Dalia v. United States Petition for Writ of Certiorari to the US Court of Appeals for the Third Circuit
Public Court Documents
December 1, 1978
Cite this item
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Brief Collection, LDF Court Filings. Chisholm v. United States Postal Service Brief for Appellee, 1976. 0c7c1b6e-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b78c0a79-5ccb-4a40-9622-b7224be7ebef/chisholm-v-united-states-postal-service-brief-for-appellee. Accessed April 06, 2025.
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IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 75-2068, 2069
NAPOLEON CHISHOLM,
Appellee,
vs.
UNITED STATES POSTAL SERVICE,
et al.,
Appellants.
On Appeal From The united States District Court
For The Western District Of North Carolina
Charlotte Division
BRIEF FOR APPELLEE
JONATHAN WALLAS
JULIUS LeVONNE CHAMBERS
Chambers, Stein, Ferguson & Becton
Suite 730
951 So. Independence Blvd.
Charlotte, North Carolina 28202
JACK GREENBERG
CHARLES STEPHEN RALSTON
MELVYN R. LEVENTHAL
DEBORAH M. GREENBERG
BILL LANN LEE
Suite 2030
10 Columbus Circle
New York, N. Y. 10019
Attorneys for Appellee
TABLE OF CONTENTS
Table of Contents ............................ .
Table of Authorities ...............................
Statement of Issues Presented .....................
Statement of the Case ..............................
A. Administrative Proceedings ..............
B. Judicial Proceedings ....................
Statement of Facts ................% ...............
A. Discriminatory Denial Of Plaintiff
Chisholm's Applications .................
B. Discrimination Against Black Employees
Generally ................................
1. Discriminatory Policies and
Practices ..........................
> 2. Prima Facie Discrimination ........
Argument
Introduction ..................................
I. A Class Action Was Properly Certified
Pursuant To Rule 23(a) and (b)(2),
Fed. R. Civ. Pro.........................
A. Class Actions Provided For In The
Federal Rules Of Civil Procedure .
Are Not Precluded By The Statutory
Language Of 42 U.S.C. § 2000e-16 ...
1. Rule 23(b)(2) Fed. R. Civ.Pro............................
2. 42 U.S.C. § 2000e-16 .........
B. The Legislative History Of the
1972 Amendment To Title VII
Demonstrates Congressional
Intent To Allow Rule 23 Class
Actions ............................
1
iii
1
2
3
9
12
13
16
16
18
Page
21
27
33
34
36
41
-l-
1. Legislative History ........... 41
2. Case Law ...................... 48
C. The Administrative Process Does
Not Permit Class Claims To Be
Accepted, Investigated Or
Resolved Effectively ............... 57
1. 42 U.S.C. § 2000e-16 ........... 58
2. 5 C.F.R. Part 713 As Applied .. 60
D. The Broad Provisional Definition
Of The Class Was Proper ............ 65
II. Intervention Was Properly Permitted
Pursuant To Rule 24, Fed. R. Civ. Pro. .. 70
Conclusion ........................................ 70
Appendix A ....................................... la- 7a
Appendix B ........................................ lb- 5b
Appendix C ........................................ lc-32c
Appendix D ........................................ ld-27d
Page
- l i -
TABLE OF AUTHORITIES
Page
Cases:
Aetna Ins. Co. v. Kennedy, 301 U.S.
389 (1937) ....................................
Albemarle Paper Co. v. Moody, 422 U.S.
405 (1975) .................. 21, 25, 36, 41,
Alexander v. Gardner-Denver Co., 415
U.S. 36 (1973) ..................
B. A. R. Decision No. 713-73-593 ................
Barela v. United Nuclear Corp., 462 F.2d
149 (10th Cir. 1972) .........................
Barnett v. W.T. Grant Co., 518 F.2d
543 (4th Cir. 1975) .......................
Barrett v. U.S. Civil Service Commission,
69 F.R.D. 544 (D.D.C. 1975) ............ 29,
52,
Blue Bell Boots Inc. v. EEOC, 418 F.2d
355 (6th Cir. 1969) ..........................
Bowe v. Colgate-Palmolive Co., 416 F.2d
711 (7th Cir. 1969) ..........................
Brown v. Gaston County Dyeing Machine Co.,
457 F.2d 1377 (4th Cir. 1972), cert. denied,
409 U.S. 982 (1972) ..........................
Brown v. General Services Administration,
44 U.S.L.W. 4704 .............................
Chandler v. Roudebush, ____ U.S. ____ ,
44 U.S.L.W. 4709 (Sup. Ct. June 1, 1976) 12,
Coles v. Penny, 531 F.2d 609 (D.C. Cir. 1976)
Contract Buyers League v. F & F Investment
Co., 48 F.R.D. 7 (N.D. 111. 1969) .......
Danner v. Phillips Petroleum Co.,
447 F .2d 159 (5thCir. 1971) ..............
40
00V 52, 53, 55
26, 34, 40, 41
63
42
23, 35, 66, 67
30, 31, 36, 41
53, 61, 62, 65
69
22, 42, 57
23
12, 39, 47, 48
21, 24, 25, 26
28, 30, 33, 34
40, 47, 48, 49
24
67
69
Day v. Weinberger, 530 F.2d 1083
(D. C. Cir. 1976) ...........
- l i i -
24
Page
Cases (cont'd)
Dillon v. Bay City Construction Co., 512
F .2d 801 (5th Cir. 1975) ..............
Douglas v. Hampton, 512 F.2d
976 (D.C. Cir. 1975) ..................
EEOC v. University of New Mexico, 504
F .2d 1296 (10th Cir. 1974) ...........
Ellis v. Naval Air Rework Facility, 404
F.Supp. 391 (N.D. Cal. 1975) ......... 29, 38, 51, 56, 60, 64
Franks v. Bowman Transportation Co.,
U.S. . 47 L.Ed. 2d 444 (1976^
36’ 41) 48
53, 55
Gamble v. Birmingham Southern Ry. Co.,
514 F .2d 678 (5th Cir. 1975) .........
Georgia Power Co. v. EEOC, 412 F.2d 462
(5th Cir. 1969) .......................
Graniteville Co. v. EEOC, 438 F.2d 32
(4th Cir. 1971) .......................
Griggs v. Duke Power Co., 401 U.S.
424 (1971) ............................
Grubbs v. Butz, 514 F.2d 1323
(D.C. Cir. 1975) ......................
Hackley v. Roudebush, 520 F.2d 108
(D.C. Cir. 1975) ................... 24, 28, 36, 41, 56, 60
Hariiis v. Nixon, 325 F.Supp. 28
(D. Colo. 1971) .......................
Hodges v. Easton, 106 U.S. 408 (1882) ___
Jenkins v. United Gas Corp., 400 F.2d
28 (5th Cir. 1968) .................... 22, 35, 41, 42, 43
Johnson v. Georgia Highway Express, Inc.,
417 F .2d 1122 (5th Cir. 1969) ........
Johnson v. Zerbst, 304 U.S. 458 (1938) ... ..... 40
Keeler v. Hills, 408 F.Supp. 386
(N.D. Ga. 1975) ...................... 29, 36, 52, 60, 64, 67
Koger v. Ball, 497 F.2d 702
(4th Cir. 1974) .......................
-iv-
Page
Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965), cert.
denied. 384 U.S. 929 (1966) ................... 37,38,39
Local No. 104, Sheet Metal Workers Int'l.
Assoc, v. EEOC, 429 F.2d 237 (9th Cir. 1971)... 69
Long v. Sapp, 502 F.2d 34 (5th Cir. 1974) ....... 67
Love v. Pullman Co., 404 U.S. 522 (1972) ......... 32,40
McBroom v. Western Electric Co., 7 EPD f9347
(M.D. 1974) .................................... 70
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) 25,34,40
McKart v. United States, 395 U.S. 185 (1969) .... 49
McLauthlin v. Callaway, Fifth circuit No. 75-2261,
reversing position taken in, 382 F. Supp.
885 (S.D. Ala. 1974) ........................... 30
Macklin v. Spector Freight System, Inc.,
478 F .2d 979 (D.C. Cir. 1973) ................. 42
Miller v. International Paper Co., 408 F.2d
(5th Cir. 1969) .................. 42-
Morrow v. Crisler, 479 F.2d 960 (5th Cir. 1973),
aff'd en banc. 491 F.2d 1053 (5th Cir. 1974)... 23,57
Morton v. Mancari, 417 U.S. 535 (1974) ........... 24,56
Moss v. Lane Co., 471 F.2d 853 (4th Cir. 1973) ... 23
Motorola, Inc. v. McClain, 484 F.2d 1139 (7th
Cir. 1973), cert, denied. 416 U.S. 936 (1974).. 69
Newman v. piggie Park Enterprises, 390 U.S. 400
(1968) ......................................... 39
New Orleans Public Service, Inc. v. Brown, 507
F .2d 160 (5th Cir. 1975) ...................... 69
Oatis v. crown Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968) ...................... 22,37,39,41,43
48,56,57,70
Ohio Bell Telephone Co. v. Public Utilities
Comm., 301 U.S. 292 (1937) .................... 40
Cases (cont'd)
-v-
Page
Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975) .... 24
Pendleton v. Schlesinger, 8 EPD f 9598
(D.D.C. 1974) .................................. 28
Place v. Weinberger, __ U.S. __, 44 U.S.L.W. 3718
(Sup. Ct. June 14, 1976), vacating, 497
F.2d 412 (6th Cir. 1974) ........................ 24
Predmore v. Allen, 407 F. Supp. 1053 .... ....... 28,29,36,49
(D. Md. 1975) 52,53,60
Richerson v. Fargo, 61 F.R.D. 641 (E.D. Penn.
1974) ........................................... 29,36
Robinson v. Lorillard corp., 444 F.2d 791,
cert, dismissed, 404 U.S. 1006 (1971) .......... 42
Rodgers v. U. S. Steel Corp., 69 F.R.D. 382
(W.D. Penn. 1975) .............................. 67
Sanchez v. Standard.Brands, Inc., 431 F.2d
455 (5th Cir. 1970) ............................ 40,69
Sharp v. Lucky, 252 F.2d 910 (5th Cir. 1958) .... 37,39
Sibbach v. Wilson & Co., 312 U.S. 1 (1941) ...... 33
Simmons v. Schlesinger, No. 75-2182 argued
May 3, 1976 .................................... 29
Sosna v. Iowa, 419 U.S. 393 (1975) (White J.
dissenting)..................................... 23
Sylvester v. U. S. Postal Service, 393 F. Supp.
1334 (S.D. Tex. 1975) ......................... 29,36,60
United States v. Allegheny-Ludlum Industries,
Inc., 571 F.2d 826 (5th Cir. 1975) ........ . 56
United States v. Chesapeake and Ohio Ry. Co.,
471 F.2d 582 (4th Cir. 1972) .................. 22
United States v. Georgia Power Co., 474 F.2d
906 (5th Cir. 1973) ............................ 22
Weinberger v. Salfi, 422 U.S. 749 (1975) ........ 38,52,54
Williams v. Tennessee Valley Authority,
415 F. Supp. 454 (M.D. Term. 1976) ___ 29,36,41,50, 52
53,55,56,61,64
Cases (cont'd)
-vi-
Page
Wilson v. Monsanto Co., 315 F. Supp. 977
(E.D. La. 1970) ................................. 67
Zahn v. International Paper Co., 414 U.S.
291 (1973) ..................................... 52,53,54
Statutes, Rules and Regulations;
28 U.S.C. § 1292 (b) ............................... 10,65
28 U.S.C. § 1331 9
28 U.S.C. § 1332 (a) ............................... 52
28 U.S.C. § 1343 (4) ............................... 9
28 U.S.C. § 2072 ................................. 33
28 U.S.C. § 2073 ................................. 33
28 U.S.C. § 2201 ................................. 9
28 U.S.C. § 2202 ................................. 9
42 U.S.C. § 405(g) ................................ 38,53
42 U.S.C. § 1981 ................................. 9,11,12
42 U.S.C. § 1983 ................................. 37
42 U.S.C. §§ 2000e, et seq.......................... 65
42 U.S.C. § 2000e-5 ......................... 21,22,33,34,39
41,45,46,48,49
42 U.S.C. § 2000e-5 (f) ........................... 45,48
41 U.S.C. § 2000e-5(f) (1) ..................... ».. 45
42 U.S.C. § 2000e-16 ........................ 1,2,9,21,23,26
32,33,36,38
39,40,41,45, 58
42 U.S.C. § 2000e-16 (a) ............................ 58,59
42 U.S.C. § 2000e-16(b) ............................ 59
42 U.S.C. § 2000e-16(c) ........................ 39,45,47,49
42 U.S.C. § 2000e-16(d) ......................... 22,45,47,49
Cases (cont'd)
-vii-
Statutes, Rules and Regulations, (Cont'd)
Civil Rights Act of 1964
. Title Jl ....____ ............................... 37
§ 706 Title-VII.......... 21,43
§ 706<a)........................ 42
§ 706(b)......................................... 42
§ 706(d)......................................... 42
§ 706 (f)(1)...................................... 45
§ 706(f)- (k) . ..................................... 45
Rule 23, Fed. R. Civ. Pro..................... 12,22,26,33,34
38,40,41,49
Rule 23(a), Fed. R. Civ. Pro.................. 2,9,26,27,32,34
Rule 23(b)(2), Fed. R. Civ. Pro................... 2,9,26,27
32,34,35,36
Rule 23(c)(1), Fed. R. Civ. Pro................... 27,66
Rule 24, Fed. R. Civ. Pro......................... 3,12,27,70
5 C.F.R. Part 713 ................................. 3,58,60,64
5 C.F.R. §§ 713.211 et seq........................ 61
5 C.F.R. § 713.251 ................................. 64
41 F.R............................................... 31
Legislative History
H. R. 1746 .......................................... 42,45
Hearings Before the Subcomin. on Labor of
the H. Comm, on Education and Labor,
92d Cong., 1st Sess. (1971) ...................... 25
Hearings Before the Subcomm. of the S. Comm,
on Labor and Public Welfare, 92d Cong., 1st
Sess. (1971) ..................................... 25
Legislative History of the Equal Employment
Opportunity Act of 1972 ................... ..;... 42,43,44
45,47,59,69
S. Rep. No. 92-415, 92d Cong. 1st Sess (1971)...... 25
118 Cong. Rec...................................... 45
Page
v m
Page
Other Authorities
K. Davis, Administrative Law § 20.07.................... 60
Equal Employment Opportunity Commission,
Eighth Annual Report for FY 1973 ..................... 56
Federal Practice And Procedure, Civil § 1785
(1st ed. 1972) ........................................ 68
Proposed Amendments to Rules of Civil Procedure,
39 F.R.D. 69 (1966) ................................... 35
7A Wright & Miller; Federal Practice And Procedure,
Civil § 1785 (1st ed. 1972) ......................... 67
U. S. Commission on civil Rights, The Federal
Civil Rights Enforcement Effort, 1974 Vol. V 56,61
'Civil Rights Act 1964, 84 Harv. L. Rev. 1109 (1971).. 42
Development in the Law, Employment Discrimination
And Title VII of the civil Rights Act of 1964,
84 Harv. L. Rev. (1971) ............................. 42
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 75-2068, 2069
NAPOLEON CHISHOLM,
Appellee,
v s .
UNITED STATES POSTAL SERVICE,
et al.,
Appellants.
On Appeal From The United States District court
For The Western District Of North Carolina
Charlotte Division
BRIEF FOR APPELLEE
Statement Of Issues Presented
1 ,
In this civil action brought by a black federal employee
to redress pervasive policies and practices of racial discrimi
nation in agency employment practices pursuant to, inter alia.
Jl / Under 42 U.S. C. § 2000e-16, emplovees of the united States
Postal Service are federal employees'for all relevant purposes.
§ 717 of Title VII of the civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e-16:
1. Whether the district court properly allowed the
action to proceed as a class action pursuant to Rule 23(a)
and (h)(2), Fed. R. Civ. Pro.?
2. Whether the district court properly permitted inter
vention in the action by five other black employees pursuant
to Rule 24, Fed. R. Civ. Pro.?
_2/
Statement Of The case
This is a federal employee Title VII action for declaratory
and injunctive relief against across-the-board racially discrimi
natory employment policies and practices at the Charlotte,
North Carolina branch of the United States Postal Service
(hereinafter USPS Charlotte"). Plaintiff is Napoleon Chisholm,
a long time black employee of USPS Charlotte , then employed
as a mail carrier PMS-5. He brought the action on his behalf
and on behalf of all other similarly situated persons after
unsatisfactory administrative resolution of a substantiated
charge of racial discrimination. Defendants are the united
States Postal Service and certain postal officials who are %
responsible for maintaining the employment policies and prac—
tices complained of.
_2/ Citations are to the Appendix, hereinafter "A."- the Record
on Appeal, hereinafter "R.".y and the Administrative Record that
was made part of item 6 of the Record on Appeal (See A. 1) here
inafter "R. 6 Admin, r ."
_3/ W. A. Shaw, officer in charge of USPS Charlotte; E. T. Klassen
Postmaster General of the united States; and Michael R. Greeson.
Director of Personnel of USPS Charlotte.
2
A. Administrative Proceedings
plaintiff Chisholm filed a formal administrative complaint of
racial discrimination pursuant to U. S. Civil Service Commission
regulations set forth at 5 C.F.R. Part 713, attached hereto as
4_/
Appendix A, infra. (A. 64-65). As is true throughout the
entire administrative process Mr. Chisholm was not represented
by counsel. The complaint states that the "specific action or
situation complained of" is:
3. (a) On March 4, 1972, the position of
Finance Examiner, level 9 was filled by
Mr. Robert L. Wallace and on March 13, 1972,
the position of Budget Assistant, level 8 was
filled by Mr. L. B. Holland; I was denied an
equal opportunity to be considered for the
above positions.
(b) That such denial of equal opportunity for
black employees in relation to promotion in
the U. S. Postal Service, Charlotte, N.C. is
a continuing discriminatory practice.
(A. 64). Mr. Chisholm gave as "the date of the alleged act of
discrimination," " [s]pecifically: March 4, 1972 and March 13,
1972" and " [g]enerally: 1960 through present time." The
following were set forth as reasons to believe there was
discrimination:
7. In being denied the equal opportunity to be
considered for the aforementioned positions, I
was informed by the Personnel Office that I
did not meet the specialized experience required,
in that, at least one year of specialized
experience must have been at a level of difficulty
comparable to not more than 3 levels and 2 levels
On March 30, 1972, after inconclusive informal proceedings,
4 / The complaint is a letter which follows the format prescribed In Postal Service regulations implementing 5 C.F.R. Part 713. The
format is set forth in Brief For The Appellants 3 n. 2.
below the position to be filled, 9 and 8 respect
fully [sic]. Therefore, since I am a level 5
carrier I was denied the opportunity to compete
for the positions. However, in subsequent adver
tisements with the same stipulation above;
Mr. C. C. Claud and Mr. Leonard W. Kerr, both
level 5 and both white employees were granted
an opportunity to compete for level 8 positions
on March 10, 1972 at 10:30 a.m. and 11:00 a.m.,
respectively [sic]. On March 17, 1972, Mr. Jack
R. Polk, a white employee, level 4 was granted
an opportunity to compete for a level 8 position
advertised with the same stipulation.
Therefore, I contend that the aforementioned
stipulation is a manipulated tool of management
whereby discrimination in general is practiced
by management against the black employees and
in this case specifically against me. In that
I firmly believe that I am the more qualified
employee.
In regards 3-b above: because of the lack of
the accessibility to record examination the
below contentions are not based on specific
statistics, however they are in my opinion,
statistically inferred based on 12 years of
competent observation - stated within a 95% to
99% competence level.
(a) That less than 1% of the total supervisory
staff, level 7 and above is black.
(b) That the total number of black supervisors
appointed since 1960 is less than h of 1%
of the total number of white supervisors
appointed since 1960.
(c) That the total number of times that a
black supervisor has chaired a position on
the Promotion Advisory Board is less than
h of 1% of the total number of times that
it has convened.
(d) That the white employee has been consistently
"detailed" to the open positions and allowed
to work in the position on an average of
1 year before it goes up for bid, thus
giving the "detailed" employee a definite
advantage over any other applicant.
(e) That the "detailed" employee gets the
position regardless of the qualification
of any applicant competing against him.
(f) That less than h of 1% if any, black
employees, are "detailed" to supervisory
and other staff positions.
As a result, it is through the "detailed process"
which is unadvertised, and the convening of a
biased Promotion Advisory Board that willful and
consistent discriminatory practices in promotions
against the black employee, has and is prevailing
in the Charlotte, N. C. Postal Service.
(A. 64-65). The district court found that, "[i]t is undisputed
that . . . in his formal complaint, the plaintiff raised broad
class-wide issues of discrimination" (A. 37).
As required by U. S. Civil Service Commission regulations,
an investigation was conducted by an investigator employed by
_!/the Postal Service. On the basis of a review of the investi
gator's report and considering only the denial of Mr. Chisholm's
applications for promotion, the regional USPS Office of Equal
Employment Compliance issued a proposed decision that the
"allegation of discrimination due to your race is not supported;
therefore we propose to dispose of your complaint of discrimination
5/ The investigator's report and attached exhibits are set forth
in’ R. 6, Admin. R. 40-110. While the investigation apparently
focused on the specific denial of the two promotions, the following
exhibits pertain to discrimination against black employees
generally: "No. 5: May 1971 Minority Census Report for the
Charlotte, North Carolina Postal Installation" (A. 66); "No. 6:
Field Report on EEO Program for Progress (POD Form 1789) for the
period of December 1, 1970 to May 31, 1971" (A. 67-68); "No. 7:
Field Report on EEO Program for Progress (POD Form 1789) for the
period of May 31, 1971 to November 30, 1971" (A. 69-70); "No. 8:
Analysis of Promotions made within the Post Office Branch of the
Charlotte, North Carolina Postal Installation during the period
of April 1, 1971 to March 31, 1972;" "No. 10: Applications of
white level PS-5 personnel considered for the position of Safety
Assistant, PMS-8 and copy of posting of the position dated
February 18, 1972;" "No. 11: Application of white level PS-4
employee considered for the position of Training Assistant,
PMS-8 and copy of posting of the position dated February 23, 1972"
(R. 6, Admin. R. 43-44, 56-72, 86-110).
as not being supported" (R. 6, Admin. R. 33). Mr. Chisholm
was informed that he could request an administrative hearing
if dissatisfied with the proposed decision, and he did so
(R. 6, Admin. R. 32). A hearing was held September 21, 1972
at which some evidence of class-wide discrimination was presented.
In his recommended decision, the hearing examiner considered
only " [hasp the complainant been improperly denied consideration
for promotion?" (A. 56). The examiner found "that the complainant
was improperly denied consideration for the position of Finance
Examiner, but that he was not improperly denied consideration
for the position of Budget Assistant" (A. 61-62), and recommended
that, "The preponderence of the evidence supports the allegation
of discrimination because of race" (A. 62). Thereupon
_6/
6/ The transcript and exhibits are set forth at R. 6 Admin. R.
118-233.
7/ See infra at 14-16, 18-20, see also A. 71.
8/ The following was the recommended relief:
Since the evidence shows an inconsistency in the
application of the qualifications standards by the
Personnel Office of the Charlotte Post Office, it is
recommended that for at least one year, all determi
nations of eligibility and/or ineligibility of candi
dates for positions in the Charlotte Post office be
audited by the Regional office before the lists of
eligibles are referred to the selecting official.
It is also recommended that the complainant be given
priority consideration for promotion to the first
available position for which he applies in which he
meets the minimum qualifications.
(A. 62).
6
on December 29, 1972, the national office of USPS Equal
Employment Compliance accepted the examiner's proposed findings,
recommended decisions and recommended action in a short letter
of final decision (A. 63). The letter also did not address
allegations of class-wide discrimination. Mr. Chisholm was
given the option of appealing to the Board of Appeals and
Review of the U. S . Civil Service Commission (presently the
Appeals Review Board) or filing a civil action pursuant to
Title VII; he chose the former (A. 52-54).
Mr. Chisholm's January 14, 1973 letter of appeal states;
After careful consideration of the various
factors leading to his decision, I have
concluded that I cannot and will not accept
his decision. Therefore, on behalf of all
of the minority employees in the Charlotte,
N. C. Post Office and myself I am appealing
to you for equitable relief from the practices
of discrimination against the minority employees
by management in the Charlotte, N. C. Post
Office.
_ V
Among his reasons for appeal were: First, "the decision leaves
intack [sic] an unjustified Promotion Appeals Board which has
only one black supervisor on it; and no female members."
9/ other reasons for appeal were (a) that the- decision wrong
fully omitted the recommended auditing period of "at least one
year" and wrongfully left auditing to the ineffective regional
office; (b) the white employee's promotion to methods and standards
analyst PMS-10, see infra at 14 n. 15, should be declared null and
void; and (c) the promotion of the white employee who previously
had been detailed to and was ultimately selected for the finance
examiner PMS-9 position should be declared null and void and
Mr. Chisholm placed in the position retroactive to March 4, 1972.
7
S econd, " [t]he decision makes no effort to correct the discrimi
nation practices of management via use of the 'detail1 process
(A. 53).
Note: that in the Hearing management made no
effort to defend their method of "detailed"
promotions whereas it was pointed out by me and
testimony given as to just how this is done.
(1) the opening to which they can detail an employee
is not made known to the entire work force, there
fore they hand pick a "buddy," detail him to the
position and allow him to work it for a considerable
length of time, "normally 6 months to a year and
a half," then, they place the position up for bid
as if it just came open. Added to that is the fact
that they load the Promotion Advisory Board with two
people who usually are instrumental in detailing
their "buddy" employee. As a result their "buddy"
gets the promotion. Now place yourself on that
Promotion Board as the third member and you are
reviewing an applicant thats [sic] been working
the position in question for a least a year, and
it has been prior assured that there is no reported
discrepancy in his work performance. How would you
vote?
I am therefore requesting that you direct the
Charlotte Post Office to make known to all employees
of any and all positions to which an employee can
be "detailed" prior to the filling of the position.
And that the Charlotte Post Office allow any and all
employees ample time to express their interest and
qualification for the position prior to filling the
"detailed" position. Your attention is directed
to the fact that when an employee is detailed to a
higher level position he is paid accordingly and its
ultimately the same affect as a promotion.
(A. 53-54). Thereafter on May 29, 1973, the final agency
decision was affirmed except for reimposing the required one
year auditing period (A. 48). The decision expressly stated
that class^wide discrimination would not be addressed (A. 50).
The district court found and it is undisputed that
" [d]espite the clear language in Chisholm's formal complaint,
8
claiming pervasive racial discrimination quoted above, the
administrative agency chose to 'interpret1 Chisholm's complaint
as raising the limited claim of discrimination in the Finance
Examiner and Budget Assistant jobs" only (A. 26). As "the
decision of the Board [was] final and there [was] no further
right of administrative appeal" (A. 51), this lawsuit was
filed on June 27, 1973.
B. Judicial Proceedings
This suit for declaratory and injunctive relief against
racially discriminatory employment practices at US PS Charlotte
prohibited by the Fifth Amendment, 42 U.S.C. §2000e-16 and
42 U.S.C. §1981 was brought in the Western District of North
10/
Carolina, Charlotte Division (A. 4). Mr. Chisholm brought
the action on his behalf and on behalf of all other persons
similarly situated pursuant to Rule 23(a) and (b)(2), Fed. R.
Civ. Pro. The complaint charges that "defendants follow a
policy and practice of discrimination in employment against
blacks on account of their race," and that "the policy and
practice . . . has been and is implemented by the defendants,
among other ways, as follows": refusing to consider plaintiff
Chisholm for promotion to the positions of budget assistant and
finance examiner; maintaining a policy of refusing to grant
promotions to blacks; maintaining a policy of preventing
10/ Jurisdiction of the district court was invoked pursuant to
28 U.S.C. §§ 1331, 1343(4); 42 U.S.C. § 2000e-16, 42 U.S.C.
§ 1981 and 28 U.S.C. §§ 2201 and 2202.
9
blacks from attaining supervisory positions; and maintaining
a policy of excluding blacks from the "promotion advisory board"
which has responsibilities for recommending employees for pro-
11/
motion in the USPS Charlotte (A. 6). Thereafter, defendants
filed their answer (A. 13).
On August 22, 1974, five black USPS Charlotte employees -
H. C. Rushing, William J. McCombs, C. A. Rickett, Milton J. Yongue
and James F. Lee - filed a motion to intervene as parties
plaintiff which alleged, inter alia, that they have been denied
promotion and other employment opportunities by the defendants
on account of their race; and that they have an interest in the
business and transactions and policies which are the subject of
the action and are so situated that the disposition of this action
may, as a practical matter, impair or impede their ability to
protect their interests in the action (A. 19). Attached thereto
was a complaint in intervention which generally incorporated the
allegations in the complaint.
In a supplemental memorandum filed October 18, 1974,
defendants renewed their objections to the action proceeding
as a class action because, first, a trial de_ novo is impermis
sible and, second, exhaustion of adminstrative remedies by
members of the class was lacking (R. 29). Defendants also objected
to intervenors' motion because of lack of exhaustion of administra
tive remedies by intervenors. A hearing on all pending motions
11/ On March 5, 1974, the district court decided several pending
motions (A. 12), including, inter alia, (1) denial of defendant's
motion to dismiss (A. 9); (2) allowing plaintiff's motion to compel
answers to plaintiff's first interrogatories; and (3) permitting a
full hearing on the factual issues, i.e., trial de novo.
10
was held December 13th and the lower court issued a memorandum
opinion and order May 29, 1975 (A. 24). The district court
ordered that, inter alia, (1) the action proceed as a trial de_ novo
as in private employee Title VII actions; (2) the action proceed
under 42 U.S.C. § 1981 as well as Title VII; (3) the action be
12/
certified and allowed to proceed as a class action; and (4)
the intervention be allowed (A. 42-43). The opinion specifically
rejected the government's trial de novo and lack of exhaustion
contentions against class action and intervention, choosing
instead to apply recognized Title VII law developed in private
employee actions to decide these procedural questions (A. 35-40).
The district court certified the trial de_ novo, class
action and intervention issues for an immediate interlocutory
appeal to this Court pursuant to 28 U.S.C. § 1292(b) (A. 42) and,
subsequently, the additional issue of whether the remedy avail
able to federal employees under Title VII is exclusive and thus
preempts other available remedies (A. 45). On August 8 and 13,
1975, the petition for leave to appeal the four issues was
granted and the appeal permitted by this Court. Later, briefing
12/ The class was defined as consisting conditionally of all
black persons who are employed or might be employed by USPS
Charlotte limited, classified, restricted, discharged, excluded
or discriminated by defendants in ways which deprive or tend to
deprive them of employment opportunities and otherwise affect
their status as employees or applicants for employment or pro
motion because of their race or color.
The government's brief fails to acknowledge that the lower
court's definition of the class "is conditional and may be modified
at any stage prior to final determination of the action on the
merits" (A. 43), see pp. 9, 25-32 of the government's brief.
11
■was deferred until the Supreme Court's decision in two pending
cases. On June 1, 1976, the Supreme Court decided that federal
employees are entitled to the same right to a trial de_ novo as
private employees under Title VII in Chandler v. Roudebush,
44 U.S.L.W. 4709, and that Title VII is the exclusive remedy
for federal employment discrimination in Brown v. General
Services Administration, 44 U.S.L.W. 4704, thereby pretermitting
independent consideration by this Court of the trial de novo
13/
and exclusive remedy issues.
The class action and intervention questions, which raise
important issues concerning whether Rule 23 and 24, Fed. R. Civ.
Pro., procedures which safeguard effective judicial enforcement
of Title VII rights of private and state or local government
employees are unavailable to federal employees, remain to be
considered and decided.
Statement of Facts
The district court held that, "This Court's conclusion
that its discretion should be exercised to grant this case class
action status is supported by the fact that (1) the appropriate
administrative agency has limited through 'interpretation'’ its
review of plaintiff's formal complaint to only some of the
discriminatory charges contained therein, thus making it difficult
if not impossible for Chisholm to raise class issues except in
13 / Plaintiff Chisholm agrees with the government that the
dTstrict court's decision permitting a trial de novo should be
affirmed in light of Chandler v. Roudebush, supra, and that the
decision that this case may proceed under 42 U.S.C. § 1981 should
be reversed in light of Brown v. General Services Administration,
supra.
12
this forum; and (2) there is some evidence in the record . . .
which suggests there may have been class-wide discrimination in
the Post Office which has left lingering present discriminatory
effects."—
A. Discriminatory Denial Of Plaintiff Chisholm's
Applications
Plaintiff Chisholm has been employed by US PS Charlotte
since 1958, except for two years military service (R. 6,
Admin. R. 74). In early 1972, Mr. Chisholm, then a mail carrier
PMS-5, applied for two accounting positions, finance examiner
PMS-9 and budget assistant PMS-8 (A. 24, 56). Mr. Chisholm's
application for finance examiner was improperly rejected for
failure to meet specialized experience requirements, although
Mr. Chisholm met substitute educational requirements. The
undisputed conclusion of the administrative hearing examiner,
which the agency accepted, was that Mr. Chisholm "had sufficient
college credits to substitute for the required specialized
experience and that he was improperly denied the opportunity to
be considered for the position of Finance Examiner" (A. 58-63).
The administrative record also indicates that the denial of
•^/ Although plaintiff has not had a full opportunity to develop
the merits of the case, facts concerning the denial of plaintiff
Chisholm's applications and patterns of employment discrimination
against blacks generally are established in the administrative
record submitted to the Court by defendants with their motion to
dismiss (A. 1) and in some of the discovery materials already filed
with the Court (A. 1—3). Parts of the administrative record are
set forth in A. 48-75 and the complete record at R. 6, Admin. R.
1-233.
13
Mr. Chisholm's applications has implications for discrimination
/
against black employees generally in several respects.
First, white employees of similar grades whose applications
also did not comply with comparable required years of USPS
specialized experience nevertheless were concurrently granted
the opportunity to compete for positions equal in grade to those
15/
Mr. Chisholm was denied consideration for. The undisputed
conclusion of the administrative hearing examiner, which the
agency accepted, was that "the application of published qualifi
cation standards at the Charlotte Post Office have not been
applied to certain white candidates, but that no deviation from
the standards were granted in consideration [Mr. Chisholm] for
positions for which he has applied" (A. 62-63).
Second, Mr. Chisholm's assertion that the white employee
ultimately selected for finance examiner was unfairly preferred,
preselected and qualified by supervisors who had previously
"detailed" him to the examiner position, is supported by the
testimony of another witness, _ unrebutted and uncontradicted in
16/
the administrative record.
15/ Thus, a white PMS-4 employee was determined to be eligible
for consideration for training assistant PMS-8 without any
specialized experience or substitute education (A. 59-60); a white
PMS-6 employee was considered eligible to compete and ultimately
selected for methods and standards analyst PMS-10 without any
specialized experience and on the improper basis of a test (A. 60-61)
two white PMS-5 mail clerks were determined to be eligible for
consideration for safety assistance PMS-8 on the basis of non-
Postal Service experience (A. 58-59); and a white letter carrier
was improperly considered for safety assistant PMS-8 on the basis
of an insufficient detailed reference to previous employment
experience (A. 61).
R. 6, Admin. R. 182-184.
14
It was and still is my contention that I am a
better qualified employee than Mr. Robert
Wallace for Finance Examiner position level 9.
Management made no effort to refute my
position or to defend Mr. Robert Wallace's
qualifications. However, I pointed out and
testimony given that Mr. Wallace was a level
5, that his position was reranked to level 6,
shortly thereafter he was given a level 7 job
which he never worked, and was then detailed
to level 9 Finance Examiner position for a
year and three months before it went up for
bid. And that the same two people who were
instrumental in detailing him as well as manip
ulating him on paper, to the various positions
were the same two people who were on a three
man Promotion Advisory Board which I was not
allowed to appear before. Those two people
were Mr. Carl Sims his immediate supervisor in
finance and Mr. Harold R. Kennedy, Director.
Gentlemen that was plainly a bias [ed] Promotion
Board and a "buddy" system of Promotion.
(A. 54). " [B]efore 1972 there were few, if any, black clerks or
carriers detailed to higher level jobs" (A. 75). The hearing
examiner, however, failed to address the question of the
discriminatory impact of specialized experience requirements
on Mr. Chisholm or other black employees' promotional
opportunities in light of whites-only detailing.
Third, USPS Charlotte promotion advisory boards which con
sidered, inter alia, the applications for both the finance
examiner and budget assistant positions were constituted in a
manner that would limit and in fact did limit the membership
17/
largely to white supervisors. As a result, only one black
supervisor had ever sat on promotion advisory boards at USPS
Charlotte and he only since 1971. Mr. Chisholm's assertions
17/ A. 53; R. 6, Admin. R. 159-163, 213-214.
15
to this effect, although supported by the testimony of
several witnesses, unrebutted and uncontradicted, also were
not reached by the hearing examiner in his recommended decision
B. Discrimination Against Black Employees Generally
1. Discriminatory Policies and Practices
At this juncture, the record is most developed on the
discriminatory impact of detailing.
The heart of Chisholm's (and prospective
plaintiffs-intervenors) claim of racial dis
crimination is the "detailing" process, a
system utilized to fill "temporary vacancies"
in USPS. Details apparently have been given
on the basis of highly subjective criteria.
Plaintiffs contend blacks have been denied
details and, consequently, are presently
disadvantaged with respect to all pending
and future promotions. Promotions in USPS
are based to a great extent on past job
experience and past work at various job
levels. One method by which such experience
is gained is through temporary "details."
Thus, if plaintiff prevails and demonstrates
by the evidence that blacks have been victims
of a racially discriminatory detailing system,
he contends he will further demonstrate that
blacks presently seeking promotions are and
will be disadvantaged because they do not have
job experience or level experience they would
have obtained absent discrimination.
A cursory review of the Administrative
Record in this case and some discovery material
tends to substantiate plaintiff's claims of
discrimination in the detailing process.
James W. Toatley, the EEO Specialist for the
Charlotte Post Office, reported on September
20, 1972: "Before 1972 there were few, if any,
black clerks or carriers detailed to higher
level jobs." The extent and reasons for this
apparent discrimination in the detailing
system were made more clear in [a] . . .
colloquy between counsel for the plaintiff and
Mr. Toatley during Toatley's deposition taken
on November 12, 1974 (pp. 24-29 of the depo
sition:
16
* * *
Q. Do you have any explanation, Mr.
Toatley, as to why a number of blacks
who had college degrees were serving
as clerks and carriers in the Post
Office rather than some higher position?
A. To be factual, I couldn't, you know, I
can't give, you know, other than my own
opinion.
Q. Well, what is that?
A. Well, during Carpenter's administration,
they just weren't hired. I mean they
just — they just didn't put them in
higher levels.
Q. You're saying because they were black?
A. I would say so.
(A. 27-33). See also supra at 14-15 and infra at 20.
There are other indications of class-wide policies and
practices with discriminatory impact that are lurking in the
record. For example, defendants' answers to plaintiff's first
interrogatories suggest that subjective discretion by the almost
all-white supervisory force plays a critical role in at least
two points in the promotion process (R. 24, Answers to Interr.
10-11 at 10-14). Thus, employees who take and pass the super
visory examination, are placed upon a register. The Postmaster
may consider as eligible for promotion any employee who has
attained a score of 55% on the appropriate supervisor examination.
Eligible employees to be considered are then appraised by their
18/
immediate supervisor and rated overall. Written appraisals
18/ Exhibit 5A, attached hereto as Appendix B infra at lb _ 4b.
17
of performance and potential are required in Section B. Factors
to be considered in evaluating performance are "job knowledge,"
"work execution," "job relationships," "job demands," and "job
conduct"; factors to be considered in evaluating potential are
"learning capacity," "motivation," "judgment," "responsibility,"
and "technical ability." An overall rating is determined from
19/
Section B evaluation scores. Candidates are then interviewed
20/
by a promotion advisory board. The interview form requests
scoring on "appearance, bearing and manner," "ability in oral
expression," "stability and social adjustment," "mental qualities,"
"vitality," "maturity," "work attitudes," "motivation and
interest" and "subject matter knowledge." The Postmaster then
selects one of three names proposed by the advisory board.
2. Prima Facie Discrimination
Overall workforce statistics compiled by USPS Charlotte
for December 1, 1970 - May 31, 1971 constitute a prima facie
showing of systemic racial discrimination (A. 57-58, see also
56). Of 1436 employees of all grades, 72.8% (1045 of 1436)
were white and 27.2% (390 of 1436) black. Black employees are
disproportionately concentrated at low grade positions and
almost completely absent from high level positions. Thus, while
19/ The_appraisal form requests, in Section A, the following
information "describing the employee's performance and ability":
"attitude toward Postal Service," "knowledge of postal porcedures,"
"initiative," "ability to work effectively with others," "physical
vitality," "emotional stability," "leadership ability," "integrity,"
"ability and willingness to make decisions," "mental alertness" and
"personal conduct."
20/ Exhibit 7, attached hereto as Appendix B, infra at 5b .
- 18
9.6% (138 of 1436) of all employees were in grades 2-4, only
3.3% (34 of 1045) of white employees but 26.7% (104 of 390) of
21/
black employees held such low level jobs. While 82.7% (1187
of 1436) of all employees are in grades 5-7, white employees were
overrepresented (86.7% or 906 of 1045) and blacks underrepresented22/
(72.1% or 281 of 390). The pattern of white overrepresentation
and black underrepresentation at grades 5-7 is true of all higher
level as well. While 5.5% (79 of 1436) of all employees were
at grades 8-10, fully 7.0% (73 of 1045) of white employees and
23/
only 1.9% (6 of 309) of black employees held such jobs. All
24/
twenty 11-17 grade level positions were held by whites. By the
time Mr. Chisholm's administrative complaint was filed in March
1972, there was one high level black employee - at PMS-11, see
25/
supra at 15.
2-V Black employees were a majority at all these levels: grade
2, 80% (4 of 5); grade 3, 94.1% (16 of 17); and grade 4, 71.8%
(84 of 113). Black employees are a majority at no other levels.
22/ Black employees held 24.7% (244 of 986) of PMS-5 positions,
17.6% (33 of 187) of PMS-6 positions and 26.7% (4 of 15) of PMS-7
jobs.
23/ At level 8, 8.7% (4 of 46) were black; at level 9, 12.5% (2 of
16) were black; and at level 10, none of 17 were black.
24/ This included 9 level 11 positions, 4 level 12 positions, 3
level 13 positions, 2 level 14 positions, 1 level 15 positions and
I level 17 position.
25/ In fact, the disproportionality is greater when account is taken
of the fact that white women (9.7% or 101 of 1046 white employees)
are concentrated at lower level jobs and absent from all grades
higher than level 8. Excluding white women and comparing black
employees to white males alone would indicate greater statistical
disparity. The total of 1046 white employees also includes all
II ungraded rural carriers.
19
Available statistics on details to PMS-7 and higher
positions, supervisory training and promotions, reflect the
same pattern of statistical disparity (A. 67-70).
As to detailing, of 113 details to grades 7-14, fully
86.7% (98 of 113) details were assigned to white employees and
only 13.3% (15 of 113) to black employees in the December 1,
1970 - May 31, 1971 period. All 11 of the details to 11-14 level
positions went to white employees. Similarly, in the May 31,
1971 - November 30, 1971 period, fully 83.8% (93 of 111) of all
level 7-14 details went to white employees but only 15.3%
(17 of 111) to black employees. As in the earlier period, all
7 of the details to positions at grades 11-14 went to white
employees. With respect to employees chosen for supervisory
training, fully 91.2% (134 of 147) of all employees receiving
supervisory training were white but only 8.8% (13 of 147) black
from December 1, 1970 to May 31, 1971. For the next six month
period, 91% (172 of 189) were white but only 9% (17 of 189) black.
In the December 1, 1970 - May 31, 1971 period, there were
16 promotions: 6 of 10 promotions to white employees and all 6
of promotions to black employees were in grades 2-7,while all
4 high grade promotions were of white employees. In the succeeding
six month period, there were 32 promotions: 15 of 21 white
employees and 10 of 11 black employees were promoted to 2-7
level positions while 6 of the 7 promotions to higher positions
went to white employees. For the full 12 month period, 10 of
11 promotions to level 8-17 positions went to white employees.
From April 1, 1971 to March 31, 1972, 11 of 15 promotions to
level 8-9 positions went to white employees (R. 6, Admin. R. 69-72).
20
ARGUMENT
Introduction
It is clear that in actions brought by private company
and state or local government employees pursuant to § 706 of
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e-5, it is unnecessary for all members of a class
to seek administrative resolution of their individual complaints
as a condition precedent to maintaining a Rule 23 class action; the
Supreme Court has so held twice within the last two terms. Albemarle
Paper Co. v. Moody, 422 U.S. 405, 414 n. 8 (1975); Franks v.
Bowman Transportation Co., ___ U.S. ___ , 47 L.Ed. 2.d 444, 465-
466 (1976). It also is now clear that, " [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
. . . according 1 [a]ggrieved [federal] employees or applicants
. . . the full rights available in the private sector under
Title VII,'" Chandler v. Roudebush, ___ U.S. ___, 44 U.S.L.W.
4709, 4710 (Sup. Ct. June 1, 1976). Chandler dealt specifically
with whether federal employees suing under § 717 of Title VII,
42 U.S.C. § 2000e-16, are entitled to the same Title VII right
to a plenary judicial proceeding or trial de_ novo under the
Federal Rules of Civil Procedure as private employees rather
than a-truncated review of the administrative record (as the
government contended). In upholding the right to a trial
21
de novo, a unanimous Court looked to the plain meaning of
statutory language and legislative history that "[t]he
provisions of section 2000e-5(f) through (k) of this title
shall govern civil actions brought hereunder," 42 u.S.C.
§ 2000e-16(d). It is those very sections of 2000e-5 which
the Supreme court and all other courts have construed to
allow a Rule 23 class action by a single employee who has
26/
exhausted his administrative remedies.
The principal question presented in this federal Title VII
action is not unprecedented in employment discrimination
jurisprudence; precisely the same kind of issue has been
litigated innumerable times in Title VII actions brought by
27/ 28/
private company employees and the United States. Plaintiff
Chisholm is attacking a range of employment policies and
practices that have the effect of discriminating against blacks
as a class "by stigmatization and explicit application of a
26/ The government has phrased its objection to class certifi
cation in terms of per se "jurisdiction" and "exhaustion". What
is at issue however, is much narrower: there is no doubt that
the district court had jurisdiction over the action or that Mr.
Chisholm has exhausted his administrative remedies. The only
question is whether the government’s additional and wholly technical
bar to a Rule 23 class action was properly rejected. For the
convenience of the Court, however, appellants will use the term
"exhaustion" in referring to the government's contention.
27/ See, e.g., Qatis v. Crown Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968); Jenkins v. United Gas Corp., 400 F.2d 28 (5th
Cir. 1968); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 715 (7th
Cir. 1969).
28/ See, e.g.. Graniteville Co. v. EEOC. 438 F.2d 32 (4th Cir.
1971); United States v. Chesapeake and Ohio Ry. Co.. 471 F.2d
582 (4th Cir. 1972); United States v. Georgia Power Co., 474 F.2d
906 (5th Cir. 1973).
- 22
29/
badge of inferiority." Simply stated, federal employees
seek no more or less than what employees of a private company
31/
or state or local government employer are entitled under
Title VII. The federal government, on the other hand, seeks an
exemption from challenges to systemic discriminatory policies
and practices it itself has consistently encouraged in this and
other courts against all other alleged discriminatory employers.
The class action and intervention questions are but two
of the narrow technical devices which government lawyers
defending federal agencies in employment discrimination suits
have raised in a comprehensive and concerted effort to
forestall application to § 200e-16 actions, law developed
in private employee Title VII cases. Other such contentions
30/
29/ Sosna v. Iowa. 419 U.S. 393, 413 n. 1 (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 in Title VII had given persons injured
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." compare Franks v. Bowman Transportation Co., supra,
47 L.Ed. 2d at 455-457; Moss v. Lane Co., 471 F.2d 853 (4th Cir.
1973); Barnett v. W. T. Grant, 518 F.2d 543 (4th Cir. 1975).
3°/ See, e.g., Brown v. Gaston County Dyeing Machine Co., 457
F.2d 1377 (4th Cir. 1972), cert, denied. 409 U.S. 982 (1972).
31/ See, e.g., Morrow v. Crisler, 479 F.2d 960 (5th Cir. 1973),
aff*d en banc, 491 F.2d 1053 (5th cir. 1974).
- 23
concern trial de novo, remand to agency proceedings in
33/
properly filed cases, federal court authority to grant Rule 65
34/ _ _ 15/
preliminary injunctive relief, notice of right to sue, and
36 /
application of Title VII substantive standards. Appellate
courts have rejected the government's basic contention that
Title VII principles developed in private sector cases do not
apply in each of these contexts and squarely held that, "The
intent of Congress in enacting the 1972 amendment to [Title VII]
extending its coverage to federal employment was to give those
public employees the same rights as private employees enjoy,"
Parks v. Dunlop, supra, 517 F.2d at 787. In rejecting the
government's contentions, the lower court also expressly
declared that federal employee Title VII actions should be
treated like any other Title VII case; e.g., "Congress intended
to give federal employees the same opportunity as private
employees enjoy to seek class relief in a civil action" (A. 36).
Thus, the district court's ruling permitting a class action and
intervention is wholly consistent with how other courts have
32/
32/ See, e.g., Chandler v. Roudebush, supra; Hackley v..Roudebush,
520 F.2d 108 (D.C. Cir. 1975).
33/ See, e.g., Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975).
34/ see, e.g., Parks v. Dunlop, 517 F.2d 785 (5th cir. 1975).
35/ see, e.g., Coles v. Penny, 531 F.2d 609 (D.C. Cir. 1976).
36/ See, e.g., Day v. Weinberger, 530 F.2d 1083 (D.C. Cir. 1976)
(burden of proof); Douglas v. Hampton, 512 F.2d 976 (D.C. Cir.
1975) (remedies); see also Morton v. Mancari, 417 U.S. 535, 547
(1974) (substantive law generally). With respect to the retro
active effect of Title VII,. see Koger v. Ball, 497 F.2d 702 (4th
Cir. 1974); Place v. Weinberger, ___ U.S. ___, 44 U.S.L.W. 3718
(Sup. Ct. June 14, 1976), vacating, 497 F.2d 412 (6th Cir. 1974).
- 24
disposed of other narrow technical contentions raised by
3j/government lawyers defending employer agencies.
If the court below had accepted the government's contentions
on either trial de novo or class action, the result would have
been that no broad effective judicial inquiry of USPS Charlotte
employment policies and practices would have been permitted,
notwith standing the "plain . . . purpose of Congress to assure
equality of employment opportunities and to eliminate those
practices and devices which have fostered racially stratified
job environments to the disadvantage of minority citizens."
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973),
38/
citing Griggs v. Duke Power Co.. 401 U.S. 424, 429 (1971).
" [C]ourts should ever be mindful that Congress, in enacting
37 / The common purpose of the government's objections to
the application of Title VII law is to nullify § 2000e-16,
enactment of which the spokesman for federal agencies, the
U„S. Civil Service Commission, unsuccessfully opposed in congress
as unnecessary. See chandler v. Roudebush. supra, 44 U.S.L.W. at
4712 n. 8; S. Rep. No. 92-415, 92d Cong., 1st Sess. 16 (1971),
reported in. Staff of Subcomm. On Labor of the Senate comm. On
Labor and Public Welfare, 92d Cong., 2d Sess. 425 (Comm. Print
1972) (hereinafter "Legislative History"); see also Hearings
Before the Subcomm. of the S. Comm, on Labor and Public Welfare,
92d Cong., 1st Sess. 296, 301, 318 (1971); Hearings Before the
Subcomm. on Labor of the H. Comm, on Education and Labor, 92d
Cong., 1st Sess. 386 (1971).
38/ See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 417
(1975); Franks v. Bowman Transportation Co., 47 L.Ed. 2d 444.
461 (1976T-------------------- ------------
- 25
Title VII, thought it necessary to provide a judicial
forum for the ultimate resolution of discriminatory
employment claims, it is the duty of the Courts to assure
the full availability of this forum." Alexander v. Gardner-
Denver Co., 415 U.S. 35, 60 n. 21 (1973); Chandler v. Roudebush,
supra. 44 U.S.L.W. at 4711. Title VII was amended to include
42 U.S.C. § 2000e-16 in order "to make the courts the final
tribunal for the resolution of controversies over charges of
discrimination," Roger v. Ball, 497 F.2d 702, 706 (4th Cir. 1974),
for all employees. The result would be especially contrary to
the purpose of Title VII in this action in which the Court
below specifically found "a class action is not only proper in
this case but it is also superior to all other options available
to the Court" (A. 39).
Appellants' contention that every member of the class must
file an individual administrative complaint before a class action can
be brought boils down to precluding any meaningful use of
Rule 23, Fed. R. Civ. Pro., procedures in federal Title VII cases
no matter how appropriate such treatment would be under Rule
23(a) and (b)(2). The position of the government on class actions
is erroneous on several counts as decided by the lower court.
First, the language of § 2000e-16 in no way restricts the right
to maintain class actions as provided for by Rule 23. Second,
the legislative history of the 1972 amendments to Title VII
demonstrates congressional intent to allow broad class actions
26
and approval of prior judicial decisions to that effect.
Third, the administrative process does not permit class claims
to be accepted, investigated or resolved in an effective manner.
Fourth, the appellees1 secondary contention that the district
court abused its Rule 23(c) (1) discretion in broadly defining
the provisional scope of the class is also erroneous.
With respect to the district court's exercise of discretion
also to permit intervention by black employees who have not
previously sought administrative relief on their claims there
likewise was no abuse of discretion. Intervention pursuant to
Rule 24, Fed. R. Civ. Pro., is both proper and in accordance
with applicable principles developed in private employee Title
VII cases.
I.
A CLASS ACTION WAS PROPERLY CERTIFIED PUR
SUANT TO RULE 23(a) AND (b)(2), FED. R. CIV.
PRO.________________________________________
The lower court certified a class action and provisionally
defined a broad class after concluding that maintenance of a
class action was permissible on the basis of (a) statutory
language under which "courts enforcing Title VII have found the
class action vehicle as being particularly suitable to redress
claims of racial discrimination in employment"(A. 35), (b) specific
1972 legislative history (A. 36-37) and (c) the fact that "it [is]
difficult if not impossible for Chisholm to raise class issues
except in this forum" (A. 37). The government contends that
there is no jurisdiction for a class action and that the
27
conditionally defined class is too broad. Initially, however,
we note what the government does not contend. First, the
government no longer urges, as it did below, that, "'[wjhether
federal employees can maintain a Title VII class action is
best answered by deciding whether a Title VII action entitles
federal employees to a trial de novo after administrative
remedies have been unsuccessfully pursued. Clearly, if
court review of a federal employee's discrimination charge
were restricted to a review of the agency record a class
action would not be possible as it would require exploration
of factual issues obviously beyond the record of a single
employee.'" Defendants' Supplemental Memorandum at 3
(R. 29) citing Pendleton v. Schlesinger, 8 EPD ^[9598 at
5569 (D.D.C. 1974). Indeed, the government's brief does
not mention Chandler v. Roudebush, supra, in connection
with the class action issue, although Chandler leave no
doubt that federal employee Title VII actions are governed
by principles developed in private employee Title VII
cases. Indeed, decisions upholding the government's position
on the class action issue were decided before Chandler and
in reliance on an erroneous view of the trial de novo issue's
effect on exhaustion requirements, see Predmore v. Allen,
407 F. Supp. 1053, 1065-1066 (D. Md. 1975); none of these
39/
cases is now cited. On the other hand, the D. C. Circuit
39/ Hackley v. Roudebush, supra, 520 F.2d 152-153 n. 177.
28
and all the district courts which correctly decided the trial
de novo issue(because they concluded that Congress intended to
give federal employees the same rights and remedies as private
sector employees) also have, without,exception, permitted class
actions, resolving exhaustion contentions as the lower court did.
Thus, the government does not and cannot cite any reported court
authority that directly supports its exhaustion bar.
Second, the government does not contend that Mr. Chisholm
should have filed a separate "administrative class action" in
addition to his complaint as a condition to maintaining a Rule 23
class action. The government so argued in this court in Simmons
41/
v. Schlesinger, No. 75-2182, argued May 3, 1976, although
federal district courts have found that there is no way such an
42 /
administrative complaint could have been raised. The Justice
40/
40/ Williams v. Tennessee valley Authority. 415 F. Supp. 454
7M.D. Tenn. 1976); Barrett v. U. S. Civil Service Commission,
69 F.R.D. 544 (D.D.cI 1975); Keeler v. Hills, 408 F . Supp. 386
(N.D. Ga. 1975); Ellis v. Naval Air Rework Facility, 404 F. Supp.
391, (N.D. Cal. 1975); Predmore v. Allen, supra; Sylvester v. U. S .
Postal Service. 393 F. Supp. 1334 (S.D. Tex. 1975); Richerson v.
Fargo. 61 F.R.D. 641 (E.D. Penn. 1974).
41/ In its brief in Simmons v. Schlesinger at 31, the government
spoke to the contention that all members of a class must exhaust
individually in private Title VII cases as "effectively end[ing]
class actions in Title VII cases by limiting relief to those who
file a charge with the EEOC or were named in a charge. Such a
provision goes far beyond what [appellees] propound . . . "
42/ See, e.g.. Barrett v. U. S. Civil Service Commission, supra,
69 F.R.D. at 549-554; Williams v. Tennessee Valley Authority,
supra, 415 F. Supp at 458-459; Keeler v. Hills, supra, 408 F. Supp.
at 387-388; Ellis v. Naval Air Rework Facility, supra, 404 F. Supp.
at 394-395.
29
Department has so conceded and the Solicitor General
44/
so approved. In Barrett v. U. S. Civil Service Commission,
supra, 69 F.R.D. at 553, the district court specifically
granted a declaratory judgment because Title VII requires
modification of Civil Service Commission regulations to per
mit "consideration of class allegations in the context of
individual complaints." For the declaratory judgment and
order to this effect, see 10 EPD ^10,586 at 6450, see also
infra at Part I.C. of this brief.
43/
43/ See, e.g.. Brief For The Defendants-[Appellees],
McLaughlin v. Callaway, Fifth Circuit No. 75-2261, at p. 13
("As interpreted by the Civil Service Commission the regulations
do not permit filing of a class action administration com
plaint."), reversing position taken in, 382 F. Supp. 885
(S.D. Ala. 1974).
44/ Brief For Respondents, chandler v. Roudebush, No. 74-1599,
at p. 65 ("A district court I . has recently invalidated
Commission rules that effectively prohibited administrative
class actions. Barrett v. United States civil Service Com
mission. . . . "). 40/
40/ The Civil Service Commission has
now approved in concept the propriety
of administrative class actions and
we expect that draft regulations imple
menting Barrett will be published on
or before February 16, 1976.
30
The government does not raise the administrative
class action contention here, both because it is unsupport-
able and exposes facts that plainly undermine their present
contention. Thus, the government's elliptic reference
to Barrett at p. 24 n. 9 of their brief appears to suggest that
proposed revisions permitting separate administrative
class action procedures are somehow permissible under Barrett.
This of course is contrary to Barrett's holding on the
declaratory judgment which the government did not appeal and,
indeed, has elsewhere approved, supra. Some of appellant's
counsel, who are also plaintiff's counsel in Barrett, under
stand that the proposed revisions set forth at 41 F.R,
8079 have been withdrawn and are themselves being revised
for being contrary to Barrett. Moreover, footnote 9 concedes that
"the requirement of exhaustion will not necessarily require
that each individual exhaust separately" in light of Barrett,
although it is not clear the government understands what
Barrett really stands for. This concession calls into question
their present contention that all members of a class must
individually exhaust administrative remedies. No legal
doctrine justifies depriving these class members of the right
to maintain a class action because the government chooses
to urge an "exhaustion" bar bottom on illegal administrative
refusal of federal agencies to consider "class allegations
31
in the context of individual complaints." compare Love v .
Pullman Co. 404 U.S. 522 (1972).
Third, the government raises no issues with respect to
the propriety of the lower court's certification of the
class pursuant to Rule 23(a) and (b)(2), the specific finding
that "a class action is not only proper in this case but
it is also superior to all other options available to the
Court" (A. 39), nor the specific finding that it was
"difficult if not impossible for Chisholm to raise issues
except in this forum" (A. 37) aside from the question of the
scope of provisionally defined class. Thus the government
seeks to preclude a class action which, aside from scope of
the provisionally defined class, would be wholly appropriate
under safeguards of Rule 23(a) and (b)(2), and the best
and only way to resolve the claims of systemic discrimination
asserted.
As demonstrated above, the government has not hesitated
to change its horse midsteam or to advocate the most extreme
of positions in its effort to stifle congressional purpose and
remove Title VII as a practical means of curing systemic
federal employment discrimination. Clearly, what the govern
ment intends is to emasculate 42 U.S.C. § 2000e-16 enforcement
suits as an effective weapon against class-wide discrimination.
Appellee suggests that the government's present position should
be considered in this light.
32
A. Class Actions Provided For In The Federal Rules Of
Civil Procedure Are Not Precluded By The Statutory
Language Of 42 U.S.C. 5 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 after one
named plaintiff exhausts his administrative remedies without
the additional preclusive exhaustion the government argues for.
As the lower court put it: "It is undisputed that Chisholm has
exhausted his administrative remedies, and, in his formal
administrative complaint, the plaintiff raised broad class-wide
issues of discrimination. It is well settled that a single
plaintiff who has met the procedural prerequisite under Title VII
may maintain a class action in court on behalf of all others
similarly situated" (A. 37).
There is no doubt after the Supreme court's landmark decision
in Chandler v. Roudebush, supra, that federal employee Title
VII actions, like § 2000e-5 suits, are "civil actions" fully
33
governed by the Federal Rules. "The Congress . . . chose to
give employees who had been through [administrative] procedures
the right to file a de novo 'civil action' equivalent to that
enjoyed by private sector employees," 44 U.S.L.W. 4716. The
necessity of § 2000e-5 trials de_ novo has been clear since
Alexander v. Gardner-Denver Co., supra, and McDonnell Douglas v .
Green, 411 U.S. 792, 798-799 (1973), and the propriety of class
actions in Title VII enforcement suits since Griggs v. Duke Power
Co., supra, 401 U.S. at 429-30. Implicit, therefore, in the
general right to a trial de novo, is the specific right of a
plaintiff, in appropriate cases, to prosecute class actions pur
suant to Rule 23 in a fashion equivalent to § 2000e-5 class
actions. The government's proffered preclusive exhaustion rule
in derogation of this right is without basis or precedent in
Title VII jurisprudence and contrary to Chandler. It also, at the
very least, is wholly inappropriate in this action in which, as
noted above, the lower court has held that Rule 23(a) and (b)(2)
requirements are fully met, that the class action is "superior to
all other options" and that the class action is the only practi
cable means for considering the merits of the controversy.
1. Rule 23(b)(2) Fed.R. Civ. Pro.
Nothing in Rule 23(b)(2), under which the class action was
certified below, requires the government'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
34
if it has taken effect or is threatened only as to one or a
few members of the class, provided it is based on grounds which
have general application to the class." Proposed Amendments
to Rules of Civil Procedure, 39 F.R.D. 69, 102 (1966). The
technical exhaustion bar of every member of the class filing
an individual administrative complaint is thus contrary to the
preeminent purpose of Rule 23(b) (2) to provide practically for
full adjudication of claims against a defendant whose policies
or practices have general application to a class.
Moreover, Rule 23(b)(2) was specifically designed for
actions "in the civil rights field where a party is charged
with discriminating unlawfully against a class, usually one
whose members are incapable of specific enumeration. See
Advisory Committee's Notes, 39 F.R.D. 98, 102" (A. 39); 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 plaintiff Chisholm in the instant case seeks
to raise and remedy in a court of law — systemic, class-"wide
employment discrimination by USPS Charlotte — is precisely the
across-the-board attack on all discriminatory actions by
defendants on the ground of race that this Court in Barnett
found "fits confortably within the requirements of Rule 23(b) (2)."
As the Fifth Circuit has emphasized, " [i] f 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
35
v. united States Gas Corp., 400 F.2d 28, 34 (5th Cir. 1968), cited
below at A. 35-36. As the lower court pointed out, Rule 23(b) (2)
class actions are particularly appropriate in employment discrimi
nation litigation.
It has long been acknowledged by the
courts that racial discrimination is by its
very nature discrimination against a class.
Oatis v. Crown-Zellerbach, 398 F.2d 496,
at 499 (5th cir. 1968); Bowe v. Colgate
Palmolive Co., 416 F.2d 711 (7th Cir. 1*969).
As one court observed, 'if it exists, it
applies throughout the class . . . [and]
threatens the entire class.' Hall v. Werthan
Bag Corp., 251 F. Supp. 184, at 186 (M.D.
Tenn. 1966). Thus, courts enforcing Title
VII have found the class action vehicle as
being suitable to redress claims of racial
discrimination in employment.
45/
(A. 35). This principle was also accepted by Congress in
1972 in considering the propriety of Title VII class actions
for employment discrimination, see infra at part I.-B-. 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. See, e.g., Albemarle Paper Co. v. Moody, supra;
Franks v. Bowman Transportation Co., supra.
2. 42 U.S.C. S 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
45J compare the analysis set forth in Hackley v. Roudebush, supra,
529 F.2d at 152-153 n 177; Williams v. Tennessee valley Authority,
supra. 415 F. Supp. at 457; Barrett v, U. S. Civil Service Com
mission, supra, 69 F.R.D. at 555; Keeler v. Hills, supra, 408 F.
Supp. at 388; Predmore v. Allen, supra, 407 F. Supp. at 1064-1065;
Sylvester v. U. S. Postal Service, supra, 393 F. Supp. at 1340-
1341; Richerson v. Fargo, supra, 61 F.R.D. at 643.
36
enforcement actions in the form of class actions. In particular,
there is nothing concerning special exhaustion requirements for
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 in an action under Title II of the
Civil Rights Act of 1964, 42 U.S.C.§§ 2000e et se%. 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. Defend
ants pointed out that Title n (1) authorizes a civil action
only for preventive relief to "the person aggrieved" by the
offender; (2) authorizes pattern or practice suits by the Attor
ney 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 [private] enforcement of
46/the rights contained in Title II of the Civil Rights Act." —
353 F.2d at 591. In Oatis v. Crown Zellerbach Corp., 398 F.2d
— / 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.
37
496 (5th Cir. 1968), the issue came up in the Title VII context
. awith defendant contending that jurisdiction was absent for/class
action because, inter alia, pattern or practice suits brought by
the Attorney General are authorized. citing Lance v. Plummer.
the Fifth circuit again rejected the preclusive contentions on
the ground that "The Act permits private suits and in nowise 11/precludes the class action device.11 398 F.2d at 498 (emphasis added).
Federal employee class actions, a fortiori, are not pre-
48/
eluded 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 awkard in light of the
fact that the § 2000e-16 civil action scheme was specifically
enacted to cure confusion about general exhaustion requirements11/
by providing explicit standards and to limit rather than to
47/ compare cases cited supra at 36 n. 45.
48/ This not to say that Congress cannot ever limit class actions;
only that Congress must do so in clear and unambiguous language.
See, e.g., Weinberger v. Salfi, 422 U.S. 749, 463-467 (1975),
(provision in 42 U.S.C. § 405(g) requiring prior "final decision
of the Secretary [of HEW] made after a hearing to which he was a
party"), discussed infra at 52-53. A similarly worded provision was
rejected during consideration of the 1972 Amendments to Title VII,
see infra at 41-45.
49/ 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.
See Ellis v. Naval Air Rework Facility, supra. 404 F. Supp at 395.
38
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 only the named plaintiff had exhausted his
individual administrative remedy and was thus eligible to bring
suit, and Congress approved this construction in 1972. See
infra at I.B. 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 of Justice or another federal agency must
defend such suits). Plaintiff federal employees are not merely
"private attorneys general," see, e.g., Newman v. Piggie Park
Enterprises, 390 U.S. 400, 402 (1968), as are employees in the
private sector; they are the only attorneys general. Moreover,
§ 2000e-16 is not just one of several judicial remedies; it is
the exclusive remedy and intended to be comprehensive. See Brown v.
General Services Administration. ___ U.S. ___, 44 U.S.L.W. 4704
(Sup. Ct. June 1, 1976).
50/
50/ 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, supra. Prior
to the enactment of § 2000e-16(c) it had been assumed that final
agency action was necessary. See, e.g., Harris v. Nixon, 325 F.
Supp. 28 (D. Colo. 1971). An extra exhaustion requirement for class
actions hardly comports with a scheme that instituted partial or
incomplete exhaustion requirements to change contrary prior practice.
- 39
The plain language of the statute unmistakably indicates
that Congress intended no exhaustion hurdle for Rule 23 class
actions. 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. Chandler v. Roudebush, supra; Love v .
Pullman Co., supra, 404 U.S. at 527 (1972); see also Sanchez v.
517
Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).
51/ The government's position also amounts to imposing waiver of
the right to bring a class action whenever there is any failure by
often unrepresented employees 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 infra at 62n.79.
No knowing and intelligent waiver can be said to occur under such
circumstances, 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). If complainants do
make class-wide allegations, they are usually discouraged and pre
vented from doing so, see infra, at 61-62, or their claims are
unaddressed, as was true of Mr. Chisholm's case. 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. Compelling reasons, therefore,
exist under Rule 23 and § 2000e-16 to apply the usual rule that
- 40
B. The Legislative History Of The 1972 Amendment To Title
VII Demonstrates Congressional Intent To Allow Rule 23
Class Actions
1. Legislative History
As the lower court made clear, the government seeks to
impose, by judicial action, a class action bar congress
specifically refused to legislate in the 1972 amendments (A. 36).
Compare Albemarle Paper Co. v. Moody, supra, 422 U.S. at 414,
n. 8; Franks v. Bowman Transportation Co., supra, 47 L.Ed.2d at
465-66; Hackley v. Roudebush, supra, 520 F.2d at 152, n. 177;
Williams v. Tennessee Valley Authority, supra, 415 F. Supp. at
456; Barrett v. U. S. Civil Service Commission, supra; 69 F.R.D.
at 550-551. The contention that all members of a class must
exhaust individually was rejected by Congress in reliance upon,
inter alia, Qatis v. Crown Zellerbach Corp., supra, and Jenkins
v. United Gas Corp., supra. These cases deal directly with the
problem of requiring all class members to exhaust their individual
remedies in § 2000e-5 actions and their reasoning applies equally
52/
well to § 2000e-16 actions. During the consideration
51/ (continued)
"there can be no prospective waiver of an employee's rights under
Title VII." Alexander v. Gardner-Denver Co., supra, 415 U.S. at 51.
52/ C&tjs v. Crown_Zelleybaqh C.Qrp ., supra, stated reasons why
exhaustion by all class members will not advance the purpose of
the Act:
"Moreover, it does not appear that to allow
a class action, within proper confines, would
in any way frustrate the purpose of the Act that
the settlement of grievances be first attempted
through the office of the EEOC. It would be
wasteful, if not vain, for numerous employees,
_ 41
of H. R. 1746 in the House, Rep. Erlenborn introduced a substitute
53/
for the 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
54/
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
52/ (Continued)
all with the same grievance, to have to process
many identical complaints with the EEOC. If
it is impossible to reach a settlement with one
discriminatee, what reason would there be to assume
the next one would be successful. The better
approach would appear to be that once an aggrieved
person raises a particular issue with the EEOC
which he has standing to raise, he may bring an
action for himself and the class of persons
similarly situated and we proceed to an examination
of this view." 398 F.2d at 498.
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 discrimination." 400 F.2d .at 32.
" [I]t is perfectly clear that no procedural purpose could be served
by requiring scores of substantially identical grievances to be
processed through the EEOC when a single charge would be sufficient
to effectuate both the letter and spirit of Title VII," Miller
v. International Paper Co., 408 F.2d 283, 285 (5th Cir. 1969; B~owe
v. Colgate-Palmolive Co., 416 F.2d 711, 715 (7th Cir. 1969);
Robinson v. Lorillard Corp., 444 F.2d 791, cert, dismissed, 404
U.S. 1006 (1971); Barela v. united Nuclear Corp., 462 F.2d 149,
153 (10th Cir. 1972); Macklin v. Spector Freight Systems, Inc., 478
F.2d 979, 985 n. 11 (D.C. Cir. 1973); Developments m the Law,
Employment Discrimination And Title VII of The Civil Rights Act of
1964, 84 Harv. L. Rev. 1109, 1221 (1971).
53/ Legislative History at p. 247.
54/ Legislative History at 147.
42
enforcement but the Erlenborn substitute passed in the House
56/
with exhaustion bar intact.
The Senate Committee bill, however, contained no restrictions
57/
on class actions. The Senate committee stated its intent not
to restrict class actions in its proposed § 706 provisions,
specifically citing Oatis and Jenkins:
55/
55/ Rep. Eckhardt argued:
"The Erlenborn 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."
Similarly, Rep. Abzug argued that:
"The Erlenborn bill would eliminate the right
of an employee to bring a class action on the
behalf of all other employees similarly situated,
a right which now exists under Title VII.
* * *
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, rein
statement, 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 employer bent on discrimi
nating against a class of employees, but an award — or
even the possibility of an award — on behalf of an
entire class can effectively discourage this kind of
unlawful discrimination. Legislative History at 276.
56/ Legislative History at p. 332.
57/ Legislative History at 335, et_ seq.
- 43
This section is not intended in any
way to restrict the filing of class com
plaints. 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." sfl/
The Senate bill as passed contained no limitations on class
52/actions and the Section-by-Section Analysis of S.2515
reiterated the intent not to limit class actions in any way:
In establishing the enforcement provisions
under this subsection and subsection 706(f)
generally, it is not intended that any of the
provisions contained therein are designed to
affect the present use of class action lawsuits
under Title VII in conjunction with Rule 23 of
the Federal Rules of Civil Procedure. The courts
have been particularly cognizant of the fact that
claims under Title VII involve the vindication
of a major public interest, and that any action
under the Act involves considerations beyond
those raised by the individual claimant. As a
consequence, the leading cases in this area to
date have recognized that Title VII claims are
necessarily class action complaints and that,
accordingly, it is not necessary that each
individual entitled to relief under the claim be
named in the original charge or in the claim for
relief. 60/
58/ Legislative History at 436.
59/ Legislative History at 1779, et seq.
60/ Legislative History at 1773.
44
The bill that emerged from theConference omitted the Erlenborn
provision. The Conference Section-by-Section Analysis of H.R.
1746 adopted the Senate Section-by-Section Analysis on class
action, 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
61/
and specifically rejected by the conference Committee."
The general § 2000e-5(f) civil action procedural framework
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
Conference Section-by-Section Analysis of H. R. 1746 specifically
says of §§ 200e-16(c) and (d), "The provisions of Sections 706(f)
through (k) as applicable, concerning private civil actions by
aggrieved persons, are made applicable to aggrieved Federal
employees or applicants" (emphasis added). Thus, the explicit
61y 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." (emphasis added)
62 / Legislative History at 1851. See also 118 Cong. Rec. 7169, 7566.
45
refusal to preclude 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 Com
mittee report questioned whether the Civil Service Commission
understood that "the general rules and procedures that it has
promulgated may in themselves constitute systemic barriers to
minorities and women."
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 themselves constitute systemic
barriers to minorities and women. Civil Service selection
and promotion techniques and requirements are replete
with artificial requirements that place a premium on
'paper' credentials. Similar requirements in the private
sectors of business have often proven of questionable
value in predicting job performance and have often resulted
in perpetuating existing patterns of discrimination (see,
e,g., Griggs v. Duke Power Co........ ) The.inevitable
consequence of this kind of technique in Federal employ
ment, as it has been in the private sector, is that
classes of persons who are socio-economically or educa
tionally disadvantaged suffer a very heavy burden in
trying to meet such artificial qualification.
* * *
Thus the provision in section 717(b) for applying
"appropriate remedies" is intended to strengthen the
46
enforcement powers of the Civil Service Commission by
providing statutory authority and support for ordering
whatever remedies or actions by Federal agencies are
needed to ensure equal employment opportunity in Federal
employment. Remedies may be applied as a result of
individual allegations of discrimination, CSC investi
gation of equal employment opportunity programs, in
Federal agencies or their, field installations, or. from
review of agency plans of action and progress reports.
Remedies may be in terms of action required to correct
a situation regarding a single employee or group of
employees or broader management action to correct
systemic discrimination and to improve equal employ
ment opportunity program effectiveness to bring about
needed progress. The Commission is to provide Federal
agencies with necessary guidance and authority to
effectuate necessary remedies in individual cases,
including the award of back pay, reinstatement or hiring
and immediate promotion where appropriate.
* * *
An important adjunct to the strengthened Civil Service
Commission responsibilities is the statutory provision
of a private right of action in the courts by Federal
employees who are not satisfied with the agency or
Commission decision. 63/
The House Committee concurred in the diagnosis of the problem,
but chose instead to transfer authority from the Civil Service
64/
Commission to the Equal Employment Opportunity Commission.
Any doubt as to the import of § 2000e-16(c) and (d)
is removed by the Supreme Court's decision in Chandler v.
Roudebush, supra, and Brown v. General Services Administration,
supra. In Chandler, the Court looked to the scheme established
by statutory language as requiring generally the federal
employee Title VII actions have the features of private employee
Title VII actions, and that the "as applicable" language in § 2000e-
16(d) emphatically does not permit two different standards in Title
VII litigation, 44 U.S.L.W. at 4710-12. Moreover, the Court looked
63/ Legislative History at 423-425 (emphasis added).
64/ Legislative History at 84.
- 47 -
to legislative history to document the principal purpose of the
1972 amendments "to treat federal and private employees alike"
■with respect to "the proper means for resolving the claims of
federal employees," and in "a de novo 'civil action' equivalent
to that enjoyed by private sector employees," 44 U.S.L.W. at 4716.
Brown v. General Services Administration underscores the
incorporation thrust of Chandler; "Sections 706(f) through (k),
42 U.S.C. § 2000e-5(f) to 2000e-5(k), which are incorporated as
'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. at 4707 (emphasis added). As noted above,
Brown strengthens the conclusion that Title VXI, precisely because
it is exclusive, must be as comprehensive and effective a remedy
for federal employees as it is for all other employees, if not
more so.
2. Case Law
As against clear reason in statutory language and legislative
history relied on by the district court to follow the prevailing
Title VII exhaustion standard in federal employee Title VII class
actions, the government's brief offers essentially no countervailing
65/
view of § 2000e-16's language or legislative historyi It presses
65/ The government's brief does not discuss the absence of
preclusive statutory language at all. With respect to legislative
history, it concedes that Albemarle Paper Co. v. Moody, supra, and
Franks v. Bowman Transportation Co., supra, affirm that "Congress
in 1972 refused legislatively to reverse Oatis and its progeny,"
but that "it cannot be assumed that the principle automatically
- 48
two inconsistent lines of attack which have no basis or precedent
in Title VII. This lack of grounding in Title VII is an insur
mountable defect. As the Supreme Court put it in MeKart v .
United States, 395 U.S. 185, 193 (1969), "[a]pplication of the
[exhaustion of administrative remedies] doctrine to specific
cases requires an understanding of its purposes and of the
particular administrative scheme involved11 (emphasis added).
65/ (Continued)
applies to the federal government," 12. However, the Supreme
Court's decision in Chandler v. Roudebush, supra, that § 2000e-16(c)
and (d) does make § 2000e-5 "automatically" applicable to federal
employee actions is a more than sufficient reply. For example, the
Court explained why construing the "as applicable" language in
§ 2000e-16(d) narrowly "would require a strained and unnatural
reading of §§ 706(f) through 706 (k)."
This Court pointed out in Lynch v. Alworth-
Stephens Co.. 2 67 U.S. 364, 370, that "'the
plain, obvious and rational meaning of a statute
is always to be preferred to any curious, narrow,
hidden sense that nothing but the exigency of a
hard case and the ingenuity and study of an acute
and powerful intellect would discover.1" To read
the phrase "as applicable" in § 717(d) as obliquely
qualifying the federal employee's right to a trial
de novo under § 717 (c) rather than as merely re
flecting the inapplicability to § 717(c) actions
of provisions relating to the enforcement respon
sibilities of the EEOC or the Attorney General
would violate this elementary cannon of construction.
44 U.S.L.W. at 4712, see supra at . Indeed, even if the
legislative history had been absolutely silent on any right to
bring class actions, Rule 23 of the Federal Rules would still
permit them under existing Title VII law.
As to the government's citation to Senator William's
reference to "individual law suits," 15 n. 5, it simply does not
rise to the level of definiteness to refute the judgment that
"nothing in the legislative history of [the 1972] Amendments
would appear to signify a legislative intent so to restrict the .
filing of class actions," Predmore v. Allen, supra, 407 F. Supp. at
1065, much less a sure indication to the contrary, see supra at
Cf. Chandler v. Roudebush, supra, 44 U.S.L.W. at 4715, n. 35.
49
Looking, then, to the broad, remedial
purpose of Title VII, and bearing in mind
that " [r]acial discrimination is by definition
class discrimination. If it exists it applies
throughout the class . . . " Hall v. Werthan
Bag Corp., 251 F. Supp. 184, 186 (M.D. Tenn.
1966), the exhaustion requirement urged upon
this court by defendants begins to take on the
appearance of hollow procedural formality.
If indeed the gravamen of the complaint is
systemic discrimination against a class, then
what purpose is served by requiring that each
class member individually run that allegation
through the administrative machinery before
bringing it to federal court? If administrative
tribunals perceive no discriminatory conduct in
the practices or policies of the federal agency
under examination in one case, it is unlikely
that they will be persuaded of its existence in
another. And while the factual pattern of
individual cases may differ, the central
question upon which relief is dependent in
each is whether defendants are guilty of discrimi
nation against the class as a whole. The
equitable remedies available to the court are
such that individual claims may be accommodated
contemporaneously with or subsequent to the
granting, if allowed, of class relief.
Williams v. Tennessee Valley Authority, supra, 415 F. Supp at
457. The "hollow procedural formality" that the government
seeks to require is especially anomalous here. "It is undis
puted that . . . in his formal administrative complaint, the
plaintiff raised broad class^wide issues of discrimination"
(A. 37). It was these very defendants who "limited through
'interpretation' [their] review of plaintiff's formal complaint to
only some of the discriminatory charges contained therein, thus
making it difficult if not impossible for Chisholm to raise
class issues except in this forum" (A. 37).
Had the defendants followed their own
regulations, they would have examined
administratively the very policies and
50
practices that the plaintiffs now seeks to
challenge on a class-wide basis at the
judicial level. Defendants cannot improperly
narrow the focus of an 'individual' discrimi
nation complaint at the administrative level
and then claim that plaintiffs have failed
to notify the agency of system-wide dissatis
faction. Chisholm v. United States Postal
Service, supra. 66/
Ellis v. Naval Air Rework Facility, supra, 404 F. Supp. at 395.
66/ The district court in Ellis noted that:
Each of the named plaintiffs filed an "individual"
administrative complaint pursuant to 5 C.F.R.
§ 713.211 et_ seg. Each and every of the "individual
administrative complaints raised issues of policy
and practice that are inherently class-type claims
of discrimination. It is well-settled in the
private sector employment discrimination cases that
administrative complaints are to be construed
broadly to encompass any discrimination that could
be considered to grow out of the administrative
charge. Danner v. Phillips Petroleum, 447 F.2d
159 (5th Cir. 1971); King v. Georgia Power Co.,
295 F. Supp. 943 (N.D. Ga. 1968). Federal employ
ment claims at the administrative level are also
entitled to broad construction. The agency's own
regulations require that the investigation of
administrative complaints shall include:
"(a) * * * thorough review of the circum
stances under which the alleged discrimination
occurred, the treatment of members of the
complainant's group identified by his com
plaint as compared with the treatment of
other employees in the organizational seg- '
ment in which the alleged discrimination
occurred, and any policies and practices
related to work situations which may consti
tute,- or appear to constitute, discrimination
_, even though they have not been expressly
cited by the complainant. 5 C.F.R. § 713.216(a)
In addition, 5 C.F.R. § 713.218(c)(2) requires
the complaint examiner to develop a complete
record and to receive into evidence "information
having a bearing on the complaint or employment
policies and practices relevant t o the complaint * * *»
404 F. Supp. at 394-395. The same was true of Mr. Chisholm's
administrative complaint.
- 51
Every district court which has considered the government's
contention with respect to the exhaustion standard adopted below
that would "treat federal and private employees alike," Chandler
v. Roudebush, 44 U.S.L.W. at 4716, has rejected the contention
67/
and endorsed the lower court's approach.
The government first contends that "a class action cannot
be utilized to confer jurisdiction over individuals who have not
exhausted their administrative remedies," 11. Zahn v. Interna
tional Paper Co., 414 U.S. 291 (1973), is relied on as supporting
the general proposition. But Zahn is not only not a Rule 23 (b)
(2) class action or a Title VII case, it does not even deal
with exhaustion; the Supreme Court merely held in Zahn that
Rule 23(b)(3) diversity class actions involving plaintiffs with
separate and distinct claims were subject to the usual rule that
there was jurisdiction under 28 U.S.C. § 1332(a) only over those
68/
plaintiffs satisfying the jurisdictional amount. The govern
ment's brief then states that the "core principle in Zahn was
reaffirmed and broadened by the Supreme Court in Weinberger v .
Salfi, 422 U.S. 749 (1975)," 11. In Salfi,the Court held that class
67/ williams v. Tennessee Valley Authority, supra; Predmore v .
Allen, supra; Barrett v. U. S. Civil Service Commission, supra,
10 EPD 10,794; Keeler v. Hills, supra.
68/ The Albemarle Paper Company made exactly the same conten
tion, Brief of Petitioners, p. 66, Albemarle Paper Co. v. Moody,
No. 74-389. The Supreme Court thought so little of it that the
opinion does not mention Zahn. The Solicitor General did not
bother to mention the contention in arguing that a "single
charge is sufficient to satisfy the requirements of Title VII"
and that 1972 legislative history demonstrates that Congress
agreed with that construction of the Statute. Brief for the
United States and the Equal Employment Opportunity Commission
as Amicus Curiae, 31-33.
52
members in a statutory Social Security Act appeal from
a "final agency decision" must meet the plainly stated prerequisites
of 42 U.S.C. § 405(g) which confers the right to sue upon
"[a]ny individual, after any final decision of the Secretary
made after a hearing to which he was a party" (emphasis added).
Every court which has considered Salfi has rejected its appli
cation in Title VII actions, see Williams v. Tennessee Valley
Authority, supra, 415 F. Supp. at 455-457; Predmore v. Allen,
407 F. Supp. 1067, 1068-1069 (D. Md. 1976); Barrett v. U, S.
Civil Service Commission, 11 EPD 510,794 (D.D.C. 1976). Judge
Kaufman put it most concisely in Predmore, "[T]he exhaustion
rationale of Salfi is inapplicable. Jurisdiction exists herein
pursuant, inter alia, to 42 U.S.C. §§ 2000e-5(f)(3) and
2000e-16(c), (d), which contain none of the jurisdictional
restrictions set forth in 42 U.S.C. §§ 405(g), (h)," 407 F.
69/
Supp. at 1069. Moreover, the class action bar in 42 U.S.C.
§ 405(g) is precisely what the Erlenborn amendment sought to
add to Title VII and Congress rejected, see supra at 41-45.
Whatever Zahn and Salfi stand for, they do not affect
rights recognized in Albemarle Paper Co. v. Moody, supra,
and Franks v. Bowman Transportation Co., supra, given the
69/ Judge Morton's anaylsis in Williams is instructive.
. . . The Court in Salfi was dealing with a
very specific statute designed to accomplish
a very specific purpose— namely, the resolu
tion of individual claims which arise out of
unique and independent factual backgrounds.
Noticeably absent in typical Social Security
claims are any allegations of sysgemic depri
vations which might make class relief appro
priate. It is simply too much to suppose
that Congress anticipated class claims arising
53
purpose of Title VII and its basic scheme of administrative remedies.
The government's second line of attack, however, indicates
that it does not seriously contend that zahn and Salfi apply to
69/ (Continued)
under the Social Security Act since the Act's
entire thrust is toward providing relief on an
individual, case by case basis.
The Equal Employment Opportunity Act, on the
other hand, was expressly designated by Congress
as a broad, remedial statute aimed at eliminating
discrimination against certain "classes" of
employees. The Senate committee report accompaning
the 1972 proposed provisions of § 706 (42 U.S.C.
§ 2000e-5) of the Act made this purpose quite clear.
Not only is the nature and purpose of the
Social Security Act markedly different than that
of the Equal Employment Opportunity Act; a careful
reading of the pertinent language of each statute
demonstrates that their express procedural require
ments are readily distinguishable.
As indicated above, defendants emphasize the
"finality" requirement common to both statutes.
A closer analysis of the provisions of the Social
Security Act relied on in Salfi, however, reveals
that not only is a final agency decision required,
but that the decision must be rendered "after a
hearing to which [the claimant] was a party." The
hearing requirement is significant in two respects.
First, it is a specific, finite event which must
occur before a claimant can take his case to federal
court, unlike the more generalized reference to
"final action" or "final disposition" which appears
in 42 U.S.C. § 2000e-16(c). Second, it emphasizes
the individualized nature of a claim arising under
its provisions by expressly specifying that the
claimant be a party to the hearing. No such pro
cedural specification appears in § 2000e-16(c).
Moreover, the Social Security Act specifically
provides that " [t]he findings of the Secretary as
to any fact, if supported by substantial evidence,
shall be conclusive . . ." 42 U.S.C. § 405(g). Thus,
the district court's function is expressly limited
under the Act to a review of the administrative
54
Title VII exhaustion standards. Thus, the government concedes
that "court of appeals decisions . . . have uniformly held that
in private employment discrimination suits under Title VII, all
class members need not exhaust their administrative remedies"
and that the Supreme Court has so affirmed in Moody and-Franks,
14, but that the reasons which support the private sector exhaustion
rule do not apply in federal employee Title VII actions. The
government contends that because the U. S. Civil Service
Commission and federal agencies, unlike the Equal Employment
Opportunity Commission, have "plenary power to provide relief
"if one complainant is unsuccessful at the administrative level,
it does not follow — as it logically does in the private sector —
that a subsequent complainant will not get relief," 19. However,
the purported distinction is misdirected: The Civil Service
Commission or other federal agency, like the EEOC, has notice
and an opportunity to resolve class issues even when only one
employee complains. Also, there is no reason to assume that the
administrative resolution will be successful for another merely
because of the formal existence of plenary remedial power.
69/ (continued)
record. It is not surprising, then, that the
Court in Salfi held a class action impermissible,
since the district court would have no record
to review for persons who had not exhausted their
administrative remedies. Such is not the case
under the Equal Employment Opportunity Act, for,
if this court is correct in its conviction that a
trial de novo is warranted under § 2000e-16, the
interests of each member of the class could be
fully set forth at trial.
Williams v. Tennessee Valley Authority, supra, 415 F. Supp.
at 457-457.
55
Moreover, the actual efficacy of federal administrative
proceedings and exercise of "plenary power," as opposed to
that of the EEOC, suggest that the reasoning of Oatis, with
respect to the unnecessary and futile requirement of filing
identical claims, applies with particular force to the federal
sector. Civil Service Commission and federal agency procedures
for resolving employment discrimination have been condemned
70/ 71/
by Congress, the courts, and the U. S. Commission on
72/
Civil Rights. Moreover, in spite of what the government
characterizes as "the EEOCf's] . » . very limited arsenal of
weapons," 17, in 1972 Congress went so far as to direct that
the Civil Service Commission and federal agencies emulate the
73/
courts, see supra at 43-45 , and the EEOC, see infra at 69.
The other reason proffered by the government for not
following the usual Title VII rule is no less fantastic in
70/ See Morton v. Mancari, supra, 417 U.S. at 547.
71/ See, e.g., Hackley v. Roudebush, supra, 520 F.2d at 137-141,
171 (Leventhal, J. concurring); Ellis v. Naval Air Rework Facility.
404 F. Supp. 377, 383-384 - (N.D. Cal. 1975).
72/ The Federal civil Rights Enforcement Effort - 1974, Vol. V
(July 1975) (relevant portions attached hereto as Appendix (infra).
The civil Rights Commission report found, for instance, that the
"plenary power" of the civil Service Commission was exercised so
feebly fiscal year 1973 that retroactive relief, including backpay
was provided to 22 employees, at 84-85. In the same fiscal year,
the EEOC was able to obtain backpay for 22,000 employees in the
telephone industry alone, in the amount of $45,000,000 (Equal
Employment Opportunity Commission, Eighth Annual Report For FY 1973,
p. 24). See also United States v. Allegheny-Ludlum Industries, Inc.
571 F.2d 826, 834-35, 852 n. 29 (5th Cir. 1975).
73/ "[T]hough it is true that the CSC exercises a quasi-judicial
function in determing a federal employee's entitlement to relief
under Title VII, neither its hearing and pre-hearing procedures,
nor its trade record recommend it as an adequate surrogate for the
district court." Williams v. T.V.A.; supra, 415 F. Supp. at 457-458
56
that it undermines the first part of the government's second
line of attack emphasizing the particular individual characteristics
of federal discrimination claims. The government baldly asserts
"that class actions are unnecessary when injunctive relief is
sought against a governmental defendant," 21, a claim that is wrong
14/
generally and notably so in a statutory scheme established in
part because Congress contemplated and provided means for eliminating
systemic discrimination in federal agencies, see supra at 46-47. The
government points to the fact that Mr. Chisholm's administrative
complaint resulted in monitoring of promotions for one year, a form
of relief that Mr. Chisholm asserted was inadequate, see supra at 7n.9,
and which points up the fact that "racial discrimination is by its
very nature discrimination against a class" (A. 35) citing Oatis
and Bowe v. Colgate Palmolive Co., supra and that the greater part
of the class claims were consistently ignored, see supra at 3-9.
Although across-the-board racial discrimination at USPS Charlotte
is manifestly clear from the administrative record, it simply
was never sought to be corrected in any sustained fashion, see supra
at 3-9 , necessitating this enforcement action for injunctive and
declaratory relief. As to the effect of sovereign immunity, this
Court has already determined that "no rational purpose is served
by invoking the doctrine" in the context of retrospective application
of Title VII, Roger v. Ball, supra, 497 F.2d at 708-709.
C. The Administrative Process Does Not Permit Class Claims
To Be Accepted, Investigated Or Resolved Effectively
Mr. Chisholm's administrative complaint states that he was
discriminatorily denied consideration for promotion to finance
examiner and budget assistant and "that such denial of equal
74/ See, e.g., Morrow v. Crisler, 479 F.2d 690 (5th cir. 1973),
aff'd en banc, 491 F.2d 1053 (5th cir. 1974).
57
opportunity for black employees in relation to promotion in the
U. S. Postal Service, Charlotte, N. C. is a continuing discrimina
tory practice," supra at 3. The administrative record,
although limited to his individual claim only, shows discriminatory
dispensation of experience qualifications, discriminatory detail
ing, discriminatory impact of qualifications, discriminatorily
constituted promotion advisory boards, and across-the-board sta
tistical disparities, see supra at 13-14. Nevertheless, the alle
gations of class discrimination were neither addressed nor resolved.
The lower court therefore held that "it [is] difficult if not
impossible for Chisholm to raise class issues except in this forum"
(A. 37), which the government does not contest, but which never
theless should be placed in proper context. The narrowing of
Mr. Chisholm's administrative complaint by postal and Civil Service
Commission authorities pursuant to 5 C.F.R. Part 713 is all too
typical in actual practice, although in violation of statutory
command.
1. 42 U.S.C. § 2000e-16
The duty‘of th® Civil Service Commission and other federal
agencies to consider systemic, class-wide discrimination in the
administrative process derives from statutory command, not from
the trigger of specific allegations. § 2000e-16(a) states "All
personnel actions affecting employees or applicants from employment
. . . shall be made free from any discrimination based on race
58
[or] color ..." (emphasis added) and § 2000e-16(b) confers
authority on the Civil Service Commission to provide "appropriate
remedies." The Senate committee report, quoted supra at 46-47 ,
explained the significance of § 2000e-16(a) and (b) when it
directed that, "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 and that remedies may be applied as a result of indi
vidual allegations of discrimination, CSC investigation of equal
employment opportunity programs in Federal agencies or their
field installations, or from review of agency plans of action
and progress reports. Remedies may be in terms of action required
to correct a situation regarding a single employee or group of
employees or broader management action to correct systemic dis
crimination and to equal employment opportunity effectiveness to
21/
bring about needed progress." Whether an employee makes alle
gations of systemic, class-wide discrimination in any administrative
complaint, a fortiori, is unnecessary to initiate the agency's
statutory obligation to scrutinize every case and search for indi
cations of systemic discrimination.
With this statutory injunction in mind, courts have ruled
that "the CSC's regulations in effect require that agencies treat
75/ Legislative History at 423-424.
59
each individual's complaint broadly enough to encompass discrim
ination that may be practiced against others similarly situated"
1 */
(emphasis added). In these cases, the district courts held,
as did the courts below, that raising class allegations was a
sufficient condition for certification of class actions. How
ever, other courts have gone further to look at the administrative
process in operation and found raising of class issues futile in
light of actual practice, see infra . Thus,- the raising of
class claims in Mr. Chisholm's administrative complaint was a
sufficient but not a necessary condition for maintaining the
class action certified below.
2. 5 C.F.R. Part 713 As Applied
An examination of the 5 C.F.R. Part 713 administrative
procedures for adjudicating discrimination claims as applied
demonstrates that class claims cannot be effectively raised.
This is a situation where there exists no adequate administrative
remedy that had to be exhausted, see K. Davis, Administrative Law
§ 20.07, "[T]he very best which can be said for the Commission's
regulations is that they are confusing and unclear as to whether
2^/ Hackley v. Roudebush, supra, 520 F.2d at 152, n. 177;
Ellis v. Naval Air Rework Facility, supra, 404 F. Supp. at 395,
also cited supra at 51-66; Keeler v. Hills, supra, 408 F. Supp.
at 387-388; Predmore v. Allen, supra, 407 F. Supp. at 1065-
1066; Sylvester v. U. S. Postal Service, supra, 393 F. Supp.
at 1340-1341.
60
they allow for the consideration of class allegations in the
77/
context of individual complaints or vice versa."
As construed by the Civil Service Commission, it is clear
that class claims cannot be made by an individual 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 organ
ization or other third party which [are] unrelated to an
individual complaint of discrimination." The Civil Service
Commission has authoritatively interpreted this language for
federal agencies as not permitting "general allegations of dis
crimination within the context of individual complaints of
78/
discrimination." This interpretation of the regulations has
77/ Barrett v. U. S. Civil Service Commission, supra, 69 F.R.D.
at 552-554; Williams v. T.V.A., supra. 415 F. Supp. at 458-
459; U. S. Commission on Civil Rights, The Federal Civil Rights
Enforcement Effort, 1974, Vol. V, Appendix C, infra at lc-26c.
78/ In a case involving NASA, an employee charged that she had
been discriminated against when she was not selected for a par
ticular promotion. She alleged that:
[M]inorities, as a class, have been and are dis
criminated against because of the Center's
personnel policies and practices as they pertain
to recruitment, hiring, initial assignments, job
classifications, merit promotions, training oppor
tunities, retention, and the terms, conditions
and privileges of employment.
The Appeals Review Board of the Civil Service Commission, in a
letter decision included in Appendix D, infra. Id - 3d, affirmed
61
been explained in a recent memorandum to all government EEO
Directors sent out by the Commission's Assistant Executive
Director in charge of EEO, App. D, pp. 4d - 9d. The memorandum
states that third-party allegations can be made by an indi
vidual only "as long as the allegations relate to general matters
79/
and are not related to individual complaints."
78/ Continued
the agency's rejection of these allegations of class discrimina
tion 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 discrimination within the con
text of individual complaints of discrimination.
Rather, such allegations can only be raised "by an organization
or other third party under the provisions of section 713.251."
This ruling became the subject of litigation in Barrett v.
Civil Service Commission, supra.
79/ 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, see Brief for the Appellants at 3, n. 2.
These 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 then Board of Appeals and Review found dis
crimination against Jewish employees generally and ordered
relief for the individual complainants, B.A.R. Decision No.
713-73-465, App. D, pp. lOd - 17d. 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 com
plaint, " since the claim was a general failure to promote Jewish
employees since 1965, see letter of December 19, 1973, App. D,
pp. 18d - 20d.
62
One consequence of these rules is that broad evidence of
class-wide discrimination is often not even admissible in an
80/
EEO complaint adjudication. Finally, 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. An example is the instant
case in which Mr. Chisholm asserted that the date of the alle
gation was "generally: 1960 through present time," see supra
at 3. Any concept of a "continuing violation," a principle
long-recognized by the courts in Title VII cases, has been
51/
squarely rejected by the Commission.
an / Thus, in B.A.R. Decision No. 713-73-593, App. D, infra, pp.
21d - 27d, the refusal of the Complaints Examiner to permit cer
tain 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 oppor
tunity program with respect to Hispanic Americans,
and particularly to Puerto Ricans. Any complaint
involving a minority group agency-wide is a "third-
party" complaint and it is processed under a dif
ferent set of procedures (p. 23a).
81/ As regards the matter of "continuing" discrimina
tion, 5 CFR 713-214 establishes a time limit in
which a matter must be brought to the attention of
an EEO Counsellor before that matter can be accepted
as a valid basis for a complaint. Therefore, the
requirement implies that a complaint must be over a
specific employment matter which occurred at a spe
cific time. There is no provision whatsoever for
accepting non-specific complaints of "continuing"
discrimination.
Decision dated October 15, 1974, App. D, infra, at p. 26d.
63
As to the third-party complaint procedure under 5 C.F.R.
§ 713.251, Appendix A, infra, at 7a, the provision specifically
states that it applies only to general allegations "by organ
izations or other third parties" that are "unrelated to an
individual complaint of discrimination" and the Civil Service
Commission's explanatory memorandum, Appendix D infra, .
makes it clear that a third-party complaint is not pos
sible if the allegations relate to the complaints of any
individuals. The government in the instant case does not
assert that Mr. Chisholm should have filed such a complaint
to raise class issues, see supra at 29-31, although it has done
so in other cases unsuccessfully. See, e .g., Williams v.
Tennessee Valley Authority, supra, 415 F. Supp. at 458-459;
Ellis v. Naval Air Rework Facility, supra, 404 F. Supp. at 394-
395. The absurdity of not accepting, investigating or resolving
class claims in individual administrative complaint and not
accepting, investigating or resolving individual claims in
third-party complaints has been appropriately characterized as
"the CSC's own version of 'Catch 22,'" Williams, supra, 415
F. Supp. at 458; Keeler v. Hills, supra, 408 F. Supp. at 387-
388.
The failure of the Civil Service Commission to provide a
means to raise systemic class-wide discrimination has been
64
held to violate Title VII in Barrett v. U. S. Civil Service Commission,
supra, as noted above, see supra at 30. The court " [d]eclared, that
consistent with their responsibilities under 42 U.S.C. §§ 2000e, et seq.,
defendants must accept, process, and resolve complaints of class and
systemic discrimination which are advanced through individual complaints
of discrimination and must provide relief to the class when warranted by
the particular circumstances of each class complaint," 10 EPD 5(10,586
at 6450. Clearly, the express class allegations in Mr. Chisholm's
administrative complaint were adequate in every respect to put USPS
Charlotte on notice as to the substantial probability of class-wide
discrimination in employment; much less would have been necessary in
light of the agency's statutory obligation and what regulations properly
should require as to accepting, investigating and resolving class claims.
D. The Broad Provisional Definition Of The Class was proper
The district court's order below defined the class action as "con
sisting of all black persons who are employed and who might be employed by
the defendants at the Charlotte, Mecklenberg County, North Carolina branch
of the United States Postal Service" subject to discrimination because of
their race or color. The court then added, "This ruling is conditional
and may be altered or modified at any stage prior to final determination
of the action on the merits." The government's objection to the pro
visional definition of the class is frivolous and can be dealt with briefly.
1. The government’s objection is not within the question of
"whether the proceeding should be certified as a class action?" that
the court below certified for immediate interlocutory appeal under 28
U.S.C. § 1292(b), that the government petitioned for leave to appeal
and that this Court granted permission to appeal, see supra at 11.
2. The government's objection in any event is based on
a distortion of the record. Nowhere does the government's
brief acknowledge that the definition is provisional, see
65
supra at 11 n. 12. The fact that the definition occurred
at an early point in the litigation, and, moreover, is
expressly conditional, renders the objection premature at
best. Assuming arguendo that the class definition is too
broad, the court below pursuant to Rule 23 supervisory power
will be able to further refine the class as discovery pro
ceeds the record is developed and representation broadened.
Indeed, the administratively untreated "continuing discrimina
tion" claim of Mr. Chisholm, see supra at 3, and claims
of the intervenors may very well moot the objection. Raising
the breadth of the class definition for the first time in
an interlocutory appeal on a partial record is precisely what
Rule 23(c)(1) and the provisional definition in the instant case
83/
were properly intended to forestall. Cf. Barnett v. W. T.
82/ a related distortion of the record is the government's
quotation of paragraph IV allegations in the complaint listing
various discriminatory USPS Charlotte policies and practices, 7,
but omitting the first part of the paragraph which states, "The
defendants follow a policy and practice of discrimination in
employment against blacks on account of their race. The policy
and practice referred to herein has been and is implemented by
the defendants, among other ways, as follows" (emphasis added)(A.6)
88/ Rule 23(c)(1), Fed. R. Civ. Pro. states both that the court
shall determine whether a class action can be maintained "[a]s
soon as practicable after the commencement of an action" and that
"[a]n order under this provision may be conditional, and may be
altered or amended before the decision on the merits."
[W]hile the Court rules that the plaintiff
has the right to represent all members of a
general undefined class at this time, a more
careful determination will be made setting
out the definition of said class in accordance
with Rule 23(c)(1) of the Federal Rules of
Civil Procedure. This determination can be
66
Grant Co., supra, 518 F.2d at 547-48.
3. The present incomplete record demonstrates that even
the stringent factual predicate the government argues for
84/
narrowing the class is absent. Certainly the statistical
83_/ (Continued)
made more appropriately at a later time
'when there are more precise pleadings,
enabling the . . . Court to equate and
balance what the . . . (plaintiff) claims are
the limit of the class against the tests of
adequate representation, protection of the
interests of the class, and manageability of
the lawsuit.1 Judge Godbold's concurring
opinion in Johnson v. Georgia Highway Express,
Inc., supra, [417 F.2d at 1125]. Certain
discovery procedures have been invoked and
doubtless other such procedures will be used
by both parties herein. Information thus
developed will probably be helpful in ascer
taining the proper scope of this action.
Wilson v. Monsanto Co., 315 F. Supp. 977, 979 (E.D. La. 1970);
see also Keeler v. Hills, 11 EPD 510,839 at 7767 (N.D. Ga. 1976);
Rodgers v. U.S. Steel Corp., 69 F.R.D. 382, 384 (W.D. Penn. 1975)
cf. Dillon v. Bay City Construction Co., 512 F.2d 801, 804 (5th
Cir. 1975) .
It is hornbook law that "the earlier the stage of the pro
ceeding, the more liberally should the court construe the applic
ability of Rule 23," Contract Buyers League v. F & F Investment
Co., 48 F.R.D. 7, 14 (N.D. 111. 1969); 7A Wright & Miller;
Federal Practice And Procedure, Civil § 1785 at 137-138 (1st ed.
1972). This is especially the case in Title VII litigation in
which attacks on across-the-board discrimination are entirely
proper and efficacious, see, e.g., Barnett v. W. T. Grant Co.,
supra, Longv. Sapp, 502 F.2d 34 (5th Cir. 19/4).
84 / The government contends that denial of detailing to black
employees and their exclusion from promotion advisory boards
were not within the scope of what USPS Charlotte should investi
gate; the simple answer is that both practices were specifically
alleged as discriminatory, are obviously "related" to even the
narrowest characterization of Mr. Chisholm's administrative
complaint, were investigated and are part of the administrative
record that the court found improperly limited. As to hiring
67
prima facie case evident in the administrative record should
have put USPS Charlotte on notice that a wide variety of related
policies and practices should be investigated. Moreover, the
government seems to forget that what Mr. Chisholm complained
of was systemic discrimination, supra at 3-4, 7; that he was
unrepresented, supra at p. 3 ; and that the district court has
held that his administrative complaint was improperly limited.
4. The government asserts an erroneous legal standard
whose restrictiveness is contrary to the language of the
85/ 86/
statute, legislative history, proper construction of
87/
relevant regulations, and, lastly, concededly prevailing
84/ (Continued)
(and job assignment) Mr. James W. Toatly, the EEO Specialist
for USPS Charlotte, testified in a deposition that blacks with
college degrees were serving as clerks and carriers rather
than some higher position because "during Carpenter's administra
tion they weren't hired, I mean that just — they just didn't
put them in higher levels" (A 33). That "[b]efore 1972 there
were few, if any, black clerks or carriers detailed to higher
level jobs" was part and parcel of systemic discrimination.
As to testing validity, the use of tests with disparate racial
impact has long been recognized as a suspect part of promotional
process as legislative history expressly points out, see
supra at 46-47.
§5/ See supra at Part I.c.l
86/ See supra at Part I.B.l
87 / See supra at 56-60.
Title VII standards. It is anomalous for the government to
further contend that a more restrictive "like or related"
standard should be applied than that developed in EEOC pro
ceedings, in light of explicit congressional direction to
"address . . . the various forms of systemic discrimination
in the system," "recognize that the general rules and
procedures . . . may in themselves constitute systemic barriers
to minorities and women" and to take note that "Civil Service
selection and promotion techniques and requirements are replete
with artificial requirements that place a premium on 'paper'
89/
credentials," supra at p»46
88/
88/ The proper scope of an EEOC investigation is properly
broad, see, e.g., Graniteville Co. v. EEOC, 438 F.2d 32 (4th
Cir. 1971); Georgia Power Co. v. EEOC, 412 F.2d 462 (5th Cir.
1969); Blue Bell Boots Inc. v„ EEOC, 418 F.2d 355 (6th Cir.
1969); Local No. 104, Sheet Metal Workers Int'1 Assoc, v.
EEOC, 439 F .2d 237 (9th Cir. 1971); Motorola, Inc, v. McClain,
484 F.2d 1139 (7th Cir. 1973),. cert., denied, 416 U.S. 936
(1974); EEOC v. University of Hew Mexico, 504 F.2d 1296 (10th
Cir. 1974); New Orleans Public Service, Inc, v. Brown, 507 F.2d
160 (5th Cir.
As the government concedes "the 'scope' of the judicial
complaint is limited to the 'scope' of the EEOC investigation
which can reasonably be expected to grow out of the charge of
discrimination" Sanchez v. Standard Brands, Inc., 431 F.2d 455,
466-467 (5th Cir. 1970) ; Danner v. Phillips Petroleum Co-., 447
F .2d 159, 161 (5th Cir. 1971); Gamble v. Birmingham Southern Ry
Co., 514 F.2d 678, 687-689 (5th Cir. 1975); see government's
brief at 27.
89 / Moreover, Congress went to some pains to require that federal
agencies emulate the EEOC's investigative focus on systemic
discrimination.
"The Committee wishes to emphasize the signifi
cant reservoir of expertise developed by the
EEOC with respect to dealing with problems of
discrimination. According[ly], the committee
strongly urges the Civil Service Commission to
take advantage of this knowledge and experience
and to work closely with EEOC in the development
and maintenance of the equal employment
opportunity programs."
Legislative History at 425.
69
II.
INTERVENTION WAS PROPERLY PERMITTED
PURSUANT TO RULE 24. FED. R. CIV. PRO.
The lower court ruled, "the intervenors herein, as is evident from
the proposed Complaint in Intervention, desire relief similar to that
sought by Chisholm. There is no tension between Chisholm's claims and
those of the prospective intervenors. The requested intervention is
merely sought to add to and strengthen class representations, a procedure
which is permissible under the Rule" (A. 37) (emphasis added).
The government does not separately contend that the district court
abused its discretion to permit intervention by co-plaintiff USPS Char
lotte black employees is improper. It merely relies on its class action
exhaustion contention. It is beyond cavil that the lower court did pro
perly exercise its discretion in the circumstances of this case and for
the reasons set forth in Oatis v. crown Zellerbach corp., supra, 398 F.
2d at 499 and McBroom v. Western Electric Co., 7 EPD ^9347 at 7575 (M.D..1974).
CONCLUSION
For the above stated reasons, the court should affirm the order of
the district court to May 29, 1975 that the action be certified and al
lowed to proceed as a class action and that the intervention be allowed.
JULIUS LeVONNE CHAMBERSChambers, Stein, Ferguson & Becton
Suite 730
951 So. Independence Blvd.
Charlotte, North Carolina 28202
JACK GREENBERG
CHARLES STEPHEN RALSTON
MELVYN R. LEVENTHAL
DEBORAH M. GREENBERG
BILL LANN LEE
Suite 2030
10 Columbus Circle
New York, New York 10019
Attorneys for Appellee
70
CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of October,
1976, copies of the foregoing Brief For Appellee were served
on counsel for the parties by United States mail, postage
prepaid, addressed to:
William Kanter, Esq.
John M. Rogers, Esq.
Appellate Section, civil Division
U. S. Department of Justice
Washington, D. C. 20530
Michael S. Schofield, Esq.
Asst. U. S. Attorney
P. 0. Box 569
Charlotte, N. c. 28201
Attorney for Appellee
APPENDIX TO BRIEF FOR APPELLEE
APPENDIX A: 5 C.F.R. §§713.-211 — .222 And §713.251
23 12-21-72 Civil Service Commission 2 0 6 9
Agency Regulations for Processing
Complaints of Discrimination . . ,
' [fl 3855.211] !* \ ' '
Sec. 713.211 General.—An agency shall
insure that its regulations governing the
'processing of complaints of discrim ination
on grounds of race, color, religion, sex, o r
national origin comply with the principles
and requirem ents in §§ 713.212 through
713.222. ' •-i'jt- ■■■'“ ‘ ’■ : •
3855.212} • 1 : •>-•«! i
. , Sec. 713.212 Coverage.— (a) T he agency
shall provide in its regulations for the ac
ceptance of a complaint from any. aggrieved .
employee or applicant for em ploym ent with
th a t agency who believes that he has been
discrim inated against because of race, color,
religion, sex, o r national origin.' A com
plaint m ay also be filed by an organization
for th e aggrieved person w ith his consent.
Employment Practices v ,.-j - .
(b) Sections 713.211 through 713.222 do
not apply to the consideration by an agency
of a general allegation of discrim ination by
an organization o r o ther th ird party which
is unrelated to an individual complaint of
discrim ination subject to §§713.211 through
713.222. Section 713.231 applies to general
allegations by organizations or o ther th ird
parties.) [Sec. 713.212 reads as corrected
by publication in the Federal R egister (37
F . R. 25699), effective D ecem ber 1, 1972.]
: / [ f 3855.213]
Sec. 713.213 Precom plaint processing.—
(a) An agency shall require that an aggrieved
person who believes that he has been dis
crim inated against because of race, color,
religion, sex, or national origin consult w ith
an Equal Em ploym ent O pportunity Coun
selor when he wishes to resolve the m atter.
T he agency shall require the Equal Employ
m ent O pportunity Counselor to make w hat
ever inquiry he believes necessary into the
m atte r; to seek a solution of the m atte r on
an inform al basis; to counsel the aggrieved
person concerning the issues in the m atter;
to keep a record of his counseling activities
so as to brief, periodically, the Equal E m
ploym ent O pportun ity Officer on those ac
tivities; and, when advised th a t a com plaint
of discrim ination has been accepted from
an aggrieved person, to subm it a w ritten
report to the Equal Em ploym ent O pportu
nity Officer, w ith a copy to the aggrieved
person, sum m arizing his actions and advice
both to the agency and the aggrieved person
concerning the issues in the m atter. The
Equal Em ploym ent O pportunity Counselor
shall, insofar as is practicable, conduct bis
final interview with the aggrieved person
no t later than 21 calendar days after the
date on which the m atte r was called to
his attention by the aggrieved person. If
the final interview is not concluded w ithin
21 days and the m atte r has not previously
been resolved to the satisfaction of the ag
grieved person, the aggrieved person shall
be informed in writing at that time of his right
to file a com plaint of discrim ination. T he
notice shall inform the com plainant of his
righ t to file a com plaint at any time after
receipt of the notice up to 15 calendar
days after the final interview (which shall
be so identified in w riting by the Equal
Em ploym ent O pportun ity Counselor) and
the appropriate official w ith whom to file
a complaint. T he Counselor shall, not a t
tem pt in any w ay to restrain th e aggrieved
person from filing a complaint. T he
Equal Em ploym ent O pportun ity Counselor
shall not reveal'the identity of an aggrieved
1 1 3 8 5 5 .2 1 3
la
2 0 7 0 R u les a n d R eg u la tio n s 23 12-21-72
person who has come to him for consulta
tion, except when authorized to do so by
the aggrieved person, until the agency has
accepted a com plaint of discrim ination from
him.
(b) T he agency shall assure tha t full
cooperation is provided by all employees
to the Equal Employment Opportunity Coun
selor in the perform ance of his duties under
this section.
(c) T he Equal Em ploym ent O pportunity
Counselor shall be free from restraint, in ter
ference, coercion, discrim ination, o r reprisal
in connection w ith the perform ance of his
duties under this section. [Sec. 713.213
reads as corrected by publication in the
Federal R egister (37 F. R. 25699), ef
fective Decem ber 1, 1972.]
[[[3855.214]
Sec. 713.214 F iling and presentation of
complaint.— (a) Time limits. (1) An agency,
shall require tha t a com plaint be subm itted
in w riting by the com plainant o r his repre
sentative and be signed by the compiainant.
T he com plaint may be delivered in person
or subm itted by mail. The agency m ay
accept the com plaint for processing in ac-.
cordance with this subpart only if —
(1) The com plainant brought to the atten
tion of the Equal Em ploym ent O pportunity
Counselor the m atte r causing him to believe
he had been discrim inated against w ithin
30 calendar days of the date of that m atter
or, if a personnel action, w ithin 30 calendar
days of its effective date, and
(ii) T he com plainant or his representa
tive subm itted his w ritten complaint to an
appropriate official within 15 calendar days
of the date of his final interview w ith the
i Equal Em ploym ent O pportunity Counselor.
(2) T he appropriate officials to receive
complaints are the head of the agency, the
agency’s D irector of Equal Em ploym ent
O pportunity , the head of a field installa
tion, an Equal Em ploym ent O pportunity
Officer, a Federal W om en’s P rogram Co
ordinator, and such o ther officials as the
agency m ay designate for tha t purpose.
U pon receipt of the complaint, the agency
official shall transm it it to the D irector of
Equal Em ploym ent O pportun ity o r appro
priate Equal Em ploym ent O pportunity O f-,
ficer w ho shall acknowledge its receipt in
accordance w ith subparagraph (3) of this
paragraph. . ' ■
1 (3) A com plaint shall be deemed filed
on the date it is received, if delivered to
an appropriate official, o r on the 'd a te
3 3 5 5 .2 1 4
postm arked if addressed to an appropriate
official designated to receive com plaints.
The agency shall acknowledge to the com
plainant o r his representative in w riting
receipt of the com plaint and advise the
com plainant in w riting of all his adm inis
trative rights and of his righ t to file a civil
action as set forth in § 713.281, including
the tim e limits imposed on the exercise
of these rights. ’
(4) T he agency shall extend the tim e
lim its in this section (i) w hen the com plain
ant shows tha t he was not notified of the
time limits and was not otherw ise aw are
of them, or tha t he was prevented by cir
cum stances beyond his control from sub
m itting the m atter w ithin the tim e lim its;
o r (ii) for o ther reasons considered suffi
cient by the agency.
(b) Presentation o f complaint. A t any
stage in the presentation of a complaint,
including the counseling stage under § 713.213,
the com plainant shall have the righ t to be
accompanied, represented, and advised by
a representative of his ow n choosing. If
the com plainant is an employee of the
agency, he shall have a reasonable am ount
of official time to present his com plaint if
he is otherw ise in an active duty status. If
the com plainant is an employee of the
agency and he designates another employee
of the agency as his representative, the repre
sentative shall have a reasonable amount of
official time, if he is otherw ise in an active
duty status, to present the complaint. [Sec.
713.214 reads as corrected by publica
tion in the Federal R egister (37 F. R.
25699), effective D ecem ber. 1, 1972.]
[[[3855.215] ’
Sec. 713.215 R ejection or cancellation
of complaint.—T he head of the agency
o r his designee m ay reject a com plaint
which was not timely filed and shall reject
those allegations in a com plaint w hich are
not w ithin the purview of § 713.212 or w hich
set forth identical m atters as contained in
a previous complaint filed by the same
com plainant which is pending in the agency
or has been decided by the agency. H e
m ay cancel a com plaint because of failure i
of the com plainant to prosecute the com
plaint.- H e shall transm it the decision to
reject or cancel by le tter to the com plainant
and his representative. T he decision le tter
shall inform the com plainant of his righ t
to appeal the decision of the agency to the
Comm ission and of the tim e limit w ithin
w hich the appeal may be subm itted and of I
his right to file a civil action as described
in § 713.281. [Sec. 713.215 reads as corrected
© 1972, Commerce Clearing House, Inc.
2a
2 0 7 1
by publication in the Federal R egister (37
F. R. 25699), effective Decem ber 1, 1972.] .
Z [f t3855.216]
Sec. 713.215 Investiga tion .— (a) The
Equal Em ploym ent O pportunity Officer
shall advise the D irector of Equal Em ploy
m ent O pportunity of the acceptance of a
complaint. T he D irector of Equal Em ploy
m ent O pportunity shall provide for the
prom pt investigation of the complaint. The
person assigned to investigate the complaint
shall occupy a position in the agency which
is not, directly or indirectly, under the juris
diction of the head of that part of the
agency in which the complaint arose. The
agency shall authorize the investigator to
adm inister oaths and require that statem ents
of w itnesses shall be under oath or affirma
tion, w ithout a pledge o f confidence. The
investigation shall include a thorough re
view of the circum stances under which the
alleged discrim ination occurred, the trea t
m ent of members of the com plainant’s group
identified by his complaint as compared
w ith the treatm ent of o ther employees in
the organizational segm ent in which the
alleged discrim ination occurred, and any
policies and practices related to the w ork
situation which may constitute, o r appear
to constitute, discrim ination even though
they have not been expressly cited by the
complainant. Inform ation needed for an
appraisal of the utilization of m em bers of
the com plainant’s group as com pared to
the utilization of persons outside the com
plainant’s group shall be recorded in statis
tical form in the investigative file, but
specific information as to a person’s member
ship or nonmembership in the complainant’s
group needed to facilitate an adjustment of
the complaint or to make an informed
decision on the complaint shall, if avail
able, be recorded by name in the investi
gative file. (As used in this subpart, the
term "investigative file” shall mean the
various documents and inform ation acquired
during the investigation under this section—
including affidavits of the complainant, of
the alleged discrim inating official, and of the
w itnesses and copies of, o r extracts from,
records, policy statem ents, o r regulations of
the agency—organized to show their rele
vance to the complaint or the general environ
m ent out of which the complaint arose.) If
necessary, the investigator may obtain infor
mation regarding the mem bership or non
m em bership of a person in the complainant’s
group by asking each person concerned to
provide the inform ation voluntarily; he shall
23 12-21-72 C iv il S e r v ic e
Employment Practices ..
not require o r coerce an employee to pro
vide this information..
(b) T he D irector of Equal Em ploym ent
O pportun ity shall arrange to furnish to the
person conducting the investigation a w rit
ten authorization: (1) to investigate all
aspects of complaints of discrim ination, (2)
to require all employees of the agency to
cooperate w ith him in the conduct of the
investigation, and (3) to require employees
of the agency having any know ledge of the
m atter complained of to furnish testim ony
under oath or affirmation w ithout a pledge
of confidence. [Sec. 713.216 reads as cor
rected by publication in the Federal Reg
ister (37 F. R. 25699), effective D ecem ber 1,
1972.] - . -! • ■ ■ •;
[fl 3855.217] ' ; : ' r- -
Sec. 713.217 A djustm ent of com plaint
and offer of hearing.— (a) The agency shall
provide an opportunity for ad justm ent of
the complaint on an inform al basis after the
com plainant has reviewed the investigative
file. For this purpose, the agency shall
furnish the complainant or his representative a
copy of the investigative file promptly after re
ceiving it from the investigator, and provide
opjxjrtunity for the complainant to discuss the
investigative file w ith appropriate officials.
If an adjustm ent of the complaint is arrived
at, the term s of the adjustm ent shall be
reduced to w riting and made part of the
complaint file, w ith a copy of the term s of
the adjustm ent provided the complainant.
If the agency does not carry out, or rescinds,
any action specified by the term s of the
ad justm ent for any reason no t a ttributable
to acts o r conduct of the com plainant, the
agency shall, upon the com plainant’s w rit
ten request, reinstate the com plaint for
further processing from the point processing
ceased under the term s of the adjustm ent.
«• I.
(b) If an adjustm ent of the com plaint
is not arrived at, the com plainant shall
be notified in w riting: (1) O f the proposed
disposition of complaint, (2) of his righ t to
a hearing and decision by the agency head
or his designee if he notifies the agency
in w riting within 15 calendar days of the
receipt of the notice tha t he desires a hear
ing, and (3) of his right to a decision by
the head of the agency or his designee
w ithout a hearing. 1
(c) If the com plainant fails to notify the
agency of his wishes within the 15-day period
prescribed in paragraph (b) of this section,
the appropriate Equal Em ploym ent O ppor
tunity Officer m ay adopt the disposition of
the com plaint proposed in the notice sent
C om m ission
.5 3 8 5 5 .2 1 7
3a
2 0 7 2 R u les a n d R e g u la tio n s 23 12-21-72
to the com plainant under paragraph (b) of
this section as the decision of the agency
on the complaint when delegated the authority
to make a decision for the head of the agency
under those circum stances. W hen this is
done, the Equal Em ploym ent O pportunity
Officer shall transm it the decision by letter
to the com plainant and his representative
which shall inform the com plainant of his
right of appeal to the Commission and the
time limit applicable thereto and of his
right to file a civil action as defined in
§713.281. If the Equal Em ploym ent O p
portunity Officer does not issue a decision
under’ this paragraph, the complaint, to
gether w ith the complaint file, shall be
forwarded to the head of the agency, or
his designee, for decision under § 713.221.
[Sec. 713.217 reads as corrected by
publication in the Federal R egister (37
F . R. 25699), effective Decem ber 1, 1972.]
[fl 3855.218]
Sec. 713.218 H earing.— (a) Complaints
examiner. The hearing shall be held by
a complaints exam iner w ho m ust be an
employee of ano ther agency except when
the agency in which the complaint arose
is (1) the governm ent of the D istrict of
Columbia o r (2) an agency which, by rea
son of law, is prevented from divulging
information, concerning the m atter complained
of to a person who has not received the
security clearance required by that agency,
in which event the agency shall arrange
w ith the Commission for the selection of
.an im partial employee of the agency to
serve as complaints examiner. (F o r pur
poses of th is paragraph, the D epartm ent
of Defense is considered to be a single
agency.) The agency in which the com
plaint arose shall request the Commission
to supply the name of a complaints exam
iner who has been certified by the Com
mission as qualified to conduct a hearing
undo ; this section.
(b) Arrangements fo r hearing. The agency
in which the com plaint arose shall transm it
the complaint file containing all the docu
m ents dcscribeil in § 713.222 which have
been acquired up to that point in the proc
essing of the complaint, including the orig
inal copy of the investigative file (which
shall be considered by the complaints examiner
in m aking his recom m ended decision on the
complaint), to the complaints examiner who
shall review the complaint file to determine
w hether further investigation is needed be
fore scheduling the hearing. W ien the com
plaints examiner determines that further in
11 3 8 5 5 .2 1 8
vestigation is needed, he shall rem and the
com plaint to the D irector of Equal E m ploy
ment O pportun ity for further investigation
or arrange for the appearance of witnesses
necessary to supply the needed inform ation
at the hearing. The requirements of § 713.216
apply to any fu rther investigation by the
agency on the complaint. T he com plaints
examiner shall schedule the hearing for a
convenient time and place.
(c) Conduct o f hearing. (1) Attendance at
the hearing is limited to persons determ ined
by the com plaints exam iner to have a direct
connection w ith the complaint.
(2) The complaints examiner shall conduct
the hearing so as to bring out pertinent
facts, including the production of pertinent
documents. Rules of evidence shall not be
applied strictly, but the complaints examiner
shall exclude irrelevant or unduly repetitious
evidence. Inform ation having a bearing on
the complaint or em ploym ent policy or prac
tices relevant to the com plaint shall be re
ceived in evidence. T he com plainant, his
representative, and the representatives of
the agency at the hearing shall be given the
opportunity to cross-exam ine w itnesses who
appear and testify. T estim ony shall be
under oath or affirmation.
(d) Forcers o f complaints examiner. In
addition to the o ther pow ers vested in the
com plaints exam iner by the agency in ac
cordance w ith this subpart, the agency
shall authorize the com plaints exam iner to :
(1) A dm inister oaths or affirm ations;
(2) Regulate the course of the hearing;
(3) Rule on offers of proof;
(4) Lim it the num ber of w itnesses w hose
testim ony would be unduly repetitious; and
(5) Exclude any person from the hearing
for contum acious conduct or misbehavior
tha t obstructs the hearing.
(e) Witnesses at hearing. The com plaints
exam iner shall request any agency subject
to this subpart to make available as a
w itness .at th e hearing an employee re
quested by the com plainant w hen he de te r
mines that the testim ony of the employee
is necessary. H e may also request the
appearance of an employee of any Federal
agency whose testim ony he determ ines is
necessary to furnish inform ation pertinent
to the complaint under consideration. The
com plaints exam iner shall give the com
plainant his reasons for the denial of a
request for the appearance of employees
as w itnesses and shall insert those reasons
in the record of the hearing. An agency
© 1972, Commerce Clearing House, Inc.
4a
(8 10-10-74 C ivil S e r v ic e C om m ission 2 0 7 3
to whom a. request is made shall make its
employees available as witnesses at a hear
ing on a complaint w hen requested to do
so by the com plaints exam iner and it is
not adm inistratively im practicable to com
ply with the request. W hen it is adm inis
tratively im practicable to comply with the
request for a w itness, the agency to whom
request is m ade shall provide an explana
tion to the complaints examiner. If the
explanation is inadequate, the complaints
exam iner shall so advise the agency and
request it to make the employee available
as a w itness at the hearing. If the explana
tion is adequate, the com plaints exam iner
shall insert it in the record of the hearing,
provide a copy to the complainant, and
make arrangem ents to secure testim ony
from the employee through a w ritten in ter
rogatory. A n employee of an agency shall
be in a duty status during the time he is
made available as a witness.
(f) Record o f hearing. The hearing shall
be recorded and transcribed verbatim . All
docum ents subm itted to, and accepted by,
the complaints examiner at the hearing shall
be m ade part of the record of the hearing.
If the agency subm its a document tha t is
accented, it shall furnish a copy of the docu
m ent to the complainant. If the complainant
subm its a docum ent that . is accepted, he
shall make the docum ent available to the
agency representative for reproduction.
(g) Findings, analysis, and recommenda
tions. The complaints examiner shall transmit
to the head of the agency or his designee
(1) the complaint file (including the record of
the hearing), (2) the findings and analysis
of the complaints examiner with regard to the
m atter which gave rise to the complaint
and the general environm ent out of which
the complaint arose, and (3) the recom
mended decision of the complaints examiner
on the m erits of the complaint, including
recommended remedial action, where ap
propriate, with regard to the m atter which
gave rise to the complaint and the general
environm ent out* of which the complaint
arose. The complaints examiner shall notify
the com plainant of the date on which this
was done. In addition, the complaints examiner
shall transm it, by separate le tter to the D i
rector of Equal Em ploym ent O pportunity,
w hatever findings and recom m endations he
considers appropriate w ith respect to condi
tions In the agency having no bearing on
the m atter which gave rise to the complaint
o r the general environm ent out of which the
complaint arose. [Sec. 713.218 reads as
corrected by publication in the Federal
Employment Practices ■ y .
R egister (37 F. R. 25699), effective D ecem
ber 1, 1972.]
[[[3855.219]
Sec. 713.219 Relationship to o ther agency
appellate procedures.—W hen an employee
m akes a w ritten allegation of discrim ina
tion on grounds of race, color, religion, sex,
o r national origin, in connection w ith an
action that would otherw ise be processed
under a grievance o r o ther system of the
agency, the allegation of discrim ination
shall be processed under this part. [Sec.
713.219 reads as last am ended, effective
Septem ber 9, 1974 (39 F . R. 32540).]
[[[3855.220] ,
Sec. 713.220 Avoidance of delay.— (a)
T he complaint shall be resolved prom ptly.
T o this end both the com plainant and the
agency shall proceed w ith the com plaint
w ithout undue delay so that the complaint
is resolved within 180 calendar days after
it w as filed, including tim e spent in the
processing of the com plaint by the com
plaints exam iner under § 713.218.
(b) The head of the agency or his desig
nee may cancel a complaint if the com plain
ant fails to prosecute the complaint without
undue delay. H owever, instead of cancel
ling for failure to prosecute, the complaint
m ay be adjudicated if sufficient inform ation
for that purpose is available.
(c) T he agency shall furnish the Com
mission m onthly reports on all com plaints
pending within the agency in a form speci
fied by the Commission. If an agency has
not issued a final decision, and has not
requested the Commission to supply a com
plaints examiner, w ithin 75 calendar days
from the date a com plaint w as filed, the
Commission m ay require the agency to
take special m easures to insure prom pt
processing of the com plaint o r m ay assum e
responsibility for processing the complaint,
including supplying an investjgator to con
duct any necessary investigation on behalf
of the agency. W hen the Comm ission sup
plies an investigator, the agency shall reim
burse the Commission for all expenses
incurred in connection w ith the investiga
tion and shall notify the com plainant in
w riting of the proposed disposition of the
complaint no later than 15 calendar days
a fter its receipt of the investigative report.
(d) W hen the com plaints exam iner has
subm itted a recom m ended decision finding
discrim ination and the agency has not is
sued a final decision w ithin 180 calendar
days after the date the com plaint was filed,
3 8 5 5 .2 2 0
5a
2 0 7 3 - 2 R u les a n d R eg u la tio n s 68 10-10-74
the com plaints exam iner’s recom m ended
decision shall become a final decision bind
ing on the agency 30 calendar days after
its submission to the agency. In such
event, the agency shall so notify the com
plainant of the decision and furnish to him
a copy of the findings, analysis, and recom
m ended decision of the com plaints examiner
under § 713.218(g) and a copy of the hear
ing record and also shall notify him in
w riting of his right of appeal to the Com
mission and the time limits applicable
thereto and of his righ t to file a civil
action as described in § 713.2S1.
[tf 3855.221]
Sec. 713.221 Decision by head of agency
o r designee.— (a) T he head of the agency,
or his designee, shall make the decision of
the agency on a complaint based on informa
tion in the complaint file. A person desig
nated to make the decision for the head
of the agency shall be one who is fair, im
partial, and objective.
( b ) (1) The decision of the agency shall
be in w riting and shall be transm itted by
letter to the complainant and his representative.
W hen there has been no hearing, the deci
sion shall contain the specific reasons in
detail for the agency’s action, including any
rem edial action taken.
(2) W hen there has been a hearing on
the complaint, the decision le tter shall
transm it a copy of the findings, analysis,
and recommended decision of the complaints
exam iner under § 713.218(g) and a copy of
the hearing record. T he decision of the
agency shall adopt, reject, or modify the
decision recommended by the complaints exam
iner. If the decision is to reject o r modify
the recom mended decision, the decision
le tter shall set forth the reasons for rejection
or modification.
(3) W hen there has been no hearing and
no decision under § 713.217(c), the decision
le tter shall set forth the findings, analysis,
and decision of the head of the agency or
his designee.
(c) T he decision of the agency shall
require any rem edial action authorized by
law determ ined to be necessary or desirable
to resolve the issues of discrim ination and
to prom ote the policy of equal opportunity ,
w hether o r not there is a finding of
discrim ination. W hen discrim ination is
found, the agency shall require rem edial
action to be taken in accordance w ith
§713.271, shall review the m atte r giving
rise to the complaint to determ ine w hether
disciplinary action against alleged discrimi-
fl 3 8 5 5 .2 2 1
natory officials is appropriate, and shall
record the basis for its decision to take,
o r not to take, disciplinary action bu t th is
decision shall not be included in th e com
plaint file. f'
(d ) The decision letter shall inform the
com plainant of his right to appeal the
decision of the agency to the Commission,
of his right to file a civil action in accord
ance w ith § 713.281, and of the time limits
applicable thereto. [Sec. 713.221 reads as
corrected by publication in the Federal
R egister (37 F. R. 22717), effective Decem
ber 1, 1972.]
;• HI 3855.222]
Sec. 713-222 Com plaint file.—The agency
shall establish a complaint file. E xcept as
provided in § 713.221(c), this file shall con
tain all docum ents pertinent to the com
plaint. T he com plaint file shall include
copies of: (a ) T he notice of the E qual
Em ploym ent O pportunity Counselor to the
aggrieved person under § 713.213(a), (b)
the w ritten report of the Equal E m ploy
m ent O pportunity Counsel under § 713.213
to the Equal Em ploym ent O pportunity
Officer on w hatever prccom plaint counseling
efforts w ere made w ith regard to the com
plainant’s case, (c) the complaint, (d)
the investigative file, (e) if the com plaint
is w ithdraw n by the com plainant, a w ritten
statem ent of the com plainant o r his repre
sentative to tha t effect, (f) if adjustm ent
of the com plaint is arrived at under § 713.217,
the w ritten record of the term s of the
adjustm ent, (g) if no adjustm ent of the
com plaint is arrived at under § 713.217, a
copy of the le tter notifying the com plainant
of the proposed disposition of the com plaint
and of his righ t to a hearing, (h ) if decision
is made under § 713.217(c), a copy of the
le tte r to the com plainant transm itting that
decision, (i) if a hearing was held, the
record of the hearing, together w ith the
com plaints exam iner’s findings, analysis, and
recom m ended decision on the m erits of the
complaint, ( j) if the D irector of E qual
Employment Opportunity is not the designee,
the recom m endations, if any, m ade by him
to the head of the agency o r his designee,
and (k ) if decision is made under § 713.221,
a copy of the le tte r transm itting the decision
of the head of the agency or his designee.
T he com plaint file shall not contain any
docum ent th a t has not been made available
to the com plainant o r to his designated
physician under § 294.401 of this chapter.
[See. 713.222 reads as corrected by
publication in the Federal R egister (37
F . R. 25699), effective Decem ber 1, 1972.]
© 1974, Commerce Clearing House, Inc.
T h ird P a rty A llegations
[3855.251]
: Sec. 713.251 T hird party allegations of
discrim ination.— (a) Coverage. T his section
applies to general allegations by organiza
tions or o ther th ird parties of discrim ination
in personnel m atters w ithin the agency
which are unrelated to an individual com
plaint of discrim ination subject to §§ 713.211
through 713.222.
(b) Agency procedure. T he organization
or other th ird party shall state the allegation
w ith sufficient specificity so that the agency
m ay investigate the allegation. The agency
m ay require additional specificity as neces
sary' to proceed with its investigation. The
agency shall establish a file on each general
allegation, and this file shall contain copies
of all m aterial used in m aking the decision
on the allegation. T he agency shall furnish
a copy of this file to the party subm itting
the allegation and shall make it available
to the Commission fo r review on request.
The agency shall notify the party submitting
the allegation of its decision, including
any corrective action taken on the general
allegations, and shall furnish to the Com
mission on request a copy of its decision.
(c) Commission procedures. If the th ird
party disagrees with the agency decision,
it may, w ithin 30 days after receipt of the
decision, request the Commission to review
it. The request shall be in w riting and
shall set forth with particularity the basis
for the request. W hen the Commission re
ceives such a request, it shall make, o r
require the agency to make, any additional
investigations the Commission deems neces
sary. The Comm ission shall issue a decision
on the allegation ordering such corrective
action, with or without back pay, as it deems
appropriate. [Sec. 713.251 reads as corrected
by publication in the Federal R egister (37
F . R. 25699), effective Decem ber 1, 1972.]
7a
APPENDIX B: DEFENDANTS' ANSWERS TO
PLAINTIFF'S FIRST INTERROGATORIES,
EXHIBITS 5A and 7
sn ICTION OK INITIAL LEVEL SUPEBVISOIIS
iNtnonrcTioN
The selection of Initial level supervisors Is on Important primary atop In
expanding career opportunities for postal employees while at the same llmo
t significant process for Improving managerial nnd organizational effective
ness. Selections for promotion are based upon merit lu Job pci-formance,
the Individual's potential for assuming greater responsibility, and Individual
quail Ncaltuns.* »
Kach selection Is made without regard to race, color, religion, sex, Ar
national origin and Is In no way Influenced by political considerations.
The selection methods nnd procedures described below aro Interim modifi
cations of the current process with emphasis on Initial level supervisory Job
characteristics and requirements matched to documented performance end,
potential.
s e l e c t io n p n o rrm 'H rs
Until eelectlon procedures are revised, the following guides will bo usedi
1. Current supervisor)'registers arc to be used until superseded.
Current procedures for examining are to be continued In main
taining registers. An exnintnallon may be roopened with ap
proval of die District Manager.
S. Installation heads may consider as eligible for promotion any
employee who has attained a score of 65% on the appropriate
supcril'o r examination. All eligible employees may be ap
praised for srlccllon at the same time or inay be appraised
In order of score as vacancies occur, provided all evaluation
and to lection proceilures ore followed. The Individual's score
on die examination Is not a factor In further rating for
selection.
I< Each eligible employee to be considered will bo appraised by
his/her Immcdlalo supervisor^), using PS Form 139 ("Ap
praisal of Eligible* for Supervisory Positions") i s described
In ths next section.
2
4, As o result of Ibo Individual appraisal, each candidate I*
jsslgurd nn Overall Hating of A, II, or An "A" rating
means dial Hie employee Is ready for Immediate selection
nnd placement Into a rperlflc supervisory position. A "B"
• ruling means dint die employee should be observed and
evaluated In n variety of nupervlaory work and training
assignments for a period not exceeding six months. Jly
ths end of this provisional period, tho cmployco must bs
reappraised and rated In cither Category A or C. If the
employee Is rated lu Category A, hc/she Is considered
ready for selection nnd placement, A "C" rating means
that dio cmployco Is not ready for selection as a supervisor
at this time, and Is to be roappralscd after 12 months.
I , The Installation's Promotion Advisory Board Is responsible
for validating Individual appraisals, Insuring that documentation
recorded nn Form 139 Is adequate, examining candidates'
total qualifications, screening and recommending Ihc final
list of candidates nidi "A" ratings to dio Installation head.
Any qualified candidate on the "A" rating list may be
selected tor placement on n permanent basis.
( . When all employees with "A" ratings have been placed and
dm Installation continues to have vacancies, that Installation
head may request the District Manager to expand consid
eration to "A" candidates on appropriate registers In other
Installations vvldiln the Sectional Center or District, Also,
within Ihc Installation It may not be feasible to place "A"
candidates immediately. The availability cf these candi
dates should bo made known to the District Manager.
T. The Installation head In responsible for maintaining adequate
records for audit of tho selection process.
t . The assignment of employees to special service-wide manage
ment dovclopmcnt and placement programs, such as Manage
ment Associate end Post Office Management Trainee, may bs
effected without regard to those procedure*.
X
t
1
:
0 Human*
'£>
<o
N)
O'
use o f i ’s roiiM n n , " aim'Hai.tai. o f k i.h h h i.kh rn n hih’I'Iivimoiiy
rosinoN -s"
Until t revised form Is Issued, PS Form 439 will be used as follows!
1. Condi.Inti s will In) appraised by tlic lr limit) dlnlo miporvlsur(o).
Frctlch II, "U'rllten evaluation, " on tho back of Form 439, U
to be completed before Section A.
2. Frcllon IV-1 ("As an employee")! the evaluator underlines
one of the five printed questions which most suitably describes
the employee's current and recent performance In hlsAcr
■ present Job, In the blank space, the evaluator writes brief
rpcdflc examples of performance to support the evaluation,
2. Section rv-2 ("As a potential supervisor")! Uio evaluator
underlines rue of the four primed (locations which moat
suitably describes Die evaluator's estimate of how effectively
tho cmployco will probably perform as an Inltlnl-lcvcl super
visor after becoming familiar with the position. In tho blank
space, tho evaluator writes specific examples to aupport tbs
estimate of potential.
• 4, The questions underlined by Uio evaluator are converted to
ratings of A, II, nr C, as followai (Questions have been
slightly edited from those on the form for clearer meaning),
Section ll-l (performance) Rating
employee Is one of the lies! I have know n..,........ . ’ A
employee Is above average compared lo tho
general run....................................................... A
employee Is good hut not outstanding............ . B
employee Is not fully satisfactory................................. .. C
I doubt that cmployco will ever bo satisfactory........ . C
Section R-2 (potential)!
employes would develop Into ono of our beBt
supervlaors........... ....................... A
Cmployco will be a good superv isor... . . . . . . . . . . . . . . A
Employes will bo an average supervisor........................ B
Employes will b« a poor supervisor........... .............. . C
4
S, Tho two Individual ratings lor Sections B -l (performance) and
D-2 (potential) arc combined to obtain a slnglo Ovorall Rating
of A, B, or C. Tho rating for potential receives the greater
wolghtlng In arriving at tho Ovorall Rating, as followai
Section Section Overall
B -l B-2 • Rntlng 4
A ♦ A m A ) Employee Is ready for Im-
U ♦ A m A ) mediate placement
A ♦ B m B ) Employee Is lo bo considered
B + B m B ) for placement within 8 months.
0 ♦ A - B ) after additional observation and
evaluation In specific supervisory
work and tralnlig assignments.
Employee must be reappraised
and placed In either Category A
or C by ond of alx month period.
• A ♦ c - C > Employee Is not ready tor selection
B ■f C - C ) at Oils time. Is to bo reappraised
C 4 B - C ) alter 12 months. May be placed la
C 4 C - C ) Categories A or B, or continued la
Category C,
4, Wrlto tho A, I), or C rating for performance and potential In the
upper left corner of the appropriate section,1 and wrlto the Overall
Rating, A, B, or C, In Uio upper left corner of Uie front page of
the form. (Sen Sample Form)
, t . Tills form need not be shown to or discussed with the employee,
as It Is used solely as a management aid In making a promotional
decision. Tho evaluator, however. Is expected to discuss with
tho employee any aspects of performanco of h lsA er present Job
which ore strong, along with tboso which can and should be Im
proved, If the employee continues to be Interested la soloctlon
to on Initial level supervisory position.
i
c o
» t r
r * -demonstrates thorough knowledge of the
qnlrc-m-nt< and methods Involved In lining Oio Job
7~ - '- B«ls quality work done efficiently and
Uiqrougl-.l) i meets goals/largets, meets deadlines.
g s a i j s & s a r
-TVatrntl vl (Section n-2)
potenUlal'are* C° n5,<!Cred eVa'Ui“ ,ne 0,8 " " P * * " * - -p e rv t.o ry
mcD,M «W1I «o copo With
~ ~ ~ ^ ,!t': ' rt' s responsibility for performance of a group,
how , ‘ nerpy a . I drive to accomplish tasks or go a l," ‘ W
J— r r f - ’ 1 ‘ , ro :,n'1 #l,,ll‘y ' p I'lcnllfy and analyse pro. It ms, and lo find ami choose among solutions.
7 ~ ~ ~ ^ h*’ ,Icn,on3lralt'd Initiative and effeettvenese
resn e ,!iV° MCrS l° * llUn':ly Bchlcvo commands therespect of others! respects tho feelings of others.
I c chr.lcal ability, has required tochnlcal know-how or ablUtr
to acquire necossary aklll quickly. v
•* ,* »
v ; ‘
i , . .
■ k
- r
The evaluator dates and signs the form ns Indicated. Discussion
f iw T tT l 'l * *!‘h ? '° n "P,0yC0 mny «nk0 l,llro « month following tho evaluation nml munt bo noted on the form at the
lime, showing the dato and gist of discussion. Tho evaluator Is
responsible for following up on appropriate recommendations.
Ap p p a is a i . n t im rs
£ r r r ' ,,! ° “ ’I '’r0D',C’ 1 mo8‘ cffecU''« promotional opportun-
S , : ! S S lh° >” -*■«» ••
Performance (Section n~1|
’ ■ Factors to be consblered to evaluating the employee's perfo rm .**
i; a m i* 1 .1 :
' u i natal Ii'nitiArprtAisM. nr ri mini r rmt sun nvDonr rotiTintis 341 r
7/1/7 1
r
M0u
ro;t‘Ajn a
,T. J t )N 1 i . i iA M A M n n N i ) i , r : Y
1 r.-.| f,r rif.r
N V N
•'.•.HIM la l k r
1 >1 * t i I I n tIo n C l n l ;
T0AATIHC OAMCUl̂ ?. I'orcnnn M a lt a
f Ar fr-|-/;■)»* n.imrd «A,-i f Am Amir t l ig tlt h lf /,*» prrmrlii"* M • l i / v i l t i . w s . f l r j i # | i t r *j y j y S. ' tt l l end
I*it • f l 'flM.W »•/ A,«n A; C u ' Y (\U o/lAe i lfmi rn lAir / j/m. I An fto/uali . '* « M | I f | i m ye*r mpil ( t - r f j
• I It m i l Aiti # on mpirMni Aro'iny on uktlhtr lAn t n p l o y n it i t lr t le J /or ffonrlt^n. f /raise fee** lk , i /* •• |« «\,« ofj , t i
• I ) ( U/ h r l i f t l f r s i r i lM r f ,
A - l ed i n«.»l c if j section ilm ll te co m flttc J |ty p U t in i
• in ifT ,m i | r u heve chosrn r » |poa| n r•■%!!v describing the
kTTaTtT f uo FTo i am p‘? o stalicm v ft f
tn I l it l* » f 'lm sd cj on |||« she U n r i ani.ee nag she
f ir plovtr*g rilil** r jn u e j»n d ei-ihty.
a) H a t •iicepticnully keen interest In hit dull#*
ond In Improvea potldl service. Eager I*
team ond contribute ideas.
b) Accepts Supervision well. Rea lly motivated to
do cbove o v t 'o je job.
c ) Gene,o ily octuple direction ond suggestions,
but d s f lo y i l i l l le In le ie tt.
d) H o i very litt le interest In hie Job; fust ge lt by;
USuolly resents supervision.
j-iWoviADGe cf P6WAl pnCcn>uf,£i
B
o) H o i a very thorough knowledge ol postal r e g r
lotions ond procedures; keeps well Informed
on now developments ond techniques.
b) Above ovtrcgc knowledge of M l job require*
rrenfi ond techniques.
c ) Con hondle most routine assignments, but
needs frequent Instruction.
d) Somewhot bewildered by his |ob; seems lost.
J- IN I11A11V C
o) Dynamic; quick to assume Intelligent In lotlva
in ony situolion.
b) Energetic ond resourceful In hondllng most-
lilu a lio n i.
«) Tckes necessary action on own In itiative In
routine sltuolions.
d) Locks energy; requires constont guidance ond
urging.
4-AOILITY TO WOOK CFfCCT lVC LY WITH OTHERS
a) An e»c«pfionolly good I t em worker; inspire!
those orovnd him.
b) Generally o tenm worker; utuolly works hormo*
nioutly with others.
c) Prefers to woik alone, not a teom worker, but
gets olong tola tfoc'ortly.
d) A ntcgon iiet others by his octions; quarrel*
some or Inconsiderate.
(L
L : f H YStCA L_v [T_a L ITY
o) EhCtpiionolly strong ond healthy. Very
energetic.
b) H o i good heolth ond above average energy.
c) Averoge health ond energy.
d) Has mojor physical weokness ar I I I haollh;
frequent tbsence• dua ta illnese.
l - l w O t l C M A l STABILITY________________ _________
a ) L i C f l l e n l od|u itme nt 10 ( h o n g i n g i t l j a i o n i ,
t o l e i l l . i A g i in str ide; r or e lf lo s es ( o ^ p o i e r s ,
b) Well holanced. Usually nomtains good self
control.
c) Generally noble, but occasionally lets litt lethings d* Stu*b him.
d) Given to e^cticnal tirades; aitrem ely nervous;
( f - ' t «>*l e c>•*•••%•*. ____________________________
7-L ( A D IL I? Y
a) Owtstcndmg leadership quolatles; goed ergon*
iia r; gets the best out of people.
b) Good cb ih iy to leod, ccmmonds respect, hot
good perspective.
c) Gets olc^g wed with ethers, but is e follower
(Other lh on o Usder.
d) Locks leodt'lhap obality; locks ferctlu lne tl
Or ontcgonaies p.cple.
9 -ItjIT COMITY_______________________________________ __
o) Momtomi highest personal stonderds ef hon*
e»ty; comn-ondi hagh rsspect ler fo<rntts ond
Sarceraly.
b) Depen^oUe, loycl; objective an has thinking.
c ) Gerf*o lly loyol otd sancere.
d) Hot dep end •*. U . inclined to b lvlf erd la tek#
fn*|/ 0 J**nf«rrf S. " u l t le w^rthe-l.
Wholly confident, a person of tsg n j o' d mature
icdjmenl; m-te» deqat>ons recd-ly.
Ccn be relied on to solve most problems; con*
e lutions cr# generolly sound.
Sometimes hesitant when facing new eitvo'ione;
Otherwise sound.
D .» U « i r*okir»g decisions; rroVet toe manym »r-lr » t.
10-uCMlAlALE*f*(lS
o) C etremely rstourceful rmcg.nolion cc.p'ed with
sound for« s• 91 t, quick to trn ie si'uot.one.
b) Open r-ind*d o-nd ale»l; go ad co^^cn sm ee.
c) C c - f ftenl to handle norrol problems.
d) Slow t^-ireer; locks iroginotion.
I l - f l« S C 't A t CCH^UCT
K e rp t enceplionally high stondords for pet
t o o l conduct.
Generolly momtoins high stondo’ds.
Satisfactory; no major charocter defects.
H o t unsatisfactory personal hobsts; poor
attendance record.
0
0
0
A|r. IS? | 4Jf
s a m p l e
" ........" D - I M 1 I t s hVA LU A TIO N —
I.Af am h i onr of ihe e«ploye»a you bare Abovt • » « » ! » c*«r«ied lo *h* ftncrAl W»
of fsp lcycc tF A r »’ f e r r lo v ee but not ©umspdinjf Not fully »ail*factOrfF !• It doubtful be *111 t t e f bo
• s t i s U c t o e y f ( l i c o\n » O l d l )
3
Use examples of Job-related performance such as attendance, meeting
schedules, reducing costs, Increasing output, meeting other goals,
contributing to group performance and working with others.
J.AS A rotlHTIAl JUPUtvUOX- till he dttclop Imo one °t »ut *>e»t turret! ton! till lit be a good tuptrtltetf
A a l im i t Iipm lin l A foot lupiitltoit liploo Ihe •bililitl thtl would ««h» W» S fully »»tltl«c«Ory
lupmi*of or % out d hinder hlo fr«*o» beco«*lng • really good iupervlaor.
A
Use examples of ability to make and altor schedules, contribution of Ideas
for better unit performance ability to Influence others tn reaching objectives,,
ability to analyte problems and suggest useful solutions, knowledge of skill
■res, ability lo handle unit budgets and information.
I b a r* d iaeaaatd with lha •■play** M . _ ,,r chuaelcfUtU which I have tvalsatW «IA
• Jd ) , and bar* coanaetled M a
f a
(Dit)
a A T IMO OFriCIAWJlf-alvr •>* **•)**•)
\
I
J
i
I
i
INTERIM GUIDE
s.
SELECTION OP INITIAL LEVEL SUPERVISORS
INTRODUCTION
SELECTION PROCEDURES
USE OF PS FORM 139 "APPRAISAL 0 7 ELIOfBLES
FOR SUPERVISORY POSITIONS"
APPRAISAL GUIDES XI
APPENDIX
Sample Form 439
l!■ i
(
h
d
°
U.S. POSTAL SER V IC EREPORT ON INTERVIEW FOR SUPERVISORY POSITION DATE OF IN TER V IEW
NAME OF PERSON IN TERV IEW ED POSITION IN TERV IEW ED FOR
1 - APPEARANCE. BEARING AND MANNER
EVA LUAT IO N : 0 OUTSTANDING 0 ABO V" AVERAGE n AVERAGE Q BELO W A V ER A f.r
2 - AUILI 7Y IN ORAL EXPRESSIO N
Voice quality, d.»ntv of sivech. efft'ctivonr^ of delivery, uw of language, ability to get point across, emphasis in speaking, responsiveness to
questions, t’M.jrt* to mjM' complete response, listens.
EVALUATIO N_________ 0 OUTSTANDING Q AEO VE A VERA G E 0 A V ER A G E 0 BELO W A V ER A G E
3 - STA BIL ITY AND SOCIAL ADJUSTM ENT
Manner ol greeting and leave-taking, observance of social amenities, manner ol conversation, talkative or timid, repetition, interruption,
excitability, tact. '
EVA LUAT IO N : ______o OUTSTANDING o ABOVE A VERAGE_______ 0 A VERA G E 0 BELOW A VERA G E
4 -M EN T A L Q UALIT IES
Ability to understand, objectivity and analytical ability, discrimination between fact and opinion, hedging, reasonableness, bluffing, avoiding
commitments, consideration of others' opinions, originality, imagination.
EVA LUAT IO N :_________0 OUTSTANDING 0 ABOVE AVERAGE___________ 0 A VERAG E____________Q BELO W A VER A G E
5 - V IT A L IT Y
Enthusiasm, determination, attempts to "sell" viewpoints, physical and emotional stamina.
EVA LUAT IO N : 0 OUTSTANDING 0 ABOVE A VERAG E 0 A VERAG E 0 BELO W A V ER A G E
6 - M A T U R IT Y
Acceptance of responsibility for own behavior, placement of blame on other people, effective use of past opportunities, respect for other people's
individuality, realistic appraisal of own abilities and ambitions.
EVALUAT IO N : 0 SU FF IC IEN T LY M ATURE 0 SOMEWHAT IMMATURE
7 - WORK ATTITUDES
Expressed feelings about job, coworkers, customers, supervisors, and Postal Service; evidence of undue favoritism or bias;
sensitivity to minority group and union relations.
EVALUAT IO N :_________0 OUTSTANDING_______ 0 ABOVE AVERAGE 0 A VERAG E 0 BELO W A VERA G E
8 - MOTIVATION AND IN TEREST
Desire for supervisory management responsibilities, willingness to accept difficult problems and to adapt to changing conditions,
willingness to work under pressure and adverse conditions, recent efforts to progress or improve self.
EVALUATIO N :_________0 OUTSTANDING_______ 0 ABOVE AVERAGE 0 A VERAG E 0 BELO W A V ERA G E
S-SU BJEC T-M A TTER KNOWLEDGE
(Evaluate if candidate is being interviewed for a specific supervisory positionl: Extent and quality of postal and/or technical knowledge
needed in order to enter the position.
EVA LUAT IO N : 0 OUTSTANDING 0 ABOVE AVERAGE 0 ADEQUATE 0 INADEQUATE
IN T ER V IEW COMMENTS (Continue on reverse, if necessary)
O V ER A LL IN TERV IEW
EVA LUAT IO N :_________0 OUTSTANDING 0 ABOVE A VERAGE 0 A VERAG E 0 BELOW A VER A G E
G EN ER A L EVALUATION FOR SUPERV ISO RY POSITION
If appropriate, interviewer evaluates the candidate's TOTAL qualifications. Consider: Supervisor's appraisal of performance and potential;
candidate's relevant experience, training, and education; interview results; any other information available (e.g_., work records, leave record,
commendations, suggestions, etc.). Weigh candidate's strengths and weaknesses for effective performance in supervisory position.
EVALUATIO N :_________0 OUTSTANDING 0 ABOVE A VERA G E 0 ' A VERA G E 0 BE LOW AVE RAGE
EXPLAN ATIO N OF EVALUATIO N (Continue on reverse, if necessary)
S IG N A TURE OF IN TERV IEW ER IN TER V IEW ER 'S POSITION T ITLE
PS Form
Aug. 1973 442
5b
APPENDIX C
United States Commission on Civil Rights, The Federal
Civil Rights Enforcement Effort - 1974, Vol. V, "To Eliminate
Employment Discrimination" (July 1975) (excerpts: pp. 61-86;
619-624.)
-tar.
'■ ’’ v . ■ : . . f t ' . • •
t • .< r t V J V ' • i . ? \ '
Ir»» f : . I. - • f . \ . . . » ! >.T
v i . .• . - -7* - . . . . . .. . . .
v v - f r - . ; v ■ .v. . . y ; , • : / > . " ■ V ' - ’ .. ■ ,
f t . " - - ' ’j ~ ' V • ■; f t 1’ K- / »
‘-".V
i
"*S
6 . v l
i v
61
•r
i •*
IV. Processing Title VII Complaints
Prior to the extension of Title VII coverage to Federal employment,
the Commission had issued regulations governing employment discrimination
201
complaints brought under Executive Orders 11246 and 11478. In 1971,
congressional committees in both the House and Senate strongly criticized
the Commission's complaint procedures and determined that they may have
actually denied employees impartial investigations and fair consi
deration. Bias against complainants appeared to the committees to be
inherent in the procedures, since the allegedly discriminatory agencies
were responsible for investigating the complaints and rendering final
decisions, unbound by the findings of the hearing officers. Agencies'
final decisions were appealable to the Commission's Board of Appeals
202
and Review (BAR), but were affirmed in most cases. Finally, the
committees found that the complaints system, as well as other parts
of the Federal Equal Employment Opportunity (EEO) program, had been
seriously weakened by the Commission's narrow view of discrimination
as primarily a problem of individual bigotry rather than the result
203
of systemic practices. The Senate committee, whose provisions on
201. 5 C.F.R. § 713.211, et se£. (1969).
202. Legislative History, supra note 42, at 84 and 423.
203. Id. The Commission's complaint procedures were also strongly
criticized in a report prepared by Ralph Nader's Public Interest
Research Group in June 1972. See M.W. Brewer, Jr., Public Interest
Research Group, Behind the Promises: Equal Employment Opportunity
in the Federal Government (1972).
lc
62
Federal employment ultimately passed, reported that the new Title VII
authority was "...intended to enable the Commission to reconsider its entire
complaint structure and the relationship between the employee, agency and
204
Commission in these cases."
As indicated in the discussion below, almost three years after
the enactment of this legislation, the Commission's regulations were
still fundamentally biased against the employment discrimination com
plainant, for many of the same reasons recognized by the congressional
committees in 1971. In addition, the Commission's interpretations of
complainants' substantive and procedural rights were in many respects
205contrary to the requirements of Title VII.
206The Commission regulations in effect in 1975 set out detailed
-Steps which aggrieved persons must follow in challenging employment
204. Id. at 423.
205. The Commission maintains that parts of the 1972 Amendments to Title VII
were drafted to accommodate specifically to the" complaint system existing
believes "thf bas • °f the,leSislation* "Therefore," the Commissionelieves, the basis for the report's conclusion that the system and the
rights granted to Federal employees and applicants are contrary to Title VII
requirements is difficult to find." Hampton letter, su£ra note 7.
19A9 5 C'F'^‘ V 1!3'2 1 1 - ^ (1974). The regulations adopted in
Jh 1Q7 96a ^ sllShtly revised in 1972 following the enactment ofthe 1972 Amendments to Title VII. 5 C.F.R. § 713.211 et sea 37
Fed Reg. 22717 (Oct. 21, 1972). A listing of the r e v S i f S m a d l
?Q79 V m e Y d in FPM Letter No‘ 713-17 (Attachment 1), Nov. 3
d^SCUSS1°n of the revised complaint regulations, see,
Slo f National. Association for the Advancement of Colo^id
pie (NAACP) Legal Defense and Education Fund as Amicus Curiae
Laurel v. United States, appeal docketed No. 74-3746, 5th Cir. 1974.
urther revisions were made in the regulations in 1974 to include'
o ^ h ST S-f° V he processinS of complaints alleging discrimination
?S7?r® ™ i Sr°f a§e’ pursuant to Public Law 93-259 (effective May 1,1974). FPM Letter 713-28, July 9, 1974. 7 *
2c
̂* . **#'■■ ■, ,
63
207
discrimination in Federal employment. * Following an informal process,
complaints proceed through formal investigation and a hearing, if
requested by the complainant, and are then subject to final decision
by the agency head or other designated official. Complainants may file
a civil action in U.S. district court after 180 days from the initiation
of the complaint or after final agency action. They may also appeal the
. . . 208agency s final decision to the Commission's Appeals Review Board.
These procedures do not apply to general allegations of discrimina
tion unrelated to a specific individual, which are made by an individual
209
complainant or a third party. When complaints are made alleging
discrimination against a class, the agency is required only to establish
a file and to notify the complainant of its decision, which the complainant
may appeal to the Commission within 30 days. There is no requirement that
the agency^conduct an investigation, nor are any time limits set for agency
action. Complainants are not permitted access to the investigatory file
until the case is closed, and there is no right of appeal to the Appeals
Review Board. Further, the Commission regulations do not acknowledge that
207. Employee complaints alleging improper agency actions on grounds other
than race, ethnic, or sex discrimination are processed according to entirely
different procedures which provide for a hearing before the Commission, but
no right of appeal to the Commission's highest reviewing authority, the
Appeals Review Board - 5 C.F.R. i 772. These procedures apply to employees'
challenges to adverse actions such as termination, probation, or pay classi
fication. Complainants frequently are faced with having to elect which of
these procedures to follow in challenging an adverse action which they believe
to be racially or sexually discriminatory.
208. The name of the Board of Appeals and Review was changed in 1974 to the
Appeals Review Board.
209. 5 C.F.tf. g 713.212(b).
210. 5 C.F.R. § 713.251. There are no procedural requirements governing the
conduct of such investigations. 211
211. FPM Letter No. 713-20 (Jan. 27,1975).
3c
64
complainants raising general allegations have the right to file a civil
action in court. During the first quarter of fiscal year 1975,
approximately 25 general allegation complaints had been referred to
213
the Commission for review. However, complainants challenging an
agency's employment practice, for example, a job requirement which may
adversely affect a minority group,^may pursue the challenge through
the regular complaint procedures. However, when an employment practice
required by the Commission is challenged, the complaint may be made in
215the form of an appeal to the Commission. The Commission has failed to
212. 5 C.F.R. § 713.281.
213. The Commission did not begin to collect data on the total number of
such complaints filed nationally until fiscal year 1975. In the Washington,
D C area alone, 14 general complaints were reviewed during fiscal year
* u In 0nly two Stances was the agency's decision reversed. In one
of these cases, the agency was ordered to establish a Sixteen Point Program.
The Sixteen Point Program, now called the Spanish Speaking Program, is
discussed on p. 108 infra. In the other instance, the agency was instructed
to discontinue requiring a job qualification which was related to a single
Divisirm^R amace' DIntervifw with Paul Leslie, Chief, Washington Operations Division, Bureau of Personnel Management Evaluations, CSC, Nov. 13, 1974.
214. 5 C.F.R. § 300.104(c).
r15"j 5 C*F*r * § 300.104(a). An appeal is made to the Appeals Review
Board whose decision is final, subject to discretionary review by the
Commissioners. 5 C.F.R. § 772.401; 5 C.F.R. § 772.308. In at least
two instances, court challenges to the Commission's entrance examinations
have been dismissed or remanded for failure of the complainants to exhaust
nfiSTn1- ^ 1!11!traA1Ve^ r0CeCiUreS’ DouSlas v. Hampton, supra note 121; League of United Latin Am. Citizens v. Hampton, 501 F.2d 843 (D.C. Cir. 1974).
To date, there have been few complaints filed with the Commission pursuant
S ^ L i0"S- |S£ In Re Shirley Long, Appeals Review Board, CSC,
iov. U , 1972 (finding improper a job requirement by the U.S. P-ark Police
of5'8")didateS W6i8h 3 minimUln °f 145 lbs- 311(1 have a “^imum height
7
Ha i mi m & i *
65
cross-reference these provisions in the standard complaint regulations;
thus, many complainants are unaware that they may challenge broad
216
practices in their complaints.
Although Title VII includes no restrictions on the filing of a
complaint against a Federal agency, the Commission has imposed stringent
. 217
conditions. The Commission regulations bar applicants or employees
from initiating individual complaints unless an informal complaint is first
registered within 30 days of the date on which the allegedly dis-
218
criminatory act occurred. In addition, the complainant must allege
216. Interview with Charles Ralston, Attorney, NAACP Legal Defense and
Educational Fund, Mar. 20, 1975.
217. The Commission strictly construes the definition of applicant for
employment. It has held, for example, that a person who takes a Federal
Government basic entry examination but who has not applied for employment
at a specific agency is not an applicant with the Civil Service Commission
or other agency and, therefore, may not file a complaint. Appeals Review
Board Decision in Case No. 713-74-278, Dec. 11, 1973. 218
218. The current regulations do not contain a provision included in previous
regulations which permitted the filing of a complaint at any time if the
alleged discrimination was continuing in nature. Compare 5 C F R § 713 213
(1969) with 5 C.F.R. § 713.214 (1972). Title VII complainants may file ‘
discrimination charges with the EEOC against private employers or State
and local governments within 180 days of the date of the alleged discrimi-
natory act, 42 U.S.C. 2000e-5(e), but the statutory time limitation has
been held not to apply in cases charging continuing discrimination.
Culpepper v. Reynolds Metals Co., 296 F. Supp. 1232, 1235-6, (N.D. Ga.
1969), rev'd on other grounds. 421 F.2d 888 (5th Cir. 1970)! Federal*
complainants, however, must comply with the Commission's strict time
limitations unless- they can show good cause for the delay. 5 C.F.R. §
713.214(a)(4). Thus, a Federal complaint was rejected as untimely where
a female alleged continuing sex discrimination in promotion practices on
the grounds that her complaint was filed 247 days after the most recent
denial of promotion to her. Appeals Review Board, Decision in Case No.
713-74-291, Dec. 17, 1973. The Commission's position barring complaints
alleging continuing discrimination is squarely in conflict with Title VII
law. The Commission believes that "the requirement for timely filing of
complaints benefits all parties as it permits a comprehensive investi
gation of recent events which are still fresh and reconstructible in the
witnesses' minds." Hampton letter, supra note 7.
5c
a specific act of discrimination. The complaint is treated informally
by an Equal Employment Opportunity Counselor, who is directed to seek
resolution of the matter within 21 days. If informal measures fail, the
counselor must inform the aggrieved person of the right to file a formal
220
written complaint within 15 days of the notice.
66
219
219. Hampton letter, supra note 7. Despite congressional criticism of
the Commission's tendency to view the problem of discrimination as one
of individual actions and to ignore systemic discrimination, the Commission,
nevertheless, conditions its complaint procedures on the allegation of
a specific act of discrimination. See Legislative History, supra note 42
at 423. — c—
220. The Commission maintains that "the great majority of EEO-related
issues of concern to employees are resolved informally, and some form of
corrective action is taken by the agency as a result of over one-third
of these contacts with counselors." Therefore, the Commission believes
that this process is an effective means of resolving problems quickly and
informally and substantially reducing the number of issues which need to
be processed through the formalized complaint system and the courts."
Hampton letter, supra note 7. On the other hand, there may be some
question whether complainants are fully informed at this stage of the
nature of the discrimination they may have experienced or of the relief
to which they may be entitled. Ralston interview, supra note 216.
V r »■ ..«»qririfts.
67
In the past, from 10 to II percent of all informal complaints
developed into formal complaints:
Fiscal Year 1972
Fiscal Year 1973
Fiscal Year 1974
Number of Persons
Counseled_____
16,883
26,627
31,484
Number of Formal
Complaints
1,834 (11%)
2,743 (10.3%)
3,435 (10.9%) 221
The vast majority of formal complaints in each fiscal year alleged race
discrimination, followed in frequency by allegations of discrimination
222
on the basis of sex, national origin, and religion.
When a complaint is filed, the head of the agency or designated
official may reject any portion of the complaint which is of a general 221 222
221. Memorandum to Irving Kator, Assistant Executive Director, CSC, from
Anthony W. Hudson, Director, Office of Federal Equal Employment Opportunity,
CSC, Aug. 23, 1974. Approximately 35 to 45 percent of the informal complaints
were followed by some "corrective action," but not necessarily any specific
relief to the complainant. Id. An analysis of corrective actions taken by
agencies in fiscal year 1973 found that these measures most frequently con
sisted of an "improved personnel practice," promotion, reduction or rescission
of adverse action, training opportunities, or reassignment. The next most
frequently occurring corrective actions were reinstatement, priority consid
eration for promotion, improved EEO practices, and removal of adverse material
from official personnel folders. Telephone interview with Anthony W. Hudson,
Director, Office of Federal Equal Employment Opportunity, CSC, Nov. 25, 1974.
222. Race discrimination complaints represented 68.4 percent of the total
formal complaints in fiscal year 1972, 61 percent in fiscal year 1973, and
60.3 percent in fiscal year 1974. The respective figures for the other
bases were as follows: sex-female, 16 percent, 20 percent, 21.7 percent; sex-
male, 3.6 percent, 4 percent, 6.3 percent; national origin, 9.1 percent,
10 percent, 9.5 percent; religion, 2.6 percent, 5 percent, 4.3 percent.
Hudson memorandum, supra note 221. The Commission's tabulation of
complaints did not indicate the number of complaints alleging both sex
and race or national origin discrimination.
7c
*1
.1 ^
68
nature and not related to the individual.
223
In fiscal year 1974, 10
percent of final complaint dispositions reported by agencies were rejections
224
of complaints. The Commission has not issued clear guidelines
specifying what types of allegations are "unrelated" to an individual
225
complaint. It has consistently held, however, that complaints
alleging discrimination against a particular class of employees, of
which the complainant is a member, are not within the purview of the
226
standard complaint procedures. In contrast, class and individual
i H
: if.
223. 5 C.F.R. § 713.215. The complainant may challenge such a rejection
Dy appealing to the Commission or by filing a civil action. Id.
224 • oof 2,650 disP°sitions> 265 were rejections. Hudson memorandum, note 221. *
225' ^he Commission has merely indicated that allegations of discrimination
which do not fall within the purview of the regulations are those not filed
by an employee or applicant for employment in the agency where the act
occurred, do not relate to an employment matter over which the agency has
jurisdiction, or are not based on race, color, sex, religion, or national
origin FPM Letter No. 713-213, Sept. 21, 1973. The Commission has indi
cated that each complaint must be considered on its own merits. What may
6 a? unrelated' allegation in one complaint may well be the core of another
complaint. Hampton letter, supra note 7.
226. See, for example, Appeals Review Board, Decision in Case No. 713-74-275
Dec 10, 1973. The complainant alleged that an agency policy of controlling ’
grade escalation, which applied to only two job classifications, was discrimi
natory on the basis of sex, since virtually all employees in the two classi
fications were women.^ The complainant was an employee in one of the two
job categories. Similarly, a Native American employee denied a promotion
tiled a complaint alleging discrimination against Native Americans in pro
motions; the class allegation in the complaint was rejected. Appeals Review
Board, Decision in Case No. 713-74-289, Dec. 17, 1973. Since the Commission
does not permit the regular processing of class-wide complaints, some Federal
district courts have held that a class action law suit is barred. See e g
V S=hlesinSer> N°- 1689-73 (D.D.C. Aug. 9, 1974). -In No^mbeTl974,
the NAACP Legal Defense and Educational Fund filed a lawsuit challenging the
Commission s practice of severing class allegations from individual complaints.
V ‘ UnLted States Civil Serv. Comm'n, Civil No. 75-1694 (D.D.C. Nov. 20
1974). See also, letter from William P. Berzak, Chairman, Appeals Review
Board, to Allen Black, NAACP Legal Defense and Educational Fund, Oct. 18 1974
w ich affirmed that the Commission does not permit individuals to include class
discrimination allegations in their individual complaints.
8c
■V-r . v
‘Ac-
discrimination claims under Title VII have historically been treated
simultaneously, since the Federal courts have long held that employ-
227
ment discrimination is, by definition, class discrimination. From
the complainant's standpoint, severance of class issues from the
individual claim in the administrative process can be extremely
detrimental because it may preclude collection and introduction of
evidence relating to the class which may be highly material to the
228
individual's case.
The rule of rejecting portions of complaints not previously
raised also appears to be contrary to the historic treatment of
'̂ 11 complaints. Charges before the EEOC have generally been
broadened, where appropriate,• to encompass like and related issues
229
to the one raised by the charging party. This practice was adopted
by EEOC and upheld by the courts on the grounds that victims of
employment discrimination most often do not comprehend the complex
230
sources of that discrimination. There is no reason to believe that
Federal employees are any different. 227 228 229 230
6 9
I 227. See, ej*., Oatis v. Crown Zellerbach, 398 F.2d 496, 499 (5th Cir.
1968); Jenkins v. United Gas Corp. 400 F.2d 28, 33 (5th Cir. 1968).
228. Interview with Roderick Boggs, Federal Employment Project, Washington
Lawyers Committee for Civil Rights Under the Law, Mar. 19, 1974. in
private employment discrimination cases, statistics showing the relative
status of the entire class are relevant to the individual discrimination
complaint. McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
229. See, e ^ . , Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.
230. |ee, e^£., Danner v. Phillips Petroleum Co., 447 F.2d 159, 161-2
(5th Cir. 1971). Although matters not expressly raised by the Federal
employee in the informal complaint may be rejected from the formal complaint,
matters not expressly raised in the formal complaint may be subsequently
investigated if they relate to the "work situation." 5 C.F.R. i 713.216(a).
70
If a complaint is not rejected, it is then the responsibility of
the agency's Equal Employment Opportunity Officer to provide for the
complaint investigation. Complainants are not given the right to
influence the scope or method of the investigation. The regulations do
not require that investigators be certified or trained in employment
discrimination matters, but only that they be employees from a part of the
agency not subordinate to the^agency official in charge of the unit in
which the complaint arose. Until September 1974, the Commission pro
vided agencies with investigators on a reimbursable basis. Effective
September 3, 1974^agencies were required to assign their own staffs to
investigations. Thus, despite congressional concern expressed in 1971
that there was an inherent bias in the complaint investigation procedures,
Commission regulations still provide that the investigation be conducted by
234 *
employees of the allegedly discriminatory agency.
231. 5 C.F.R. § 713.216.
or management’analysts. FPM Letter^'H3 SOnnel ma^gement specialists,
and" April ™ T 34! }974' «°™var, between September 1973
of egenires ^ “ “ “ f ^
of 62 complaint instigation. b e s a e “ f
a S i r S i S - i - a S '
reevaluate its regulaSi^Sro^dl^fo^inTOSt-igatioM^ SerViCe Commission
“b°“b “>»
5 S ls bJ - a .'s sa sd s -p r^
10c
i
71
Commission regulations further provide that the investigation include
a thorough review of the general work environment in which the complaint
arose and a comparison of the "...treatment of members of the complainant's
group identified by his complaint as compared with the treatment of other
employees in the^organizational segment in which the alleged discrimination
occurred--- " This provision ignores the possibility that the complaint
may have arisen in an organizational segment in which there was discriminatory
segregation of one class. it further militates against proper analysis
of the work force, since the complainant's group is to be compared with
the aggregate of all other groups rather than with each separate group,
In addition, the term "organizational segment" is not defined to
indicate clearly how broad or restricted the investigation should be.
The Commission issued guidelines in 1971 explaining in more detail
. 238
how complaint investigations are to be conducted. These investigation
guidelines suffer from a number of deficiencies, only a few of which
235. 5 C.F.R. § 713.216.
236. For example, a complaint may arise in an all-female clerical pool or
in an all-black mail room. The Commission does not believe this provision to
be deficient because the term "organizational segment" may be interpreted very
broadly. Hampton letter, supra note 7.
237. An analysis might find, for example, that 40 percent of minorities
and 20 percent of nonminorities are concentrated in the lowest four grades.
If the complainant is a minority female, the investigation should compare
the condition of minority females separately with that of nonminority females
minority males, and nonminority males in order to determine the disparity
between the status of minority females, and the other groups. In a typical
situation, this analysis would find that 50 percent of minority females,
40 percent of nonminority females, 30 percent of minority males, and 5
percent of nonminority males are concentrated in these grades. Thus, the
disparity between the complainant's group and the group with the best
status is a difference of 45 percent, rather than 20 percent. For data
showing the composition of the work force in the lowest four grades, cross-
tabuiated by race and sex, see CSC, Manpower Statistics Division, Bureau
of Manpower Information Systems, Federal Civilian Personnel Statistics:
Federal Civilian Employment by Minority Group and Sex, Nov. 30, 1972.
^ y e®-̂ iSatin2 Complaints of Discrimination in Federal Employment, CSC,
Uct. 1971 /hereinafter cited as Investigation Guidelines/.
lie
WOuld ^eliminated in revised draft guidelines circulated in November
1974. The most serious deficiency in the current guidelines is their
failure to include a correct definition of the meaning of discrimination.
The guidelines implicitly adopt a definition limiting discrimination
240
to overt acts or patterns of "unfair treatment." The guidelines in
241
draft stage in 1974 did not correct this deficiency, despite the well
established rule under Title VII that illegal discrimination includes
not only disparate or unfair treatment, but also neutral treatment which
had a disparate effect on any ethnic, racial, or sex group, unless justi-
242
fied by some compelling, nondiscriminatory purpose.
Second, the guidelines generally limit the scope of the investigation
to the actions and decisions of the allegedly discriminatory agency
official^and to the organizational segment in which the complaint
arose. The proposed new guidelines would permit extending the investi-
72
InvesCi§ation Guidelines (undated), provided by Mr. Anthony W.
1Q74°^l— i:fecP°r > Office of Federal Equal Employment Opportunity, CSC, Nov. 1
1974 /hereinafter cited as Draft Investigation Guideline?/. ’
The CUrT C ?uidelines state ^ a t the investigation should be suffi-
shoul^deri enS1VR unc0ver a°y evidence of overt discrimination and should develop enough information to bring out...any pattern of nonselection
t ^ r f v i L n c r o T d L emb^ S °f ^ COmPlainant's group which might consti- at 5 crimination.... Investigation Guidelines, supra note 238,
l i l L / i t draf Suidali"es state that "A pattern of discrimination is estab
lished by evidence which shows disparate treatment of members of the com-
3 SrouP when compared with the treatment of members of other groups."
Draft Investigation Guidelines, supra note 239, at 29-30. 243
242. Griggs v. Duke Power Co., supra note 114.
243. Investigation Guidelines, supra note 238, at 9. This limitation can
operate severely to the disadvantage of the complainant, since statistical
evidence based on the agency as a whole has been held to be highly material
to an individual s case._ See, for example, Robinson v. Warner, No. 1654-23
24 ? L?74) ln whlch the court supplemented the administrative
Su^ . fWlth statisticai evidence based on the entire Navy Command Systems
Support Activity and reversed the agency's final determination of nondiscrimination.
12c
73
gation to other units under the same administrative jurisdiction but not
244
to the agency as a whole.
Third, the guidelines on investigating complaints arising in the
selection or promotion process fail to include essential instructions
on investigating a personnel action. The guidelines merely instruct
the investigator to list the name, sex, race, or ethnicity of each of
the candidates and their relative ranking. There are no instructions
to investigate the possibility of systemic discrimination in the ranking
itself or in the process by which candidates were placed on the certificate
245
list of eligibles. The proposed new guidelines indicate that the
investigator should "...consider the need for looking into the reasons
why the complainant did not appear on the certificate or was not rated
246
high enough to be within reach on the certificate," but they do not 244 245 246
244. Draft Investigation Guidelines, supra note 239, at 30.
245. Investigation Guidelines, supra note 238, at 15-17. The failure to
include such an analysis in an investigation can seriously injure the com
plainant. For example, a black female who was the only black in her divi
sion and who had been passed over for promotion three times and for training
opportunities two times was held not to have been subjected to race discrimi
nation on the grounds that the selection panel's decision was based on
"documentary appraisals and evaluations" and the personal knowledge of the
candidates by the three panel members, two supervisors and the selecting
official. Appeals Review Board, Decision in Case No. 713-74-284, Dec. 13,
1973. Race discrimination can easily occur in supervisors' appraisals of
employees. See, e.g.. Rowe v. General Motors, 457 F.2d 348 (5th Cir. 1972).
Yet, the Commission made the decision in the above case without any indi
cation that an investigation had been made of the evaluations and ratings
given black applicants and employees by the agency. The Commission main
tains, however, that the procedures for investigating promotion actions
are adequate because they determine how and why each candidate is ranked.
Hampton letter, supra note 7.
246. Draft Investigation Guidelines, supra note 239, at 11.
13c
74
include instructions on the method by which this investigation should
247
be conducted. Neither the current nor proposed guidelines contain
any instructions concerning the investigation of qualification standards
which may have had an illegally discriminatory effect on the complainant. 248
Finally, both sets of investigation guidelines suffer from extreme
vagueness. For example, both instruct the investigator to determine
whether there exists "...any improper segregation of personnel by reason
of their membership in the group alleged to have been discriminated
249
against," but there is no explanation of the meaning of the term
'improper." Similarly, the investigator is instructed to collect
information about the agency's merit promotion plan and procedures,
250
if needed for an understanding of the case." However, there are no
criteria included for determining the relevance of such information,
or for evaluating a merit promotion system to determine compliance
with the dictates of Title VII. 247 * 249 250
247. Id. at 39-43.
248.^ In reviewing individual complaints, the Commission does not consider
the job relatedness of a particular selection standard which rejected the
complainant. The draft guidelines propose to prohibit the inclusion in the
investigative file of any Commission Job Element Guides or rating schedules
Id. at 15. This information could be essential to challenging the job
relatedness of a qualification standard.
249. Investigation Guidelines, supra note 238, at 10; Draft
Guidelines, supra note 239, at 31. Investigation
250. Investigation Guidelines, supra note 238, at 17; Draft
Guidelines, supra note 239, at 42. Investigation
14c
guidelines In draft stage as of November 1974 contained
two distinct improvements over the current guidelines In that they
emphasized the Importance of the investigator’s maintaining independence
from the agency’, official, ,„d that they permitted the investigator to
collect information relevant to a basis discrimination other than
that charged by the complainant. The revisions to the 1971 version of
the Guidelines .ere prepared without consulting with despite
a clear request from Congress in 1972 that the Commission
obtain EEOC' s advice on equal employment matter,254
75
g u U e S f . ' S r p ^ i b U ^ c I f l " ; , ^ 239> “ 1 2 ’
the investigative file to these o ^ l s ’L ' S ^ S v ' . s t ^ t L T Id.
S p o J n t ? ' , ^ , u T l ? u « o S fle?lbillt2 “ i-vestigator is
basis of discrimination, e g ™ d i s L L C°mM C° allege oneshe or he may be the vict-tm^f discrimination, when in fact7 the victim of race or ethnic discrimination as well.
253. Hudson telephone interview, supra note 221 r . .
with representatives from agency i m ^ a l EEO Commission consulted
representatives from EEOC. However the Con™/ ?S ^ lncludin8
tha EEOC Office of Compliance. Hampton let” r " f 7“ "*0lt “lth
d5icatid8iha?tEEOCI,™.“ ry: S 1 2 ,""' 42’ “ 42s- Tha Commission's staff in-
acn “ •Federal investigations. According to the Commission's staff
received “sPp̂ a«“SSn“"hfc V°°k f” th“ “ "̂iduals
ihvestigatioL ^ " K e ^ S d ’p ^ r i ” t o ^ ^ L J t S I S J l s u L f *
noteTll “Vor'Vd'if “ * "h°fU ’ telaphone interview, supra
EEOC^ inve'stigationi i n s e e chapcirl/THfr..
types of info™ J ’ appear t0 entail Election of bothC W r « = o . 5 ™ J10n' There is a strong reason to believe that
like that ofSEEOC 3ppr°ach of the Commission be more
the
H is to r y , ^ u p r a ^ o t e ^ ^ i t ^ 2 ^ ° th er eqUal “ “P ^ ^ e n t programs. L e g is la t iv e
76
Commission regulations require the agency to make a second attempt
to resolve the complaint informally following the completion of the
255investigation. If an adjustment of the complaint is not obtained, the
complainant is to be notified of the proposed disposition by the agency
2
and of the right to request a hearing within 15 days of the notification
In fiscal year 1974, slightly less than 25 percent of the complainants
, J 257whose cases were decided had requested and received a hearing.
258
Hearings are closed proceedings conducted by a complaints
259
examiner, who is certified by the Commission and who must be an employee 255 256 257 258 259
255. 5 C.F.R. i 713.217(a). The complainant is entitled to review the
investigation file.
256. 5 C.F.R. § 713.217(b).
257. Hearings were held in 643 of the 2,650 cases which received final
dispositions during fiscal year 1974. Hudson memorandum, supra
note 221 ; Hudson telephone interview, supra note 221 •
258. Only persons directly connected with the complaint may attend.
5 C.F.R. § 713.218(c)(1). However, the allegedly discriminatory
official is not entitled to be present. Discrimination Complaints
Examiners Handbook, Office of Federal Equal Employment Opportunity,
Apr. 1973, at 36.
259. 5 C.F.R. § 713.218(a). Complaints examiners must meet the
qualifications established in the Commission's GS-930 (Hearings and
Appeals) Series, which is applicable to most hearing officer positions
not subject to the Administrative Procedure Act. A law degree is not
required but may substitute for work experience in adjudicating cases.
Expertise in Title VII law or employment discrimination matters is not required.
Memorandum to J. Philip Bohart, Acting Director, Personnel and Labor Relations
Division, from H. Alan McKean, Chief, Standards Division, Apr. 1, 1974. This
certification standard was adopted in conjunction with a reorganization of the
employee appeals system within the Commission and the establishment of the
Federal Employee Appeals Authority. The reorganization primarily affected the
system through which employees appeal adverse personnel actions and did not
change any of the appeal provisions pertaining to discrimination complaints.
CSC, New Federal Employee Appeals System (undated).
16c
* m * t£ S L £ u ftH S S i* -^ d n rn«ak> .4k*
77
260
from another agency except in unusual circumstances. The complainant
261has the right to be represented by counsel and to cross examine
witnesses but not the right to obtain information other than that
262
collected by the agency or to subpoena documents or witnesses. The
hearing is not to be an adversarial proceeding but rather an extension
263of the investigation.
To assist complaints examiners, the Commission issued an examiner's
handbook in April 1973, which gives instructions on preparing for and
conducting a hearing, admitting and evaluating evidence, and writing
264
recommended decisions. Although the Discrimination Complaints 260 261 262 263 264
260. Where an agency is prevented by law from disclosing to persons
without security clearances information concerning the matter complained
of, the complaints examiner may be an employee of the agency. 5 C.F.R.
§ 713.218(a).
261. With respect to representation by counsel, the Commission on Civil
Rights recommended in 1970 that free legal assistance be provided on re
quest to all employees who require it. Enforcement Effort report, supra
note 147, at 358. The Civil Service Commission has not implemented such a
program in the ensuing 5 years.
262. The complaints examiner has the authority to require agencies to
produce witnesses requested by the complainant when the complaints
examiner determines that the testimony is "necessary" and where it is
not "administratively impracticable" for the agency to comply with the
request. 5 C.F.R. i 713.218(e). Both the agency and the complainant
have the right to submit evidence in the form of documents, affidavits,
or testimony of witnesses. Discrimination Complaints Examiner Handbook,
suPra note 258, at 85, 87. The complainant may also request that the
examiner request evidence or testimony. If the examiner denies the request,
reasons must be given in the record.
263. Discrimination Complaints Examiners Handbook, supra note 258, at 5.
See also, letter from Robert E. Hampton, Chairman, CSC, to Arthur F.
Sampson, Acting Administrator, General Services Administration, June 18, 1973.
264. Id.
17c
Examiners Handbook was issued more than a year after Title VII became
applicable to Federal employment, it contains no guidelines or information
265
on substantive Title VII law. In addition, the Handbook's instruction
concerning the meaning of discrimination and questions of burden of proof
are contrary to the weight of authority under Title VII. The Handbook
describes discrimination exclusively in terms of disparate treatment^and
provides that complainants have the initial burden to present evidence of
disparate treatment. The weight of Title VII law, however, does not place
the burden on plaintiffs to show disparate treatment; instead, plaintiffs
are held to make out a firima facie case of illegal discrimination by pre
senting statistical evidence showing a disparity in the employment status of
u . . . 267t e alleged discnminatees and other employees. The Commission's hand
book does not indicate that Federal Title VII complainants have access to
268is procedure in the context of the administrative hearing. If the
record establishes that disparate treatment has occurred, then
the examiner is instructed to view the evidence most favorably to the
agency and to make a finding of discrimination if a reasonable mind
could not infer from the evidence so viewed that the agency's action
was free from discrimination on the basis of race, color, sex, religion,
265. The Commission does,
for complaints examiners. however, provide a digest of Title VII cases
Hampton letter, supra note 7.
266. Id. at 57, 62. As noted on d 72 snnra u tt , '
diS»“ “ • " • — « *«* " £ £ £ £
267. See , McDonnell Douglas Corp. v. Green, supra note 71» ■
BeU l̂ep“ ":lCo?^13C"li'4|ff|tr ^ r 2l570)'h“ ̂
S r “ sh°”
routinely affirmed by the Appeals RevL» Board See f . ?ra
Board Decision in Case No. 713-73-593 (June 14,' 1973)7^*’ APP6alS Review
. w • ifc*-ulr'V
79
269
or national origin. In short, the instructions lead a reasonable person
to believe that the complaints examiner is instructed to a p p l y a standard
which gives the benefit of the doubt to the allegedly discriminatory agency.
The findings and recommendations of the complaints examiner are
not binding on the agency unless the examiner recommends a finding of
discrimination and the agency has not issued a final decision within
270
180 days after the complaint was filed. If the agency rejects or
modifies the decision recommended by the complaints examiner, or if
the agency's decision is made when a hearing is not requested, it
must set forth the specific reasons for its final action.271 During
fiscal year 1974, 7 percent of final agency dispositions made a
272finding of discrimination.
269. Discrimination Complaints Examiners Handbook, supra note pso at
62. The Handbook states as follows:
Where the record shows disparate treatment, the
Examiner must then evaluate the evidence and
assemble the facts which tend to establish a case
free from discrimination based on the complainant's
race, color, religion, sex, or national origin. If a
reasonable and unprejudiced mind could not infer from the
facts so assembled that the agency was free from discrimi
nation in the matter, then the Examiner should make
a finding of discrimination. Id.
270. 5 C.F.R. § 713.220(d); 8 713.221(b).
271. 5 C.F.R. § 713.221. However, the Commission has held that an agency's
failure to provide specific reasons for its action does not invalidate the
decision if the ARB provides reason's in its review. Minutes of Civil Service -
Commission, Feb. 27, 1974, declining to reopen Appeals Review Board Decisions
Nos. 713-73-595, 713-74-179, and 713-74-43.
272. A finding of discrimination was made in 170 of 2,650 dispositions.
Hudson memorandum, supra note 221. Final dispositions include rejections
or cancellations of complaints. Findings of discrimination
constituted 12.8 percent of all decisions on the merits. Complaints
examiners made findings of discrimination more frequently than did
agencies. In the 643 cases which went to a hearing, complaints examiners
recommended a finding of discrimination in 109 (16.9 percent) cases.
Agencies adopted contrary findings in 26.6 percent of these cases. CSC, Office
of Federal Equal Employment Opportunity, Performance by Agency and CSC Complaints
Examiners in EEO Discrimination Complaint Cases During FY 1974 (undated).
19c
■dafc- MfeM.it i
80
Commission regulations require that agencies proceed with the
processing of complaints without "undue delay" so that complaints are
resolved within 180 days after filing, including time consumed by a
273
hearing. However, in fiscal year 1974, the Government-wide average
time spent processing a complaint was 201 days, which was 26 days
. 274
longer than that of fiscal year 1973. Some major agency complaint
275processing procedures averaged well over 300 days. 273 274 275
273. 5 C.F.R. § 713.220.
274. Memorandum to Irving Kator, Assistant Executive Director, CSC,
from Anthony Hudson, Director, Office of Federal Equal Employment
Opportunity, CSC, Precomplaint Counseling and Discrimination Complaint
Activity During Fiscal Year 1974, Aug. 23, 1974. Agencies whose
average complaint processing time in fiscal year 1974 exceeded 180
days were as follows: Department of Agriculture (214 days); Department
of the Army (211 days); Atomic Energy Commission (317 days); Department
of Commerce (256 days); Defense Contract Audit Agency (307 days); Defense
Supply Agency (211 days); Environmental Protection Agency (259 days);
Equal Employment Opportunity Commission (296 days) Federal Communications
Commission (856 days); General Services Administration (212 days);
Department of Health, Education and Welfare (367 days); Department of
Housing and Urban Development (369 days); Department of the Interior (197
days); Department of Justice (250 days); Department of Labor (253 days);
National Aeronautics and Space Administration (254 days) ; National
Labor Relations Board (296 days); Selective Service System (370 days);
Small Business Administration (252 days); Department of Transportation
(395 days); U.S. Information Agency (238 days); and U.S. Postal Service
(189 days). Agencies whose average complaint processing time in fiscal
year 1974 met the 180-day limit were as follows: Administrative Office
of U.S. Courts, U.S. Air Force, Army and Air Force Exchange, Civil
Service Commission, Commission on Civil Rights, Federal Maritime
Commission, General Accounting Office, Government Printing Office,
National Guard Eureau, National Science Foundation, Department of the
Navy, Office of Management and Budget, Smithsonian, Department of State,
Tennessee Valley Authority, Department of the Treasury, and Veterans
Administration. During fiscal year 1974, there were no complaints
filed against ACTION, Agency for International Development, Civil
Aeronautics Board, Defense Communications Agency, Defense Intelligence
Agency, Defense Mapping Agency, Defense Nuclear Agency, Federal Power
Commission, National Gallery of Art, National Mediation Board, National
Security Agency, Office of Economic Opportunity, or U.S. Soldiers Home.
275. See, for example, HEW, HUD, DOT, cited in note 275 supra.
20c
81
Iltla VII authorizes the Federal complaint to file a civil
attic la B.S. district tourt If the ag.ncy does sot ..he a decision
within 180 days or within 30 days of the final agency action” 6.
co.pl,leant .ay delay civil action by appealing to the Commission's
Appeals Review Board for a review of the record8 In fiscal year
1974, approximately 30 percent of agencies' final dispositions of
complaints were appealed to the Appeals Review Board’ I„ approxl-
.ately 75 percent of these cases, the agency decision finding no
days af terminal agency Action o^f filed Wlthin 30
the-'complainant elects to appeal to the Co^Sslo'n'1”8 C°""1SSl°1’ 1£
and" Review^consist^of nine8’ f?merly called the Board of Appeals
the CotM lsilon. lo a r d . S h e r s " r e rcareP° in t *8 , by Chal™“ ° £at the pleasure of t-he ry, • career civil servants who serve
consisted^ 6 angle o f °f " " I * ' 1574> th« Bd“ dand 1 black female Th* r ’ V * u male’ 1 Spanish surnamed male,
are assisted by a ' t a S of?! *U °f ^ are «torneysNone of the staf? ov bL J l “ d 15 clerical workers,
previous experience in Title^I^-Law**5 In November 1974, had had any
Chairman, Appeals Review Board, Nov. ‘7 , 197™ 16” W“ Wllliam Berzak,
wUl receiveSwrittenharg^nentearir‘SHRef°re the Board« although it
below. 5 C.F.R. 9 713.234; Berzak'inte^ew? s u p M ^ t e
yoard8d°ur̂ gtfiesc2’r y0efrinia9174d i i t 0 the
Production:5 E E O ^ p L i s ^ ^ ^ and
2 1 c
82
f
;
ji»
3
discrimination or rejecting the complaint was affirmed. In slightly
more than 10 percent of the cases, the Board remanded the complaint
281
to the agency for further investigation, and in approximately 7 percent
282
the appeal was cancelled by the complainant. The Board reversed
agencies' rejections of complaints and findings of no discrimination in
283
5.5 percent of the total decisions rendered.
The Board reviews the record to determine if it shows that the complainant
284
was subjected to disparate treatment. It does not consider discrimination
in the form of disparate impact. If disparate treatment is shown, the
burden is then shifted to the agency to come forward with evidence 280 281 * 283 284
280
280. 575 of 778 Board decisions affirmed agencies' decisions finding
no discrimination or rejecting the complaint. In fiscal year 1973,
585 of 692 Board decisions (or 84.5 percent) affirmed agencies'
decisions. Appeals Review Board, Receipts and Production, supra
note 279.
281. 82 of 778 Board decisions were in this category. In fiscal
year 1973, only 3.6 percent of Board decisions (25 of 692) remanded
cases to agencies. Id.
282. _Id_. In 1973, only 1.4 percent of Board final dispositions were
the result of cancellations by complainants.
283. _Id. In an additional two percent of the decisions, the Board
recommended that further corrective action be taken by agencies.
The remaining decisions reversed agency decisions on the grounds
that improper procedures had been followed (.8 percent) or rejected
the appeal as untimely (.5 percent).
284. The Board's definition of "disparate treatment" appears to be
extremely narrow. It has held, for example, that "favoritism" is
not a form of discrimination prohibited by law or regulations.' Appeals
Review Board Decision in Case No. 713-74-285, Dec. 17, 1973, wherein
the complainant alleged that supervisors showed favoritism to white
employees.
83
that the treatment was justified by some lawful purpose, such as
Commission or agency qualification standards. An agency's decision
finding no discrimination will be upheld if the evidence in the record
supports the conclusion that the disparate treatment was justified.285
The Board does not follow or refer to judicial decisions interpreting
the substantive or procedural requirements of Title VII, nor does it
Although it is well settled, under Title VII law that the complainant
need not show direct proof of intentional discrimination and that a statistical
disparity shifts the burden to the employer to show evidence of non-discrimi
nation, the Board does not apply this standard. In one case decided in 1973,
the Board correctly followed this standard but was reversed by the Commission^
The 1972 Amendments to Title VII gave the Commission express
authority to order reinstatement, back pay, and other relief to persons
288
found to be victims of discrimination. Commission regulations provide
sion, Nov. 14, 1973, reversing Appeals
are largely ad hoc dispositions
mission or any substantive rules
‘airman, Appeals Review Board,
not sufficiently complete,
ions but merely makes
288. 42 U.S.C. g 2000e-16(b).
23c
that a person denied employment or promotion shall be given priority
consideration for any existing vacancy where the record shows that
289
discrimination existed when the selection was made. However, such
persons are not entitled to back pay or other retroactive relief
unless the record shows that the person would have been selected
290
but for the impermissible discrimination. The Commission's rule,
which places a heavy burden of proof on complainants seeking retro
active relief, is completely contrary to the weight of Title VII
case law, which holds that once discrimination has been found, the
employer has the burden of showing that the victim would not have
291been selected even in the absence of the illegal discrimination.
As a result of the Commission's restrictive interpretation of the
84
289. 5 C.F.R. i 713.271.
290. Id. Thus, the Commission has held that where sex discrimination
was found in the denial of a promotion to a female complainant, she
was not entitled to retroactive relief, even though she was the top
ranked candidate for the position, on the grounds that she might have
been denied the promotion on grounds other than sex, since hiring
officials have some limited discretion. Appeals Review Board,
Decision in Case No. 713-74-437, Mar. 14, 1974. Similarly, where
racial discrimination was found in the ratings made by a promotion
panel, the black complainant, who was ranked second best, was not
given back pay or other retroactive relief, since the record did
not ^how that but for the ratings, the complainant would have been
selected. Appeals Review Board, Decision in Case No. 713-74-277,
Dec. 10, 1973.
291. See, e.g., Pettway v. American Cast Iron Pipe Co., 494 F.2d 211
(5th Cir. 1974). In late 1974, a Federal district court ruled that
the Commission's standard on retroactive relief was improper. Day v.
Weinberger, No. 74-292 (D.D.C. Nov. 4, 1974). The Commission maintains
that its position comports with a decision by the Court of Claims in 1971,
Chambers v. United States, 451 F.2d 1045 (Ct. Cl. 1971). Hampton letter,
supra note 7. However, the district court in Day v. Weinburger specifically
noted that the Chambers decision was no longer applicable because it was
rendered prior to the passage of the 1972 amendments to Title VII.
24c
85
remedial authority it has been given in Title VII, full relief is
rarely provided to discriminatees. In fiscal year 1973, retroactive
relief was provided in 22 (or 3 percent) of 778 cases in which action
292was taken to correct discrimination.
Thus, it is clear that Federal Title VII complainants face
severe disadvantages throughout the complaint process. The
allegedly discriminatory agency not only has control over the content
of the complaint's allegations but over the investigation as well.
Whlle t2 93COmplainant h3S 3 right t0 a hearinS before an independent
examiner, the complainant's rights are limited in that proceeding, and
the finding of the hearing examiner is not binding on the agency in
most cases. The final decision made by the allegedly discriminatory
agency is appealable to the Commission, but is not subject to a review
according to Title VII case law. More importantly, the substantive rights
guaranteed under Title VII, as well as important Title VII evidentiary and
procedural rules, are not available to the Federal complainant. Finally,
when a civil action is filed in court, the complainant may well not be
292. Hudson telephone interview, supra note 221. Hampton letter, supranote 7. — c—
293. Since complaints examiners are paid by the allegedly discriminatory
agency, an argument could be made that the examiners are not totally
independent. Discrimination Complaints Examiners Handbook, supra note 258.-
The Commission emphasizes, however, that the examiner is referred by the
Federal Employee Appeals Authority which is reimbursed by the agency for
the examiner's service. Thus, the examiner is not paid directly by the
agency. Hampton letter, supra note 7.
25c
86
given a full trial, but only a review of the administrative record.
Three years after the passage of the 1972 Act, it did not appear that
the extension of Title VII to Federal employment had led to any mean
ingful changes in the handling of complaints or the substantive rights
295
of Federal employees to be free from discrimination.
294
294. As of April 1975, the courts were divided on the question of
whether Section 717(c) of Title VII, as amended, 42 U.S.C. § 2000e-16(c),
gives Federal employees the right to a trial de novo or only to a review
of the administrative record. See, e.g., Sperling v. United States, No.
79-1533 (3rd Cir. Apr. 18, 1975); Henderson v. Defense Contract Servs.
Administration, 370 F. Supp. 180 (S.D.N.Y. 1973) (holding that a right
to a trial de novo exists). Contra Salone v. United States, No. 74-1975
(10th Cir. Feb. 21, 1975); Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C.
1973), Appeal docketed, No. 73-2072, D.C. Cir. Oct. 17, 1973.
295. The Commission maintains that it is incorrect to state that
complainants face severe disadvantages throughout its procedures.
"The rights of the complainant," the Commission maintains, "are fully
safeguarded and the Commission standards are in fact more favorable to
the complainant than is required by the courts under Title VII pro
ceedings in the private sector." Hampton letter, supra note 7. In
addition, the Commission emphasizes that no Federal court has yet
found the procedures inconsistent with Title VII. Id.
26c
619
Chapter 1
FINDINGS AND CONCLUSIONS
Civil Service Commission (CSC)
1. The United States Civil Service Commission oversees and sets
standards governing the civilian personnel practices of the Federal
Government, which employs nearly four percent of the Nation's work force.
Title VII of the 1964 Civil Rights Act, as amended in 1972, prohibits
Federal agencies and departments from discriminating against applicants
or employees on the basis of race, color, religion, sex, or national
origin. Under Title VII the Commission is responsible for ensuring that
Federal employment practices are nondiscriminatory and for reviewing agency
affirmative action plans on an annual basis. In addition, the Commission
has been charged with enforcing Executive orders since 1965, which require
agencies to maintain complaint procedures as well as nondiscriminatory
practices.
2. It is the position of the Commission on Civil Rights that the
Federal Government should be bound by the same standards on equal employment
opportunity and affirmative action as govern the practices of all other employers.
However, CSC maintains that it is not required to adhere to the Title VII
guidelines established by the Equal Employment Opportunity Commission (EEOC)
for all other employers or to follow the affirmative action principles'
applicable to employers who are Federal contractors.
3. Although Congress expressed deep concern in 1972 that many of the
civil service employee selection standards appeared to be discriminatory,
the Commission has failed to carry out its responsibility under Title VII
27c
620
• • ,11, that all Federal examination procedures havingto demonstrate empirically that a n
nn minorities and women are manifestly related to job an adverse impact on minoritie
performance.
■ j -triiirlelines for demonstrating thea. The Commission has adopted guidelines
job relatedness o£ examination procedures which .re substantially weaker
th.» the guidelines of the Equal Employment Opportunity Commission. The
Supreme Court In 1971 gave great deference to the EEOC guidelines, which
lnwrs as Well as State and local governments, are applicable to private employers, as w e n
b . To screen applicants for entry Into major professional
and administrative positions, the Cohesion has developed a new anami
nation, the Professional and Administrative Career Examination (PACE),
which has not been demonstrated empirically to be related to job performance
or to lack cultural and/or sex bras.
u m . • nn has failed to conduct a systematic analysisc The Commission has raneu
to determine if it. procedures for evaluating and ranking candidates on the
basis of biographical information are discriminatory or to show empirically
that such procedures are job related. A study conducted by the General
Accounting Office in 1,73 included substantial evidence that these procedures
were not reliable indicators of job performance.
d. Federal law prohibits hiring officials from considering
any candidates other than the top three ranked individuals when hiring
from outside the civil service, this "rule of three" is required by
statute. Available evidence indicates that C S C ' , ranking procedures are
not reliable indicators of successful job performance and may, in fct,
screen out qualified candidates. Nevertheless, the Commission has
failed to recommend to Congress that the "rule of three" be modified
to permit consideration of all qualified candidates.
28c
e. The Commission has failed Co make recommendations Co Congress
with regard to modifying the requirement that veterans be given preference
in selection, although this provision has a clearly discriminatory impact
on women.
f. CSC prohibits agencies from making race, sex, or
ethnicity a criterion for selection of candidates even when agencies
are attempting to adhere to affirmative action goals to eliminate
the vestiges of prior discrimination.
4. The Commission's regulations governing complaint procedures to
be maintained by agencies deny Federal employees a full and fair considerati
of their employment discrimination grievances. The deficiencies in the
Commission's previous regulations which were criticized by Congress in 1972
persist in the regulations in effect in early 1975.
a. Strict time limitations imposed on complainants at each
stage of the process, as well as other prerequisites, pose serious barriers
to Federal employees in bringing complaints. These barriers are not faced
by employees who file discrimination charges before the Equal Employment
Opportunity Commission.
b. Complainants alleging a pattern or practice of discrimi
nation or discrimination on a classwide basis are not guaranteed the
right to a hearing or expeditious investigation.
c. The agency charged with discrimination has the principal
control over the framing of complaints, the investigation, and the final
decision on complaints brought by their employees or applicants.
d. The Commission's instructions on complaint investigations
suffer from a number of significant deficiencies, including the failure to
29c
"WfP,|Lg
622
define discrimination according to Title VII law and to provide adequate
guidance on detecting discrimination in the selection process. The guide
lines do not provide that complaint investigations consider whether general
personnel practices have had a disproportionately adverse impact on the
complainant’s group. New guidelines in draft stage as of November 1974
would not correct most of the deficiencies in the current instructions.
e. Complainants alleging an individual act of discrimination are
given the opportunity to have a hearing, but the hearing provided for in the
Commission's regulations is not considered by the Commission to be an adver
sarial proceeding. Neither substantive nor procedural Title VII law is required
to be applied. For example, Title VII case precedent, which holdg ^
statistical evidence of disparities constitutes a £rima facie violation of
the Act, is not followed in these proceedings. In addition, the complaints
examiner is instructed to apply a standard in making a determination which
gives the benefit of the doubt to the allegedly discriminatory agency. More
over, the examiner’s determination is merely a recommendation to the accused
agency, which has the authority to make the final determination,subject to
limited review by the Commission's Appeals Review Board (ARB) and discretionary
review by the Commission.
f. The Appeals Review Board, in issuing decisions on employment
discrimination matters, has not followed the substantive Title VII law and,
in some cases, has adopted interpretations of law inconsistent with Title VII.
g. Although Title VII provides Federal complainants the right to
file a civil,,action in Federal district court, a number of courts have limited
this proceeding to a review of the administrative record, while other courts
have permitted Federal plaintiffs a trial de novo.
30c
623
h. Although the 1972 Amendments to Title VII gave the
Commission additional authority to provide retroactive relief to
victims of discrimination, such relief appears to be provided in only
three percent of the instances in which action is taken to correct
discrimination.
5. The Commission's guidelines on agency affirmative action plans
are deficient and clearly inferior to similar procedures applicable
under Executive Order 11246, as amended, to private employers which are
Government contractors. In addition, the Commission's reviews of agency
affirmative action plans are inadequate.
a. The Commission's affirmative action guidelines fail to require
agencies to conduct adequate analyses for determining if underutilization
of minorities and women exists in their work forces, although such a require
ment is expected of all Federal contractors under Executive Order 11246.
b. In contrast to Government contractors, Federal agencies
are not required to establish goals and timetables for eliminating under
utilization of minorities and women. Although the Commission's statistics
indicate that serious underutilization of these groups exists in the higher-
level positions at most agencies, few voluntarily set goals and timetables
for eliminating these disparities. The Commission has failed to issue
adequate instructions on the proper development of goals and timetables.
Agencies which voluntarily establish objectives apf^ear to set them so low
as to preclude the agency from ever eliminating the underutilization which
it has identified. At least one agency established a hiring goal which
led to a decrease in the percentage of the class whose employment the
agency had intended to increase.
31c
624
c. The Commission fails to require adequate reporting on the
effects of affirmative action measures on the employment of minorities and
women; as a result, there is little, if any, evidence that affirmative action
plans are accomplishing meaningful improvement in the status of these groups.
d. Many agencies fail to submit their affirmative action plans
within the time required by the Commission, as well as fail to adhere to
the Commission's instructions on conducting assessments of equal opportunity
deficiencies. Of 17 national affirmative action plans reviewed, none included
adequate assessments. Nevertheless, the Commission approved the vast majority
of these plans without ordering any corrective revisions.
6. The Commission is responsible for conducting periodic reviews of agency
employment practices to determine compliance with all applicable laws and
regulations, including merit system requirements and Title VII. This evaluation
program suffers from a number of deficiencies.
a. The Commission evaluates no more than 15 percent of all
Government installations per year.
b. The Commission's guidelines for staff conducting evaluations
are inadequate. These guidelines do not give instructions for systematic
investigation to determine if agency hiring, placement, and promotion practices
have a disproportionately adverse impact on minorities and women.
c. A review of reports on 13 such evaluations found that the
Commission routinely fails to consider patterns and practices which may
constitute systemic discrimination. In addition, when the Commission found
discriminatory practices, it failed to order the agency to provide relief
to the victims of such discrimination, despite specific authorization to do
so in Title VII.
32c
I
APPENDIX D: U.S. CIVIL SERVICE COMMISSION DOCUMENTS
'' '
'm+'T V? '**./>* / ‘ V J
u ~L
U N IT E D . S T A T E S C IV IL S E R V IC E C O M M l,
six
W A S H I N G T O N . D .C , 204 1 5
APPEALS RE V I E W EOARD
_ f . . _
« (•., ,IH i r n i f t ■ TOI b / *i 1 ‘ I
ARB UIHO: ka
•— OTOSTrr 13, 19 7 A
»«.« UI1I1W
REGISTERED MAIL - RETURN RECEIPT REQUESTED
H r. Allen Black, Jr.
N.A.A.C.P. Legal Defense and
Educational Fund
Western Regional Office
12 Geary Street
San Francisco, California 94108
Before: McDonald, Tillman, and Roel,
Board Members. By majority
vote, Member Roel disagreeing
Dear Mr. Black:
This is in further reference CD your—a.ppeal to the Appeals Review
Board on behalf of Ms^Gloria A. Williams* from the decision issued
on Hay 17, 1974, by tnaJl/^distant AcRliihistrator for Equal Oppor
tunity Programs, National Aeronautics and Space Administration,
Johnson Space Center, which rejected portions of the complainant's
formal complaint of discrimination.
The record reveals that the complainant, a Clerk Typist, GS-4,
contacted an Equal Employment Opportunity Counselor on February 21,
1974, and submitted a formal complaint of discrimination based on ' :
race (Black) and sex (female) on April 29, 1974. In this formal
complaint the complainant contended that she had been discriminated
against relative to her non-selection for the position of General
Supply Specialist, CS-2001-5, in January 1974 and that she had been
discriminated against on a continuing basis relative to job assignments,
promotions, job classification, and opportunity for training. In
addition the formal complaint alleged as follow’s:
Also, I believe that females, as a class,
and minorities, as a class, have been and
are discriminated against because of the
Center's personnel policies and practices
as they pertain to recruitment, hiring,
initial assignments, job classifications,
merit promotions, training opportunities,
retention, and in the terms, conditions,
and privileges of employment.
In Its decision of May 17, 1974, the agency stated in part
Your complaint of discrimination, received
by the Office of Equal Opportunity Programs,
T H E ME RI T S Y S T E M — A G O OD I N V E S T M E N T IN G O OD G O V E R N M E N T
Id
2
A
has been accepted on the issues relative
to the allegations of discriminatory actions ̂
against you as an individual. Complaints
based on general allegations of discrim
ination against minorities as a class and
females as a class must be filed under
procedures outlined in the U. S. Civil
Service Commission Federal Personnel
Manual, Section 713.251 . . . .
The appeal to the Board concerns the agency rejection of the general
allegations of discrimination included in the formal complaint and
quoted above.
The Board has reviewed the record in this case and has determined
that the agency rejection of the general allegations of discrimination
was proper. In this regard the Board notes section 713.212 of the
Civil Service regulations which provides as follows:
(a) The agency shall provide in its
regulations for the acceptance of a
complaint from any aggrieved employee
or applicant for employment with that
agency who believes that he. has been
discriminated against because of race,
color, religion, sex, or.national
origin. . . .
(b) Sections 713.211 through 713.222 do
not apply to the consideration by an
agency of a general allegation of dis-
crimination by an organization or other
third party which is unrelated to an
individual complaint of discrimination
subject to section 713.211 through 713.222.
(Section 713.251 applies to general
allegations by organizations or other
third parties.)
There is no provision in the Civil Service regulations for the
processing of general allegations of discrimination within the
context of individual complaints of discrimination. General
allegations are not within the purview of section 713.212 of
2d
J
3
the Civil Service regulations and must be raised by an organization
or other third party under the provisions of section 713.251. The
agency has noted in its final decision that the acceptance* of the
complainant's individual complaint of discrimination would not
preclude the filing of additional allegations under section 713.251
and that it was continuing to process the individual and specific
allegations under section 713.212.
Based on the above, the Appeals Review Board hereby affirms the
final agency decision of May 17, 1974.
Civil Service regulations provide that decisions of the Board are
final and there is no further right of administrative appeal. How
ever, if the complainant is not satisfied with this decision, the
complainant is authorised by section 717 (c) of the Civil Rights Act
of 1964, as amended on March 24, 1972, to file a civil action in an
appropriate U. S. District Court within 30 calendar days of the receipt
of this decision.
For the Commissioners:
Sincerely yours,
U C i t u V 2>u a / &
William P. Berzak &
Chairman
cc:
Ms. Gloria A. Williams
3400 Luca #2
Houston, Texas 77021
Director of Equal Employment Opportunity
National Aeronautics and
Space Administration
Code U
Washington, D. C. 20546
3d
( / ! '3 \ v rr -- - -rn
VV '~ t av /
Subj cct:
From:
To:
3 \3
U N IT E D S T A T E S C IV IL S E R V IC E C O M M IS S IO N
WA S H IN G T ON , O.C. 20415
JAN 2 7 1975
Third-party At-ions of Discrimination
>/
I r v i n g KntbT
Assistant ExeJiW/rve Director
Directors of/E^iual Employment Opportunity
Directors of Personnel
i nav w *« »m« to
y o u * t m n H c t
Tlie foilowing, in question and answer format, is a discussion of
specific issues which have been raised recently ir. conr.ection
with the processing of third-party allegations of discrimination
under Section 713.251 of the Civil Service Commission's
regulations.
As a preface, some general observations regarding the intent and
proper use of the third-party provisions may be useful. It is
essential to distinguish between this procedure and the procedure
for individual complaints of discrimination. Attempts to
anologizc between the individual complaint procedures and the
third-party procedures can lead co contusion and should be
avoided.
The regulation pertinent to third-party allegations (Sec. 713.251)
provides for submission of "general allegations by organizations or
other third-parties of discrimination in personnel matters which
are unrelated to an individual complaint of discrimination ...."
VJe believe the language here is -self-explanatory with regard to
the nature of an allegation which may properly be brought through
the third-party procedure. Third parties can use this procedure
to call agency management1s attention to policies or practices
which they believe to be discriminatory. Such matters are handled
solely through an agency investigation and, at the request of the
third party, review by the Civil Service Commission.
Individual complaints of discrimination, on the other hand, are
handled initially on an informal basis (through prccomplaiut EEO
counseling), and then formally under specifically prescribed
procedures which include investigation of formal complaints with
testimony tahen in affidavit form; proposed resolution at the
conclusion of the investigation; hearings conducted by independent
examiners which are recorded verbatim; a final decision by the
agency; .and right of appeal by the individual complainant to the.
Civil Service Commission's Appeals Review Board.
TKC MERIT SY S T E M— A G O O D INVESTMENT IN G OOD G O VE R NM E N T
4 d
o
2
The third-party procedures are not intended as a way of obtaining
redre^ in individual cases without filing complaints personally
and agencies should make certain that the third-party procedure is Tot misused in this manner, e m i s s i o n regulations require that
individuals who believe they have been discriminated against and
who wish to seek redress will do so under the EEQ counse i ^ ,
discrimination complaint procedures provided for that purpose,
inlhis " l a r d « cooplainunt »ay bn represent..! by a pereon of his
or ter 0-1cl.oobi.n8. The third-party procedure, arc not Je.ignce
or intended to be used a substitute for the 0 9 c o u n s e l s and
complaint procedures.
Answers to specific questions, which
in light of the general observations
follow, should be
outlined above.
considered
Question 1: May a third-party allegation be filed by an
individual? HeTore accepting the allegation may the agency properly
require the third-party to demonstrate a reasonable interest oi
nexus in filing the allegation on behalf ot another person, „
of persons, or class of persons? May an agency cancel or reject a
third-party allegation if a party who has allegedly been the victim
of discrimination so requests?
Answer:' Any third-party, regardless of constituency or^stated
purpose, could be presumed to have a reasonable and ^ S ’-tima
interest in the equal employment opportunity program ot a 1ede.al
agency! and we see no reason to require the third-party to establish
a "nexus" for bringing general allegations regarding the agency s
p o l c l c s olpractices! As Tone as a lejltluct. third-party s t a n d s
L , . ,_t-i,-1 is as long as the allegations relate to genera .̂
Matters and arc not related to individual complaints--the regulation
does not preclude the filing of a third-party allegation y an
individual.
As the preliminary discussion points up, EEO counseling and discrimi
nation complaint^roccdures are available to individual employees or
applicants who believe they have been discriminated against, aid .
third-parties should not be permitted to circumvent these
procedures— with or without the consent of an aggrieve m i n u
through the tiling of a third-party allegation on a matter v. .ch
would be an appropriate basis or reason for f i l ^ g an
complaint of discrimination. Any third-party wno files aUeg.tion.
under these circumstances should be advised regarding the prog
channels for pursuing individual complaints and should be t n ^ d
that the third-party procedures arc h o l availaolc for thio p ? •
m sl.ould be noted that references herein to "individual" eonpUxnt.
include those in which two or core persons jointly file a complair
regarding the same action).
5d
u;
3
It is possible that a 'third-party might mention individuals' names
in citing examples of the kinds of actions on which general alle
gations regarding a personnel policy or practice are based.
Mentioning individuals in connection with a third-party allegation
under these circumstances docs not require the consent of those
individuals and if in fact a general practice of the agency is
being questioned, then the fact that an individual named on the
complaint as being affected requests cancellation is not material
and should not preclude investigation by .the agency. It should be
understood, however, that the agency investigation (or a Civil
Service Commission review) of general third-party allegations is
not expected to cover individual cases in sufficient depth which
necessarily would result in findings or decisions with respect to
those individuals; and to avoid any misunderstanding the agency may
find it desirable to inform the third-party, in acknowledging
receipt of general allegations which include reference to individ
uals, of individual complaint procedures if specific individual
relief is sought. •
Question 2 : Can an informal resolution meeting between
management and the third-party be required by the agency before
accepting a third-party allegation? liny informal resolution be
attempted at ot:hcr points in the process?
Answer: The termsformal" or "informal" are not relevant to
the resolution of third-party allegations. Resolution of s third-
party allegation may be attempted 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 writing so that a decision on the
allegations is provided to the third-party as required by the
regulations. A third-party cannot be required to meet with agency
management for the purpose of effecting resolution, however, although
wc think the practice of meeting with the complainants, particularly
after the investigation is completed, is a good one.
Question 3 : If a third-party allegation is filed on the basis
that a proposed or contemplated management or personnel action v.ill
have a discriminatory effect on a person, a group of'persons, or a
class of persons, may the agency postpone, cancel or reject the
allegation if that action is not implemented or implementation is
delayed? . . .
Answer: Generally speaking, decisions to take management
actions involving employees are made after due consideration for all
implications of the proposed actions and alternatives to these
actions, including their likely impact on the agency's equal employ
ment opportunity posture and after union consultation where appro
priate. Where this is done, and where the reasons for any proposed
4
or contemplated actions and their probable effects are explained to
employees who may be affected, third-party allegations of discrimi
nation are 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 allegation and this can be relayed to the
third-party in the agency's reply.
Question 4: May management, alleged discriminating officials
and/or alleged victims of discrimination have access to copies of
the third-partv allegation?" To whom may ■ the file be shown? rln>
that person be given the opportunity to comment upon the file prior
to the decision? After the agency decision has beer, made, is the
file an open record? If not, to whom may it be shown?
Answer: In a properly presented third-party matter there is no
reason why any party who is nentioned--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 are 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-party
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 nnd delivered to
the third-party. We see no reason, however, why the agency's copy of
the file could not be made available for reviev; by interested parties
after the case is closed, with any appropriate deletions where an
invasion of an individual's privacy might occur.
J
There are, incidentally, no procedural requirements for the inve.ti
garion of third-party allegations as there are in individual
complaint investigations. There is no requirement for - a m p l e
that evidence even be obtained and recorded in the form of ufiidavits.
The regulations covering third-party allegations are intended to
Ifford agencies maximum flexibility and opportunity to tailor tneir
investigative techniques and approaches to the situation in
case.
Question 5 : Are there any grounds upon which an agency may
reject a third-party allegation;
Answer: An agency would be justified in rejecting a third
party allegation if it were so vague as to make investigation
impossible! in such cases, however, the agency shoulu explain this
to the third-party and provide an opportunity for the allegation,
to be made more specific.
Agencies may also reject allegations which are not properly under
the purview of Section 713.251 of the Civil Service Commission s
regulations— i.e., do not allege that agency policies or practices
arc discriminatory on the basis of race, color, re igion, sex,
national origin, or those which should be processed as indivieu.-l
complaints.
Ouestion 5: Does the Commission anticipate assuming juris-
diction on third-party allegations when they are filed with the
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 communications to the Commission which arc not
specifically filed as third-party allegations under Section 71a.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
action is taken where it is indicated by the facts.
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We hope this discussion of specific issues will be helpful to you
in the processing of any third-party allegations which may arise
in your agency* And will help also in putting the thirci-p*-rty
procedure into proper prospective vis-a-vis the individual EEO
counseling and discrimination complaint process.
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UNITED STATES CIVIL SERVICE COMMISSION
BOARD OF APPEALS AND.. REV I EM
Washington, D.
D E C I S :
Indexed Under: N °* 71jf 73' ^
“ Uisorir.inntion, Allegation of (Re-
ligion (Jewish) Promotion, Fail- to be Selected For
TYPE CrtSE: Discrimination Based On
Reliction (.Jewish)
INTRODUCTION
By let ter dated November 17 , 19 7 2 . ^ : ' .■+ Zr
1 1 -.—v T * ~2> submActed an aypeal, throug h thea deci sion issue d by the L> :■a art me at of the N
which four.d that the evict.:.cc of record did
allege ticn that the agency s failure to prom
and
lrocoto. thorn res ilted from
Giserxnination based on religion, contrary to cine Findings, Eecommo
Decision, and Recommend Action by the Appeals Examiner.
STATEMENT OF THE CASE
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All three complainants are employed in the Buvxr.g Branches of rho
Purchase Division, Aviation Supply Office,
•Until .her promotion to Procurement Agent, CS-11, in'Into 1972, •'
^^X'-lV-TTiR was employed as a Procurement Agent, CS-9. c c m '
ano are employed as Contract Negotiators, GS-12.
On January 21, 1972, the complainants contacted an Equal Employment
Oppprtunity Counselor, and, in a complaint submitted by their'
representative on March c5, 1972, they alleged that they and other
Jewish employees in the Buying Branches had "been denied promotion
or. {had] railed to be promoted because of their religion." In their"
complain.., they alleged that they were well-qualified for promotion;-
tlm i non-Jcwish employees whose qualifications were inferior to their:
.and whose length of service was shorter than theirs had been promoted
while they had not; and that there had been no'promotions of Jews
nin themr Division beyond the grade CS-9 level since 1965. They
requested the following corrective action:
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a. Immediate promotions [of] the individual complainants
herein:
b. A careful review. . . of the personnel files of Jewish
employees in the Buying Branch, Purchase Division, of
the Navy Aviation Supply Office;
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c. Immediate promotions [of] chose Jewish employees found to
be qualified for and deserving of such promotiens; and
d. Appropriate directives and instructions . . . to all
selection panels and personnel authorities dealing with
promotions, bringing forcefully to their attention the
policy of the Department of the Navy toward all military
and civilian personnel in the matter of rcligi j u s
discrimination as is more particularly set forth in the
proceeding [sic] paragraph 9 hereof.
The complaint was investigated from April 11 through May 2, 1972;
and a meeting was held on 'une 5, 1972, in an unsuccessful attempt to
resolve the complaint informally. By letter dated June 7, 1972, the
C r x r '~~' a no O f f ̂ o <•» ■£■ c « - t , r » ~ C... - 1 . - r \ f ~ ~ r* ~ ---------------- , J , J ^
in which no finding of discrimination would be made, but the following
corrective actions would b*. taken:
a • . . . the next selection panels constituted to process
selections in [Cf-11 through CS-13] positions would be.
appointed by Corns and level . . . as opposed to Division
level.
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. . . these selection panels would be made aware of the
substance of this report by the Executive Officer or tilt
Commanding Officer.
c * . . . all ASO candidates under consideration by these
selection panels would be interviewed for such positions.
<3. . . . a written document reporting the basis for selection
and non-selection of all candidates for such nositions by
these panels would be submitted for Command approval.
The complainants, by letter from their representative dated June 9, 1972,
expressed dissatisfaction with the above proposal and, on August 14, 1972,
a hearing was held at their request.
In a report to the agency dated September 11, 1972, the. Appeals Examiner
vne conducted the. hearing in this case, stated that "the circumstances
surrounding [the complainants’] failure to achieve promotion, plus the
4ac2; of promotion above GS-9 of any Jew, convinces us that there is more
'■< -* •.% * s • '. * •. ̂ 'a*'’*. _ ‘ > »*' . r.- ‘ • < • ■ _. ^ . • v <
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han a statistical oddity on which choir co-plaint
reco.-ended a rinding that the agency had d
complainants on the basis of religion.
s based." He .
scriminated against the
AGENCY DECISION*
n
o£ « r Sl°n C''e °vidan“The followin'’ co-plaint of religious discrimination.
to tor u *i 4 “/•‘-iaL. s ^ecorjr.encacion;
ao . lhcrc was no evidence in the record of "discri-i-nMon
gains Jcwisn employees on the part of any supervise- or official
or religious group ir. the Purchase Divisio^"; o.f.c.al
that length of "service'’ ' ^ i t - c l f '’is AJpeals Examiner's findings
i“ s = t . f “ - ic
grade-null ding assignments, or training or of M b . r ’
^ fetters due weight in selections for promotion;
(4) the "evaluation and selection'methods cnplov-'d w-'ro
appropriate and applied with cc-ui— ,n rf f- - „ P 'V Wtro"no evidence t h w -nd fairness", and there was
r c L o n i t h V - : ' y , h° ?Glcctions wcrc '!ndc for r.unmerit
and ” ‘y 01 “ ‘C se-LCCCoes were not worthy of promotion";
(5) Jewish employees were included on some of th- nnn« 1c!
made.selections for CS-11 CS-1? ,n,. pc , Lhc Panels which
no evidence that -p c i c v r f « M i ’ 3 P°sic-°ns . there was
S O T V «» — i«.noted L'tn* h ,„ ... ... ...... . dated June 7, 1972; and
C c ^ o „ S C « * • being « * , to cho
• *
P), tha_ management officials make a concerted effort to
• addition 'to5 [the^complainants JSthat^therc^s'little'' f * 1* * * ” "promotion bevond CS-9 on the r 0 J f ^ CClc d,ancc for
pronotiono to Jewish
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(2) Chat Equal Employment Opportunity Program training and
supervisory training stress the importance of. refraining from
comments or jaxcs which might be construed as indication of insen
sitivity toward persons of a particular race, color, religion, sex
or national origin;"
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(3) "that selection advisory panels ensure that the qualifi
cations of all candidates in the range of consideration arc reviewed
in all cases and that
( 4 )
recommendations are fully documented"; and
that employees upon request be advised of m e areas, if
any, in which improvement could be made so as to increase their chances
for future promotion . . . "
r e p r e s e n t a t i o n s t o tee b o a r d of app eals a n d r e v i e w
r iprescntativeBy letter dated ..ovenber '.0, 1972, the coma lain ants _______ __
pointee out a number of errors in the transcript of the hearing in
thic In letters fr Mu, fi a ’d T)pr™i«r lg
1972, the agency expressed its concurrence in the spelling and
punctuation corrections proposed by the complainants' rapresentative,
suggested th.at a review be macie of the accuracy of the transcript,
and enclosed a report oe the corrective actions taken tv the agency
in this case. '
j
Tne complainants' representative, in
February 19, 1973, alleged that uh
a letter to the Beard dated
ie written information which the
agency had given to its selection advisory panel members as part of
the corrective action taxon in this case would not clir. ir.atc the
alleged discrimination against Jewish employees. He further alleged
.that this information handout would be "likely to have the opposite
effect for the following reasons: (1) the employment statistics
given in the handout were for the Purchase Division, while the
complaint concerns employment practices in the two Buying Branches
of that Division; (2) tne figure riven for the Jewish proportion of
the population n ti’.e -dkA.TxSfddfji' recruiting area was too lea;: and- - - ---------“i, - uo tuu -i.ee/ . *U11
J3) the [r]cicrcnccs to.J_r ]cligieus [percentages and [q]uotas are
[ojut of (p)lace because the complainants have never "claimed that
the percentage or Jewish employees at each grade level should
approximate the percentages of the Jewish population" and because
■uo individual should be required to give up his right to be judged
• on his own merit simply because employees of his religious conviction
already approximate the percentage of his group in the popluation."
The complainants contended, in the February 19, 1973 letter they
submitted through their representative, that "wilful or malicious
rs
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an admission or its equivalent from a respondent that he has^
discriminated ‘because of race, religion or national origin o.
complainant"; and that the Hoard "should not expect the kind of
proof which it knows it is practically impossible to secure m
any such complaint." In addition, the complainants' representative
alleged that the oromotion of one of the complainants from a GS-9
position to one at the CS-11 level was "long overdue" and "probably
brought about as a result of this very complaint", and tnat it is
not evidence that this complaint is not well-founded.
A copy of a letter from the complainant, who was promoted to CS-11
recently was enclosed with the complainants' letter of February 19,
1973. In this letter. :he complainant stated that she. was the only
Jewish employee of cither Buying Branch holding a GS-11 position;
f an
ently
than
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Buying 5 rnncr.cs were ljus uuiui ~
not withdrawing her complaint following her promotion Because
_ , . . ^ * 1 1 f V.n f II T*
[she ] not one of the com;’ 1 ■{ *
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that, of eleven pers on s into
was sielected, and of the 3 1 a
On March 16, 1.973, the Bcard
1973, from the agency . In t
stati sties cited in the 1972
that the population of Lhe C.
than 7% Jewish; and that the
in it s handout to scilcct ion
2 posi tior.s in
, and that she
.motion because
■a 1 i d . bhe fur
that s11 o rr.t:
•hen [she] was ’
•iminat it a case
;ition for whi
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and
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prior to the investigation and were used in the suojcct memorandum
not to preclude selection because a certain percentage was rcacned
but to comply with the proposed disposition or the complaint this
command committed itself to." The agency also alleged that the
statistics given in that memorandum had beer, based on employment
in the Purchase Division rather than in the two Buying Branches
because "reassignments have been made both in and out of and between
the Branches and the staff"; and that, while the complainant vno was
promoted recently was correct in stating that she was the only Jewish
employee interviewed for the job, "it is more fairly put to state
that all the candidates whose names were before the selection panop ̂
were interviewed and that [she] was the only Jewish employee certifies
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for consideration." In addition, it was noted that the only emoloyee
selected for promotion to a position above the CS-9 level in the
Division since the above complainant's promotion is also Jewish.
ANALYSIS AND FINDINGS
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o ited
ihe evidence of record shews that there were 65 promotions to GS— 11
and GS-13 positions in the Buying Branches cf the Purchase Division
between 1965 and the date of the investigation of this complaint, and
that, although 227. of the employees of these branches arc J e w i s h , none
of the employees promoted bv these actions is Jewish. The record
also shows that the icwish employees whose names appeared on promotion
certificates ior CS-11 ani G5-13 positions often received as high or
higher numerical ratings lor promotion as the (non-Jevish) selectees.
After a careful review ol the record in this case, the Board finds no
reason based on merit for the repeated promotion of non-Jewish
candidates over Jewish candidates who apparently were equally' or
better qunj.ii red for promotion. As the Appeals Examin ;r has indicat
in rhe report of7 his findings which he. c"Kmittcd to the a'*«•••**y t-Ko
complainants educational achievements were comparable to chose of
employees who have receive.d promotions to CS-11 and GS-13 since 1955.
In addition, the complainants rank as high or higher than those selected
for promotion with respect to the number of their performance evaluations
above the sscisractory level, and with respect to the numbers of letters
of commendation which thev have received. There is no disparity between
the ages of the selectees and those of the complainants which would
indicate that age was a factor in these selections for promotion.
(ihe Board notes that it nas made no comparison of tha length of service
of the selectees and of the complainants because, although the
complainants have alleged that they have had ionger relevant experience
than the selectees, the Beard docs not consider longer service an
indication of superior qualifications for promotion.)
Selection panel members have cited as the reas on for their failure
to select the complainants for promotion the beliefs of some of them
that one or more of the complainants was inferior to the selectees
w ith respect to initiative, kr.owlcdgeability, administrative and
Supervisory ability, the ability to express themselves, adaptability,
and innovativeness. As has been noted by the Appeals Examiner, however,
the complainants have submitted evidence that, in some areas in which
selection advisory panel members found tlicir qualifications inferior
to those of the selectees, they have received highly favorable
^performance evaluations, while in other areas the panel members had
insufficient evidence on which to determine that the qualifications
of the complainants were inferior to those cf the selectees.
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In view of Che above, the Board finds that the agency has failed to
show a nonreligions merit basis for its failure, over a period of
several years prior to the date of this complaint, to promote the
complainants or any ocher Jewish employees of the Buying Branch to
any positions above the CS-9 level.
There is no information in the record about the religious affiliations
of cmoloyces below the GS—9 level. The record does show, however, that,
at the time of the investigation, Jewish employees held none of the
eight positions at the CS- 13 and GS-1A levels in tne Buying Branches,
only 202 of the 15 to-12 .ositions whose incumbents were identified by
religious affiliation, an l none cf the 13 GS-11 positions. The
statistical evidence shews, however, that they held A22 of the AS
positions at the CS—9 level whose incumbents were identified by
religion. The Board notes that, according to the rbovs statistics,
only 82 of the 36 employees whose religion was identified by the
investigator and who held positions above the >S— 9 le- nl in the
Buying Branches arc Jewish, while A27. at the GS— 9 level whose
religion is specified in the record are Jevisa.
. . . . . i . . • . >. . „ • ii r , . i i . - .. . . ■ c ■» * -wicn resnucc to tne agency s coutuiaiuin m a t u-jutu. --*> “<-> *--
in the case record of discrimination against Jewish cmp-oyecs on the
part of any supervisor or official or religious group in the Purchase
Division", and'that the complainants did not charge any individual
with discrimination agnins: them, the Board notes that neither the
naming of an individual or individuals responsible for i.hc diselimination,
nor evidence of overt prejudice or discrimination on the part oi any
official, is essential in a case in which a finding of discrimination
i§ a,ado. The Board also notes that the fact that Jewish employees
were among the members of some of the seJcation advis'e/ panels does
not. indicate that there coild be no discrimination against Jews with
respect to promotions.
In light of the evidence cited above oi the disparity in treatment, with
respect to promotions, between Jewish and-non—Jewish employees of
similar genii Hications, and in the absence of evidence of nonreligious
merit reasons tor this disparity in treatment, the 3onrd concludes (1)
that the evidence of record indicates that there has been disci i m m a t i p n
against Jewish employees with respect to promotions; (2) that this
discrimination has had an adverse effect on the promotional opportunities
of the three complainants and (3) that, in the absence of this apparent
discrimination, the two complainants who have net been promoted recently
and who now occupy’ GS-12 positions would have been promoted to GS— 13.
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decision and buconnubdid coub-xtivc action
Kover.be r V, iv. r.orory t c x - t
recoma-ended 'nr v— T̂r- TTXZSi becau
beer, promoted since the ti:. e the
Board recommends tatcINulll771.7iirBrTa
next GS-13 vacancies icr v:hi cn tacy quaou i y
it of the Navy in t’nis case:. Bo correceive action isthe record shows that shenf as filed. However
qualify. p ror.oted
‘ Y’CTIVZACTION
m .fCr̂vr'..
V*-Vr\«r •
n
reoort of the actions taken or proposer mrcsoonso. to the above
recov.r.r- r da Lio ns ihould be furnished re the. Board within ten c a lone
days after the. date of receipt o- rr.is cec: s: or..
be addressed to tne Board of ''ppea-.-> a..a ■ --■•■
"Ihe report sect:: United States Civil
Service Cci.aii ssion , Unshinptcn , D. C . , Desk.
Civil Service Reptile: ions provide that
1011 f>, Attention: Comp) ia:.:t
the d-: cisic:-, of the Beard is
April 13, 1973
S ’k 0,
l.'i Ilian ?. Berr.uk Chairman
< '*■ •*
final a:id that ti;erc. is no fur:her ri the of e-.'erinistrativo appeal. 11however, if the ccv.pl ninaubs a rtl * •c-t satisfied with this l* J . C. - u J.. «
thev arc: av. Lh o r i:: o d h •• s e c. t i e n7] 7<e> of the Civil Uip.hr•' y r. J
amended, to file a civil action 111a n t r p i'op ;• i z t e U. S . D i. s t r .1 c i LlCourt within thirty (30) calenar.r days oi their receipt or tans
decision• • V,-.'. -
fry r 'For the Commissioners: •
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17d
December 19 1973
Hr. M. Melvin Enralow RETURN£El
Attorney a t l. . w
13::3 Chestnut b t rea t
Philadelphia, Pennsylvania 19107
Dear Mr. Simile./:
This is in fur ther response to your l e t t e r of jiovonber 29, 1973
recording the discrimination complaint case of Mrs. Jeanne S.
Ellitan, Mr. iliUon !». Hallman, and Mr. Louis Shapiro, which was
decided by the Commission1 s L'card cf Appeals and lie-view cn
April 13, 1973 and reopened by tiva Commissioners cf the Civil
Service Commission cn lievember 14, 1973.
In vour l e t t e r you question the authori ty of the Ccvnissioncrs to
reopen, the case, and yon protes t th e i r decision reversing the
decision of t: e Sn rd cf Appeals and Review ana affirming tne decision
of the Secretary of the Davy. You request that tee decision o. tna^
Commissioners La rescinded. For your information, under the provision
of Station 713.239 of the Civil Service Regulations, the Commissioners
;r.ci reconsider a previous decision orvisc rewI ;n, reopen !may, in their
the Loard of Appeals and Review when ti.e party reevestins rocpenvr.g
submits writ ten argument or evidence which tends to establ ish that :
(a) Mow arid material evidence is available tha t was
not readily avai lable when the previous decision
v/as issued;
(b) The previous decision involves an erroneous i n te r
pretation of law or regulation or a misapplication
cf established policy; or
(c) The previous decision is cf a precedential nature
involving a new or unrevieu-ad policy consideration
tha t nay have e ffec ts beyond the actual case a t hand,
or is otherwise of such an exceptional nature as to -
merit the personal a t ten t ion of the Co;rnissioners.
On the basis of a pe t i t ion fi led on July 5, 1373 by the Department of
the .'levy, a copy of which was furnished to you, the Ce viissloners
reviewed the f i l e and aetermined tha t tne board of Appeals and Review
' I\
had n i w p l I e J the applicable Civil Service Repulatlons In th is case.
SDeciflc-Uv, they found tha t the complainants .n - not 1 . 1 - ^ a v a n .
f i r s t - p '• rty tvoe conolaint of discrimination, and tnat r.o ev i^n ce hau
been submi tted su f f ic ien t to support a j i n d m u tnat any^oi
complainants would have been selected to r p rcuon .n to t...y sp<-Cifi
vacancy, in the aoscnce of rel igious d isc r im nation.
Generally, in order for an employee to have a valid f i r s t - p a r t y type
c c ^ a i n t of discrimination with regard to his fa i lu re to be promote ,
th/cmployce must bring the matter to the a t tent ion of h.^ ^ . j - 1
Employment Opportunity Counselor within t h i r t y cays or tno ^ c ^ o f a
specif ic premotion action on winch anotr.er t...uloyc- was p. * ■ ■ ̂ -»
oresent any evidence or information he may have .or boliovi..,. tna
Dro'iiM*-' ‘ discrimination was the reason for his non-selecuion tui tne
promotion, and for the se lection of the other employee for the promotion.
In th is case the comlainants did not allege as a oc,sis uw t . i - i r
ca.splaint any’ specif ic occasion on union they ware nen-se ecteo ror
promotion, but alleged generally tnat there s;.ad o. n a e of
bromotion of Jewish employees since lSoo. i.itn «c.jard to . . . , s r^ , U i . ;-
and Shaeiro, who were Grade GS-12 emlnyces, mere rind_boui_..c P^Owionijiiu jiuiwn u» »«-»•- -•-- ” : t .. . . . , , ̂of any GS-12 employee to Grade Gb-1J v;i cmn tne ti..e iimi<- ■ +1‘h.a *V*. 4 - i
r s t a * V / u j * I l O : I p i i J Y w t i l u c . i i . u u ^ .................. , . . . , +
have a valid f i r s t - p a r ty type complaint of discrimination a- cue
th-v brou“lit th e i r comoluint to tne equal Lmpluyt.e.ic^ppoj vji.i ty
Counseled Tims, they could cot re fe r to eny sp ec . ' . c > of
promotion which would have been a basis tor a vana and ti...-ly f i r s t
■party type complaint or discrimination.
Even i f i t were determined th a t discrimination against employees of “ 'Oir
f a i th existed during the period of time in quesmen rrc:i i i , t o J 9 7 ' ,
th is standing alone, would not have been a vali-. basis urn^r t,.e u »
Service Regulations and polic ies for the Commission to orc.mr che » qc j
to oromoteltessrs. Mo11man and Shapiro to tne next two Go-lo vacant#
positions because there was no shewing that in the aoscnce of oiscrimn
t icn because of the i r re l ig ion they would have been promote,1 to any
specif ic vacancy, . -
Under the circumstances, the Commissioners decided tha t they had no
a l te rna t ive except to reopen the case, reverse tae uecioicn of tn_
Coard of Appeals and ilevie.v, and at v im tr.e decision or c..e w-cr^aa.y
t Ke Navy wilier, required tr.e agency to take a r.u -oar of aft \ r. itw<-
actions^to ensure tha t all future se lections of c .oloyoes tor promo-ion
are taken without any pronibited discrimination.
In view of the above, we find no valid basis for rescinding the decision
*
VSOYf Ul <-..T C.UV.W, ---- ... . .
the Commissioners in th is case, ana the request 1, w.ir.
19d
' ' o or ''*J‘
Because of the strong feel ings you express in ycur l e t t e r re^ardlna
this case. I regret that this reply could not be favorable. ^
For the Cccnissioners:
3
Honorable Joseph T. McCulleri, Jr .
As s', slant Secretary of the r.’avy
Manpower and Reserve Affairs
Depart:sent of the ,'iavy
Washington, D. C. 20350
Sincerely yours,
Robert B. Dates
Assistant to the
Conyr.issioners (Appeals)
RBC-ates: is 12/19/73
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O . • ■UNITED STATES CIVIL SERVICE COMMISSION
BOARD OF APPEALS AND REV IF,;
Washington, D . b
3
.■» B33
_ J No. 713-73-523Indexed Under:- Promotion - PreselectionD E C 1 S
L.
5̂
IN THE MATTER OF
TYPE CASE: Ce.-olnint of Discrimination;
National oricia
• fe k-
INTFCRJCTIOTT
o
By letter of March 2?, hereinafter referred toao the complainant, appealed throned his representative from the decision of the Director, Equal Opportunity Staff, for the Department of health, Education and Welfare, that the evidence of record does not support a conclusion t.h?.t the complainant vac not selected for pro:.-ytic:i to a position of Supervisory F: opr am Analysis Officer, Go-15, because of his national origin (inerto hi con).
t e s
STATEFPTTT GF TUB CASE
At the time of his complaint, the complainant ves a Management Analyst, Go-12, in the Manegerent Planning Section, Finance and Administrative Branch, Division of Administration, Bureau of Hearings cr.d Appeals, Social Security Administration.
On March 30> 1971, the complainant contacted en EEO Counselor, alleging that because of his national origin, he was not selected for promotion to a nevly-creaxed position of SuporvH scry Prcgrara Analysis Oificcr, GS-13* The complainant alleged tm.t she selectee fer the position vas pre-selected, and that this ’-ms done to deprive him (complainant) of promotion because he ia a Puerto R5.ca'n«
The EEO Counselor vns unable to resolve the complaint and, cceord- ingly, .the complaint vas investigated, and a copy of the report
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thereon vas furnished to the complainant' 3 representative tinder date of October 1, 1971*
Arr unsuccessful attempt vas cade on November 2 h t 1971, "to resolve the corolaint infernally. Thereafter, a hearing on the complaint cf discrimination vas convened on April 3, 7 and 12, 1972. Hovever, proceedings vere terminated on April 12, 1972, at the request of the complainant and hi3 representative.
- AGENCY DECISION
The agency's decision vas on tvo points: (l) The validity of- the-termination of the hearing for the reasons stated hv the- complainant; and (2 ) the merits of the case based on the record.The agency determined that the reecons 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 ccmoloiaant was promoted, effective November 12, 1972, to Nxnngemsnt Analyst, GS-1 3 . The complainant VES advised of his right cf appeal to the hoard of Appeals and Review and/or to the appropriate U.S. District Court.
REPRESENTATIC!T3 TO THE HOARD C? APPEALS AND P.EVT.EN
The complainant's representative contended that the agency's ■. decision was based on ail incomplete record of the case and vasmae without the benefit of a fair and impartial hearing. He charged that the Appeals Examiner excluded witnesses from the hearing who "vere directly or indirectly responsible for the discriminatory act and for the complainant's failure to obtain redress during one informal proceeoiugs.
The complainant's representative stated that the Department had failed to consider in its- decision the selection processes which have resulted in the exclusion of Hispanic Americans, end specif- ically Puerto Ricans, from the agency organisation in question,. and he claimed that the complainant would have been the successful candidate had the selectee not been pre-selected.
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He further alleged that the Department apnlie3 different standards in resolving complaints of discrimination in cases involving race.
ANALYSIS AND :HNDINC-3
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The Board has revieved carefully tae entire record in this case in the light of the co-elainant's representations. Based on this review, the Board notes that those witnesses specifically excluded were the Investigator of the complaint; the Director of Equal Opportunity and Labor Relations; tec Director, .equal Opportunity Staff; the nqual mrploynent Opportunity Oolite*; the Director, Special Staff for Labor Relations and xaual Opportunity; 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 naves of ccher witnesses had been suggested and 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 con- "plaints of discrimination charge the Appeals Examiner with the dutv of conducting the hearing in such a way as to edsuce evidence pertinent to the complaint, and to exclune testimony or information which is not pertinent. In this case, it is assumed that the Investigator of the complaint reduced to writing all of the pertinent ■■ information uisclcsea by his investigation. The other witnesses requested by the complainant would not have first-hand knowledge of the co:n?.ain.ant'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 complaint involving a minority group agency-wide is a "third- party" complaint and it is processed muier a different set of procedures . . •
In this case, the Board holds that the Appeals Examiner acted properly.
With regard to the issue in this case, i.c., whether the complainant was non-seleeted for the newly-established, position oi uupe.— visory Program Analysis Officer, CS-13, because of his national origin, the Board notes that in March of 1$63, the cn-oloyee who was ultimately selected , was assigned to work with the County Division Director, Division of Administration. In September of lyJOs a Position Classifier wos requested to review and reclacsify
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the duties rerforrsd by that employee. The Position Classifier found that the duties being performed did not; warrant a G3-13* Discussions were then initiated concerning the possibility of establishing a new supervisory position, apparently on a pro-
classified according to the way agency officials hoped the position would develop. The position was approved and classified
eligi bles va3 narrowed to three i"rcn which the employee was selected for the promotion. Csrrplainant 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 Weis pre-selection in the filling of the newly-established position. However, the Board holds that the position would never have been established bus for the desire to promote tie selectee and that the complainant's national origin had no bearing on his non-selection.
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:
spectivc basisv i.e., rather than on the basis of duties being performed at the time, the position would be described andspectivc basiŝ i.e
as a C-3-13. Under the Merit Promotion Procedures, a list of eleven
DECTSICIJ
William. P. lorzak Chairman
June 14, 1973
201
U N 1 - r ^ S T A T E S
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
JVIL S E R V I C E C ^ M I S S I O N w'n ’ r nu,[i. ,^»to:
>
,ARB:djg
October 15, l'V.
£ ^ £ ^ 5 “ * EEF°SI:! t r ^ ? ' “ efct°“
Efaploynent DlscrlMhhtlcn teferrfcl Project McD"“ “ > ;“ '-io r 3
toe 1,'orth 13th Street
Philadelphia, PA 19107
Dear Hr. Stark:
reference to your appeal in behalf of Mrs. Bernice 0. Conner,
?0‘3^ LOf 1&',untrlal P̂Pl:-' Center, Philadelphia, Fenrvv'v-nia froa the decision ox the Deputy Director, Defence SupoJy Aweary to re ic-tV-r
ccmplam of dijcrlni^tlon bs=au3e of ro== (Hock) sex u i «
Vithlf, the purviev of the Cession's Equal Opportunity resuXetioC.
to December 3, 1973, Mrs. Conner filed a foxnnl coaplaint of di-~crIni~tion 1-
^ Pattern of nonsclcctioa for p^Lotlcn^d ̂ er - ^foi^ance eppraioaln, indicating that this van a "Class-Action Carrlaiat «
S f e r S d ^ v ^ ?!'her.blf ? " ni1 rirjila employees similarly situated". Ha o^rcy
« L ? t t>?t the Philadelphia Seconal Cl flee vith a"request tI„o toe 01 fice furnish an investigator. The regional office
^ . C°fpluiat to the agency on the basis that the allegations ve're
untimely aim concerned an attest at filin3-a class-acSon ccaplSnt SoA S
?n 2 regulations do not provide for the acceptance or •nrocoscir> of ~uch
S ? S 3 V C S S . " 111 thl=-ca=c- * “ " * - » « • *
;97l:; ccGplaimat resubmitted her December 1973 cocrolaint, r-r-
u ,r!?!IT L^ t0 her * * * * * * as a class-action and addinfftissue
Accountant* G~-5 J°r con2ldei'ntlori for a position as StatisticalAccountant,, Go 5 , vnich she had received on February 20, 197b.
In its decision of Tune 2S, 1971, to rejecting Mro. Conner's canoloint f -
agency stated tnnt the Itece-ber 1973 cauplnint vns being rejected bSaAue*" ch«
tht rai3C allegations about ratters vhich arose thirty days or less r-icr to
Ifr £ £ 1 ? , ™ ? * T S * “ * ““* « h=r *»» Counselor; sta J J iSilrt L
FPM cStei1???* ,^;°*actioa c®-plaints do not cone under the'mrvicv of
nl^lnAnt '-PF^-* B • Ibe second coaplaint vns rejected because cerc-
?id Dot al7e=e tĥ h<=r ineligible rating van based on diaerlMroSon because of race, color, religion, sex or national origin. iscn-uacion
?n ta >:ra' Conner’s contention on appeal to the Beard that the agency's decision
i L Z - t ' l * ? « * ? * * » * «** the agency fails to acknovledgA o7,nndcr A^d
? c^inuinp violations of equal c^loyment and of class cc^lrAA-
Cccpluinant also alleges that in failing to recognise continuing violations' a Ad*"
THE \iERIT SYSTEM— A GOOD INVESTMENT IN GOOD GOVERNMENT
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clnsa complaints, the Civil Service regulations are unconstitutional and in
violation of Title Y U of the Civil Rights Act of 19vh.
A part of the Board's function in deciding appeals from agency decisions on
ccaplainto of discrimination is to determine whether the agency has complied
vith the CooroisEioa's regulations. These regulations, pertaining to discrim
ination complaints, require that an agency .must accept a complaint only when
the allegations raised are vithin the purviev of the regulations, have been
brougnt to the attention of mi n~0 Counselor or other amromriate agency
official vithin thirty calendar days frca the date of matters forming the
basic of the complaint, and do not allege matters already decided by the agency
in an earlier discrimination complaint. These regulations further provide for th
acceptance of u complaint from an individual (or group of individuals vhen the
natter complained of applies equally to all of them and meets the criteria of
purview and timeliness) or under section 7 13 *2 5 1 of the regulations (a third-
party having some sort of official capacity in core reccgnlned organization
such os an employee union, civil rights group, etc. and having a general alle
gation of discrimination in personnel matters unreLuted to any individual com
plaint). Rxccpt for the third-party complaint provision in section 7 1 3.1 5 1, the
regulations proiiibit consideration by an cgoncy of a general complaint cf
discrimination vhich is unrelated to a specific individual complaint (section
713.212 (b) cf the regulations).
As regards the matter of "continuing" discrimination, 5 Ci’R 713.2lh establishes
n time limit in vhich a matter must be brought to the attention cf an LTD
Counselor before that matter can be accepted as a valid basis for a complaint.
Therefore, the requirement implies that a complaint must be over a specific
employment matter vhich occurred at a specific time. There is no provision
whatsoever for accepting non-specific complaints of "continuing" discrimination.
For an allegation to be vithin the purviev of the Commission's 2qual Opportunity
regulations, it must have been brought forth by on employee or applicant for
employment vith a particular agency, concern a matter over which the agency has
Jurisdiction, rued be based on the complainant's race, color, religion, sex, age,
or national origin. Complainant's December 3 , 1973, complaint did not specify
any matter arising vithin tiiirty days prior to November 2 , 19 73, the date on '
vhich she contacted her LTD Counselor. Cccrplainam; • 3 Aorill 22, 197 h, complaint
did allege a timely matter, but did not allege discrimination on tne basis' of
race, color, religion, sex or national ori.gin in connection vith that matter;
rather the ineligible rating vac challenged on the basis used for determining
her experience.
In view of the above, the Appeals Reviev Board concurs in and affirms the agency'-
decision on the comp La leant's tvo discrimination complaints for the reasons
discussed ubovc.
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Civil Cervice Ccmicsion regulations provide that the Beard's decision is
final and that there is no further ri-ht of administrative anneal. Hovever
if the ccnplainant is not satisfied vith this decision, the co.nnlain.ant is
authorised by section 717 (c) of the Civil Biqhts Act of l^U, as tended on
rlle a civil action in an appropriate U.S. District Court
vithin thirty (30) calendar days of the receipt of this decision.
For the Comic sioners:
Sincerely yours,
ViUlaa P. Be rank
Choimaa
ccx Director of Equal Hrployaeut Opportunity
Defence Supply Apency
Cararoa Station
Alexandria, VA 223lh
cc: d£rs. Bernic
il22 Osceola
Elkins Park
e 0» Conner
Avenue
, PA 19117
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