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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
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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
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) CIVIL ACTION NO.
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) 77-P-1647-E
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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:
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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.
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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
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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_
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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
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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
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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
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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_
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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_
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---------- ---------------------------------------------------------------------------------------------------- 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
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-------------------------------------------------------------------------------------------------------------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
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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'
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------------------------------------------------------- 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
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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!___
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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
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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
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------------------------- — ---------------------------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.
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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
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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.
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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