Thomie v. Dennard Supplemental Brief of Appellees

    IN THE
UNITED STATES 

COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

NO. 81-770?

JOSEPH C. LAWLER, et al.,
PIaintiffs-Appel1 ants

vs.
CLIFFORD ALEXANDER, JR.,

Defendant-Appellee

Appeal from the United States District Court 
for the Northern District of Alabama

Processing Priority: None

BRIEF OF APPELLEE

PETER B. LOEWENBERG 
Chief, Civilian Personnel

FRANK W. DONALDSON 
United States Attorney

Litigation
THOMAS J. FEENEY 
RICHARD W. WRIGHT 
Civilian Personnel

ANN C. ROBERTSON 
Assistant United States

Advocate General 
Dept, of the Army 
Washington, D.C. 20310

Lit igat ion 
Office of the Judge

Attorney
200 Federal Building 
1800 Fifth Avenue North 
Birmingham, Alabama 35203

Attorneys for Defendant-Appellee



STATEMENT REGARDING PREFERENCE 
Counsel for Defendant-Appellee do not claim this 

case is entitled to preference in processing and dispo­
sition.

STATEMENT REGARDING ORAL ARGUMENT 
Defendant-Appe1lee does not believe that oral argu­

ment will facilitate resolution of the appeal. This is 
a simple Title VII case in which the District Court 
properly ruled that plaintiff's statistical and nonsta— 
tistical evidence failed to prove disparate treatment/ 
and that the named plaintiffs had failed to establish 
their individual claims. Oral argument will not add to 
the conclusions reached by the district court.

i 1



TABLE OF CONTENTS

Page
Statement of the Issues------------------------ iv
Statement of the Case-------------------------- 2
Statement of the Facts------------------------- 5
Summary of Argument------------------------------- 13
Argument------------------------------------------ 15
Conclusion---------------------------------------- 50
Certificate of Service---------------------------- 51

TABLE OF AUTHORITIES
Brown v. GSA, 425 U.S. 861.----------------------  2
Crawford v. Western Electric, 614 F.2d 1300,
1304 (5th Cir. 1 980)------------------------------ 16
Croker v. Boeing, 662 F.2d 975 (3rd Cir. 1981) 49
Danner v. U. S. Civil Service Commission, 635 F .2d 
427 (5th Cir. 1981)---------------------  23
Daves v. Payless Cashway, 27 FEP Cases 706
(5th Cir. 1981)----------------------------------- 19
Dickerson v. United States Steel Corp., 582 F.2d 
827 (3rd Cir. 1 978)------------------------------- 49
East Texas Motor Freight v. Rodriguez, 431 U.S.
395, 403 ( 1 976)-----------------------------------  15
EEOC v. United Virginia Bank, 615 F.2d 147 (4th 
Clr7 1980)----------------------------------------  27
Falcon v. General Telephone Co., 626 F.2d 369,
376 (5th Cir. 1980), pet. for cert, granted,
50 L.S. 3459 ( 1981 )------------------------------- 16
Franks v. Kroger Co., 25 FEP Cases 1750, 1755
(6th Cir. 1981)----------------------------------- 16
Friend v. Leidinger, 588 F.2d 61 (4th Cir. 1978)—  29
Furnco Construction Corp., v. Waters, 438 U.S.
580, 98 S.Ct. 2943 ( 1 978)------------------------- 33

ii



Hazelwood School District v. United States, 433
U.S. 299, 307 ( 1977)------------------------------ 22,28
Hester v. Southern Railway, 497 F.2d 1374, 1379, 
n . 6 (5th Cir. 1 976)----- ■------------------------ 24,28
McDonnell Douglas v. Green, 411 U.S. 792 ( 1973)-- 20,43
McDonough v. M/V Royal Street, 608 F.2d 203,
204 ( 51 h C i r. 1 979)------------------------------- 16
Movement for Equal Opportunity v. General Motors,
622 F. 2d 1 235 (7th Cir. 1 980)--------------------- 23,27
Piva v. Xerox Corp., 26 FEP Cases 1267 (9th Cir.
1 981 )--------------------------------------------- 22,50
Rivera v. City of Wichita Falls, 665 F.2d 531 (5th
Cir. 1 982)---------------------------------------- 23,27,50
Sessions v. Rusk State Hospital, 648 F.2d 1066
(5th Cir. 1 981 )-----------------------------------34
Smith v. Troyan, 520 F.2d 492 (6th Cir. 1975),
cert. denied, 426 U.S. 934------------------------ 29
Ste Marie v. Eastern Railroad Association, 650 
F . 2d 39 5 (2d Cir. 1 981)--------- ----------------- 27,50
Texas Department of Community Affairs v. Burdine,
101 S.Ct. 1 089 ( 1 981 )----------------------------- 22,34,35

37,38,43
United Air Lines v. Evans, 431 U.S. 553, 558 
( 1977)--------------------------------------------  22
Wilkins v. University of Houston, 27 FEP Cases 1199
(5th Cir. 1 981 )----------------------------------- 24,26,50
Williams v. Owens-Illinois, Inc., 27 FEP Cases 1273 
(9th Cir. 1 982)----------------------------------- 24,29
Other References:
5 U.S.C. Section 3301 et_ sea.--------------------- 6
5 U.S.C. Section 5112(b)-------------------------- 10
42 U.S.C. Section 2000e-16------------------------ 2
Civil Rights Act of 1964, Title VII--------------  2
Executive Order No. 11521, reprinted at 5 U.S.C.
Section 3302--------------------------------------  6
Federal Rules of Appellate Procedure 10(b)(2)-------16
Federal Rules of Civil Procedure 23--------------- 15

iii



STATEMENT OF THE ISSUES

I.
WHETHER THE DISTRICT COURT PROPERLY RULED 
THAT PLAINTIFFS HAD FAILED TO ESTABLISH A 
PATTERN OR PRACTICE OF DISCRIMINATION IN 
SELECTIONS FOR PROMOTION AT FORT McCLEL- 
LAN DURING THE PERIOD NOVEMBER 3, 1976
THROUGH OCTOBER 1, 1980.

II .
WHETHER THE DISTRICT COURT PROPERLY RULED 
THAT THE NAMED PLAINTIFFS, AND INDIVIDUAL 
CLASS MEMBERS, HAD NOT BEEN DISCRMINA- 
TORILY DENIED PROMOTIONS DURING THE 
PERIOD NOVEMBER 3, 1976 THROUGH OCTOBER
1, 1980.

Ill.
WHETHER THERE IS AN INDEPENDENT CAUSE OF 
ACTION UNDER SECTION 719 FOR FAILURE TO A PH FRF TO AN ^FFIRMATIVF APTTfW- PLAN IF 
SAID PLAN GOES BEYOND THE STATUTORY MAN­
DATE OF TITLE VII.

IV.
WHETHER IN EACH INSTANCE THE DEFENDANT 
MET THE REQUIRED BURDEN OF REBUTTING THE 
INDIVIDUAL CLAIMS OF PLAINTIFF CLASS 
MEMBERS.



IN THE
UNITED STATES 

COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

NO. 81-7702

JOSEPH C. LAWLER, et al.,
Plaint iffs-Appellants

vs.
CLIFFORD ALEXANDER, JR.,

Defendant-Appellee

Appeal from the United States District Court 
for the Northern District of Alabama

BRIEF OF APPELLEE



STATEMENT OF THE CASE
The present action was filed on December 20, 1977, 

charging a violation of Title VII of the Civil Rights 
Act of 1964, as amended by the Equal Employment Oppor­
tunity Act of 1972, 42 U.S.C. Section 2000e-16. The 
jurisdiction of the district court was properly invoked 
under 42 U.S.C. Section 2000e-16. Brown v. GSA, 425 
U.S. 861.

The complaint arose when plaintiff Joseph C. 
Lawler, the only class representative, filed an adminis­
trative complaint with the Department of the Army which 
claimed that his second-level supervisors had discrimi­
nated against him by failing to establish and promote 
him to a new GS-11 position in the Safety Office at Fort 
McClellan.1 After exhausting his administrative 
remedies, plaintiff, joined by Mr. Timothy Goggins and 
Mr. Charlie Bryant (both at the time Fort McClellan 
employees), filed a judicial complaint on December 20, 
1977. The complaint alleged that Fort McClellan, 
Alabama, had engaged in a "pattern and practice" of 
discrimination against blacks in its promotion policies. 
Although Mr. Lawler's judicial complaint alleged that it 
was filed on behalf of a class of black employees, 
plaintiffs at no time moved for certification of the

1/ Mr. Lawler did not have any claim that he had been 
Unfairly rated or ranked as part of the promotion pro­
cess. His claim at the time was that a second-line 
supervisor, a Colonel Morton, rejected on racial grounds
a request from Mr. Lawler's first line supervisor that Mr. Lawler's GS-9 position be reevaluated upwards to the
GS-11 level.

2



class. On the court's own motion, a hearing on class 
certification was held on December 20, 1978. At its 
conclusion the court dismissed plaintiffs Bryant and 
Goggins as class representatives (but permitted them to 
proceed as named class members), and preliminarily cer- 
tified a class. At this time, defendant orally moved
for decertification, or, in the alternative, for a re­
definition of the class. In response to the court's 
direction, defendant subsequently filed a written
motion, with supporting memorandum on January 4, 1979.

3Defendant's motion was unopposed by plaintiffs. On

2/ Plaintiffs, in violation of FRAP 10(b)(2), have 
apparently not made either the transcript of this hear­
ing or the preliminary certification decision a part of 
the record before this Court.
3/ Plaintiffs, at page 2, n.2 of their brief, take 
Tssue with the arguments they allege were made by defen­
dants in the motion. Defendant initially notes that the 
time to make such arguments was before the district 
court when Defendant's motion was being considered, and 
not some three years later, on appeal after the case has 
been tried. Moreover, the implication that defendant 
misled the district court about the definition of promo­
tion is totally untrue, and results from plaintiff's 
gross misrepresentation of the arguments presented in 
the motion. Defendant correctly defined promotion in 
the civil service sense at page 6 of their memorandum as 
including "transfer to a job at a higher grade or to a 
job with a potential for advancement." Defendant then 
presented further argument, based on the issues presen­
ted by Mr. Lawler, as to why the class should be limited 
to those promotion candidates actually referred to the 
selecting official. At no time while the case was pend­
ing before the district court did plaintiffs take issue 
with defendant's arguments. In addition, during the two 
and one-half years between the court's decision on cer­
tification and trial, plaintiff's never presented a 
motion to the district court requesting that the class 
be redefined or broadened. The District Court's initial 
decision clearly reflects that it was aware that the 
promotion process included more than the claims present­
ed by the class. See Lower Court Findings of Fact at 
pp. 4-5.

3



March 6, 1979, the court redefined the class by limiting 
it to all appropriated fund employees who, on or after 
November 3, 1976:

have failed to be selected for a position 
which they were referred,...have been 
misassigned by their supervisor... or have 
been unsuccessful in their efforts to 
obtain a requested reclassification of 
their jobs.

ft (R. p. 134).
v V. \ \ plaintiffs never moved for redefinition or recertifica-CV“ J*f  ---

tion of the class.iTA
■f * After numerous requests for continuances by 

plaintiffs, trial of the action took place from June 29 
through July 7, 1981. At trial, plaintiffs introduced 
statistical and non-statistical evidence in an attempt 
to prove that Fort McClellan engaged in disparate treat­
ment of its black employees in selecting individuals for 
promotion. At the conclusion of the trial, the court 
ruled that plaintiffs had failed to establish any of the 
class claims, and that none of the individual witnesses 
testifying had been denied a promotion because of racial 
discrimination. Accordingly, judgment was entered in 
favor of defendant on July 8, 1981. Plaintiff's post- 
trial motion to re-open and amend the judgment was 
denied on August 10, 1981, and the present appeal was 
filed on August 27, 1981.

4/ Although plaintiffs now challenge the class certifi­
cation as being too narrow, as late as June 12, 1981, 
plaintiffs' attorney represented to the lower court, 
some three and one half years after the filing of the 
case, that they were having difficulty being prepared 
for trial even with respect to the more limited class 
certified by the court. (R. 44, 45).

4



STATEMENT OF THE FACTS
Fort McClellan is a United States Army installation 

primarily engaged in the training of soldiers, and is 
located outside Anniston, Alabama. At the end of fiscal 
year 1975, the post employed approximately 1071 employ­
ees, of whom 75 (7.0%) were black. See Plaintiffs' 
Exhibit (P.X.) 1. Over the next several years the level 
of civilian employment fluctuated considerably from a 
high of 1437 employees in 1976 to a low of 1264 employ­
ees in 1979. At the end of 1980, the post employed 1343 
civilians -- a net increase of 25.4% over the five year 
period. However, black employment increased much more 
dramatically. Black employee strength increased some 
72% over the five year period, from 75 to 129, and black 
employees accounted for 20% of the total employment gain 
over the same time period (54/272). Contrary to plain­
tiffs' assertions, the increase in black strength 
occurred throughout the grade structure at Fort 
McClellan, including wage board supervisory positions. 
By 1980, blacks constituted 11.8% of the wage leader 
positions (2/17) and approximately 8% of all wage board 
supervisory positions (4/51). See P.X. 1, Report No. 
SAOSA-191, 4th Quarter, FY 1980. Fort McClellan had 
also engaged in extremely aggressive recruitment and 
hiring under the Vietnam Veteran's Readjustment Program, 
and other similar programs, in order to provide further

5



employment opportunities to minorities.^ See Testi­
mony of David Parker. (Trial Transcript 1 239-49) (here­
inafter T.T.). Use of these programs resulted in sub­
stantial numbers of new hires, of which approximately 
50% or more were black.

Of somewhat more relevance to the present lawsuit, 
supervisors at Fort McClellan selected 1109 employees 
for promotion during the period November 3, 1975 - 
November 30, 1980. See Defendant's Exhibit (D.X.) 37 
and 38. These selections were made from referral lists 
which contained a total of 3491 candidates. 289 or 8.3% 
of the referred candidates were black, while 3202 were 
white. 113 or 39.1% of the black candidates were 
selected by supervisors for promotion. In contrast to 
this, 996, or only 31.1% of the white candidates were 
selected. Id. See Opinion Below, p. 14-15. Thus, 
among the class of employees represented by plaintiffs,

5/ Normally, an agency which hires a new Civil Service 
employee (i.e. one who has had no previous employment 
with the federal government) must select that employee 
from a "referral register" prepared by the Office of 
Personnel Management. See 5 U.S.C. Section 3301 et seq. 
The agency generally has no control over who appears on 
that list. However, certain statutes authorize agencies 
to hire new employees directly, without the necessity of 
going through OPM. These direct appointments are nor­
mally limited to the lower Civil Service grades. For 
example, the Vietnam Veteran's Readjustment Program, 
which Fort McClellan used extensively, allows an agency 
to noncompetitively appoint qualified veterans of the 
Vietnam era to certain federal positions. Such appoint­
ments were initially limited to position at the GS-5 
level or below. See Ex. Order No. 11521, reprinted at 5 
U.S.C.A. Section 3302 note. Congress later expanded thebelow the GS-7 

at black employ^program 
1evel.

6



a black class member had nearly a four in ten chance of 
being promoted while a similarly situated white employ­
ee's chances were only about three in ten. Class members 
were being selected for promotion at a higher, not a 
lower rate, than similarly situated white employees. As 
the trial judge noted, these figures are true, not only 
for the five year period taken as a whole, but also for 
various subsections of that period taken individually. 
Id. The results may be summarized as follows:

Selection Rates - Class Members

Black

White

Total

Referred 
Appli cants

Selected
Applicants

Percent of
Referrals
Selected

289 113
8.3% 10.2% 39.1%

3202 996
91.7% 89.8% 31.1%

3491 1 109
100% 100%

Source: D.X. 37,38.

Although plaintiffs seek to make a broader attack 
on the promotion system, when one looks at the entire 
promotion process, (qualified applicants to selectees), 
instead of the issues certified for trial, similar 
results ensue. As was pointed out above, out of 1109 
promotions, 113 or 10.2% went to blacks. According to

7



plaintiffs there were, during a similar time period, 
3735 applicants for promotion who were at least mini­
mally qualified for appointment to the position for 
which they applied. Source - P.X. 36, part 1, p. 6. Of 
these 276, or 7.4% were black.6 It can thus readily 
be seen that, far from disfavoring blacks, defendant's 
promotion process actually treats a qualified black 
applicant on a statistically more favorable basis than a 
similarly situated white applicant. And, as was 
recognized below, the statistical disparity in favor of 
blacks is greatest among the class of blacks represented 
by the named plaintiff, Mr. Lawler —  those who are 
actually considered by the selecting supervisor. 
Combining plaintiff's statistics, which show the 
percentage of black applicants and qualified black 
applicants, with defendant's more complete 
statistics7, which show the percentage of blacks in 
the referral pool as well as the percentage of blacks 
among those selected, shows the statistical disparity 
favoring blacks:

6/ The statistics proffered by plaintiffs in an attempt 
to bolster their case, ignore the most crucial —  and 
appropriate —  part of the data —  the actual and rela­
tive numbers of blacks selected for promotion, as com­
pared to the availability of blacks in the relevant 
pool, i.e. blacks listed on referral registers.
7/ As the court noted errors in the preparation of P.X. 
36 made much of their selection data, as well as other 
entries, incomplete. Defendant's statistics, although 
limited to referral and selection data, were substan­
tially more complete in those areas, and therefore pro­
vide a better indication of the percentage of blacks in 
those categories.

8



Rates of Promotion -- Applicants to Selectees

Black

White

Total

Source: P.X. 36; D.X. 37,38. During this time, blacks 
constituted between 7.0% and 9.5% of the Fort Bragg 
workforce.

Applicants
Qualified
Applicants

Referred 
Applicants

Selected
Applicants

563 276 289 113
8.0% 7.4% 8.3% 10.2%

6490 3459 3202 996
92.0% 92.6% 91.7% 89.8%

7053 3735 3491 1109
100% 1 00% 100% 100%

THE PROMOTION PROCESS
The promotion process at Fort McClellan begins when 

a position becomes vacant or is newly established. 
Before a position is initially filled, a position or job 
description is prepared, and the position is "classi­
fied" under standards prescribed by the Office of Per­
sonnel Management. A position description describes all 
the major duties of the position and provides an objec­
tive record of what the incumbent of the position is 
expected to do. Once the position description is estab­
lished, it is classified to a particular job series and 
grade level using OPM handbooks X—118 and X—118C, which

9



contain classification standards for all federal Civil 
Service jobs.®

For positions which are to be filled under the Fort 
McClellan Merit Promotion program, application for pro­
motion are processed in accordance with Fort McClellan 
Regulation 690-6 (P.X. 26), which incorporates the Merit 
Promotion Requirements established by 5 U.S.C. Section 
3301 et secj. and FPM 335.9

Fort McClellan Regulation 690-6 incorporates and 
specifies a set of objective criteria which guide staff­
ing specialists and rating and ranking panels when they 
evaluate and rank candidates for promotion. See P. X. 
26, paras. 8-15, and Appendix C. The ranking process 
utilizes criteria such as demonstrated experience, edu­
cation, and performance appraisals to determine the

8/ Although classification of jobs is initially done by 
classification specialists within each federal agency, 
OPM retains ultimate authority to determine the proper 
classification of any position. Any employee who feels 
that his position is not properly classified may file a 
classification appeal and request OPM to determine the 
proper classification of his/her position. See 5 U.S.C. 
Section 5112(b).
9/ Plaintiffs attempt to make 
Fort McClellan Regulation 690-6 
since the promulgation of the 
Selection Procedures, and point

much of the fact that 
has not been amended 
Uniform Guidelines on 
to the portions of the

used.
. „ hat an

tion of

V .jyj

Guidelines which require validation when a selection 
Procedure which has an adverse impact on minorities is 

In response, defendant would jnerelv point out 
adverse impact#* mu.1.L be ^hown before' any valida- 
selection procedures is necessary. As the evi­

dence presented below shows, Fort McClellan procedures 
have no such adverse impact on the class represented by 
plaintiffs or upon the class of minimally qualified 
black applicants. Indeed, if anything, 
true. See pp. 5-8, supra.

the converse is



the "best qualified" candidates who are then referred to 
the selecting o f f i c i a l . s e e  id.

The selecting supervisor then selects from that 
list and records his selection on the DA Form 2600. As 
was pointed out earlier, black employees are selected 
for promotion from the referral registers at a rate 
considerably higher than for similarly situated white 
employees.

Plaintiffs have also pointed to the Upward Mobility 
Program (plaintiff's brief, p. 18) and the so-called 
"non-standard outcomes" (_I(3. at 14-15) as areas in which 
blacks have suffered disparate treatment. Once again, 
as in other areas outlined above, plaintiff's statements 
are simply unsupported by the record. Although plain­
tiffs correctly describe the purpose behind the Upward 
Mobility program at page 18 of their brief, their asser- 
t ion___yia4— blanks— underrepresented is not supported. 
In addition to the promotion data outlined above, even 
plaintiffs' own expert acknowledged that plaintiffs' 
evidence showed no significant underrepresentation of 
blacks in the Upward Mobility Program. See T.T., 1129.

10/ The district court, in determining the scope of the 
class represented by plaintiffs correctly recognized 
that a number of standards utilized in the "prereferral" 
processing of candidates for promotion are not controll­
ed by Fort McClellan. Included in these are, for exam­
ple, Position Classification Standards and Minimum Qua­
lifications Standards, for positions, both established 
by the Office of Personnel Management. In addition, for 
a number of positions, referral registers are not pre­
pared under the Fort McClellan Merit Pormotion Plan, but 
under various other programs. See, e.g., P.X. 26 App.B. 
The one common item in these promotions is that a 
selecting supervisor at Fort McClellan makes his selec­tion for promotion from a referral register drawn up 
under the appropriate promotion program.



With respect to the "non-standard outcomes," plain­
tiffs cite a series of statistics drawn from P.X. 36 
and conclude that blacks were adversely affected when 
advertised vacancies were not filled under the Merit 
Promotion Plan because the vacancy had been cancelled or 
abolished. However, the statistics cited by plaintiff 
at pp. 14-15 of his brief to show that blacks have been 
adversely affected by the cancellation of promotion 
announcements are simply not accurate. See Lower Court 
Findings, pp. 10-12; Memorandum of Opinion, R. pp. 374, 
376-77. As the district court pointed out in its find­
ings, the data proferred by plaintiffs was inaccurate, 
since it contained numerous instances where the action 
had not been canceled, but instead a selection had been 
made. When these instances are eliminated and the 
remaining data reviewed, one sees results similar to 
those found in promotions. Far from being adversely 
affected, from a statistical standpoint, black employees 
are favorably or more favorably treated than similarly 
situated white employees. Id.

in summary, during the time period relevant to this 
suit, Defendant ran a promotion system which, from a 
statistical standpoint, favored members of the class 
represented by Mr. Lawler in their quest for promotion. 
Likewise, a review of the entire promotion process also 
shows that a black applicant for promotion had a better, 
not a worse chance, of receiving a promotion than a 
similarly situated white applicant.

12



SUMMARY OF ARGUMENT
Plaintiffs failed to establish a prima facie case 

with respect to their claim that the class of black 
employees which they represent had been subject to dis­
parate treatment in promotion decisions on the basis of 
their race. Although plaintiffs introduced a series of 
"static’’ or "snapshop" work force comparisons, the sta­
tistical evidence they introduced was at best equivocal 
and gave rise to no inference of discrimination in pro­
motion decisions during any relevant time periods. 
Plaintiffs' evidence did not show any valid comparison 
between the percentage of blacks in the relevant labor 
pools from which promotions were made and the promotion 
decisions actually made during the relevant time 
period.

To the extent the evidence gave rise to any infer­
ence of discrimination, that inference was conclusively 
dispelled by the actual applicant flow statistics which 
showed the actual decisions made on promotion applica­
tions from the class. Those statistics showed that 
defendant's promotion system actually favors the promo­
tion of a class member over a similarly situated white. 
The lower court's findings on all subsidiary factual 
issues are supported by evidence and are conclusive. 
Those findings lead inexorably to the ultimate judgment 
in favor of defendants.

13



Plaintiffs' argument that failure to comply with an 
affirmative action plan gives rise to an independent 
cause of action or is in and of itself proof of discrim­
ination in violation of Title VII is without merit.

As to each individual claimant, the trial court 
properly held that no individual had proven by a prepon­
derance of the evidence that he or she had been ille­
gally discriminated against in the area of promotion or 
classification.

14



f

ARGUMENT
I.

THE DISTRICT'S COURT CLASS CERTIFICATION WAS 
NOT AN ABUSE OF DISCRETION.

The class represented by plaintiff Joseph Lawler 
was defined, by the district court, on March 6, 1979, to 
include black appropriated fund employees at Fort 
McClellan who:

1) had been refused selection by a super­
visory from a referral list which they had 
appeared,
2) had been misassigned by their supervisorys 
so that they were performing higher graded 
duties without being promoted to the higher 
grade, or
3) had been unsuccessful in 
a requested reclassification

efforts to obtain 
of their jobs.11

The final certification reflects a full consideration of 
the requirements of the federal rules and an appropriate 
judgment by the court as to the scope of the class that 
Mr. Lawler and his attorneys could adequately represent.

It is well established that "a class representative 
must be part of the class and 'possess the same interest 
and suffer the same injury' as the class members" in 
order to satisfy F.R.Civ. p. 23. See East Texas Motor 
Freight v. Rodriguez, 431 U. S. 395, 403 (1976). More­
over, the district court's determination of the proper

11/ At the December 20, 1978 hearing, the court
dTsmissed the other named plaintiffs, Mr. Goggins, and 
Mr. Bryant as class representatives. See Clerk's Docket 
Sheet, entry for December 20, 1978. Plaintiffs have not 
challenged this order.

15



scope of the class is final, and will not be set aside 
absent a clear abuse of discretion. The mere fact that 
an employee is a member of the same race as other 
employees whom he wishes to represent"... is not enough 
in itself to require a finding...that their representa­
tion was adequate or that their claims were typical of 
the class." Crawford v. Western Electric, 614 F. 2d 
1300, 1304 (5th Cir. 1980).

The fact that the court may not certify a class as 
broad as that urged in the original complaint does not 
constitute an abuse of discretion. See Falcon v. Gen- 
eral Telephone Co. , 626 F.2d 369, 376 (5th Cir. 1980), 
pet. for cert. granted, 50 L.W. 3459 ( 1 981 ); Fr anks v. 
Kroger Co., 25 FEP Cases 1750, 1755 (6th Cir. 1981). 
Under these standards, the certification determined by 
the district court fell well within its discretion and 
should not be disturbed.

Initially, it should be noted that plaintiffs have 
failed to provide this Court with a transcript of the 
December 20, 1978 hearing which formed the basis of the 
Court's certification order. See Federal Rules of 
Appellate Procedure 10(b)(2). McDonough v. M/V Royal 
Street, 608 F.2d 203, 204 (5th Cir. 1979). That fact 
alone mandates that plaintiffs attack on the adequacy of 
the class certification order should fail. Id. See 
Crawford v. Western Electric Co., 614 F.2d 1300, 1304-05 
(5th Cir. 1980)(failure of plaintiff to certify trans­
cript of class certification hearing as part of the

16



appellate record fatal to an attack on the certification 
determination).

In addition, although plaintiffs' counsel now 
claims that the lower court abused its discretion in 
excluding "prereferral" applicants for promotion, the 
court's discretion clearly extends to a determination 
that the typicality of Mr. Lawler's claim and his capa­
bility as a class representative would not extend to so 
broad a class. Mr. Lawler, the class representative, 
presented no claim of discriminatory "ranking and 
rating" in the prereferral process under Fort 
McClellan's Merit Promotion Plan. See Lower Court Find- 
ings of Fact, pp. 36-38. Indeed, Mr. Lawler's claim 
would have placed him in conflict with any black employ­
ee who claimed that positions should be filled under 
that plan. Mr. Lawler claimed the right to have his GS- 
9 position upgraded to GS-11 without competition under 
the Merit Promotion Plan, and that a second line super­
visor, Colonel Morton, refused to select Mr.Lawler for 
such upgrading because of his race. In view of Mr. 
Lawler's claim, which included an assertion that the 
rating and ranking process did not apply to his upgrad­
ing, the Court was well within its discretion in certi­
fying a class which included only those similar situa­
tions where a supervisor failed to select an available 
black employee for upgrading:

17



1) Where the employee has been performing 
duties at a higher grade level without receiving the
higher grade (Mr. Lawler's claim),

2) Where a black employee has not received a 
requested reclassification of his position, and

3) Where a supervisor fails to select a black 
employee who has been referred to him for promotion.

Moreover, during the more than two year period 
between the court's certification order and the final 
judgment below, plaintiff never moved for a broader 
redefinition of the class, and indeed, was having some 
difficulty meeting obligations to even the more limited 
class which the court determined he could adequately 
represent. Plaintiff never moved for class certifica­
tion -- it was only upon the court's own motion that a 
class certification hearing was held and any class cer­
tified at all. Moreover, on no less than five different 
occasions, plaintiffs and their attorneys failed to 
comply with district court orders regulating the conduct 
of the litigation, including filing proof of notifica­
tion to the class members. See Defendant's Motions to 
Dismiss, filed March 31, 1981 and May 21, 1981. R. pp. 
248-51, 279-81; T.T. 19-23.

Plaintiffs claim that they "challenged" the court's 
certification because they filed a motion to compel 
discovery in March 1981, some two years after the class 
had been certified, notice to the class had been sent,

18



and very nearly on the eve of trial.12 such a discovery 
motion is in no way comparable to a motion requesting a 
broad redefinition of the class, and would provide no 
basis for the Court to reconsider its earlier certifica­
tion. Even assuming, arguendo, that the issue had been 
properly raised at the time, the court would have been 
fully justified in refusing to certify the larger class, 
which would have significantly broadened the scope of 
the litigation (see Lower Court Findings of Fact at p. 
5) and unfairly prejudiced defendant in preparing his 
defense in the relatively short time remaining before 
trial. See Daves v. Payless Cashway, 27 FEP Cases 706 
(5th Cir. 1981)(no abuse of discretion is denying leave 
to amend complaint on the day of trial).

The record also reflects that, as late as two weeks 
before trial, plaintiffs were indicating to the lower 
court that they were even having difficulty in timely 
preparing their case with respect to the more limited 
class issues which the court had certified for trial. 
See Plaintiffs' Motion for Continuance and Request for 
Reconsideration, R. pp. 352-60. For plaintiffs to now 
suggest that the Court should have, sua sponte, signifi­
cantly broadened the scope of both the class and the 
the issues presented for litigation, at a time when 
plaintiffs' counsel were professing their difficulty i

12/ Trial was originally scheduled in December 1980, 
was reset several times because of various deficien­

cies in plaintiffs’ pretrial preparations. See T.T. 19- 
23.

19



adequately presenting a more limited case is an exercise 
in logic which defendants find indecipherable.^

The record also shows that the court did not limit
J

its findings to a determination that the class of blacks 
represented by Mr. Lawler had suffered no discrimina­
tion. In addition, the court considered the effect of 
the entire promotion process and found that far from 
being adversely affected, black applicatns who went 
through the entire promotion process received at least 
as favorable a treatment as white applicants.^ See 
Lower Court Findings of Fact, pp. 7-12; Memorandum of 
Opinion, R. pp. 374-78.

In view of these findings, which compel a conclu­
sion that both the class Mr. Lawler represents and the 
class he now claims he should have been able to repre­
sent suffered no discrimination, it would have been an 
exercise in futility for the court to certify a larger 
class, simply as a prelude to ruling against it.

Plaintiffs' final claim in this argument is that 
"the court restricted its review of the evidence as well 
as its findings, to the limited issue of discrimination

13/ Indeed, the litany of shortcomings which the court 
found in plaintiffs' compliance with pre-trial proceed­
ings would make any court wonder whether plaintiffs and 
their attorneys could adequately represent the interests 
of the larger class which they ask this Court to place 
in their hands. See T.T. 19-23.
14/ If one looks only at qualified applicants for pro­
motion, as required under McDonnell Douglas v. Gr een, 
411 U.S. 792 ( 1 973), there Is a marked statistical dis­
parity favoring black applicants.

20



against only those blacks who were referred for selec­
tion, Plaintiff's Brief, p. 21, and thus "foreclosed 
plaintiffs from proving the broad based policies of 
discrimination in promotion." Id. at 23.

Plaintiffs' assertions in this regard are directly 
contradicted by the record and are completely false. 
Far from restricting plaintiffs' presentation, the dis­
trict court accepted and considered whatever evidence 
plaintiffs offered with respect to any type of discrimi­
nation, both inside and outside the relevant time per­
iod, and with respect to other issues of discriminatory 
conduct not directly related to the issues certified for 
trial. See Lower Court Findings of Fact, p. 5. In 
addition, the court made specific findings with respect 
to the entire Fort McClellan Promotion System and its 
effect on the promotional opportunities of blacks. See 
Id. at 9-10; Memorandum of Opinion, R. pp. 374-78. As 
the court noted, when a black employee at Fort McClellan 
submitted an application for promotion, his chances for 
selection, even using the statistics most favorable to 
plaintiffs, were better than a similarly situated white 
employee. Id. Any deficiencies in plaintiffs presenta­
tion can be laid only at their own door. Plaintiffs had 
a full opportunity to develop and present evidence and 
cannot now be allowed to make baseless assertions that 
they were not able to present their case.

In summary, the district court was well within its 
discretion in certifying the class that it did. Plain­
tiffs have shown no abuse of that discretion and conse­
quently the certification order should be upheld.

21



II.

PLAINTIFFS HAVE FAILED TO ESTABLISH A 
PRIMA FACIE CASE WITH RESPECT TO PRO­
MOTIONS.

A. Burden of Proof
Plaintiffs alleged that the class of black employ­

ees represented by Mr. Lawler suffered from a "pattern 
and practice" of disparate treatment in promotion deci­
sions at Fort McClellan. In such a case the burden is 
upon the plaintiffs to establish "...that racial dis­
crimination was the employer's standard operating pro­
cedure -- the regular rather than the unusual practice." 
Hazelwood School District v. United States, 433 U.S. 
299, 307 (1977). Moreover, where the plaintiff alleges, 
as in the present case, that the discrimination suffered 
is the result of disparate treatment, proof of discrim­
inatory intent is an essential ingredient of his case. 
Piva v. Xerox Corp., 26 FEP Cases 1267 (9th Cir. 1981). 
In addition, the ultimate burden of persuasion remains 
at all times upon the plaintiffs. Texas Department of 
Community Affairs v. Burd ine, 101 S.Ct. 1089 ( 1 981 ). 
Plaintiff must also prove that discrimination presently 
exists during the relevant time frame, which in this 
case, includes the period dating from November 3, 1976 
through October 1, 1980. Assertions that an individual 
was subjected to discrimination sometime before that 
period are insufficient to state a claim, absent proof 
of present discrimination. United Air Lines v. Evans, 
431 U.S. 553, 558 (1977).

22



Movement for Equal Opportunity v. General Motors, 622
F.2d 1235 (7th Cir. 1980). Further, although the ulti­
mate finding of no discrimination is subject to review 
at the appellate level, the district court's findings of 
subsidiary fact are conclusive unless clearly erroneous. 
See, e.g., Rivera v. City of Wichita Falls, 665 F.2d 531 
(5th Cir. 1982); Danner v. Civil Service Commis­
sion, 635 F. 2d 427 (5th Cir. 1981). In the present 
case, the District Court held that the operation of the 
Merit Promotion System at Fort McClellan does not disad­
vantage the class represented by Mr. Lawler, or indeed, 
any other class of blacks, and that consequently, no 
pattern or practice of discrimination was shown. These 
findings are fully supported by the record and must be 
upheld by this Court.

B. Plaintiffs Did Not Establish Discrimination 
in Fort McClellan's Promotion System.

Plaintiffs, in asserting that they have established 
a "clear pattern and practice of racially discriminatory 
treatment" rely almost exclusively on a series of "snap­
shot" statistics and conclusory allegations which find 
no support in the proceedings below. As the lower court 
found, the statistical presentation in plaintiffs' brief 
ignores the evidence which is dispositive of the case 
that defendant's promotion system favors, not disfavors 
black applicants for promotion, and the statistical 
disparity in favor of blacks is greatest among the class 
represented by Mr. Lawler.

23



Plaintiffs' analysis of the "snapshot" statistics 
in his brief suffers from the major shortcomings and 
unfounded assumptions which have caused the courts to 
look toward other more accurate means, such as applicant 
flow data, to determine the impact of hiring, or, in 
this case, promotion decisions. See, e.g ., Will jams v. 
Owens-Illinois, Inc., 27 FEP 1273 (9th Cir. 1982). 
Significantly absent from plaintiffs' analysis is any 
demonstrated connection between the statistical dispari­
ties he claims must exist and any promotion decisions 
made at Fort McClellan during the relevant time period. 
Thus, while plaintiff asserts that the proportion of 
blacks at Fort McClellan has been "substantially below" 
that in the local workforce, he ignores the fact that, 
where internal promotions are concerned, the relevant 
applicant pool is found within the employer's work force 
and not in general population statistics. See Hester v. 
Southern Railway, 497 F.2d 1374, 1379, n. 6 (5th Cir. 
1976). In addition, during the six year period, black 
employment increased 72% and blacks constituted twenty 
percent of the net increase in employment. This figure 
is substantially in excess of the figure cited for the 
local workforce by plaintiff. See Wilkins v. University 
of Houston, 27 FEP Cases 1199 (5th Cir. 1981 ) (statis­
tical study will not support discrimination claim where 
no expert laid foundation for validity of model used or 
conclusions).

24



Similarly, plaintiffs' claim that blacks are "over­
represented" at lower levels and "grossly underrepre­
sented at higher levels^ ignores the fact that the 
promotion decisions at Ft. McClellan were advancing 
blacks at all grade levels, including the higher grades 
and supervisory positions.

The unreliability of any conclusions which may be 
drawn from plaintiffs' statistical analysis are clearly 
shown in their arguments that the use of "clearly sub­
jective selection criteria" have favored selection of of 
white employees (Plaintiffs' Brief pp. 15-17, 25) and 
the claim that the Fort McClellan Merit Promotion Plan 
has "perpetuated" and "enhanced" the disparities he sees 
in the work force. While plaintiff claims that blacks 
are subject to disparate treatment in the use of subjec­
tive selection criteria, both plaintiffs' and defen­
dant's evidence indicate that just the opposite is true. 
As the Court found below, the supervisors who are alleg­
ed to have engaged in such disparate treatment are

15/ Despite plaintiffs' continued references to the 
district court's "finding" of "gross underrepresenta­
tion," an examination of the record will disclose that 
no such "finding" was ever made. The portion of the 
Findings referred to by plaintiff contains only the 
following comment: "Plaintiffs also have demonstrated 
...that blacks are less well represented at the higher 
grade levels in the several compensation schedules than 
they are at the lower and middle levels." Lower Court 
Findings of Fact, p. 7. This particular determination 
by the Court is a far cry from the "finding" of gross 
underrepresentation, with its attendant consequences, 
which plaintiffs claim it to be.

25



i

selecting black applicants referred to them at a signi­
ficantly greater rate than white applicants. (39% v. 
31%).

Plaintiffs, through statistical manipulation (pp. 
7-10 of their brief) also argue that the percentage of 
blacks in the lower GS and WG levels, as compared to the 
total number of blacks employed, increased during the 
period 1975-1980, with the result that black employees 
have lower average grade levels than white employees. 
From this they conclude that the Merit Promotion System 
has enhanced disparities in the workforce. Once again 
plaintiffs' analysis is not supported by any expert (See 
Wilkins, supra, 27 FEP Cases 1199), and proceeds from a 
faulty premise to an untenable conclusion. As defendant 
earlier pointed out, promotions under the Merit Promo­
tion System occurred at all levels and were dispropor­
tionately awarded to blacks. However, at the same time, 
defendant engaged in an aggressive recruiting program 
designed to hire minorities into the lower, entry level 
positions under programs such as that authorized by 
Congress in 38 U.S.C. Section 2014(b)(1). The purpose 
was to increase minority representation in the Fort 
McClellan workforce, and indeed, it resulted in substan­
tial numbers of minorities being hired into entry level 
positions and a corresponding increase in the percentage 
of blacks in those positions. See Note 5, supra, and 
accompanying text. Thus to the extent that plaintiffs 
statistics show an increasing percentage of blacks at

26



the GS-5 level and below (as well as corresponding WG 
levels), they reflect, not a lack of promotional oppor­
tunities for minorities, but a substantial increase in 
minority hiring. In effect, plaintiffs criticize defen­
dant because the hiring program was too successful in 
increasing minority representation in entry level posi­
tions.

In summary, although Plaintiffs' static work force 
comparisons might be marginally relevant to his claim of 
deliberate discrimination in the promotion, it ignores 
the actual question facing this Court -- what promotion
decisions were being made during the relevant t ime
frame, what was the representation of blacks in the
labor pools from which the promotions were made, and 
what was the actual effect of the promotion decisions on 
the blacks in those pools. Rivera v. City of Wichita 
Falls, 665 F.2d 531 (5th Cir. 1982).

The Courts have recognized that applicant flow data 
which shows the actual promotion decisions made during 
the relevant time frames provides a far more probative 
statistical measure of determining whether present dis­
criminatory practices exist. Movement for Equal Employ- 
ment Opportunity v. General Motors, 622 F. 2d 1235 (7th 
Cir. 1980); EEOC v. United Virginia Bank, 615 F.2d 147 
(4th Cir. 1980); Ste Marie v. Eastern Railroad Associa­
tion, 650 F.2d 395 (2d Cir. 1981). Indeed, the failure 
to use available applicant flow data and relying instead 
on the type of analysis presented by plaintiff was

27



specifically condemned in Hazelwood School District v.
United States, 433 U.S. 299 (1977).

In the present case, as the District Court recog­
nized, defendant produced the only evidence directly 
relevant to the claim of the certified class:

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 compari­
son with the number...referred for considera­
tion.

Hester v. Southern Railway Corp., 497 F.2d 1374 (5th 
Cir. 1974). The actual selection data placed into evi­
dence by defendants conclusively demonstrated that the 
class suffered no discrimination in promotion actions, 
as the district court held.

Even when the review of the evidence is broadened 
to include all phases of the promotion system, as the 
district court also did, the same inescapable conclusion 
occurs. As P.X. 3616 and D.X. 37-38 show, during the 
six year time period, blacks constituted 8.0%^ of the

16/ Plaintiffs claim the trial judge improperly consi­
dered selection data from P.X. 36 because they had iden­
tified a "major coding error." Plaintiffs' Brief at 32. 
The "coding error" referred to was a failure of several 
students gathering data on the promotion process to 
indicate whether referred applicants had also been 
selected for promotion. This made plaintiff's selection 
data incomplete. The court fully recognized the defi­
ciencies in plaintiffs data when it admitted and consi­
dered it. The court also recognized that D.X. 37 and 
38, which provided data on the number of applicants 
referred and selected for essentially the same time 
period, was substantially complete and could be used in 
conjunction with P.X. 36 to obtain a more comprehensive 
view of the promotion process.
17/ During this same time period, blacks constituted 
between 7% and 9.5% of the Fort McClellan workforce.

28 1



total number of applicants and 7.4% of the qualified
applicant pool. See Williams v. Owens-Illinois, Inc., 
27 FEP Cases 1273 (9th Cir. 1982). At the same time, 
blacks constituted 8.3% of the applicants rated "best 
qualified" and 10.2% of the selectees. Once again the 
only significant statistical disparity favors blacks. 
See, e.g. , Smith v. Troyan, 520 F.2d 492 (6th Cir. 
1975), cert, denied, 426 U.S. 934; Friend v. Leidinger, 
588 F.2d 61 (4th Cir. 1978).

Finally, plaintiffs claim that the District Court 
erroneously analyzed a position classification audit in 
evaluating plaintiffs' claim that blacks are "purpose­
fully and discriminatorily" underclassified in relation 
to white employees. Plaintiffs' Brief, p. 33.^® Once 
again, plaintiffs' claim is without merit. The audit 

was commissioned and introduced by defendant (D.X. 
20-22), and reflects that blacks are both overgraded and 
undergraded with respect to white employees, with no 
discernible pattern either favoring or disfavoring black 
employees. See Lower Court Findings of Fact, p. 18.

18/ Under the legally erroneous view of the prima facie 
case put forward by plaintiffs in their brief at pp. 27- 
28, the fact that plaintiffs failed to introduce this 
evidence would prevent the District Court from utilizing 
it in determining whether plaintiffs had established 
their case. However, the District Court properly 
realized that it is required to consider all the evi­
dence presented by both parties in reaching its conclu­
sions in the case.

29



As plaintiffs state, the issue before the court was 
disparate treatment -- i.e., whether defendants con­
sciously sought to disadvantage blacks in the classifi­
cation process. In this regard, and contrary to plain­
tiffs' assertions, evidence of favorable as well as 
unfavorable treatment is highly relevant to determining 
whether any misclassification of black employees results 
from a policy of deliberate racial discrimination and 
whether misclassification has an adverse impact on the 
class of black employees as a whole.

Plaintiffs blandly dismiss the overgrading of black 
employees as irrelevant to any issue of disparate treat­
ment while simultaneously asserting that undergrading 
must be deliberate and intentional. They cannot have it 
both ways.

30



Ill.
THERE IS NO INDEPENDENT CAUSE OF ACTION 
UNDER SECTION 719 FOR FAILURE TO ADHERE 
TO AN AFFIRMATIVE ACTION PLAN IF SAID 
PLAN GOES BEYOND THE STATUTORY MANDATE OF 
TITLE VII.

Plaintiffs' argument under Section IV of their 
brief is not completely clear to defendant. They spend 
several pages of their brief listing requirements rela­
ting to affirmative action plans. If their argument is 
that the alleged failure to meet one of these require­
ments without evidence of unlawful discrimination states 
an independent cause of action for which some relief can 
be granted, their argument is without merit and unsup­
ported by any statutory or persuasive case law. For 
instance, although neither McClellan nor OPM conducted 
an impact study, this, without something more does not 
indicate that black employees were not allowed to 
advance equally with white employees. In fact, the 
defendants showed that blacks who were referred for 
promotion were selected more frequently than whites. 
The requirement that a federal agency "maintain and have 
available for inspection records or other information 
which will disclose the impact which its tests and other 
selection procedures have upon employment opportunities 
(or minorities)...in order to determine compliance with

31 -



Civil Service rules that those ranked as "best quali­
fied" are to have "somewhat equal" qualifications. (R. 
p. 1379). Upon further cross-examination it was shown 
that Charlotte Acklin had the lowest numerical ranking 
of the five candidates. The numerical spread between 
Acklin and the highest ranked candidate was 14.5 points 
and the point spread between Acklin and the fourth 
ranked was 8.5. This numerical ranking based on objec­
tive criteria belies the evaluation of Bobby Murphy. 
Since under the Civil Service rules, the selecting offi­
cial could legitimately pick any of the five candidates, 
it is incomprehensible how plaintiff can argue that by 
eliminating a job where four whites and one black are 
equally qualified, the black is being discriminated 
against. Plaintiff's argument about Mr. Cain is irre­
levant. His advancement was necessitated by a favorable 
ruling on a union grievance and was not a discriminatory 
act relating to Acklin. (R. p. 1385).

g. Ralph Driskell. Ralph Driskell did not apply 
for a promotion during the pertinent period of this 
lawsuit. Although plaintiff argues that Windell Lindsey 
discriminated against Driskell, Lindsay was responsible 
for counseling and helping Driskell when Driskell had 
absentee problems (R. p. 1079), promoting him on sev­
eral occasions and giving him good performance ratings. 
(R. p. 1084). The evidence does not support plain­
tiff's allegation that Lindsay was a discriminating 
selecting official.

32



these guidelines" was clearly met. 19/ it was from just 
such records that defendant prepares his "Magee" charts 
and did his statistical analysis of the referral, promo­
tion rate. Plaintiffs also used these records to pre­
pare their charts.

Plaintiffs argue that they demonstrated "the dis­
proportionate distribution and underutilization of 
minorities, from 1975 through 1980, within the Ft. 
McClellan workforce and across grade levels and job 
series." Even if plaintiffs had shown that (which 
defendant contends they did not) such a showing did not 
prove discrimination in the areas pertinent to this 
lawsuit. As the Supreme Court stated in Furnco Con­
struction Corporation v. Waters, 438 U.S. 580, 98 S.Ct.
2943 (1978) at p. 2951:

"It is clear beyond cavil that the 
obligation imposed by Title VII is to 
provide an equal opportunity for each 
applicant regardless of race, without 
regard to whether members of the appli­
cant's race are already proportionately 
represented in the work force. (cites 
omitted)

19/ Defendant contends that even though their impact 
study was done in preparation for litigation, it was 
clearly sufficient to meet the guideline requirements on 
the issues relevant to this lawsuit.

33 -



Defendant's evidence proved that in the areas of 
promotion and classification which were before the trial 
court, the defendants did not illegally discriminate 
against members of the class. Thus, the plaintiffs are 
not entitled to relief because of some real or perceived 
failure by defendants to meet affirmative action pro­
grams. In Sessions v. Rusk State Hospital, 648 F. 2d 
1066 (5th Cir. 1981), the Fifth Circuit addressed the 
issue of whether failure to comply with an affirmative 
action plan could be the basis of liability under Title
VII. The Court held that " [Title] VII does not
require compliance with plans that go beyond the statu­
tory mandate. As we have already pointed out, the sta­
tute does not enjoin preferential consideration of 
minorities." (cite omitted) at p. 1071.

In conclusion, the Court in Burd ine, supra, 
reaffirmed the proposition that Title VII does not 
demand that an employer give preferential treatment to 
minorities or women. The statute was not intended to 
"diminish traditional management prerogatives." It does 
not require the employer to restructure his employment 
practice to maximize the number of minorities and women 
hired or promoted.

Plaintiffs did not prove class-wide discrminination 
and relief was properly denied.

- 34 -

i



IV.

IN EACH INSTANCE THE DEFENDANT MET THE 
REQUIRED BURDEN OF REBUTTING THE INDIVI­
DUAL CLAIMS OF PLAINTIFF CLASS MEMBERS.

Plaintiffs contend that the defendant failed to 
meet the burden of production of evidence required by 
Texas Department of Community Affairs v. Burd ine, 101 
S.Ct. 1089 (1981), in several of the individual claims. 
Defendant contends that in some of the claims made by 
individual plaintiffs, the individual plaintiff did not 
meet the preliminary requirements to cause defendant to 
produce any evidence at all; in those cases where the 
plaintiff made out a prima facie case, the defendant met 
its burden of production which went unrebutted by 
plaintiff.

The trial court, in its Findings of Fact and Con­
clusion of Law, dealt extensively with each individual 
claimant.

a. Joseph Lawler: The named plaintiff, Joseph 
Lawler, claims that he was not given a promotion to a 
GS-11 because of racial discrimination. The claim of 
Lawler does not readily lend itself to a Burd ine analy­
sis in that Lawler cannot show that he applied or was 
suggested for an available position. The evidence indi­
cates that in 1976 there was not an available position 
at the GS-11 level in the Safety Office. Because of the 
size of the office, a GS-11 deputy would not have been 
justified. (R. p. 167). In 1976, Mr. Wible, Lawler's 
white supervisor, submitted a request for the position 
that Lawler was occupying as a Safety Specialist to be

35



evaluated and up-graded to an Assistant Safety Manager, 
and indicated that Mr. Lawler was eligible for promo­
tion. This submission was reviewed by Colonel James 0. 
Morton, the Commander of the Directorate in which the 
Safety Office was located, and by the Civilian Personnel 
Office (hereinafter CPO). Discussions between Colonel 
Morton and the CPO resulted in Wible's submission being 
returned with directions to resubmit the request with 
appropriate justification for the additional duties 
involved and justification in the light of the safety 
office's mission. The evidence showed that the resub­
mission by Wible never came, and therefore, a promotion 
was not considered until much later. The district court 
noted that he did not understand Lawler to contend that 
Wible's failure to respond to the resubmission request 
was racially motivated. (R. p. 54). The request for 
resubmission was necessitated, as shown by defendant's 
evidence, because the original request was not a proper 
method for requesting a promotion under Civil Service 
regulations. In 1 977 a desk audit by the CPO of both 
Lawler's position and another GS-9 position held by a 
white worker in the safety office resulted in no upgrad­
ing of either position. This evidence rebutted any 
implication by plaintiff that the job held by Lawler had 
somehow become a GS—11 position in 1976 on a theory of 
"job evolution." (See also R. pp. 1169—1170). The 
district court, after reciting the above facts in its

36



Findings of Fact and Conclusions of Law, stated that, 
"...the reasons given by witnesses on behalf of the 
defendants as to their actions, and particularly those 
of Lieutenant Colonel Morton, by the officials in the 
CPO office are, if believed, statements indicating that 
the decision by them was not racially motivated." 
Plaintiff's discussion of the evidence on Lawler's claim 
ignores the evidence concerning the improper submission 
for promotion as a more than adequate articulated, legi­
timate, nondiscriminatory reason for failure to promote 
Lawler. This evidence on failure to resubmit the form 
was the evidence upon which the court relied to find no 
discrimination. (R. p. 45). This evidence was of a 
sufficient, specific, non—racially-motivated nature, 
clearly adequate to carry the burden of production as 
required by Burdine, supra. The evidence offered by the 
plaintiff to rebut defendants' evidence and prove pre­
text was viewed by the trial court as insufficient to 
prove race discrimination. The district courts' find— 
inas on this issue as well as the other pertinent issues 
relating to Lawler, are supported by credible evidence 
and should not be overturned.

b. Timothy Goggins. Plaintiff, Timothy Goggins, 
filed administrative complaints alleging discrimination 
in action taken on two job announcements, the first 
being one for Occupational Analyst, GS-9 in the Military 
Police School and the second being one for Position 
Classification Specialist, GS-11.

37 i



In the case of the job announcement for Occupa­
tional Analyst, Mr. Goggins contended that the job was 
abolished in order to prevent him from getting the posi­
tion because of his race. However, the district court 
found that based on the evidence there was no indication 
that race played any part in the decision to cancel the 
position. (R. Exc. p. 41). Fred Casey, who was employ­
ed at the Military Police School and the Directorate of 
Training Development in December of 1976 testified that 
he was asked to evaluate whether or not an occupational 
analyst was needed in his organization at the time of 
the announcement. (R. 1072-1073). He further testified 
that his findings were that no such position was neces­
sary and that his evaluation had been confirmed by 
experience in the subsequent years since his findings 
were made. (R. 1073). In fact, the duties which would 
have been associated with an occupational analyst posi­
tion only exist on a part-time basis and have been 
easily handled by others already in place. Evidence 
proving that a government agency can be run as effi­
ciently and more economically without filling a parti­
cular job which was available to blacks and whites 
equally, as in this case, clearly meets the burden of 
production required in Burd ine, and the plaintiff did 
not, by a preponderance of the evidence (or by any evi­
dence at all), show that the abolition of the job was a 
pretext for racial discrimination.

38 -



Goggins' second complaint relates to his non-selec­
tion for Position Classification Specialist for which he 
applied in December of 1976. This position was filled 
non-competitively by a white male who was in the career 
intern program. As the trial court pointed out, Mr. 
Goggins' standing to complain about special treatment of 
one in the career intern program is tenuous at best. 
Mr. Goggins advanced through GS-5,7 and 9 noncompeti- 
tively because of his status as a career intern. (R. 
Exc. p. 42). The court further noted that at least one 
other black person had enjoyed the benefits of advancing 
non-competitively because of her career conditional 
status. The court, based on this evidence, found that 
there was nothing discriminatory about appointing a 
career intern for the job of Position Classification 
Specialist, especially in light of convincing, credible 
testimony by Stewart Clark, the selecting official, that
Goggins was not qualified to carry out the required
duties. (R. P- 1157). Failure to select because of
perceived incompetence is not discriminatory. Clark's 
perception of Goggins inability to perform the duties of 
the position classifier was confirmed at least to a 
degree by the fact that Goggins, who later accepted a 
GS-11 job with the Corps of Engineers, failed to pro­
gress at the "normal" rate because of an "unacceptable 
level of performance." (R. p. 579-580). The trial 
court properly held that Goggins had not made out a case

- 39 -



of racial discrimination in either job by a preponder­
ance of the evidence and, therefore, was not entitled to 
relief.

c. Wayne Garrett. Plaintiffs' argument as to Mr. 
Garrett's claim is somewhat unclear. The trial court 
reviewed the administrative file concerning the alleged 
discriminatory treatment suffered by Mr. Garrett and 
found from the facts contained therein supported a find­
ing that the selection of a white for Warehouseman Fork­
lift was not violative of Title VII. Plaintiffs' con-

/tention that another investigation should have been held 
is without merit because the evidence to support non­
discrimination was uncovered in the first investigation 
but was not interpreted by the investigatory as such 
because of his bias.

d. Bobby Murphy. Plaintiffs' next argument is 
that Bobby Murphy was discriminated against when he was 
rated "not qualified" for the position of Supply Manage­
ment Officer (GS-2003-07) in February, 1977. It is 
submitted that technically Bobby Murphy's claim was not 
one that could be properly considered other than as 
circumstantial evidence because his evidentiary situa­
tion was not one that fit in the confines of the class 
as defined by the trial court. The class was defined, 
in pertinent part, as those blacks who were denied pro­
motion, with promotions including situations where some­
one was referred for selection but not selected. (R.

40
t



Exc. p. 21). The trial court specifically ruled that 
someone who was rated ineligible for consideration for a 
particular promotion was not deemed to have a substan­
tive claim in the case at bar and the consideration of a 
claim of this type would be permissible only as circum­
stantial evidence of discrimination as to the claims 
properly within the class. (R. Exc. p. 21-22). There­
fore, even if Murphy had proven discrimination, which he 
did not, he would not be entitled to relief as his claim 
was not permissible in this class action. Further, 
Murphy did not show that his rating of "ineligible" was 
because of discrimination.

Defendant's evidence shows that Murphy was rated 
ineligible because he lacked "supply management exper­
ience." (R. p. 1351; 1337-1338). Murphy contends that
he possessed the requisite experience. However, he evi­
dently was given an opportunity to provide evidence of 
such experience at the time of selection and failed to 
do so (See R. 1351; 1 355-1356). The fact that Murphy
testified at trial to his own perception of his qualifi­
cations for an eligible rating does not rebut the non- 
discriminatory rationale offered by defendant, espe­
cially when Murphy offered no evidence that the rating 
panel would have known of the qualifications to which he 
testified. As the trial court pointed out, the rating 
of ineligible was done by a panel, a member of which was 
black and another claimant in the case at bar, Timothy

41*



Goggins. Goggins testified that he concurred with the 
other members rating of ineligibility. (R. p. 601).

Not only was there no evidence produced to support 
the contention that Murphy's ineligible rating was dis­
criminatory, Murphy could not recover even if he had 
crossed that hurdle because he failed to introduce evi­
dence that had he been rated eligible he would have been 
ranked among the "best qualified" and that a failure to 
choose him had he been ranked "best qualified" would 
have been racially motivated. Without proof of the last 
two factors he did not show any harm by the rating of 
ineligible.

Finally, Bobby Murphy's complaint of racial dis­
crimination, when placed in the factual context of his 
employment history at Fort McClellan, borders on the 
incredible. As the trial court noted, Bobby Murphy was 
convicted of theft of government property and incarce­
rated for a period of time during 1974. During the 
period of incarceration, he was given ordinary leave 
and allowed to return to his job which was held open for 
him. Murphy began working at Fort McClellan in 1967 at 
a WG-7 level and was promoted on several occasions, the 
most recent at the time of trial being on August 24, 
1980. (R. p. 636-637). Defendants submit that Murphy's 
work history presented strong circumstantial evidence of 
non-discrimination against blacks at Fort McClellan.

42



e. Charlie Bryant. Two contentions are raised by 
plaintiff Charlie Bryant. His first allegation of dis­
crimination concerned the appointment of Fred Gann as 
Assistant Supervisor over Bryant. The uncontroverted 
evidence was that that appointment was made in 1966. (R. 
p. 970). The time frame pertinent to this lawsuit, as 
announced by the trial court, was from November 3, 1976
until October 1, 1980. (R. Exc. p. 22).

Further, defendant submits that as to the 1966 
Assistant Supervisor job, Bryant did not prove a required 
prong of the McDonnell Douglas test for making out a 
prima facie case of racial discrimination in that he did 
not introduce evidence that he was qualified for the 
job. (R. p. 272). Finally, evidence of an action in 
1966 is so remote in time to the relevant dates of the 
case at bar as to have no probative value on the issues 
of the case.

Bryant's other complaint involved his failure to be 
selected as Equipment Operator in January of 1978. The 
defendant clearly carried its burden of production under 
Burdine regarding this non-selection. Burd ine estab­
lishes that a defendant does not have to show that the 
white selected was more qualified for a position but 
must merely make a showing that a non-discriminatory 
reason motivated the selection and that the white was 
equally qualified. In the case of Mr. Bryant's non­
selection, Mr. Gann chose two whites because of their

- 43 -
4



greater experience and ability at handling heavy equip­
ment. (R. p. 972). Gann testified that the two whites 
who received the appointments operated comparable equip­
ment as incidental duties of the job positions they held 
before promotion. (R. p. 972-974). Gann testified 
that Bryant was more frequently called upon to do cement 
work as an incidental duty and did not know the heavy 
equipment as well as his two white co-workers. The 
court accepted the explanation as real and not pretex- 
tual. The court properly found that Gann's selection of 
Bryant for a promotion on a cement job a year later 
corroborated Gann's explanation (R. p. 974-975) of his 
action as being based on an evaluation of ability and 
experience.

f. Charlotte Acklin. Charlotte Acklin complains 
that the court erred in not finding that she was dis­
criminated against because of her race when a job of 
Supervisory Supply Technician for which she had applied 
was abolished. The evidence showed that Acklin was 
rated "best qualified" along with four other whites for 
the position, and before the job was filled, it was 
abolished and never re-established in the civilian sec­
tor. Although Bobby Murphy, a convicted felon, and one 
with a personal interest in the outcome of the liti­
gation, did testify that he thought Acklin was better 
qualified than the white candidates (R. p. 1375), on 
cross-examination Murphy acknowledged that under the

- 44 -
K



h. Jeanette Simmons. Jeanette Simmons' complaint 
relates to a promotion she received from a GS-3 to a GS- 
4. She complained that she had to get additional 
schooling before she was promoted while a white co­
worker did not have to "go back to school" before being 
promoted. As the evidence showed, the white co-worker, 
Elizabeth Patzchske, had comparable training. (See 
deposition of Miriam Ellerman and R. p. 1202). There­
fore, Simmons and Patzchske had similar educational 
training at the time of their promotion. There was no 
racial discrimination against Simmons, nor did her com­
plaint properly allege issues pertinent to this case.

i. Clyde Woodard. Mr. Clyde Woodard makes two 
complaints. The first concerned a loss of pay because 
of a "promotion." As the trial court pointed out, when 
Woodard lodged his complaint during the time frame of 
the lawsuit and compared himself with a white worker, 
the mistake in applying a Civil Service regulation was 
corrected and Woodard was given back-pay. The court 
further found that mistaken application of the rule was 
not done on account of racial bias. Next Woodard com­
plains of his non-selection as Warehouse Foreman, WS-5.
In ruling that Woodard's non-selection was not discrim­
inatory the court pointed out,

"His claim is that the selection of 
George (a white) and his own non-selec­
tion was a result of racial discrimina­
tion, a somewhat curious contention in 
view of the fact that the person first 
selected for this job, Bobby Murphy, jLs. 
a black, Mr. Murphy having declined, 
However, that position. (R. Exc. p.
46) .

45



It is beyond comprehension as to how a selecting offi­
cial can be deemed to have made a selection on the basis 
of race in a discriminatory manner when it is shown that 
the selecting official's first choice was a black man 
coupled with the fact that the civil service system 
requires that those on a referral list as "best quali­
fied" are deemed equally qualified. The trial court 
correctly found no discrimination. Further, because of 
an administrative finding in favor of Woodard's com­
plaint, Woodard was awarded back-pay and a WS-5 
position.

At page 54 of plaintiffs' brief Woodard complains 
of yet another "promotion" he did not get and states 
that "the Court made no comment whatever upon this evi­
dence." Firstly, the white awarded the job was a GS-7 
taking a WS-5 job which was basically a demotion. 
Secondly, the job would not have amounted to a promotion 
for claimant but would have been a lateral transfer and 
finally, the job was awarded in November, 1980 after the 
pertinent time frame of this lawsuit. (R. p. 699).

j. Jack Heath. Mr. Jack Heath had no substantive 
complaints pertinent to this lawsuit. Although there 
was evidence concerning the displeasure of several 
claimants with the demeanor and behavior of Joseph 
Matzura, defendant showed that in no case did Matzura 
act as a selecting official for promotion.

- 46 -

4



k. Dennis Thomas. Dennis Thomas' complaint arises
from the cancellation of a job announcement for Assis­
tant Grocery Department Manager, GS-5. Although Thomas 
contends he was among the "best qualified”, the record 
does not support this allegation. / Ann Vaughn, a 
personnel specialist employed in the Recruitment and 
Placement Branch, Civilian Personnel Office, testified 
and the documents reflected that the job was cancelled 
because of a reduction in man hours, before any of the 
candidates were rated or ranked. (R. p. 1282-1283, D. 
Ex. 12). Dennis Thomas did not make out a prima facie 
case on a pertinent issue in this action, it is sub­
mitted. Further, as the trial court noted, no question 
of discrimination arises when a job announcement is 
cancelled and several white applications are affected in 
the same one a black applicant was affected.

1. Betty Bailey. Plaintiff Betty Bailey complains 
that she had some difficulty in being transferred from 
a position at the Veterans Administration Hospital in 
Birmingham, Alabama, to Fort McClellan. In response to 
plaintiff's argument it is submitted that this is not a 
hiring case as defined by the class certification and 
therefore, no liability can be attached if this action 
had been found discriminatory. Further, Don Magee 
explained that the reason Betty Bailey was not inter­
viewed at her first request was because of the existence

20- The plaintiffs did not introduce a 2600 with Thomas 
TTsted as "best qualified" because one did not exist.

- 47



of a presidential hiring freeze. Plaintiffs offered no 
evidence that disproved the existence of that freeze nor 
did they show that a white person was hired during the 
period of delay.

The other complaint Betty Bailey submits to this 
court does not allege the type denial of promotion which 
is properly an issue in the class action at bar nor was 
the rating she complains of done within the pertinent 
time frame of this lawsuit. The first time Bailey was 
rated for the GS-4 Account Technician was on November 
24, 1 980. (R. p. 22). The time frame set out by the 
trial court has as its outside perimeter, October 1, 
1980. Further, Bailey's rating was reviewed and up­
graded at her request. Even with the up-grading she was 
not rated among the best qualified, by plaintiff's own 
admission. (Plaintiff's Brief at 51). No inference can 
be drawn by plaintiff's evidence that race discrimina­
tion played any part in the d isgruntlement of Betty 
Bailey.

m. McCordis Barclay. The next individual claim­
ant, McCordis Barclay, applied for the position of 
Supply Technician, GS-5. Although the evidence revealed 
that Barclay had received his application and it indi­
cated that he had been rated "best qualified and inter­
viewed" when he made inquiry at the CPO, it was dis­
covered that an error had been made and his rating was 
actually "highly qualified". The evidence revealed

- 48 -



and the trial court held that McCordis Barclay, when he 
applied for the Supply Technician job, had been numeri­
cally ranked tied for sixth place with two other candi­
dates. As was the rule at Fort McClellan, the top five 
candidates were placed on the referral list. Between 
the time the list was prepared and interviews scheduled, 
two of the top ranking five declined consideration. To 
determine which two of the other individuals who tied 
for sixth place would be placed on the referral list, 
the tie breaking rule was applied. That rule entailed 
reviewing each person's computation date and referring 
those who had the longest tenure. McCordis Barclay's 
service computation date was the most recent and he was 
not referred. (R. p. 1278-1282 and R. Exc. 39-40). The 
court found that Barclay's rating was on a non-discrim- 
inatory basis and the plaintiffs did not rebut with 
evidence that this basis was pretextual. The trial 
court did not err.

In conclusion, the defendant submits that those 
claimants who were not named plaintiffs and who did not 
present evidence of having satisfied the jurisdictional 
prerequisite of exhaustion are not entitled to 
individual relief because the class-wide claim of dis­
crimination failed. (See Croker v. Boeing, 662 F.2d 975 
at p. 997 (3rd Cir. 1981); Dickerson v. United States 
Steel Corp., 582 F.2d 827 at p. 834 (3rd Cir. 1978).

“ 49 -

*



CONCLUSION
To summarize, plaintiffs have completely failed to 

establish any prima facie case because they have failed 
to connect their statistical analysis to any relevant 
labor pool or promotion decisions made during the rele­
vant time period. Rivera v. City of Wichita Falls, 665 
F. 2d 531 (5th Cir. 1982); Ste Marie v. Eastern Railroad 
Association, 650 F.2d 395 (2d Cir. 1981); Wilkins v.
University of Houston, 27 FEP Cases 1199 (5th Cir. 
1981). Moreover, plaintiffs have completely failed to 
show any discriminatory intent in the operation of the 
Fort McClellan Promotion System. Piva v. Xerox Corp., 
26 FEP Cases 1267 (9th Cir. 1981). To the extent that 
plaintiffs' evidence gave rise to any inference of dis­
crimination, that inference was conclusively dispelled 
by the applicant flow statistics, which showed that 
defendant's promotion system favored qualified black 
applicants, and that the disparity in favor of blacks 
was greatest among the class represented by Mr. Lawler. 
The district court's conclusions on the subsidiary 
issues are fully supported by the evidence and conse­
quently are final. The evidence compels a finding on 
behalf of defendant and against the plaintiff class.

Respectfully submitted
FRANK W. DONALDSON 
United States Attorney

ANN C. ROBERTSON 
Assistant United States

Attorney

50



%

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing 

brief has been served upon counsel, as listed below, by 
mailing a copy via first class United States mail, 
properly addressed and postage prepaid on this the 8th
day of March, 1982.

Oscar W. Adams, Jr., Esquire 
Adams & Adams 
1600 - 2121 Building 
Birmingham, Alabama 35203
Ms. Vanzetta Durant 
Attorney at Law 
639 Martha Street 
Montgomery, Alabama 36104
Brent Simmons, Esquire 
NAACPLegal Defense Fund 
Suite 9408006 15th Street N.W. 
Washington, D. C. 20006

ROBERTSON 
Assistant United 
Attorney

States