Lawler v. Alexander Record Excerpts
Public Court Documents
January 1, 1978 - January 1, 1981

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Brief Collection, LDF Court Filings. Lawler v. Alexander Record Excerpts, 1978. 6e7e58b0-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/c6721690-ec6c-4bbd-bf64-8939d65497ab/lawler-v-alexander-record-excerpts. Accessed July 01, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 81-7702 JOSEPH C. LAWLER, et al., Plaintiff-Appellants, v . CLIFFORD ALEXANDER, as Secretary of the Department of the Army Defendant-Appellee. On Appeal from the United States District 'Court for the Northern District of Alabama RECORD EXCERPTS BRENT E. SIMMONS 806 15th Street, N.W. Suite 940 Washington, D.C. 20005 VANZETTA PENN DURANT 639 Martha Street Montgomery, Alabama 36108 CHARLES STEPHEN RALSTON JACK GREENBERG 10 Columbus Circle Suite 2030 New York, New York 10019 Counsel for Plaintiffs-Appellants TABLE OF CONTENTS Page Docket Sheet ............................................. 2 Complaint ................................................ g Answer .................................................... 2 3 Order Recertifying The Class ................. 1 6 Judgmen ..........*...................................... 17 Transcript of Findings of Fact and Conclusions of Law .................................... 1 3 Order Denying Plaintiffs' Motion To Amend Judgment and/or Findings ........................ 64 Memorandum of Opinion ................................... 65 a i CA77 R47 -E - PROCEEDINGS 1Dec. 20i 211 1978 Jan 10 5? 24 3Feb 22 Mar 14 Apr 26 26 SS 26 Jun 6 7 m Jul 11 & 13 % Aug. 8 m 11 w Sep. 6 [[si 27 Dec. 5 n a n Ssi 15as 19 ** & 21 **Dec 20 Complaint filed, a d d /~S SisnBons/complslnC leaned. Del. CO USM - add Sumons/acnplaint returned, executed cn 12-22-77 on 0 S Atty; on 12/27/77 an Atty Gen, Wash, D. C. and cn 12/30/77 cn Sec, U S Army, Wash, D.C. by certified nail & filed lpc », Interrogatories and requests of deft for production of documents by plffs, filed - c ANSWER of deft to the ocnplaint, filed - cs skh^^aZsjCd^-y Answers of plffs to interrogatories, filed - cs -32. Notice that deft will take the deposition of Timothy Goggins cn May 9,1978 in Nashville, Tennessee, filed cs skh (notice to deponent attached) Notice that deft will take the deposition of Joseph C. Iawler cn May 11, 1978 in Fort McClellan, Alabama, with notice to deponent attached, filed - cs skh Notice that deft will take the depositicn of Charles L. Bryant cn May 11, 1978 at Fort McClellan, Alabama, with notice to deponent attached, filed - cs skh Interrogatories (first) of plffs propounded to deft, filed - cs skhpVp.23 . 6 Deposition of Charles L. Bryant taken on behalf of defendant, filed-snh Objection of deft to interrogatories, filed - cs skhi2Z^?‘̂ / 0 C Motion of plffs to ocnpel answers to interrogator!^, filed - cs skh - 8/11/78 - M X T (Pointer) cm skh3&J/J 5 ! S - l Motion of defendant, Clifford Alexander, to dismiss the complaint filed-cs-snh — SEE ORDER DATED 9/5/78 - < 7ORDER CN PRETRIAL HEARING - filed and entered (Pointer) cm skWZ^XJ.S r o ORDER dated September 5, 1978 that motion of deft to dismiss the putative class is denied; an evidentiary hearing shall be scheduled upon request of plffs filed and entered (Pointer) ca-snh Depositicn of Joseph C. Lawler taken on behalf of deft, filed skh Deposition of Timothy Goggins taken on behalf of deft, filed, add rmctA&t -(A> Response of deft to plffs' first interrogatories to deft, filed (with attachments) - Secorri Response of deft to plffs’ first interrogatories to deft, filed (with attachments) cs skh{j#d£J6 7-//<V . _ Nation of deft to diatiss plffs, Timothy Goggins and Charles L. 3ryant, filed - cs skh $O0U> HS-/3 0 Motion of deft for protective order, filed - cs skh^Zfc^C/J/ ORDER dated December 20, 1978 that plffs' counsel, including regular employees of such counsel and their disignee be permitted access to information and documents thereunto appertaining insofar as they relate to the allegations of racial discrimination allegedly practiced upon Black employees of Ft. McClellan, Alabama; further that experts retained by plaintiffs shall have access to all records submitted by Ft. McClellan to be kept confidential; further that experts employed by attys for plffs have access to information and records shall follow those rigid security safeguards which are applied to these records filed and entered (Pointer)cm-snh >33. -133 Hearing, under Rule 23, for certification as a class action before the Hon. Sam C. Pointer, Jr. (Tommy Dempsey, Repcr,) Oral order granting in pert end denying In part deft'e motion to quaeh Louie Turner's Subpoena, entered. SCP Plffs' testimony. Interrogatories of plff end deft'e answers thereto offered by plffs end received by the court. Plffe rest. Deft's testimony. Deposlton of Joseph Lawler offered by deft end rec'd by the eoui Deft. rest. Preliminary findings end conclusions dictated into the record. Orel Order denying deft'e motion to dismiss ee to Lawler end granting as to Bryant end Goggins, with leave to reconsider ss to Goggins, entered. SC? Orel Order that parties submit briefs within 2 weeks, entered. Written decision to be encered. after brleta are received. SC?_.— ------------- ----------------------- 2 c iv il . D O CKET CO N TIN U A TIO N SH EET PLAINTIFF DEFENDANT JCSEPH C. IAWLER, ET AL CLIETQFD ALEXANDER OOCKET NO. 77-P-1647-' PAGE___OF ____ TAG'S D ATE 1881, PROCEEDINGS .Mar 3 3 4 4 4 11 11 u 16 24 24 25 26 26 27 30 Apr 2 6 Apr. 10 m Notice that deft will take the depositions of Timothy Goggins, Jchnnie'B. Hills, Ruby M. Hairston and Joseph C. Lawler on 3-17-81 at Ft. McClellan, AL, filed-cs Notice that deft will take the depositions of Diane F. Ware, Gwendolyn Redd, Jeanette Simnons and Iouie Turner, Jr., cn 3-18-81 at Ft. McClellan, AL, filed-c Notice (amendment) that the defts will take the depositions of Betty J. Bailey Ralph E. Driskell, Timothy Goggins, JOhnnie B. Hills on March 12, 1981 in - Ft. McClellan, Alabama, filed-cs-snh Notice (amendment) that the defts will take the depositions of Ruby M. Haris ton, Clyde Woodward, Louie Turner, Jr., on March 13, 1981 in Ft. McClellan, Alabama, filed-cs-snh Notice (amendment) that taking of the deposition of Vanzetta Penn Durant schedu far March 17, 1981 and March 18, 1981 is CANCELLED, filed-cs-snh Notice (amendment) that the depositions scheduled fee March 12, and 13, 1981 in this action cure candelled, filed-cs-snh Notice that deft will take the depositions of Clyde Woodward and Louie Turner an 3-19-81 at Ft. McClellan, AL, filed-cs phm Notice that deft will take the depositions of Betty J. Bailey, Ralph E. Driskell Jbhnnie B. Hills and Ruby Hairston an 3-18-81 at Ft. McClellan, AL, filed- cs phm Response of defts to plffs second set of interrogatories and request fer production, filed-cs-snh Notice that the deft, USA, will take the depositions of Wayne Garrett, Jack Haa- Willie J. McCluney, Josephine McKinney, Bobby L. Murphy, Dennis E. Ray, Elijal Ray, Jt., Willie J. Ruffin on March 26, 1981 in Ft. McClellan, Alabama, filed cs-srh Notice that the deft, USA, will take the depositions of Cynthia Strickland, Jeai P. Simons, Dennis Thorns, Curtis L. Hunt, Jt. on March 27, 1981 in Ft. McClellan, Alabama, filed-cs-snh Motion of plffs far an order compelling production by defendant and answers to interrogatories, with exhibit attached, filed-cs- 03/26/81-GRANIED IN PART AS DESCRIBED IN INFORMAL CONFERENCE (POINTER); altered Notice (amendment) that the deposition notices dated March 26, 1981 and March 27, 1981 are cancelled, filed - cs-snh Notice that the deft, USA, will take the depositions of Charlotte Acklin, Joseph; McKinney, Bobby L. Murphy, Jack Heath, Wayne Garrett, McCardis Barclay, Jeanette P. Simons, and Clyde Willis on March 29, 1981 in Ft. McClellan, Alabama, filed-cs-snh Sumaries of witnesses testimony of plffs, filed-cs-siti.'l22Cp3/9S~‘J <y 7 Motion of defendant to dismiss the complaint with exhibit attached, filed-cs-snh — 03/31/81-DENIED (POINTER); entered 04/01/81-am-snh^J^.^!</i’-«57 Notice that deft will take the deposition of Joe L. Willis on April 4, 1981, in Birmingham, AL, filed-cs-lpc Witness list (expert) of defenant, filed-cs-snh(p®^£-<H.3"<2.-^ % (w Notice that deft will take the depositions of Dennis Theres and Willie Ruffin cm April 16, 1981 in Ft. McClellan, Alabama, filed-cs-snh 4 : u iamt. 1/75) C IV IL D O C K E T C O N T IN U A T IO N S H E E T D E F E N D A N T I d o c k e t n o 77-P-1647-i P A G E ____O F ______ P A G E S D A T E '981 vpril 17 20 27 27 27 27 27 27 27 27 27 27 27 27 27 27 27 27 May 1 5 5 12 12 22 m 2 2 8 £ 2 P R O C E E D IN G S Witness list of plffs aid exhibits f i l e d - c s - s n h ^ 1„ Witness list aid exhibit list of defendants, filed-cs-si*^£22s£^‘*’™ -i»/<3 Deposition of Lcuie Turner, Jr. taken on behalf of the defendants, filed-snh Deposition of McCordia Barclay, Jr. taken on behalf of the defendants, filed-snh Deposition of Whyne M. Garrett taken on behalf of the defendants, filed-snh Deposition of Jack Heath, Jt. taken on behalf of the defendants, filed-snh Deposition of Bobby L. Murphy taken on behalf of the defendants, filed-snh Depositon of Josephine McKinney taken an behalf of the defendants, filed-snh Deposition of Charlotte Acklin taken an behalf of the defendants, filed-snh Deposition of Ralph E. Driskell taken on behalf of the defendants, filed-snh Deposition of Ruby M. Hairston taken on behalf of the defeidants, filed-snh Deposition of Clyde Woodard taken on behalf of the defendants, filed-snh Deposition of Betty Jean Bailey taken an behalf of the defendants, filed-snh Deposition of Willie J. Ruffin taken an behalf of the defendants, filed-snh Deposition of Jeanette P. Simons taken on behalf of the defendants,.^?'le^snb,^ Motion of defendant, to dismiss or in the alternative to de^ ^ ^ ^ y ^ j l j ^ ^ s ^ n h r, — 05-21-81 DENIED, BUT P U T DIRECTED TO F H E PROOF OF NOTIFICaTCN (POINTER) ; h Response of defendant (supplmental) to plffs second set of interrccatari.es and request far production, filed-cs-snty22£)2_.2f<2 -352. Motion af plffs far an order to carpel production with exhibits attached, filed C3‘snh Request af deft fix production by plff, filed-cs-snhj&y g Response of plffs to defendant’s motions to disniss filed-cs-snh^22^J’-?/-J«,J Response of defts to the standard pre-trial crder with exhibit attached cs-snh filedp. . dated April 13, ^ ORDER (PROTECTIVE) by consent of the parties/that the use of certain documents belonging to the Inspector General of the Army is limited as set out in this order; should any of the documents named herein be offered into evidence, they will be kept unser seal, and returned to deft at the conclusion of litigation, filed (POINTER); entered 05/05/81-an-snh 7 per (order found in file attached to letter this date - %Ti\)f5lOfi^33£ -Sjc Notice that the plffs will take the depositors of Ann Vaughn, David Parker, Patricia Dunn, and Jfergaret Colley on May 20, 1981 in Ft. McClellan, Alabama, filed-cs-snh Notice that the plffs will take the depositions of William Ward, Patsy Smallwopd, Sandra Carrozza, Denton Elliscn cn May 21, 1981 in Ft. McClellan, Alabama, filed-cs-snh Proof of notice to the lumbers of class in January 1980 with affidavit of 0. Clmon and exhibits attached, filed-cs-snh^Z^Z-£i9 ~35l Notice that defendants will take deposition of Miriam Ellerman an 6/16/81 in Colorado Springs, CO, filed-cs-tyt Notice that defendants will take deposition of Dennis Oxanas on 6/10/81 in Bioningham, AL, filed-cs-tyt Motion of plaintiffs far continuance of trial to 11/30/81, with affidavit of Martin L. Madar attached, filed-cs-tyt (Del. SOP) DENIED SCP June 11, 1981 an Ihj 02/^0 353, -3 5 3 W. 5 DC 111A («•». 1/75) C IV IL D O C K E T C O N T IN U A T IO N S H E E T P L A IN T IF F JOSEPH C. LAWLER, ET AL D E F E N D A N T CLIFFORD ALEXANDER D O C K E T N O . T7-P-1647 P A G E ____O F ______ P A G E S -E 1 9°3T5 June 12 23 24 24 24 24 24 25 26 29 29 July 1 2 3 17 20 27 30 Aug. 10 10 BS P R O C E E D IN G S Motion of plaintiffs to reconsider denial of motion far continuance filed^s-rfd (del sc2)fao£- 3 5 “7 -3 GO - Ufcuni) 6/15/81 (Pointer): ENTERED 6/15/81 on-dvm Deposition of Dennis R. Thcnes taken an behalf of the defendant, filed-snh Deposition of Patsy W. aiallwood taken on behalf of the plaintiffs, filed-snh Deposition of David M. Parker taken on behalf of the plaintiffs, filed-snh Deposition of Sandra Carrozza taken on behalf of the plaintiffs, filed-snh Deposition of Ann Vaughan taken on behalf of the plaintiffs, filed-snh Deposition of Denton Ellison taken on behalf of the plaintiffs, filed-snh Motion of deft. Secretary of the Army, for a grptectyfe order in limine filed- cs-snh (del to SCP) 6/29/Sl^oref^isiD‘BUT RULING DEFERRED (POINTER: Deposition of Joseph Matzura, taken on behalf of pltfs., on 5/21/81 in Anniston, Ala. - filed Brerda Evans, reporter Ire Request of defendant far production, filed-cs-snh Cn trial before the Han. Sam C. Pointer, Jr. - oral motion of plfts to leave evidence open at aonclusion of trial for the purpose of an analysis by expert of certain tapes, entered - denied - testimony of plfts - deposition of Miriam Ellerman taken by defts, filed - deposition of Margaret Colley taker defts, filed - case aontinued until July 1, 1981 at 9:00 a.m. - daily adj. Reporter: Wendell Parks - Ipc (Anniston, AL) Trial resumed - testimony of plfts resumed - testimony of deft as to witness James Williamson taken out of turn - daily adj. Trial resumed - testimony of plft resumed - daily adj. Trial resuned - plfts rest - oral motion of deft for dismissal entered - overruled, testimony of deft - daily adj. Trial resumed - testimony of deft resuned - deposition of Miriam Ellerman offered into evidence by deft - received - daily adj. Trial resuied - testimony of deft resumed - deft rests - rebuttal testimony of plfts - plfts rest - closing arguments by counsel - findings of facts & conclusions of law dictated into the record by the Court entering judgment in favor of the deft and against the plfts and plft class members and taxing costs against the plfts - lpc Reporter: Wendell Parks Clerk's Court Minutes dated JU-ly 7, 1981 that pursuant to the findings and conclusions of law dictated into the record by the Court that judgment is entered in favor of the defendant and against the plaintiffs' class metiers and that costs are taxed against the plaintiffs, filed; entered 07/08/81- cm-snh (Wendell Parks Court Reporter> ^ 2 ^ , 3 6 9 Motion of plffs to open and amend judgment and/or findings of fact with large exhibits attached, f i l e d - c s - s n h '373 Bill of costs of defendant filed-cs-snh (del to G. Bell 7/27/81 far taxing) Deposition of Donald R. EtaGee taken on behalf of the plaintiff filed-snh Cost* taxed to plaintiffs in the sum of $600.99 - geb - as Deposition of Ralph E. Driskell taken on behalf of the defendants, filed-snh Deposition of Betty Jean Bailey taken on behalf of the defendants, filed- snh 6 : iiia •v. vn) 7 ir IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION filed in ctnrrs NOfrrncRN district c; Alabama DEC 2 01577 j a m e s £. • p r x CIVIL ACTION NUMBER A. Subject natter jurisdiction of this Court is invoked pursuant to 42 U.S.C. §2000e-16, as amended 1972 (-Title VII of the 1964 Civil Rights Act"). The Court has jurisdiction over the subject matter pursuant to 28 U.S.C. SS1331, 1343(4) and 1361. B. This is an action, inter alia, for declaratory and injunctive relief against certain policies and practices of the United States Department of the Army, at its installation at Fort McClellan, Alabama. II. A. Plaintiff, JOSEPH C. LAWLER, is a black male citi zen of the United States and of the State of Alabama. He has been employed at Fort McClellan since 1966; and is a current em ployee of that installation. He holds a bachelor's degree from Jackson State University- B. Plaintiff, TIMOTHY GOGGINS, is a black male citi zen of the United States and of the State of Alabama. He is a graduate of Talladega College. He is a current employee at Fort McClellan, serving as a Personnel Staffing and Classifies tion Sepcialist. JOSEPH C. LAWLER, TIMOTHY * GOGGINS, and CHARLES L. BRYANT, on behalf of themselves * and others similarly situated, ** PLAINTIFFS, * * *VS. * CLIFFORD ALEXANDER, as head of * the United States Department of the Army, V*,* - DEFENDANT. * I. 8 2 C. Plaintiff, CHARLES L. BRYANT, is a current employee at Fort McClellan, having worked there continuously since 1966. He has completed two years of college; and he is now classified at Fort McClellan as a truck driver and painter. D. Defendant, CLIFFORD ALEXANDER, is the Secretary of the United States Army, which operates a Military Police School and a Training Center at Fort McClellan, Alabama. De fendant Alexander is therefore the head of the agency charged with discrimination, pursuant to 42 U.S.C. S2000e-16(a) and (c). III. A. Pursuant to Rule 23(a) and (b)(2), plaintiffs bring this action on behalf of themselves and all other simi larly situated black employees of Fort McClellan. The class represented by plaintiffs is so numerous that joinder of all of its members is impracticable. There are questions of law and fact common to the class; and the individual claims of the plaintiffs are typical of those of the class. Through their counsel, plaintiffs will fairly and adequately represent the class. B. The defendant, through his agency, has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or correspond ing declaratory relief with respect to the class as a whole. C. The class represented by plaintiffs consists of all black applicants for employment, and all black employees of Fort McClellan who have been denied promotions or otherwise discriminated against because of their race by the policies and practices set forth below. rv. A. Plaintiffs allege that the hiring policies and practices of Fort McClellan are racially discriminatory; and that white applicants for employment are pre-selected over equally or better qualified black applicants. 9 3 B. Plaintiffs aver that they and other similarly situated black employees have been and continue to be denied promotions because of their race or color. The racially dis criminatory promotion policies and practices include but are not limited to the following: (1) . policy and practice of racially discrimi natory evaluations by a basically all-white supervisory staff; (2) . policy of improper classification of certain jobs performed by black employees; (3) . policy of improperly extending the areas of consideration where incumbent black employees would otherwise be entitled to fill vacant positions; (4) . policy and practice of abolition or with drawal of posted jobs where blacks have been certified as "best qualified" for the vacancy; (5) . policy and practice of identifying the race of black candidates whose names are contained on the referral list, so that they will not be considered to fill the vacancy; (6) . policy and practice of downgrading the wage scale of positions which are applied for and/or accepted by blacks; and (7) . policy of pre-selection of white employees for certain vacancies by an all white supervisory or selection staff. C. Plaintiffs allege that the officials of Fort McClellan often harrass, intimidate, and disrespect black em ployees because of their race or color. D. Plaintiffs aver that they have personally suffered discrimination attributable to the above policies and practices, and because of their race' or color. 10 4 A. On December 3, 1976 plaintiff Joseph Lawler noti fied the Equal Employment Officer ("EEO") counselor at Fort McClellan of his complaint that he had been discriminatorily de nied a promotion. On January 1, 1977 the said plaintiff filed a formal complaint of discrimination alleging a discriminatory denial of promotions and racial disrespect. The complaint was investigated by the United States Army Civilian Appellate Review Office; and on November 22, 1977 plaintiff Lawler received his Notice of Final Agency Decision and of his right to institute this action within thirty days thereafter. B. Plaintiff Timothy Goggins filed a complaint of discrimination with the EEO counselor on March 30, 1977, com plaining of discrimination in placement and hiring practices at Fort McClellan. More than 180 days have elapsed since the filing of the complaint, and there has been no final action by Fort McClellan on this complaint. WHEREFORE, the premises considered, plaintiffs respect fully pray that this Court will grant the following relief: A. A judgment declaring unlawful the defendant's hiring and promotion policies; B. An injunction requiring the defendant to cease and desist its policy of harrassment, intimidation, and disrespect towards black employees; C. An injunction requiring the defendant to hire and promote the plaintiff class members to the positions which they are entitled, with the appropriate backpay; D. An injunction requiring the defendant to abolish those features of its promotion policies which discriminate against its black employees; F. A judgment granting plaintiffs their costs herein, including a reasonable attorney's fee; and G. Such other, further, or different relief as to which plaintiffs may in equity and good conscience be entitled. V. 11 5 Respectfully submitted, ADAMS, BAKER & CLEMON Suite 1600 - 2121 3uilding 2121 Eighth Avenue, North Birmingham, Alabama 35203 ATTORNEYS FOR PLAINTIFFS 12 ■o )I IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION ) ) ) ) ) ) ) ) Civil Accion No. 77-P-1647-E ) ) ) ) ) ) ANSWER Comes now che above named defendant by and through the United States Attorney for the Northern District of Alabama and for answer to the complaint filed herein states as follows. I. Paragraph I of complaint contains the plaintiff's jurisdictional allegations to which no answer is required, but the extent an answer is deemed necessary, they are denied. II. A. Paragraph II.A. of the complaint is admitted except the defendant denies that the plaintiff's degree is from Jackson State University. B. Paragraph II.B. of the complaint is admitted except the defendant denies that the plaintiff is serving as a Personnel Staffing and Classification Specialist. C. Paragraph II.C. of the complaint is admitted except defendant denies that plaintiff has completed two years of college and that the plaintiff is classified as a truck driver and painter. Defendant specifically infers that Charles L. Bryant is employed a3 a WG-7 Motor Vehicle Operator. JOSEPH C. LAWLER, TIMOTHY GOGGINS and CHARLES L. BRYANT, on behalf of of themselves and others similarly situated, Plaintiffs v s . CLIFFORD ALEXANDER] As head of the UNITED STATES DEPARTMENT OF THE ARMY, Defendant 13 D. Paragraph II.D of Che complaint is admitted. III. Paragraph III is denied. IV. Paragraph IV is denied. V. A. Paragraph V.A. of the complaint is admitted. B. Paragraph V.B. of Che complaint is denied. C. Defendant specifically denies Chat the plaintiffs are entitled to any relief whatsoever. FIRST DEFENSE As to all plaintiffs individually named and the alleged class, that part of the complaint which alleges harassment, intimidation, and disrespect fails to state a claim upon which relief can be granted. SECOND DEFENSE As to individually named plaintiffs Timothy Goggins and Charles L. Bryant, and the alleged class, administrative remedies have not been exhausted. THIRD DEFENSE As to Che individually named plaintiffs Timothy Goggins and Charles L. Bryant, and the alleged class this case should be returned to the administrative agency for its review under the doctrine of primary jurisdiction. FOURTH DEFENSE As to the individually named plaintiff’s Timothy Goggins and Charles L. Bryant, and the alleged class the complaint - 2- ' > ' 'I 14 t » fails Co stace a claim upon which relief may be granted WHEREFORE, the defendant having answered the complaint, prays for judgment together with cost and for such other different relief as may be just. J. R. BROOKS United Staces Attorney^ OHNNY WARDWICK ant United States Attorney CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing has been served upon counsel for all parties to the proceeding by mailing the same by first class United States mail properly addressed and postage prepaid on this the j *L day of February, 1978. Johnny Harcjyh.cK Assistant United States Attorney -3- 15 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA Eastern Division w a r ; 6 1 9 7 5 - JOSEPH C. LAWLER, et al Plaintiffs NO. CA 7T-?-l6k7-Z CLIFFORD ALEXANDER Defendant. O R D E R This cause arises on the oral motion of the defendant, made at the time of this court's preliminary ruling on the issue of class c certification on December 20, 1978, to decertify the class recognized by the court. This oral motion has been reasserted in the form of the defendant's memorandum in support of class decertification re ceived on January *, 1979- In addition to requesting that this court decertify the previously-certified class, the defendant, by this memorandum, has alternatively requested a redefinition of that Upon consideration, the court has concluded that the grounds asserted by the defendant in support of its motion for decertifica tion are without merit. Primarily, these grounds relate tojthe absence of common questions of law and fact, the impropriety of this action for Injunctive relief, and the inadequacy of plaintiff Lawler as a class representative. It is the conclusion of this court that certification of the class here involved is appropriate. Alternatively, the defendant has requested that the court redefine the certified class in certain limited respects. It appears that there is merit to thi3 request, since some of the language used by the court in its preliminary ruling on December 20, 1978, is apparently susceptible to differing interpretations depending on whether understood in its ordinary, everyday sense, or in the civilian personnel sense which is somewhat unique to the defendant. For this reason, the class previously certified by this court is hereby redefined to include all black employees at Fort McClellan, Alabama, on or after November 3, 1976, who were or are paid from appropriated fund3 , and who have been denied a promotion. Pro motion, as here used, shall be applicable to those employees who have failed to be selected for a position for which they were referred, those employees who have been misassigned by their supervisor with the result that they are performing work outside their correct Job classification and description, and those employees who have been unsuccessful in their efforts to obtain a requested reclassification of their Jobs. So_ ORDERED. This the ~~ day of Marc- class. I 16 ; v X < JUDGMENT ON DECISION BY TOE COURT r IBistrirt. Cmtrf F O R T H E NORM DISTRICT OF ALABAf-lA C iv il Action file No. 77-P -1647-E Plaintiffs, JUDGMENT JOSEPH C. LAWLER, TIMOTHY GOGGINS, and CHARLES L. BRYANT, on behalf of themselves and others similarly situated, VS CLIFFORD ALEXANDER, as head of the United States Department of the Army, Defendant. CLERK'S COURT MINUTES This action cate on for trial an June 29, 1981, before the Court, Honorable Sam C. Pointer, Jr. , United States District Judge , presiding, and the issues having been duly tried. It is ORDERED and ADJUDGED that.pursuant to the findings of fact and conclusions of law dictated into the record by the Coujrt, judgment is entered in favor of the defendant and against the plaintiffs and the plaintiffs' class matters; and that costs are taxed against the plaintiffs. F I L E D JUL3-19GI UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA JAMES E. VANDEGRIFT. CLERK DATED: July 7, 1981 Anniston , Alabaim Court Reporter: Wendell Paries JAMES E. VANDEGRIFT, CLERK BY: DEPUTY CLERK ENTE! !E j'UL 8 iyai 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE UNITED STATES DISTRICT DISTRICT OF ALABAMA, JOSEPH C. LAWLER, TIMOTHY GOGGINS, and CHARLES L. BRYANT, on behalf of themselves and others similarly situated, PLAINTIFFS V S . CLIFFORD ALEXANDER, as head of the United States Department of the Army, DEFENDANT COURT FOR THE NORTHERN EASTERN DIVISION ) ) ) ) ) CIVIL ACTION NO. ) ) 77-P-1647-E ) ) ) ) ) ) ) ) C A P T I O N THE ABOVE ENTITLED CAUSE came on to be heard before the Honorable Sam C. Pointer, Jr., United States District Judge, at the United States District Courthouse, Anniston, Alabama, on the 29th day of June, 1931, commencing at 9:00 A.M., at which time the following proceedings, among others, were had and done: 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Mr. Brent E. Simmons, /attorney at Law, 306 15th Street, N. w., Suite 940, Washington, D.C. 20005, appearing for the Plaintiffs. Ms. Vanzetta Durant, Attorney at Law, 639 Martha Street, Montgomery, Alabama 36108, also appearing for the Plaintiffs. Mr. Richard W. Wright, Office of the Judge Advocate General, Department of the Army, Pentagon, Washington, D.C. 20310, appearing for the Defendant. Ms. Ann Robertson, Assistant United States Attorney, United States District Courthouse, Birmingham, Alabama 35203, also appearing for the Defendant. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3. FINDINGS OF FACT-CONCLUSIONS OF LAV? THE COURT: The Court will now dictate into the record findings of fact and conclusions of law. The issues are as developed in the pretrial order in this case and as indicated in the definition of the class as indicated in prior orders of the Court. The evidence consists of the testimony of a number of witnesses, one of whom by deposition, and the reception of a series of documentary items, some of which constituting computer exhibits and other summations from other materials. Additionally, the Court has considered certain matters presented not by way of formal evidence but by way of summations of evidence in written form presented through plaintiff’s counsel. It should be noted that some of the exhibits were received for limited purposes, such as for impeachment purposes, and I have read those tabs out of tha investigation file that were introduced right at the close of the evidence. This case involves a claim brought on behalf of black employees at Fort McClellan in appropriated funds positions with respect to any claims they may have that during the period November 3, 1976, through October 1, 1930, they were discriminated against by 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 being denied promotions. For this purpose promotions includes situations where someone was referred for potential selection but not selected, as well as situations in which perhaps duties were being performed by a person at the wrong grade level, so that * effectively the person was being denied the promotion or the pay for the position that he was in fact performing. It was also indicated during the pleadings stage and class determination stage that the case would involve claims of denials of requested reclassifica tions of positions. For the most part, however, that aspect of the case really has not been developed, so that the primary consideration and attention of the Court relates to the question of nisgrading of positions and denials of promotion of those referred by consideration. Some question has been raised by brief and at points during the presentation of evidence as to whether denials of promotion that might arise through some other means are properly before the Court. That is, whether, for example, someone who was ruled ineligible for consideration for a particular promotion should have in this case a claim that that ruling of ... ... ineligibility was a violation of Title VII. Those __________________________________________________________________ A_ 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 matters were not at the time the class was formed thought by the Court to be appropriate for considera tion in this case, given the nature of the claims being made by the then class representatives, the nature of the EEO complaint that had been filed by Mr. Lawler, and the fact that many of these areas would involve attacks upon criteria and standards developed and presumably maintained on an Army-wide basis or Government-wide basis, and that the plaintiffs were really not preparing to challenge those in this case. In any event, the case came on to be preoared and to be tried with respect to this more limited area of denials of promotion, and for the period of time that I have indicated. The Court has, however, permitted evidence dealing with other aspects of the entire promotional system that was practiced and followed at Fort McClellan, and has permitted evidence as to events that occurred prior to November 3, 1976 and after October 1, 1980 for their circumstantial value on the issues which are before the Court. in these findings concentrate primarily, however, upon the matters that were involved between November 3, 1976 and October 1, 1980. While mention 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 may be made of some events that occurred before or after that period, I will not place too much attention in these findings upon those, and I do note that by and large the evidence before me indicates that the events that occurred prior to this starting date, or after the closing date, were not materially different from the type of evidence that I found being presented during this almost four year period of time. Both plaintiffs and defendant have presented evidence to me both of a statistical nature dealing with certain generalizations about events, promotion events, classification of positions, and about specific incidents that have been referred to during the presentation of individual claims by a score or so of class members. I will first deal with some of the statistical materials before proceeding with a discussion of appropriate findings concerning individual events. Plaintiffs demonstrate that the number of black persons employed at Fort McClellan in appropriated funds positions is slightly less than ten percent of the entire work force in such positions, and that this figure is somewhat less than the percentage of blacks in the localized labor market in and around Anniston, a figure that is in the range 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 of fifteen to sixteen percent black. Plaintiffs also have demonstrated through Exhibits 1 and 2 that blacks are less well represented at the higher grade levels in the several compensa tion schedules than they are at the lower and middle grade levels. Plaintiffs have also demonstrated that the average wage level for blacks is and has been less than the average wage level for whites. All of these natters are, of course, of significance and value in support of plaintiffs' claims that there has been discrimination in and about the promotion system at Fort McClellan. The parties have, however, gone much further in detail in terns of what might generally be called applicant flow data as it relates to promotions by looking at the actual persons who applied for positions announced, the evaluation and rating of those individuals, the reference of those individuals for consideration for selection, and selection itself. Both plaintiffs and defendants have provided the Court with studies relating to all or part of these facets of the employment process and the promotion process. The plaintiffs have provided a computerized print-out which indicates in various categories of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 information, including grade structures and levels, type of promotion, type of outcome of a promotional announcement, figures to indicate the number of whites and blacks applying, who were rated, who were found to be qualified at some level, who were found to be either highly qualified, or what is most important, for ultimate consideration best qualified, and in part reflecting information concerning those who were selected. This particular exhibit by the plaintiffs is, as the plaintiffs acknowledge, deficient in its column dealing with selection, because apparently the failure of several of the persons involved in actually ascertaining that informa tion from Army records failing to provide information in terms of who was selected and who was not selected. The defense, however, did ask, and the Court did receive that last column for consideration, recognizing the omission and deficiency in its cover age. It may here, however, be noted that there is no particular reason to believe that the materials that ware encoded on that column would be materially different as it relates to whites and blacks had all five of the students filled in that information . .. correctly instead of merely two of them. There is a -__________________________________________________________________S_ 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 greater room for error obviously when only two of five were putting that information in, but there is at least some indication, and indeed a comparison with defendant’3 exhibits indicates this is correct, for believing that the relative information concerning whites and blacks selected is substantially accurate in plaintiffs' exhibit as well as in the defendant's exhibit. By brief plaintiffs have suggested that the information in their computer print-out, properly analyzed, leads to certain conclusions, namely that one could draw a reasonable inference from those figures that blacks have been discriminated against in various aspects of the promotional process. More particularly the plaintiffs would assert that blacks have been more adversely affected than whites in certain promotions that, or, announcements that were withdrawn, were abandoned or rewritten, and that blacks tended to be at a higher rate than whites found not to be in the best qualified group of applicants, best qualified meaning those that would ultimately be considered for the actual promotion. I want to make a few comments about certain of the tables that were appended to the plaintiffs' _________________________________________________________________ 0_ 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ---------- ---------------------------------------------------------------------------------------------------- J - O - brief with respect to the use and analysis of that print-out. Table No. 3 of that brief does indicate that ratings as categorized in that table were significantly different from a statistical standpoint for blacks i and whites. What was not done, however, in Table 3, and what must be also taken into account is that the final selection of blacks did not result in any disadvantage to blacks on a statistical basis. Indeed, the contrary is true. The figures even from the plaintiffs* exhibit reflect that even as relates to those who were best qualified, the percentage of blacks selected was approximately 9.47 percent. The percentage of whites selected, 9.39 percent. That would be by using the selection ratios from the defendant's study, which were essentially complete. If one uses the selection ratios that are contained in Plaintiff's Exhibit 36, the computer print-out itself, again blacks result in being favored in their selection rate, and this goes back to the various categories, both the number of appli cants and the number rated. The point has been made in Table 4 appended to that brief that blacks have been more affected by non-standard actions, matters in which something 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -------------------------------------------------------------------------------------------------------------b r other than the normal promotion flow, such as by a cancellation of some announcement or a rewriting of some grade, and the like. According to the figures contained in Table 4, those differences were thought by plaintiffs’ expert to be statistically significant. I note that an error apparently has been made in this calculation in that the materials for non-standard actions or outcomes do include certain individuals who in fact were selected, so that not everybody that is in that category failed to be selected. According to the data submitted by Plaintiff's Exhibit 36 there were seventeen individuals affected in this non-standard outcome who in fact were selected, and according to those tables, when those individuals are eliminated and one looks at the balance, namely the blacks who were involved in those promotional matters, but who were not appointed, the whites who were involved in those promotional matters, but not appointed, it turns out that in comparison with the number of original applicants, only thirteen percent of the blacks were so affected and eighty-five percent of the whites involved in those same promotions were affected. Likewise, if one looks at the best qualified showing up in those non-standard outcomes and 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 12. eliminates those who in fact were selected from that consideration, it again turns out that the effect of in effect cancellation of the announcement had a higher adverse impact on whites than it did on blacks — eighty-four percent, fifty-seven percent. In Table No. 5 appended to the plaintiffs' brief the argument is made through plaintiffs' expert that even a .18 level of significance should be considered appropriate. The Court rejects that approach to statistical significance. It is perhaps significant that plaintiffs' expert acknowledged that no Court, and to his knowledge no other statistician had yet agreed with that approach. The Court does not disagree, however, with that same expert's testimony in court to the effect that materials and statistical data nay certainly be considered by the Court, and properly so, even though it is not statistically significant at the .05 level. There is, however, a difference between allowing something to be considered along with all other evidence in the case than merely on the basis of some statistical study at something like the .13 level, drawing from an an inferential leap that something else exists. It is on that point that the Court would disagree apparently with what plaintiffs' 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ------------------------------------------------------- in expert was asserting. I may have said Table 5, I meant to say Table 6, where this .18 level was utilized. As noted in Table 5, there was no significant underrepresentation of blacks in the ratings given with respect to upward mobility positions. The defendants have produced for the Court something more directly tailored to the actual issues in the case, namely the number of whites and blacks in fact selected in comparison with the number of whites and blacks found to be best qualified, and in turn in effect referred for consideration. It may be noted at this point that there's apparently something in'the neighborhood of seven hundred or so actual promotions that occurred during the period November 3, ’76 to October lf 1980, and something on the order of, although the number is less clear, a hundred and fifty perhaps announcements of promotions that were vacated. And I can only arrive at that figure inferentially primarily by looking at some of plaintiffs' materials in Plaintiffs’ Exhibit 36. I say that at this point because it will become important later on, that the Court is later called upon to look at and make decisions or make findings on perhaps fifty or sixty of these promotional 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 events through direct evidence. But, the Court recognizes that this is fifty or sixty such events, promotional events, out of a total of something bordering on nine hundred total for this period of time, that is, either actual promotions or promotions that were cancelled. Now, returning for the moment to the defendant'ii study, the defendant's study indicates that the percentage of blacks rated best qualified who in fact were selected during the period of time from one year prior to November 3, 1976 until two months after October 1, 1980, the selection rates for blacks out of that best qualified group was 39.1 percent. The selection rate for whites for that sane period of time, 31.1 percent. Obviously such statistics give rise to no inference of any discrimination against blacks, and indeed if one were simply on a statistical basis to draw any inference, it would be that whites had been disfavored in that process. That, as a matter of fact, from a statistical standpoint would be significant at the .01 level, that is, with ninety-nine percent confidence. This same situation of overall higher selection rates for blacks versus whites is true not only for the entire five year period covered by the two studies, ______________________________________________________________________________Li!___ 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 but each of the two partial segeraents of that period. There is no real difference between those results. In argument it has been indicated that perhaps such factors are not important. The Court disagrees. It is certainly true that one may establish and prove a claim of racial discrimination, discriminatory treatment, even though other persons of the same minority group may have been more favorably treated or equally treated, and the mere fact that whites, for example, are selected or have been selected at a lower rate than blacks during this period of time does not certainly establish that no black has been discriminated against. It does, however, say this: That there is to be no inference of discrimination to be drawn from those basic materials, and in effect the proof of discrimination is going to have to rest on much more solid foundation that simply some segmentation or stratification of parts of that data. The plaintiffs have categorized by way of argument the reasons given by supervisors for select ing the person or persons whom they chose, dividing those responses into four categories, ranging from clearly objective to essentially no ground, no reason stated. Certainly that, type of endeavor has 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sone potential value in a case. It does not, as I view it, however, establish discrimination in fact, nor give rise to an inference of discrimination in fact. It is useful primarily in analyzing, assuming sone prima facie case has been established of imiuation, whether credence should be given to the reasons articulated by the supervisors for their decisions, and whether those reasons should be taken as pretextural. It does not establish a prima facie case in and of itself. I have gone through to appraise the work product of plaintiffs' counsel in this regard and find it generally satisfactory in terms of the attempted characterization of the responses and . ~ reasons given for selection or non-selection. I did find some errors from my standpoint where I would have made a different choice than the plaintiffs' counsel, and some inconsistency. But I think the important thing here is that at least as I view it the more subjective statements for selection of whites in comparison with the more objective reasons assigned selecting blacks, even assuming the correct c^aracterization, does not establish discrimination or that discrimination has occurred. In fact, the statistics weigh very heavily against such ----------------------------------------------------------- 14 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ------------------------- — ---------------------------In discrimination against blacks generally. The defendants have also presented in evidence a study dealing with the grading of positions, that is, a study of some one hundred and twenty-three positions, sixty black incumbents, sixty-three white incumbents, to ascertain whether and to what extent there appeared to be raisclassifications and misgrading. Such a study is obviously of importance in view of the claim being made on behalf of the class that there has been racial discrimination against them in and about the misgrading of positions such that in effect they were being denied promotions through a misgrading approach. Both plaintiffs' expert and defendant’s expert agree that the percentage and proportion of blacks who by virtue of this study that was under taken have been misgraded is significantly greater than the percentage of whites who have been misgraded. It is also true, however, and both experts would agree that the blacks were not only statistically more often than whites undergraded, but they were also more often than whites overgraded. In terms of what inferences does one draw • - > from that, counsel perhaps have some indication from a question that I posed during the course of argument. 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1A The mere fact that blacks are more often misgraded than whites does not prove anything of significance in this case, except as one attempts to determine what the effect of that misgrading was. Obviously if all the evidence was to the effect that there was no undergrading, only overgrading, and that blacks were more often overgraded than whites, there could hardly be a claim of discrimination. I am convinced in this situation that the Court must take into account not only the undergrading, but also the overgrading, and ascertain what i3 the net effect of the errors in grading, recognizing that the error more frequently has occurred in this sample with respect to blacks than with respect to whites. That conclusion, when one in effect nets out, is to see what the real significance of misgrading is, is that there were four more blacks undergraded than overgraded, two more whites undergraded than overgraded. Given the sample sizes sixty and sixty-three respec tively, the theoretical expected number would have been three in each group, and is in effect a shift of one. Actually the numbers are sufficiently small that no real conclusion can be drawn one way or the other. No conclusion can be drawn that there is any adverse impact on the blacks as a result of the 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 raisgrading that certainly has been shown to occur. Defendant's counsel made some argument to the effect that one could project figures for the entirety of the white employment group and that on that basis there would be far more whites than blacks undergraded. Obviously that is true. However, the Court doe3 not believe that numbers in absolute terms are as important in this sense as are relative proportions. To the extent defense counsel was making that argument the Court rejects it. I will now be going through certain of the incidents brought to the Court's attention during the presentation of evidence as it relates primarily to the question of whether as to those individuals it has been established or shown that discrimination in the way of a denial of a promotion occurred during the period November 3, *66 through October 1, 1980. I’m not sure logically quite how to go through these. -I suppose there's no particular logical order. I will start with Mr. Charles Bryant. Mr. Bryant in November, 1977, was involved in competition for equipment operator, WG-8 level. He •iwas the only black among the five persons found to be best qualified. He did not receive that selection, and indeed tv/o whites with whom he had been working ______________________________________________________________________________ 19 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 received that appointment. Mr. Bryant believed that he not only had the qualifications for the job, but indeed had superior experience to the white employees who got the job. His supervisor, Mr. Gann, testified and indicated that all three were qualified, but that in his opinion, that is, Mr. Gann, the two whites were better qualified, better able to do the work, and had had actually more experience in operating heavy equipment than had Mr. Bryant. Of course, the Court in evaluating this situa tion looks to both a prima facie case of discrimina tion from certain facts being established, but also looks to the reason offered by a defendant employer for its action, and then whether there is evidence that demonstrates that that assigned reason is pretextural such that the plaintiff would have carried the burden of establishing,-considering the evidence as a whole, that the denial of promotion was on racial grounds. In this sense the Court is certainly guided by the principles enunciated in Burdine v. Texas College this past year, the Supreme Court out lining just what that burden is and the fact that the burden is ultimately on the plaintiff, and that the . defendant is not required to in effect establish as -----------------------------------------------------------------------------------------------------------------------------------------------2JL- 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 a part of a defense that the person chosen wa3 better qualified than the black who was not chosen. I conclude on this particular natter that the reason given by Mr. Gann in testifying here was the reason he in fact made the decision that he did. I'm not required as I view it to decide who in fact was better qualified, namely Mr. Bryant or the two white individuals. I am required, I think, to decide whether the reason that he has given for his selection in fact was the reason that he had, whether right or wrong, did he believe that he was selecting the better qualified individual. To say it another way, the way that the plaintiff would have the burden of proving it, was he rather making that selection and rejecting Mr. Bryant for racial reasons. I find that he was not rejecting Mr. Bryant for racial reasons, but made the selection on the basis of the parsons he thought were better qualified. It is significant in this sense that slightly over a year later, in January of *79, Mr. Bryant was selected over four white individuals by this same Mr. Gann for another T7G-8 position, this one, however, being that of cement finisher, which is what Mr. Gann said Mr. Bryant had spent more time doing insofar as incidental duties were concerned. 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 McCordis Barclay, he is here asserting that in September, 1979, he should have received an appoint ment as a supply technician, GS-5, which instead was awarded to a white named Wanda Caldwell. He further has established that although he received a report indicating that he was one of the best qualified persons for that position, and had been interviewed, that in fact he had not been inter viewed. The Court finds in fact that Mr. Barclay was not one of the best qualified, and that the form which he received was erroneous. It should have reflected highly qualified or best qualified, but not interviewed, kut should not have, reflected certainly an interview situation. In fact, what the evidence reflects is that the five persons who initially were found to be the best qualified, and who were referred for appoint ment, that of those five that two declined that consideration, that then there was added or to be added two additional names; that Mr. Barclay and two other persons were tied for sixth place on the rating list, and that following the standard by which such ties are to be broken. Hr. Barclay, with less years in the service computation, was not referred for consideration. -------------------------------------------------------- -------------- ----------------------------------------------------------------------- 3-2----- 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 It may here be noted that Mr. Barclay was awarded the supply clerk job several months later, and that then led to an appointment to the GS-5 level. Also, of course, that still nonetheless involved a delay in reaching that GS-5 level. I find no evidence of discrimination against Mr. Barclay, and conclude that he simply was not selected because of being found to be ineligible -- ineligible is not the correct word -- not being one of the top-rated candidates for selection. It is unfortunate that he received an erroneous form indicating that he had been interviewed when in fact he hadn't. And next is the situation of Mr. Timothy Goggins. There are two matters for the Court's consideration with respect to Hr. Goggins, both arose from applications made by him in December of 1976. He applied for the position of occupational analyst, Gs-9, in the MP School. He was one of those referred. The position, however, was abolished, that is, not filled. In fact, it has never been filled under the testimony, although the particular functions of that position have, according to the defendant, been, when required, performed by another individual at a higher grade level who has other job functions. ____________________________________________________________________________ 22_ 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Court cannot find any inference that when Mr. Goggins along with various whites didn't get the job because the job was abolished that that indicates any kind of racial discrimination against Mr. Goggins. One may as well infer that it resulted or was caused by racial discrimination against the whites who were in the sane group. There is no basis other than the race of the individuals who were ultimately involved in making the decision to cancel the position for drawing an inference in that situation of racial discrimination. No prima facie case under McDonald Douglas, as I view it, is established here. And certainly other evidence can establish that in that kind of situation nevertheless it was prompted by or caused by some racial bias or motivation. I find, however, no evidence on which to draw that conclusion, that that particular position was abolished or not filled because of racial discrimination. The other position that Mr. Goggins applied for in December, 1976, was that of position classifica tion specialist, a GS—11. In fact, the position was not filled competitively, although announced in that form, but was instead filled by the appointment of a white, Earl Johnson,, who was a career conditional ------------------------------------------------------------------------------------------------------------------------------------------------------------2-t*— 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 employee at the time. Mr. Goggins complains that that occurred, a white was selected over him, and more particularly that in effect there was no real competi tion for this job by virtue of Johnson’s having been selected. And indeed in one aspect the job was virtually engineered down, since it was announced as a GS-9 or 11, in fact filled by a person at the GS-7 level. It does appear that in part Mr. Goggins is not a very good witness or person to make complaints about that type of treatment, since he himself received like or comparable treatment as a career conditional person going through grades 5, 7, and 9 noncompetitively. There are, of course, some differences, most dramatically the question of this having been shown by way of an announcement, and then in effect being cancelled rather than simply being filled without an announcement under this approach. The defendant has also noted that another black person who testified in this case had a some what comparable situation of being promoted non competitively, namely Margaret Colley. Again there are some distinctions. Mr. Clark testifying indicated that he did not think that Mr. Goggins actually could ----------------------------------------------------------- 05- 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 have handled this job had it in effect been handled on a competitive basis. I do not find this selection of Johnson to be discriminatory on a racial basis, that is, to be prompted by racial discrimination. It may have been prompted in part by a belief critical of Mr. Goggins' abilities, but that does not discrimination make. The mere fact that some super visor does not believe that someone’s qualifications are good, or as good as someone else, the mere fact that that person is black, does not mean that that decision is racially motivated, particularly in view of what had already occurred with Mr. Goggins himself in coming through this sequence of positions, and with what we find to be true with at least one other employee. I find nothing unusual or significant in the appointment of a career conditional person other than the fact that the announcement did go out initially. I conclude that there was no discrimina tion involved in this non-selection of Goggins for that position. It may be noted that approximately a year after this event Mr. Goggins was in fact awarded a GS-11 position at another post, which he accepted, and where he is now serving. Whether Mr. Clark’s analysis or expectation that Goggins would not be - 43 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 able to handle the work is correct or incorrect, of course, is problematical, though the evidence did reflect that Mr. Goggins was held up on one step raise because of poor performance. The Court will at this time take a short recess before continuing with findings and conclusions. (SHORT RECESS) THE CODRT: Next Mr. Bobby Murphy. In 1977 Mr. Murphy sought a job as supply management office, GS-7, a job in fact that was filled by a white, Mary Barber. Mr. Murphy was rated as not qualified, that is, not meeting the minimum qualifications established through the OPM regulations. It may here be noted that this decision of ineligibility was made by a rating panel. The Court has heard from two of the members of that panel, one of whom is a black and is a member of the complaining class here. The Court finds that the rating of Mr. Murphy as not qualified for that job was not the product of any racial discrimination practiced by the panel members. It may here be noted that notwithstanding the fact that Mr. Murphy had been convicted of an offense involving theft of property some several years earlier from his employer, he nevertheless in _________________________________________________________________ 22— 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1900 was selected for an additional promotion as chief of the storage section. The Court finds no discrimination against Mr. Murphy with respect to his not being selected as supply management officer. Mr. Clyde Woodard# in effect# lost pay when he was “promoted" back in 1975 to produce manager, GS-5, having left a WG-5 position. In 1973# I believe it was, a formal# or at least an informal complaint was made by Mr. VJoodard to this underpay or loss of pay for what was supposed to have been a promotion, comparing his situation with that of a white woman who had similarly gone from one schedule to the other, Sarah Herndon. When this was evaluated, in fact Hr. Woodard received that increase in pay in his steps in the grade, and indeed recovered all back pay. While the Court would not from the evidence presented have concluded that thi3 error in classifica tion or in pay grade was as a result of racial discrimination, in any event he has received full correction for that matter. He then applied for the position of warehouse foreman, WS-5, and has here complained that a white by the name of George was selected. Hi3 claim is __________________________________________________________ 28 45 that that selection of George and his own non-selection * was the result of racial discrimination, a somewhat curious contention in view of the fact that the person first selected for thi3 job, Bobby Murphy, ; is a black, Mr. Murphy having declined, however, that *j*,* position. In any event, again, while the Court would not on the basis of the evidence presented have found that there was racial discrimination in the selection of Mr. George over Hr. VJoodard, in any event Mr. Woodard was successful on an administrative review of that matter, was awarded this sane position, ultimately a warehouse foreman, WS-5, and indeed got back pay for the period of time that he had been delayed in getting that appointment. There is no active complaint accordingly by Mr. Woodard for remedial action by the Court even if the Court had found racial discrimination. Mr. Jack Heath had no denial of a promotion during the applicable period of time about which any complaint is here made. He did testify dealing with other aspects of employment discrimination as he perceived it, which might have some effect upon one's promotional opportunities. But, insofar as being denied any promotion from November 3, 1966, to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 October 1, 1980, he makes no complaint of that having occurred to him on the basis of any kind of racial discrimination. The only position with respect to which Mr. Dennis Thomas makes any complaint as having been denied to him during the applicable period of time was one in which the job was abolished and not filled. As was true with one of the other class members, the Court concludes that in not awarding the job to Mr. Thomas, or to the white persons who also were applicants for that position, there is no indica tion of racial discrimination against Mr. Thomas. It may be that this is a matter or might have been a natter for grievance subject to the limitations contained in the collective bargaining agreement. But, the Court, of course, is not called upon and does not sit as a reviewing panel here on basic grievances by employees that somehow they were mistreated. The Court's function is to determine whether those complaints of mistreatment v/ere racially motivated, this being a claim of disparate treatment on the basis of race. Charlotte Acklin testified that her only complaint was with respect to a job announcement in 1979 for the position of supervisory supply technician. ------------------------------- — _________________________________________________________3-0_ 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 She was rated best qualified for this job, along with several whites being similarly rated for that job. Again this job was not filled by a white, was not ky anyone. The job was cancelled. The testi mony is to the effect that it has never been filled, and that instead the work is being performed not by c^v^ ^ an personnel, but by military personnel. The can find no indication of racial discrimination in not awarding the job to Ms. Acklin any more than it could find racial discrimination in not awarding the job to the whites who were similarly found to be best qualified. Wayne Garrett asserts and has filed at least an informal EEQ complaint that his not getting a WG—6 job, instead it being awarded to a white, was racially discriminatory, because really it was announced as a competitive position when it should have been, according to Mr. Garrett, really a reclassification of his own job. X here agree with the administrative finding that has been offered in this case, that there was no discrimination on a racial basis against Mr. Garrett in and about the selection of Wilson, and the determination that this was due to be filled as a competitive position rather than as a non-competitive one. ----------------------------------------------- — ----------------------------------------------------------------------------------------------------------- 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 It will be noted that Mr. Garrett did get an upgrade in April of '78 to this sane level, although without back pay. This appears to be, as the administrative finding indicated, a situation not involving racial discrimination, but a failure on the part of the selecting official to perhaps utilize the opportunities available for promotion of a black, and thereby give support to the affirmative action plan. The Court does not conclude that the failure to take affirmative action as might otherwise be permitted constitutes racial discrimination against blacks. Affirmative action plans are permissive in the sense that within certain limits, or because of certain prior practices found to have been discrimina tory, persons are permitted to make preferential selections of minority groups under affirmative action plans. The failure, however, in the Court's judgment to take advantage of that opportunity does not in and of itself constitute racial discrimination. And in this case I, like the administrative reviewing group, conclude that there was no racial discrimination, only a failure to take advantage of an opportunity for affirmative action. . Jeanette Simmons is in a somewhat peculiar 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 position. It's not clear whether this can be really called a complaint about a denial of a promotion, because the promotion wasn't denied to her. Rather the complaint is that before she was promoted she was required by her supervisor to go back to take special training, training which in fact she completed and which indeed led to her certification after appropriate testing as an LPN. Basically her complaint is that a white person in a similar situation was not required to go back to school as had been Ms. Simmons. The evidence demonstrates, however, that whether or not ultimately that training was comparable, the white person about whom she complains had in fact prior to this time already had the year of specialized training. From the standpoint of the supervisor, whose deposition was tendered and read, the decision with respect to Ms. Simmons was her own view of essentially upgrading the performance of duty by those holding these positions and not a matter of any racial discrimination. The Court finds that the disparate or different practice, if you want to call it that, has been explained by the supervisor, and that racial discrimination was in faxrt not involved in that decision by the supervisor. 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Ralph Driskell testified at some length. It appears, however, that during the applicable period there was no position for which he applied or which he sought which was denied to him. There was evidence at one point indicating that there might be such a promotional matter within the applicable time period in that he indicated that he had applied for a job in late August, 19S0, and not only was not selects for it, but never heard from that position. The defendant's evidence does reflect that indeed Mr. Driskell would never have heard from that position because the defendant's evidence indicates that it had no record of any such application ever having been made by or on behalf of Mr. Driskell. In any event, that particular promotion in fact occurred after November 3, 1976, the selection being made on November 21, 1930. A somewhat comparable situation exists with irespect to Betty Bailey. I'm not sure I have her name right. For some reason that doesn't sound right. MS. ROBERTSON: That's correct. THE COURT: Betty Bailey is what I have got written down. That is, that there was no position during the applicable time period for which she made ------------------— ----------------------------------------------------------------------------------------------------------------3-4— 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 any application or sought anything that was denied to her. Mr. Louie Turner has, according to plaintiffs' counsel's argument, no direct claim for relief in this particular case, his testimony being offered in support primarily of the plaintiffs' assertion of circumstantial evidence to indicate the lack of appropriate support being given at the post to the Fort's affirmative action plan, and indeed to the Equal Employment Opportunity office at the post. Mr. Turner did testify at some length with respect to a delay in his being upgraded from a GS-11 to a GS-12. That matter was first raised on the basis of changes in organization and functions at Fort McClellan in May of 1975, and the upgrading did not occur until sometime about 197S. In fact he was upgraded. It may be noted in this respect that one part of the reason for the delay in his receiving that promotion, that is, the selection for that position after it was upgraded, was that initially there was competition and the selection of another individual to fill that position. The race of that individual, Mr. Madden, I do not think was ever indicated in evidence. The Court has noted, .. ....... however, that in the materials tendered that Mr. ---------------------------------------------------------- 3-5- 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Madden attended and received a degree from the Tuskegee Institute, which indicates at least some inference perhaps given the Court's general familiarity w*th the student body there, that probably Mr. Madden was black. In any event, he declined, and it was after that, and a new referral list, that Mr. Turner was selected for this position as GS-12. As indicated, there is no active assertion being made here on his behalf for relief. Mr. Joseph Lawler is the named plaintiff in this action and the class representative. In October, ■̂976 > a request was made by his immediate supervisor, Mr. Weable, for the position that Lawler was occupy ing as a safety specialist to be reevaluated as assistant safety manager, and indicating that Mr. Lawler was eligible for promotion. In fact, Mr. Lawler did not get such a promotion to a GS-11 position October, 1980. What occurred back in the late of 1976 was thisi The submission by the super visor, Weable, was evaluated by both Colonel Morton, the Commander of the directorate in which the safety office was located, and by the civilian personnel office. As a result of those discussions the request, which by this time had taken the form of a request 36 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for reestablishment, or establishment of a GS-11 position, was returned to Xtfeable, with directions that it should be resubmitted with appropriate justification for the additional duties involved and the justification in the light of the mission. No such resubmission occurred. And I do not understand Mr. Lawler to be suggesting that Mr. Weable'a failure to take that action was in any way racially motivated. There was a desk audit initiated by the CPO in 1977 with respect to the possible upgrading of both the position that Mr. Lawler had occupied and a comparably graded position held by a white. Again, as a result of that audit, desk audit, no upgrading of either position was recommended at that time through the CPO. Several years later there was another flurry of interest and activity on the upgrading, and although there was disagreement among those involved in the process, there was finally a decision in effect to create a GS-11 position while retaining the two GS-9 positions, and Mr. Lawler did in fact end up being selected for the GS-11 position. It may be noted that in the interim Mr. Lawler had twice been offered positions as a GS-11, although it would have involved apparently a move by him from — ________________________________________________________________________ 12_ 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fort McClellan. Certainly the reasons given by witnesses on behalf of the defendant as to their actions, and particularly those of Lieutenant Colonel Morton, by the officials in the CPO office, or, if believed, statements indicating that the decision by them was not racially motivated. In an effort in part to establish that those reasons were pretextural, or at least not the real reasons, that instead there was disgruntlement on the part of Lieutenant Colonel Morton directed against Mr. Lawler, there’s been evidence presented concerning at least two other events in which Colonel Morton’s relationship and treatment of Mr. Lawler has been held subject to challenge. As was true with the administrative reviewing group or individual who evaluated this situation, whose findings have been presented to the Court, I likewise agree that although these other episodes indicate certainly from the standpoint of Mr. Lawler a disrespect of him as a person, neverthe less the delay in this upgrading or regrading of the position, thus providing him with the opportunity to promote to a GS-11, was not racially motivated. I conclude then against Mr. Lawler's claim. I have, I think, now gone through each of the class members and in each situation where there ___________________________________________________________in 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were claims for relief found against the class members. One final comment by way of reiteration is that the Court does not here sit as a reviewing body dealing with employee grievance except to the extent those grievances are and can be shown to be racially motivated in this context on an intentional basis. The failure of Fort McClellan to achieve many of the goals it has set for itself in affirmative action is not a matter about which the defendants here can take pride. Perhaps some of that failure may, as the defendants would have it, be attributed to Mr. Louie Turner, who served as EEO officer during much of £.hat period of time. 3ut, in any event, the Fort has not achieved the type of success in its affirmative action plan that one night hope for. That failure, however, does not constitute, as I view it, a violation of Title VII, particularly not in view of the type of claims that were here designated for presentation on behalf of the class. It may be noted as one final comment that the plaintiffs complain that more blacks than whites were affected adversely by the rating processes, that is, even prior to selection by a supervising official. For about half of the period involved in this litiga tion, of direct interest, one of the four persons who 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 normally made those ratings and was responsible for those ratings was a black person. If one compares one out of four black persons performing that task with one out of ten persons generally being black for the labor force as a whole, a statistic that holds up when one also looks at the applicants for promotion, it appears that blacks were more frequently being graded by another black in that process than whites by whites on a relative basis. In any event, the Court has concluded that those matters, at least given the actual selection rate, do not support a claim of discrimination, and indeed the statistical evidence weighs against it. Having considered both the statistical evidence, which the Court finds not to favor the plaintiffs’ case, having looked also at the individual incidents of claimed discrimination for decision, and finding on each of those against the particular class plaintiff, or class member or plaintiff, the Court will direct that at this time judgment be entered in favor of the defendant and against the claims Presented on behalf of the plaintiff and class members on all issues. I always when I complete findings and conclusions inquire of counsel if there are any ----------— — --------------------------------------4-0— 57 matters that you can think of that you would like me to make a finding on that I may perhaps have overlooked or some clarification of some natter. This is in no way, of course, asking for a waiver of any right to object, or to complain. It does not preclude post judgment motions. But, if there is some natter that perhaps I have failed to cover that either side would like to have a finding on, I will be happy to hear any such requests. MS. ROBERTSON: The defendants have none. Your Honor. THE COURT: All right. MR. SIMMONS: Your Honor, with respect to the affirmative action regulations, Federal regulations, and whether or not there has been a compliance by the defendants with respect to, following the requirements of Federal regulations as they pertain to affirmative action, I'm not certain if your findings addressed that issue, if you perceive it as indeed an issue. THE COURT: I've indicated that in a sense I think it is not a critical issue, although it has some evidentiary significance. I've indicated that the failure to take some affirmative action would not of itself constitute discrimination, but I think that's not really the question that you're asking me. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SIMMONS: Well, as I understood what you're saying, the failure to achieve affirmative action is not evidence, or, to achieve certain goals is not evidence of discrimination. THE COURT: If I said that I didn't mean to. A I didn't mean to say that it could not constitute evidence of discrimination or discriminatory intent. I intended to say, if I did not, that it does not in and of itself constitute discrimination. MR. SIMMONS: All right. That’s one separate question. The question that I directed to the Court, apart from the question of whether or not the failure to achieve affirmative action goals, the question is, does the failure to comply with Federal regulatory guidelines -- one instance, for example, came up with the, well, validation studies. Mr. Magee, for example, testified that there have been no impact analysis of the process, and we see that as being required by Federal regulations. Does that failure in and of itself constitute a violation? THE COURT: I can't really make a finding °n that issue because I do not recall enough evidence dealing, and did not study the regulation in question with a view to determine whether it is required that * - ̂ an adverse impact study be conducted. ------------------------------------------------------------4_2--- 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SIMMONS: I see. THE COURT: Now, the evidence did indicate that when that policy or regulation came out in maybe *78, as I recall, that there had been no valida tion studies initiated by, or at Port McClellan. I think that is a fact that can be found. Of course, I have found that at least as it relates to the promotional process that there is no indication of discrimination against blacks as an adverse impact matter. MR. SIMMONS: As an adverse impact matter. THE COURT: But, I don't know whether under the regulations one would have to find adverse impact before there would be a requirement to conduct a validation study, and I just did not read the regula tions with that possibility in mind. MR. SIMMONS: I see. Thank you. Your Honor. MS. DURANT: Noting the Court's Burdine analysis with respect to Mr. Bryant, I was wondering if the Court had done a Burdine analysis with respect to the reasons proffered for Mr. Lawler's rejected upgrading? THE COURT: Yes. I intended to say that I credited the explanation given by the CPO officials who testified, and by Lieutenant Colonel Morton, as ----------------------------------------------------------------------------------------------------------------------------------------------*4- 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 to why they had rejected, or why the disposition form requesting reestablishment had been rejected and returned to Weable for resubmission on the basis of then showing justification, and I concluded that that was in fact why they had returned that, because it was a matter that required the establishment or justification as to what additional duties were involved, and whether it was mission essential to have the matter, and that they could not — it may be that had that resubmission taken place, and the natter came back up again, it may be that Colonel Williamson might have made a decision that v/as ultimately adverse to Mr. Lawler, based on a dislike for Mr. Lawler. But, my view is that it never got to that point, that they never came back, that the stated reason for return, namely, to justify, was in fact the real reason, and they just never got back up a second time. MS. DORANT: Okay. Well, is it the correct understanding then that the Court did not take the reasons proffered by Colonel Morton relating to Mr. Lawler*s qualifications and the average grade ceiling and subject those to a Burdine analysis, because the Court ruled on the reaction to the form 52 itself? THE COURT: I would say basically that's correct. I think it is clear in Colonel Morton's 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AS affidavit which you offered, ia consistent, I think, with his courtroom testimony that he had serious misgivings about Mr. Lawler's qualifications and his ability to perform at the higher level. But, my view is that that was not why the matter stopped. It stopped because it required a resubmission with appropriate documentation from Weable, and that never came about. That's the conclusion that I reach. MR. SIMMONS: That's all, Your Honor. END OF PROCEEDINGS 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4-S- c e r t i f i c a t e STATE OF ALABAMA ) JEFFERSON COUNTY ) I do hereby certify that the above and foregoing typewritten matter is a true and correct vtranscript of the stenotype notes of the proceedings herein, taken down by me, and transcribed under my supervision at the time and place hereinbefore noted. I further certify that I am neither of counsel nor of kin to the parties to the action, nor am I in anywise interested in the result of said cause. COURT REPORTER 63 JOSEPH C. LAWLER, etc., - v s . - UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA etc., ))Plaintiffs; ) Eastern Division )) )) No. CV 77-P-1647 / CLIFFORD ALEXANDER, JR., etc.,) Defendant. ) ENTERED ORDER AU3 i Ui9b) Except to the extent certain factual findings are clarified or corrected by the Memorandum of Opinion filed herewith, the Motion of the plaintiffs to open and amend judgment and/or findings of fact is hereby DENIED. This the /O day of August, 1981. 64 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA Eastern Division FI LED / n c i n i & f l i JOSEPH C. LAWLER, etc., )) Plaintiffs; )) -vs.- ))) CLIFFORD ALEXANDER, JR, etc., )) Defendant. ) MEMORANDUM UNITED HA.il L'i... CO'JRT NORTHERN DrSTRICT Zr ALABAMA TAMES E. VANDESa;?:. cleric 0^-0 No. CV 77-P-1647-E AU3 i oiaai OPINION Plaintiffs have moved under Rule 59 "to open and amend judgment and/or findings of fact." They ask that the court receive in evidence after trial "vacancy announcement logs" which they had not offered at trial and revise any findings of fact affected thereby. They also apparently seek to have the court clarify one or two of'its findings of fact. The motion is opposed by Che defendant. At trial plaintiffs had offered a computerized exhibit (PX-36). prepared by their agents, reflecting the race of individuals who had applied, been raced (as ineligible, as qualified, as highly qualified, or as best qualified), and been selected for jobs over a four-year span. They did not offer the selection data contained in the exhibit because two or three of the five per3on3 they had engaged to record information from the files failed to record chose selected. The defendant attacked the accuracy of PX-36, introducing evidence of numerous errors found in other portions of the compilation on the basis of a partial comparison with source documents. (See DX-32) Agreeing with the plaintiffs, the court concluded that the nature and extent of the claimed errors did not preclude consideration of PX-36, but only affected its weight. The defendant asked that, if PX-36 was to be received in part, the selection data also be received, albeit incomplete. Accordingly, PX-36 was received in evidence in its entirety, recognizing the incompleteness of selection data and the claimed inaccuracy of data in other columns. 65 In Cheir trial brief, plaintiffs provided various analyses of information contained in PX-36. These studies were asserted to support inferences of discrimination against blacks at various points in the promotional process, particularly in the rating of applicants, which is an intermediate step in the process. While not directly addressed to the central issue before the court-- whether there was disparate treatment of blacks in the selection of persons from among those who had been referred for promotional consideration, i.e.. from among those rated as "best qualified”— these contentions of the plaintiffs were nevertheless considered by the court for their potential bearing as circumstantial evidence upon the claim of disparate treatment at the point of selection. Through these studies plaintiffs sought to diminish the significance of DX-37 and DX-38, studies conducted by the defendant of the selection of persons referred for consideration, reflecting that blacks had in fact been selected for promotion at a substantially higher rate (39. IX) than whites (31.17.). In its findings and conclusions dictated at the conclusion of the trial, the court considered and assessed the meaning of PX-36 (together with various analyses of that exhibit contained in the plaintiffs' trial brief) and of DX-37 and DX-38. In essence, the court found that the results of the defendant's study had not been undermined by PX-36. In some portions of its critique of PX-36 the court did make reference to the selection data contained in the exhibit, recognizing however that, due to incompleteness arising from errors of plaintiffs' agents, such data could only be used for limited purposes. Plaintiffs in their post-trial motion now before the court under Rule 59 challenge, in effect, the court's use of selection data contained in PX-36. The court was, however, quite cognizant of the deficiencies in such information--a point that may be - 2- 66 ( illustrated by responding to a point made in paragraph 3 of plaintiffs' motion: "In the one instance the Court noted a favorable selection rate of blacks (as compared to whites) rated 'Best Qualified' of 9.4771 to 9.3971. The source of those figures is unclear." This finding of fact was not made by use of the selection data contained in PX-36— indeed, had that information been used, the results would have been (from part I, page 006) that the selection rate of blacks rated best qualified was 3471 (47/138) compared to a rate for whites of 2271 (436/1954) or chat the selection' rate of black applicants was 8.35% (47/563) compared to a rate for whites of 6.71% (436/6490). What was done was to take data from PX-36 (part I, page 006) respecting applicants (W - 6490, B » 563) and best qualified (W - 1954, B - 138) and then project the number of the best qualified shown in PX-36 who would have been expected to have been selected using the more accurate rates of selection of best qualified persons reflected in the defendant's study (W « 721/2313, B » 68/176). By this combination approach the estimate could be made of a selection rate for white applicants of 9.39%, compared to a rate for black applicants of 9.47%. The point was that, even using the evidence which was more favor able to the plaintiffs than that contained in the exhibit they had prepared, there was no showing that the entire process— going from applicants to those selected— resulted in any disadvantage to blacks. In paragraph 3 of the motion the plaintiffs also state: "In a second instance, involving 'non-standard outcomes' (PX 36, part 3, p. 6), the court subtracted the percentages in the 'Selected' column from those in the 'Best*Qualified column to conclude that blacks were adversely affected by non-standard outcomes in only 47% of the cases as compared to 51% for whites." The court has reviewed its findings and discovered no such finding as described by plaintiffs. There were two findings to which the plaintiffs may be referring— the court found that, if the 11 whites - 3- 67 and 6 blacks shown by PX-36 Co have actually been selected in "non-standard outcome” were eliminated, 99 whites would have been rated as qualified but not selected by virtue of 1/the cancellation (13Vof the white applicants) , compared to 11 blacks similarly situated (13% of the black applicants), and that 56 whites would have been rated as "best qualified" but not selected by virtue of the cancellation (84% of the whites so rated), compared to 3 blacks similarly situated (57% of the blacks so raced). The reason for eliminating the persons actually selected in such situations was Chat the plaintiffs were contending that the cancellation of announcements affected blacks at a higher rate than whites but the data in part III included some situations in which the job was actually filled. It is true that the court, in making the "subtractions," utilized selection data in part III of PX-36, for that was the only evidence which could be used for that purpose. Plaintiffs assert that, if the vacancy announcment logs were received now in evidence under Rule 59 and then reviewed, it would reflect that, contrary to what was shown in their computer exhibit, there were actually 19 whites and 3 blacks who were selected in "non-standard outcome" situations. It may be noted that, even if this be so and if the logs reflected no other errors in plaintiffs’ exhibit, 83% of the whites found to be qualified in situations which had "non-standard outcomes" would not have been selected (91/110), as compared to 82% of the blacks similarly situated (14/17). On the other hand, using such figures, reference to the "best qualified" persons not receiving an appointment in such situations would indicate some support, although slight, for the plaintiffs' contention here, indicating a non-selection rate for blacks of 79% (11/14) and for whites of 72% (48/67). The only results favorable to the plaintiffs' contention would not be statistically significant even at the .20 level. 1. Ia Che findings Che percentage was incorrecdy stated as being 85Z. - 4 - 68 What the plaintiffs are attempting to do is to discredit through evidence offered after trial under Rule 59 the exhibit which they had prepared before trial. It is true that they did not rely upon, indeed did not themselves offer, the selection data contained in PX-36, but the stated reason was that such information was, by virtue of errors by their assistants, incom plete. They now say, in effect, that this information was also incorrect, i.e.. that the source documents which they used reflect that only 3 blacks were selected in "non-standard" situations, as contrasted with the 6 shown in their "incomplete" data in PX-36. There is no contention that they did not have at trial the evidence they now are tendering. They are offering the voluminous data contained in the vacancy logs for this court— or perhaps an appellate court— to scrutinize to determine the magnitude and direction of errors in the exhibit which they prepared for trial and which was received in evidence. They have not demonstrated that this evidence would have any material bearing on the critical facts of the case. • The court is firmly convinced that the motion is due to be denied. ' I T M T T P n C T A T r C C? UNITED STATES DISTRICT JUDGE