Shields v Midtown Bowling Lanes Transcript

    UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ALISON PALMER, }
Plaintiff, |

v» , | Civil Action No. 1016-72
WILLIAM P. ROGERS, et al.,j \

Defendants. )

PLAINTIFF’S MEMORANDUM OF 
POINTS AND AUTHORITIES IN OPPOSITION 
TO DEFENDANTS ’ MOTION TO DISMISS 

OR, IN THE ALTERNATIVE, FOR 
SUMMARY JUDGMENT

• BRUCE J. TERRIS 
SUELLEN T. KEINER

1908 Sunderland Place, N.W 
Washington, D.C. 20036 
(202) 785-IS92

April 21, 1975 Attorneys for Plaintiff



*

Page
Jenkins v. United Gas Corp., 400 F.2d 28 (C.A.

5, 1968) . , .................................... 14
Johnson v. Georgia Highway Express, Inc., 417

2d 1122“Tc.A. 5, 1969) . . . . .................  19

Johnson v. Georgia Highway Express, Inc., 4
EPD para. 7753 (N.D. Ga, 1972) . . ..............  15

Johnson v. Goodvear Tire & Rubber Co., 491
F. 2d 1364 (1974) T. 7 T T .................  21

King v. Georgia Pov;er Co. , 295 F. Supp. 943
(N.D. Ga. 1&T37 * .................................  ^

King v. Laborers Local 818, 3 FEP Cases
473 (c :a . &; 1971)'*............................ . 23

Local 53, Int'l Ass'n of Asbestos Workers
v. Bogler, 467 F.2d 1647 (C.A.5, 1969)..........  15

Logan v. General Fireproofing Co., 309 F. Supp
1096 (W.D.N.C. 1969) . .  .....................  4

Louisiana v. United States, 380 U.S. 145 (1965) . . .  19
Macklin v. Spector Freight Svstems, Inc.,

156 U.S. App. D.C~. “69, '478" f.'ScfirTSr (1973) . . . .  4
Massey v. Illinois Range Co., 6 EPD para. 875

(N.D. fir. “15731 ...............................  15

McDonnell-Douglas Aircraft Corp. v. Green, 411
U.S. 192 (1973) . . , . . , . . . .............  16

McLaughlin v. Calloway, C.A, No. 74-123-P
(S.D. Ala., March'14, 1975) ..................... 25

Moody v. Albemarle Paper Co., 474 F,2d 134
(C.A. 4 , 1973) . . . ...........................  22

Morton v. Mancari, 415 U.S, 535 (1974) . .............  l4
Oubichon v. North American Rockwell Corp. , 482F. 2d 569TC"A79'riSTSl-- — — - .............  ^

Parham v. Southwestern Bell Telephone Co. , 433
F. 2d 42TTC.A’. 8 , ' 19TU1 . . , ...................  l4

Pettit v. United States, 488 F,2d 1026 (Ct. Cl.
1973) ........ ..............................  26

Pettway v. American Cast Iron Pice Co., *94 F.2d 211
(c7a .5,‘ 1974) . . . . .  . . \ . ............   20

Powell v. McCormack, 395 U.S. 486 (1969) ............. 3

Reed v. Arlington Hotel Co., 476 F.2d 721 (C.A.8.
(C.A. 8 , 1973) . . . . ...........................  15

♦

ii

Table of Cases and Authorities, cont'd.



t-

ill

Page

4

19

20, 25

15

20 

21

t

Table of Cases and Authorities, eont1d,

Sanchez v. Standard Brands, Inc,, 431 F,2d 455
rc7A.5," 19.71J7"7 ; 7 7 7 Y  , t ♦ » » , t t  , , , , . 4

Sciaraffa v. Oxford Paper Co,, 31Q F, §5upp, 891
(d . Me. 157731 r T T T T  » « » « » » t » « ♦ » » » .  4

* Smith v. Kleindienst, 8 FEP Cases 7§2 (D,p,€, 1974)
* Smith_v. YMCA, 462 F,2<3 634 (19?2)

Sprogis v. United Air Lfnes, inct, 444 F, 2!d 1194
(c.A.7, 1971) 7"eertiefifflT 4Q4 y*i, 991 « f .

Swann v. Charlotte^-Mecklenburg Board of Edueation, 402
u.s. 1 (1 9 7 1). / , T';~7 ; «

Taylor v. Safewav Stores, inc,, 333 Ft fSupp, $3 (D, 
coi°. i 97i ) ' ,  , r r . T r  , t V t  t i , , ,

United States v. Bethlehem Jpteel Gerp,, 966 F.24
652 (c.a . 2, i m r t t "~ , , , , , , f , .

United States v. Frazer, 2 FEP Cases 847 (M,D, Ala,
197°) . . .  % t , , , , , , , , , , , , ,  f .

United States v. Georgia Power Go,, 474 F,24 906
(c .a . 5, 1973) . , r m  r ,  20

20 

13 

12

United States v. N.E. Industries, Inc,, 479 
F . 2d 354 (C .A. 8, 1973)'"

* United States v. Phosphate Export Ass'n,, 393 
U.S. 199 (1961) , , 7,- , '

* United States v. W.T, Grant Co,, 345 y,§, 629
( 1 9 5 3 )  633 . r T T T T T 8.' . . .

20

15

19, 20 

13 

4

Reyes v. Missouri-Texas R.R, Go., 3 EPD parg,
8 1 0 5  (D. Kan. 1971) » 7 7 t  7  r r r r r t t r f r » *

t

* Robinson v. Lorlllard Corp, , 444 F,?d 791 (C,A,
4, 1971) , certiorari' dismissed, 404 p,S, 1006 . . , . *.

* Robinson v. Warner, 8 EPP para, 9452 (D,D,G,
1 9 7 4 )  • ' * » » *  f f » f f f f » f » . .

Rosen v. Public Service Electric and Gas Co.,
4 0 8  F.2d 7 5 5  (C7A/ 3 , - T 9 6 9 ) — 7  T  V  , , T

Rosen v. Public Service Electric and Gas Co.,
4 7 7  F . 2d 90 ( C . A . i ,  1 9 7 3 )  ,~ ~ 7 T ,

Rowe v. General Motors Corp,, 4§7 F,fd 348
(C.A. 5 , 197 JJ  7 , 7  , f , , , , , .

Watkins v. Washington, 1§3 y,S, App, E>,C, 298, 472 
F . 2d 1373 (1972) , 22, 25



iv

STATUTES AND REGULATIONS: * *

Back Pay Act of 1966, 5 U.S.C. 5596
Foreign Service Act of 1946, 22 U.S.C. 991, et seq.
1972 Amendments to Title VII of the Civil Rights Act 

of 1964

Table of Cases and Authorities, ccnt'd.

17

6

Sec. 706(g) 42 U.S.C. 2000e-5(g) 17
Sec. 717(b) 42 U.S.C. 2000e-lo(b) 17

See. 717(d) 42 U.S.C. 2000e-l6(d) 18
Civil Service Commission Regulations, 5 C.F.R. Part 713,8
State Department Regulations, 3 F.A.M. 6,8

MISCELLANEOUS :
* 50 Comp. Gen. 581 (1971, B -165571) . 26

118 Cong. Rec. S3462 (daily ed. March 6, 1972) 18
House Report 238, 92d Cong., 1st Sess. (1971) 18,21
Linehan, Patrick E., The Foreign Service Personnel 7,8,9

System: An Organizational Analysis, March 24, 1975
2A Moore's Federal Practice (1974) 3
Sape and Hart, Title VII Reconsidered: The Equal 19
Employment Opportunity Act of 1972, 40 G.W.' LaW 
Rev. 824 (1972)



UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

ALISON PALMER, }
Plaintiff, |

v. '
WILLIAM P. ROGERS, et al.,‘ 

Defendants. )

Civil Action No. 1016-72

• PLAINTIFF'S MEMORANDUM OF 
POINTS AND AUTHORITIES IN OPPOSITION 
TO DEFENDANTS » MOTION TO DISMISS 

OR, IN THE ALTERNATIVE, FOR 
SUMMARY JUDGMENT

At the status hearing in this case on February 20, 1975, 
the Court asked the parties to brief the issue whether this 
case involves a case or controversy. In response, defendants 
have now renewed their motion to dismiss all claims, except 
for the Back Pay Act claim, and for summary Judgment in 
their favor on the back pay claim.

On February 27, 197^, plaintiff filed a motion for 
summary judgment on her back pay claim. She continues to 
rely on the arguments presented in the memorandum of points 
and authorities in support of that motion and in her reply 
memorandum, filed on April 29, 197^. This memorandum will 
address the case-or-controversy issue and will further support 
plaintiff's motion for summary judgment on the back pay claim.

ARGUMENT

I
A CASE OR CONTROVERSY IS PRESENTED

In claiming that no justiciable case or controversy 
remains in this case, defendants are basically asserting that 
plaintiff has obtained all of the relief to which she is 
entitled. They define (Def. Mem. 4) this relief by quoting



2

from the decision of the Board of Appeals and Review ("BAR")
on April 20, 1972. However, the BAR decision sets forth
only a portion of plaintiff’s claims. Her claims in this
case, which are set forth in the Amended Complaint, paragraphs
59-72, are based in large part" on the analysis, findings and
recommendations of the EEO Appeals Examiner, Andrew R. Beath,

1/dated August 18, 1971.
Mr. Beath found, first, that there was discrimination 

against plaintiff because of her sex which produced an adverse 
effect on her career and required remedial action (CSC files, 
pp. 921-922, 945) and, second, that there was a-pattern of 
discrimination against women Foreign Service officers to 
overseas posts (id., p. 946). He then made eight very 
detailed and specific recommendations for remedial actions 
to eliminate this discrimination against women Foreign 
Service officers (.id., pp. 947-951). The State Department 
accepted all but one of his findings and recommendations.

However, as we will show below and as plaintiff’s 
supplemental affidavit makes clear, up to the present time 
defendants have failed and refused to carry out almost all 
of those recommendations. As a result, there is virtually 
no basis for defendants' motion to dismiss for lack of a 
case-or-controversy. Rather than being moot, this case 
presents live and pressing issues concerning the nature of 
the relief to which plaintiff is entitled and the adequacy of 
defendants' remedial actions. While defendants may argue 
that plaintiff is not entitled to all of the relief which 
she seeks, this contention goes, not to mootness, but to the 
merits of the entire case.

1/ The Examiner's entire decision is included in the 
Civil Service Commission ("CSC") files at 895-951. His 
findings and recommendations are attached hereto as Exhibit A.



3

The general rule concerning mootness is: "Simply
stated, a case is moot when the issues presented are no 
longer 'live' or the parties lack a legally cognizable 
interest in the outcome." Powell v. McCormack, 395 U.S.
486, 496 (1959)- In order for plaintiff's complaint to be 
dismissed as moot, defendants would have to demonstrate 
"to a certainty that the plaintiff is entitled to no relief 
under any state of facts which could be proved in support 
of the claim." 2A Moore's Federal Practice, para, 1208 
(1974). See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); 
Hudson v. Hardy, 134 U.S. App. D.C. 44, 4l2 F.2d 1091, 1093 
(1968) .

In arguing that this case is moot and that there is 
no remaining case or controversy other than plaintiff's 
claim for back pay, defendants have ignored the claims for 
relief set forth in plaintiff's amended complaint. Almost 
all of those claims present issues that remain alive and 
unresolved at the present time. While defendants suggest 
(Def. Mem. 3, note 4) that plaintiff has failed to exhaust 
administrative remedies as to some of these claims, the 
attached table shows the relationship between the claims 
in the amended complaint and the matters discussed at the 
administrative hearing in June and covered by the findings 
and recommendations of the Appeals Examiner in August 1971.

By limiting their discussion to the summary of 
plaintiff's claims as set forth in the BAR decision (Def.
Mem. 4), defendants attempt to restrict the scope of this 
litigation. However, assuming arguendo that all of the claims 
In the amended complaint were not presented at the adminis­
trative level, plaintiff's claims in this suit still "may 
properly encompass any such discrimination like or related



h

M ended "
COMPLAINT
1. First Claim: 
Discrimination 
against plaintiff 
and delay in 
promotion.

2. Second Claim: 
Discrimination 
against other , 
women Foreign 
Service officers 
in promotion.

ADMINISTRATIVE
HEARING
1. Transcript,
pp. 116, 5933 1420; 
see also Examiners 
Analysis of Hearing 
(C.S.C. files, pp. 
920-922),
2. Transcript, pp.
729, 829, 1585; 
Hearing Exs. 3*4,73 
43, 45 (C.S.C. files
p p . 1070-1087, 1101-
110 3, 1236-1240,
1265.

3. Third Claim: 3 . .Transcript, pp.
Discrimination 627, 878, 882,
against plaintiff 1602,'
in assignments
and training ->nd in
failing to assign
her to War College.

4. Fourth Claim; 
Discrimination 
against other 
Women Foreign 
Service officers 
in assignments 
and training.

4. Transcript, pp. 
552, 806; Hearing 
Exs. 2,3,4,7*43,45 (C.S.C. files, pp. 
1061,1068,1070- 
1087, 110 1- 
1265, 1236-

5* Fifth Claim: 
Discrimination 
against women in 
recruitment for, 
and appointment 
to, Foreign Service.

5. Transcript, pp, 
547, 731* 8125Hearing Exs. 3,4,
7, 43,45 (C.S.C. 
files, po. 1070- 
1007, 1101-1103, 
1236-1240, 1265).

6, Sixth Claim; 6 . Transcript, pp.
Defendant's delay 115, 1 1 7, 141.
in processing 
Complaint and 
harassment and re­
prisals against 
plaintiff,

EXAMINER'S FINDINGS 
AND RECOMMENDATIONS
1. Recommendation 
1(a) (C.S.C. files, 
p. 947)j Explanatory 
letter (C.S.C. files, 
pp. 1487-1488).

2. Recommendation 5 
(C.S.C. files, po. 
949-950).

3. Finding 1 (C.S.C. 
files, p. 945)5 Re­
commendation 1(b) 
(C.S.C. files, p. 947 
Recommendation 4 
(C.S.C. files pp. 948- 
949)5 see also Defendants' Memo­
randum of Decision 
1(b) (C.S.C. files, p. 
886).

4. Findings 6-12 
(C.S.C. files, p. 946)) 5 
Recommendations 4, 6-
8 (C.S.C. files, pp.949-951).

5. Examiner's 
analysis of case 
(C.S.C. files, p. 933),

6. Findings 3 and 4 
(C.S.C. files, p. 
945)5 Recommendations 
1(b), 2, 3 (C.S.C. 
files, pp. 947-948).

7, Seventh Claim; 
Pattern and 
practice of
discrimination,

8, Eighth Claim; X4-ability of 
defendants Macomber 
and Pollard for 
exemplary and 
punitive damages

7. Transcript, pp. 
190, 245, 547, 717, 
735, 740,

8, Transcript, pp.
1 16, 772, 887-888,
1598.

7. Finding 6 (C.S.C. 
files, p. 946); see 
also Findings and 
Recommendations 
listed above.
8. Findings 4, 5 
(C.S.C. files, p. 945;.

2/ These" citations are to the pages of the Hearing Transcript it­
self rather than to the Civil Service Commission fULes. They are 
not necessarily exhaustive but merely illustrate the scope of the



5

to the allegations of the charge and growing out of such 
allegations during the pendency of the case." King v.
Georgia Power Co.. 295 F. Supp. 943, 947 (N.D. Ga. 1968) 
(emphasis added), A long line of employment -discrimination 
cases led by Sanchez v. Standard Brands, Inc., 431 F.2d 455 
(C.A. 5, 1971), and followed by this Court in Arey v.
Providence Hospital. 55 F.R.P, 62 (D.D.C. 1972), and by the 
Court of Appeals in Mackiln i/. Spector Freight Systems. Inc.. 
156 U.S. App, P.C, 69, 478 F,2d 979 (1973), has established 
the rule that a civil action under Title VII may include in 
the complaint those matters "which can reasonably be expected 
to grow out of the charge of discrimination" (Sanchez v. 
Standard Brands. Inc.f supra. 43I F.2d at 466). Accord, Logan 
v. General Fireproofing Co.f 309 F. Supp. 1096, 1099-1100 
(W.D.N.C, 1969)> Sciaraffa v, Oxford Paper Co.. 310 F. Supp. 
891, 898 (D, Me, 1970); Copeland v. Mead Corn.. 51 F.R.D.
226, 270 (K,D, Ga, 1970); Reyes v, Mlssouri-Texas R.R. Co..
___F. Supp. ___ . 3 EPD para. 8105 (D. Kan. 1971); Taylor v.
Safeway Stores.Inc.f 333 F. Supp, 83 (D. Colo. 1971); Hecht 
v. CARS. 351 F, Supp. 305 (S.D.N.Y. 1972).

We will now examine each of the claims in plaintiff’s 
amended complaint to determine which, if any, are moot.

The first claim alleges that plaintiff suffered 
discrimination on the basis of sex in both assignment and 
promotion which prevented her from being promoted to grade 
FSO-3 from May 1971 until May 28, 1972 (Amd. Complaint, 
paras. IB*-!?, 19* 39~37)» The Appeals Examiner found, and 
the State Department agreed, that plaintiff had been dis­
criminated against on the basis of sex by being denied assign­
ments in Africa, her area of specialty, and therefore 
recommended that she be promoted to FSO-3 before the convening 
of the 1972 Promotion Boards (CSC files, pp. 882, 945, 947).

4



That recommendation "was clarified by the Examiner’s letter of 
September 3, 1971, stating that he "assumed" the State Depart­
ment would promote plaintiff "as promptly as feasible" and that 
he "expected action in 1971 or very soon in 1972" (CSC files,

yp. 1487). Nevertheless, the State Department took no 
expedited action and appellant was not promoted to FSO-3 .until 
May 28, 1972. Defendants apparently concede (Def. Mem. 4) that 
this claim is not moot and that a case or controversy still 
exists concerning the back pay claimed by plaintiff as a result 
of the delay in promoting her to FSO-3 .

The second claim alleges that the State Department has 
engaged in discrimination against women Foreign Service officers 
with respect to promotion (Amd. Complaint, para. The
hearing included testimony and documentation that the Department 
systematically discriminates against women officers in promotion 
(e.g., CSC files, pp. 1070-1087, 1236-1240) and the Examiner 
found (id., pp. 921-922) that plaintiff was not promoted 
because of this discrimination. The State Department’s discrimi­
nation in promotion against women officers continues and 
defendants have failed to implement the Examiner's recoraraenda- 
ticns which were designed to end such discrimination. A recent 
detailed study of the Foreign Service shows that women officers

3 / The Department's authority to make such a special, 
expedited promotion outside the Selection Board System has 
been recognized by the State Department's Personnel Office 
and by its Legal Advisor (Memorandum from John Stevenson (Legal) 
to Mr. Brewster, February 10, 1972; Mary 01mstead (Deputy 
Director for Personnel Management and Services), Draft Paper: 
Redress of Grievances, June 29, 1972) and is authorized under 
the Foreign Service Act of 1946, 22 U.S.C, 8Q0, et. sea.., and 
the State Department’s own regulations, 3 F.A.M, 023, 568.2-e, 
and 568.4-c. The Secretary of State can recommend to the 
President that any person be promoted at any time. The 
Stevenson and Olmstead memoranda were Exhibits A and B attached 
to Plaintiff's Memorandum of Points and Authorities in Opposition 
to Defendants' Motion to Dismiss ("PI, Mem, in Opp,") filed in 
this Court on February 2, 1973*

r



comprise only 6.9 per cent of the total Foreign Service and 
that all women officers are displaced one full grade level 
below the men. Patrick E. Linehan, The Foreign Service 
Personnel System: An Organizational Analysis, March 24, 1975*
pp. 122-124 (Thesis for Ph.D. in International Studies,
American University) (hereinafter "Linehan"). That study *
further shows that, in the administrative and consular cone*•'
which contain a disproportionate number of women officers, 
the rate of promotion is slower and the officers in those 
cones are generally older than the mean age of Foreign Service 
Officers at each grade level. .Id.* pp. 132, l4l-l42, 172.
See Supplemental Affidavit of Alison Palmer, attached hereto, 
para. 7* 22-24, and Affidavit of Leigh A.‘ Morse, attached 
hereto, para. 7, 9. Plaintiff has exhausted her administrative 
remedies for this claim (see the table, p. 4 above). Never­
theless, defendants1 motion to dismiss does not address this 
issue at all. While defendants may dispute, as a legal 
matter, whether plaintiff can represent as a class all 
women Foreign Service officers, that issue goes to the issue 
of class certification and is not a proper basis for dismissal

4/of the entire complaint as moot. A live controversy plainly 
remains between the parties as to this second claim.

The third claim alleges discrimination against plaintiff 
in assignments and training and the failure to assign her to 
the War College or to other senior training which would 
compensate for the damage to her career from the illegal 
discrimination (Amd. Complaint, para. 63-64). Since, during

4/ In a stipulation approved by the Court on March 24, 
1975* "the parties have agreed that plaintiff may file any 
Motion for Certification of the class within 30 days after 
the Court rules on the case-or-controversy issue presented 
in defendants’ renewal of their motion to dismiss.

7



8

the past two years, plaintiff has served as a guest lecturer 
to students at the National War College (Suppl. Palmer 
Affidavit, para. 9)> there may no longer be any substantial 
benefit to her from being assigned as a student there.
However, contrary to defendants' impression (Def. Mem. 4, 
note 7 ), she still continues to seek a compensatory senior4.
training assignment. While the need for compensatory training 
was discussed at the administrative hearing (e,g., Hearing 
Transcript, pp. 882, 1602), plaintiff has never received such 
a training assignment, which is crucial in order to develop 
full career potential in the Foreign Service. Linehan, supra, 
Pc 164. Certainly, the mere "passage of time" cannot, as 
defendants claim (Def. Mem. 4), make this issue moot. Thus, 
a case of controversy remains as to this claim. Plaintiff 
filed her administrative complaint of discrimination in 1968 

and the processing of it was delayed for 34 months because of 
defendants' alleged failure to comply with the regulations of 
the Civil Service Commission (5 C.F.R. part 713) and the 
State Department (3 F.A.M. 132.7 (1967)). Defendants admit 
(Def. Mem. 6, note 10) that the delay was not plaintiff's 
fault. Therefore, they cannot now be permitted to claim that 
plaintiff is not entitled to relief because of their actions.

The fourth claim alleges discrimination against other 
women Foreign Service officers in assignments and training 
(Amd. Complaint, para. 65-66). There was extensive evidence 
at the hearing concerning systeramatic discrimination against 
women in assignments and training. E.g., CSC files, pp. 1068- 
IO87, 1236-1240. The Examiner found that "a pattern of 
discrimination exists in that women have been denied assign­
ments to substantive positions at overseas posts in the Foreign 
Service" and the State Department accepted this finding (CSC 
files, pp. 946, 884). Nevertheless, defendants have failed



9

to implement the Examiner's recommendations and have continued
their discriminatory practices relating to assignments for
women Foreign Service officers.

The Department's regulations governing the assignment
#

process are still openly ignored and violated. The recent
study of the,Foreign Service shows that enormous "informal"
influence is exerted by the geographical bureaus in the assign-

y  '
ment'process (Linehan, supra, pp. 2o2-2o3);

Often, this informal process completely bypasses 
-the counseling function, and the assignment 
section is usually pro forma in complying with 
the bureau recommendations. With the exception 
of the actual assignment of the individual, the 
entire ^assignment/ process described above —  
a quasi-sponsorship, unacknowledged by the Service 
—  occurs on the informal level without regard to 
the assignment process described by the regulations.

Furthermore, women officers are still being rejected for, or
relegated to, certain specialties and assignments on the basis
of sex. For example, many more women officers are assigned
to the administrative and consular cones, whereas twice as
many male officers are in the•economic, commercial and political
cones. Linehan, supra, pp, 131-132. Yet, the administrative
and consular cones have very few senior level positions (id.,
pp. 134-135) and officers in those cones "function only in
supportive roles" (id., p. 255) • See also Suppl. Palmer
Affidavit, para. 20-22; Morse Affidavit, para. 3-5 . Just as
for the second claim, defendants may oppose plaintiff as a
class representative with respect to this issue. Nevertheless,
until the Court rules on the certification of the class, the
complaint cannot be dismissed as to this claim and a concrete
case or controversy remains between the parties.

The fifth claim alleges a pattern of discrimination
against women in recruitment for, and appointment to, the
Foreign Service (Amd. Complaint, para. 67). That issue was
the subject of both testimony and documentation at the



10

administrative hearing (see table,, p. 4, above). It is a 
significant part of the pattern and practice of discrimination 
against women by defendants which has been the basis of 
plaintiff’s complaint from the outset.

State Department statistics show that women continue 
to be discriminated against in appointment (Exhibit K to 
PI. Mem. in Opp.). While 21$ of those taking the Foreign 
Service examination in December 1971 were women and 22$ in 
December 1972, women comprised only l8$ and 15$, respectively, 
of the persons who were appointed to the Foreign Service in 
the corresponding fiscal years. Thus, appointments of women 
declined from 18$ in fiscal 1972 to 15$ in fiscal 1973. While 
both these percentages are an increase over 1970 (7$) and 
1971 (6$), the absolute increase in appointments of women 
in fiscal 1972 was only 8 more than in 1970 and 1971. From 
these statistics, it would appear that the problem of sex 
discrimination in recruitment ana appointment still remains 
at the present time. Defendants have not demonstrated that 
this discrimination has ended. Therefore, this issue can 
only be resolved by a ruling on the merits of this case.

As defendants correctly state (Def. Mem. 1, note 1), 
the sixth and eighth claims (Amd. Complaint, para. 68-70 and 
72), to the extent that they relate to the individual liability 
of defendants Macomber and Pollard for damages, no longer 
remain in this case because they were dismissed by this Court’s 
ruling of September 7, 1973, and were not appealed by plaintiff. 
However, those portions of the sixth claim which relate to the 
Department's violations of Civil Service Commission regulations 
in the State Department's processing of plaintiff's complaint 
and to harrassment and reprisals against plaintiff remain in 
this case. Nothing has been done by defendants to remedy these 
claims. In fact, they have continued to violate the Civil



11

Service Commission's regulations in several significant 
respects. Suppl. Palmer Affidavit, para. 10-15; Morse 
Affidavit, para. 8.

Defendants argue (Def. Mem. 5) that this claim is 
"simply too broad and generalized to admit of resolution in 
a judicial form." However, at the administrative level, 
specific violations were found and recommendations for 
improvements were made which defendants purported to accept. 
These are precisely the kinds of specific factual and legal 
issues which have been involved in literally scores of employ­
ment discrimination cases under Title VII of the Civil Rights 
Act. There is no basis for defendants' contention that such 
claims are beyond the power of the federal courts to resolve.

Defendants also suggest (Def. Mem. 5) that plaintiffs' 
claims do not involve any concrete injury. However, as the 
Examiner found, plaintiff and the class she seeks to represent 
have been subjected to continuing discrimination on the basis 
of sex. The Department's failure to comply with Civil Service 
regulations and its harassment and reprisals against plaintiff 
clearly involve concrete injury. It is hard to imagine a 
case where injury, and therefore standing, could be any clearer.

Over the past four years since the Examiner's decision,
defendants have done very little to. carry out his _   ________ _
recommendations. See Suppl. Palmer Affidavit, passim; and 
Morse Affidavit, para. 4, 7-10. Thus, it is necessary to 
seek a remedy for this discrimination from the Court. While 
defendants may disagree as to the scope of relief which the 
Court can provide, that issue goes to the merits of this case. 
Clearly, a case of controversy remains as to this claim.

The seventh claim alleges a pattern and practice of 
discrimination by defendants on the basis of sex (Amd.
Complaint, para. 71). In many respects, it encompasses all



of the preceding claims. Plaintiff has exhausted her administra­
tive remedies by virtue of the extensive administrative record 
that -was developed concerning this claim (see table, p. 4, 
above). Defendants have not demonstrated that this pattern 
and practice of discrimination has been eliminated and there 
is every indication that it still continues to exist. Suppl. 
Palmer Affidavit, passim; Morse Affidavit, para. 3-7, 9~10.
As -with several of plaintiff's claims, defendants' objections 
go, not to the issue of mootness, but to the issues of class 
certification. Therefore, this claim cannot properly be 
dismissed as moot but, at the very least, must await the 
court’s ruling on certification of the class in order to 
determine whether plaintiff is properly entitled to the relief 
she seeks in order to eliminate this pattern and practice of 
discrimination.

-To summarize, a live case or controversy remains between
the parties as to all of these claims and must be resolved by
this Court in ruling on the merits of the case and the relief
to which plaintiff is entitled. There can be little doubt
that plaintiff has exhausted her administrative remedies as
to all of the claims presented in the amended complaint.
Furthermore, defendants have done nothing to demonstrate that
any of the relief sought in those claims has already been
provided to plaintiff or the proposed class.

In any event, even if defendants had voluntarily complied
with all of the Examiner's recommendations and had ceased to
discriminate against women Foreign Service officers, this case
would still not be moot. As the Supreme Court ruled in United
States v. W. T. Grant Co.. 345 U.S. 629, 632 (1953):

^V7oluntary cessation of allegedly illegal conduct 
does not deprive the tribunal of power to hear and 
determine the case, i.e., does not make the case 
moot. * * * The defendant is free to return to his 
old ways. This, together with a public interest in 
having the legality of the practices settled, militates 
against a mootness conclusion.

12



The Court then stated that a case "may nevertheless be moot 
if the defendant can demonstrate that 'there is no reasonable 
expectation that the wrong will be repeated.' The burden is 
a heavy one." Id. at 633.

This standard has been summarized more recently by the
Supreme Court in United States v. Phosphate'Export Ass'n,
393 U.S. 399, 203 (1968):

The test for mootness is a stringent one. Mere 
voluntary cessation of allegedly illegal conduct 
does not moot a case * * *. A case might become 
moot if subsequent events made it absolutely clear 
that the allegedly wrongful behavior could not 
reasonably be expected to recur * * *. ^/fhere i§7 
a heavy burden of persuasion which we have held 
rests upon /defendants_7 . /There must be proof/ that 
the likelihood of further violations is sufficiently 
remote to make injunctive relief unnecessary.

Here defendants have not sustained that burden of proof and 
persuasion. They have submitted merely legal arguments and 
have done nothing to make it "absolutely clear" that discrimi­
nation against women Foreign Service officers "could not 
reasonably be expected to recur."

The W. T. Grant rule has been applied by the courts 
in other civil rights cases. The virtually unanimous result 
has been that, where discrimination is "deeply rooted and long 
standing," a case cannot be dismissed as moot even when the 
discriminatory practice has ended. Gray v. Sanders, 372 U.S. 
368, 376 (1963) (voting rights); Swann v. Charlotte-Mecklenburg 
Board of Education, 402 U.S, 1, 15 (1971) (school desegration). 
Cf. DeFunis v. Odegaard, 416 U.S. 312, 318-319 (1974) (law 
school admissions). As the Court of Appeals for the District 
of Columbia Circuit has noted, "the doctrine of mootness does 
not apply to questions of a recurring nature." City of 
Lafayette v. SEC, 147 U.S. App. D.C. 93, 454 F.2d 941, 953 
(1971), affirmed, 411 U.S. 747.

The rule against mootness in cases where illegal conduct 
has ended voluntarily but there is a possibility that it may

13



. • •- . • 'vj.  ̂ ■ •w*.-.
I *

14

recur is particularly applicable to employment discrimination 
suits, like the case at bar, brought under Title VII of the

5/Civil Rights Act of 1954. In the leading case of Jenkins v. 
United Gas Coro., 400 F,2d 28 (C.A. 5, 1958), the court found 
that promotion of the plaintiff after a class action had been 
filed did not. render the case moot as to either the plaintiff's 
individual claims or the class relief, The court pointed out 
the important role of a Title VII plaintiff (id. at 32-33):

/T7he charge itself is something more than 
tKe single claim that a particular job has 
been denied him. Rather it is necessarily a 
dual one: (1) a specific job, promotion,
etc. has actually been denied, and (2) this 
was due to Title VII forbidden discrimination.

* * *
/I7t is enough on which to launch a full scale 
inquiry into the charged unlawful motivation 
in employment practices. It is even more so 
considering the prayer for injunction as a pro­
tection against a repetition of such conduct 
.in the future.

With so much riding on the claim of the 
private suitor, the possibility that in this 
David-Goliath confrontation economic pressures 
will be at work toward acceptance of preferred 
post-suit jobs and the equal possibility 
that an employee would devise such a resist- 
and-withdraw tactic as a means for continuing 
its former ways calls for the trial court to 
keep consciously aware of time-tested principles 
particularly in the area of public law. Such 
actions in the face of litigation are equivocal 
in purpose, motive and permanence. (Footnote 
omitted, citing W.T. Grant).
The Jenkins rule was applied in Parham v. Southwestern 

Bell Telephone Co.. 433 F.2d 421 (C.A. 8, 1970), where the

5/ In this memorandum, we will rely on substantive 
decisions in Title VII cases involving employees in private 
industry. Although plaintiff here is an employee of a federal 
agency, the rules established in private Title VII cases are 
fully applicable to this case which is based on the 1972 
Amendments to Title VII. As the Supreme Court recently ruled 
in Morton v. Mancari. 415 U.S. 535* 547 (1974): "In general,
it may be said that the substantive anti-discrimination law 
embraced in Title VII was carried over and applied to the
Federal Government." See also Douglas v. Hampton, __ U.S.
App. D.C. ___, ___ F .2d ___ , 9 FPU para. 9973 (197577"



15

company had changed its recruitment practices and had increased
its hiring of blacks after suit was filed. The court ruled
that the case was not moot and Stated fid, at 426):

While an employer's more recent employment 
practices may bear upon -the remedy soSg£t 

a^-ec  ̂ the determination of 3
T ^ w v t t “? ernplô er Previously violated iitle VII.(empnasis added).

See also Cypress v . _Wet;port News Genera] and Hon, prtartan 

22=EL^?££>, 375 F.gd 648, 657-658 (C.A. 4, 1967); Local 57, 
lPl.'l.A:,'s'n °f Asbestos Porkers v. Vogler, 407 F.2d 1047,
1055 (C.A. 5, 1969); Rosen v. Public Service Electric and Gas 
— ’ ,!0® F,2d (C.A. 3, 1969); Oublchon v. Korth American 
Rockwell Corn., 482 F.2d 569 (C.A. 9, 1973); teed v. Arlington 
Hotel_Co., 476 F.2d 721, 724 (C.A. 8, 1973); Johnson v. Georgia 
Highway Ewnress. Inc. 4 EPD para. 7753 (N,D. Ga. 1972);

v. Illinois Ranee Co., 6 EPD para. 875 (N.D. 1 1 1 . 1973).
The • Crant/Jenkinŝ  rule, as applied to claims of

mootaess In Title VII cases, was recently summarized by the
Fifth Circuit in Smith v. YMCA. 462 F. 2d 634, 645 (1972):

hootness is not so easily established. Vol- 
untary cessation of the alleged illegal act 
- P - c t - e  is not sufficient to indicate moot- 
ne^s for otherwise the defendant would be able 
to^return to his allegedly illegal practice.
+ _. Sut^ ec?uent remedial actions allegedlyta«cen to obviate a cause of action s t r o n g /

agJInst a finding of mootness, oar- ticularly where the plaintiffs present a'orima 
facie showing of * * * discrimination. * * * 
discrimination? cases are not mooted by elimi-
vhe?eS asehere1 1 ?hSedia -tiVityj Particularly vnere, as here, the plaintiffs seek to enioin
nation0 pattern and Practice of * * * discri-

In the present case, defendants' claims (Def. Mem. 4) 
of subsequent remedial action hardly suffice to support 
dismissal of this suit as moot. Here, as the Appeals Examiner 
found (CSC files, pp. 945-946), there was discrimination 
against both plaintiff individually and the proposed class 
of women Foreign Service officers. That finding fulfills



16

plaintiff's obligation to make a prlina facie showing of
discrimination. This suit seeks relief from the entire
pattern and practice of discrimination against women Foreign
Service officers. As a result, defendants cannot now prevail
on a motion to dismiss the case as moot simply by claiming
that they no longer discriminate against women Foreign Service
officers. Nor is it sufficient that they have merely
’’accepted" the examiner's findings and recommendations.
Rather, they now have the burden to prove that the examiner's
recommendations have been carried out and that the entire
pattern of discrimination against women Foreign Service

6/
Officers has been eliminated. The facts which would 
sustain this burden go to the ultimate merits of the case 
and the relief to which plaintiff is legally entitled. The 
legal issues cannot be resolved in the context of this motion 
to dismiss but require a ruling on the merits of plaintiff's 
claims for herself and the proposed class.

6/ McDonnell-Dour: las Aircraft Corn, v. Green, 4ll 
U.S. 192 (I973), established’ the rule concerning the 
respective burdens of proof for Title VII plaintiffs and 
defendants. To summarize, once the plaintiff has presented 
prima facie evidence of discrimination, the defendant must 
show by clear and convincing proof that there was some 
non-discriminatory reason for its actions and any doubts 
must be resolved in favor of the plaintiff, who is the 
innocent party. See also Baxter v. Savannah Sugar Refining 
Corp.. 495 F.2d 437, 445 (C.A. 5, 1974), certiorari denied, 

U.S.



II
PIAINTIFF IS ENTITLED TO RECOVER 
BACK PAY UNDER THE BACK PAY ACT 

AND THE 1972 AMENDMENTS TO TITLE VII
On the basis of the Appeals Examiner’s explicit finding 

that plaintiff "was discriminated against because of her sex 
and her career was adversely affected to a degree which merits 
remedial action" (CSC files, p. 9^5) > plaintiff is entitled 
to recover back: pay under both the Back Pay Act of 1966 and 
the 1972 Amendments to Title VII. This monetary relief is 
necessary, as a minimum, in order to recompense plaintiff 
monetarily for the illegal discrimination against her.

Plaintiff’ 6 motion for summary judgment under the Back
Pay Act, and her reply memorandum in support thereof, have
discussed the availability of back pay relief under that Act.
In addition, since this Court has jurisdiction over the present
case under the 1972 Amendments to Title VII, plaintiff is like-

1_/wise entitled to back pay under that statute.
In civil actions under the 1972 Amendments to Title VII, 

federal employees are entitled to the various types of relief 
provided in Section 706(g). That relief includes: (1 ) an
injunction against unlawful employment practices, (2) an order 
for appropriate affirmative action, (3) "reinstatement or 
hiring of employees, with or without back pay," and (4) "any 
other equitable relief as the court deems appropriate." >42 
U.S.C. 2000e-5(g).

Federal employees are entitled to -these judicial remedies 
entirely separate from, and independent of, the administrative 
remedies: >42 U.S.C. 2000e-lo(b) . Section 717 of the 1972

7/ Plaintiff’s analysis of the issue of entitlement to 
back pay under Title VII is, in large part, identical to the 
position taken by the United States in the recent brief as 
amicus curiae filed by the Solicitor General in Albemarle Paper 
Co. v. Moody, Nos. 7^4-339 an  ̂7,4->423, appeal penoing.
The pertinent portions of that brief are attached hereto as 
Exhibit B.

17



18

Amendments, which gives federal employees the right to bring 
civil actions for discrimination in employment, explicitly 
provides that "The provisions of Section 705(f) through (k), 
as applicable, shall govern civil actions brought hereunder."
42 U.S.C. 2000e-l5(d).

The legislative history of the 1972 Amendments indicates 
that Congress enacted the provisions for both administrative 
and judicial remedies in order to provide the same "wide range 
of relief for federal employees that was already available to 
private employees (S. Rep. No. 4lp, 92d Cong., 1st Sess. 16 
(1971)):

The provisions adopted by the Committee will 
enable the Commission to grant full relief to 
aggrieved employees, or applicants, including 
back pay and immediate advancement as appropriate. 
Aggrieved employees or applicants will also have 
the full rights available in the courts as are 
granted to individuals in the private sector 
under Title VII.

See also H. Rep. No. 238, 92d Cong., 1st Sess. 24-25 (1971).
In the Section-by-Section Analysis of the Conference Report
on the 1972 Amendments, Congress stated (118 Cong. Rec. S.
3462 (daily ed. March 6, 1972)):

The provisions of /subsection 706(g_]7 are intended 
to give the courts wide discretion exercising 
their equitable powers to fashion the most complete 
relief possible. In dealing with the present 
section 705(g) the courts have stressed that the 
scope of relief under that section of the Act is 
intended to make the victims of unlawful discri­
mination whole and that the attainment of this objec­
tive rests not only upon the elimination of the 
particular unlawful employment practice complained 
of, but also requires thatpersons aggrieved by 
the consequences and effects of unlawful employ­
ment practices, be so far as possible, restored 
to a position where they would have been were it 
not for the unlawful discrimination.



19

The court decisions on the scope of relief-in-Title-VII 
cases referred to by the Conference Report presumably. include., 
several cases involving back pay. 1 In Robinson v. Lorillard Corn. 
444 F.2d 791* 802 (C.A. 4, 1971)* certiorari dismissed, 404 
U.S. 1006,the court said "a backpay award is not punitive in 
nature, but equitable - intended to restore the recipients to 
their rightful economic status absent the effects of unlawful 
discrimination." See also Johnson v. Georgia Highway Express, 
Inc., 417 F.2d 1122, 1125 (C.A. 5, 1969); Bowe v. Colgate- 
Palmolive Co., 416 F.2d 711* 720 (C.A. 7 , 1969) ("The clear 
purpose of Title VII is to bring an end to the proscribed dis­
criminatory practices, and to make whole, in a pecuniary fashion, 
those who have suffered by it"). See Sape and Hart, Title VII 
reconsidered: The Equal Employment Opportunity Act of 1972,
40 G.V7. Law Rev. 824, 880, note 365 (1972). These decisions 
follow the general rule in civil rights cases that "the court 
has not merely the power but the duty to render a decree which 
will so far as possible eliminate the discriminatory effects 
of the past as well as bar like discrimination in the future." 
Louisiana v. United States, 380 U.S. 145, 154 (1965). Thus 
Congress made back pay available to federal employees as part 
of the same broad relief provided for private employees.

The courts have consistently held that back pay is an
essential part of the relief to be granted in cases of discrimi-

‘ _8/nation brought pursuant to Title VII. See, e.g., Sprogis

8/ The Supreme Court has held that these substantive de­
cisions in private Title VII cases are equally applicable to 
civil actions brought by federal employees under the 1972 Amend­
ments to Title VII. See footnote 5* supra.



♦

20

v. United Air Lines; Inc.,444 F.2d 1194, 1201-1202 (C.A. 7, 1971), 
certiorari denied, 404 U.S. 991; United States v. Georgia Power 
Co., 474 F.2d 906, 921 (C.A. 5, 1973); Rosen v. Public Service 
Electric and Gas Co., 477 F.2d 90, 96 (C.A. 3, 1973); Pettvrav 
v. American Cast Iron. Pipe Co., 494 F.2d 211, 252 (C.A. 5, 1974).

In Head*’v. Timken Roller Bearing Co., 486 F.2d 870,
•876 (C.A. 6, 1973), the court said: "Back pay is clearly an
appropriate remedy for Title VII violations." Similarly, in
United States v. N.L. Industries, Inc., 479 F.2d 354, 379 (C.A.
8, 1973), the court explained:

The role that backpay plays in employment discri­
mination cases is twofold. First, * * * it pro­
vides compensation for the tangible economic loss 
suffered by those who are discriminated against. 
Secondly, and even more importantly, because backpay 
awards act as a deterrant to employers and unions, 
such awards play a crucial role in the remedial 
process. * * They provide the spur or catalyst 
which causes employers and unions to self-examine 
and to self-evaluate their employment practice and 
to endeavor to eliminate, so far as possible, the 
last vestiges of an unfortunate and ignominious 
page in this country’s history.

Defendants argue (Def. Mem. 10) that an award of back . 
pay, with its accompanying retroactive promotion, rests 
within the agency’s discretion. This contention is directly 
contrary to recent decisions of this Court (Robinson v. Warner,
8 EPD para. 9452 (D.D.C. 1974)] Smith v. Kleindienst, 8 FEP 
Cases 952, 753 (D. D.C. 1974)] Da^ v. Weinberger, 8 EPD para.
9771 (D.D.C. 1974))and to the express purpose of Congress.
Congress enacted the 1972 Amendments to Title VII in order to 
eliminate the "built-in-conflict-of-interest" of the administra­
tive procedures which allow federal agencies "to be the judges 
of their own conduct in the area of employment discrimination."

/



21

H. Rep. No. 23S, supra, p.24. Having been found guilty of 
discrimination, defendants have no discretion to determine 
for themselves what relief should be provided. While "/t~7he 
timing of promotions is normally for the agency to decide 
upon" (Def. Mem. 10), this is obviously not true when the 
agency has practiced discrimination in violation of the Consti­
tution and federal statutes. In such circumstances, the deter­
mination of appropriate relief is properly a .role for this Court, 
as Title VII provides. As the Fifth Circuit recently observed 
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1375 
(1974), the statutory purpose requires

that where employment discrimination has been 
clearly demonstrated, employees who have been 
victims of that discrimination must be compen­
sated if financial loss can be established. * * *
To implement the purpose behind Title VII, a court 
should give "a wide scope to the act in order to 
remedy, as much as possible, the plight of per­
sons who have suffered from discrimination in 
employment cooortunities." (auoting Rowe v. Gen- 
eral Motors Corp., 457 F. 2d 343, 354~(C. A. 5, 1973)

Defendants apparently contend that even though discrimi­
nation has been established in this case, plaintiff is not 
qualified for or entitled to promotion and back pay. This 
argument is directly contrary to the Examiner's finding 
(CSC files, pp. 920-922,945) that plaintiff had suffered dis­
crimination on account of sex and that she had been denied a

_9/promotion because of this discrimination. He then recommended 
that she be promoted "as promptly as feasible * * * In 1971 or 
very soon in 1972: (_id., 1487-1483). On the basis of these 
administrative findings of unlawful agency action, this Court 
can award back pay in order to compensate plaintiff for the 
damage to her career caused by the State Department's unlawful

9/ Defendants' reliance (Def. Mem. 10) on Fisher v. 
BrennanT-^-D. Tenn.,Civ. 3-74-153* obviously Is misplaced.
In that case, unlike the case at bar, there was no finding of 
discrimination and therefore no legal requirement that the 
employee be awarded back pay to compensate for any unlawful 
agency action.



sex discrimination.
Defendants’ argument that plaintiff is not entitled to

back pay is contrary to the well-established rule that, in
order to recover back pay or qualify for other remedial action

*for unlawful employment discrimination, it is not necessary 
to show that, but for the discrimination, an employee would 
have been promoted to a specific position absent the discrimina­
tion. .Rather, there is a presumption that promotion back pay 
are owed to employees who have suffered discrimination. As 
the court of appeals stated in Watkins v. Washington, 353 U.S. 
App. D.C. 2'98, ^72 F.2d"'l373, I375-I376: . "/07nly the combina­
tion of a back pay award and an actual promotion for which he 
is qualified can fully compensate an employee who has been 
deprived of equal employment opportunity." See also NLRB v. 
Reynolds, 399 F.2d 663, 669 (C.A. 6, 1963); Moody v. Albemarle 
Paper Co., 474 F.2d 134, 142 (C.A. 4, 1973). Compare United 
States v. Bethlehem Steel Corp, 446 F.2d 652, 660 (C.A. 2, 1971) 
(class remedies appropriate although some blacks might have 
received present assignment even absent discrimination); Bowe 
v. Colgate-Palmolive Corn., supra, 4l6 F.2d at 721, note 2 (C.A. 
7, 1969) (district court ordered to ascertain feasibility of 
computing damages to those who, while not laid off, were denied 
opportunities to bid for higher paying jobs for which they may 
have been qualified'); United States v. Frazer, 2 FEP Cases 347 
(M.D. Ala. 1970) (where the evidence showed that certain state 
agencies systematically discriminated against black applicants 
in promotion and hiring, the court ordered the promotion of 
more than 60 qualified individuals to the first available posi­
tions in their relevant fields without determining with absolute

22



»

certainty that each named person would have been promoted
absent the discrimination): Broussard v. Schlumberger Well
Services, 315 F. Supp. >̂06 (S.D. Tex. 1970) (damages in the form
of bach pay awarded to plaintiffs, regardless of their qualifi-

*

cations, because they were "locked in" by discriminatory educa­
tional requirements).

These cases all support the proposition that back pay 
and other remedies are appropriate under Title VII even if the 
decision concerning employment, promotion or assignment was due 
to both discrimination and other factors. Even more explicitly, 
in Gillin v. Federal Paper Board Co., 5 FEP Cases 1094 (1973), 
the Court of Appeals for the Second Circuit held, in remanding 
for a determination of damages, that plaintiff’s obvious lack 
of professional qualifications for promotion did not relieve 
the employer of unlawful sex discrimination in refusing to 
consider plaintiff for a new position not only because of her 
lack of qualifications but also because she was a woman. In 
King v. Laborers local 3l3, 3 FEP Cases 4-73, 477 (1971), the 
Court of Appeals for the Eighth Circuit concluded that "where 
discrimination on the basis of race or sex is ’a causal factor’ 
in discharge or refusal to hire, the aggrieved is entitled 
to damages in the amount of lost compensation." See also 
Anderson v. Methodist Evangelical Hospital, 4 FEP Cases 33 
(W.D. Ky. 1971) (violation of Title VII entitles employee to 
back pay and attorney's fees although not reinstatement since 
dismissal was also based, in part, on independent and non- 
racial grounds).

These principles clearly apply in the context of an 
employee seeking back pay as relief from unlawful discrimination. 
We have seen that there is a presumption that back pay should 
be awarded when unlawful discrimination is shown. Moreover, 
in Cooper v. Allen, 467 F.2d 836, 840 (1972), the Court of Appeals 
for the Fifth Circuit held that the plaintiff, who had been 
denied a position as a golf pro because of a discriminatory test­

23



ing procedure, was entitled to back pay and individual injunctive 
relief "unless the city can show by clear and convincing evidence 
that he would not have been hired even absent the discriminatory 
testing requirement." The court made it clear that it was not 
up to plaintiff to show that he was the best person for the job 
but rather it was "the City’s burden, in proving that Cooper 
would not have been hired anyway * * * to show that Cooper was 
not the most qualified applicant." Likewise, in Humphrey v. 
Southwestern Portland Cement, 5 FEI? Cases 897, 901 (H.L. Tex. 
1973), the court awarded back pay to a Negro employee who had 
been denied promotion because of violations of Title VII by 
his employer, even though the white employees had a better 
educational background and did better on a test. The Court, 
awarded back pay because the defendant had "not shown by clear 
and convincing evidence that the plaintiff, had he not been 
a Negro, would not have received the initial award /of promotion/ 
Therefore, the defendant has not shown that this discrimination 
did not affect the plaintiff's career.1' Defendants here have 
the same burden to show that discrimination did not adversely 
affect plaintiff's career.

In the present case,we submit that defendants have not met, 
and cannot, meet their heavy burden of proof. Plaintiff has 
suffered tangible economic loss as a result of defendant's 
discriminatory practices. As we have already seen (PI. Sum. J. 
Mem. 3-4; PI. Reply Mem. 6), plaintiff was denied a promotion 
for 1968 until 1972, depsite her previous rapid rate of pro­
motion which placed her in the "water-walker" category.
By comparison, her male colleagues with only average rates of 
promotion were promoted as to FSO-3 early as 1971- The Appeal 
Examiner explicitly found that plaintiff had been discriminated 
against. In these circumstances, plaintiff was entitled to an 
award of back pay in order to "fully compensate" her for the

2 b



deprivation of equal employment opportunity resulting from 
defendant's discriminatory practices. Watkins v. Washington, 
supra, F.2d at I37S.

This Court has repeatedly awarded back pay to federal 
employees. In Day v. Weinberger, supra, Judge Green held, in 
a case involving a federal employee, ”/t7he Immediate require­
ments of the Act can only be satisfied by granting plaintiff 
retroactive promotion and back pay * * Accord, Smith v.
KTeindlenst, supra, (award of back pay and attorney's fees to 
a federal employee who suffered sex discrimination); Robinson 
v. Warner, supra, (federal employee awarded back pay and retro­
active promotion). Similarly, in McLaughlin v. Calloway,
C.A. No. 7^-123-P (S.D. Ala., decided March 14, 1975), a 
federal employee- prevailed after the court held a trial _ae novo 
on his claims of racial discrimination and he was awarded 
back pay on the basis of section 706(g): "The court finds
that he should be awarded back pay for any loss of income Incurred 
during the period* embraced in this decree due to the unlawful 
discrimination of the defendant." Memorandum Opinion and 
Order, p. 16.

The rationale for an award of back pay under Title VII 
to employees who have suffered discrimination Is clear. The 
availability of back pay will further compliance with the law.
It serves to motivate employers, both federal agencies and pri­
vate industry, to scrutinize their practices and to end discri­
mination rather than to wait until ordered by a court to do so.
It encourages victims of discrimination to bring suit. It com­
pensates the victims of discrimination for their tangible eco­
nomic loss so that the financial burden of correcting discrimina­
tion is shifted from the victim to the violator.

25



2.6

As we previously discussed in the memoranda supporting 
plaintiff’s motion for summary judgment, plaintiff is likewise 
entitled to back pay under the Back Pay Act of 1966, as well 
as under the 1972 Amendments to Title VII. In addition to 
the arguments presented in our previous memoranda, we emphasize 
that plaintiff is seeking to recover merely one-year's back 
pay, which is the very least that she is entitled to as a remedy 
for defendants’ illegal discrimination. Moreover, this back 
pay relief is particularly appropriate in light of defendants' 
unlawful and unwarranted delays of more than three years in 
processing plaintiff's discrimination complaint and more than 
nine months before implementing the remedial promotion recom­
mended by the Appeals Examiner. See PI. Reply Mem. 8-9-

As in Title VII cases, a federal employee who has not 
been promoted because of discrimination is entitled to relief 
under the Back Pay Act, not on the basis of ordinary personnel 
procedures, but "as a correction of an intentional illegal 
appointment or misclassification - a violation of both statute 
and regulation." 50 Comp. Gen. 551, 553 (1971, B-165571)• See 
also Pettit v. United States, ASS F.2d 1026, 1031-1032 (Ct.
Cl. 1973). Thus, an award of back pay is both necessary and 
appropriate in the present case under the Back Pay Act of 1966 

as well as the 1972 Amendments to Title VII.



CONCLUSION
For the reasons stated above, as well as those presented 

in our previous memoranda in support of plaintiff’s motion 
for summary judgment to recover an award of back pay, we submit 
that defendants’ renewed motion to dismiss or, in the alternative 
for summary judgment must be denied and that plaintiff's motion 
for summary judgment to recover an award of back pay should 
be granted. Regardless of how the Court rules on the back 
pay issue, we further submit that, as to plaintiff's other 
claims, the case should be allowed to proceed for consideration 
of plaintiff's motion for class certification.

Respectfully submitted,

BRUCE J. TERRIS
SUELIEN T. KE1NER1903 Sunderland PI. NW 
Washington, D.C, 20036

Attorneys for Plaintiff
April 21, 1975

CERTIFICATE OF SERVICE

27

I hereby certify that I have mailed the foregoing 
Plaintiff's Memorandum of Points and Authorities in Opposition 
to Defendants' Motion To Dismiss Or, In The Alternative, For 
Summary Judgment, postage prepaid to Jeffrey Axelrad, Esq., 
Department of Justice, Civil Division, Room 3625, Constitution 
Avenue between '9th and 10th Streets, NW., Washington, D.C. 2053C 
this 21st day of April, 1975*

Suelien T. KeIner



1

V. Finding:
1. In the denial of African assignments, the Complainantt Mins 

Palmer, vas discriminated against because of her sex and her career ■ 
vas adversely affected to a degree vhich merits remedial action.

2 .  The Complainant’s original requests that her file be documented 

to shov that her career vas affected by prejudice and that the agency 
take steps to prevent this from occurring in the future have now 

been met to a degree sufficiently responsive to the complaint.

3- The failure to fully investigate the complaint promptly and the 
delay in processing the complaint by reason of the attendant circum­
stances is not .prejudicial to the complainant, Miss Palmer, to a 

degree vhich 13 additionally material to the finding of discrimination.

If. The violation of regulations of the agency should not have been 
permitted to have been acknovledged vithout the personnel responsible 
having been required to defend their actions at a time commenserate 
•with opportunity to fully develop responsibility and authority to 
oahe distinctions based on sex.

5- Killful violation of agency Equal Employment Opportunity Regulations 
by any Individual vas not established vith sufficient evidence prior to 
or during this hearing to a degree vhich requires that substantial 
disciplinary action be taken by the agency against any individual.

EXHIBIT A



"iW uttll i uart£Mfi8iflBi&k MtafctMiOi idMUilMMHMriiMttliK JMlMMantiau --■** -

6. A pattern of discrimination exists in that women have been denied 
assignments to substantive positions at overseas posts in the Foreign 
Service without determinations made as to whether a valid distinction 
can be made based on sex for these assignments.

7* The departmental policy that there vill be no distinction in 
assignments in the Foreign Service based on sex except for compelling 
reasons of foreign policy as approved only by a High Level Review has 
been promulgated as an appropriate policy statement with the legality 

of such possible exclusion based on sex accepted and unchallenged.

8. The agency has not defined what sex distinction in foreign service 
assignments would be consistent with regulation and law.

9. There is a divergence of opinion among agency personnel as to a basis 
upon which sex distinction in assignments could be made.

10. Ko post is recognized as being closed to the assignment of women 
foreign service officers in substantive positions.

11. The Equal Employment Opportunity Executive Order and the regulations
end practices resulting therefrom can be administered without conflict 
with the authority of the Secretary of State to assign foreign s e m e s  
personnel. - ,

12, Ambassadorial prerogative can veto the assignment of a foreign 

Service officer but such veto can not be an act of discrimination pro­
hibited by Ecual Employment Opportunity, regulations and practices.



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VI. Recommendations

A*.

1. That the Office of Legal Counsel he requested to render a timely 
recommendation as to vhether or not the Complainant can feasibly he 
promoted prior to the 1972 convening of Promotion Eoards.

a. If the Complainant can he promoted to FSO-3 before the 1972 con­
vening of Promotion Eoards, it is recommended that such action he 
taken, in full and final settlement of Miss Palmer's complaint and
the adverse effect on her career. Retroactive date is not recommended.

b. If, and only if promotion action is not accomplished as in a, above, 
it is recommended that the Complainant's request be honored and that 

she be assigned to the Rational War College at the conclusion of her 
present assignment. 'This action and a statement to the appropriate 
Promotion Board- of the agency action in this matter, end that no damage 

should result to Miss Palmer resulting from her complaint, its process­
ing, hearing and final decision, is then recommended be accomplished
in full and final settlement of Miss Palmer1s complaint and the adverse 
effect on her career.

2. That all complaints of discrimination subsequently be handled:

a. By meeting time limits or otherwise complying with Section B9, 
Appendix B, Chapter 7133 Equal Employment Opportunity, Federal Personnel 
Manual System, U. S. Civil Service Commission Regulations, May 29, 1970.



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52
b. By requiring that statements of -witnesses obtained by a complaint 
investigator be under oath or affirmation* that statements be taken 
from all persons concerned, and that sufficient information be obtained 

so that remedial disciplinary action can. be taken or that alleged dis­
criminatory officials can be exonerated a3 prescribed in Section l6 of 

the Regulations cited in a, above.

^ 3 .3. That the handling of Performance Files of Foreign Service employees 
be improved in the following ways.

\ a. Serializing of matters placed in the file.

1 b. Providing a front cover on which is listed the name of the person 
officially handling the file and the date which that person got the 
file with no handling of files except for such entries by the custodian 
of the files. (This is the system used,by the Department of Justice 

for case files on matters pending in that Department and has been used 
to my knowledge for at least 20 years.) v

c. Consideration of method by which a Foreign Service officer overseas 
m y  know what is being placed in his or her file since that officer 
does not have the opportunity to review his file in person.

U. That revision of regulations on the assignment of Foreign Service 

officers be undertaken and that consideration be given to the following:

£. S £ S



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• ' - . '■• ■ 53
Alfording an officer same further knowledge as to assignments

for 'whach he is being or could be considered so that he might know 
if discrimination vere involved.

' b * ScGafi further opportunity for an officer to be heard if he believes 
he has been denied an assignment on an arbitrary basis not in the best 
interest of the service.. • _ l
c. Some further opportunity for an officer to express a preference 
among possible specific assignments.

5. That the counselling of women Foreign Service officers be reviewed 
\  with a view to improvement in all phases of counselling, specifically,

a. , 10 gain uniformity and clarity in. advising that any rebuttal placed
in a performance file be factual but not to discourage any entry as 
damaging to a career.

b. To gain uniformity and clarity in fair comment as to opportunity 
for women in the consular cone without implying that women have no 
other place or are handicapped in other substantive cones.

c. To study ^he need for centralness of purpose in dealing with the 
problems of women in the agency. (The present programs are active and 
of unquestioned benefit and basically need expansion. There are dif­
ferences in opinion as to how to proceed from this point which should

li. 9 4 9



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5U
"be studied briefly and then acted upon. I vould add emphasis to 
counselling women end keeping in tonch with the women who might not

want to stand up in a group meeting tut whose problems should be
heard end who should be helped. I vould centralize all Equal 
Employment Opportunity activity in the EEO office for sex as well 
as race and I vould increase the authority of the Office.)

i



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assignment of a Foreign Service officer, or material participation 
in such action, if found to be an act of discrimination is a violation 
of departmental regulations and an Executive Order of the President 
and A rill he dealt with accordingly.

8. That departmental regulations, customs and practice he adjusted to 
afford an Ambassador or Chief of Mission a veto on the assignment of 
the Deputy Chief of Mission but not otherwise.

Washington, D. C. 
August 18, 1971 Andrei-; B. Beath

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951



Sitlhr f?mnrnus (iiutri nf lit- ilntti'ti ̂ 'tatrs
October Term, 1974

Albemarle Paper Company, et al., petitioners
v.

Joseph P. Moody, et al.

Halifax Local No. 425, United Papermakers 
and Paperworkers, AFL-CIO, petitioner

V.

Joseph P. Moody, et al.

ON WRITS OF CERTIORARI TO THE UNITED STATES 
rnnT'T OF APPEALS FOR TIIE FOURTH CIRCUIT

b r ie f  f o r  t h e  u n it e d  s t a t e s  and  t h e
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE

Julia C. Cooper,
A cting  General Counsel,

Joseph T. E ddins,
A ssociate General Counsel,

Beatrice Rosenberg, 
Charles L. Reischel, 
M arian Halley, 
M ary-H elen M autner, 

A ttorn eys,

Robert H. Bork,
Solicitor General,

J. STANLEY POTTINGER,
A ssista n t A tto rn ey  General,

M ark L. Evans,
A ssista n t to the 

Solicitor General,

James P. Turner,
Brian K. Landsberg,
David L. Rose,
John  C. Hoyle,

A tto rn eys ,
D epartm ent o f Justice, 
W ashington, D .C . 20530 .

Equal E m ploym en t O pportunity  
Com m ission,

W ashington, D .C . 20506.

EXHIBIT B



fc n'l/'irfi'iHi

♦

exercise of its discretion under the Act. That discre­
tion, the court stated, must be exercised “with an eye 
to the purposes of the Act” (A. 523) and in a way 
that gives the iullest possible effect, consistent with 
fairness, to the congressional policy of making whole 
the victims of employment discrimination.

Petitioners contend (Albemarle Br. 50-61; Halifax 
Br. 21-33) that the court of appeals unduly restricted 
the scope of the district court’s statutory discretion 
in determining whether to award back pay and that 
the district court’s refusal to award back pay in this 
case should have been sustained under “ traditional 
equitable principles” (Albemarle Br. 53). Albemarle 
also argues (Br. 61-66) that back pay may not, in 
any event, be awarded to individual members of the 
affecteci class of injured employees who have not 
themselves filed charges with the Equal Employment 
Opportunity Commission. In our view, petitioners are 
wrong on both counts.

A. The Congressional Policy Reflected In Title VII 
Requires That Victims Of Employment Discrimina­
tion Be Awarded Back Pay In Compensation For 
Their Economic Loss Unless Special Circumstances 
Would Make Such An Award Unjust To The Em­
ployer

The issue here is not whether the district courts 
have disci etion to award or withhold back pay, for 
the Act clearly commits that decision to the sound 
discretion of the trial judge. Nor is the issue wheth­
er that discretion is governed by traditional equi­
table principles” (Albemarle Br. 53); Congress in­



tended in Section 706(g) to invest the courts with 
full, traditional equity jurisdiction to fashion effec­
tive relief upon a finding of unlawful employment 
practices. Cf. Porter v. Warner Holding Co., 328 
U.S. 395, 398, 400; Mitchell v. Robert DeMario 
Jewelry, Inc., 361 U.S. 288, 291-292.

The issue, rather, is the extent to which the district 
courts’ exercise of discretion under the Act is cir­
cumscribed by, and must be responsive to, the legis­
lative objectives of Title VII. It is settled, of course, 
that traditional equity jurisdiction does not empower 
a court to take whatever action it wishes. Discre­
tion must be exercised according to appropriate 
standards. In the enforcement of a statutory scheme, 
the courts must exercise their discretion “ in light of 
the large objectives of the Act” ; their discretionary 
remedial determinations must “ reflect an acute 
awareness” of the congressional policy (Heeht Co. v. 
Bowles, 321 U.S. 321, 331). It is “ the historic power 
of equity to provide complete relief in light of the 
statutory purposes” (Mitchell v. Robert DeMario 
Jewelry, Inc., supra, 361 U.S. at 292).

Albemarle thus properly concedes that a district 
court’s discretion under Section 706(g) of the Civil 
Eights Act of 1964 “must be exercised consistently 
with legislative objectives” (Br. 53). It seeks to avoid 
the thrust of that principle, however, by arguing 
that the legislative objective was “ to leave resolution 
of complex remedial problems to the traditional, dis­
cretionary powers of the federal courts of equity” 
(Br. 54).



But that argument begs the question. It merely 
restates a proposition that no one disputes that the 
district courts have discretion in determining whether 
to award bach pay. As Chief Justice Marshall stated 
long ago, to say that the matter is within a court’s 
discretion means that it is addressed not to the 
court’s “ inclination, but to its judgment; and its 
judgment is to be guided by sound legal principles”
( United States v. Burr, 25 Fed. Cas. 30, 35). The 
proper inquiry is this; what are the laige objec­
tives of the Act” (Hecht Co. v. Bowles, supra, 321 
U.S. at 331) in accordance with which that discre­
tion must be exercised?

The large objectives of Title VII are to eliminate 
discriminatory employment practices and, as far as 
possible, to restore the victims of employment dis­
crimination to the situation they would have been 
in but for the discrimination. “ The clear purpose of 
Title VII is to bring an end to the proscribed dis­
criminatory practices and to make whole, in a pecu­
niary fashion, those who have suffered by it” (Bowe 
v . Colgate-Palm olive Co., 416 F. 2d 711, 720 (C.A.
7)).

Albemarle’s contention that “ the Congressional em­
phasis was on the prospective elimination of disci im- 
inatory practices and not on reparations (Bi. 54) 
rests on its inference from the word “ may” in the 
statutory phrase “ may include * * * reinstatement 
or hiring of employees, with or without back pay” 
(Section 706(g)). But that inference is unjustified. 
The same word is used in connection with injunctive



♦

21
«,

relief: “ the court may enjoin the respondent from 
engaging in such unlawful practice” (emphasis add­
ed). Every court of appeals that has considered the 
question has correctly concluded that the Act’s pur­
poses are both to eliminate employment discrimina­
tion and to compensate the victims.10

The “ make whole” purpose of Title YII is con­
firmed by the legislative history of the Equal Em­
ployment Opportunity Act of 1972, 86 Stat. 103, 
which reenacted Section 706(g) with changes not 
relevant here. The Section-by-Section Analysis of the 
1972 Act, presented to the House and the Senate at 
the time the Conference Report on the Act was sub­
mitted to each body (118 Cong. Rec. 7166-7169, 7563- 
7567), states with respect to Section 706(g) (id. at 
7168, 7565; emphasis added):

The provisions of this subsection are intended 
to give the courts wide discretion exercising 
their equitable powers to fashion the most com­
plete relief possible. In dealing with the present 
section 706(g) the courts have stressed that the 
scope of relief under that section of the Act is 
intended to make the victims of unlawful dis-

10 See, e.g., Rosen  V. Public Service Electric and Gas Co., 
A l l  F. 2d 90, 96 (C.A. 3 ); Robinson  V. Lorillard Corp., 444 
F. 2d 791, 804 (C.A. 4 ); P ettw a y  V. Am erican Cast Iron  Pipe  
C o., 494 F. 2d 211, 252 (C.A. 5 ); Johnson V. G oodyear Tire  
& R u bber Co., 491 F. 2d 1364, 1375 (C.A. 5 ); United States  
V. Georgia P ow er Co., 474 F. 2d 906, 921 (C.A. 5 ); H ead V. 
Tim ken Roller Bearing Co., 486 F. 2d 870, 876 (C.A. 6); 
B oive V. Colgate-Palm olive Co., supra, 416 F. 2d at 720; 
Sprogis V. United A ir  Lines, Inc., 444 F. 2d 1194, 1202 (C.A. 
7 ), certiorari denied, 404 U.S. 991.



■iitflliiih-lnt ^ - '1.1 . . f a m r i i '

22:

crimination whole, and that the attainment of 
this objective rests not only upon the elimination 
of the particular unlawful employment practice 
complained of, but also requires that persons 
aggrieved by the consequences and effects of the 
unlaivful employment practice be, so far as pos­
sible, restored to a position where they would, 
have been were it not for the unlaivful discrimi­
nation.

Injunctive relief serves the purpose of eliminating 
the discriminatory practices prospectively. An award 
of back pay serves the purpose of making the victims 
financially whole. In view of the Act’s objectives, the 
district court’s duty “ to fashion the most complete 
relief possible” (ibid.) ordinarily means that it must 
both enjoin the unlawful practices and award back 
pay to those who have suffered financial injury as 
a consequence of the discrimination. As this Court 
said with respect to back pay awards under Section 
10(c) of the National Labor Relations Act, which 
was the model for Section 706(g) of the Civil Rights 
Act of 1964, “ compensation for the loss of wages” 
is “generally require[d]” to effectuate the policies of 
that Act, because “ [ojnly thus can there be a restora­
tion of the situation, as nearly as possible, to that 
which would have obtained but for the illegal dis­
crimination” (Phelps Dodge Corp. v. National Labor 
Relations Board, 313 U.S. 177, 194). See also Na­
tional Labor Relations Board v. J. H. Rutter-Rex 
Mfg. Co., 396 U.S. 258, 263.

Moreover, compelling practical considerations sup­
port the view that back pay should normally be

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23
awarded to redress proven injuries. The reasonably 
certain prospect that back pay will be awarded pro­
vides the only substantial economic incentive to en­
courage voluntary compliance with Title VII and 
therefore a swift end to unlawful employment dis­
crimination. Back pay awards “provide the spur or 
catalyst which causes employers and unions to self­
examine and to self-evaluate their employment prac­
tices and to endeavor to eliminate, so far as possible, 
the last vestiges of an unfortunate and ignominious 
page in this country’s history” (United States v. 
N.L. Industries, Inc., 479 F. 2d 354, 379 (C.A. 8) ) .

An employer or union is less likely to make a seri­
ous attempt to eliminate discriminatory practices or 
practices that perpetuate the effects of past discrimi­
nation if it can reasonably anticipate a court order 
after lengthy litigation that merely requires it to do 
what it should have done in the first place. Indeed, 
with respect to changes in practices that would rê  
quire the expenditure of money, the absence of back 
pay as a usual element of relief under Section 706 
(g) could provide a financial incentive to an employer 
or union to maintain the unlawful status quo as long 
as possible.

It follows that, in the exercise of their discretion 
to effectuate the Act’s purposes and to encourage 
prompt, voluntary compliance with its terms, the dis­
trict courts should ordinarily award back pay to the 
identifiable victims of unlawful employment discrim­
ination, unless there are substantial countervailing 
considerations that make such an award unnecessary



1
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24

6r inappropriate. In the court of appeals’ words, the 
injured victims of the discrimination “ should ordi­
narily be awarded back pay unless special circum­
stances would render such an award unjust” (A. 523- 
524).

That standard neither forecloses nor unduly re­
stricts a district court’s exercise of discretion. Courts 
of equity always have “ the duty * * * to be alert to 
provide such remedies as are necessary to make ef­
fective the congressional purpose” (J.I. Case Co. v. 
Borah, 377 U.S. 426, 433). And in the enforcement 
of the civil rights statutes, “ the court has not merely 
the power but the duty to render a decree which will 
so far as possible eliminate the discriminatory effects 
of the past as well as bar like discrimination in the 
future” (Louisiana v. United States, 380 U.S. 145, 
154).

The standard adopted by the court of appeals here 
is identical to the one that this Court .applied to the 
exercise of a district court’s discretion to award at­
torney’s fees under Title II of the Act. Newman v. 
Biggie Park Enterprises, Inc., 390 U.S. 400. The 
court of appeals there had ruled that counsel fees 
should be awarded only to the extent that a party 
advances defenses in bad faith and for purposes of 
delay. This Court held that that standard would not 
adequately effectuate the purposes of the counsel-fee 
provision of Title II. That provision was enacted 
“ not simply to penalize litigants who deliberately 
advance arguments they know to be untenable but, 
more broadly, to encourage individuals injured by

?— i

• -



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25
racial discrimination to seek judicial relief under 
Title II” (390 U.S. at 402). Since private litiga­
tion is an essential “means of securing broad com­
pliance with [Title II]” (id. at 401), and since a 
plaintiff suing as a “private attorney general” can­
not recover damages, awards of counsel fees are im­
portant to “vindicate] a policy that Congress con­
sidered of the highest priority” (id. at 402).

The situation here is analogous. While this case 
involves Title VII rather than Title II and back pay 
awards rather than attorney’s fees, the effect of 
awarding back pay in the absence of special circum­
stances similarly vindicates the broad congressional 
policy reflected in the Act and similarly ensures com­
pliance with the law. The “special circumstances” 
standard is no less an appropriate guide for the exer­
cise of discretion in awarding back pay under Title 
VII than it is for the exercise of discretion in award­
ing counsel fees under Title II.

We do not suggest, nor did the court of appeals 
hold, that back pay is mechanically compelled where 
violations of the Act are found. Nor do we suggest

• that courts of appeals should lightly overturn the 
informed exercise of a district court’s discretion. 
Where unlawful employment practices result in eco­
nomic loss to identifiable persons, however, the “make 
whole” purpose of Title VII, and the important policy 
of encouraging voluntary compliance with the law, 
should normally call for compensation, in the absence 
of substantial countervailing considerations. The dis­
trict court must articulate its reasons for denying