Williams v. Tennessee Valley Authority Brief for Appellees

    IN THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO. 76-1606 
NO. 76-1607

JOHN H. WILLIAMS, et al.,

Plaintiffs-Appellees,

v.

TENNESSEE VALLEY AUTHORITY, et 
al. ,

Defendants-Appellants.

On Appeal From The United States District Court 
For The Middle District Of Tennessee 

Nashville Division

BRIEF FOR APPELLEES

AVON N. WILLIAMS, JR.
Suite 1414 Parkway Towers 
404 James Robertson Parkway 
Nashville, Tennessee 37219

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellees



TABLE OF CONTENTS

PAGE

Statement of Issues Presented For Review.............. 1
Statement of the Case................................. 2

ARGUMENT
I. Plaintiff Is Entitled To A Trial

De Novo..................................... 6
II. This Action May Be Maintained As A

Class Action ............................«.. 10
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
42 U.S.C. §2000e-16......................  13
1. Rule 23(b)(2) Fed. R. Civ. Proc... 13
2. The Statutory Language of 42

U.S.C. §2000e-16.............. ...... 15
B. In 1972 Congress Expressly Disclaimed

Any Intent To Preclude Or Limit Class 
Actions To Enforce Title VII...........  21

C. Neither Weinberger v. Salfi Nor 
Brown v. G.S.A. Bars A Class Action
Here.....................................  28

D. The Administrative Complaint Process 
Does Not Permit Systemic Class Claims
To Be Raised And Adjudicated...........  31
1. The Individual Complaint Process... 31
2. Third-Party Complaints........ .

III. The District Court Was Correct In
Certifying The Class......................  38

CONCLUSION............................................  41
Certificate

l



TABLE OF AUTHORITIES

CASES PAGES
Abrams v. Johnson, 534 F.2d 1226 (6th

Cir. 1976)................................ 6

Aetna Ins. Co. v. Kennedy, 301 U.S. 389
(1937).....................................  20

Albemarle Paper Company v. Moody, 422
U.S. 405 (1975)........................... 10,15,20,21,30,31

Alexander v. Gardner-Denver Co., 415
U.S. 36 (1974)..............................  19,20

Barrett v. Civil Service Commission, 10
EPD 510,586 (D.D.C. 1975).................. 15,33,37

Barnett v. W.T. Grant, 518 F.2d 543 (4th
Cir. 1975)..................................  14,15

Bowe v. Colgate-Palmolive Co., 416 F.2d
711 (7th Cir. 1969)....................... 22

Brown v. General Services Admin. 44 U.S.L.W.
4704 (June .1* .1976)..........................  28,30

Chandler v. Roudebush, 44 U.S.L.W. 4709
(June 1, 1976)..............................  6,10,28, 30,37

Chisholm v. U.S. Postal Service, 9 EPD
510,586 (D.D.C 1975).....................  15

Eastland v. T.V.A., 9 EPD 1(9927................  7

- ii



PAGES
Franks v. Bowman Transportation Co., ____  U.S. ____ ,

47 L . Ed .2d 444 (1976).........................  10,30,31,41

Graniteville Co. v. EEOC, 438 F.2d 32 (4th
Cir. 1971}.....................................  H

Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir.
1975)..........................................  18,28

Hackley v. Roudebush, 520 F.2d 108, 151 n.
(D.C. Cir. 1975)................................ 15,21

Hall v. Werthan Bag Corp., 251 F.Supp. 184
(M.D. Tenn. 1966).............................. 11,15

Harris v. Nixon, 325 F.Supp. 28 (D. Colo.
1971)..........................................  18

Hodges v. Easton, 106 U.S. 408 (1882)......... . 20

Jenkins v. United Gas Corp., 400 F.2d 28
(5th Cir. 1968).................................  11,14,21,23

Johnson v. Georgia Highway Express, Inc.,
417 F .2d 1122 (5th Cir. 1969).................  11,14

Johnson v. Zerbst, 304 U.S. 458 (1938).............  20

Lance v. Plummer, 353 F.2d 858 (5th Cir. 1965)
cert, denied, 384 U.S. 929 (1966)..............  16,17,18,29

Love v. Pullman Co., 404 U.S. 522 (1972)............. 19

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).........................................  19

i n



PAGES

McKart v. United States, 395 U.S. 185
(1969).........................................  28

Mean v. NASA (D.D.C. GA No. 74-1832)................  37

Miller v. International Paper Co., 408 F.2d 283
(5th Cir. 1969)...............................  22

Moody v. Albemarle Paper Co.........................  11
Moss v. Lane Company, Inc., 471 F.2d 853

(4th Cir. 1973)...............................  11

Newman v. Piggie Park Enterprises, 390
U.S. 400 (1968)................................ 19

Oatis v. Crown Zellerbach Corp.,398 F..2d 496
(5th Cir. 1968)....................................  17,18,21,23

Ohio Bell Telephone Co. v. Public Utilities Comm.
301 U.S. 292 (1937)............................ 20

Sanchez v. Standard Brands, Inc., 431 
F .2d 455 (5th Cir. 1970)...... 19

Senter v. General Motors Corp., 532 F.2d 511
(6th Cir. 1976)................................ 40,41

Sharp v. Lucky, 252 F.2d 910 (5th Cir.
(1-58).........................................  16,18

Sibbach v. Wilson & Co., 312 U.S. 1 (1941).......... 13,

iv



PAGES

Sosna v. Iowa, 419 U.S. 393 (1975)...................  11,39

Sylvester v. U.S. Postal Service, 9 EPD ^10,210
(S.D. Tex. 1975)........................... . 15

United States v. Georgia Power Company, 474
F .2d 906 (5th Cir. 1973).......................  11

Weinberger v. Salfi, 422 U.S. 749 (1975)............. 12,28,29, 30



PAGES
STATUTES
28 U.S.C. §1391(e) ......
28 U.S.C. §§2072, 2073 ---
42 U.S.C. §405 (g) .......
42 U.S.C. §1983 .........
42 U.S.C. §2000a et seq. .
§2000e-5 .................
42 U.S.C. §2000e-5 (f) (1) .
42 U.S.C. §2000e-16 .....

§2000e-16 (c) .............
§2000e-16 (d) .............
§706 (a) ..................
§706 (b) ..................
§706(d) ..................
§§706 (f) through (k) ....
§717 (c) and (d) ..........
5 C.F.R. §§713.211-713.222
5 C.F.R. §713.251 .......
5 C.F.R. §713.271 .......
§713.212 .................
§713.224 .................
§713.234 .................
§713.282 .................

7
13
29
16
16
18, 29,
25
1, 2,

13, 14,
20, 26,
25
25
22
22
22

I—1 I—1 12,
29
32, 37
31, 35,
35
32
37
37
36, 37

12, 25, 26, 30

-vi-



PAGES

OTHER AUTHORITIES
116 Cong. Rec. 7169, 7566 .................... .. 26
Civil Rights Act 1964 ........................ .. 2, 16
Equal Employment Opportunity Act of 1972 .... . . 2
Rule 15 (c) .................................... . . 9
Rule 23 ....................................... .. 1, 13, 14, 15, 19,20
Sen. Rep. No. 92-415, 92nd Cong., 1st Sess.

(Oct. 28, 1971) ........................... .. . 7
K. Davis, Administrative Law, §20.07 ........ .. . 31
Legislative History of the Equal Employment 

Opportunity Act of 1972, Subcom. on 
Labor of the Senate Comm, on Labor 
and Public Welfare (Comm. Print 1972) .... ... 7, 18, 22, 23, 24,

25, 26, 27
United States Commission on Civil Rights,

The Federal Civil Rights Enforcement 
Effort - 1974, Vol. V. To Eliminate 
Employment Discrimination (July, 1975) ...... . 35



IN THE
UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO. 76-1606 
NO. 76-1607

JOHN H. WILLIAMS, et al.,

Plaintiffs-Appellees,

v.

TENNESSEE VALLEY AUTHORITY, et 
al.,

Defendants-Appellants.

On Appeal From The United States District Court 
For The Middle District Of Tennessee 

Nashville Division

BRIEF FOR APPELLEES

Statement Of Issues Presented 
________ For Review___________

1. Is a federal employee entitled to a trial dê  novo in an 

action brought under 42 U.S.C. § 2000e-16?

2. May an action brought pursuant to 42 U.S.C. § 2000e-16 

be maintained as a class action pursuant to Rule 23(b)(2), F. R.

Civ. Proc.?



3. Did the district court in this case properly define 

the class to be represented by the named plaintiff?

Statement of the Case

This case was brought pursuant to 42 U.S.C. § 2000e-16,
Title VII of the Civil Rights Act of 1964 as amended by the Equal 

Employment Opportunity Act of 1972. Following the exhaustion of 

administrative remedies, it was filed by appellee Williams as 

a class action seeking to attack racial discrimination against 

the plaintiff and other members of the class of black employees 

and applicants for employment at the Cumberland Steam Plant and 

other facilities of the Tennessee Valley Authority. The named 

defendants in the original complaint were the Tennessee Valley 

Authority and three of its employees. The Tennessee Valley 

Authority moved to dismiss the complaint, inter alia, on the ground 

that under § 2000e-16, only the members of the Board of Directors 

of the T.V.A. could be defendants. Plaintiff Williams moved to 

amend the complaint to join the individual Directors and the 

district court denied the motion to dismiss.

Defendants also moved for summary judgment or to dismiss on 

the merits, relying on the administrative record and arguing that 

there was no right to a trial de novo before the district court.

In the same motion, the defendants moved to dismiss the class 

action. In two memoranda decisions, the district court denied 

these motions and held first, that plaintiff was entitled to a

2



trial de novo, and second, that a class action could be maintained

against a federal agency in a suit brought under Title VII 

(A. 86). The Court also defined the class in general terms as 

encompassing "all blacks presently employed by T.V.A., or formerly 

employed and presently laid off, who have allegedly been dis­

criminated against on the basis of race." The court also stated 

that following discovery, the court"will have an additional hearing 

to determine the type of notice to be given to the members of 

the class" (A. 94). Subsequently, the district court allowed three 

other plaintiffs to intervene in the action as other members of 

the class in question. Two of the intervenors have filed adminis­

trative complaints of discrimination which had not been finally 
disposed of at the time of their intervention.

Prior to filing the present suit, plaintiff Williams filed 

an administrative complaint alleging racial discrimination in 

employment practices at the Cumberland Steam Plant in Tennessee.

The specific question dealt with the refusal of T.V.A. to hire him 

as a heavy equipment operator on a number of occasions. During 

the administrative process, it was shown that no black had ever 

been hired as a heavy equipment operator by the defendant at that 

particular installation. Moreover, a pattern of racial discrimina­

tion was shown in the assignment of blacks in the apprenticeship 

programs which could lead to the holding of the position of heavy
y

equipment operator.

1/ In brief, it was demonstrated that 83 1/3% of the white appli­
cants were put into the apprenticeship program which gave the training

3



The ostensible reason given for refusing plaintiff the job 

he sought was his lack of experience or training as a crane 

operator, even though two whites who also lacked that experience 

were nevertheless given jobs as heavy equipment operators. One 

of the white applicants had had experience as a foreman, and this 

was given as justifying his being hired. The other had no such 

experience, and the excuse for his being hired was that he was 

entitled to a veteran's preference. However, it was not explained 

how being a veteran could substitute for the experience as a 

crane operator that was claimed to be absolutely essential to hold 

the job. Moreover, since the white applicant and plaintiff Williams 

had not competed for the job at the same time, the factor veteran's 

preference was irrelevant. Nevertheless, the T.V.A.'s equal 

employment opportunity office accepted these explanations and 

held that the failure to hire Williams was not the result of 

racial discrimination.
Plaintiff Williams appealed the decision to the Appeals Review 

Board of the United States Civil Service Commission under the
2/

provisions of Part 713 of Title 5 of the Code of Federal Regulations.

1/ (Continued)
as a crane operator alleged to be essential to holding the position 
of heavy equipment operator. On the other hand, 60% of the black 
applicants, including the plaintiff, were put into the other 
apprenticeship program which omitted the crucial training.
2/ Plaintiff simultaneously filed a complaint in federal court 
under Title VII. The court action was dismissed because of the 
pendency of the Civil Service Commission appeal, on the ground that, 
if the option of a CSC appeal was taken, a suit could not be filed 
until after either a final CSC decision on the expiration of 180 days. 
The dismissal of the earlier action is not at issue in this case.

- 4 -



The Board affirmed the agency decision and refused to consider 

allegations of a pattern of discriminatory hiring practices in the 

agency in the context of plaintiff's individual complaint. Thus, 

although the Board noted "a lack of minority employees in the 

Heavy Equipment operator classification" it did not order any 

corrective action but simply suggested that the agency "consider 

the possibility" of instituting programs which "might assist 

minority or other disadvantaged applicants in obtaining employment"
3/

(A. 38). This action was filed within thirty days after the

Appeals Review Board's decision. The questions of whether the 

plaintiff was entitled to a trial de novo and could maintain a 

class action were certified to this Court pursuant to 28 U.S.C.

§ 1292(b). The appeals were accepted and consolidated for briefing 

and argument by this Court.

3/ At the hearing before a United States Civil Service Complaints 
Examiner held in the case of one of the intervening plaintiffs,
James E. Yeary, plaintiff's counsel attempted to raise the claim 
that discrimination against blacks as a class was being practiced 
at the Cumberland Plant. The Complaints Examiner refused to 
consider the claim (A. 206-208).

5



ARGUMENT

I.
Plaintiff Is Entitled To A Trial De Novo

Both the Supreme Court and this Court, in the decisions 

in Chandler v. Roudebush, 44 U.S.L.W. 4709 (June 1, 1976), and 

Abrams v. Johnson, 534 F.2d 1226 (6th Cir. 1976), respectively, 

have made it clear that in an action brought under Title VII a 
federal employee is entitled to a trial de novo the same way that 

are all other employees. Despite these clear holdings, the 

defendants still urge that the plaintiff should not obtain a trial 

de novo here. The appellants' rather torturous argument is to the 

effect that since only the T.V.A. was named as a defendant within 

the statutory 30-day period and not the members of the Board of 

Directors of T.V.A., this action cannot be maintained under Title 

VII. By a leap in reasoning, the conclusion is reached that 

therefore there is no entitlement to a trial de novo.
First, appellees protest the attempt to raise an issue now 

upon which certification was not obtained. The question of whether 

the proper parties were named was raised as an independent question 

in the district court and a decision rendered thereon, and no 

attempt was made to have that issue certified. Thus, this Court 

should not reach the issue presented in Argument I, despite the 

attempt to couch it in terms relevant to the trial de novo issue. 

Rather, the Court should summarily affirm the district court on the 
trial de novo question in light of Chandler and Abrams.

6



If the Court does reach the question of the naming of the 

Board of Directors, however, appellees urge that the decision of 

the district court is clearly correct and should be affirmed.

The argument that there is no jurisdiction under Title VII because 

T.V.A. was sued without naming the three directors is typical of 
the kind of narrow and technical argument raised as a matter of 

course in employment discrimination cases in an effort to avoid
4/

decisions on the merits. It is clear, of course, that in actions 

under 42 U.S.C. § 2000e-16, the head of the agency is but a nominal 

party. One purpose of the provision is to ensure that the national 

office of the agency, and not just a local office, is apprised of the 

pendency of the lawsuit and can defend it. More importantly, the 

purpose of the provision for naming the agency head is to benefit 

the plaintiff by giving him the option of suing either in his 

local district court or (in most instances) the district court 

for the District of Columbia, pursuant to the liberal venue 

provisions of 28 U.S.C. § 1391(e). Sen. Rep. No. 92-415, 92d Cong., 

1st. Sess. (Oct. 28, 1971), pp. 16-17. (The Report is found at 

p. 410 of, Legislative History of the Equal Employment Opportunity 
Act of 1972, Subcomm. on Labor of the Senate Comm, on Labor and 

Public Welfare (Comm. Print 1972). All citations to the legislative 

bistory will be to this Committee print in the form "Legis. Hist., 

p. .") There is no hint in the legislative history of

4/ Thus, in Eastland v. T.V.A., 9 E.P.D. 5 9927, T.V.A. argued
that it was not enough to name just the chairman of the Board of 
Directors, but that all three members were indispensable parties.

7



§ 2000e-16 that the designation of the agency head as the party 

defendant was intended to provide a trap whereby plaintiffs would 

be forever barred from having their claims adjudicated even though 

they filed a timely suit and had it properly served simply because 
of the named defendants.

Defendants do not suggest any prejudice to them, or indeed 

any difference in the nature or conduct of this litigation caused 

by the fact that T.V.A. itself was named as defendant. The 

complaint was served on T.V.A.; it went to T.V.A. headquarters, 

just as it would have if the directors were named; it went straight 

to the general counsel's office, just as it would have if the
5/

directors were named. it is clear that the agency itself is the 

real party in interest. Any injunctive orders will govern its 

operations, not the acts of the directors. Any award of back pay 

or attorneys' fees will come from T.V.A. revenues, not from the 

personal assets of the directors. Out of an abundance of caution, 

plaintiff filed a motion for leave to amend the caption of the 

complaint to add the three directors as defendants, even though 

this would not affect the lawsuit one iota.

5/ T.V.A. is not represented by the U.S. Attorney or the 
Attorney General.

8



Thus, this case comes squarely within the terms and intent 

of the 1966 Amendment to Rule 15 (c). The Advisory Committee Note 

specifically states that it was to deal with precisely the problem

here —  the naming of the agency instead of a particular official.

As long as the original suit was timely filed and the agency put 

on notice by service, the complaint can be amended to name the 

proper nominal party. All of the conditions of the rule were 

fulfilled since, as noted above, the complaint was served on 

precisely the same office as it would have been had the directors 

been named.

6/

6/ The Advisory Committee Note points out that the rule was 
changed to overrule a number of cases involving HEW, holding that 
if an agency rather than an agency head were named, the mistake 
could not be cured by an out-of-time amendment. The Note goes on to 
say:

Relation back is intimately 
connected with the policy of the 
statute of limitations. The policy 
of the statute limiting the time for 
suit against the Secretary of HEW 
would not have been offended by allowing 
relation back in the situations described 
above. For the government was put on 
notice of the claim within the stated 
period —  in the particular instances, by 
means of the initial delivery of process 
to a responsible government official. (See 
Rule 4 (d), (4) and (5). In these circum­
stances. characterization of the amendment 
as a new proceeding is not responsive to 
the reality, but is merely question-begging; 
and to deny relation back is to defeat unjustly 
the claimant's opportunity to prove his case.
See the full discussion by Byse, Suing the 
"Wrong" Defendant in Judicial Review of Federal 
Administrative Action: Proposals for Reform.
77 HARV. L. REV. 40 (1963); see also 111. Civ.P. 
Act § 46 (4) .

9



II.
This Action May Be Maintained 
_____As A Class Action_______

It is, of course, clear, and the Supreme Court has so held 

two times within a year, that in an action brought under Title VII 

it is not necessary for all members of a class to exhaust their 

administrative remedies as a condition to maintaining a class 

action. Albemarle Paper Company v. Moody, 422 U.S. 405, 414 (1975);

Franks v. Bowman Transportation Co., ___Tf.S. ___ , '47 t.'EdSd 444,465 (1975)
It is also now clear, by the Supreme Court's decision in Chandler 

v. Roudebush, supra, that the intent of Congress was to give federal 

employees the same rights when they reached federal court in an 

action brought under Title VII as are given to all other employees,
V

whether their employers be private or state or local governments. 

Chandler dealt with the specific issue of the right to a trial de novo. 

However, it was primarily based on the language of 42 U.S.C. § 2000e-16. 

That statute, which the Supreme Court held to be clear, specifies 

that an action brought by federal employees is to be governed by

7/ "A principal goal of the amending
legislation, the Equal Employment Opportunity 
Act of 1972 . . . was to eradicate 'entrenched 
discrimination in the Federal Service,' Morton 
v. Mancari, 417 U.S. 535, 547, by strengthening 
internal safeguards and by according 'f alggrieved 
f federal! employees or applicants . . . the full 
rights available in the courts as are granted to 
individuals in the private sector under Title VII.'" 
44 U.S.L.W. at 4710 (emphasis added).

10



Sections "706(f) through (k)," the provisions of Title VII which

govern actions brought by all other employees. It is those very

sections which have been interpreted by the Supreme Court and all

other courts as allowing a class action to be maintained by a single-

employee who has exhausted his administrative remedies.

This case involves precisely the kinds of issues that have

been litigated innumerable times against private employers in Title
8/

VII suits brought both by employee plaintiffs, and the United
9/

States. That is, plaintiff is attacking a range of employment 

and promotion policies that have the effect of discriminating 

against blacks as ^ class. He seeks to correct systemic practices 

that impinge on his right to equal employment practices as a member 

of the class of black workers affected "by stigmatization and explicit
wapplication of a badge of inferiority." See, Hall v. Wertham Bag

Corp., 251 F. Supp. 184, 186 (M.D. Tenn. 1966). The defendants seek 

to escape the applicability of clear Title VII law by essentially

8/ See, e.c[., Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir.
1968); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th 
Cir. 1969); Moody v. Albemarle Paper Company, supra.

9/ See, e.g_., Graniteville Co. v. EEOC, 438 F.2d 32 (4th Cir. 1971); 
United States v. Georgia Power Company, 474 F.2d 906 (5th Cir. 1973).

10/ Sosna v. Iowa, 419 U.S. 393, 413 n.l (1975)
(White, J., dissenting). Justice White, who dissented from the 
application of established Title VII law to class actions 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." See, Moss v. Lane Company, Inc., 
471 F .2d 853 (4th Cir. 1973).

11



two arguments. The plaintiff did not seek to raise class claims 

in the administrative process; and the Supreme Court's decision 

in Weinberger v. Salfi, 422 U.S. 749 (1975), governs and requires 

that every member of the class file a complaint and receive a 

final disposition of it. We urge that these contentions must be 

rejected on a number of grounds. First, the language of § 2000e-16 

in no way restricts the general right to maintain class actions 

provided for in the Federal Rules of Civil Procedure. Second, 

the legislative history of the 1972 amendments demonstrates 

congressional intent to allow broad class action and congressional 

approval of the judicial decisions so holding. That legislative 

history directly refers to § 706 (f) through (k) of the Act, which 

govern this action. Third, Weinberger v. Salfi, supra, has no 

applicability to Title VII at all, since the language of the statute 

involved in Weinberger is totally different than the relative 

provisions of Title VII. Rather, the decisions uniformly interpreting 

Title VII as allowing class actions are controlling. Fourth, 

class claims may not be raised in the administrative process, 
and the Solicitor General of the United States has so acknowledged 
to the Supreme court.

12



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 
42 U.S.C. S 2000e-16_________________

The right of federal employees to bring class actions 

to enforce § 2000e-16 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 exceptions not here relevant, 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 specific civil action 

statutes permit class action enforcement; class actions are 

permitted unless statutory language expressly precludes or limits 

class action treatment. Section 2000e-16, by its terms, permits 

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 defen­

dant'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

13



it is based on grounds which have general application to the 

class." Proposed Amendments to Rules of Civil Procedure, 39 

F.R.D. 69, 102. The technical exhaustion bar to class actions 

urged by defendants is thus contrary to the pre-eminent 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." 39 

F.R.D. at 102; Barnett v. W.T. Grant, 518 F.2d 543, 547 (4th Cir. 

1975); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122,

1124 (5th Cir. 1969). What named plaintiffs in the instant case 

seek to raise and remedy in a court of law —  systemic, class-wide 

employment discrimination by T.V.A. —  is precisely the across- 

the-board attack on all discriminatory actions by defendants on 

the ground of race that the Fourth Circuit in Barnett found "fits 

comfortably within the requirements of Rule 23(b)(2)." As the 

Fifth Circuit has emphasized, "if class-wide relief were not afforded 

expressly in any injunction or declaratory order issued in Employee's 

behalf, the result would be the incongruous one of the Court —  

a Federal Court, no less —  itself being the instrument of racial 

discrimination. . . . "  Jenkins v. United States Gas Corp., 400 F.2d 
28, 34 (5th Cir. 1968) .

14



Rule 23 (b) (2) class actions are particularly appropriate
11/

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, 186 (M.D. Tenn. 1966), that "racial 

discrimination is by definition of class discrimination. If it 

exists, it applies throughout the class," has often been cited 

in employment discrimination litigation. This principle was also 

accepted by Congress in 1972 in considering the propriety of 

Title VII class actions for employment discrimination. See, infra, 

at 21 et_ seq. The class action device also facilitates framing 

of comprehensive injunctive and declaratory relief for the systemic 

features of employment discrimination Title VII expressly seeks 

to rectify. Albemarle Paper Co. v. Moody, supra.

2. The Statutory Language of 42 U.S.C. § 2000e-16 

On its face § 2000e-16 does not preclude or limit in any 

way the Rule 23 right of federal employees to bring private enforce­

ment actions in the form of class actions. In particular, there

11/ Compare the analysis set forth in Hackley v. Roudebush,
520 F.2d 108, 151 n. 177 (D.C. Cir. 1975) supra; Barrett v. u.s. 
.Civil Service Commission, 10 EPD 510,586 (D.D.C. 1975); Chisholm 
v * U.S. Postal Service. 9 EPD 510,212 (W.D.N.Y. 1975); Sylvester 
v * U.S. Postal Service. 9 EPD 510,210 (S.D. Tex. 1975).

15



is nothing concerning different exhaustion requirements for

individual and class actions. Even in circumstances in which

the face of a statute is ambiguous for some reason, the law is

clear that class actions may be maintained. Thus, in Lance v.
Plummer, 353 F.2d 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 590, 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 proviso that "The remedies provided

in this title shall be the exclusive means of enforcing the rights

based on this title." Considering these contentions and the statute

as a whole, 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
12/

the Civil Rights Act." 353 F.2d at 591.

12/ Lance 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.

16



In Oatis 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 was absent for 

class action because (1) pattern or practice suits brought by 

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

private remedy intent and purposes of the statute will be 

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 

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

13/
precluded or limited by any special exhaustion requirement.

First, any special exhaustion requirement for class action suits 

would have to rest not on any statutory language, but on statutory 

silence. Derogation of Rule 23 rights to maintain a class action 

necessarily requires a surer indication of legislative intent. 

Imposing such a requirement is especially awkward in light of the

13/ See cases cited supra, p. 15 , n. 11.

17



fact that the § 2000e-16 civil action scheme was specifically

enacted (a) to cure confusion about general exhaustion require-
14/

ments by providing explicit standards and (b) to limit rather
15/

than to expand exhaustion requirements. Second, § 2000e-16 is

unlike the statutes considered in Lance and Sharp in that the 

equivalent "person aggrieved" language is not untested, but 

derives from the general § 2000e-5 provisions 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 plaintiff had exhausted 

only his individual administrative remedy, and Congress approved 

this construction in 1972. See, infra, at p. 21, et seq. Third,

§ 2000e-16 is unlike the statutes considered in Oatis and Lance 

in that the private civil action is the only court enforcement 

mechanism available to federal employees. Suits by the EEOC or 

the Department of Justice are not authorized (indeed the Department

14/ The House Committee report explained that the § 2000e-16 civil 
action 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 
required 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.
15/ Under § 2000e-16 (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 § 2000e-16 (c) it had 
been assumed that final agency action was necessary. See, £.3..,
Harris v. Nixon, 325 F. Supp. 28 (D. Colo. 1971). An extra exhaustion 
requirement for class actions hardly comports with a scheme that

18



of Justice or, here, another federal agency, must defend such 

suits). Plaintiff federal employees are not merely "private 

attorneys general," see, e.£., 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, 411 U.S. 792, 798-99 (1973); Alexander v. Gardner-Denver 

Co., 415 U.S. 36, 47 (1974). 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 especially suspect. Love v. Pullman Co., 404 U.S. 522, 527 

(1972). See also, Sanchez v. Standard Brands, Inc. 431 F.2d 455 

(5th Cir. 1970).

15/ (Continued)
instituted partial or incomplete exhaustion requirements to change 
contrary prior practice.

19



The position of the defendants also amounts to imposing

a waiver of the opportunity to bring a lawsuit in the form of a

class action by failure to make express administrative class-wide

claims of discrimination since the agency provides employees with
an individual complaint form that fails to mention, request, or

otherwise elicit any class-wide claims. See App. 53. No knowing

and intelligent waiver can be said to occur under such circum- 
16/

stances, and asks only what corrective action is wished "in [his] 

behalf." If complainants try to make class-wide allegations, they 
are usually discouraged and prevented from doing so. See, infra, 

at 32 . Thus, not only is there no knowing and intelligent 

waiver of rights, but actual misrepresentation by the agency 

concerning its obligation to provide relief for class-wide 

discrimination. There are thus compelling reasons under Rule 23 

and § 2000e-16 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, at 51.

16/ The rule has been clear that "A waiver is ordinarily an 
intentional relinquishment or abandonment of a known right or 
privilege." 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).

20



B. In 1972 Congress Expressly Disclaimed 
Any Intent To Preclude Or Limit Class 
Actions To Enforce Title VII ._____

As Albemarle Paper Co. v. Moody, supra, at 294-95, n. 8,

and Hackley v. Roudebush, 520 F.2d 108, 152 n. 177 (D.C. Cir.

1975), make clear, defendants seek by judicial action, class action

bars Congress in 1972 specifically refused to legislate. The

contention that making administrative allegations of class-wide

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, inter

alia. 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
17/

issue in these cases. During the consideration of H.R. 1746

17/ Oatis v. Crown Zellerbach Corp., supra, set forth reasons why
exhaustion by all class members will not advance the purposes 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

21



in the House, Rep. Erlenborn introduced a substitute for the 
18/committee bill which proposed, in § 706 (b), 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 required by Section 706(d) neither filed a
19/

charge nor 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

17/ (Continued)

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.

Similarly, the court in Jenkins stated:

"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 dis­
crimination." Jenkins v. United Gas Corp., supra, 
400 F.2d at 32. See also Miller v. International 
Paper Co., 408 F.2d 283, 285 (5th Cir. 1969); Bowe 
v. Colgate-Palmolive Co., 416 F.2d 711, 715 (7th 
Cir. 1969) .

18/ Legislative History at p. 247.

19/ Legislative History at 147.

22



enforcement. The Erlenbom substitute passed in the House
21/

with the exhaustion bar intact.

The Senate Committe bill, however, contained no
22/

restrictions on class actions. The Senate Committee stated
its intent not to restrict class actions in its proposed § 706 

provisions, specifically citing Oatis and Jenkins:

20/ Rep. Eckhardt argued:
"The Erlebom amendment . . .  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 actions 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." 
Legislative History at 243.

Similarly, Rep. Abzug argued that:

"The Erlenbom 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.

*  * *  *

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, reinstate­
ment, or injunctive relief. The structure and pattern 
of employment discrimination will remain untouched 
unless large numbers of workers are affected. An 
award in favor of one complainant will do little to 
discourage an employe r 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 dis­
crimination. Legislative History at 276.

21/ Legislative History at p. 332.
22/ Legislative History at 335, et sea.

-~~Z3 ~=~~



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 [citing 
Oatis, Jenkins, and other cases in a footnote] 
and that any restriction on such action would 
greatly undermine the effectiveness of Title 
VII." 23/

The Senate bill as passed contained no limitations on class 
24/

actions and the Section-by-Section Analysis of S.2515 

reinterated 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." 25/

23/

24/

25/

Legislative History at 436. 
Legislative History at 1779, 

Legislative History at 1773.
et seq.

24



The bill that emerged from Conference omitted the Erlebom

provision. The Section-by-Section Analysis of H.R. 1746 adopted

the Senate Section-bySection Analysis on class actions, word for

word in its comments on § 706 (f) (1), 42 U.S.C. § 2000e-5 (f) (1),

adding only the concluding statement that "A provision limiting

class actions was contained in the House bill and specifically
26/

rejected by the Conference Committee."

The general § 2000e-5 (f) civil action procedural frame­

work and the accompanying legislative history gloss is incorporated 

by reference in § 2000e-16 (c) and § 2000e-16 (d). The latter 

states "The provisions of Section 706(f) through (k) as applicable, 

shall govern civil actions brought hereunder." Moreover, the

26/ Legislative History at 1847. The preface of the Analysis 
states its purpose:

"The 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 pro­
cedural and jurisdictional 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 present case law as developed by the courts 
would continue to govern the applicability and 
construction of Title VII."

25



Section-by-Section of H.R. 1746 specifically says of §§ 2000e-16

(c) and (d), "The provisions of Sections 706 (f) through (k) as

applicable, concerning private civil actions by aggrieved persons,
27/

are made applicable to aggrieved Federal employees or applicants." 

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, class-wide discrimination was endemic in the federal 

service, and that one of the primary deficiencies of the 

administrative complaint system was its failure to either 

recognize or correct such discrimination. Thus, the Senate 

Committee Report questioned the assumption of the Civil Service 

Commission that "employment discrimination in the Federal Govern­

ment is solely a matter of malicious intent on the part of 

individuals."
"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 themselves 
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 them­
selves constitute systemic barriers to minorities 
and women. Civil Service selection and promotion 
techniques and requirements are replete with

27/ Legislative History at 1851. See also 118 Cong. Rec. 7169, 
7566. - 26 -



artificial requirements that place a premium 
on 'paper' credentials. Similar requirements 
in the private sectors of business have often 
proven of questionable value in predicting job 
performance and have often resulted in per­
petuating existing patterns of discrimination 
(see, e.£., Griggs v. Duke Power Co., . . . )
The inevitable consequence 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 arti­
ficial qualifications." 28/

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

28/ Legislative History, p. 423.

27



C . Neither Weinberger v. Salfi Nor 
Brown v. G.S.A. Bars A Class 
Action Here .

In the face of the statutory language, legislative 
history, and Chandler, defendants seek to rely on Weinberger v. 
Salfi, 422 U.S. 749 (1975) and Brown v. General Services Admin.,
44 U.S.L.W. 4704 (June 1, 1976), to support their contention 
that a class action cannot be maintained. Neither will bear the 
load.

Weinberger v. Salfi, if relevant at all, undermines 
appellants' position. First, the discussion in Salfi begins by 
reiterating the long-standing rule, most fully explicated in 
McKartv. United States, 395 U.S. 185 (1969), that exhaustion 
requirements must be based on the particular statutory and admin­
istrative scheme at issue. The particular statute involved in Salfi 
had an absolute requirement that each individual obtain a "final" 
decision "made after a hearing to which he was a party," as a 
pre-condition for seeking a limited review of that decision in 
federal court. Section 2000e-16, despite appellants' assertion 
to the contrary (Brief at p.18), of course, does not contain a 
requirement that there be a final disposition of an EEO complaint.
To the contrary, it specifically provides that federal employees 
can file a Title VII suit after 180 days from the filing of an
administrative charge when there has been a "failure to take final 

29/
action." See Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975).

H 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

28



Second, the syllogism the appellants derive from Saifi
that the simple requirement of finality in a civil action 
statute necessarily precludes class actions is faulty. 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 
restrictions of 42 U.S.C. § 405(g) each class member must have 
been a "party" to the administrative proceedings and have 
received a final decision therein. Salfi is not analogous to 
federal employee Title VII actions because similar language is 
absent from §§ 717(c) and (d) and the general § 706 civil action 
provisions incorporated by § 717(d).

Third, the defendants fail to explain why Salfi would not 
also bar a class action in private employee litigation brought 
under § 2000e-5 (f) (1). Just as § 2000e-16, that provision speaks

29/ (cont'd)
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 com­
plaint 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 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.

29



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 day before

30/ 31/
it decided Salfi, and has held again since. in short, the 
attempt to rule out a class action by pointing to the "person 
aggrieved" language must be rejected

Defendants' related contention that somehow Brown v.
General Services Administration, supra, requires that every mem­
ber of the class must file an administrative complaint is simply 
erroneous. Brown underscores the incorporation thrust of Chandler 
v. Roudebush, supra. "Sections 706(f) through (k), 42 U.S.C.
§ 2000e-5(f) to 2000e-5 (1), which are incorporated 'as applicable' 
by § 717(d), govern such issues as venue, the appointment of 
attorneys, attorneys fees, and the scope of relief," 44 U.S.L.W. 
4707 (emphasis added). The appellants fail to understand that 
all plaintiff seeks on the class action issue is the same, 
rule that only the named plaintiff must exhaust administrative 
remedies in order to bring a class action recognized by the courts, 
sanctioned by Congress in 1972, and cited by the Supreme Court

1 2 /  Albemarle Paper Co. v. Moody, supra.
31/ Franks v. Bowman Transportation Co., supra.

30



in Albemarle Paper Co. v. Moody, supra and Franks v. Bowman
li Transportation Co., supra in private sector Title VII cases.

Brown, not a Title VII case, is not in terms or by implication 
in derogation of federal employee's rights under Title VII, and 
in fact strengthens the conclusion that Title VII, precisely 
because it is exclusive, must be as comprehensive and effective 
a remedy for federal employees as it is for all others.

D . The Administrative Complaint Process Does 
Not Permit Systemic Class Claims To Be 
Raised And Adjudicated.

Appellants argue that a class action may not be permitted 
because class claims had not been raised in the administrative 
process. Plaintiff-Appellee urges that an examination of the 
administrative procedures for adjudicating EEO claims demonstrates 
that class claims cannot be raised as part of an EEO complaint. 
Moreover, the "third-party" complaint procedure under 5 C.F.R.
§ 713.251, alluded to in the decision of the Civil Service Com­
mission (A.36), does not provide a vehicle whereby individual 
complainants can obtain an adjudication of class-type claims.
Thus, this is a case where there exists no adequate administrative 
remedy that had to be exhausted. See K. Davis, Administrative 
Law, § 20.07.

1. The Individual Complaint Process
Both the regulations on their face and decisions of the 

Civil Service Commission, including the one in this case, make 
it clear that class claims cannot be made by an individual

31



federal employee filing a complaint of racial discrimination.
Thus, individual complaints are processed pursuant to 5 C.F.R.
§§ 713.211 - 713.222; § 713.212 provides that those sections do 
not apply to "general allegation[s] of discrimination by an 
organization or other third party which [are] unrelated to an 
individual complaint of discrimination." The Civil Service 
Commission has authoritatively interpreted this language as not 
permitting "general allegations of discrimination within the 
context of individual complaints of discrimination." In a case 
involving NASA, an employee charged that she had been discrimina­
ted against when she was not selected for a particular promotion. 
She alleged that:

[M]inorities, as a class, have been and are discrim­
inated against because of the Center's personnel 
policies and practices as they pertain to recruitment, 
hiring, initial assignments, job classifications, 
merit promotions, training opportunities, retention, 
and the terms, conditions, and privileges of employ­
ment.

The Appeals Review Board of the Civil Service Commission, in a
32/

letter decision included in Appendix A, infra, pp. la-3a, affirmed
the agency's rejection of these allegations of class discrimination
as part of the individual complaint. It held that:

There is no provision in the civil Service regulations 
for the processing of general allegations of discrimi­
nation within the context of individual complaints of 
discrimination.

Rather, such allegations can only be raised "by an organization

32/
— ' All of the documents reproduced in Appendix A to this Brief 
were filed in the district court as attachments to the Memorandum
of law filed 9/2/75 (A.2) .

32



or other third party under the provisions of section 713.251."
This interpretation of the regulations has been expanded 

in a recent memorandum to all government EEO Directors sent out 
by the Commission's Assistant Executive Director in charge of EEO 
(App. A, pp. 4a-9a). The memo states that third-party allegations 
can be made by an individual only "as long as the allegations 
relate to general matters and are not related to individual com- 
complaints" (p. 5a). Consistent with these rules, the complaint 
form that is the only means whereby an EEO complaint can be 
instituted does not suggest in any way that class claims can be 
raised. It requires that a particular alleged discriminating 
official be named; it asks information concerning the individual 
complainant only; and it asks only what corrective action is 
requested for the individual (A.53).

Those restrictions on the questions that may be raised by 
individual complaints derive from an action by the Commission 
itself in a case raising charges of religious discrimination in 
promotions. The Board of Appeals and Review (now the Appeals and 
Review Board) found discrimination against Jewish employees 
generally and ordered relief for the individual complainants 
(B.A.R. decision No. 713-73-465, App. A, pp. 10a-17a). The 
Commission, exercising its authority under § 713.235 reopened 
the case for the purpose of establishing binding policy. It 
vacated BAR'S decision on the ground that the complaint was not 
"a valid first-party complaint," since the claim was a general

33/ This ruling became the subject of litigation in Barrett v. 
Civil Service Commission, 10 EPD ^ 10,586 (D.D.C. 1975), discussed 
infra.

33/

33



failure to promote Jewish employees since 1965 (see letter of 
December 19, 1973, App. A, pp. 18a-20a).

One consequence of these rules is that broad evidence of 
class-wide discrimination is not even admissible in an EEO com­
plaint adjudication. Thus, in B.A.R. decision No. 713-73-593 
(App. B, infra, pp. 21a-24a), the refusal of the Complaints 
Examiner to permit certain witnesses at the hearing into an EEO 
complaint was upheld. B.A.R. held:

The other witnesses requested by the complainant 
would not have first-hand knowledge of the com­
plainant's case, and it is assumed that they were 
to testify relative to the equal employment 
opportunity program with respect to Hispanic Ameri­
cans, and particularly to Puerto Ricans. Any 
complaint involving a minority group agency-wide 
is a "third-party" complaint and it is processed 
under a different set of procedures (p. 23a).

Finally, another restrictive rule limits the possible scope of
an EEO charge filed under Part 713. An employee must go to a
counsellor within 30 days after some act of discrimination, and
only matters occurring within that short period may become the
basis for the formal complaint. Any concept of a "continuing
violation," a principle long-recognized by the courts in Title
VII cases, has been squarely rejected by the Commission:

As regards the matter of "continuing" discrimination,
5 CFR 713-214 establishes a time limit in which a 
matter must be brought to the attention of an EEO 
Counselor before that matter can be accepted as a 
valid basis for a complaint. Therefore, the require­
ment implies that a complaint must be over a specific 
employment matter which occurred at a specific time. 
There is no provision whatsoever for accepting non­
specific complaints of "continuing" discrimination.

Decision dated October 15, 1974, App. A, infra, pp. 25a-27a.

34



These principles were all followed in plaintiff-appellee's
case. Proof as to general patterns of discrimination were con­
sidered only as background information. The restriction of proof 
at the hearing, particularly with regard to the apprenticeship 
program, was upheld on the ground it was "immaterial to his 
individual complaint of discrimination" (A.36). Evidence of past 
discriminatory acts was considered only in a limited way, again 
for "background" (Ibid). Most interesting is the fact that the 
Commission "noted" the lack of minority employees and that there 
was no clear reason for this lack. All it could do is suggest 
that the agency "might consider the possibility" of programs to 
end this apparent discrimination, since under its own regulations 
relief in an EEO complaint proceeding is limited to the one 
individual making the complaint. 5 C.F.R. § 713.271. Indeed, 
the failure to provide a mechanism for raising and correcting 
systemic, or class-wide problems was one of the main criticisms 
made by Congress in 1971 (see supra); the continuation of this
defect was critically noted by the Commission on Civil Rights in

34/
a recent report discussing in depth federal EEO enforcement.

2. Third-Party Complaints
The third-party complaint procedure under § 713.251 was 

similarly not available to the plaintiff and did not have to be 
followed as a condition to his filing a class-action complaint 
in court under Title VII.

First, § 713.251 itself specifically states that it applies 
only to general allegations "by organizations or other third

2 A /  United States Commission on Civil Rights, The Federal civil 
Rights Enforcement Effort-1974, Vol. V, To Eliminate Employment 
Discrimination (July, 1975), at pp. 621-22.

35



parties" that are "unrelated to an individual complaint of dis­
crimination. " Similarly, the explanatory Memorandum sent out by 
the Commission (App. A, infra, pp. 4a-9a), makes it clear that a 
third party complaint is not possible if the allegations relate 
to the complaints of any individuals. The general allegations 
involved here, of course, are related to the plaintiff's own com­
plaint.

Second, the third-party allegations procedure is not 
adjudicatory in nature. As described by the regulation and 
explanatory memo, its purpose is simply "to call agency manage­
ment's attention" to allegedly discriminatory policies (p. 4a). 
Third-party allegations are "handled solely through an agency 
investigation," (Ibid) and there is no right either to a hearing 
or to present evidence in any formal way. Further, the investiga­
tion itself:

[I]s not expected to cover individual cases in suffi­
cient depth which necessarily would result in findings 
or decisions with respect to those individuals (p. 6a).

There is no right to an appeal to the Civil Service Commission; 
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 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 adjudica­
tion 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"

-36-



will be notified of his right to file a civil action. It refers 
only to §§ 713.215, 713.217, 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, 
in other cases the government has 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 of the United States in Support of 
Motion of Defendants To Strike, To Sever, To Dismiss in Part, and 
To Remand In Part, p. 3, filed in Mean v. NASA, D.D.C. CA No. 74- 
1832) .

The failure of the Civil Service Commission to provide a
means to raise class claims was held to violate Title VII in
Barrett v. Civil Service Commission, 10 EPD 5 10,586 (D.D.C. 1975).
The court fould that the regulations were confusing and contra­

il/
dictory, and ordered the Commission to amend its regulations.
They must provide that the agency has the obligation to itself 
initiate an inquiry into class discrimination and to provide a

36/
remedy as an integral part of the individual complaint process.
H r TVA claims that they have considered class claims in connection 
with individual complaints. If so, it has been acting in violation 
of CSC regulations and directives. In any event, an individual 
complainant cannot be required somehow to discover that TVA has 
its own unannounced practice that is contrary to those regulations.
36/ The Solicitor General of the United States has acknowledged 
to the Supreme Court that "Commission rules ... effectively pro­
hibited administrative class actions," and that the Commission 
"has now approved in concept the propriety of administrative class 
actions." Brief for Respondents, Chandler v. Roudebush, No. 74-

-37-



Here, of course, TVA and the Civil Service Commission were put 
on notice of a substantial probability of class-wide discrimina­
tion in employment but did nothing about it.

In summary, one of the main criticisms of CSC practice in 
1971 and one of the main reasons § 2000e-16 was enacted was the 
failure to recognize or deal with systemic or class discrimination. 
The deficiency still exists, as this case illustrates. The lack 
of any administrative mechanism to raise and correct class claims 
cannot be a basis for limiting the power of the courts under Rule 
23 and Title VII.

III.
THE DISTRICT COURT WAS CORRECT IN CERTIFYING 
THE CLASS.

It is clear from the complaint filed in this case that 
the main thrust of this action deals with the Cumberland Steam 
Plant. Thus, defendants' fear that this case will involve every 
part of T.V.A. is unfounded. However, at this early stage in 
the litigation, long before discovery has been completed, it is 
not possible to define with narrow precision exactly what the 
appropriate scope of the class should be. For example, T.V.A.'s 
operations in other plants may be relevant, because of transfer 
rights, lines of promotion, etc., to the relief that may be 
necessary to correct fully the conditions of employees at the 
Cumberland Plant. Alternatively, if the district court finds

36/ (cont'd)
1599, p. 65. New regulations have been published in the Federal 
Register but nothing has as yet been adopted. 41 F.R. 8079 (Feb. 24, 1976).

-38-



discrimination at the Cumberland plant but also finds that there
are no positions presently available there, it may be able to
give full relief only by the operations at some nearby plant.
Or, it may be shown that the situation at Cumberland is but one
aspect of a pervasive pattern of discrimination that broadly
affects T.V.A.'s operations. Under those circumstances, only
broad relief can give the plaintiff here an adequate remedy to

37/
eradicate the "badge of inferiority" that necessarily attaches to 
any black worker whose employer discriminates against the class.

For these reasons, it is simply premature at this stage 
of the litigation for this Court to even attempt to define the 
parameters of the class. The district court has recognized 
that the number of persons and scope of the class must be deter­
mined with precision and has specified in its order that following
discovery further proceedings relating to the scope of the class 

38/
will be held. In other words, neither the district court nor the 
parties are irrevocably locked into a massive proceeding to 
reform every aspect of T.V.A. What the district court has done, 
and legitimately so, is to define the class in general terms so 
that appropriate discovery may be conducted which will illuminate

■2Z/ Sosna v. Iowa, 419 U.S. 393, 413, n. 1 (White, J., dissenting).
38/ We call the Court's attention to plaintiff's First Interroga­
tories and the responses thereto contained in the Appendix begin­
ning at p. A.99. We have included this material to illustrate 
the variety of issues and factual material that must and will be 
developed in this case accurately to determine the proper scope 
of the class here. We would also point out that since the suit 
was filed three additional plaintiffs have intervened, illustrat­
ing the class-wide aspects of the litigation.

-39-



the necessary and proper scope of the class. It would be 
inappropriate, therefore, for this Court to circumscribe the 
discretion of the district court on the basis of the speculation 
indulged in by the appellants.

Finally, the appellants' whole discussion of the question 
of the scope of the class demonstrates a profound lack of under­
standing of the nature of racial discrimination in employment, 
and the peculiar appropriateness of and necessity for the broadest 
feasible class relief if it is to be eliminated. For example, 
it is asserted that there can be no typicality of claims because 
a laborer, as here, is in different circumstances than an
engineer or other professional employee. But what appellants 
overlook is that all black employees regardless of category or 
status share one characteristic —  their race. If there is 
discrimination because of race, all members of the class of 
black employees are affected since, "Race discrimination is 
peculiarly class discrimination." Senter v. General Motors Corp., 
532 F.2d 511, 524 (6th Cir. 1976). It is the commonality of race 
and the commonality of the affect of racial discrimination that 
establishes, in the first instance, the necessary typicality of 
claims.

Of course, as Senter recognizes and explains, once class­
wide discrimination has been shown, each member of the class must 
establish that he or she has suffered personal loss in order to 
obtain relief. Ibid. It is at this second stage of most Title 
VII suits that the particular circumstances of each employee come 
into play. That each person may have had different employment

-40-



experiences does not, however, mean that a class action with
broad class-wide relief is not appropriate. See Franks v.
Bowman Transportation Co., ___ U.S. ___, 47 L.Ed.2d 444, 465-67
(1976). In short, the law is clear that a class action of broad 
scope may be maintained by plaintiff to correct not only problems 
directly related to his situation, but those arising from dis­
criminatory employment practices affecting all black employees. 
See Senter v. General Motors Corp., supra, and cases cited at 
517, 522-525.

CONCLUSION
For the foregoing reasons, plaintiffs-appellees pray that 

the decisions of the court below be affirmed.

AVON N. WILLIAMS, JR.
404 James Robertson Parkway 
1414 parkway Towers 
Nashville, Tennessee 37219

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
BILL LANN LEE

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs- 
Appellees

-41-



CERTIFICATE OF SERVICE

I hereby certify that I have served the attached

Brief for Appellees on counsel for defendants by depositing the 

same, first class, postage prepaid, in the United States mail 

addressed to, Herbert S. Sanger, J. Esq., General Counsel, 

Tennessee Valley Authority, Knoxville, Tennessee 37902.

Dated: August 13, 1976.

Attorney Plaintiffs-Appellees

42



APPENDIX



UNITED- .^TATES C IV IL  S E R V IC E  COM
A P P E A L S  R E V I E W  B O A R D

W A S H IN G T O N .  D .C  20415

I-. •" j’" > \ . / , f
rM  v ̂. 0 'ibj J

\: • • j- .|H *ffl< ft f » tt **ft« to
i b / m  -'.J 

A R B  illHO: ka
— OTffltrrr 18, 1974

toli imuMa

R E G I S T E R E D  :iAII, - RET U R N  R E C E I P T  R E Q U E S T E D
Mr. A l l e n  Black, Jr. Before: M c D onald, Tillman, and R o d ,
N.A.A.C.P. Legal D e f e n s e  and B o a r d  Members. By m a j o r i t y

E d u c a t i o n a l  Fund vote, M e m b e r  F.ocl disagreeing.;
We s t e r n  Regional Office  
12 G e a r y  Street
San Francisco, C alifornia 9 4108 j

l1
Dear Mr. Black:

This is in f u r t h e r  refexancc— to-your-ripj)eal to the A p p e a l s  R e v i e w  
Board on beha l f  of Glo r i a  A. Williams-; from the d e c i s i o n  issued
on M a y  17, 1974, by thadJ/.As sirs tail t~Adt7Tnistra tor for Equal O p p o r ­
tunity Programs, Nati o n a l  A e r o n a u t i c s  and Space Admin i s t r a t i o n ,
J o h n s o n  Space Center, w hich r e j e c t e d  portions of the c o m p l a i n a n t ' s  j
formal complaint of discrimination.

The record r eveals that the complainant, a Clerk Typist, GS-4, .» -
contacted an Equal E mployment O p p o r t u n i t y  Counselor on F e b r u a r y  21, _ .. •*., »' *•
1974, and submitted a formal complaint of d i s c r i m i n a t i o n  based on 
race (Black) and sex (female) on A p r i l  29, 1974. In this formal  
complaint the complainant c o n t e n d e d  that she had b e e n  d i s c r i m i n a t e d  
against rela t i v e  to h e r  n o n - s e l e c t i o n  for the p o s i t i o n  of G e n e r a l  
Supply Specialist, CS-2001-5, in J a n u a r y  1974 and that she had been 
d i s c r i m i n a t e d  against on a c o n t i n u i n g  basis relat i v e  to job assignments, 
promotions, job classification, and opportunity for training. In 
addi t i o n  the formal complaint a l l e g e d  as follows:

Also, I b e l i e v e  that females, as a class, • i
and minorities, as a class, h a v e  bee n  and
are d i s c r i m i n a t e d  against b a c a u s e  of the ;
Center's personnel policies and p r a ctices
as they p ertain to recruitment, hiring, ;
initial assignments, job classifications,
m e r i t  p r o m o t i o n s , training opportunities,
retention, and in the terms, conditions,
and p rivileges of employment.

i
In its deci s i o n  of M a y  17, 1974, the a g e n c y  stated in part

Y o u r  complaint of discrimination, received 
b y  the Offi c e  oi E q u a l  O p p o r t u n i t y  Frograms,

T H E  M E R IT  S Y S T E M — A G O O D  I N V E S T M E N T  IN G O O D  G O V E R N M E N T
- l a -



, 1

2

h a s  b e e n  acce p t e d  on the issues r e l a t i v e  
to the all e g a t i o n s  of d i s c r i m i n a t o r y  a c t i o n s  t 
ag a i n s t  y o u  as an individual. Compl a i n t s  
b a s e d  on general a l l e gations of d i s c r i m ­
i n ation a g ainst m i n o r i t i e s  as a class and 
f e males as a class must be filed under 
p r o c e d u r e s  outlined in the U. S. C ivil  
Se r v i c e  C o m m i s s i o n  F e d e r a l  P e r s o n n e l  
M anual, Section 713.251 . . . .

T h e  appeal to the Board concerns the agency r e j e c t i o n  of the g eneral  
a l l e g a t i o n s  of d i s c r i m i n a t i o n  included in the formal c o m plaint and 
quoted above.

T h e  Board has reviewed the record in this case and has deter m i n e d  
that the a g e n c y  r e j ection of the general a l l e g a t i o n s  of d i s c r i m i n a t i o n  
w a s  proper. In this regard the Board notes section 713.212 of the 
Civil Service regulations w h i c h  provides as follows:

(a) The agency shall provide in its 
reg u l a t i o n s  for the accep t a n c e  of a 
c o m plaint from a n y  aggrieved e m p l o y e e  
or ap p l i c a n t  for employment w i t h  that 
a g e n c y  w h o  b e l i e v e s  that he. has bee n  
d i s c r i m i n a t e d  against b e c a u s e  of race, 
color, religion, sex, or.national  
origin. . . .

(b) Sections 713.211 through 713.222 do 
not a pply to the c o n s i d e r a t i o n  by an 
a g e n c y  of a g e neral alleg a t i o n  of d i s ­
c r i m i n a t i o n  by an o r g a n i z a t i o n  or other 
third p arty w h i c h  i s  u n r elated to an 
i ndividual complaint of d i s c r i m i n a t i o n  
subject to section 713.211 t h rough 713.222.
(Section 713.251 a p plies to g e neral 
a l l e g a t i o n s  by  o r g a n izations or other  
third parties.)

T h e r e  is no pr o v i s i o n  in the C i v i l  Service reg u l a t i o n s  for the 
p r o c e s s i n g  of general a l l e g a t i o n s  of d i s c r i m i n a t i o n  w i t h i n  the 
context of individual c o m p l a i n t s  of discrimination. G eneral 
a l l e g a t i o n s  a r e  not w i t h i n  the p u r v i e w  of s e c t i o n  713.212 of

-2a-



3

the Civil Service reg u l a t i o n s  and m u s t  be raised b y  an o r g a n i z a t i o n  
or other third party under the provi s i o n s  of section 713.251. The  
a g e n c y  has n o t e d  in its final d e c i s i o n  that the a cceptance’ of the 
comp l a i n a n t ' s  i ndividual complaint of d i s c r i m i n a t i o n  w o u l d  not 
p r e c l u d e  the filing of a d d i t i o n a l  all e g a t i o n s  u n d e r  s e c t i o n  713.251 
and that it w a s  conti n u i n g  to p r ocess the i ndividual and specific  
all e g a t i o n s  u n d e r  s e ction 713.212.

Based on the above, the A p p e a l s  R e v i e w  Board h e r e b y  a ffirms the 
final agen c y  d e c i s i o n  of M a y  17, 1974.

C ivil Service r e g u l ations p rovide that d e c isions of the Board are  
final and there is no further right of a d m i n i s t r a t i v e  appeal. H o w ­
ever, if the c o m p l ainant is not satisfied wit h  this decision, the 
c o m p lainant is autho r i z e d  by s ection 717 (c) of the C i v i l  Rig h t s  Act 
of 1964, as a m ended on M a r c h  24, 1972, to file a civil a c t i o n  in an 
app r o p r i a t e  U. S. D i s t r i c t  Court w i t h i n  30 cale n d a r  days of the receipt 
of this decision.

For the Commissioners:

S i n c e r e l y  yours,

IdCtcuV &
W i l l i a m  P. B e r z a k  &

' Chairman

cc:
Ms. Glo r i a  A. W i l l i a m s  
3400 L u c a  i?2 
Houston, T exas 77021

D i r e c t o r  of E qual Emplo y m e n t  O p p o r t u n i t y  
N a t i o n a l  A e r o n a u t i c s  and 

S pace A d m i n i s t r a t i o n  
Code U
W a s h i ngton, D. C. 20546

-3a-



V U N ITED  S T A T E S  C IV IL  S E R V IC E  C O M M ISSIO N in itn.1 imi to

S u b j c c t : 

From:

To:

W A S H IN G T O N . D .C . 20415

JAM 2 7 1375

Third-party/fCTjepAtfons of Discri m i n a t i o n  

ing Kntoi— j f /I r v i n --------- .

As s i s t a n t  jixncuvivo Director

Directors of'Eoual Employment O p p o r t u n i t y  
Directors of Personnel

vout trn«*ci

Hie foilOv.’lnp., in question and ans w e r  format, is a d i s c u s s i o n  of 
specific issues wliicli Have be e n  raised recently in c onnection  
v;ith the p r o c e s s i n g  of third-party allegations of discrirr.iitc-1ion 
u n d e r  Section 713.251 of the Civil Service Commission's 
regulations.

As a preface, some general observations re g a r d i n g  the intent and 
proper use of the third-party provisions m a y  be useful. It is 
essential to distinguish b e t w e e n  this p r o c e d u r e  and the p r o c e d u r e 
for individual complaints of  discrimination. A t t e m p t s  to 
anologize. b e t w e e n  the individual complaint proce d u r e s  and the 
third-party procedures can lead to contusion and should be 
avoided.

The regulation pertinent to third-party all e g a t i o n s  (Sec. 713.251) 
provides for submission of "general allegations by orga n i z a t i o n s  or 
other third-parties of d i s c rimination in pe r s o n n e l  m a tters w h i c h  
are unrelated to an individual complaint of d i s c r i m i n a t i o n  ....
W e  believe the language her e  is self-exp l a n a t o r y  w i t h  regard to 
the nature of an allegation w h i c h  m a y  prop e r l y  b e  b r o u g h t  through 
the third-party procedure. Third parties can u s e  this pr o c e d u r e  
to call agency m a nagement's a t t ention to polic i e s  or p r a ctices  
w h i c h  they believe to be discriminatory. Such matters are h a n d l e d  
solely through an agency investigation and, at the request o f  the 
third party, review by the Civil Service Commission.

Individual complaints of discrimination, on  the other hand, are 
h a n d l e d  initially on an informal basis (through p r e c o m p l a i u t  EDO 
counseling), and then formally u n d e r  specifically p rescribed  
proce d u r e s  w h i c h  include investigation cf  formal complaints wi t h  
testimony taken in affidavit form; proposed resol u t i o n  at the 
conclusion of  the investigation; hearings c o n ducted by independent  
examiners which are recorded verbatim; a final deci s i o n  by the 
agency; and right of appeal b y  the individual complainant to the 
Civil Service Commission's A p p e a l s  Review board.

T K C  M E R IT  S Y S T E M — A G O O D  IN V ES T M EN T  IN G O O D  G O V E R N M E N T



The third-party procedures are not intended as a way of obtaining 
redre's in individual cases without filing complaints personally 
and aRcncies should make certain that the third-party procedure is 
not itsused in this manner. Commission regulations require that 
, j- - believe they have been discriminated against and
iho v S  to seek redress w u i  do so under the EEC counseling and 
discrimination complaint procedures provided for that purpose ana 
t n ^ M s  regard a complainant may be represented by a person of his 
or her o-!4 choosing. The third-party procedures are not designed 
or intended to be used as a substitute for the LLO counseling an 
complaint procedures.
Answers to specific questions, which follow should be considered 
in light of the general observations outlined aDove.

O u r s t i o n  1: May a third-party a l legation be filed by an
t o d l v f e - t H i o r e  accepting th. alleg a t i o n  ^  prop . - l y
remiirc the third-party to d e m o nstrate a r easonable intc.es

r L  t i l m s  the a l l e g a t i o n  on beha l f  of a n o t h e r  p a r s o n  group 
of nersons o r  class of persons? May an agency cancel or reject 
third-party allegation if a party w h o  has a l l egedly b e e n  the victi 
of discrimination so requests?

Answer:' Any third-party, regardless of consti t u e n c y  or stated 
purpo” ^ u l d  be presumed to have a r e a s o n a b l e  a n d  I n t i m a t e  
interest in the equal employment opportunity p r o g r a m  ot a 1 ede.. 
agency and we  see no reason to require the t h i r d-party to e s a o  is., 
a "nexus" for bringing general allegations r e g arding t e age n  y 
policies or practices. As long as a legitimate t m r d - p a r t j  stand.ng  
is s h o w n - t h a t  is, as long as the allegations r e l ate^to  
matters and are r.ot related to individual complaints  ̂ - C
does not preclude the filing of a third-party a l l e g a t i o n  by an
individual.

s j s  s w « ? i r = « . “  S = "
S S S S S S T JK  » S 5  S -S S 5 S
p r o c edures--with or w i t h o u t  the consent of an a g g r i e v e d  i ndividual  
through the filing of a t h i r d-party allegation on a m a t t e r  v n i c h  
w o u l d  be an appropriate basis or reason for frling an  i n divid - 
complaint of discrimination. A n y  third-party w h o  files allegation,  
u n d e r  these circumstances should b e  advised r e g a r d i n g  t e 
channels for pursuing individual complaints and shou l d  be  in orm.d 

.Uo third-partv procedures are not av a i l a o l c  for thi. purpose. <S «L« references herein to . ' i n d i v i d o a r  c o c a i n e s
include those in vl.ich two or  c o r e  persons j o i n t l y  file a cocplaint 
regarding the same action).

-5a-



y j.

: r: -  3

It is possible that a 'third-party m ight m e n t i o n  individuals' names 
in citing examples of the kinds of actions on w h i c h  general a l l e ­
gations regarding a personnel policy or prac t i c e  are based.
Menti o n i n g  individuals in connection wi t h  a third-party a l l e g a t i o n  
u n d e r  these circumstances docs not require the consent of those 
individuals and if in fact a general p r a c t i c e  of the agen c y  is 
b e i n g  questioned, then the fact that an individual n a m e d  on the 
complaint as b e i n g  affected requests c a n c e l l a t i o n  is not mate r i a l  
and should not preclude investigation by i h c  agency. It should be 
understood, however, that the agency inve s t i g a t i o n  (or a Civil 
Service Commi s s i o n  review) of general third-party allegations is 
not expected to cover individual cases in sufficient depth w h i c h  
nec e s s a r i l y  w o u l d  result in findings or decisions w i t h  respect to 
those individuals; and to avoid any m i s u n d e r s t a n d i n g  the a g e n c y  may  
find it desirable to inf o r m  the third-party, in a c k n o w l e d g i n g  
receipt of general allegations w h i c h  include re f e r e n c e  to in d i v i d ­
uals, of individual complaint procedures if spec i f i c  individual 
relief is sought. ■ .

Question 2 : Can an informal resol u t i o n  m e e t i n g  b e tween
m anagement and the third-party be required by the agency bef o r e  
accepting a third-party allegation? May informal r e solution be 
attempted at other points in the process?

Answer: Tlie terms "formal" or  " informal" are n o t  relevant to
the resolution of third-party allegations. R e s o l u t i o n  of a third- 
party allegation may be at t e m p t e d  at any point, as long as undue 
delays in processing do not result, and as long as the- terms of 
any resolution are reduced to w r i t i n g  ‘so that a d e c i s i o n  on the 
allegations is provided to the third-party as requ i r e d  b y  the 
regulations. A  third-party cannot be requi r e d  to m e e t  w i t h  age n c y  
m anagement for the purpose of effecting resolution, however, alth o u g h  
w e  think the practice of m e e t i n g  wit h  the complainants, p a r t i c u l a r l y  
a fter the investigation is completed, is a goo d  one.

Question 3 : If a third-party a l l e g a t i o n  is filed on the basis
that a proposed or contemplated manag e m e n t  or p e r sonnel a c t i o n  v,i 11 
hav e  a discriminatory effect on a person, a group of persons, or a 
class of persons, may the agency postpone, cancel or reject the 
a l l e g a t i o n  if that action is not implemented or i m p l e m e n t a t i o n  is 
delayed? . . .

A n s w e r: Generally speaking, decisions to take m a n a g e m e n t
actions involving employees are made a f t e r  due c o n s i d e r a t i o n  for all 
implications of the proposed actions and a l t e r n a t i v e s  to these 
actions, including their likely impact on the agen c y ' s  equal e m p l o y ­
m e n t  opportunity posture and after union consu l t a t i o n  w h e r e  a p p r o ­
priate. Where this is done, and w h e r e  the reasons for any propo s e d

-6a-



>

or contemplated actions and their probable effects are explained to 
employees who may be affected, third-party allegations of discrimi­
nation arc less likely to arise. Obviously, where the action 
complained about has in fact never been taken then there is no 
basis for the third-party allocation and this can be relayed to the 
third-party in the agency's reply.

O u e s t i o n  4: May management, al l e g e d  d i s c r i m i n a t i n g  officials
a n d / o r  alleged victims of d i s c r i m i n a t i o n  have access to copies of 
the third-partv allegation?- To whom m a y  the file b e  shown? May 
that person be g i v e n  the o p p o r t u n i t y  to comment u p o n  the file prior 
to the decision? After the agency decision has beer, made, is the 
file an open record? If not, to w h o m  may it be shown?

Answer: In a properly presented third-party matter there is no
reason why any party who is mentioned--either by name or by 
implication--should not be able to see the allegations; and we 
believe management officials (including those against whom allega­
tions have been made) need to be aware of what has been alleged 
because they will normally be expected to contribute information 
leading to a resolution of the matter.
It should be borne in mind that an allegation is just that, and that 
official actions are taken, if they arc taken, on the basis of facts 
developed and not solely on the basis of allegations. Only the 
agency (or, on review, the Civil Service Commission) can take or 
order" corrective action, including disciplinary action if appropriate, 
in connection with a third-party allegation. This should be made 
clear to any persons who express concern regarding their personal 
relationship to the allegations, including persons who may be named 
by third-parties as alleged discriminating officials.
The sole purpose of an investigation into third-party allegations 
should be to determine and record the facts, so that the third-par^y 
can be advised of them, and so that responsible management can take 
whatever action is appropriate based on the facts. Comments should 
be accepted from anyone who comes forward to contribute factual 
Information, although the official responsible for the conduct of 
the investigation should make determinations as to what is relevant 
and pertinent and should therefore be included in the file.

The investigative file in a third-party case may be shown to 
interested individuals in order for them to be able to contribute 
useful input or followup. Comments of these individuals may or may 
r.ot be included or referred to in the file, depending on the investi­
gating official's determination as to their relevancy. The case will 
ordinarily be closed when a decision has been made and delivered to 
the third-party. We sec no reason, however, why the agency's copy of 
the file could not be made available for review by interested parties 
after the case is closed, with any appropriate deletions where an 
invasion of an individual's privacy might occur.

4

-7a-



5

T here are, incidentally, no procedural requirements for the i n vesti­
gation of third-party allegations as there are [n . ^  S a m p l e  
complaint investigations. T here is no requirement for ^ ac!^  = 
that evidence even be obtained and recorded m  .he form of .ifrioav . 
The regulations covering third-party allegations are intended to 
afford agencies m a x i m u m  flexibility and opportunity to tailor tneir 
investigative techniques and approaches to the situation in  each
case.

Question 5 : Are there any grounds upon w h i c h  an agency m a y
reject a third-party allegation?

Answer: A n  agency would be justified in rejecting a third
p a r t y  a llegation if it we r e  so v a g u e  as to m a k e  investigation  
impossible! In such cases, however, the agency shoulu e x plain this 
to' the third-party and provide an  o p p o rtunity for the allegation, 
to be  m a d e  mor e  specific.

Agen c i e s  may also reject allegations w h i c h  are not p r o p e r l y  under 
the p u rview of Section 713.251 of the Civil Service C o m i s s i o n  s 
regulations —  i . e . , do not allege, that agency policies o. p r a c t i c e ,  
arc discriminatory on  the basis of race, color, religion, sex, oi 
£ « l £ “ rlS in. «  those v h i c h  should bo processor »=
complaints.

Question 6: Does the Commission anticipate assuming juris­
diction on third-party allegations when they are filed with 
Commission? .•

Answer- Organizations which erroneously direct third-party 
allegations"brought under Section 713.251 to the Civil Service 
Commission will be referred to the agency, where initial processing
must take place.
Letters or other conmunications to the Commission which arc not 
specifically filed as third-party allegations under Section 71o.251, 
however, will generally be handled as ordinary correspondence, 
unless the Commission determines that the matter should be processed 
under Section 713.251. Where appropriate in connection with the 
preparation of replies to such correspondence, the Commission may 
ask agencies to obtain and furnish information necessary to enable 
the Commission to determine the validity of any allegations, or 
other information needed to respond to the writer and to assure tha 
act i o n  is taken where it is indicated by the facts.

" -8a-



G

W e  hope this discussion of specific issues will b e  h e lpful to you 
in the p r ocessing of any third-party a l l e gations w h i c h  may a rise  
in your agency. And will help also in p u t t i n g  the thire-p*-rty 
p r o cedure into proper p r o s p e c t i v e  vis-a-vis the individual EEO 
counseling and d i s c rimination complaint process.

11
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U N I T E D  S T A T E S  C I V I L  S E R V I C E  C O M M I S S I O N  

B O A R D  O F  A P P E A L S  AND.. REVIEW  ' 
W a s h i n g t o n ,  D. “ “-------- —

D E C T S

Indexed Under: N°*
~ Di®?rf"ination, Allegation'of (He- 

tich°n«? i ovr*s!l ̂"?ro!r-otion* 7aii-to be Selected ror

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T Y P E  CASE: D i s c r i m i n a t i o n  B a s e d  Or
R e l i g i o n  (Jev.-i.snJ

I N T R O D U C T I O N

By lett e r  dated N o v e m b e r  17, 1972, T>:-"--r . and
n u b n i c t e d  an appeal, th r o u g h  L l u - i ^ V c r r - s e a t S i v a ,‘ fror. 

a d e c i s i o n  issued by the E  :partment of the N a v y  on Novemi. ar 9, 1972, 
w h i c h  found that the e v i d e n c e  of record did not s u p p o r t  ice c o m p l a i n a n t ' s  
a l l e g a t i o n  that the agency s f a i l u r e  to p r o m o t e  the m  res tired f r o m  
d i s c r i m i n a t i o n  b a s e d  cn religion, c o n t r a r y  to the F i n d i n g s ,  R e c o m m e n d e d  
Dec i s i o n ,  and R e c o m m e n d  A c t i o n  by the A p p e a l s  Exa m i n e r .  .

•> . «•'> > ‘

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S T A T E M E N T  OF  T H E  CASE

: c o m p l a i n a n t s  arc e m p l o y e d  in the B u y i n g  B r a n c h e s  of th 
D i v i s i o n ,  A v i a t i o n  S u p p l y  O f f i c e ,  '• _

f* J) r\
t C-V V.;,

A l l  three 
P u r c h a s e  Div:
•Until her p r o m o t i o n  to P r o c u r e m e n t  Age n t ,  CS-11, in late 1972,

e m p l o y e d  as a P r o c u r e m e n t  Agent, CS-9. cttr3SSE2£2f*-i 
and IV.~TL _ . a r e  e m p l o y e d  as C o n t r a c t  N e g o t i a t o r s ,  GS-12.

On  J a n u a r y  21, 1972, the c o m p l a i n a n t s  c o n t a c t e d  an E q u a l  E m p l o y m e n t  
O p p p r t u m t y  C ounselor, and, in a c o m p l a i n t  s u b m i t t e d  by their 
r e p r e s e n t a t i v e  on M a r c h  c5, 1972, they a l l e g e d  that they and o t h e r  
J e w i s h  e m p l o y e e s  in the B u y i n g  B r a n c h e s  h a d  " b e e n  d e n i e d  p r o m o t i o n  
or. f h a d ] fai l e d  to be p r o m o t e d  b e c a u s e  of t h e i r  r e l i g i o n . "  In t h e i r  : 
complain.., they a l l e g e d  that, they v e t o  w e l l - q u a l i f i e d  for promotion;' 
til*.. M o n - J c w i s h  er-.n 1 ove.-Q e-i.ocrr. w e r e  i n f e r i o r  to the i r s

theirs had b e e n  p r o m o t e d  
no p r o m o t i o n s  of J c w s•an

■Jcwis h er.pl oyc.c s w h o s e qualif icac
i long th of sc rv ice was s h o r t c v th
sy had n o t ; nnc! that the re had bee
E l v i s ion be yor.d the g race GJ- 9 le
1 tl'.C folic;: corrccti vc act i o n :

T h e y

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a. I m m e d i a t e  p r o m o t i o n s  [of] the i n d i v i d u a l  complainant: 
h erein:

b. A ca r e f u l  review. . . of the p e r s o n n e l  files of J e w i s h  
e m p l o y e e s  i n  the B u y i n g  B r a n c h ,  P u r c h a s e  D i v i s i o n ,  of 
the N a v y  A v i a t i o n  S u p p l y  Office;

c. I m m e d i a t e  p r o m o t i o n s  [of] those J e w i s h  e m p l o y e e s  f o u n d  to 
b e  q u a l i f i e d  for and d e s e r v i n g  of suc h  p r o m o t i c n s ; and

d. A p p r o p r i a t e  d i r e c t i v e s  and i n s t r u c t i o n s  . . .  to all
s e l e c t i o n  p a n e l s  and p e r s o n n e l  a u t h o r i t i e s  de-'.ling w i t h  
p r o m o t i o n s ,  b r i n g i n g  f o r c e f u l l y  to t h e i r  a t t e n t i o n  the 
p o l i c y  of the D e p a r t m e n t  of the N a v y  t o w a r d  all m i l i t a r y  
and c i v i l i a n  p e r s o n n e l  in the m a t t e r  of r e l i g i o u s  
d i s c r i m i n a t i o n  as is m o r e  p a r t i c u l a r l y  set f o r t h  in the 
p r o c e e d i n g  [sic] p a r a g r a p h  9 hereof.

•*»**•: 
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T h e  c o m p l a i n t  w a s  i n v e s t i g a t e d  fro m  April 11 t h r o u g h  M a y  2, 1972; 
a n d  a m e e t i n g  w a s  h e l d  on ‘une 5, 1972, in an u n s u c c e s s f u l  a t t e m p t  to 
r e s o l v e  the c o m p l a i n t  inf o r m a l l y .  By let t e r  d a t e d  J u n e  7, 1972, the
C rv r  t-\ o  H r  t* ^  £ t - lm  4 , , - ;  C 1 . .  O  ̂  . ^ , J ^

i n  w h i c h  n o  f i n d i n g  of d i s c r i m i n a t i o n  w o u l d  be m a d e ,  but the f o l l o w i n g  
c o r r e c t i v e  a c t i o n s  w o u l d  b». taken:

. . .  the n e a t  s e l e c t i o n  pan e l s  c o n s t i t u t e d  to p r o c e s s  
s e l e c t i o n s  in [Gf-11 t h r o u g h  GS-13] p o s i t i o n s  w o u l d  be. 
a p p o i n t e d  by Corns and l e v e l  . . .  as o p p o s e d  to D i v i s i o n  
level.

f.w -w ŷ

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kT‘ *' )

b. . . .  t hese s e l e c t i o n  p a n e l s  w o u l d  be. m a d e  a w a r e  of the 
s u b s t a n c e  of this rep o r t  by the E x e c u t i v e  O f f i c e r  or the 
C o m m a n d i n g  Officer.

c. . . .  a l l  A S O  c a n d i d a t e s  u n d e r  c o n s i d e r a t i o n  by these 
s e l e c t i o n  p a n e l s  w o u l d  be  i n t e r v i e w e d  for suc h  p o s i t i o n s .

d. . . .  a w r i t t e n  d o c u m e n t  r e p o r t i n g  the b a s i s  for s e l e c t i o n  
a n d  n o n - s e l e c t i o n  of all c a n d i d a t e s  for s u c h  p o s i t i o n s  by 
t h e s e  p a n e l s  w o u l d  be s u b m i t t e d  for C o m m a n d  a p p r o v a l .

T h e  c o m p l a i n a n t s ,  by letter fro m  their r e p r e s e n t a t i v e  d a t e d  J u n e  9, 1972, 
e x p r e s s e d  d i s s a t i s f a c t i o n  w i t h  the a b o v e  p r o p o s a l  and, on  A u g u s t  14, 1972, 
a h e a r i n g  w a s  h e l d  at their request.

I n  a r e p o r t  to the a g e n c y  d ated S e p t e m b e r  11, 1972, the. A p p e a l s  E x a m i n e r  
v n o  c o n d u c t e d  t h e , h e a r i n g  in this case s t a t e d  that "th e  c i r c u m s t a n c e s  
s u r r o u n d i n g  [the c o m p l a i n a n t s ’] fa i l u r e  to a c h i e v e  p r o m o t i o n ,  plu s  the

<?£ p r o m o t i o n  a b o v e  GS-9 of any Jew, c o n v i n c e s  us that t here is m o r e

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r e c o ~ ^ S ^ iSt-C3l-°dc!ity °n Vhich c‘lcxr complaint is based." Vc 
co,pi;i“a n c s \ n " h r L s i r o f hreUcioa.had discrininatcd gainst the

A G E N C Y  D E C T S T .ON’

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to c— * ■ « -

^  V ~ ^ ~ S c ° L xor r e l i g i o u s  croup ir. tl.c P u r c h a s e  D i v i s i o n " ;  X

that l c n - h no p 2 ^ n C - C C 1 C u r T ed ir- thc A p p e a l s  E x a m i n e r ’s f i n d i n g s  
wn.- fn f *C l V l c e » :a l t s c l f . is Of q u e s t i o n a b l e  v a l u e  and it
eyerie ,"cc ;''”  GU° e#“ '1‘‘x r “ iw l ” as civo"  to tl,e cop.pl .inents'

.gain«^^!tn.^«“n ^ o ^ c ”C,,rd.0f <llscri"ltn!'tior-___ i » ., . . " • “ P L ^-or..!'.»nce nva r d s  , c o n n c n L i o n s
C r a d e - n u x l d x n c  a s s i e n m e n t s ,  or  training, or of f a i l u r e  co " v e  ’
1 C r “ '-'-ors due w e x g n t  in s e l e c t i o n s  for p r o m o t i o n ;

CllC " e v a l u a tioi'. and s e l e c t i o n ' m e t h o d s  e m p l o y e d  w e r e

'rcaronc or ‘ Lhe ® e l c ctions w e r e  m a d e  for n u n m e r i c
a n d" ‘ ‘ u an> ° r w ,c s e x c c tees w e r e  not w o r t h y  of p r o m o t i o n " ;

(5) Jewxsh employees were included on some of the panels
made, s e l e c t i o n s  for C S - U  G P  ,, 01 CftC ? a n e l s  w h i c h
n o  e v i d e n c e  that a r e n e v  o £ « “  Jl"s Vosxtxons , and t here was
d i s t r i b u t i o n  o£ p o a i t i o u .  h o l d  by J e w i s h  e n p l o y a e s .

. J t o  a g e n c y  c o n c u r r e d  in the f o u r  a c tions p r o p o s e d  by the C o r o a n d i n -  
O f fice, m  hi= let t e r  to the cor.pl.,insets d a t e d  J u n e  7 1072- end
Co- -a V ’a£ n f f •f o l l o w i n G r e c o m m e n d a t i o n s  w e r e  b e i n g  mad e  to the C o m m a n d i n g  Ofricer: ° L1U-

d i c n e P t h e ' s - f  T ? - ” ” ' “ ! I i d l I s  « c o n c e r t e d  e f f o r t  to

p r o m o t i o n  b e v o n d  GS-9 on the b-.-i- of ,i„ , • CC lor___ _ . DUoii. 0 1  tl'.e s t a t i s t i c s  c o n c e r n i n r
p r o m o t i o n s  to J e w i s h  e m p l o y e e s  s i n c e  1965"; '• ^

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(2) 'that 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  P r o g r a m  t r a i n i n g  and 
s u p e r v i s o r y  t r a i n i n g  stress the i m p o r t a n c e  of. r e f r a i n i n g  from 
c o m m e n t s  or j oxes w h i c h  m i g h t  be c o n s t r u e d  as i n d i c a t i o n  of i n s e n ­
s i t i v i t y  toward p e r s o n s  of a p a r t i c u l a r  race, color, re l i g i o n ,  s e x  
or  n a t i o n a l  o r i g i n ; ”

(3) " t h a t  s e l e c t i o n  a d v i s o r y  pan e l s  e n s u r e  that the q u a l i f i ­
c ations of all c a n d i d a t e s  in the range of c o n s i d e r a t i o n  are r e v i e w e d  
i n  all cases and that r e c o m m e n d a t i o n s  arc fully d o c u m e n t e d " ;  and

(4) " t h a t  e m p l o y e e s  upon r e q u e s t  be a d v i s e d  of h e  areas, if
a n y , in w h i c h  i m p r o v e m e n t  could be m a d e  so as to inert asc t h e i r  c h a n c e s  
for future p r o m o t i o n  . . . "

R E P R E S E N T A T I O N ’S TO B O A R D  OF A P P E A L S  A N D  R E V I E W

P

B y  letter dated N o v e m b e r  .0, 1972, the c o m p l a i n a n t s '  r e p r e s e n t a t i v e  
p o i n t e d  out a n u m b e r  of errors in the t r a n s c r i p t  of the h e a r i n g  in 
t M c _  M<ie. In letters nr t-he n«.->*-d dar«-i P - r c n U . r  R * 1 **
1  m o  a. t. _    . . ’• *

n n d1972, the agency e x p r e s s e d  its c o n c u r r e n c e  in the spell ing cau 
p u n c t u a t i o n  c o r r e c t i o n s  p r o p o s e d  by the c o m p l a i n a n t s '  r a p r e s e n t a t i v e , 
s u g g e s t e d  that a r e v i e w  be m a d e  of the a c c u r a c y  of the t r a n s c r i p t ,  
and e n c l o s e d  a report or the c o r r e c t i v e  a c t i o n s  t aken Iv  the a g e n c y  
in this case. * 0

T h e  c o m p l ainants' r e p r e s e n t a t i v e ,  in a letter to the B e a r d  d a t e d  
l o b r u a r y  19, 1973, a l l e g e d  that the w r i t t e n  i n f o r n a t i o r  w h i c h  the 
a g e n c y  had g i v e n  to its s e l e c t i o n  a d v i s o r y  p a n e l  m e m b e r s  as p a r t  of 
the c o r r e c t i v e  a c t i o n  t aken in this case w o u l d  not e l i m i n a t e  the 
a l l e g e d  d i s c r i m i n a t i o n  a gainst J e w i s h  e m p l o y e e s .  He f u r t h e r  a l l e g e d  
.that 111 isi i n f o r m a t i o n  h a n d o u t  w o u l d  be " l i k e l y  to hav e  the o p p o s i t e  
e f f e c t  for the f o l l o w i n g  reasons: (1) the e m p l o y m e n t  s t a t i s t i c s
g i v e n  in the h a n d o u t  w e r e  for the P u r c h a s e  D i v i s i o n ,  w h i l e  the 
c o m p l a i n t  conc e r n s  e m p l o y m e n t  p r a c t i c e s  in the two B u y i n g  B r a n c h e s  
of that D i v ision; (2) tno. figure r i v e n  for the J e w i s h  p r o p o r t i o n  of 
the p o p u l a t i o n  m  the r e c r u i t i n g  a r e a  w a s  too lei;: and

[r ]e .er c n c e s  t o - ^ w j c l i g i o u s  [ p ]e r e e n t a g e s  and [q]uotas are 
[o]ut of [p]lace b e c a u s e  the c o m p l a i n a n t s  h a v e  n e v e r  " c l a i m e d  that 
the p e r c e n t a g e  of J e w i s h  e m p l o y e e s  at each g r a d e  l e v e l  s h o u l d  
a p p r o x i m a t e  the p e r c e n t a g e s  of the J e w i s h  p o p u l a t i o n "  and b e c a u s e  
•no i n d i v i d u a l  s h o u l d  be r e q u i r e d  to giv e  up his r ight to be j u d g e d  

on  his own meric s i m p l y  b e c a u s e  e m p l o y e e s  of his r e l i g i o u s  c o n v i c t i o n  
a l r e a d y  a p p r o x i m a t e  the p e r c e n t a g e  of his g r o u p  in the p o p l u a t i o n . "  
T h e  c o m p l a i n a n t s  conte n d e d ,  in the F e b r u a r y  19, 1973 l e t t e r  they 
s u b m i t t e d  chroui;!i their r e p r e s e n t a t i v e , cbac " w i l f u l  or m a l i c i o u s

237

f— '
Kv-i ;

-13a-



n
N
y

A

r

intent: . . . s h o u l d  not b e  c o n s i d e r e d  an e s s e n t i a l  e l e m e n t  of a n
u n l a w f u l  d i s c r i m i n a t o r y  p r a c t i c e " ;  that " c o u r t s  h a v e  c o n s i s t e n t l y  
h e l d  that the p r o o f  [of d i s c r i m i n a t i o n ]  o f f e r e d  r.ay be less t h a n  
an a d m i s s i o n  or its e q u i v a l e n t  f r o m  a r e s p o n d e n t  that he h a s _ 
d i s c r i m i n a t e d  -because of race, r e l i g i o n  or n a t i o n a l  o r i g i n  or a 
c o m p l a i n a n t " ;  and that the B o a r d  " s h o u l d  no t  e x p e c t  the k i n d  of 
p roof w h i c h  it k n o w s  it is p r a c t i c a l l y  i m p o s s i b l e  to s e c u r e  in 
an y  s u c h  c o m p l a i n t . "  In a d d i t i o n ,  the c o m p l a i n a n t s '  r e p r e s e n t a t i v e  
a l i e n e d  that t h e  o r o m o t i o n  of on e  of the c o m p l a i n a n t s  f t o n ^ a  
p o s i t i o n  to one at the G S - 1 1  l e v e l  wa s  " Ion- o v e r d u e  and p r o b a b l y  
b r o u g h t  a b o u t  as a result of this v e r y  c o m p l a i n t " ,  and tnat it is 
n o t  e v i d e n c e  that this c o m p l a i n t  is no t  w e l l - f o u n d e d .  -

A  cop y  of a le t t e r  fro m  the complainant, w h o  w a s  p r o m o t e d  to C S - 1 1  
r e c e n t l y  w a s  e n c l o s e d  w i t h  the c o m p l a i n a n t s '  l e t t e r  of F e o r u a r y  19,
1973. In this letter. :he c o m p l a i n a n t  s t a t e d  c hat sh e  was tne only 
J e w i s h  e m p l o y e e  of e i t h e r  B u y i n g  B r a n c h  h o l d i n g  n G S - 1 1  p o s i t i o n ;  
that t here w e r e  no Jewr e m p l o y e d  in G S - 1 3  p o s i t i o n s  in e i t h e r  o. 
the B u y i n g  B r a n c h e s ;  that the o nly J e w s  in G S - 1 2  p o s i t i o n s  in tne 
B u y i n f  B r a n c h e s  w e r e  the o t h e r  two c o m p l a i n a n t s ,  and tnat she was 
no t  w i t h d r a w i n g  b e r  c o m p l a i n t  f o l l o w i n g  h e r  p r o m o t i o n  o e c a u s e ^ s h c  

the b a s i s  of h."* i-o-’pls-i-*■ w e q  s till v a l i d .  m e  . u r . n e r  
a l l e g e d " t h a t  h e r  p r o m o t i o n  was " l o n g  o v e r d u e " ;  that she " r a t h e r  
doubt led] that [she] wou. d h a v e  b e e n  p r o m o t e d  w h e n  [sne] w a s  w e r e  
[she] not one of the c o m p l a i n a n t s  in this d i s c r i m i n a t e  a case i and 
that, of e l e v e n  o e r s o n s  i n t e r v i e w e d  for the p o s i t i o n  for w n i c n  s h e  
w a s  s e l e c t e d ,  a n d  of the s i x  p e r s o n s  chos e n ,  sh e  wa s  the onl y  Jew.

O n  M a r c h  16, 1973, the B o a r d  r e c e i v e d  a n o t h e r  letter, d a t e d  M a r c h  12, 
1973, f r o m  the agency. In that l e t t e r  the a g e n c y  c o n t e n d e d  tha t 
s t a t i s t i c s  c i t e d  in the L972 e d i t i o n  of the W o r l d  A l m a n a c  i n d i c a t e d  

' t hat the p o p u l a t i o n  of the m e t r o p o l i t a n  a r e a  w a s  less
than 7% J e w i s h ;  and that the r e l i g i o u s  s t a t i s t i c s  c i t e d  by the agency 
in its h a n d o u t  to s e l e c t i o n  a d v i s o r y  p a n e l  m c m e c r s  w e r e  u n k n o w n  
p r i o r  to the i n v e s t i g a t i o n  and w e r e  u sed in the s u b j e c t  m e m o r a n d u m  
not to p r e c l u d e  s e l e c t i o n  b e c a u s e  a c e r t a i n  p e r c e n t a g e  w a s  r e a c h e d  
b u t  to co m p l v  w i t h  the p r o p o s e d  d i s p o s i t i o n  of the c o m p l a i n t  t m s  
c o m m a n d  c o m m i t t e d  it s e l f  to." Ti m  ag e n c y  als o  a l l e g e d  that the 
s t a t i s t i c s  g i v e n  in that m e m o r a n d u m  h a d  b e e n  b a s e d  on e m p l o y m e n t  
i n  the P u r c h a s e  D i v i s i o n  r a t h e r  than in the two B u y i n g  B r a n c h e s  
b e c a u s e  " r c a s s i g n m e n t s  h a v e  b e e n  m a d e  b o t h  in and out o.. and b e t w e e n  
the B r a n c h e s  and the staf f " ;  an d  that, w h i l e  the c o m p l a i n a n t  w o o  wa s 
p r o m o t e d  r c c c m . l v  w a s  corr e c t  in s t a t i n g  that she w a s  the onl y  J e w i s h  
e m p l o y e e  i n t e r v i e w e d  for the job, "it is m o r e  fa i r l y  put to s t a t e  
that all the c a n d i d a t e s  w h o s e  n a m e s  w e r e  b e f o r e  the s e l e c t i o n  p a n e *  _ 
w e r e  i n t e r v i e w e d  an d  that [she] w a s  the o n l y  J e w i s h  e m p l o y e e  c e r t i f i e d

;V-v-

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L

-14a-



6

for c o n s i d e r a t i o n . " In a d d i t i o n ,  it w a s  n o t e d  tha t  the o n l y  e m p l o y e e  
s e l e c t e d  fer p r o m o t i o n  to a p o s i t i o n  a bove the G S — 9 l e v e l  in the 
D i v i s i o n  s i n c e  the a b o v e  c o m p l a i n a n t 's p r o m o t i o n  is a l s o  J e w i s h . rcv<_i

A N A L Y S I S  A N D  r I N DINCS

T h e  e v i d e n c e  of re c o r d  s h e w s  that there w e r e  65 p r o m o t i o n s  to C S - 1 1  
a n d  G S - 1 3  p o s i t i o n s  in the B u y i n g  B r a n c h e s  of th.c P u r c h a s e  D i v i s i o n  
b e t w e e n  1965 and the dat e  of the i n v e s t i g a t i o n  of this c o m p l a i n t , and 
that, a l t h o u g h  227; of the e m p l o y e e s  of these b r a n c h e s  ar c  J e w i s h ,  n o n e  
of the e m p l o y e e s  p r o m o t e d  by these a c t i o n s  is J e w i s h .  T h e  r e c o r d  
a l s o  s h o w s  that the n e w i s h  e m p l o y e e s  w h o s e  n a m e s  a p p e a r e d  on p r o m o t i o n  
c e r t i f i c a t e s  for C S - 1 1  an i G 5 - 1 3  p o s i t i o n s  o f t e n  r e c e i v e d  as 'nigh or 
h i g h e r  n u m e r i c a l  rati n g s  for p r o m o t i o n  as the ( n o n - J e v i s h )  s e l e c t e e s .

A f t e r  a c a r e f u l  r e v i e w  ol the r e c o r d  in this case, the B o a r d  finds no 
r e a s o n  b a s e d  on m e r i t  for the r e p e a t e d  p r o m o t i o n  of n o n - J e w i s h  
c a n d i d a t e s  o v e r  J e w i s h  c a n d i d a t e s  w h o  a p p a r e n t l y  w e r e  e q u a l l y  or 
b e t t e r  q u a l i f i e d  for p r o m o t i o n .  As the A p p e a l s  E x n m i n i r  has i n d i c a t e d  
■in f H a  report, 1v>.s f i n d i n g s  Vw». cnKp^titod Co t!->c rKo
c o m p l a i n a n t s '  e d u c a t i o n a l  a c h i e v e m e n t s  w e r e  c o m p a r a b l e  to t h o s e  of 
e m p l o y e e s  w h o  hav e  r e c e i v e d  p r o m o t i o n s  to G S - 1 1  and G S - 1 3  s i n c e  1965.
In a d d i t i o n ,  the c o m p ] a i n a n t s  r a n k  as h i g h  or h i g h e r  t h a n  t h o s e  s e l e c t e d  
for p r o m o t i o n  w i t h  resp e c t  to the n u m b e r  of t h e i r  p e r f o r m a n c e  e v a l u a t i o n s  
a b o v e  the s a t i s f a c t o r y  level, an d  w i t h  r e s p e c t  to the n u m b e r s  of l e t t e r s  
of c o m m e n d a t i o n  w h i c h  thev h a v e  re c e i v e d .  T h e r e  is no d i s p a r i t y  b e t w e e n  
the age s  of the s e l e c t e e s  and t hose of the c o m p l a i n a n t s  w h i c h  w o u l d  
i n d i c a t e  that age wa s  a f a c t o r  in these s e l e c t i o n s  for p r o m o t i o n .
(The B o a r d  notes that it nas m a d e  no c o m p a r i s o n  of t h ; l e n g t h  of s e r v i c e  
of the s e l e c t e e s  and of the c o m p l a i n a n t s  b e c a u s e ,  a l t h o u g h  the 
c o m p l a i n a n t s  h ave a l l e g e d  that they h a v e  h a d  l o n g e r  r e l e v a n t  e x p e r i e n c e  
t h a n  the s e l e c t e e s ,  the B e a r d  docs not c o n s i d e r  l o n g e r  s e r v i c e  an 
i n d i c a t i o n  of s u p e r i o r  q u a l i f i c a t i o n s  for p r o m o t i o n . )

S e l e c t i o n  p a n e l  m e m b e r s  h a v e  cited as the r e a s o n  for t h e i r  f a i l u r e  
to s e l e c t  the c o m p l a i n a n t s  for p r o m o t i o n  the b e l i e f s  of s o m e  of t h e m  
that one or m o r e  of the c o m p l a i n a n t s  w a s  i n f e r i o r  to the s e l e c t e e s  
w i t h  r e s p e c t  to i n i t i a t i v e ,  k n o w l c d g e a b i l i t y , a d m i n i s t r a t i v e  a n d 
s u p e r v i s o r y  a b i lity, the a b i l i t y  to e x p r e s s  t h e m s e l v e s ,  adaptability,, 
and i n n o v a t i v e n e s s .  As h a s  b e e n  n o t e d  by the A p p e a l s  E x a m i n e r ,  h o w e v e r ,  
the c o m p l a i n a n t s  h a v e  s u b m i t t e d  e v i d e n c e  t h a t , in s o m e  a r e a s  in w h i c h  
s e l e c t i o n  a d v i s o r y  p a n e l  m e m b e r s  found t h e i r  q u a l i f i c a t i o n s  i n f e r i o r  
to those of the s e l e c t e e s ,  they hav e  r e c e i v e d  h i g h l y  f a v o r a b l e  
p e r f o r m a n c e  e v a l u a t i o n s ,  w h i l e  in o t h e r  areas the p a n e l  m e m b e r s  had 
i n s u f f i c i e n t  e v i d e n c e  on w h i c h  to d e t e r m i n e  that the q u a l i f i c a t i o n s  
of the c o m p l a i n a n t s  w e r e  i n f e r i o r  to those of the s e l e c t e e s .

p i

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.f*m VV XV V *. £■ii • v. - • V-.t 'y «• a: v -z.'ry V • -J?>lV.-.f-lyi -.
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I n  v i e w  of the ab o v e ,  the B o a r d  finds that t h e  a g e n c y  h a s  f a i l e d  to 
s h o w  a n o n r e l i g i o u s  m e r i t  b a s i s  for its f a i l u r e ,  o v e r  a p e r i o d  of 
s e v e r a l  y e a r s  p r i o r  to the d ate of t his c o m p l a i n t ,  to p r o m o t e  the 
c o m p l a i n a n t s  or any o t h e r  J e w i s h  e m p l o y e e s  of the B u y i n g  B r a n c h  to 
any p o s i t i o n s  a bove the CS-9 level.

T h e r e  is n o  i n f o r m a t i o n  in the r e c o r d  about the r e l i g i o u s  a f f i l i a t i o n s  
of e m o l o y c e s  b e l o w  the G S —9  level. T h e  r e c o r d  does s how, h o w e v e r ,  that, 
at the time of the i n v e s t i g a t i o n ,  J e w i s h  e m p l o y e e s  h e l d  n o n e  of the 
e i g h t  p o s i t i o n s  at the CS- 13 an d  G S - 1 4  lev e l s  in tne B u y i n g  B r a n c h e s , 
o n l y  207, of the 15 t o - 12 lositions w h o s e  i n c u m b e n t s  w e r e  i d e n t i f i e d  by 
r e l i g i o u s  a f f i l i a t i o n ,  an i n o n e  of the 13 G 3 — 11 p o s i t i o n s .  I h c  
s t a t i s t i c a l  e v i d e n c e  o h o w s  , h o w e v e r ,  that t h e y  h e l d  4 2 7, of the 48 
p o s i t i o n s  at the G S — 9 level w h o s e  i n c u m b e n t s  w e r e  ide.i’.i.icu by 
r e l i g i o n .  T h e  B o a r d  notes that, a c c o r d i n g  to the r'oov; s t a t i s t i c s ,  
o n l y  87, of the 36 e m p l o y e e s  w h o s e  r e l i g i o n  w a s  i d e n t i f i e d  b y  the 
i n v e s t i g a t o r  and w h o  h e l d  p o s i t i o n s  a b o v e  the >S— 9 l c  el i n  the 
B u y i n g  B r a n c h e s  ar c  J e w i s h ,  w h i l e  42/. at the G S — 9 l e v e l  w h o s e  
r e l i g i o n  is s p e c i f i e d  in the re c o r d  a r e  J e w i s h .

• _ • *. . i, ' h f ). 1V. r — •». J ••• •.••
± U H 7 i  l tlclL J U C . 1 C  ..i> U W  U  v
a g a i n s t  J e w i s h  e m p l o y e e s  on the 

r r e l i g i o u s  g r o u p  i n  the P u r c h a s e  
did not ch a r g e  any i n d i v i d u a l  

e B o a r d  n o t e s  tha t  n e i t h e r  the
n a m i n g  of an i n d i v i d u a l  or i n d i v i d u a l s  r e s p o n s i b l e  for the d i s c r i m i n a t i o n ,  
no r  e v i d e n c e  of o vert p r e j u d i c e  or d i s c r i m i n a t i o n  on the. p a r t  of any 
o f f i c i a l ,  is e s s e n t i a l  in a case in w h i c h  a f i n d i n g  of d i s c r i m i n a t i o n  

made. T h e  B o a r d  a l s o  n o t e s  that the fact that J e w i s h  e m p l o y e e s  
w e r e  a m o n g  the m e m b e r s  of s ome of the s e l e c t i o n  a d v i s e r /  p a n e l s  doe s 
nor. i n d i c a t e  that t here c oold b e  no d i s c r i m i n a t i o n  a g e i r s t  J e w s  w i t h  
r e s p e c t  to p r o m o t i o n s .

jn l ight of the. e v i d e n c e  c ited a b o v e  of the d i s p a r i t y  in t r e a t m e n t ,  w i t h  
r e s p e c t  to p r o m o t i o n s  , b e t w e e n  J e w i s h  and •noil-Jewish e m p l o y e e s  of 
s i m i l a r  t y . a l i f i c a t i o n s , a n d  in the e s s e n c e  or e v i d e n c e  ot n o n . e l i g i o u o  
E c r i t  r e a s o n s  for thi s  d i s p a r i t y  in t r e a t m e n t ,  the B o a r d  c o n c l u d e s  (1) 
that the e v i d e n c e  of r e c o r d  i n d i c a t e s  that t h e r e  lias b e e n  d i s c r i m i n a t i o n  
a g a i n s t  J e w i s h  e m p l o y e e s  w i t h  r e s p e c t  to p r o m o t i o n s ;  (2) that this 
d i s c r i m i n a t i o n  has h a d  an a d v e r s e  e f f e c t  on the p r o m o t i o n a l  o p p o r t u n i t i e s  
of the t hree c o m p l a i n a n t s  and (3) that, in the a b s e n c e  or this a p p ^ r e n c  
d i s c r i m i n a t i o n , the two c o m p l a i n a n t s  w h o  h a v e  not b e e n  p r o m o t e d  r e c e n t l y  
an d  w h o  n o w  occupy’ G S — 12 p o s i t i o n s  w o u l d  h a v e  b e e n  p r o m o t e d  to G S — 13.

D i v i s i o n  
w i t h  dis

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d u c t s io:: a ::d  ? s .c o y ^ r / . ;x : ^  co-ia K c t i v l  a c t i o n

•

The decision issued by Che Departr.ant of the Navy in-this case on 
Nover.ber 9, 197?, is hereby reversed. No corrective action is 
reco~r.en.ded for rS£EZ2H2£2Si because the record shows that she has 
beer, pror.o ted since the tire the cor.plai.rt was yil ed. however, c.»s

next GS-13 vacancies ter v.licit tiiay quaur fy.

or co?.?.;:ctivt action

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A  r e p o r t of the ac.ti ens ta'rc-.n or p r o p 0*3•*j c  in ros p o n s a  to the a b o v e
ro.cnr-.-.ordaLio/is shoeild b e  furnis 1 . ^ . 4  *.“N ♦-1*n> -*onrd i.’i.thin ten ca 1 er.d -.r
days aft or the. d ate of r e c e i p t  o e .. *. -•i. ii«».3 doc: r : or.. T h e  r e p o r t  s h o u l d
b e  a d d r e use d  to liit Dor. vd of App c 2 s ar./ D ■».. »* i *• •*4«* - -• •* * U n i t e d  S t a t e s  C i v i l
S e r v i c e Ccrarii s s i o n , has hi nr,ten , ^ r* i' • ^ • i A: t en t i o n : Co rap 1 i a:.: a
Desk.

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yvl at ions 'ArovJ. do l‘\c  cl-: c i 3 i c r. of the: Do,
4 » ̂  1*e is n o f urt be:: r*J :;hr of •: !l i ;■i r r •; i v c <’ p ;
cot.pl a in:: t >; h; ll * Z 1 c* * LI. i .. J. V. <■ l ill.i.r, d;-1 V . —

nod by  so c. V?! CLl 731 vO; ui kO.: . Civ i 1 t»-: <- *< \.. ^.»11* 3 .\ct
: a c i v i l ac i o.i, Ik’.: r.n £rp’r\o: j ̂  *«ia u. s D 1 j•; t j:
.rty (30) ca .lend\:.r d r y 5  oi thei i r re ccip L Of Lh

For th e  Coir.rr.is si o n e r s  :

YJillian ?. Dcrzal; 
C h a i r  r:an

Apri1 1973

H



A

Decem ber 1 9 ,  1973

M r .  M. M e l v i n  C o ra le w  
A t t o r n e y  a t  l. w 
1333 C h e s tn u t  s t r e e t  
P h i l a d e l p h i a . , " c n n s y lv a n ia

D e a r  M r .  S h rn lo w :

EETUHNta

19107

n a y ,  in  m a i l '  
t h e  h o a rd  o f

T h i s  i s  i n  f u r t h e r  re s p o n s e  t o  y o u r  l e t t e r  o f  Movember 2 9 ,  1973  
r e n a r  i i m  th e  d i o : r i m i  n a t i o n  c o m o la in t  c a s e  o f  Mr*-. Je a n n e  S.
Ell-mart, M r .  i t i l  con ft .  M e l l o n ,  and M r .  L o u is  S h a p i r o ,  w h ic h  vas  
d e c i d e !  by t h e  C o m m is s io n 's  Roard  c f  A p p e a ls  and R e v ie w  cn 
A p r i l  1 3 ,  1973 and re o p e n e d  by th e  C o - a i s s i o n e r s  o f  t h e  C i v i l  
S e r v i c e  C o rra ls s in n  cn hevem bor 1 4 ,  19 7 3 .

I n  v o u r  l e t t e r  you q u e s t i o n  t h e  a u t h o r i t y  o f  t h e  C o m m iss io n ers  t o  
rs o n e n  t h e  c a s e ,  and yon p r o t e s t  t h e i r  d e c i s i o n  r e v e r s i n g  th e  
d e c i s i o n  o f  t h e  h ea rd  o f  A p p e a ls  and R e v ie w  and a f f i r m i n g  t h e  d e c i s i o n  
o f  t h e  S e c r e t a r y  o f  t h e  i'.avy. You r e q u e s t  t h a t  te a  d e c i s i o n  cn tne^  
Co;v-..nscioners La r e s c i n d e d .  F o r  y o u r  i n v o n . u t i o n ,  u n d e r  t r .s  p ro v is io n . - ,  
o f  S e c t i o n  7 1 3 . m f .  o f  t h e  C i v i l  S e r v ic e  R c - o j l a f i c n s , t h e  C c r v . is s io n e r s  

u - i s c r c t i o n ,  re o p e n  cr.ti r e c o n s i d e r  a p r e v i o u s  d e c i s i o n  or
......_ ........... 'p y - . Is  and R e v ie w  when the  p a r t y  r e n v o s t i n c  re -open ing

s u b ' . i i ts  w r i t t e n  a rg u m e n t  o r  e v id e n c e  w h ic h  tones  to  e s t a b l i s h  t a u t :

( a )  How arid n o t a r i a l  e v id e n c e  i s  . a v a i l a b l e  t h a t v / a s  
n o t  r e a d i l y  a v a i l a b l e  when t h e  p r e v io u s  d e c i s i o n  
v/as i s s u e d ;

( b )  The  p r e v io u s  d e c i s i o n  i n v o l v e s  an e r r o n e o u s  i n t e r ­
p r e t a t i o n  o f  la w  o r  r e g u l a t i o n  o r  a m i s a p p l i c a t i o n  
o f  e s t a b l i s h e d  p o l i c y ;  o r

( c )  The  p r e v io u s  d e c i s i o n  i s  c f  a p r e c e d e n t i a l  n a t u r e  
i n v o l v i n g  a new o r  u n re v io w e d  p o l i c y  c o n s i d e r a t i o n  
t h a t  n a y  have  e f f e c t s  beyond t h e  a c t u a l  cose  a t  h a n d ,  
o r  i s  o t h e r w is e  o f  such an e x c e p t i o n a l  n a t u r e  as t o  
m e r i t  t h e  p e r s o n a l  a t t e n t i o n  o f  t h e  C o m m is s io n e rs .

On th e  b a s is  o f  a p e t i t i o n  f i l e d  on J u l y  5 ,  1373 by t h e  D e p a r tm e n t  o r  
t h e  h’e v y , a co p y  o f  w h ic h  was f u r n i s h e d  t o  y o u ,  t h e  Cc v i i s s l o n e r s  
r e v ie w e d  th e  f i l e  and d e te r m in e d  t h a t  to e  b o a rd  o f  A p p e a ls  and R e v ie w

-18a



J

had o i s . p p 1 1 . i d  t h e  a p p l i c a b l e  C i v i l  S e r v i c e  R e p u l s i o n s  i n  t h i s  c a s e .

o f  d 1 s c r 1 r . i n . t J « n .  and t h a t  n o o v a d e n c o  had  
been s u b m i t te d '  s u f f i c i e n t  to  s u p p o r t  a T in d i n u  t n a t  jn y ^ o *  t . r -  
c o m p la in a n t s  w o u ld  have  been s e l e c t e d  t o r  p r o m o t io n  t o  . . . .  s p - i  
v a c a n c y ,  i n  t h e  a o s en ce  o f  r e l i g i o u s  m s c r i r i i n a u i u i .

r w » - , n v in  0 H e r  f o r  an em p lo yee  t o  have a v a l i d  f i r s t - p a r t y  t y p e  
c c " o l a  n t ’ o r ^ s c r i r d n a t i o n  w i t h  r e c o r d  to  h i s  f a i l u r e  t o  be p r o m o te d ,  
t h -  c * o l o v ° e  m ust  b r i n g  th e  m a t t e r  t o  t h e  a t t e n t i o n  o f  h i s  c c u a l  
f o m e n t  O p p o r t u n i t y  C o u n s e lo r  w i t h i n  t h i r t y  days o r  tne

tee
ksssiiI n  t h i s  c a s e  t h e  c o m p la in a n t s  d i d  n e t  a l l e g e  as a o a s is  i c r  t h e i r

• l i e n  t h e y  w a re  n o n - s e l e c t e d  t o rr r '^ n l  *1 i  l i t  n\* *jD0C1 f  1 C CCv-'iSiOM OH »*•»»**•• v 1 * ^
p r o ' r .o t io n ,  b e t  a l i e n e d  • j a w r . U y  t h a t  t h e r e  had hpan^a w l s ™ *  
p r o ,ration of tharctai Loon no pronction
and S h a p i r o ,  
o f  any  G3-Vd  
h a v e  a v a l i d  
th e y  b r o u g h t  
C o u n s e lo r .  T h u s ,  
p r o m o t io n  w h ic h  viv

f o r  them:ir. . lo v e e  t o  G rade G S-1J  w i t h i n  t h e  t im e  l i m i t  
* ' : r ' t * ' V ir t /  t y e e  c c m o l a i n t  o f  d i s c r i m i n a t i o n  u «. t i . .  
+ ;> o ir  c o . : .o la i ; ; t  t o  t n e  Lcjual Lm?lo>...en:  u p p ^  t y  

.hey c o u ld  n o t  r e f e r  to  any  s p e e m e  . a l l u r e  or  
u ld  have  bean a b a s is  f o r  a v a n a  and f i r ^ t

p i  W. .w w ( W1«  ..................  , . u  .
p a r t y  t y p e  c o m p l a i n t  o r  d i  s c r i m  r . a u . HI.
Even i f  i t  w e r e  d e t e r m in e d  t h a t  d i s c r i m i n a t i o n  a e a i n s t  e m p lo yee s  o f  u , - . r  
f a U h  e x i s t e d  d c r i n o  the- p e r i o d  o f  M r .  i n  qac -s .acp  - rc :  . . a  t o  1 9 7 . .
t h i s  s t a n d in g  a l o n e ,  w o u ld  n o t  have  been a v a n .  U s  i s  u i . - i  
Service h a l a t i o n s  and p o l i c i e s  f o r  th e  C o -m is s io n  t o  o r e m  ;  j  e n c ,  
t n  n ro  -'ote r .o s s r s .  J -o il:  :on and S h a p i r o  t o  cue n e x t  two G o - lo  v a c a n t  

W . - n r  Loca , , r e t h e r e  was no show ing t h a t  i n  th e  a b s en ce  Oi o i s - r i , .  
t i c n ^ b c c a u s e  o f " t h e i r  r e l i g i o n  t h e y  w ou ld  h a v e  boon pronote-.i  t o  any  
s p e c i f i c  v a c a n c y .

Um i „ r  t*»** c i r c u m s t a n c e s , th e  C o m m iss io n ers  d e c id e d  t h a t  t h e y  had no  
S i w M v c  » - - 4 t  t o  re o p e n  th o  c a s e ,  r e v e r s e  t  ic d e c i s i o n  o f  t n e  
C oard  o f  A p p e a ls  an 1 R e v ie w ,  and a t  v i m  tn e  d e u i ^ K i i  o f  y-
t h r  'U v v  v h i  c i  r e q u i r e d  tr .e  aoer.cy to  t a k e  a n o - b a r  o f  a f i  w . . l t i v - .  
a c t i o n s  t o  e n s u r e  t h a t  a l l  f u t u r e  s e l e c t i o n s  o f  c .o lo yo es  r o r  p ro a o w io n  
a r e  ta k e n  w i th .o u t  any  p r o n i b i t e J  d i s c r i m i n a t i o n .

I n  v ie w  o f  th o  a b o v e ,  we f i n d  no v a l i d  b a s i s  f o r  r e s d n d f r e  t h o  d s d s i a n  
o f  th o  C c - w i s s i o n t r s  I n  t h i s  c a s o ,  and t h e  r e q u e s t  i s  w i t  . .

-19a- s



•-T (

3

Because o f  th e  s t r o n g  f e e l i n g s  you e x p re s s  1n y c u r  l e t t e r  r e ' - a r d l n a  
t h i s  c a s e ,  I  r e g r e t  t h a t  t h i s  r e p l y  c o u ld  n o t  be f a v o r a b l e .  "

F o r  th e  C cc:: i1ss loners :

H o n o ra b le  Joseph T . M c C u l le n ,  J r .  
A s s i s t a n t  S e c r e t a r y  o f  th e  f.'avy 

Manpo.ver and R e s e rv e  A f f a i r s  
D e p a r tm e n t  o f  th e  i.:avy  
W a s h in g to n ,  0 .  C. 20350

S i n c e r e l y  y o u r s ,

R o b e r t  B. B a te s  
A s s i s t a n t  to  t h e  

C onsu lss loners  ( A p p e a ls )

R B C a t e s : is  1 2 / 1 9 / 7 3



7
/

UNITED STATES CIVIL SERVICE COMMISSION 
BOARD OF APPEALS AMD REVIEW
Washington, D. r.i -i—

i
i r j»** .î-‘ *

J No. 713-73-593Indexed Under:
- Promotion - Preselection

D E C L S P i
IN THE MATTER OF

1 . .
TYPE CASE: Comlaint of Pis crimination: 

National oricia
■ fc

iwtfcpjctictt

By letter of March 22 , hereinafter referred to
as the complainant, appealed throned his representative from the 
decision of the Director, Lanai Opportunity Staff, for the Depart- 
S3ent of Health, Education and Welfare, that the evidence of record 
docs not support a conclusion th?.t the complainant van not selected 
for promotion to a position of Supervisory Frurran Analysis Officer, 
Go-13, because of his national origin (Puerto Li can).

STATEMENT CP TILS CASS

At the time of his complaint, the complainant ves a Management 
Analyst, Go-12, in the Management Planning Section, Finance and 
Administrative Branch, Division of Administration, Eureau of 
Hearings cr.i Appeals, Social Security Ahninistration.
On March 30> 1971, the complainant contacted en ESO Counselor, 
alleging that because of his national origin, he was not selected 
for promotion to a nevly-creatac position of Sup»erv< scry Program 
Analysis Officer, CS-13* The complainant alleged tm.t the selectee 
for the position vas pre-selected, and that this vns done to deprive 
hin (complainant) of promotion because he ic a Puerto R5.car..
The HEO Counselor vans unable to resolve the complaint and, cceord- 
ingly, .the complaint vas investigated, and a cop,* of the report

itSs

V . ■

: s a
1220- v.f.

-21a-



2 .

thereon vas furnished to the complainant's representative 
under date of October 1, 1971*
AiT unsuccessful attempt vas cade on Nover.ber 2 h , 1971, "to 
resolve the comlsint infer-ally. Thereafter, a hearing on 
the complaint cf discrimination vas convened on April 3, 7 
and 12, 1972. However, proceedings vere terminated on 
April 12, 1972, at the request of the complainant and hi3 
representative. l

** A G E N C Y  D E C I S I O N

The agency's decision vas on tvo points: (l) The validity of
- the‘termination of the hearing for the reasons stated hy the
- complainant; and (2) the merits of the case based on the record.
The*agency determined that the reasons for terminating the hearing 
vere not valid. The agency further determined that the complainant 
vas not discriminated against on the basis of his national origin. 
The agency's decision also stated that the ccimlaiuant vas promoted, 
effective Inventor 12, 1972, to j'-nna-percent Analyst, GS-13. The com­
plainant vas advised of his right cf appeal to the Heard of Appeals 
and Review and/or to the appropriate U.S. District Court.

REPRES ElffATI C!I3 TO THE DO ARP CE APPEALS AND P.E.'TE'.;

The complainant's representative contended that the agency's 
■. decision was based on an inecmrolcte record of the case and vas

Bade vithout the benefit of a fair and impartial hearing. He charged 
that the Appeals Examiner excluded witnesses from the hearing vho 
"vere directly or indirectly responsible for the discriminatory act 
end for tho CG-.-rnluinant's failure to obtain redress during the in­
formal proceedings.
The complainant's representative staved that the Department had 
failed to consider in its- decision the selection processes which 
have resulted in the exclusion of Hispanic Americans, and specif­
ically Puerto Ricans, fren the agency organisation in question,
. and he claimed shut the complainant would have been the success­
ful candidate had the celectse not been pre-selccted.

263

■r* V -

\ Lf

I ' X V  ' V . ; *  w .  ‘ A r * v *
'•Vvr,- '-‘.•.Z,

-22a-



3n

i
He further alleged that the Department applies different 
standards in resolving complaints of discrimination in cases 
involving race. . .

ANALYSIS AND :̂ INDING3

n

liai

The Board has revieved carefully the entire record in this 
case in the light of the corolainant's representations. Based 
on this review, the Board notes that those witnesses specific­
ally excluded were the Investigator of the ecmplaint; the Director 
of Equal Opportunity and Labor Relations; tee Director^ uqual 
Opportunity Staff; the Eeual Employment Opportunity Officer; 
the Director, Special Staff for Later Relations and Eaual Oppor­
tunity; and a Clerk-Typist in the Personnel Office. It is further 
noted that during the introductory statement at the beginning of 
the hearing, the Appeals Examiner stated during the pre-hearing 
conference'that the names of other witnesses had teen suggested 
end he would reserve judgment on the appearance of those witnesses 
pending developments at the hearing*
With regard to the Appeals Examiner's refusal to call some of the 
witnesses, the regulations pertaining to the processing of ccn- 
* plaints of discrimination charge the Appeals Examiner with the 
duty of conducting the hearing in such a way as to aaauce evidence 
pertinent to the complaint, and to exclude testimony or iuecmatj.cn 
which is not pertinent. In this case, it is assumed that the Inves­
tigator of the complaint reduced to writing all of the pertinent •
■ information discloses, by his investigation. The other witnesses 
requested by the complainant would not have first-hand knowledge 
of the complainant's case, and it is assumed that they were to 
testify relative to the equal employment opportunity program with 
respect to Hispanic Americans, and particularly to Puerto Ricans. 
Any ccmolaini involving a minority group agency-wide is a "third- 
party" complaint and it is processed under a different set of pro­
cedures. . * t

In this case, the Board holds that the Appeals Examiner acted 
properly.
With regard to the issue in this case, i.c., whether the complain­
ant was non-selected for the cewly-establxi-hed position o. 
visory Program Analysis Officer, CS-13, because of his national 
origin, the Board notes that in March of 1563, the eroloyee who 
va3 ultimately selected, was assigned to work with the County 
Division Director, Division of Administration. In September of 
1970f a Position Classifier vos requested to re-view end reclacsify

2S0

ff

W\>:~rgr-f-v;c¥- ' •

-23a-

■ -v.s i '- - > ;v .jhw- if: ̂V.v-dv* -‘>V V- C > '  V i ' -



the duties rerfomed by that employee. The Position Classifier 
found that the duties being performed did not warrant a GS-13* 
Discussions were then initiated concerning the possibility of 
establishing a new supervisory position, anparently on a pro­
spective basisv i.e., rather than on the basis of duties B 
performed at the tine, the position would be described and

basis, i.e., rather than on the basis of duties being
classified according to the way agency officials hoped the 
position would develop. The position was approved and classified 
as a C-3-13. Under the Merit Promotion Procedures, a list of eleven 
eligibles was narrowed to three from which the employee was selected 
for the premotion. Complainant and another employee were among the 
group of three. The complainant alleged "pre-selection and stated 
that because of the pre-selection, he was not promoted.
The Board holds that in view of the sequence of events as outlined 

' above, there was pre-selection in the filling of the newly-established 
" position. However, the Board holds that the position would never 

h a v e  teen established but for the desire to promote the selectee 
and that the complainant's national origin had no bearing on his 
non-selcction.

The decision of the agency is hereby affirmed. - •
Civil Service Regulations provide that decisions of the Eoard are 
final and there is no further right of administrative appeal.
For the Commissioners:

William P. lorzafc " 
Chairman

June l1*-, 1973

2Si



1

u n i - ^ S T A T E S  C IV IL  S E R V IC E  C  ’̂M IS S IO N  lvn’’’-r riw-1 ’ t.-o* •*
J- A P P E A L S  R E V I E W  B O A R D

W A S H I N G T O N ,  D . C .  2 0 4 1 5  A R 3 ; d l -
October 15, 19'.

BEFOHE: Jeffries, Bechtold and
Esploynent D i s c r e t i o n  W e n d  Project iloarf isabora
One 1,'orth 13th Street 
Philadelphia, PA 19107

Dear Ur. Stark:

rGrorerice to your appeal in behalf of Mrs. Bernice 0. Onr'*r 
^ " 3^'Coreace I^his trial Supply Center, Ihiladclphia, Pnnn.-.vivania from the decision of the Deputy Director, Defense Gupnly .-'-rency, to rcic-t I -t

°r di“crirLiu:itioa because of race (flack) and sex es untimely and not vithin t^e purviev of the Ccanlcsion’s Equal Opportunity regulations.
5^_ftC?fbeZ* 3 i , Ih-s. Conner filed a formal complaint of discrimination in

*  a coatinuixR pattern of noas elect ion for promotion and her r/r- form-mce appraisals, indicating that this vas a "Class-Action Co— >taint -a h->-i
«*> « « * »  employees I S u S S i r  1 ?referred the ratter *0 the Cociraiscion'c Philadelphia Regional Cl flee vi-h a ’ 

request that too office furnish an investigator/ 1 c «^onal office ^ t 4 -d
u n t l .T f  the ^ Cncy on the basis that the allegations vere v p fu o , - ./ f i b ‘^ tim e ly  ana concerned an attempt at filin g -a  class-action co.-nnlr.int 4 c u  the ' 

° reg-ulations do not provide fo r the acceptance or processing of such 
«mt~clarifyVher * "  th l3 .Ca2C* ^  requested that complain-

Oa April 22, 197I;, cccplnimnt resubmitted her December 1973 complaint, r-r- 
sicting preferring to her complaint as a class-action and addin* a wn/iocuo
Aecolitan** S°r conalderr-tlon a position as ̂Statistical ’Accountant, G^-5 , vuich she had received on Pebrunry 20, 197I.

g  ff'ff*0?. ;r'me =3' W 7 L  to rejecting Mn>. Ccnnor-s corolclnt, t M  OGency stated tna* cha Dacemoer 1973 complaint was being relected because* G'i-
date1̂ 120- al/csati®,la about ratters vhich arose thirty days or less rrfer to 

w  Sf! “ A * 1?  ■** f d coot-^te'1 » * * *»> Counselor; chi vac not SpMiSicia
ITM Chanter vn' ^  co:"A1ioij'.to do not cone under the purviev of)r‘ + ,, , 'getd-o: 3 . .no second coaplnlnt van rejected because ea-c-
llc^S o f t « ‘  e S ?  “ v? T T lnell3lblU - " * * «  t a s *  on d l5c r i*lr ,a S „ „  oetnusc or race, color, le lig io a , sex or national origin .
It is Kra. Conner’s contention on appeal to the Beard that the arcncy’s deci-^on 
is vrong as a matter of lav; that the agency fails to acknowledge o f ,under t^° 
the concepts of continuing violations cf equal c^loymcnt and of class cr-.rn’-ir*- 
anplainan also alleges that in failing to recognize continuing violatisn.V aTsi"

THE MERiT SYSTEM— A GOOD INVESTMENT IN GOOD GOVERNMENT I
-25a-

1



X
. J

2
1j

clns3 complaints, the Civil Service regulations are unconstitutional and in 
violation of Title VII of the Civil Rights Act of 1961.
A part of the Board's function in deciding appeals from agency decisions on 
complaints of discrimination is to determine whether the agency has complied 
vith the Cor-miscioa's regulations. These regulations, pertaining to discrim­
ination complaints, require that an agency must accept n ccrrrplaint only vinca 
the allegations raised are vitliin the purview of the regulations, have been 
brougnt to the attention of on ns.0 Counselor or other amronriatc agency 
official within thirty calendar days from the date of ratters forming the 
basic of the complaint, and do not allege natters already decided by the 
in an earlier discrimination complaint. Those regulations further provide for tl 
acceptance of u complaint from an individual (or group of individuals vhen the 
natter complained of applies equally to all of then and meets the criteria of 
purview and timeliness) or under section 713.251 of the regulations (a third- 
party having sene sort of official capacity in cane rcecgnincd organisation 
such as an employee union, civil rights group, etc. and having a general alle­
gation of dicerinir.ition in personnel natters unrelated to any individual com­
plaint) . Except for the third-party complaint provision in section 713.T51, the 
regulations proliibit consideration by an agency of a general complaint of 
discrimination which is unrelated to a specific individual complaint (section 713*212 (b) of the regulations).
As regards the natter of "continuing" discrimination, 5 CITt 713.21U establishes 
a time limit in which a natter must be brought to the attention of an E20- 
Counselor before that matter can be accepted as a valid basis for a corralaint. 
Therefore, the requirement implies that a complaint mat be over a specific 
employment matter which occurred at a specific time. There is no provision 
whatsoever for accepting non-specific complaints o f  "continuing" discrimination.
Por on allegation to be within the purview of the Commission's Equal Opportunity 
regulations, it must have been brought forth by an employee or applicant for 
employment vith a particular agency, concern a matter over which the agency has 
Jurisdiction, ruid be based on the complainant's race, color, religion, sc::, ago, 
or national origin. Complainant's December 3, 1973, complaint did not specify 
any matter arising within thirty days prior to hoverher 2, 1973, the date on ' 
which she contacted her H O  Counselor. Complainant's Aorill 22, 1 9 7 h , ccmolaint 
did allege a timely matter, but did not allege discrimination on the basis’ of 
race, color, religion, sex or national origin in connection with that matter; 
rather the ineligible rating vac challenged on the basic used for determining her experience.
la view of the above, the Appeals review Board concurs in and affirms the agency'• 
decision on the complainant'o two discrimination complaints for the reasons discussed ubove.

-26a



3

Civil Cervice Ccmission regulations provide that the Board's decision is 
final and that there is no farther riqht of administrative anneal. Hovever, 
If the ccnplainant is not satisfied vith this decision, the canolainant is 
authorized by section Y17 (c) of the Civil Bights Act of 1 9 ik , as amended on 
torch 2a, 10 (2 , t o file a civil action in an appropriate U.S. District Court 
vithin thirty (30) calendar days of the receipt of this decision.
For the Comics loners:

Sincerely yours,

Willlaa P. LercaicCh.M rrtnn
cc: Director of Equal Hrployaent OpportunityDefense Supply Apertcy 

Caserou Station 
Alexandria, VA 223lh

cc: Krs. Bernice 0. Conner 
Ij22 Osceola Avenue 
Elkins Park, PA 19117

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