government has admitted

that Rule 23(a) should not be considered for the first time in

this Court in identical circumstances in Swain v. Callaway,

Fifth Circuit No. 75-2002.

These questions are particularly well-suited for 
district court to rule upon in the first instance, 
and since the district court denied the class 
aspects of this suit on jurisdictional grounds 
without reaching those issues, we believe it 
inappropriate to argue them for the first time 
in this Court. Appellee's Brief at 51 n. 30.

The Civil Division argues that the district court's decision 

shows that typicality was not satisfied. The court's decision, 

however, did not extend to an assessment or determination of the

6



kinds of discrimination suffered by the class, or to any of the 

other Rule 23 prerequisites since the Court based its decision
4/

on a failure to exhaust. in response to government motions, 

the court denied any discovery as to discrimination against the 

class so that an adequate factual basis for considering any Rule 

23 issue was absent. Dillon v. Bay City Construction Co., 512 

F.2d 801, 804 (5th Cir. 1975); Huff v. N.D. Cass Co.. 485 F.2d 

710, 713 (5th Cir. 1973) (en banc); Sylvester v. U. S. Postal 

Service. 9 EPD 5 10,210 at p. 7936 (S.D. Tex. 1975). Indeed, to 

the extent the available record does speak to class issues, it 

shows that many of the salient employment policies the court 

below found discriminatory in Mr. McLaughlin's case are in fact 

generally applicable to black and other minority persons. Brief 

for Appellant at 13-15.

The government's whole Rule 23(a) argument demonstrates 

a profound misunderstanding of the nature of employment discrimi­

nation and of the law of Title VII. It is clear that in suits

4/ The discussion in the government's brief quoting the district 
court may erroneously give the impression that the court passed 
on typicality. The language quoted at page 16-17 of the appellee's 
brief, however, is from the Court's decision on the merits. That 
decision did not purport to be a consideration of Rule 23 criteria, 
since the court had long before ruled out a class action.

7



challenging across-the-board employment discrimination, as here,

"While it is true . . . that there are different
factual questions with regard to different employees 
it is also true that the ’Damoclean threat of a 
racially discriminatory policy hangs over the racial 
class [and] is a question of fact common to all 
members of the class.1 Hall v. Werthan Bag corp.,
M.D. Tenn. 1966, 251 F. Supp. 184," Johnson v.
Georgia Highway Express, Inc., 417 F.2d 1122, 1124. 5/

Long v. Sapp, 502 F.2d 34 (5th Cir. 1974); Ellis v. NAFF, slip

opinion at 8-11, N.D. Cal. No. C-73-1794 (Sept. 22, 1975) (attached

to this Brief as Appendix A); Predmore v. Allen, supra, 10 EPD

at p. 5080; Chisholm v. U. S. Postal Service, supra, 9 EPD at p.

7948. The plaintiff in such suits is attacking a range of

employment practices that have the effect of discriminating

against blacks as a class "by stigmatization and explicit or

implicit application of a badge of inferiority." Sosna v. Town,
§/

419 U.S. 393, 413-14 n. 1 (1975) (White, J., dissenting).

5/ See also Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th 
Cir. 1968); Jenkins v. United Gas Corp., 400 F .2d 28 (5th Cir. 1968); 
Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th Cir. 1970), affirming 
per curiam, 295 F. Supp. 128 (N.D. Miss. 1969), cert, denied, 400 
U.S. 951 (1970); Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973) 
(en banc) .

6/ Justice White, who dissented from the majority's application 
of established Title VII law to class action" generally, went on 
to point out that Congress had given persons aggrieved by such 
systemic discrimination "standing . . .  to continue an attack upon 
such discrimination even though they fail to establish injury to 
themselves in being denied employment unlawfully."

8



2. The government next contends that a "finality-

requirement of 42 U.S.C. § 2000e-16 precludes class action

treatment under Weinberger v. Salfi, __ U.S. __, 45 L.Ed.2d

522 (1975). Erief for Appellees at 20-23. The Civil Division, 

however, is erroneous at every step in its analysis. First,

§ 2000e-16 does not "specifically provide that a civil suit may 

be filed only after 'final action'." as the defendants claim 

(Brief for Appellees, p. 21). To the contrary, § 2000e-16 

"specifically provides" that federal employees can file a Title 

VII suit after 180 days from the filing of an administrative
V

charge when there has been a "failure to take final action."

See, Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975). Indeed, 

the instant case is just such an action," as the district court 

noted, it was filed some 422 days after the administrative complaint 

was filed, and was grounded solely on the lack of final agency 

action within 180 days. Appellee's brief itself concedes both

7/ The full text of § 2000e-16(c) is:

(c) Within thirty days of receipt of notice of 
final action taken by a department, agency, or unit 
referred to in subsection (a) of this section, or by 
the Civil Service Commission upon an appeal from a 
decision or order of such department, agency, or unit 
on a complaint of discrimination based on race, color, 
religion, sex or national origin, brought pursuant to 
subsection (a) of this section. Executive Order 11478 
or any succeeding Executive orders, or after one 
hundred and eighty days from the filing of the initial 
charge with the department, agency, or unit or with 
the Civil Service Commission on appeal from a decision

9



that federal employees can file civil actions without "finality," 

at p. 4, and that the instant case was brought without "final 

decision," at p. 8 .

Second, the syllogism the Civil Division derives from Salfi 

that the "simple requirement" of finality in a civil action 

statute necessarily precludes class actions is nonsense. Whether 

an administrative decision must be "final" is not even remotely 

preclusive. Compare Lance v. Plummer, 353 F.2d 585, 591 (5th Cir. 

1965). Rather Salfi stands for the limited proposition that in 

a Social Security Act suit brought under the particular restric­

tions of 42 U.S.C. § 405(g) each class member must have been a

"party" to the administrative proceedings and have received a
8/

final decision therein. Salfi is not analogous to federal

7/ (Continued)

or order of such department, agency, or unit until such 
time as final action may be taken by a department, agency, 
or unit, an employee or applicant for employment, if 
aggrieved by the final disposition of his complaint, or 
by the failure to take final action on his complaint, may 
file a civil action as provided in section 2000e-5 of this 
title, in which civil action the head of the department, 
agency, or unit, as appropriate, shall be the defendant.

8/ As to class members, however, the complaint is
deficient in that it contains no allegations 
that they have even filed an application with the 
Secretary, much less that he has rendered any decision, 
final or otherwise, review of which is sought. The 
class thus cannot satisfy the requirements for juris­
diction under 42 U.S.C. § 405(g). 45 L.Ed.2d at 538.

10



employee Title VII actions because similar language is absent 

from §§ 717 (c) and (d) and the general § 706 civil action pro­

visions incorporated by § 717 (d) .

Third, the government fails to explain why Salfi would not 

also bar a class action in private employee litigation brought 

tinder § 2000e-5 (f) (1). Just as § 2000e-16, that provision speaks 

only of "the person aggrieved" bringing a civil action after filing 

an administrative complaint. In fact, § 2000e-5 contains an 

additional requirement, viz., a notice of the right to sue 

addressed to "the person aggrieved." Nevertheless, that single 

person can represent all past, present, or would-be employees by 

a class action under Title VII even though they have not filed 

complaints themselves, as the Supreme Court held the
9/

day before it decided Salfi. In short, the attempt to rule out 

a class action by pointing to the "person aggrieved" language 

must be rejected as it was in Lance v. Plummer, supra.

Fourth, the rejected Erleborn amendment to § 706, containing 

language found preclusive in Salfi, is obviously "pertinent."

The rejection of the Erleborn amendment shows why Salfi supports 

appellant's position. Brief for Appellant at 51-56. The Civil 

Division's argument that the Erleborn amendment is not an indica­

tion of Congressional intent because it is limited to § 706 actions 

brought by private or state and local government employees simply 

ignores § 717(d)'s express incorporation of the general § 706

framework for federal employee suits. Compare Sperling v. U.S.A.,
17 Albemarle Paper Co. v. Moody. __ D.S. __, 45 L.Ed.2d 280 (1975).

11



515 F .2d 465, 474 et seq. (3rd Cir. 1975). in any event, nothing 

in the legislative history indicates that the rejection of the 

Erleborn amendment is not probative of Congressional intent with 

respect to class actions by all employees covered by Title VII.

3. The Civil Division also contends that while Salfi, 

a Social Security Act case, is applicable to determine the 

incidents of a § 717 action, private Title VII decisions approving 

class actions are totally inapplicable. As noted above, this 

Court's decision in Parks v. Dunlop, supra, rejected such an argument. 

Moreover, on its face, this contention is wrong. The Supreme Court's

recent decision in Albermarle Paper Co. v. Moody,   U.S.  , 45

L.Ed.2d 280 (1975) and this Circuit's decisions in Oatis v. Crown 

Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968 and Jenkins v. United 

Gas Corp., 400 F .2d 28 (5th Cir. 1968), construe the general § 706 

civil action framework incorporated for federal sector actions 

in § 717(d) and are thus directly applicable. As appellant's brief 

points out, Congress even specifically cited Oatis and Jenkins in 

rejecting the Erleborn amendment.

The particular claim that, because the CSC has "plenary" 

remedial power while the EEOC does not, Oatis v. Crown Zellerbach 

Corp., 398 F.2d 496 (5th Cir. 1969) is inapplicable is without 

merit. Actual CSC administrative performance indicates that the 

reasoning of Oatis with respect to the futility of requiring 

identical administrative claims applies with particular force to

12



federal administrative remedies. The Civil Service Commission's 

complaint resolution process has been subjected to intense criticism 

by Congress, see Morton v. Mancari, 417 U.S. at 547; the courts, 

see e .g ., Ellis v. NARF, supra, and the U.S. Commission on Civil 

Rights in The Federal Civil Rights Enforcement Effort - 1974, Vol.

V (July 1975) (Relevant excerpts have been reproduced and attached 

to the Reply Brief for Appellants in Swain v. Callaway (5th Cir. No. 

75-2002). The very commitment of the Civil Service Commission to 

enforce equal employment opportunity must be questioned. The Civil 

Rights Commission Report found, for instance, that the vaunted 

"plenary power" (Brief for Appellees, p. 25) of the CSC was 

exercised so feebly in fiscal year 1973 that retroactive relief, 

including back pay, was provided to 22 government employees, or 

3% of 778 cases (pp. 84-85). The EEOC, in contrast, and in spite 

of the supposed deficiencies in enforcement powers relied upon by 

appellees in their brief (pp. 24-25), in the same fiscal year was 

able to obtain back pay relief for 22,000 employees in the telephone 

industry alone, in an amount of $45,000,000. (Equal Employment 

Opportunity Commission, Eighth Annual Report for FY 1973, p. 24.)

See also, United States v. Allegheny-Ludlum Industries, Inc., 517 

F.2d 826, 834-35, 852, n. 29 (5th Cir. 1975).

It is further claimed that Oatis is inapplicable because 
"class actions are unnecessary when injunctive relief is sought 
against a governmental defendant because of the presumption that

13



the government will not continue activities which have been 

declared unconstitutional or discriminatory." It is far too 

late in the day to set this forth as a general proposition much 

less to contend its validity in the instant case. Racial 

discrimination in the federal service has been illegal under the 

Fifth Amendment at least since Bolling v. Sharpe, 347 U.S. 497 

(1953). As the "Department of the Army Special Study of Equal 

Employment Opportunity in the State of Alabama," conducted in 

September-October 1972, found, after examining the range of dis­

criminatory employment practices this class action seeks to 

eliminate, "The Mobile District has a very long way to go to have 

a viable program in equal employment opportunity."

4. The Civil Division concedes that nothing in the legisla­

tive history affirmatively prohibits federal Title VII class 

actions and appears content merely to argue that legislative 

history is "essentially silent." Brief for Appellees at 29-32. 

Assuming arguendo that legislative history spoke only to § 706 

class actions brought by private or state and local government 

employees, § 717(d) would make it applicable to federal Title VII 

actions. See, Parks v. Dunlop, supra. Assuming that the legis­

lative history only spoke of § 706 class actions, even if § 717 

did not expressly refer to § 706, the legislative history would 

still be highly probative of general Congressional intent in 

favor of class actions. Indeed, even if the legislative history 

had been absolutely silent on any right to bring class actions at

14



all. Rule 23 of the Federal Rules would still require them.

The claim that legislative history provides no support for 

class action treatment of federal employment discrimination 

litigation, however, is also in fact erroneous. Appellant's 

brief at 30-32 demonstrates that Congress wanted the Civil Service 

Commission and federal agencies to uproot classwide, systemic 

discrimination. See Ellis v. NARF, supra, slip opinion at 6-7,

12. The appellees have admitted that the Civil Service Commission has 

failed to provide any administrative avenue to correct systemic 

discrimination. An acceptance of their argument that there is 

no judicial avenue either would result in total frustration of the
X.CY

main reason for enacting § 717.

5. Leaving aside its exclusivity argument, see infra, the 

Civil Division does not contest at all appellant's assertions 

concerning the district court's erroneous ruling on the propriety 

of class action treatment of claims arising under the Fifth 

Amendment and a suit in the nature of mandamus under 28 U.S.C.

§ 1361. As to class action treatment of suits brought pursuant to 

to 42 U.S.C. § 1981, the Civil Division apparently acknowledges 

that the Supreme Court has "recognized a federal employee's right 

to Section 1981 relief," citing District of Columbia v. Carter, 409

lj/ As to the commentary on legislative history on pages 53-54 
of appellant's brief, set forth in Brief for Appellees at 31-32, 
to the extent it is cogent, it appears to conflict with the Supreme 
Court's analysis in Albemarle Paper Co. v. Moody, 45 L.Ed.2d at 
294, n. 8.

15



U.S. 418 (1973), (see also Hurd v. Hodge, 334 U.S. 24 (1948);
U /

Tillman v. Wheaton-Haven Rec. Assoc., 410 U.S. 431 (1973),) 

adding the caveat that "it is far from clear" in this Circuit.

Brief for Appellees at 36, n. 14. Appellant agrees with the 

former proposition, but disagrees with the latter for reasons 

stated in the Brief for Appellant at 60-62. Thus, the government's 

whole case as to class actions to enforce rights guaranteed by 

civil action provisions other than § 717 rests on the exclusivity 

of § 717 of Title VII.

6 . As to exclusivity, the Civil Division adopts the position 

of the Second Circuit in Brown v. General Services Administration, 

507 F .2d 1300 (2nd Cir. 1974), cert, granted, 43 U.S.L.W. 3625 

(May 27, 1975). Brief for Appellees at 33-37. First, it should be 

noted that the Civil Division does not and cannot assert that 

§ 717 on its face repeals all preexisting remedies for federal 

employment discrimination, nor that legislative history supports 

such a theory. Indeed, it is not even asserted that the § 717 

civil action scheme is in apparent substantive conflict with 

alternative remedies such as § 1981 as was the case in Morton 

v. Mancari, supra, concerning the Indian Reorganization Act of * 9

11/ Cases in which federal employee actions under 42 U.S.C. § 1981 
have been recognized include Chisholm v. U.S. Postal Service, supra,
9 EPD at p. 7947; Miller v. Saxbe, 9 EPD 1[ 10,005 (DDC 1975) (Gesell, 
J.); Robinson v. Klassen, 9 EPD 5 9954 (E.D. Ark. 1974).

16



1934 which established an employment preference for qualified 

Indians in the Bureau of Indian Affairs. Nothing the Civil 

Division argues, a fortior-ari. meets the "cardinal rule that . . .

repeals by implication are not favored." Morton v. Mancari, 

supra. 417 U.S. 535, 549.

Second, the argument that it makes no sense for Congress 

to enact a comprehensive Title VII legislative scheme and then 

allow alternative remedies of which Congress may not have been 

aware has already been rejected by the Supreme Court with regard 

to 42 U.S.C. § 1982 and Title VIH of the Civil Rights Act of 1968; 

Jones v. Alfred E. Mayer Co., 392 U.S. 409, 413—417 (1968); 

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) and with 

respect to 42 U.S.C. § 1981 and Title VII itself, Johnson v.

Railway Express Agency, __ U.S. __, 44 L.Ed02d 295 (1975). See

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970). 

Moreover, the notion that because civil rights statutes, "although 

related, and although directed to most of the same ends, are 

separate, distinct and independent," Johnson v. Railway Express 

Agency, 44 L.Ed.2d at 302, they are therefore exclusive remedies, 

is just the opposite of prevailing law. Alexander v. Gardner— 

Denver Co., 415 U.S. 36, 47 (1974).

Third, the coverage of § 717 is also clearly not coextensive 

with that of § 1981 and other pre-existing legal remedies. The

17



and as tostatutes differ both as to relief available
hJemployees covered. These earlier statutes provide for relief

not necessarily available under Title VII. For these reasons 
it is apparent that § 717 and pre-existing statutes complement 
one another and provide a diverse arsenal of remedies for an

12/

aggrieved federal employee.

J. U. BLACKSHER
Crawford, Blacksher & 
Kennedy
1407 Davis Avenue 
Mobile, Alabama 36603

CARYL P. PRIVETT
Adams, Baker & demon 
Suite 1600 - 2121 Building 
Birmingham, Alabama 35203

Respectfully submitted,

1909 30th Avenue 
Gulfport, Mississippi 39501

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
MORRIS J. BALLER 
BILL LANN LEE 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant

12/ Under § 1981 an employee would be entitled in appropriate
circumstances to punitive or compensatory damages. Johnson v. 
Railway Express Agency, 44 L.Ed.2d at 30. Title VII's two year 
limit action on back pay, if applicable to the federal government, 
would not restrict the back pay available under any of the pre­
existing remedies. On the other hand, § 717 provides for awards of 
attorneys' fees, court appointed counsel, and waiver of court costs.
12/ § 717 does not cover aliens employed outside the limits of the
United States, employees of the Government Accounting Office, and 
persons in the Government of the District of Columbia and the 
legislative and judicial branches who are not in the competitive 
service.

18



CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of October, 1975, 

copies of the Reply Brief for Appellant was served on counsel 

for the parties by the United States mail, air mail, special 

delivery, postage prepaid, addressed to:

Robert E. Kopp, Esq.
Judith S. Feigin, Esq.
Appellate Section, Civil Division 
United States Department of Justice 
Washington, D. C. 20530

19



UNITED STATES DISTRICT COURTIS.?,ft 7%
NORTHERN DISTRICT OF CALIFORNIA^ F fc?!?7

'̂ SCo °L̂ T

JOSEPH L. ELLIS, et al., )
)

Plaintiffs, )
)

vs. ))
NAVAL AIR REWORK FACILITY, )
et al., )

)-Defendants. )
)--—  j

ETTA B. SAUNDERS, individually )
and on behalf of all others )
similarly situated, )

Plaintiff, )
)

vs. ‘ )
)

JAMES W. MIDDENDORF, II, et al., )
)Defendants. )
)-------------------------------------------------

No. C-73-1794 WHO

0-

No. C-73-2241 WHO

r C t i - i u  / m u x  v x u u a j - x }1 cxilCI Ow /

behalf of all others similarly )
situated, )

)Plaintiff, )
)vs. ) No. C-74-0028 WHO
)

JAMES W. MIDDENDORF, II, et al., )
)Defendants. )
)
)GWENDOLYN DAWSON, )
)Plaintiff, )

z' )vs. )
)
)

No. C-74-0489 WHO
NAVAL AIR STATION, Alameda 
California, et al. , )

)
)' Defendants. . X/ )
)MOSES SAUNDERS, et al. , )• )Plaintiffs, ■\• )vs. )
)
)

No. C-74-0520 WHO
NAVAL AIR REWORK FACILITY', 
Alameda, California,’ et al.. )

)
)Defendants.
)

1-



MANUEL fr ALVARADO, et si,, 
Plaintiffs,

VP,
naval air rework facility, 
et gi,,

Defendants.

ETTA B. SAUNDERS,

. plaintiff,

vs,
JAMES W, fllDDENDORF'r II, et a l , , 

Defendants.

EARGROW d , b a r b e r, individually 
end on pehalf of all ethers 
similarly situated,

plaintiff,

VP,
JAKES W, MIPPENDORF, II ,,  et a l.,  

Defendants,

RAR6R0W P, BARBER,
Plaintiff,

vs, .
JAMES w, MIPPENDORF, II, et al,, 

Defendants,

s
OPINION

No. 074-0764 WHO

NO. 074-1286 WHO 
-5.

NO. 075-0820 WHO

NO. 075-0886 WHO

In these nine consolidated actions brought under 
Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e 
et seg. ), minority civilian employees at the Naval Air Rework 
Faeility (NARF) and the Naval Air Station (NAS).in Alameda, 
California, allege discrimination on the basis of race and 
gex. Plaintiffs have moved to certify a class action pursuant

i



to Rule 23 of the Federal' Rules of Civil Procedure, and defend­
ants Civil Service Commissioners (Commissioners) have moved to 
be dismissed from the case. For the reasons hereinafter set 
forth, I certify a class of all past, present, and future Black, 
Chicano, Asian and Native American civilian employees of NARF 
and NAS and all past, present, and future Black, Chicano, Asian 
and Native American applicants for civilian employment at NARF and 
NAS,̂ " and I deny the Commissioners' motion to dismiss.

I. THE MOTION TO CERTIFY THE CLASS

In considering the motion"to certify the class, it 
is important to note that the Court previously ruled that 
federal employees are entitled as a matter of right to hearings 
de novo in federal court. Ellis v. Naval Air Rework Facility, _ 
C-73-1794 (N.D. Cal., June 20, 1975).1 2 This becomes important 
in considering whether plaintiffs have exhausted their adminis­
trative remedies as well as whether their motion to certify the 
class meets the requirements of Rule 23 of the Federal Rules 
of Civil Procedure.

A. Exhaustion of Administrative Remedies.

Before considering whether the class plaintiffs seek 
to represent meets the requirements of Rule.23 of the Federal 
Rules of Civil Procedure, the Court must first determine whether 
plaintiffs, having failed to raise third-party allegations 
through the administrative procedures outlined at 5 C.F.R.

1. I certify this class only for the discovery and liability phases of the proceedings. At this time, I make no rulings 
as to whether the damages portion of the proceedings, as­
suming for the moment that liability is established, will 
be handled on an individual or class-wide basis.

2. See also, Sperling v. United States, 515 F .2d 465 (3d Cir. 
1975); Caro v. Schultz, No. 74-1728 (3th Cir., Sept. 3,
1975). " cf. Chandler v. Johnson, 515 F.2d 251 (9th Cir. 
1975). -

3-



§713.251 (1974),^ are now precluded from bringing class actions. 
The Court is aware that the majority of district courts consider­
ing this question has refused to certify class actions where the 
administrative avenues have not first been exhausted. e.g., 
Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C. 1973) ; McLaughlin 
y. Callaway, 382 F-̂ Supp. 885 (S.D. Ala. 1974) .

However, these courts have also held that federal 
employees suing under Title VII were not entitled to hearings 
de novo in federal court. In light of that ruling, it only made 
sense to require the' administrative exhaustion of third-party 
allegations since the district courts would ultimately be 
deciding the discrimination allegations on the basis of the 
administrative record. Having ruled that the administrative 
record would be controlling, the district courts had virtually 
no alternative but to require development of the most extensive 
administrative records possible. 3

3. 5 C.F.R. §713.251 provides:
"Third party 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 which are unrelated 
to an individual complaint of discrimination 
subject to §§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 specificity as necessary to 
proceed with its investigation. The agency 
shall establish a file on each general allega­
tion, and this file shall contain 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 allega­
tion and shall make it available to the Commis­
sion 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

-4-



Exhaustion, however, is a judically created remedy 
that must be tailored to fit the particular situation and 
should not be applied blindly in every case. McKart v. United 
States, 395 U.S. 185 (1969). Traditionally, the courts have 
required parties to exhaust administrative remedies for the 
dual purpose of creating a factual record to assist the court 
and to put the agency on notice of plaintiffs' claims, thereby 
giving the agency the first opportunity to rectify internal 
problems. This Court having ruled that plaintiffs are entitled 
to hearings de novo and that the administrative record will not 
be determinative of the discrimination claim, it is no longer 
sound to require rigid adherence to the administrative avenues 
available under 5 C.F.R. §173.251. Sylvester v. United States 
Postal Service, No. 73-H-220 (S.D. Tex., Apr. 23, 1975); 
Chisholm v. United States Postal Service, No. C-C-73-148 (W.D. 
N.C. , May 29, 1975). Since plaintiffs will be presenting evi­
dence at trial, the Court no longer needs the detailed factual 
record of class claims that a "third-party" allegation filed

4under 5 C.F.R. §713.251 might have produced. 4

Footnote 3 continued:
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 par­
ticularity the basis for the request. When the 
Commission receives such a request, it shall make, 
or require the agency to-make, any additional in­
vestigations the Commission deems necessary. The 
Commission shall issue a decision on the allega­
tion ordering such corrective action, with or 
without back pay, as it deems appropriate."

4. The Court has serious doubts as to the usefulness of any 
record that might have been produced through the adminis­
trative avenues available under 5 C.F.R. §713.251. Sec­
tion 713.251 does not impose any time limit in which the 
agency must act when it is investigating third-party com­
plaints, nor does it impose any affirmative duty on the agency to investigate the charges. The agency is required 
to do no more than establish a file on each general allega­
tion, and having made a decision, to notify the complain­
ing party. The agency file constitutes the only record 
of the investigation.

i
-5-



I also find that it is unnecessary to require plain­
tiffs to file "third-party" claims in order to put the defendants 
on notice that there was a generalized or class-wide dissatis­
faction on the part of minority civilian employees at the naval 
base. Each of the named plaintiffs filed an "individual" ad­
ministrative complaint pursuant to 5 C.F.R. §713.211 et seg.
Each and every of the "individual" administrative complaints 
raised issues of policy and practice that are inherently class- 
type claims of discrimination. It is well-settled in the pri­
vate sector employment discrimination cases that administrative 
complaints are to be construed broadly to encompass any dis­
crimination that could be considered to grow out of the adminis­
trative charge. Danner v. Phillips Petroleum, 447 F.2d 159 
(5th Cir. 1971); King v. Georgia Power Co., 295 F.Supp. 943 
(N.D. Ga. 1968). Federal employment claims at the administra­
tive level are also entitled to broad construction. The agency's 
own regulations require that the investigation of administrative 
complaints shall include:

■ (a) * * * thorough review of the cir­
cumstances under which the alleged discrimi­
nation occurred, the treatment of members 
of the complainant's group identified by his 
complaint as compared with the treatment of 
other employees in the organizational seg­
ment in which the alleged discrimination occurred, and any policies and practices re- 
lated to work situations which mav constitute, 
or appear to constitute, discrimination even 
IKough"they Have not been expressly cited by 
the complainant. "5 C.F.R. §713.216(a)

In addition, 5 C.F.R, 5713.218(c)(2) requires the complaint 
examiner to develop a complete record and to receive into evi­
dence "information having a bearing on the complaint or employ­
ment policies and practices relevant to the complaint * * *".

• Had the defendants followed their own regulations, 
they would have examined administratively the very policies 
and practices that the plaintiffs now seek to challenge on a 
class-wide basis at the judicial level. Defendants cannot

i
6-



I

I

t
-1

improperly narrow the focus of an "individual" discrimination 
eomplaint at the administrative level and then claim that plain­
t i f f  have failed to notify the agency of system-wide dissatis­
faction. Chisholm v. United states,Postal Service, su£ra.

indeed, there are strong equitable considerations 
that favor permitting plaintiffs to pursue a class action des­
pite their failure to file administrative third-party allega­
tions » Plaintiffs in these aetions filed their administrative 
epmplaints without the aid of counsel. They filled out blank 
forms supplied tP them by the naval base for initiating dis- 
erimination complaints. The forms do not indicate that plain­
t if fs  should use a different procedure if they wish to make a 
systemwide class action attack on alleged discrimination rather 
than raise an individual complaint. Nor do the employing 
agencies pf NARF or NAS or the CSC make any effort to explain 
the intricate administrative regulations to the individual 
complainants, Against this background, requiring the individual 
complainants to use the unspecified and complicated third-party 
allegation procedures of 5 C.F.R. 5713.251 would run contra to 
the legislative aims of the 1972 Amendments to Title vn. one 
Of the purposes behind these amendments was to permit federal 
employees to litigate claims in federal courts without those^ 
Claims first being lost in the quagmire of administrative 
remedies requiring exhaustion,5 Accordingly, i hold that plain­
t i f f s ’ failure to file third-party allegations pursuant to 
5 C.F.R. 5713,251 does not preclude their raising class-action
claims in federal court. \

5i pcnate Report No, 92-415 on 5 2515, 92d Cong., 1st Sess.
1(5=17 (1971) stated; ...... ...
, "The testimony of the Civil Service Commission

notwithstanding, the committee found that an 
aggrieved Federal employee does not have access 
to^the courts, m  many cases, the employee mus 
overcome a W .  government defense of sovereign 
immunity pr failure to exhaust administrative 
remedies with no eertainty as to^the steps re 
auired to exhaust such remedies."

7 \



B. Requirements of Rule 23.

Seeking to certify the class under Rule 23(b)(2) 
of the Federal Rules of Civil Procedure, plaintiffs must meet 
the Rule 23 prerequisites for a class action.^

1. Numerosity.

I .find that the class is so numerous that joinder 
of all members is impracticable. There are over 1,200 minority civiliar 
employees at the Alameda naval base. In addition, plaintiffs 
seek to bring this action on behalf of future employees and 
applicants for employment. Since there is no way now of deter­
mining how many of these future plaintiffs there may be, their 
joinder is impracticable. Jack v. Aroer. Linen Supply Company,
498 F.2d 122 (5th Cir. 1974).

2. Common Questions of Law or Fact.

I find that there are questions of lav/ and fact common 
to the class members. Although defendants argue that the de­
tailed civil service rating requirements that must be met for 
each federal job position are so varied that each discrimination 
claim presents a unique set of facts, I find that, following this 
line of reasoning, it would be almost impossible for a federal * •

6. Pursuant to Rule 23(a) of the Federal Rules of Civil Pro­
cedure plaintiffs must establish that:

"One or more members of a class may sue or be 
sued as representative parties on behalf of 
all only if (1) the class is so numerous that 
joinder of all members is impracticable, (2) 
there are questions of lav/ or fact common to 
the class, (3) the claims or defenses of the 
representative parties are typical of the

• claims or defenses of the class, and (4) the 
representative parties will fairly and adequately 

• protect the interests of the class."
In addition, they must satisfy the requirement of Rule 23(b)(2) and establish that:

-8- t



employee to bring a class action discrimination suit since 
individualized applications of the civil service ratings would 
always be involved. The commonality of issues for both pri­
vate and federal employees rests on the common threat of dis­
crimination that confronts all members of the class. Johnson 

Express, Inc. . , ,v. Georgia Highway,/417 F."2TTI22 (5th Cir. 1969); Chisholmjn
United States Postal Service, supra.

VIhile I find that the general claims of discrimina­
tion in promotions, hirings, firings, and job training oppor 
tunities, present common questions of law and fact for the 
named plaintiffs and the class they seek to represent with 
respect to the liability phase of these actions, I do note 
that the determination of the appropriate amount of damages 
due the different class members, if liability is eventually 
established, may pose too many individual questions to be 
handled on a class basis. Therefore, I limit my finding tnat 
there are common questions of law and fact to the commonality 
of issues as to liability and the appropriateness of injunctive 
relief. Harvey v. International Harvester Company, 56 F.R.D.
47 (N.D. Cal. 1972).

3. Typicality of Claims.
/

I find that the claims of the representative parties
are typical of the claims of the class. The claims of the

Snamed plaintiffs run the gamut of discrimination in hirings, 
firings, and promotions. Although there may be individual 
variations in the particulars, the claims of the representa­
tives need not be identical to those of the class. If all the 
members of the purported class would be benefited by the suit

Footnote 6 continued:
*the party opposing the class has acted or re fused to act on grounds generally applicable to 
the class, thereby making appropriate final in­junctive relief or corresponding declaratory re  ̂
lief with respect to the class as a whole * * * *•

-9-



plaintiffs seek to bring, the requirement of typicality has 
been satisfied. Eisen v. Carlisle & Jacquelin, 391 F .2d 555 
(2d Cir. 1968), aff'd in part, 417 U.S. 156 (1974).

4. Adequacy of Representation.

X find that the representative parties can adequately 
and fairly represent the class. Although the named plaintiffs 
in these actions are of Black and Chicano ancestry, since their 
purpose in bringing these actions is to better the positions of 
the minority workers at the naval base as a whole, I find they 
can adequately represent the claims of a broad spectrum of 
minority workers at the base including employees of Asian and 
Native American national origin. I note that there is authorityI
to support the certification of such a broad class for purposes 
of discovery and liability determinations where, as here, there 
is no evidence of collusion or conflicting claims among members 
of the class. Harvey v. International Harvester Company, supra; 
Penn v. Stumpf, 308 F.Supp. 1238 (N.D. Cal. 1970).

5. Rule 23(b)(2) of the Federal 
Rules of Civil Procedure.

In addition to satisfying all the above requirements 
of Rule 23(a), I find that the plaintiffs have satisfied the 
requirements of Rule 23(b)(2) and have demonstrated that the 
defendants have acted on grounds generally applicable to the 
class, thereby making injunctive relief or corresponding declara­
tory relief with respect to the class as a whole appropriate. 
Plaintiffs claim that the defendants have discriminated against 
them and the class they seek to represent on the "generally 
applicable" grounds of hiring, firing, and promotion, and on 
the basis of race, national origin and/or sex. Should plain­
tiffs successfully prove these allegations, declaratory and in- 
-3<rtw:tive relief would be most appropriate. Accordingly, I

-10-
I



v ' CIass actions for the
purposes of discoverv  ̂ 4 . *ery and determination of liability.

12\. D1S-MISSAL of the commissioners.
Defendants claim that the Comai«< 

any way involved ln the n  C°— —  are not in
.L . . alleged discrimination and that they
should, therefore, be dismissed. m  addi,- 7„ In addition, the governmentonce again irdisec? ^T w ^ses an argument that the plainMff u
to exhaust the available adsT • failed
,m  . ^  ad"lnistrative procedures for chal-lengmg practices of'the • •

he Commissioners. 5 c F R cnnn 300.104. ,F*R* S§300-101-

■ I find that the Commissioners construe their role •
~ e „ t  d°CiSi°"S ™ y  ,„d that they J * “ ” U  “
involved in the ch*n 7 integrally

federal 6 961161:31 P6rS°nnel dePartment of thefeaeral government in charge of "recruit™ - ran>1- 2, ruitment, measurement,
banhing, and selection of individuals for in■t• ,_r.e . £or initial appointmentand competitive promotions in the .., _ _ „ competitive service * *
C.P.R. SS300.101, 294.103. The CSC ore-

governing personnel actions within the ^

~  ~  — a lit “ “ to
y out those rules. 5 U.s.c. SS1301, 1302 (1966). The C S C  

is specifically charged with ream «. •

—  affirmative ^  ^

“ent opportunities. 5 c.r.R S7C3 1  ^  ^
£ .  S 3'201‘ NAS and NARF are
ederal agenoies under the Commissioners• control , 

ply with rqr «. 2, ontrol and must com-
r  M i ~ - 5 — .I. „

-  - o r j , :  — 1 7  r  “  that -
belief against th - *’* *• ihiunotive
di '■  • 61r lndlVldUal '"Ploying agencies to stop the

~ L
Of these discrimin enJ° lnXn9 the“ fr0ra c°ntinued approval

discriminatory employment practices.

-11-



I do not find the Commissioners' assertion of the ex­
haustion requirement to be persuasive. Plaintiffs all filed their 
complaints with the employing agencies under 5 C.F.R. §713; defend­
ants would insist upon their filing under 5 C.F.R. §§300.101- 
300.104 as well.7 Once again, I find the filing of an adminis 
trative complaint by each named plaintiff raising system-wide 
discrimination allegations adequately put the CSC on notice of 
the dissatisfaction of minority workers at the naval base. I 
also find that'it would be unduly burdensome to the plaintiffs 
to insist that they select the strictly proper section of the 
regulations for processing their complaints when the regulations 
contain a myriad of confusing and technical regulations requiring 
legal sophistication to decipher. No purpose being met by blindly 
requiring rigid adherence to the doctrine of exhaustion (McKart 
v. United States, supra), I deny the Commissioners' motion to

. dismiss.
i Dated: September 18, 1975.

I

William" H. Orr'ick, Jr. G ,  United States District Judge

7. 5 C.F.R. §300.104 provides in pertinent part:
-fa) Employment practices. (1) A candidate who believesthaT_TiT-empIoyment practice wh.ch was 

aoolied to him and which is administered or quired by the Commission violates a basic require 
ment in §300.103 is entitled to appeal to the 
Commission. , j •

(2) An appeal shall be filed in writing, shall 
set forth the basis for the candidate s |*at» violation occurred, and shall be filed with the a violation occuiieu, rivil Service Commission,Appeals Review Board, U.S. civ.i • , fromWashington, D.C. 20415, no later than 15 days ft 
the date the employment practice was app resuitscandidate or the.date he became aware °l the:res 
of t-hp aDolication of the employment practice.^ 3  m a ^ e n d  ?h= time limit in this subparagraph 
for good cause shown by the candidate.,

(3) An appeal shall be processed in accordance 
with Subpart D of Part 772 of this chapter.

\ -12-