Freeman v. Motor Convoy, Inc. Brief for the Union Defendants-Appellants
Public Court Documents
May 17, 1977
Cite this item
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Brief Collection, LDF Court Filings. Simmons v Brown Reply Brief for Appellants, 1975. 923bd36c-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ab71abe1-6a52-446e-8952-7563aa17ccd6/simmons-v-brown-reply-brief-for-appellants. Accessed August 19, 2025.
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i;: t h e
U;:iTE'J STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
tr*
NO. 75-2182
JAMES E. SIMMONS, et al.,
Appellants,
v s .
JAMES R. SCHLESINGER, et al..
Appellees.
I
On Appeal From The United States District Court
For The Eastern District Of Virginia
Norfolk Division
BRIEF FOR APPELLANTS
HENRY L. MARSH, III
. RANDALL G. JOHNSON
STEPHANIE J. VALENTINE
HILL, TUCKER & MARSH
214 East Clay Street
P. 0. Box 27363
Richmond, Virginia 23261
JACK GREENBERG
CHARLES STEPHEN RALSTON
MELVYN R. LEVENTHAL
BARRY L. GOLDSTEIN
BILL LANN LEE
Suite 2030
10 Columbus Circle
New York, New York 10019
Counsel for Appellants
*
TABLE OF CONTENTS
iii
1
2
9
9
Page
9
13
13
14
16
18
24
Introduction -------------------------------------- 24
I. The District Court Erred In Denying Federal
Employees The Right To Maintain A Class
Action Pursuant To Rule 23(b)(2) Fed. R. Civ.
Pro. On Behalf Of Other Similarly Situated
Employees----------- 27
A. Class Actions Provided For In The Federal
Rules of Civil Procedure Are Not Precluded
Or Limited In Any Way By The Statutory
Language Of 42 U.S.C. §2000e-16 34
1. Rule 23(b)(2) Fed. R. Civ. Proc. -------- 34
2. The Statutory Language of 42 U.S.C.
§2000e-16 ----------------------------- 36
B. In 1972 Congress Expressly Disclaimed Any
Intent To Preclude Or Limit Class Actions
To Enforce Title V I I ---------------------- 44
II. The District Court Erred In Denying Federal
Employees The Right To Prepare For Trial Of
The Individual Claims By Conducting Discovery
Calculated To Uncover Broad And Systemic
Patterns And Policies Of Discrimination ----
TABLE OF CITATIONS ----------------------------------
STATEMENT OF ISSUES PRESENTED -----------------------
STATEMENT OF THE CASE-------------------------- -
STATEMENT OF FACTS ----------------------------------
Historic Racial Discrimination at NARF -----------
1. Trial Testimony Concerning Job Histories
Of Black Employees-------------- 1--------
2. NARF EEO Affirmative Action Plans -------
Patterns and Policies Of Employment Discrimination
1. 1971 and 1972 ---------------------------
2. 1973 -------------------------------------
Claims of The Named Plaintiffs ------------------
ARGUMENT --------------------------------------------
49
»
A. The District Court Simply Ignored All
Applicable Precedent In Denying Discovery
Calculated To Uncover Broad And Systemic
Patterns And Policies Of Discrimination --- 49
B. The District Court Improperly Limited
Plaintiffs' Discovery And Presentation
Of Evidence Of Systemic Discrimination
While Permitting Defendants To Present
Evidence Of Equal Scope ------------------- 52
III. The District Court Failed To Apply
Substantive Title VII Law To The Facts
Presented With Respect To The Individual
Plaintiffs---------------------------------- 54
A. The Evidence Presented To The Trial Court
Conclusively Showed Racial Discrimination — 54
1. Discrepancies Between The GS-5 And GS-7
Registers-------------------- 55
2. Rating Panel Judgment ----------------- 56
3. Administrative Investigation ---------- 59
B. The Statistical Evidence Presented At The
Trial Established A Prima Facie Case Of
Racial Discrimination ---------------------- 60
1. Statistics Presented ------------------ 62
2. Continuing Disparities ---------------- 63
3. Career Advancement Of Plaintiffs ------ 64
4. Rebuttal Evidence ------------------- ;— 65
C. The District Court Considered Improper
Factors In Dismissing Plaintiffs' Action --- 66 1 2 3
1. Good Faith Of Defendants-------------- 66
2. Specific Discriminators------- 68
3. Civil Service Commission Regulations -- 68
CONCLUSION------------------------------------------- 70
ATTACHMENT A ----------------------------------------- la
ATTACHMENT ------------------------------------------- 8a
ii
TABLE OF CONTENTS
(Continued)
Page
»
TABLE OF CITATIONS
Cases
iii
Page
Aetna Ins. Co. v. Kennedy, 301 U.S. 389 (1937)
Albermarle Paper Co. v. Moody, ___ U.S. ___,
45 L .Ed.2d 280 (1975) ---------------------
Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974) ------------------------------------
Barnett v. W. T. Grant Company, 518 F .2d 543
(4th Cir. 1975) ---------------------------
Barrett v. U.S. Civil Service Commission, C.A.
No. 74-1694 (D.D.C., decided December 10,
1975) --------------------------------------
Blue Bell Boots, Inc. v. EEOC, 418 F .2d 355
(6th Cir. 1969) ---------------------------
Boston v. Naval Station, C.A. No. 74-123-N
(E.D. Va., decided November 18, 1974) -----
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) ----------- ----------------
Burns v. Thiokol Chemical Corp., 483 F .2d 300
(5th Cir. 1973) ---------------------------
Carter v. Gallagher, 452 F .2d 315 (8th Cir.
1971), cert. denied, 406 U.S. 950 (1972) --
Chisholm v. U.S. Postal Service, 9 EPD 1110,212
(W.D. N.C. 1975) --------------------------
Davis v. Washington, 512 F .2d 956 (D.C. Cir.
1975) --------------------------------------
EEOC v. University of New Mexico, 504 F .2d
1296 (10th Cir. 1974) -------------------- -
Ellis v. NARF, 10 EPD 1(10,422 (N.D. Cal. 1975)
Gamble v. Birmingham Southern Railroad 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 (45th
Cir. 1971) --------------------------------
Green v. McDonnell Douglas Corp., 463 F .2d 337
(8th Cir. 1972), remanded, 411 U.S. 792
(1973) ------------------------- -----------
Griggs v. Duke Power Co., 401 U.S. 424 (1971)
41
26,36,44,66
36,40,41,70
24,27,35,49,
50,54,61,62,
66,67
32.44
33,36
4
45
24,27,50,56,
57,59,61
50,51
58
35
33
33
32.44
64
33
25,33,36,49,
52
58
26,29,36,51,
58,66
401 U.S. 424 (1971)
»
iv
TABLE OF CITATIONS
(Continued)
Page
Grubbs v. Butz, 514 F.2d 1323
(D.C. Cir. 1975)----------------------- 25,39
Hackley v. Roudebush, 520 F.2d 108
(D.C. Cir. 1975)----------------------- 25,31,44
Hall v. Werthan Bar Corp., 251 F. Supp.
184 (M.D. Tenn. 1966)------ ;----------- 36
Harris v. Nixon, 325 F.Supp. 28 (D. Colo.
1971)----------------------------------- 39
Hodges v. Easton, 106 U.S. 408 (1882)----- 41
Jenkins v. United Gas Corp., 400 F.2d 34
(5th Cir. 1968)------------------------ 35,36,40,45,47
Johnson v. Georgia Highway Express, Inc.
417 F. 2d 1122 (5th Cir. 1969)— ;-------- 35,36
Johnson v. Zerbst, 304 U.S. 458 (1938)--- 41
Keeler v. Hills, H.D. Ga. C.A. C74-2152A,
2309A, decided November 12, 1975)------ 32,44
Roger v. Ball 497 F.2d 702 (4th Cir.
1974)----------------------------------- 25,70
Lance v. Plummer, 353 F.2d 585 (5th Cir.
1965), cert denied, 384 U.S. 929
196 6)----------------------------------- 36,37,38,39
Lea v. Cone Mills Corp., 438 F.2d 83 (4th
Cir. 1971)------------------------------ 60
Local No. 104, Sheet Metal Workers Int'l
Assoc, v. EEOC, 439 F.2d 237 (9th Cir.
1971)----------------------------------- 33
Love v. Pullman Co., 404 U.S. 522 (1972)-- 40
McDonnell Douglas v. Green, 411 U.S. 792
(1973)------------------ 1-------------- 6,26,27,40,50,56
Miller v. International Paper Co., 408
F. 2d 283 (5th Cir. 1969)--------------- 45
Morrow v. Crisler, 479 F.2d 960 (5th Cir.
1973) aff'd en banc, 491 F.2d 1093 (5th
Cir. 1974)------------------------------ 24
Morton v. Mancari, 417 U.S. 535 (1974)----- 70
Moss v. Lane Company, Inc., 471 F.2d 853
(4th Cir. 1973)------------------------ 24,27
Motorola Inc. v. McClain, 484 F.2d 1139
(7th Cir. 1973), cert. denied, 416 U.S.
936 (1974)------------------------------ 33
Newman v. Piggie Park Enterprises, 390 U.S.
400 (1968)------------------------------ 40
New Orleans Public Service, Inc. v. Brown,
507 F. 2d 160 (5th Cir. 1975)----------- 33,53
Oatis v. Crown Zellerbach Corp., 398 F.2d
496 (5th Cir. 1968)-------------------- 37,38,39,45,47
Ohio Bell Telephone Co. v. Public
Utilities Comm., 301 U.S. 292 (1937)----- 41
Parham v. Southwestern Bell Telephone Co.,
433 F. 2d 4 2 1---- ---------------------- 60,64
V
Parks v. Dunlap, 517 F.2d 785 (5th
Cir. 1975)-------------------------- 25
Petterway v. Veterans Adminstration
Hospital, 495 F.2d 1223 (5th Cir.
1975)-------------------------------- 26
Place v. Weinberger, October Term, 1974
No. 74-116, petition for rehearing
pending.----------------------------- 25
Quarles v. Phillip Morris, Inc., 279
F.Supp. 505 (E.D. Va. 1968)-- 51
Rich v. Martin Marietta Corp., 522 F.2d
333 (10th Cir. 1975)----------------- ' 24,50,51,53
Robinson v. Lorillard Corp., 444 F.2d
791 (4th Cir. 1971)----------------- 49
Rowe v. General Motors Corp., 457 F.2d
348 (5th Cir. 1972)----------------- 56,66,67
Sanchez v. Standard Brands, Inc., 431
F. 2d 455 (5th Cir. 1970)------------ 32,40,44
Sharp v. Lucky, 252 F.2a 910 (5th Cir.
1958)-------------------------------- 37,39
Sibbach v. Wilson & Co., 312 U.S.' 1
(1941)------------------------------- 34
Sylvester v. U.S. Postal Service, 9 EPD
<[10,210 (S.D. Tex. 1975)------------ 35
United States v. Chesapeake & Ohio Ry.
Co., 471 F.2d 582 (4th Cir. 1972)--- 25,49
United States v. Dillon Supply Co.,
429 F. 2d 800 (4th Cir. 1970)-------- 50,52,56
United States v. Jacksonville Terminal
Company, 451 F.2d 418 (5th Cir. 1971),
cert. denied, 406 U..S. 906 (1971)--- 57,58
United States v. United Ass'n of
Journeymen, Etc., U. No. 24, 364
F.Supp. 808 (D.N.J. 1973)----------- 58
United States v. W. T. Grant Co., 345
U.S. 629 (1953)--------------------- 64
Weinberger v. Salfi, 42 USLW 4985
(decided June 26, 1975)-------
TABLE OF CITATIONS
(continued)
Page
38
VI
Other Authorities
Executive Order 11473 ------------------------- 1/2,33
Executive Order 9980 -------------------------- 2
Executive Order 10590 ------------------------- 2
Executive Order 11246 ------------------------- 2
Executive Order 10577 ------------------------- 2
Executive Order 11141 ------------------------- 2
Federal Rules of Civil Procedure:
Rule 23(b)(2)---------- 1,2,33,34,
35,41,42,44
Fifth Amendment to the United States
Constitution --------------------------------- 1,2,33
Proposed Amendments to Rules of Civil
Procedure, 39 F.R.D. 69 --------------------- 34,35
Subcomm. on Labor of the Senate Comm, on Labor
and Public Welfare, Legislative History of
the Equal Employment Opportunity Act of
1972 (Comm. Print 1971) ---------------------- 29,30,33,46,
47,48,68,69
5 CFR §713.211 et ^e^. ---------------------- 27,28
5 CFR §713.251 ------------------------------- 5,28,42,43
5 CFR §713.216(a) (1974) --------------------- 32
5 U.S.C. §7151 ----------------------------- 1,2,33
5 U.S.C. §7154 ----------------------------- 2,33
5 U.S.C. §5596 ----------------------------- 2,33
28 U.S.C. §1292 ----------------------------- 7
28 U.S.C. §1331 (a) ---------------------------- 2,33
28 U.S.C. §1343 (4) ---------------------------- 2,33
28 U.S.C. §L36 1 ----------------------------- 2,33
28 U.S.C. §1364 (a) (2) -------------------------- 2,33
28 U.S.C. §2201 ----------------------------- 2,33
28 U.S.C. §2202 ----------------------------- 2,33
28 U.S.C. §2072 ----------------------------- 34
28 U.S.C. §2073 ----------------------------- 34
42 U.S.C.- §405 (g) ---------------------------- 38
42 U.S.C. §406 (g) ---------------------------- 38
42 U.S.C. §706 (a)---- .------------------------ 46
42 U.S.C. §706 (d) ----------------------------- 46
42 U.S.C. §706 (h) ----------------------------- 45
42 U.S.C. §706 (f) ----------------------------- 48
42 U.S.C. §706 (k) ----------------------------- 42 * * * * * 48
Page
Other Authorities
(Continued)
Page
42 U.S.C. §2000a et_ seq. ---------------------- 37
42 tf.S.C. §2000e-5 (f) (1) ---------------------- 43
47 U.S.C. §2000e-16 et seq. passim ------------ 1,2,33,34,36,38,39,41,
42,44
42 U.S.C. §2000e-16 (1) --------------------- — 39
42 U.S.C. §2000e-16 (a) ----------------------- 28,51
42 U.S.C. §2000e-16 (c) ----------------------- 39,48
42 U.S.C. §2000e-16 (d) ----------------------- 43
42 U.S.C. §1983 — ---------------------------- 37
vii
118 Cong. Rec. 7169 , 7566 ----* 43
16
employees (6 of 68) were in grades higher than GS-10 compared to
24% of total GS employees (210 of 863) and 26% of white GS
employees (204 of 795). This pattern was consistent from
department to department.
Although the 1972 statistics are incomplete, the
available 1972 categories are comparable to their equivalent
1971 categories.
i6_/
2. 1973
While 21% of all NARF employees in 1973 held GS
positions (916 of 4444) and 24% of all white employees (837 of
3462), only 8% of all black NARF employees held GS jobs (79 of
982). Similarly, while 22% of all NARF employees were black
(982 of 4444) and 26% of all non-GS employees were black (903
of 3528), only 9% of all NARF GS employees were black (79 of 916).
These statistics reveal little change from the situation in 1971
16/
The 1973 tables are dated 30 November 1973 and thus
reflect NARF employment patterns at the time of the filing of
the administrative complaint of discrimination on December 3.
The 1973 tables show (a) number and percent of black and total
GS employees by department and level; (b) number and percent of
black and total Regular Supervisory or WS employees by department
and level; (c) number and percent of black and total Production
Facilitating or WD, WN, WB, WX and WY employees by department
and level; and (d) number and percent of black and total Regular
Nonsupervisory or WG employees by department and level. The
three non-GS categories although organized somewhat differently
are equivalent to the single 1971 and 1972 non-GS or ungraded
category. The 1973 tables demonstrate the same consistent
pattern of disproportionate concentration of black employees at
lower job levels revealed in the 1971 and 1972 tables.
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 75-2182
JAMES E. SIMMONS, et al.,
Appellants,
v s .
JAMES R. SCHLESINGER, et al.,
Appellees.
On Appeal From The United States District Court
For The Eastern District Of Virginia
Norfolk Division
BRIEF FOR APPELLANTS * 9
STATEMENT OF ISSUES PRESENTED
In a civil action brought by black federal employees
pursuant to §717 of Title VII of the Civil Rights Act of 1964,
9
as amended, 42 U.S.C. §2000e-16, the Fifth Amendment, 5 U.S.C.
§7151, and Executive Order 11478, to redress racial discrimina
tion in agency employment practices:
1. Whether the district court may deny federal
employees the right to maintain a class action
pursuant to Rule 23(b)(2), Fed. R. Civ. Pro.,
on behalf of other similarly situated black
employees?
2. Whether the district court may deny federal
employees the right to prepare for trial of
the individual claims by conducting discovery
calculated to uncover broad and systemic
patterns and policies?
3. Whether the district court properly applied
recognized principles of substantive Title VII
law to the claims of the individual plaintiffs?
STATEMENT OF THE CASE
On June 12, 1974, after unsatisfactory agency resolu
tion of the charge of racial discrimination filed by plaintiffs
James E. Simmons, Edward S. Ferebee, Melvin L. Holloman and
Wilton L. Day, with the Naval Air Rework Facility in Norfolk,
Virginia (hereinafter "NARF"), this suit for declaratory and
injunctive relief against racially discriminatory employment
practices at the NARF under 42 U.S.C. §2000e-16, the Fifth
Amendment, 5 U.S.C. §7151, and Executive Order 11478 was
brought as a class action pursuant to Rule 23(b)(2), Fed. R. Civ.
_ 2_ /
Pro. (App. 4). The complaint charges defendants James R.
Schlesinger, Secretary of Defense; John Warner, Secretary of the
Navy; and Captain E. F. Shine, Jr., NARF Commander, with systemic
2
j y
This action was also brought under 5 U.S.C. §7154,
E.O. 9980, E.O. 10590, E.O. 11246, E.O. 10577, and E.O. 11141.
_2_/
Jurisdictional bases cited were 42 U.S.C. 2000e-16(c)
and (d); 42 U.S.C. 2000(e)-5(f)-(k); 5 U.S.C. §§7151 and 7154;
28 U.S.C. §§1331(a), 1343(4), 1361, 1364(a)(2), 2201 and 2202;
and 5 U.S.C. 5596.
3
discrimination against black persons in the areas of, inter alia,
hiring practices; denial of promotions; denial of assignments
of supervisory duties; utilization of a system of promotion
which relies on unvalidated subjective recommendations of
supervisors; unequal treatment by supervisors' including more
stringent performance standards and more severe disciplinary
penalties; refusal to promote and assign appropriate duties to
those who successfully complete training programs; assignment
and transfer into work groups and job categories with low
advancement potential; refusal to develop and implement
effective affirmative action programs; discouraging filing of
discrimination complaints; failure to discipline or reprimand
supervisors for taking discriminatory actions; failure to
terminate effects of past and present discrimination; and
failure to promote the named plaintiffs. A motion was filed
on August 23, 1974 to compel defendants to answer (App. 1);
J _J_/defendants filed their answer on November 22nd (App. 1).
Meanwhile, Plaintiffs' First Interrogatories to Defendant
Captain E. F. Shine, Jr., were filed August 23, 1974. (App. 14-52).
The interrogatories request information and statistical data
concerning, inter alia, organizational structure, recruitment
and hiring practices, assignment practices, training and
apprenticeship programs, temporary assignment practices,
_3/
The complaint, which originally had also alleged
discrimination on the basis of sex, was amended to remove all
such references and allegations December 4, 1974 (App. 2).
4
discrimination complaint resolution practices, racial discrimina
tion in departments, grades and jobs; promotion and transfer
practices; and evaluation and rating practices. Plaintiffs
moved to compel answers to interrogatories October 18, 1974
(App. 53-54).
On November 22nd, a pretrial conference was held
which resulted in an order setting a final pretrial conference
date of April 18, 1975 and a trial date of May 13, 1975
(App. 1-2). Defendants were also required to file their
objections to plaintiffs' interrogatories by December 6, 1975
and a hearing was set for December 13th on defendants'
objections and plaintiffs' motion to compel answers. The
next day, plaintiffs moved the court to require defendants
to immediately commence preparation of answers to plaintiffs'
interrogatories and to fix January 1, 1975 as the date for
, _ , A_/defendants to answer the interrogatories (App. 55-58).
Defendants filed a response December 5, 1974, stating that "the
government will not respond to the interrogatories because they
pertain solely to matters relating to a class action. These
AJ
The motion recited that, inter alia, defendants
had made no response to plainiffs' interrogatories in the
time specified by the local rules for objections and the
time specified by the Federal Rules for answers; the potential
class includes more than 1,000 employees and the interrogatories
are extensive; plaintiffs' counsel had requested a trial date in
the fall or late summer of 1975 so as to permit a discovery period
of 3.t least eight months, but May 13th was the latest possible
date plaintiffs could secure at the pretrial conference; and
defendants objections that plaintiffs are not entitled to a trial
novo had already been rejected by the district court in another
federal employee Title VII action, Boston v. Naval Station, and
that plaintiffs' right to maintain Title VII class actions has
long been recognized.
interrogatories are directed toward issues that were not
exhausted in the administrative process under 5 CFR 713.251
and thus cannot be advanced in this litigation." App. 59.
On December 3, 1974, defendants moved to dismiss for
lack of subject matter jurisdiction and for summary judgment
(App. 2). Defendants' supporting memoranda argued that as a
matter of law only a review of the administrative record (rather
than a trial de novo) was required, and that a class action
cannot be maintained because plaintiffs did not invoke the
procedures of 5 CFR §713.251 which permit allegations of
class-type discrimination to be raised in the administrative
process (App. 2).
The district court issued an Opinion and Order January
20, 1975 on questions concerning the discovery motions and
whether a class action could be maintained (App. 61). The
district court framed the issues as follows:
"Plaintiffs have propounded numerous interrogatories
to defendants. The great majority of the interrogatories
deal with questions and issues which would only pertain
if this action proceeds as a class action. Defendants
raise numerous objections to these interrogatories. It
therefore seems appropriate to deal with these issues
as a whole. For until the action is directed or ordered
to proceed as a class action the great majority of the
interrogatories will not be relevant (App. 63).
The court went on to hold (1) that named plaintiffs "are
limited in this case to raising-those issues presented in their
administrative proceedings because they will not have exhausted
administrative remedies as to other issues" and (2) "Hence, it
is quite apparent that defendants should not be required to
answer all the interrogatories heretofore filed" (App. 65-66).
5
6
Counsel were to confer on the interrogatories and a hearing
could be requested as to those interrogatories the parties were
unable to agree on.
Counsel did confer on the interrogatories February 20,
1975, but were unable to arrive at any agreement. Thereafter,
on April 11th, plaintiffs moved, without opposition, for a con
tinuance of the May 13th trial date (App. 68). The motion states
that additional time for proper discovery is necessary because of
the delay in discovery in this proceeding and the workload of
plaintiffs' counsel in several previously scheduled employment
discrimination class actions. The same day, a Motion To Recon
sider Order Denying Class Action And Motion To Compel The
Defendants To Answer Interrogatories was filed (App. 70). The
motion recites, inter alia;
5. Plaintiffs assert that they are entitled to
have this litigation proceed as a class action through
the discovery stages at the least according to
McDonnell Douglas v. Green, 411 U.S. 792 (1973). In
restraining the discovery process, plaintiffs
cannot obtain the necessary information from the
defendants which could demonstrate that the employment
and promotion policies practiced by defendants
discriminate against blacks as a class and that a class
action is proper. The information requested can be
obtained only from defendants. 6
6. Plaintiffs have complied with all administrative
and statutory prerequisites for maintaining this suit.
Because plaintiffs are not allowed to raise class
issues during the administrative process, their
opportunity to raise certain issues is provided only by
pursuing this class action in the Federal Courts. It
is well established that class actions are particularly
suited where violations of civil rights are involved.
(App. 71).
7
Attached to plaintiffs' supporting memorandum were Civil Service
Commission documents on the inability of federal employees to
_5_/
raise class issues in the administrative process (App. 3).
The scheduled final pretrial conference of April 18, 1975
was held and an order on final pretrial conference was
issued (App. 79).
On April 23, 1975, the district court denied all the
pending motions (App. 77). The lower court stated:
"This case is scheduled for trial May 13th. The
denial of the motion to proceed as a class action and
not to grant a de novo trial was covered by written
order of January 20th. Permitting this case to now
proceed as a class action would necessitate changing
the date of trial. The named plaintiffs are entitled
to have their cases heard promptly. The same applies
to a renewal of the request to require defendants to
answer the numerous interrogatories propounded. The
case will proceed to trial May 13, 1975. (App. 77-78).
On April 25th, plaintiffs filed notice of appeal to this
court pursuant to 28 U.S.C. §1292 from the April 23rd order
(App. 95) and an accompanying motion to stay the proceedings
pending appeal (App. 97). The appeal was docketed No. 75-8162
The stay motion was denied May 9th (App. 99), and the interlocutory
appeal subsequently withdrawn May 13th (App. 99a).
Dissatisfied with information being supplied by
defendants informally on the individual claims, plaintiffs'
A / The district court in a letter dated April 11,
1975 responded that "The court will not change its ruling
with respect to the question of a class action and the final
pretrial conference and trial will proceed as scheduled."
Thereupon, plaintiffs filed a motion for an interlocutory
appeal pursuant to 28 U.S.C. §1292(b) on the class action and
discovery questions (App. 73).
counsel on May 8, 1975, requested a subpoena requiring
Captain Shine and the Civilian Personnel Officer to appear
May 13th with copies of documents concerning promotion to
the particular GS levels at issue in the individual claims
of named plaintiffs (App. 1108). In response, defendants
filed a Motion For Protective Order Under Federal Rules of
Civil Procedure 26(c) opposing the production of the subpoenaed
documents with an attached affidavit of the Civilian Personnel
Officer on May 12th (App. 3a). The motion recited that (1)
the material sought pertains to the class action; (2) plaintiffs'
counsel have been furnished with available information
regarding the individual lawsuit; and (3) producing the
subpoenaed personnel.folders would violate the right to
privacy. The court withheld any ruling on the subpoena (Tr. 442-
457). Accordingly, the great bulk of the documents were not
produced.
Trial of the individual claims of named plaintiffs was
held May 13th and 14th. On May 30, 1975, plaintiffs filed a
Renewal Of Motions To Reconsider Order Denying Class Actions And 6
8
6 /
The subpoenaed documents include, inter alia,
personnel folders and race of applicants to GS-5 and GS-7 posi
tions since 1960; personnel folders and race of persons who
received a supervisor's appraisal or performance rating from two
members of the promotion panel involved in named plaintiffs'
individual claim; notes, forms, rating sheets, or other memoranda
from GS-5 or GS-7 rating panels since 1960; GS-5 and GS-7 registers
with racial identification since 1960, announcements for each
GS-5 and GS-7 position since 1960; documents identifying and
describing any person who served on any GS-5 or GS-7 rating and
selection panel since 1960; and documents describing application,
cosideration and selection information and statistics for each
GS-5 and GS-7 promotion register since 1960.
9
To Compel Defendants To Answer Interrogatories In Light Of
Evidence Presented At The Trial Of The Individual Claims (App.
92b;.) . The district court then issued its final judgment of
July 24, 1975 against named plaintiffs on their individual
claims of discrimination (App. 100).
Plaintiffs filed notice of appeal on September 17,
1975 (App. 122). This court has jurisdiction pursuant to 28
U.S.C. §1291 to review denial of class action consideration
of this Title VII suit challenging across-the-board employment
discrimination at the Naval Air Rework Facility in Norfolk,
Virginia; denial of discovery of broad and systemic patterns
of discrimination to properly prepare for trial of the
individual claims of the named plaintiffs; and denial of the
individual claims.
STATEMENT OF FACTS
Historic Racial
Discrimination At NARF
Although plaintiffs were specifically precluded from
conducting discovery and presenting evidence of historic racial
discrimination at NARF at the trial of the individual claims,
the reco.rd does contain some such evidence.
1. Trial Testimony Concerning
Job Histories Of Black Employees
The job histories of black employees that do appear
in the record illustrate how historic discrimination adversely
affected their employment rights. Plaintiff Ferebee was
initially employed at NARF in the 50000 department in menial
WG helper or labor position in 1947 when such positions were
still all-black. The situation was the same when plaintiff
Day began his employment in 1961. (App. 79, 324-25)-
The work done by helpers and laborers in the 50000 department
is cleaning aircraft; i_.e. , removing paint, corrosion, rust,
dust, dirt, grime and grease and particles from aircraft and
components with solvents that give off toxic fumes (App. 324,
364 ). These positions remain traditional black jobs. Thus,
as late as 1971, all 34 helper or laborer and 108 of 166 inter
mediate positions in the 50000 department were held by black
employees. The NARF NORVA Representation table for 1972 shows
the comparable statistics were 30 of 34 helpers or laborers and
147 of 194 intermediates. The statistics for low level WG
positions for 1973 and 1974 are similar (DX 11, App. 627, 630).
contrast, black employees held only 26 of 42 journeyman or
equivalent positions in 1971 and 6 of 17 in 1972 (id.).
Plaintiff Ferebee in 1957 and plaintiff Day in 1965
each advanced to the WG position of production dispatcher in
the 50000 department which was the top job in the line in terms
of pay, working conditions and responsibilities open to those
who start as helpers and laborers (App. 325-26). (Plaintiff
Holloman began his NARF employment in 1956 as a warehouseman
and advanced, apparently through a different progression, to
_JZ/Prior to 1961, the installation was known as Naval
Supply Center. In 1961, the former employees of the Center
became a part of the newly created NARF.
11
production dispatcher in the 50000 department in 1961.) The
dispatcher position was a dead end job without further advance
ment possibilities (App. 189-90, 325-326, 365), although the
production dispatcher's duties are similar to those of the pro
duction controller's position (App. 325). The
controller position prior to 1968 was restricted to employees
with journeyman or trade background (App. 329 , 305).
In 1968 the position was changed from ungraded to GS but the
qualifying experience still limited candidates to.those with
journeyman or trade background (App. 318-19). Black employees
8_/naturally had difficulty obtaining such experience. Paper
qualifications and testing scores were bars to transfer and
promotions (App. 331, Tr. 228). Named plaintiffs did not receive
details or temporary promotions to production controller until
19 71.
It was not until 1972 that entry qualifications for
the production controller position were changed in order to
permit black employees, including named plaintiffs, to promote
to the intitial 50000 department production controller GS-5
position ( DX 20, App. 102 ). Thus, the 1973 Affirmative
Action Plan characterized as a problem that the-entry level of
8/
For example, plaintiff Day, after becoming a pro
duction dispatcher, tried unsuccessfully to get a demotion in
order to be able to gain journeyman experience to qualify for
production controller (App. 329 ). Plaintiff Ferebee applied
unsuccessfully for a transfer for the same purpose (App. 365 ).
Even when black employees had a journeyman background1", as did
plaintiff Simmons, they were usually passed over for the position (App. 436 ) .
12
production controller GS-5 and GS-7 positions eliminated many
applicants with potential (DX 13, App. 674 ). The 1974 Plan
took note of the problem that women and minorities are
underrepresented in grades GS-9 through GS-13 and specifically
required the 50000 department to increase the number of minori
ties in grade GS-9 by 200% (DX 13, App. 703-4). DX 11 statis
tics show that for 1971 through 1973 when the formal administra
tive complaint in the instant case was filed, there was only
one black GS-9 production controller in the 50000 department and
none in the higher GS grades. In 1971 there were 41 white
employees at GS-9 and 28 at higher GS levels. In 1973, there
were 38 at GS-9 and 31 at higher GS levels. The comparable
9/statistics for 1974 are 39 and 37 (App. 632).
The present record indicates that the almost all
white supervisory force, supra, affects promotional rights of
black employees in such ways as detailing and temporary pro
motions (see, e. g., App. 331-33, Tr. 399-402) , .transfers , assignment to
duties generally, supervisory appraisals (see, e.g., App. 338-
339 ) and promotion panels. As noted above, DX 13 indicates
that supervisory enforcement of EEO goals was a persistent
problem. Defendants' trial witnesses also indicated that supervi
sors' subjective "judgment" is a sanctioned and significant
9/
DX 11 statistics also indicate that although the
50000 department is disproportionately black because of the
large number of low level ungraded black employees, white
employees predominate at all high level and supervisory
positions graded or ungraded (App. 620).
13
factor in most employment decisions at NARF, with respect
10/to the individual claim, infra-
2 - NARF EEO Affirmative Action Plans
The Affirmative Action Plans acknowledge problems in
the NARF equal employment opportunity program and specify
what corrective actions are required to achieve "full integration
in all occupations and levels". The' same problems with, inter
alia, recruitment, utilization of skills of present employees,
upward mobility and treatment by supervisors recur in all the
11/ plans.
Patterns and Policies of Employment Discrimination
Plaintiffs were also precluded from conducting
discovery and presenting statistical evidence of patterns and
policies of present-day systemic discrimination, but some NARF-
wide statistics are set forth in several of defendants’ exhibits
(DX 11, App. 620). Although these statistics are unrefined,
10/
Although plaintiffs were limited to discovery and
presentation of evidence concerning the specific individual
claims, plaintiffs' witness James testified to several instances
of discrimination resulting from actions by white NARF supervi
sors in another department and Executive Officer Commander
Zaborniak. (App. 407-22). This testimony was uncontradicted.
11/
The following were problems in 1973: "Minority
Group Members And Women Are Not Adequately Represented In College
Recruitment Hires"; "The Entry Level Of Some Positions Eliminate
Many Applicants With Potential"; "Some Employees In Lower Level
Dead End Positions Have Secondary Skills Which Qualify Them For
Occupations With Advancement Patterns"; "In Many Cases Represen
tation of Minorities And Women Within Selection Range Is Below
That Of Their Representation In Qualifying Occupations"; Under
Present Structure Of Supervisory Training Courses, The Importance
Of EEO^As An Item Of Special Emphasis Not Realized To Desired
Extent ; and No Criteria Have Been Established To Effectively
(Footnote 11 continued on page 14 )
14
the gross disparities are evidence that present practices
perpetuate past discrimination.
12/
1* 1971 and 1972
While 17% of all NARF Employees in 1971 held GS
positions (863 of 5085) and 20% of all white employees (795 of
3894), only 6% of all black NARF employees held GS jobs (68 of
1191). Similarly, while 23% of all NARF employees were black
(1191 of 5085) and 27% of all non-GS employees were black (1123
of 4222), only 8% of all NARF GS employees were black (68 of
13/
863) . In 1971, 49% of black non-GS employees (553 of 1123)
(Footnote 11 continued from page 13 )
Measure Supervisor Performance In Support Of EEO." The 1974
Plan contains the following additional problems: "Women And
Minorities Are Underrepresented In Grades GS-9 Through GS-13";
"Some Problems Do Not Have Normal Progression Route To The
Next Higher Level"; "Some Employees Desire To Change Their
Career Field To One Which Provides Better Or More Interesting
Work Opportunities"; "Serious And Significant Inconsistencies
Exist Among Panels Established To Evaluate Job Applicants".
The lists of problems in the 1971, 1972 and 1975 plans are
similar (ox 11, App. 620).
12/
For 1971 and 1972, DX 11 contains tables showing (a)
number and percent of black and total General Schedule or GS
employees by department and GS level, and (b) number and percent
of black and total non-GS or ungraded employees by department and
job title. The 1971 tables appear complete, but GS and non-GS
statistics were not available for the large 60000 department and
non-GS statistics for the small 90000 department in the 1972
tables. These tables generally demonstrate a consistent pattern
of disproportionate concentration of black employees at lower job
levels (id.).
11/It should be noted that non-GS employees include
the sub-journeyman positions of helper (including laborer) and
intermediate in which black employees predominate and super
journeyman supervisory positions in which black employees are
largely absent; the substantial bulk of the non-GS category,
however, are journeyman, intermediate and helper positions.
15
were in the helper (including laborer) category which was 65%
black (182 of 281) and the intermediate category which was 63%
black (371 of 594) compared to 21% of total non-GS employees
(875 of 4222) and 10% of white non-GS employees (322 of 3099) .
Fully 66% of total non-GS employees (2782 of 4222) and 72% of ■
white non-GS employees (2242 of 3099) occupied journeyman or
equivalent positions compared to 48% of black non-GS employees
, 14/(540 of 1123). Of 562 superjourneyman non-GS employees, 95%
were white (533.of 562) and 5% black (29 of 562). Superjourney
man positions in which there were no Blacks include, inter alia,
General Foreman II, Superintendent I, Superintendent II, instructor
, u ■ . 15/and progressman. This pattern was consistent across departments.
As to GS positions in 1971, 46% of black GS employees
(31 of 68) were in grades below GS-6 compared to 21% of total
GS employees (182 of 863) and 19% of white GS employees (149 of
795). 43% of black GS employees (29 of 68) were in grades GS-6
through GS-10 compared to 55% of total GS employees (471 of 863)
and 56% of white GS employees (442 of 795). 9% of black
14/
The worker trainee position that appears on the
tables is assumed not be a superjourneyman position.
15/
In addition., while 27% of non-GS employees were
black, over half were concentrated in three departments: the
50000 department (42% or 172 of 407), the 60000 department (40%
black or 156 of 394), and the 92000 department (41% black or
272 of 666) ; only 28% of white non-GS employees were in these
departments. The four other sizeable departments were the
94000 department (17% black or 176 of 1027), the 95000 depart
ment (16% black or 82 of 509), the 96000 department (23% black
or 147 of 633) and the 97000 department (20% black or 113 of
574); 72 % of white non-GS employees were in these departments
(2235 of 3099). The 10000 department (5 employees), 20000
department (1 employee) and 9000 department (6 employees), have
small numbers of non-GS positions.
17
and 1972. The breakdown of employee distribution by race xn non-
17/
GS positions is also comparable.
As to GS positions in 1973, 52% of black GS employees
(41 of 79) were in grades below GS-6 compared to 27% of total
GS employees (244 of 916) and 24% of white GS employees (203
of 837). 38% of black GS employees (30 of 79) were in grades
GS-6 through GS-10 compared to 47% of total GS employees (433 of
916) and 48% of white GS employees (403 of 837). 10% of black
GS employees (8 of 79) were in grades higher than GS-10 compared
to 26% of total GS employees (240 of 916) and 28% of white GS
employees (232 of 837). This pattern was consistent from
department to department -
17 /— Almost all or 96% of black non-GS employees held
Regular Nonsupervisory or WG positions (861 of 903) rather than
Regular Supervisory or Production Raciiitatxng; the proportion
of WG employees to total non-GS employees was 86% (3040 of 3528)
and of white WG employees to white non-GS employees 63* (2179
3462.) Although 28% of WG were black (861 of 3040), black
employees were disproportionate concentrated in lower levels.
Thus, 7% of black WG employees were in grades lower than WG-6
(62 of 861) compared to 5% of total WG employees (139 of 3040)
and 4% of white WG employees (77 of 2179). 84o of black WG
employees were in grades WG-6 through WG-11 (720 of 861) compared
to 76% of total WG employees (2316 of 3040) and 74* of white
emolovees (1596 of 2179). 9% of black WG employees were in grades
higher than WG-11 (79 of 861) compared to 19% of total WG employees
(585 of 3040) and 23% of white WG employees (506 of 2179) . Witn
respect to Regular Supervisory or WS employees, 12% 'were ^lack
(26 of 216) and black employees were disproportionately_clustered
at lower levels. Thus, 38% of black WS employees were m grades
below WS-7 (10 of 26) compared to 6% of total WS employees (12
216) and 1% of white WS employees (2 of 190). 58% of black
employees were In grades wl-7 through WS-11 (15 of 26) compared
toP81% of total WS employees (174 of 216) and 84* of white WS
emolovees (159 of 190). Only 6% of Production Facilitating
or WD, WN, WB, WX and WY positions were held by black employees
(16 of 272).
17
and 1972. The breakdown of employee distribution by race in non-
17/GS positions is also comparable.
17/
Almost all or 96% of black non-GS employees held
Regular Nonsupervisory or WG positions (861 of 903) rather than
Regular Supervisory or Production Facilitating; the proportion
of WG employees to total non-GS employees was 86% (3040 of 3528)
and of white WG employees to white non-GS employees 63% (2179 of
3462) . Although 28% of WG were black (861 of 3040) , black
employees were disproportionate concentrated in lower levels.
Thus, 7% of black WG employees were in grades lower than WG-6
(62 of 861) compared to 5% of total WG employees (139 of 3040)
(77 of 2179). 84% of black WG
through WG-11 (720 of 861) compared
(2316 of 3040) and 74% of white WG
of black WG employees were in grades
,qnr , ̂ -7* compared to 19% of total WG employees(585 of 3040) and 23-s of white WG employees (506 of 2179) . With
respect to Regular Supervisory or WS employees, 12% were black
(26 of 216) and black employees were disproportionately clustered
at lower levels. Thus, 38% of black WS employees were in grades
below WS-7 (10 of 26) compared to 6% of total WS employees (12 of
216) and 1% of white WS employees (2 of 190). 58% of black WS
employees were m grades WS-7 through WS-11 (15 of 26) compared
to 81-3 of total WS employees (174 of 216) and 84% of . white WS
employees (159 of 190). Only 6% of Production Facilitating
U 6 Wof 272)WB' WX ^ m p°sitions were held bY black employees
and 4% of white WG employees
employees were in grades WG-6
to 76% of total WG employees
employees (1596 of 2179). 9%
higher than WG-11 (79 of 861)
18
Claims Of The Named Plaintiffs
The favored positions in the 50000 department are
the positions of production controller GS-9 and above (App. 331).
Since 1968, the production controller position has been a GS
position and subject to the merit promotion policies set forth
in General Schedules Handbook X-118 (DX 9, App.189-90, 331). In
addition to the production controller positions at the GS-9
level and above, there are such positions at GS-5 and GS-7.
Because of the nature of federal employment promotion procedures
(App. 9 9 7-10 2 0), the positionof production controller GS-7 is
generally considered as the threshold position for the GS-9 and
higher levels in the 50000 department (App. 331).
On July 20 and July 27, 1972, respectively, Merit
Promotion Vacancy Announcements No. NG14A-72, for the position
of Production Controller GS-7, and No. NG13A-72 for the position
of Production Controller GS-5 were published (App. 79-80) . The
requirements for the GS-5 and GS-7 positions as described in the
two announcements were virtually identical (App. 81 ). In
particular, the duties of the production controller and the
evaluation factors for both announcements were identical (App.
540). The announcements differed only in the qualification
standards as prescribed by Handbook X-118 regarding length of
general and specialized experience required for any GS-5
and GS-7 production controller series position. Because of the
similarity in requirements, several applicants, including the
four plaintiffs, submitted identical applications for both
positions (App. 80 ).
The GS-5 rating panel met in the fall of 1972 (App.
80 ). The panel met for some weeks and used the information
contained in the applications and the official personnel folders
in its deliberations (App. 80 ). The panel used the GS-5
Production Control crediting plan in rating the
eligible applicants (App. 80 ).
The GS-7 panel met during the summer of 1973 after
the GS-5 register had been established and promotions made to
18_/
GS-5 positions (App. 80 ). The GS-7 panel used the crediting
plan for Production Controller GS-7 and did not have access to
the personnel folders (App. 80 ).
On August 15, 1973, notices of ratings for the
Production Controller GS-7 were mailed to the applicants. On
September 19, 1973, a revised register for said position was
19/
announced (App. 600 ). As a result of the revised GS-7 register
plaintiffs became aware of certain discrepancies between the
rankings of applicants on the GS-5 and GS-7 registers.
Specifically, plaintiffs noticed that several Whites who had
applied for both registers ranked lower than Blacks on the
GS-5 .register, but higher than those same Blacks on the GS-7
19
lfi/The GS-5 panel's actions had no effect on the GS-7
panel's deliberations since the applications could not be up
dated (App. 1004). Compare the lower court's finding at p. loo-
101 of the Appendix.
19/
The revised register is a ranking of each applicant
made up after all applicants are given an opportunity to informal
ly challenge their original rating ( Tr. 230-31) .
20
register (App. 82 )• Plaintiffs' rankings, as well as the
rankings of other Blacks were so much lower on the GS-7 register
that they were placed out of the area of consideration for
2_0_ /
promotion (App. 82 ) .
A comparison of the rankings on the two registers is
presented in PXlA - 1G (App. 559-66). That comparison shows that
of all applicants who applied for both registers, 40.8% of the
white applicants were ranked higher on the GS-7 register than
they had been on the GS-5 register. By contrast, 77.1% of all
Blacks who applied for both registers ranked lower on the GS-7
register than they had on the GS-5 register (id.). Consequently,
Whites who had been deemed less qualified than Blacks to hold
GS-5 positions were now being placed in GS-7 positions ahead of
2_1_/
those same Blacks.
As a result of these disparities, plaintiffs contacted
Luther Santiful, Deputy Equal Employment Opportunity Officer
(DEEO), and informed him that they believed they had been
discriminated against because of race (App. 82 ). Mr. Santiful
referred them to EEO Counselor H. R. Nelson for the purpose of
filing an informal complaint of racial discrimination in
accordance with CSC regulations (App. 82 ). On November 26,
2_0_/
Plaintiffs had previously been promoted from the
GS-5 register (App.1021).
21_/
It should be noted that only 14.3% of all Blacks
who applied for both registers were ranked higher on the GS-7
register than they had been on the GS-5 register.
1973, Mr. Nelson submitted a written report on plaintiffs'
allegations to Commander Walter J. Zaborniak, Executive Officer
of NARF (App.263-264).Thereafter, a meeting was held between
the plaintiffs and Mr. Santiful at which plaintiffs were
requested to return their copies of Nelson's report because
of "libellous" statements contained therein (App.381-383). The
libellous statements were Nelson's findings that certain panel
22/members had discriminated against plaintiffs (App.265 ). As
a result, Nelson's report was retyped, redated and submitted to
Captain Shine on November 28, 1973. The revised report indicated
that "[t]he ratings performed by the GS-7 rating panel have the
appearance of being racially biased." (App. 82) .
At some time between November 26 and 29, 1973, and
with Captain Shine's knowledge and consent, a special committee
was set up by Commander Zaborniak to explore the cause of the
disparities between the GS-5 and GS-7 rankings (App. 82 ). This
action was entirely outside the EEO complaint process (App. 82 ),
23/
and was unprecented (App. 269-70) . The special review committee
consisted of four persons, selected and briefed by Commander
Zaborniak (App. 270 ). Using the same crediting plan utilized
by the GS-7 panel, the review committee rated each of the top 30
applicants on the GS-7 register. Commander Zaborniak, with the
21
22_ /
Compare Captain Shine's testimony that "there are no
restrictions on what a counselor can put in his investigation
report." App. 150
23/
In fact, plaintiffs specifically objected to the
establishment of such a committee (App. 573 ).
assistance of personnel specialists, then applied the same
procedures to rank the applicants as did the GS-7 panel
(App. 269 )• The results of this review are located at p. 772
of the Appendix. Those results reveal a disparity between
the rankings of the GS-7 panel and those of the review
committee. In general, Whites were ranked lower by the
review committee than by the GS-7 panel. By the same token,
Blacks were ranked higher by the review committee than by
the GS-7 panel (id.). Basically, the review committee
results were much more in line with the rankings as they had
appeared on the GS-5 register.
On or about December 3, 1973, Zaborniak and Santiful
24/
again met with the plaintiffs. In spite of the discrepancies
found by his committee, Zaborniak informed plaintiffs that they
"all came out about the same." Tr. 345-346. Plaintiffs requested
to see the committee's results, but Zaborniak refused ( Tr.346).
Because no action was taken on their informal
complaint, plaintiffs filed a formal charge of racial discrimination
on December 3, 1973 (App. 83 ). In addition to their allegation
that they had been placed out of the area of consideration for
promotion to GS-7 because of race, plaintiffs also alleged that
the discrimination complained of occurred "when there is a majority
of Black applicants." App.£3, 735. Pursuant to applicable CSC
22
2 4/
Plaintiffs' requests to meet with Captain Shine
were refused by Zaborniak on the basis that Captain Shine could
not jeopardize his ability to eventually make an unbiased
decision (App. 134 ). However, Zaborniak made frequent reports
to Shine concerning his (Zaborniak's) findings (App. 278 )•
and agency regulations, Moses T. Boykins was assigned to
investigate plaintiffs' formal complaint. Said investigation
was conducted from December 21, 1973 to February 15, 1974
(App. 84). As a result of his investigation, Mr. Boykins
found that plaintiffs were discriminated against because of
their race and recommended that corrective action be taken
(App. 84 ). Mr. Boykins' finding marked the first time at
NARF that any investigator had made a finding of racial
25/
discrimination (App. 188 ). In spite of this finding,
however, Captain Shine determined that a second investigation
was necessary. This also marked the first time that an
investigator's report was rejected or that a second investigation
was ordered (App. 84 ). In requesting a second investigation,
Captain Shine stated that Mr. Boykins' investigation was not
sufficient to allow him (Shine) to reach any determination on
plaintiffs' complaint (App. 84 ).
The second investigator, Berton E. Owens, conducted
the further investigation requested by Captain Shine from
26/
March 14 through March 29, 1974. As a result of his investiga
tion, Mr. Owens concluded that although the GS-7 panel had used
invalid procedures, he could not make a finding of racial
discrimination (App. 764). Although Captain Shine testified
23
25/Prior to this time, approximately 15 formal
complaints of racial discrimination had been filed at NARF
(App.187-188).
26/This further investigation consisted of Mr. Owens'
obtaining additional affidavits from panel members and other
alleged discriminators (App. 764 and 180-8]) •
that Owens' report was also insufficient (App. 182 ), he
decided to accept the findings contained therein because "at
some point in time I had to come to some proposed disposition
in this case." App. ]_86 • As a result of that disposition,
plaintiffs filed the instant lawsuit.
A R G U M E N T
Introduction
The questions presented for review in this action
against a federal agency are not unprecedented in employment
discrimination jurisprudence. Whether class action enforcement
of equal employment opportunity is appropriate has been decided
uniformly in favor of employees' full access to the judicial
process. See, e.g., Moss v. Lane Company, Inc., 4 71 F.2d
853 (4th Cir. 1973). Similarly, the right of individual
plaintiffs to conduct discovery of systemic plant-wide discrimi
nation, see, e.g., Rich v. Martin Marietta Corp., 522 F.2d 333
(10th Cir. 1975), and the decisive importance of statistical
evidence in the determination of discrimination, see, e.cj. ,
Barnett v. W. T. Grant Company, 518 F.2d 543 (4th Cir. 1975), have
repeatedly been affirmed. Simply stated, federal employees
seek no more or less than what employees of a private company,
see, e.g., Brown v. Gaston County Dyeing Machine Co., 457 F.2d
1377 (4th Cir. 1972), cert, denied, 409 U.S. 982 (1972), or
state or local government employer, see, e.g., Morrow v.
Crisler, 479 F.2d 960(5th Cir. 1973), affld en banc, 491 F .2d
1053 (5th Cir. 1974) , are entitled. The federal government, on
the other hand, seeks an exemption from the kind of challenge
24
25
to discriminatory policies and practices it has consistently
encouraged in this and other courts against all other alleged
discriminatory employers. See, e_. g. , United States v. Chesapeake
and Ohio Ry Co., 471 F.2d 582 (4th Cir. 1972); Graniteville
Co. v. EEOC> 438 F.2d 32 (4th Cir. 1971).
These issues are but three of the narrow and techni
cal devices which government lawyers defending federal agencies
in employment discrimination suits have raised in a concerted
effort to forestall the full judicial consideration of the
merits required in Title VII litigation. Other such devices
include (a) denying federal employees' right to bring a Title
VII action for discimination occurring prior to the effective
2 7/
date of the statute; (b) denying the powers of the federal
2 8/
courts to grant preliminary injunctive relief under Title VII;
(c) denying federal employees 1 right under Title VII to a
plenary trial or trial de novo in favor of a review of the
29/
administrative record only; (d) seeking remand to agency
3 0/
proceedings to complete an administrative record; and
— See, e.g., Roger v. Ball, 497 F.2d 702 (4th Cir.
1974) . The Solicitor General recently conceded error on this
issue in his Memorandum In Response to Petition for Rehearing in
Place v. Weinberger, October Term, 1974, No. 74-116, petition
for rehearing pending.
2—^See, e.g, Parks v. Dunlap, 517 F.2d 785 (5th Cir.
1975) .
^See, e.g., Hackley v. Roudebush, 520 F.2d 108 (D.C.
Cir. 1975) .
3 0/
See, e.g., Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir.
1975) .
26
(e) denying the existence of alternative bases of jurisdiction
31/
for judicial enforcement. The instant case is an example of
the comprehensive nature of the government's defense strategy:
the government also advanced the last three of these positions
below. If the district court had accepted all of the govern
ment s contentions, it would have been reduced to a rubber stamp
for the review of an administrative record compiled by agents
of the defendant agency concerning what happened to individual
employees. The district court did order a trial de novo of the
individual claims under Title VII, but without class action,
full right to discovery or determination under applicable Title
VII substantive law. Thus, no broad inquiry was conducted into
challenged employment policies and practices whose adverse dis
parate impact on black employees is evident even on the record
compiled, notwithstanding the "plain . . . purpose of Congress
to assure equality of employment opportunities and to eliminate
those practices and devices which have fostered racially
stratified job environments to the disadvantage of minority
citizens." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800
(1973), citing Griggs v. Duke power Co., 401 U.S. 424, 429 (1971).
See also Albermarle Paper Co. v. Moody, ____U.S. , 45 L.Ed 2d
280, 296 (1975). ,
Although analytically related because of the
significance of scrutiny of systemic discrimination throughout,
the questions presented nevertheless require independent
31/
See, e.g., Petterway v. Veterans Administration
Hospital, 495 F.2d 1223 (5th Cir. 1975).
27consideration and resolution. First, the lower court
32_/
erroneously precluded a class action. Second, denying
plaintiffs the right to prepare for trial of the individual
claims by conducting broad discovery is in itself sufficient
reason to reverse the ruling on the individual claims.
McDonnell Douglas Corp. v. Green, supra. Third, the decision
on the individual claims is clearly erroneous because of the
failure to apply recognized substantive Title VII law on
statistical demonstration of the prima facie case and rebuttal
evidence to the adjudication of the claims. Had the district
court done so, plaintiffs as a matter of law would have pre
vailed even on the existing record. For this reason, the
decision on the individual claims should be reversed and
judgment in favor of named plaintiffs ordered. Barnett v. W.
T . Grant Co., supra.
I
THE DISTRICT COURT ERRED IN DENYING
FEDERAL EMPLOYEES THE RIGHT TO MAIN
TAIN A CLASS ACTION PURSUANT TO RULE
23(b)(2) FED. R. CIV. PRO. ON BEHALF
OF OTHER SIMILARLY SITUATED EMPLOYEES
The lower court concluded that a class action could
not be maintained for claims arising under §717 of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-16
for lack of exhaustion of available administrative remedies.
The named plaintiffs filed their joint "individual" administra
tive complaint from the failure to promote under 5 CFR §§713.211
The law of this circuit is clear that the action can
so proceed irrespective of any questions concerning the
individual claims. Brown v. Gaston County Dyeing Machine Co,
supra, at 1380; Moss v. Lane Company, Inc, supra; Barnett v. W.
T. Grant Co., supra, at 548 n.. 5.
33/ 28
et seq., but did not file a "third party complaint" pursuant
34/
to 5 CFR §713.251 The district court's order of January 20,
1975 states:
"From the allegations of the complaint
it is very unlikely that the bases of
failing to promote or advance plaintiffs
would govern others. Further, they are
limited in this case to raising those
issues presented in their administra
tive proceedings because they will not
have exhausted administrative remedies
as to other issues." App. 65-55.
Although the lower court did not specifically refer to
exhaustion of third party complaint procedures, defendants'
reliance and express citation of §713.251 erases any doubt as
to the lower court's reasoning, supra, p. 5 . Moreover, the
lower court made clear that its ruling on exhaustion of class
wide claims was the only reason a class action could not be
maintained (App. 63 - 65)..
This result erroneously celebrates form over substance
The duty of the Civil Service Commission and federal agencies
to consider systemic, classwide discrimination in the complaint
resolution process as well as other equal employment oppor
tunity programs derives from statutory command, not from the
trigger of specific allegations. §2000a-16(a) states "All
personnel actions affecting employees or applicants for employ
ment . . . shall be made free from any discrimination based on
race, color, religion, sex, or national origin." (Emphasis
33/
5 CFR §713.211 et_ seq. is set forth in Attachment A
5 CFR §713.251 is also set forth in Attachment A.34/
29
added). The Senate committee report explained the meaning of
this provision when it expressly called into question the
assummption of the Civil Service Commission that "employment
discrimination in the Federal Government is solely a matter of
malicious intent on the part of individuals."
"Another task for the Civil Service
Commission is to develop more expertise
in recognizing and isolating the various
forms of discrimination which exist in
the system it administers. The Commission
should be especially careful to ensure
that its directives issued to Federal
agencies address themselves to the various
forms of systemic discrimination in the
system. The Commission should not assume
that employment discrimination in the
Federal Government is solely a matter of
malicious intent on the part of individuals.
It apparently has not fully recognized that
the general rules and procedures that it has
promulgated may in 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., . . . Tne inevitable
consequence of this kind of technique in Federal
employment as it has been in the private sector,
is that classes of persons who are socio-economically
or educationally disadvantaged suffer a very
heavy burden in trying to meet such artificial
qualifications." 35/
The House Committee concurred:
"Aside from the inherent structural
defects the Civil Service Commission has
been plagued by a general lack of
_iy
Subcomm. on Labor of the Senate Comm, on Labor and
Public Welfare, Legislative History of the Equal Employment
Opportunity Act of 1972 (Comm. Print 1971) (hereinafter
"Legislative History") at 423.
30
expertise in recognizing and isolating
the various forms of discrimination which
exist in the system. The revised directives
to Federal agencies which the Civil Service
Commission has issued are inadequate to meet
the challenge of eliminating systemic dis
crimination. The Civil Service Commission
seems to assume that employment discrimination
is primarily a problem of malicious intent on
the part of individuals. It apparently has not
recognized that the general rules and procedures
it has promulgated may actually operate to the
disadvantage of minorities and women in systemic
fashion." Legislative History at 84.
There is, in short, no need for extrinsic notice to the agency
of the possibility of classwide discrimination. Whether an
employee makes allegations of systemic, classwide discrimination
in any administrative complaint, a fortiori, is unnecessary to
initiate the agency's statutory obligation to scrutinize every
3jj/
case and search for indications of systemic discrimination.
What is at issue is not exhaustion of administrative
remedies per se, but the whole technical requirement of specific
classwide allegations made in the course of administrative
exhaustion. The scope of exhaustion required in this and other
circuits with respect to private employee class actions is no
different than if they brought a Title VII action on their own
behalf only; it has been recognized that a single charge of
racial discrimination is sufficient notice for employer self
correction and a predicate for class action treatment. See
infra, p. 45 . The rule should be the same for federal employ
ment so that any complaint, whether denominated individual or
third-party, should be sufficient exhaustion for a class action
suit.
— ^It should also be clear that the very notion of
different administrative procedures for individuals and class
complaints is itself suspect. See pp. 40-44/ infra.
The D. C. Circuit in Hackley v. Roudebush, supra,
31
at 152-53 n. 177, has so ruled. The specific question that
Judge Wright addressed was whether resolution of the trial
de novo issue affected federal employees1 rights to bring class
actions. The court considered the strong federal policy of
encouraging class action litigation in situations of pervasive
discrimination (see infra, p. 34 ), 1972 Title VII legislative
history affirming the importance of class actions in employment
discrimination litigation,(see infra, p.44 ), and private
sector case law (see infra ppv32-33>, anĉ concluded by citing
the Congressional injunction to require scrutiny of systemic
discrimination:
" . . . [E]ven if the District Courts
were limited to review of the administra
tive record, it would appear that class
action treatment after a single individual
had exhausted his administrative remedies
would be proper; as Senator Williams had
argued, discrimination--particularly when
it is systemic— is almost inherently
appropriate for class treatment, and the
CSC's regulations in effect require that
agencies treat each individual's complaint
broadly enough to encompass discrimination
that may be practiced against others
similarly situated:
'The [agency] investigation shall
include a thorough review of the
circumstances under which the
alleged discrimination occurred,
the treatment of members of
the complainant's group identi
fied by his complaint as com
pared with the treatment of other
employees in the organizational
segment in which the alleged
discrimination occurred, and any
policies and practices related
to the work situation which may
constitute, or appear to con
stitute, discrimination even
32though they have not been expressly
cited by the complainant.'"
5 CFR §713.216(a) (1974) .
Applying Hackley , Judge Richey in Barrett v. U. S_. Civil
Service Commission, C.A. No. 74-1694 (D.D.C., decided
December 10, 1975), certified a federal employment class action
over defendant agency's claim that third party procedures were
not resorted to, and granted plaintiffs' motion for declaratory
judgment 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
37/
particular circumstances of each case." Compare Keeler v.
Hills, N.D. Ga. C. A. C74-2152A, 2309A, (decided
November 12, 1975); Ellis v. NARF, 10 EPD 1110,422 (N.D. Cal. 1975).
Appellants merely urge the rule in private Title
VII litigation that "the 'scope' of the judicial complaint
is limited to the 'scope' of the EEOC investigation which can
reasonably be expected to grow out of the charge of
discrimination:" Sanchez v. Standard Brands, Inc., 431 F.2d
455, 466 (5th Cir. 1970). There is no doubt that an EEOC
37/
Lest there be any doubt, it was further ordered
"that defendant Civil Service Commission shall modify existing
regulations and/or draft new regulations which reflect its
above-declared responsibilities."
33
investigation is classwide. Congress did more than find the
Civil Service Commission inexpert in recognizing and isolating
discrimination, supra; it went on to direct the Commission to
•learn from the EEOC's expertise in dealing with discriminatioi
The district court's decision approving this class
action bar is clearly in error. First, Rule 23, Fed. R. Civ.
Pro., and the face of §2000e-16 indicate that only the
exhaustion of individual administrative remedies is necessary
for judicial consideration of class action treatment in the
instant case. Second, Congress expressly disclaimed any desire
to erect any exhaustion bars to Title VII class actions in
40/
1972.
38/
39/
38/Graniteville Co v. EEOC, 438 F.2d 32 (4th Cir. 1971);
Georgia Power Co. v. EEOC, 412 F.2d 4.62 (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 New Mexico, 504 F.2d 1296 (10th Cir. 1974); New
Orleans Public Service, Inc. v. Brown, 507 F .2d 160 (5th Cir.
1975) .
12/
"The Committee wishes to emphasize the significant
reservoir of expertise developed by the EEOC with respect to
dealing with problems of discrimination. Accordingly, the
committee strongly urges the Civil Service Commission to take *
advantage of this knowledge and experience and to work closely
with EEOC in the development and maintenance of its equal
employment opportunity programs. Legislative History at 425.
See also Legislative History at 414.
A n /For the same reasons, Rule 23 class actions under
the Fifth Amendment, 5 U.S.C. §§7151, 7154 and Executive Order
11478 brought pursuant to 28 U.S.C. §§1331(a), 1343(a), 1361,
1364(a)(2), 2201 and 2202 and 5 U.S.C. §5596 are not precluded.
See, e.g. , Davis v. Washington, 512 F.2d 956 (D.C. Cir. 1975);
Petteway v. V.A. Hospital, 495 F.2d 1223 (5th Cir. 1974).
34
A. Class Actions Provided For In The
Federal Rules Of Civil Procedure
Are Not Precluded Or Limited In Any
Way By The Statutory Language Of
42 U.S.C. §2000e-16________________
The right of federal employees to bring class actions
to enforce §2000e-16 guarantees of equal employment opportunity
derives in the first instance from Rule 23, Fed. R. Civ. Pro.,
in accordance with 28 U.S.C. §§2072, 2073. Sibbach v. Wilson
&_ Co., 312 U.S. 1 (1941) . The Federal Rules of Civil Procedure,
with certain exceptions not here relevant, extend to "all suits
of a civil nature whether cognizable as cases at law or in equity
or in admiralty." The federal courts thus have no discretion
to make ad hoc determinations whether specific civil action
statutes permit class action enforcement; class actions are
permitted unless statutory language expressly precludes or limits
class action treatment. Section 2000e-16, by its terms, permits
judicial consideration of class actions without the exhaustion
imposed by the district court.
1. Rule 23(b)(2) Fed. R. Civ. Proc.
Nothing in Rule 23(b)(2) itself requires the district
court's exhaustion bar. The inquiry required by Rule 23(b)(2)
was described by the Advisory Committee in the following broad
terms: "Action or inaction is directed to a class within the
meaning of this subdivision even if it has taken effect or is
threatened only as to one or a few members of the class, pro
vided it is based on grounds which have general application to
the class." Proposed Amendments to Rules of Civil Procedure,
39 F.R.D. 69, 102. The technical exhaustion bar to class actions
imposed by the lower court is thus contrary to the pre-eminent
purpose of Rule 23(b) (2) to provide for full adjudication of
claims against a .defendant- which have general application to a
class in practical terms.
Moreover, Rule 23(b)(2) was specifically designed for
"actions in the civil rights field where a party is charged
with discriminating unlawfully against a class, usually one
whose members are incapable of specific enumeration." Id. 39
F.R.D. at 102; Barnett v. W. T. Grant, supra, at 547; Johnson
v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124 (5th Cir.
1969). What named plaintiffs in the instant case seek to raise
and remedy in a court of law--systemic, classwide employment
discrimination at the Naval Air Rework Facility in Norfolk,
Virginia— is precisely the across-the-board attack on all dis
criminatory actions by defendants on the ground of race that this
Court in Barnett found "fits comfortably within the requirements
of Rule 23(b) (2)." Moreover, Chief Judge Brown has emphasized
that "if class-wide relief were not afforded expresssly in any
injunction or declaratory order issued in Employee's behalf, the
result would be the incongruous one of the Court— a Federal Court,
no less— itself being the instrument of racial discrimination.
. . . " Jenkins v. United Gas Corp., 400 F.2d 34 (5th Cir. 1968).
Rule 23(b)(2) class actions are particularly appropriate
11/in employment discrimination litigation. The class action device
permits full scale inquiry into general employment policies and
35
11/Compare the analysis set forth in Hackley v.
Roudebush, supra, at 152-53 n. 177; Barrett v. U.S. Civil
Service Commission, supra; Keeler v. Hills, supra; Ellis v.
NARF, supra; Chisholm v. U.S. Postal Service, 9 EPD 1110,212 (W.D.
N..C. 1975); Sylvester v. U.S. Postal Service, 9 EPD 1(10,210
(S.D. Tex 1975).
36
practices. Judge Gray's reasoning in Hall v. Werthan Bag Corp. ,
251 F.Supp 184, 186 (M.D. Tenn. 1966), that "Racial discrimina
tion is by definition a class discrimination. If it exists, it
applies throughout the class", has often been cited in employment
discrimination litigation. See, e.g., Graniteville Co. (Sibley
Div•) v. EEOC; Blue Bell Boots Inc. v. EEOC; Johnson v. Georgia
Highway Express, Inc,; Jenkins v. United Gas Corp., all supra.
This principle was also accepted by Congress in 1972 in consider
ing the propriety of Title 'VII class actions for employment
discrimination. See infra, at 44 et seq. The class action
device also facilitates framing of comprehensive injunctive and
declaratory relief for the systemic features of employment
discrimination Title VII expressly seeks to rectify. Albermarle
Paper Co. v. Moody, supra; Alexander v. Gardner-Denver Co.,
supra, at 44; Griggs v. Duke Power Co., supra, at 429-30. The
Court in Jenkins noted that "the [Advisory Committee] Note's
emphasis on declaratory injunctive relief is easily satisfied
by Title VII." 400 F.2d at 34.
2. The Statutory Language of 42 U.S.C. §2000e-16
On its face §2000e-16 does not preclude or limit in
any way the Rule 23 right of federal employees to bring private
enforcement actions in the form of class actions. In particular,
there is nothing concerning different exhaustion requirements
for individual and class actions. Even in circumstances in
which the face of a statute is ambiguous for some reason, the
law is clear that class actions may be maintained. Thus, in
Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965), cert, denied,
37
384 U.S. 929 (1966), the contention was made that "the class
action filed by the named plaintiffs was not an adequate vehicle
upon which the trial court could enjoin conduct by the named
defendants, and those in active concert with them, from denying
rights to all Negro citizens," 353 F.2d at 591, in an action
under Title II of the Civil Rights Act of 1964, 42 U.S.C.
§2000a et seq. Defendants pointed out that Title II (1)
authorizes a civil action only for preventive relief to "the
person aggrieved" by the offender; (2) authorizes pattern or
practice suits by the Attorney General; and (3) contains the
express proviso that "The remedies provided in this title shall
be the exclusive means of enforcing the rights based on this
title." Considering these contentions and the statute as a
whole, the court concluded that "Congress did not intend to
do away with the right of named persons to proceed by a class
action for enforcement of the rights contained in Title II of
42/
the Civil Rights Act." 353 F.2d at 591.
In Oatis v. Crown Zellerbach Corp., 398 F.2d 496
(5th Cir. 1968), the issue came up in the Title VII context
with defendant contending that jurisdiction is absent for class
action because (1) pattern or practice suits brought by the
Attorney General are authorized and (2) the administrative,
private remedy intent and purposes of the statute will be cir
cumvented and avoided if only one person may follow the
administrative route dictate of the Act and then sue on behalf
— ^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.
of the other employees. Citing Lance v. Plummer, the court 38
again rejected the preclusive contentions on the ground that
"The Act permits private suits and in nowise precludes the class
43/action device." 398 F.2d at 498. The Court also specifically
took exception to defendants' contention, not premised on the
face of the statute, that class actions would displace the EEOC
role in advancing the purpose of the statute.
Federal employee class actions, a fortiori, are not
44/precluded or limited by any special exhaustion requirement.
First, the special exhaustion requirement for class action suits
imposed by the district court rests not on any statutory language,
as the preclusive devices in all three Fifth Circuit cases, but
on statutory silence. Derogation of Rule 23 rights to main
tain a class action necessarily requires a surer indication of
legislative intent. Imposing such a requirement is especially
awkward in light of the fact that the §2000e-16 civil action
scheme was specifically enacted (a) to cure confusion about
43/
This is not to say that Congress cannot ever pre
clude or limit class actions; only that Congress must do so in
clear and unambiguous language. For instance, in Weinberger v.
^ USLW 4985 (decided June 26, 1975), the Court had before
it such a Social Security Act provision, 42 U.S.C. §405(g),
stating: Any individual, after any final decision of the
Secretary made after a hearing to which he was a party . . ."
(Emphasis added). The Court there held that class members must
meet the expressly stated §406 (g) prerequisite of a final decision
made after a hearing to which they were parties, 43 USLW at 4389.
A similarly worded provision was proposed as an amendment to
Title VII in 1972 and specifically rejected, see infra, at 45-48.
See cases cited supra, p. 35 n.41.
44/
39
general exhaustion requirements by providing explicit
4 5/standards and (b) to limit rather than to expand exhaustion
46/requirements. Second, §2000e—16 is unlike the statutes con
sidered in Lance and Sharp in that the equivalent "person
aggrieved" language is not untested, but derives from the general
§2000e-5 provisions which had been uniformly construed before
1972 to permit class actions. Indeed, the "person aggrieved"
language had been expressly construed to permit class actions
in which the named plaintiff had exhausted only his individual
administrative remedy, and Congress approved this construction
in 1972. See infra, at p. 44 et seq. Third, §2000e-16 is
unlike the statutes considered in Oatis and Lance in that the
private civil action is the only court enforcement mechanisim
available to federal employees. Suits by the EEOC or the
Department of Justice are not authorized (indeed the Department
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 cer
tainty 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.
46 /
Under §2000e-16(1), 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. Sse
Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975). Prior to the
enactment of §2000e-16(c) it had been assumed, that final agency
action was necessary. See, 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.
40
of Justice 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.
The plain language of the statute unmistakably
indicates that Congress intended no exhaustion hurdle for Rule 23
class actions. In an analogous context, the Supreme Court has
prohibited courts from reading into Title VII more than the
precisely specified jurisdictional prerequisites. McDonnell
Douglas Coro. v. Green, supra, at 798-99; Alexander v.
Gardner-Denver Co., supra, at 47. In Green, the court declared
that "we will not engraft on the statute a requirement which may
inhibit the review of claims of employment discrimination in the
federal courts," and in Alexander that Title VII "vests federal
courts with plenary powers to enforce the statutory requirements."
It should also be noted that the Supreme Court has made clear
that purported restrictions on civil action rights resulting from
events at the administrative stage when employees are usually
unrepresented are especially suspect. Love v. Pullman Co., 404
U.S. 522, 527 (1972). See also Jenkins v. United Gas Corp.,
supra, at 30 n. 3 and Sanchez v. Standard Brands, Inc., 431
F.2d 455 (5th Cir. 1970).
The reasoning of the lower court also amounts to a
waiver of the opportunity to bring a lawsuit in the form of a
class action by failure to make express administrative classwide
claims of discrimination since the agency provides employees
with an individual complaint form that fails to mention, request
41
or otherwise elicit any classwide claims. See App. 759
No knowing and intelligent waiver can be said to occur under
47/
such circumstances. Indeed, the form speaks exclusively of
the individual's specific complaints against particular named
individual persons. If complainants try to make classwide
allegations, they are usually discouraged and prevented from
doing so. See infra, at 42-44 * Thus, not only is there no
knowing and intelligent waiver of rights, but actual misrepre
sentation by the agency concerning its (Obligation to provide
relief for classwide discrimination. There are thus compelling
reasons under Rule 23 and §2000e-16 to apply the usual rule that
"there can be no prospective waiver of an employee's rights
under Title VII." Alexander v. Gardner-Denver Co., supra, at 51.
In the instant case, of course, the complainants
alleged general discrimination against black employees because of
the operation of the promotion selection system as part of their
individual complaint. See supra, p. 22 • NARF, therefore,
had not only the notice incident to any complaint of racial
discrimination, but express indication by the complainants that
they believed some systemic, classwide discriminatory factors
were responsible. Looking to the substance and not the form
of the individual complaint, it is. clear that the agency had an
opportunity to correct its own mistake before a court was called
47/
The rule has been clear that "A waiver is ordinarily
an intentional relinquishment or abandonment of a known right or
privilege." Johnson v. Zerbst, 304 U.S. 458, 464 (1938), citing
Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937); Hodges v.
Easton, 106 U.S. 408, 412 (1882); Ohio Bell Telephone.Co. v.
Public Utilities Comm., 301 U.S. 292, 306-07 (1937).
42
on to act. . Had the defendant agency obeyed statutory command
and the Civil Service Commission's own regulations, they would
have examined administratively the policies and practices
plaintiffs now seek to challenge in court. See supra, pp.28-32
To impose after the fact an additional and completely
unanticipated technical bar generally and in this case
especially would not only be inequitable, but contravene the
liberal letter and spirit of Rule 23 and §2000e-16.
The record does not show that the complainants were
ever informed of third party complaint procedures or the impli
cations of electing one and not another even though they made
class allegations as part of their administrative complaint.
Indications are that most federal employees are not aware of
third party complaints. A widely distributed Civil Service
Commission pamphlet on How the Discrimination Complaints System
Works fails to mention the existence of any third party pro
cedures at all. See Attachment B. Moreover, the face of
Regulation 5 CFR §713.251 does not state that it is a way for
individuals to raise general allegations, much less the only
way to raise general allegations of discrimination. It states
only that the regulation is for "general allegation by organiza
tions or other third parties of discrimination in personnel
matters which are unrelated to an individual complaint of
48/
Although the investigation failed to follow up the
classwide allegation, the administrative file contains, inter
alia, a statistical table of Minority Representation in NARF at
the GS-Levels as of 31 December 1973 in Exhibit 13, App.620
and Minority Representation in 50000 Department, GS Grades Only
as of 31 December 1973 in Exhibit 11., App. 620
48/
discrimination. Commission Federal Personnel Manual Letter 713-
20 dated July 17, 1973, an authoritative construction of §713.251,
also does not state the options the district court imposes after
the fact on federal employees. Indeed, the letter reiterates
that the purpose of third party complaint procedures is wholly
different from individual complaint procedures and that individual
should be discouraged from invoking the procedures in favor of
4 q /individual complaints. Resort to the third party complaint
49/
”4.The purpose of third-party procedures is
to permit organizations which have an interest
in furthering equal opportunity in Federal
employment to call attention to equal employ
ment opportunity problems in Federal agencies
which appear to require correction or remedial
action by the agency or by the Commission,
and which are unrelated to individual com
plaints of discrimination. The third-party
provisions of section 713.251 are not intended
to replace those for individual complaints
of discrimination (including those involving
more than one complainant), filed by employees
or applicants for employment and processed
under sections 713.211 through 713.22 . . . . "
A. recent Commission memorandum on Third Party
Allegations of Discrimination dated January 27, 1975 also
warns that "The third-party procedures are not designed or
intended to be used as a substitute for the EEO counseling and
complaint procedures."
As the preliminary discussion points up,
EEO counseling and discrimination com
plaint procedures are available to individual
employees or applicants who believe they
have been discriminated against; and third-
parties should not be permitted to circum
vent these, procedures— with or without the
consent of an aggrieved individual— through
the filing of a third-party allegation on a
matter which would be an appropriate basis or
reason for filing an individual complaint of
discrimination. Any third-party who files
allegations under these circumstances should be
advised regarding the proper channels for
pursuing individual complaints, and should
be informed that the third-party procedures
are not available for this purpose.
44
procedures the district court requires for maintaining
a class action is thus definitely intended only for "the
sophisticated or cognoscenti," Sanchez v. Standard Brands, Inc.,
supra, at 463, in violation of Rule 23 and §2000e-16 of Title
VII.
Assuming arguendo that an individual federal employee
is permitted to freely choose between individual and third
party complaints, present regulations require that if an
employee elects individual complaint procedures class allegations
cannot generally be alleged, investigated or remedied, but if
he elects third party procedures individual claims cannot be
alleged, investigated or remedied. See Barrett v. U. S. Civil
Service Commission, supra, slip opinion at 12-16; Keeler v.
HiJL_ls_, supra, slip opinion at 3-5; Ellis v. NARF, supra, pp. 5861-
-i-s' therefore, reasonable to expect even that complainants
with their own claims who are able to understand regulations
which are at "the very best . . . confusing and unclear" would
choose individual administrative procedures in the hope that
their own claims would be settled short of a lawsuit.
B. In 1972 Congress Expressly Disclaimed Any Intent
To Preclude Or Limit Class Actions To Enforce
Title VII______________________________________
As Albermarle Paper Co. v. Moody, supra, at 294-95,
n. 8, and Hackley v. Roudebush, supra, at 152 n. 177, make clear,
the government seeks by judicial action class action bars Congress
in 1972 specifically refused to legislate. The contention that
making administrative allegations of classwide discrimination
should be a prerequisite to a class action suit was rejected by
Congress in 1972, along with other bars to employment discrimination
45
class actions, in reliance upon, inter alia, Oatis v. Crown
Zellerbach Corp., supra, and Jenkins v. United Gas Corp., supra.
These cases dealt with the related problem of requiring all class
members to exhaust their individual remedies, and their reasoning
applies equally well to the particular bar at issue. Moreover,
50/
only "individual" EEOC complaints were in issue in these cases.
During the consideration of H.R. 1745 in the House, Rep.
51/Erlenborn introduced a substitute for the committee bill
which proposed, in §706(h), that "No order of the court shall
require . . . the hiring, reinstatement, or promotion of an
5H/Oatis v. Crown Zellerbach Corp., supra, set forth
reasons why exhaustion by all class members will not advance
the purposes of the Act:
"Moreover, it does not appear that to allow a
class action, within proper confines, would in
any way frustrate the purpose of the Act that the
settlement of grievances be first attempted through
the office of the EEOC. It would be wasteful, if
not vain, for numerous employees, all with the
same grievance, to have to process many identical
complaints with the EEOC. If it is impossible to
reach a settlement with one discriminatee, what
reason would there be to assume the next one would
be successful. The better 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." Jenkins v.
United Gas Corp., supra, 400 F.2d at 32. See also
Miller v. International Paper Co., 408 F.2d 283, 285
(5th Cir. 1969); Bowe v. Colgate-Palmolive Co., 416
F.2d 711, 715 (7th Cir. 1969).
5l/ .Legislative History at p. 425.
46
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 charge nor was
52/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/enforcement. The Erlenborn substitute passed in the House
54/with the exhaustion bar intact.
52/
Legislative History at 147.
53/
Rep. Eckhardt argued:
"The Erlenborn amendment abolishes class actions.
It would wipe out class actions in the area of
equal employment opportunity. In this area the
courts have held that equal employment actions
are customarily class action whether they are so
categorized or not.
But this amendment would prohibit bringing
class action suits on behalf of a whole class of
persons— blacks, women, and so forth, who may be
all suffering the same discrimination." Legislative
History at 243.
Similarly, Rep. Abzug argued that:
"The Erlenborn bill would eliminate the right of
an employee to bring a class action on the behalf
of all other employees similarly situated, a right
which now exists under Title VII. My fellow
colleagues, sex and race discrimination are by the
very nature class discriminations. Now a member of
a discriminated agqinst class, or several members,
can bring suit on behalf of their entire class, and
seek an award of back pay, reinstatement, or injunctive
relief. The structure and pattern of employment
discrimination will remain untouched unless large
numbers of workers are affected.' An award in favor
of one complainant will do little to discourage an
employer bent on discriminating against a class of
employees, but an award--or even the possibility of
an award— on behalf of an entire class can effectively
discourage this kind of unlawful discrimination.
Legislative History at 276.
Leg is la tive History at p. 332.
54/
47
The Senate committee bill, however, contained no
hi/restrictions on class actions. The Senate committee stated its
intent not to restrict class actions in its proposed §706
provisions, specifically citing Oatis and Jenkins:
This section is not intended in any way to
restrict the filing of class complaints. The
committee agrees with the courts that Title VII
actions are by their very nature class complaints
[citing Oatis, Jenkins, and other cases in a
footnote] and that any restriction on such action 56/
would greatly undermine the effectiveness of Title VIIJ'
The Senate bill as passed contained no limitations on class
51/
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
_58/
relief."
The bill that emerged from Conference omitted the Erlenborn provision.
The Section-by-Section Analysis of H.R. 1746 adopted the Senate
S5_/Legislative History at 335 et seq.
56/
Legislative History at 436.
51./Legislative History at 1779 et seq.
5&.ZLegislative History at 1773.
48
Section-By-Section Analysis on class actions, word for word
in its comments on §706(f)(1), 42 U.S.C. §2000e-5 (f)(1),
adding only the concluding statement that "A provision limiting
class actions was contained in the House bill and specifically
59/
rejected by the Conference Committee."
The general §2000e-5(f) civil action procedural frame
work and the accompanying legislative history gloss is incorporated
by reference in §2000e-16(c) and §2000e-16(d). The latter
states "The provisions of Section 706(f) through (k) as
applicable, shall govern civil actions brought hereunder."
Moreover, the Section-By-Section of H. R. 1746 specifically says
of §§2000e-16(c) and (d), "The provisions of Sections 706(f)
through (k) as applicable, concerning private civil actions by
aggrieved persons, are made applicable to aggrieved Federal
60/
employees or applicants." Thus, the explicit refusal to preclude
or limit class actions applies equally to federal employee Title
VII actions. Indeed, it could hardly be otherwise since Congress
made it clear that systemic, .classwide discrimination was endemic
in the federal service, see supra at 29-30.
59/
Legislative History at 1847. The preface of the
Analysis states its purpose:
"This analysis explains the major provision of
H.R. 1746, the Equal Employment Opportunity Act
of 1972, as agreed to by the Conference Committee
of the House and Senate on February 29, 1972. The
explanation reflects the enforcement provisions of
Title VII, as amended by the procedural and juris
dictional provisions of H.R. 1746, recommended by
the Conference Committee.
In any area where the new law does not address
itself, or in any area where a specific contrary
intention is not indicated, it was assumed that the
present case law as developed by the courts would
continue to govern the applicability and con
struction of Title VII."
7169, 7566. Leg is la t ive H istory at 1851. See also iqg Cong. Rec.
49
THE DISTRICT COURT ERRED IN DENYING
FEDERAL EMPLOYEES THE RIGHT TO PREPARE
FOR TRIAL OF THE INDIVIDUAL CLAIMS
BY CONDUCTING DISCOVERY .CALCULATED TO
UNCOVER BROAD AND SYSTEMIC PATTERNS
AND POLICIES OF DISCRIMINATION________
The lower court denied named plaintiffs the right to
prepare for trial of the individual claims by conducting the
broad discovery customary in Title VII litigation, adhering to
this view notwithstanding plaintiffs' motions for reconsidera
tion and subsequent efforts to obtain some of the underlying
documents by a subpoena duces tecum. See supra, pp. 7-8.
Defendants, moreover, were permitted to present evidence of
NARF-wide employment patterns and policies at the trial. The
finding of the district court against named plaintiffs' individual
discrimination claims should therefore be reversed because (1)
denial of broad discovery is contrary to all applicable pre
cedent, and (2) denying discovery and presentation of evidence
of systemic discrimination while permitting defendants to present
evidence of such scope is in itself clearly erroneous.
A. The District Court Simply Ignored All
Applicable Precedent In Denying Discovery
Calculated To Uncover Broad And Systemic
,Patterns And Policies Of Discrimination
The critical relevance of "statistics, patterns,
practices and general policies to ascertain whether racial
discrimination exists" is clear in this circuit. Barnett v.
W. T. Grant Company, supra, at 548-50; United States v.
Chesapeake and Ohio Ry. Co., supra, at 1382-83; Robinson v.
Lorillard Corp., 444 F.2d 791 (4th Cir. 1971); Graniteville Co.
II
50
v. EEOC, supra; United States v. Dillon Supply Co., 429
F.2d 800 (4th Cir. 1970). Nor is it open to question that a
district court is in error in limiting Title VII to present
specific acts of racial discrimination instead of considering
any past specific or general act, practice, policy or pattern
of racial discrimination which the proof showed had any
discriminatory effect. United States v. Dillon Supply Co.,
supra, at 804; Brown v. Gaston County Dyeing Machine Co.,
supra, at 1382. Indeed, it is error to require proof of
actual discrimination in addition to the statistical data
implying discrimination. Barnett v. W. T. Grant Company, supra,
at 549. It therefore follows, a fortiori, that denying
plaintiffs even the opportunity to obtain and marshall such
proof is prejudicial per se and erroneous.
The result is not contrary because the discovery was
sought in preparation for trial of individual claims of
discrimination. The Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 804-07 (1973), ruled that statistics as
to the employer's general policy and practice with respect to
minority employment may be helpful to a determination of whether
the employer's refusal to rehire the individual former black
employee conformed to a general pattern of discrimination
against blacks. Again, a fortiori, denial of access to such
proof is sufficient for reversal. Moreover, a lower court's
denial of broad discovery in the trial of the.individual
claims has already been reversed and a new trial ordered by the
Fifth Circuit in Burns v. Thiokol Chemical Corp., 483 F.2d 300
(5th Cir. 1973), and the Tenth Circuit in Rich v. Martin
Marietta Corp., 522 F.2d 333 (10th Cir. 1975). The material
51
facts as to kind and scope of information sought, nature of the
individual claims, and effect on proof in both cases are almost
identical in all respects to those in the instant case. In
Burns, Chief Judge Brown concluded, "The importance of obtaining
an overall statistical picture of an employer's practices with
regard to both Black and White employees does not depend on the
presence of an alleged 'pattern or practice' or a valid charge
of class discrimination or class action." 483 F.2d at 306.
The Tenth Circuit's conclusion is the same: "The plaintiffs'
requested information as to hiring, firing, promotion and
demotion of blacks, Hispanics and women on a plant-wide basis
and within individual departments was relevant in either an
individual or class action." 522 F.2d at 344. Appellants
incorporate by reference rather than reiterate the thorough
analyses set forth in both cases; appellants assert they are
controlling.
The federal employment discrimination context in which
the discovery question arises renders the lower court's decision
especially anomalous. The prohibition of 42 U.S.C. §2000e-16(a)
is absolute and all inclusive: "All personnel actions affecting
employees or applicants for employment . . . shall be made free
from any discrimination based on race, color, religion, sex, or
national origin." On its face, the statute permits no argument
that the kind and scope of employment discrimination prohibited
is any less than that covered by Title VII provisions governing
private and state or local government employers as construed
by the courts. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424;
QuarJ-es v. Philip Morris, Inc. , 279 F.Supp. 505 (E.D.Va. 1968).
If anything, the statute is broader so the relevance of
52
statistics, patterns, practices and general policies in
ascertaining federal .employment discrimination greater. Even
the most cursory examination of 1972 legislative history
indicates Congress' special concern for the eradication of
61/
systemic discrimination in the federal service, supra pp.29-30
B. The District Court Improperly Limited
Plaintiffs' Discovery And Presentation
Of Evidence Of Systemic Discrimination
While Permitting Defendants To Present
Evidence Of Equal Scope_______________
More occurred in this case than an evenhanded limitation
of the trial of the individual claims to specific acts of
discrimination. Only plaintiffs were barred from fully preparing
and presenting their case by being deprived of discovery of
systemic discrimination. Defendants, who had unlimited access
to NARF business records, could and did present statistics showing
purported proper NARF-wide racial distribution in departments
and positions, and documents and testimony on purported success
of affirmative action programs. See generally DX's. The lower
court even relied on the partial record thus developed in
deciding against named plaintiffs on the individual claims,
supra p. 49. The prejudice to plaintiffs' right to a fair trial
61/ ’
It is also ironic that it is the federal government
that seeks to narrow discovery to specific acts of discrimination.
When the federal government is the charging party in Title VII
actions, it argues for discovery and presentation of evidence as
to systemic discrimination, see e. g., Graniteville Co. v. EEOC,
supra, and cases cited, supra p. 33 n. 38 ; United States v. Dillon
Supply Co., supra. When it is defending Title VII suits against
private attorneys general, as in the instant case, it argues
otherwise without any basis for distinction other than partisan
interest. Moreover, if the Civil Service Commission and NARF
had effectuated congressional intent that the administrative
complaint process scrutinize systemic discrimination in every
case, supra pp 28-32, the scope of the "formal" inquiry in the
district court would have been narrower than the "informal"
admininstrative process.
53
of their Title VII claims is obvious; the claims of named
plaintiffs were essentially denied because the district court,
in part, believed they did not present the very proof of
systemic discrimination the district court itself had not allowed.
The Tenth Circuit addressed the same problem in
Rich v. Martin Marietta Corp. where, as here, "access was denied
to information which would have allowed plaintiffs to establish
general overall trends and policies in the defendants' hiring,
promotion, demotion and layoff practices within individual
departments on a plant-wide level" while "defendant, on the other
hand, had plant-wide information and was allowed to present
statistics at trial:" Indeed, Rich is more difficult than the
instant case since the defendant there claimed that all of
defendants1 records were available for inspection by plaintiffs'
counsel. The Tenth Circuit rejected this because "Such an
approach does not compel the defendant to come forward with
everything demanded as does an interrogatory." 522 F.2d 345.
See also New Orleans Public Service, Inc. v. Brown, supra, 507
F.2d at 164-65. In the instant case, defendants' failure to
comply with even the limited subpoena duces tecum makes clear
that the unilateral denial of access was complete.
54
THE DISTRICT COURT FAILED TO APPLY SUBSTANTIVE
TITLE VII LAW TO THE FACTS PRESENTED WITH RESPECT
TO THE INDIVIDUAL PLAINTIFFS_____________________
The district-court's failure to apply long-standing
principles applicable to the issues of class action and pre-trial
discovery was paralleled by its refusal to apply substantive
Title VII law to the facts presented with respect to the
individual claims of plaintiffs. Even though plaintiffs were
considerably hampered in their attempts to present evidence at
the trial, the defendants were given a full opportunity to
present any evidence supporting their defense to this litigation.
Not only does the evidence presented conclusively demonstrate
that the district court committed reversible error in dismissing
plaintiffs' claims, the evidence is sufficient to warrant a
finding by this Court that plaintiffs are entitled to relief
pursuant to the Act. See Barnett v. W. T. Grant Company, supra,
at 550.
A. The Evidence Presented To The Trial
Court Conclusively Showed Racial
Discrimination_____________________
In addition to the prima facie case established
by past discrimination and statistics (see pp. 14-17, supra) , the
district court had before it other evidence which conclusively
demonstrated racially discriminatory employment practices. This
evidence was either ignored, misapplied or misinterpreted by
III
the district court.
55
1. Discrepancies Between The
GS-5 And GS-7 Registers
The historic pattern of the NARF workforce clearly
shows that the levels of GS-9 and above are almost exclusively
reserved for Whites (see pp.14-17 < supra). The GS-7 level,
which is the "stepping stone" for GS-9 positions, is the level
which plaintiffs attempted to reach through their applications
under Merit Promotion Announcement No. NG14A-72 (see p. 18 ,
.62/
supra). By refusing to promote Blacks to GS-7, defendants are
6_3_/
able to preserve the status quo in the higher level positions.
It is because of this fact that the discrepancies between
black and white rankings on the GS-5 and GS-7 registers are
particularly significant.
While the district court seemingly recognized that
discrepancies between the two registers did exist (App. 100-101) ,
the effect of those discrepancies in light of the statistical
evidence presented was never mentioned by the district court.
Instead, the district court narrowed its attention to determining
whether the individual members of the GS-7 panel intended to
discriminate against the plaintiffs (App. 108; see pp. 68 -69 ,
infra. This approach by the district court completely ignores
_6 2/
In addition, black representation at the GS-7 level,
while increasing, is not in line with black representation in the
Norfolk, Virginia, SMSA (see pp. 14-15, supra) .
_6_y
Of course, even the increase in black representation
at the GS-7 level has done nothing to improve the racial picture
at higher levels (see pp.14-16, supra).
56
well-settled principles in employment discrimination cases.
United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir.
1970).
The evidence introduced at trial clearly shows that
Blacks who appeared on both registers ranked much lower than their
white counterparts (PX 1A-1F, App. 559-564).- In light of the over
all statistical pattern shown herein, the district court
should have expanded its inquiry to determine whether this
specific disparity is part of a broader pattern of racial dis
crimination. Brown v. Gaston County Dyeing' Machine Company,
457 F.2d 1377 (4th Cir. 1972); McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). As the court in Rowe v. General Motors
Corporation, 457 F.2d 348 (5th Cir. 1972), stated:
"[F]igures of this kind, while not necessarily
satisfying the whole case, have critical, if not
decisive, significance - certainly, at least in
putting on the employer the operational burden
of demonstrating why, on acceptable reasons, the
apparent disparity is not the real one." 457 F.2d
at 358.
The district court's failure to undertake this broader
inquiry as prescribed in Brown and Rowe and countless other cases
constitutes a misapplication of Title VII law to the facts pre
sented, warranting reversal of its ruling.
2. Rating Panel Judgment
The factor which defendants relied upon most heavily
in their attempts to explain the disparities between the
rankings on the GS-5 and GS-7 registers was rating panel judgment
(Defendants' Post Trial Brief, pp. 7, 12, 15, 28-31, 33).
Specifically, defendants stated:
57
"Accordingly, the result of the four plaintiffs
[sic] being placed out of the range for promotion
to the first twelve vacant GS-7 positions on the
(AF & AFE) register was due to judgmental factors.11
Defendants' Post Trial Brief, p. 30 (emphasis
added).
Moreover, the court below specifically found that
"[t]he evidence is uncontradicted that the judgment and discre
tion of the members of the rating panel is [sic] a factor in
rating." App. 110 . in light of this admission by defendants
and the corresponding finding of the trial court, the dismissal
of plaintiffs' claims clearly constitutes reversible error.
The use of subjective standards, e.g. "judgment",
by employers has consistently and universally been condemned
by federal courts in Title VII litigation. Particularly is
this true where a demonstrably adverse impact on Blacks has
been shown. Accordingly, in Brown v. Gaston County Dyeing
Machine Company, supra, this Court stated:
"Elusive, purely subjective standards must give
way to objectivity if statistical indicia of
discrimination are to be refuted." 457 F.2d at
1382.
To the same effect is the following from Barnett v. W. T. Grant
Company, supra:
"Nonobjective hiring standards are always suspect
•because of their capacity for masking racial bias."
518 F.2d at 550 (emphasis added).
Similarly, the use of subjective factors was specifi
cally rejected as a defense in Title VII actions in United
States v. Jacksonville Terminal Company, 451 F.2d 418 (5th Cir.
1971), cert. denied, 406 U.S. 906 (1971). There, the court,
after noting that the district judge had rejected plaintiffs'
58
statistical evidence because of plaintiffs' "failure or refusal
to undertake a comparative evaluation of the entitlement to job
vacancies of competing Negroes and whites, upon the basis of
individual qualifications," stated:
"The trial judge's pronouncement cannot
function as a general rule. It becomes
valid only when the employer or union
evidentially demonstrates that objective
criteria pertinent to the particular job
are the determinants of who is 1 best
qualified.'" 451 F.2d, at 442 (emphasis
added). See also United States v.
United Ass'n of Journeymen, Etc., U. No.
24_, 364 F.Supp. 808 , 829 (D.N.J. 1973);
Green v. McDonnell Douglas Corp., 463
F.2d 337 (8th Cir. 1972), remanded, 411 U.S. 792
(1973); Griggs v. Duke Power Co., 401 U.S. 424
(1971); Carter v. Gallagher, 452 F.2d 315 (8th
Cir. 1971), cert, denied, 406 U.S. 950 (1972). 64/
In the instant case, the failure of plaintiffs and other
Blacks to rank higher on the GS-7 register was due in large
part, according to defendants, to judgmental factors. Because
those factors were not shown to be related to successful job
performance, and because the use of those factors had a substan
tial adverse impact on Blacks (see pp.19-20/ supra), such use
64/
It is significant that in each of the cases cited
above, the defendant employers and unions attempted to escape
liability under Title VII by showing that their selection
criteria were not subjective and were job related. In each
case, the various courts held that defendants had failed to so
prove. In the case at bar, defendants have not even attempted
to show the objectivity of their selection procedures. Rather,
they rely on subjective judgment to account for the racial
disparity in rankings. Moreover, not a shred of evidence was
introduced by defendants to show that the use of those subjective
criteria is any way related to successful job performance.
59
is clearly a violation of Title VII. The district court's
ruling, then, must be reversed with respect to this finding.
3. Administrative Investigation
The district court, in considering plaintiffs'
allegations that defendants' method of investigating plaintiffs'
administrative complaint constituted racial discrimination,
stated:
"After careful review of the applicable regulations
and the procedures actually utilized by defendants
in this case, we find defendants have complied
with all applicable regulations and that any actions
which may have been taken in addition to those
required by the regulations did not violate any of
plaintiffs' civil rights." App. 110 .
Again, the district court's limiting of its analysis to a
determination of whether defendants followed Civil Service
Commission and agency regulations misinterprets the law applicable
to Title VII. A complete analysis of the evidence presented would
necessarily have included a determination of defendants' actions
in light of the overall situation at NARF. Such an analysis
immediately shows the lengths to which defendants went in order
to frustrate plaintiffs' charge of discrimination (see pp. 20-24,
supra). Never before had any investigator at NARF made a
finding of racial discrimination (App. 188); never before had
a second investigation been requested (App. 84); never before
65/
65/
"In sum, the lack of objective guidelines for hiring
and promotion and the failure to post notices of job vacancies
are badges of discrimination that serve to corroborate, not to
rebut, the racial bias pictured by the statistical. patterrToF-
the company's work force." Brown v. Gaston County Dyeing
Machine Company, supra, at 1383 (emphasis added)-.
60
had a review committee been established (App. 269 )• These
actions, while not technical violations of applicable regulations,
are fully consistent with plaintiffs' other evidence showing the
relegation of Blacks to the lowest level GS positions at
_66/
NARF. Defendants' persistence in their attempts to obtain a
finding of no discrimination at the administrative level was an
effective weapon in their overall arsenal aimed at preventing
Blacks from competing on an equal basis with Whites for the
better paying and higher level positions at NARF. The
district court's failure to consider defendants' actions in
light of the other evidence is inconsistent with Title VII law
and must be reversed.
B. The Statistical Evidence Presented
At The Trial Established A Prima
Facie Case Of Racial Discrimination
It is now well-settled that a prima facie case of racial
discrimination may be established by statistical evidence. Lea
v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971); Parham v.
66/
It should be noted, however, that the district
court's finding that defendants followed agency regulations
is also erroneous. E.g., the district court found that Captain
Shine made an independent investigation of plaintiffs' charges,
and that such investigation helped form the basis of Captain
Shine's finding of no discrimination (App.103-5). However, agency
regulations provide:
"Since the complaint file may not contain any document
that is not made available to the complainant (see
section B-12), information which is not made available
to the complainant cannot serve as a basis for the
agency's decision." DX 22, Appendix B, Paragraph B-9
(°) > (emphasis' added) .
The information gathered by Captain Shine was never made
available to the plaintiffs, nor was it contained in the complaint
file (App. 734 et seq.).
61
Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970).
This principle was recently reaffirmed by this Court in Barnett
v. W. T. Grant Company, 518 F.2d 543 (4th Cir. 1975):
"The district court erred in requiring
proof of actual discrimination in addition
to the statistical data implying discrimination.
Statistics can in appropriate cases establish
a prima facie case of discrimination, without
the necessity of showing specific instances of
overt discrimination." 518 F.2d at 548-549
(citations omitted). See also, Brown v.
Gaston County Dyeing Machine Company, 457 F.2d
1377, 1380-1382 (4th Cir. 1972), cert, denied,
409 U.S. 982 (1972).
While the court below was seemingly aware of this principle
(App. 120 )' its analysis of the statistical evidence presented
' . 67/
falls far short of the standards contemplated therein.
Said analysis fails for several reasons. First, the district court
did not point to the specific statistics which it considered in
reaching its conclusion that defendants had not discriminated.
Second, the court below gave no indication of how it determined
that ”[a]ny discrimination which may have existed has been
eliminated and corrected." App. 120 . Third, the district
court did not state which statistics show "significant advances
being made by plaintiffs and other blacks in their careers at
9
NARF" (App. 120 ), or how those statistics lead to that conclusion.
Fourth, the district court gave no hint as to what evidence was
67/
Indeed, the trial court’s analysis of the statistical
data consumes only two paragraphs of its Memorandum Opinion
(App. 120-21).While plaintiffs are aware that length is not
necessarily indicative of comprehensiveness, the district court's
analysis as contained in its Opinion can only be classified as
cursory.
62
presented to "more than adequately rebut[] any inference of
discrimination." App.120-21.
In short, the district court made no effort to point
to any factors which distinguish the instant action from Barnett
(App.120); indeed, none exist.
_68/
1. Statistics Presented
From 1971 through 1973, when plaintiffs filed their" '
administrative complaint, there was only one black GS-9 Production
Controller in the 50000 Department and none in any higher GS grades
(DX 11, App. 620) . During this time period, there were approxi
mately 70 Whites in these positions (id.). With respect to
Blacks in GS-7 positions, the statistics, while not as
shocking as those cited above, are more than sufficient to
69/
establish a prima facie case of racial discrimination.
Moreover, the lack of black employees in the higher
level jobs at NARF was specifically recognized by defendants
themselves. The Affirmative Action Plan for Calendar Year 1974
lists as a "problem or objective," "women and minorities are
underrepresented in grades GS-9 through GS-13." DX 13 (App. 632).
68/
See pp. 14-17,supra, for a detailed summary of the
.statistical data introduced at trial.
69/
See e.g., Barnett v. W. T. Grant Company, supra,
wherein the court stated!
"The statistics here, while not overwhelming,
seem to us at the least quite suggestive. The
discrepancy between a 25 percent black community
and a 19 percent black nonsupervisory work force
is significant, especially since all black employees
were in one of the 17 job cagegories." 518 F.2d at 549.
63
In light of these statistics, it was entirely reasonable,
indeed mandatory, for the trial court to "assume that plaintiffs'
data establish a prima facie case and that the burden of going
forward with the evidence shifted to defendants." App. 120 .
What is not reasonable, and what constitutes reversible error is
the trial court's conclusion that "the evidence presented more
than adequately rebuts any inference of discrimination." Id.
2. Continuing Disparities
The district court indicated that "[a]ny discrimination
which may have existed has been eliminated and corrected." App.
120 . Such a conclusion is totally lacking in evidentiary
support. Indeed, the district court made no attempt to support
it. The statistics clearly show that between 1971 and December 31,
1974, there has never been more than one black GS-9 in the 50000
Department (DX 11, App.620)• This is also true of NARF generally
(see pp.14-17, supra). Moreover, the "problem or objective"
referred to previously as contained in the 1974 Affirmative Action
Plan (see p. 62 , supra) was repeated verbatim in the 1975 Plan.
And while the number of Blacks in the higher level positions remained
stagnant from 1971 through 1974, the number of Whites in those
positions steadily increased (see ppl4-17, supra, and DX 11, App.
620 ) •
For the district court to conclude that any existing
discrimination had been corrected in light of the statistics
presented, which, it must be remembered, were defendants' exhibits,
is entirely unjustified and constitutes reversible error.
3. Career Advancement Of Plaintiffs 64
The same failings of the district court's finding that
any discrimination had been corrected as discussed above are
equally applicable to its finding that "[t]he data presented shows
the significant advances being made by plaintiffs and other
blacks in their careers at the NARF." App. . In addition to
the fact that there is absolutely no evidence to support
such a finding, any such finding, even if supported, would
constitute reversible error for another reason as well.
Courts have consistently held that actions taken subsequent
to the filing of a charge of discrimination do not rebut
evidence of discrimination existing at the time the charge
was filed. Thus, in Parham v. Southwestern Bell Telephone
Co., 433 F.2d 421 (5th Cir. 1970), the court stated:
"The trial court erred in completely absolving
the Company of unlawful employment practices on
the basis of changes in the appellee's recruitment
practices and increased hiring of blacks subsequent
to the institution of this lawsuit. While an
employer's more recent employment practices may
bear upon the remedy sought, they do not affect
the determination of whether the employer
previously violated Title VII." 433 F.2d at 426
(emphasis added). See also United States v. W.
T. Grant Co., 345 U.S. 629, 632-33, 73 S.Ct. 894,
897, 97 L.Ed. 1303, 1309-10 (1953); Gamble v.
Birmingham Southern Railroad Co., 514 F.2d 678,
683 (5th Cir. 1975), and cases there cited.
While the evidence in the case at bar does show that
each of the named plaintiffs has been promoted to the GS-7 level,
each of these promotions occurred after the filing of their
administrative complaint (App. 1021) . To allow defendants
to escape liability for violations of Title VII by taking minimal
steps after they have been charged would nullify the central
65
purposes of the Act (and render fruitless any plaintiff's attempts
70/
at litigation). The district court's consideration of
plaintiffs promotions as a complete bar in this case constitutes
error, and should be reversed.
4. Rebuttal Evidence
The district court concluded that even if the data
established a prima facie case of racial discrimination,
"the evidence presented more than adequately rebuts any
inference of discrimination." App.120-21. This finding,
too, has no support in the record.
As the record in this action shows, all of the statistical
. ̂ 71/information introduced at the trial was introduced by defendants.
As previously discussed, those statistics clearly establish a prima
facie case of racial discrimination. Plaintiffs are unaware of
any evidence presented by defendants which did rebut or which
could have rebutted their own statistics previously introduced.
Indeed, the court below gave no hint as to what evidence it was
that served to rebut the prima facie showing. In the absence of
7 0/
Of course, even these promotions, which occurred
after the dates on which plaintiffs would have been promoted
absent discrimination, do not atone for the previous denial of
those positions. Because of the delay in receiving said promotions,
plaintiffs will be forever trying to "catch up" to their rightful
places unless appropriate relief is granted.
Moreover, plaintiffs' promotions to GS-7 do not rebut
the previously mentioned statistics concerning the lack of Blacks
in higher-level positions.
7 1 /
In light of this fact, it is very strange that the
district court commented that "[p]laintiffs' carefully selected
statistics do not relate the true picture of the promotional
practices and policies at the NARF." App. 120 .
such evidentiary support, the district court's ruling constitutes
66
error, and must be reversed.
C. The District Court Considered
Improper Factors In Dismissing
Plaintiffs' Action
1. Good Faith Of Defendants
It can no longer be open to question that an employer's
good faith is no defense to a charge of racial discrimination
under Title VII.' See, e. cj. , Griggs v. Duke Power Co., 401 U.S.
424 (1971); Rowe v. General Motors Corp., 457 F.2d 348, 355
(5th Cir. 1972),- Barnett v. W. T. Grant Company, supra, at 550 .
Any lingering doubts have been completely erased by the Supreme
Court's recent decision in Albemarle Paper Co. v. Moody, ___U.S._
95 S.Ct. , 45 L.Ed.2d 280 (1975):
"[U]nder Title VII, the mere absence of bad
faith simply opens the door to equity; it
does not depress the scales in the employer's
favor . . . Title VII is not concerned with
the employer's 'good intent or absence of
discriminatory intent' for 'Congress directed
the thrust of the Act to the consequences of
employment practices, not simply the motivation."
45 L.Ed.2d at 299 (citations omitted, emphasis
by the Court).
In spite of these principles, the district court's findings
72/are replete with references to the "good faith" of defendants.
72_/
For example, the district court stated that Captain
Shine "was a member of the NAACP, carried his card with him at
all times and tried to live by the principles it promoted;
that he knew and had socialized with the plaintiffs; that he
had been given citations for his performance in activities with
the blacks, and had been named Military Citizen of the Year."
App.106 . Similar accolades were bestowed upon Luther Santiful,
the Deputy EEO Officer (App. 107-8). While plaintiffs applaud
such activities, said activities are completely irrelevant to the
issue of whether plaintiffs were adversely affected by defendants
policies and practices because of plaintiffs' race.
67
Similarly, the district court found that the defendants
have taken steps to improve the racial picture at NARF (App-107)'-
Again, while plaintiffs commend defendants for recognizing the
existence of problems in their equal employment opportunity
program, the significant issue before the district court under
Title VII is not whether an employer has attempted to cure
73/
violations, but whether such violations still exist. As
the court stated in Rowe v. General Motors Corp., supra:
"[T]he problem is not whether the employer has
willingly - yea, even enthusiastically - taken
steps to eliminate what it recognizes to be
traces or consequences of its prior pre-Act
segregation practices. Rather, the question is
whether on this record - and despite the efforts
toward conscientious fulfillment - the employer
still has practices which violate the Act." 457
7 1 /F.2d at 355.
It is obvious, then, that the prima facie case of
racial discrimination established by the statistical and other
evidence presented to the trial court cannot be overcome by
reliance on the "good faith" of defendants.
73/
Indeed, the district court's finding that Santiful
"devoted his activities to eliminate discrimination" (App. 107)
is at least a tacit recognition that discrimination exists.
74/
Similarly, this Court has recognized:
"[I]n equal employment opportunity cases
a court cannot abdicate to defendants1 good
faith its duty of insuring removal of all
vestiges of discrimination." Barnett v. W.
T. Grant Company, supra, at 550.
2. Specific Discriminators
68
Another factor which the district court took into
consideration in dismissing the claims of plaintiffs was the
fact that the named discriminators on the GS-7 panel had rated
plaintiffs "as high or higher" than the other members (App.108).
By so concluding, the district court failed to carry out
the congressional mandate attendant to the 1972 amendments.
In passing the 1972 amendments to Title VII, Congress
specifically criticized the Civil Service Commission for
assuming that "employment discrimination is primarily a problem
of malicious intent on the part of individuals." Legislative
History at 84 and 423 (see generally pp. 29-30 , supra. Congress'
criticism of the Civil Service Commission can only be interpreted
as a message to federal courts that they should look beyond
the actions of particular individuals in determining whether a
federal employer has violated Title VII. The district court's
reliance upon its findings with respect to particular individuals
in the instant case is directly opposed to that congressional
intent. As such, that reliance constitutes reversible error and
this Court should so hold.
3. Civil Service Commission Regulations
The district court seemingly relied upon its finding
that defendants followed applicable Civil Service Commission
13. /
75/
Closely related to this finding was the district
court's conclusion that "[w]hile plaintiffs asserted they were
discriminated against, they could point to no act of discrimination.
App. 108 • While plaintiffs disagree with this finding (see
pp. 54-60 , supra, the law' surrounding Title VII imposes no~such
burden on plaintiffs, and is, in fact, to the contrary. (see
pp. 60-66, supra).
4
and agency regulations as grounds for dismissing plaintiffs'
claims (App. 110 ). As was the case with respect to individual
discriminators, supra, this finding is also directly opposed to the
congressional purpose in enacting the 1972 amendments to Title
VII:
69
[The Civil Service Commission] apparently has not
recognized that the general rules and procedures
it has promulgated may actually operate to the
disadvantage of minorities and women in systemic
fashion. All too frequently policies established
at the policy level of the Civil Service Commission
do not penetrate to lower administrative levels.
The result is little or no action in areas where
unlawful practices are most pronounced.
* * *
To correct this entrenched discrimination in
the Federal service, it is necessary to insure the
effective application of uniform, fair and strongly
enforced policies. The present law and the proposed
statute do not permit industry and labor
organizations to be the judges of their own conduct
in the area of employment discrimination. There is
no reason why government agencies should not be
treated similarly." H.R. Report No. 92-238, supra;
Legislative History at 84-85. See generally
Legislative History at 82-85 and 421-26.
Thus, even assuming that applicable regulations were
followed by defendants, the inquiry must not end there. The
district court should have considered the effects of those
procedures and not just whether those procedures were violated.
Its failure to do so constitutes error, and should be reversed.