Forehand v. Florida State Hospital

United States Court of Appeals,

Eleventh Circuit.

No. 94-3080.

Franceslon FOREHAND, Naomi Berry, Vivian Johnson, Virginia

Jackson, Ethel Germany, Sadie Bouie, Myles Brown, Jeanette Wynn,

Hollis McClendon, all individually and on behalf of all other

persons similarly situated, Plaintiffs-Appellants,

v.

FLORIDA STATE HOSPITAL AT CHATTAHOOCHEE, Department of Health and

Rehabilitative Services, State of Florida, Defendants-Appellees.

Aug. 6, 1996.

Appeal from the United States District Court for the Northern

District of Florida. (No. 83-7107-WS), William Stafford, Judge.

Before ANDERSON and BLACK, Circuit Judges, and FAY, Senior Circuit

Judge.

ANDERSON, Circuit Judge:

Franceslon Forehand (individually and on behalf of putative

class members), Naomi Berry, Sadie Bouie, Myles Brown, Ethel

Germany, Vivian Johnson, Virginia Jackson, Hollis McClendon, and

Jeanette Wynn (collectively "appellants") appeal the post-trial

entry of judgment against them by the district court. Their appeal

raises the following issues: (1) whether the district court erred

in decertifying the class ten years after the case was filed; (2)

whether appellants Berry, Bouie, Jackson, Germany, Brown and

McClendon failed to exhaust the EEOC administrative process because

they received their right-to-sue letters after the commencement of

their Title VII action, prior to the expiration of the statutory

180-day period, and upon counsel's request; and (3) whether the

special master erred in rejecting appellants' statistical evidence

of a pattern and practice of promotion discrimination in favor of

appellees' statistical evidence.1 We affirm in part, vacate in

part, and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

Forehand applied for and was denied promotion to Ward

Supervisor by the Florida State Hospital at Chattahoochee ("the

Hospital") in 1981. After responding to a vacancy announcement for

the Ward Supervisor position, Forehand was interviewed by a

screening committee. Of the nine applicants for the position,

Forehand received the second highest rating by the screening

committee. A white woman was given a somewhat higher rating and

was awarded the position. Forehand, who is black, alleges that the

Hospital discriminated against her in this promotion decision.

Three days after she was denied the promotion, Forehand filed

an administrative complaint with the Equal Employment Opportunity

Commission ("EEOC") in which she alleged discrimination in the

hospital's promotion decision (hereinafter "the individual claim").

Seven months later, Forehand amended her EEOC complaint to state

that the discrimination against her was part of a pattern and

practice of racially discriminatory recruitment, hiring, job

assignments, promotions, demotions, terminations, lay-offs,

reprimands, seniority and affirmative action programs at the

Hospital (hereinafter "the pattern and practice claim"). The EEOC

investigated Forehand's individual claim and concluded that the

Hospital's decision to promote the candidate selected was based on

non-discriminatory criteria including the fact that she: (1)

1

Appellants raise a number of other issues which merit no

discussion. We summarily affirm the district court's resolution

of those issues.

received the highest interview score;2 (2) possessed more

supervisory experience; and (3) had received slightly better

performance evaluations.

On April 6, 1983, Forehand filed the present action alleging

Title VII employment discrimination. In her final complaint, she

was joined by twelve additional plaintiffs: the eight other

appellants, Berry, Bouie, Brown, Germany, Johnson, Jackson,

McClendon, and Wynn, and four other plaintiffs.3 On July 26, 1985,

the district court certified a plaintiff class which included:

All past, present and future black employees of Florida State

Hospital, Chattahoochee, Florida, who, after 24 March 1972

have been adversely affected on account of their race by the

defendants' use of their subjective decision-making processes

regarding promotions, demotions, reassignments, job

performance evaluations, and disciplinary actions.

With the exception of Forehand, none of the appellants

received notice of a right to sue from the EEOC within ninety days

4

preceding the commencement of this action. Neither Wynn nor

Johnson ever possessed a right-to-sue letter during the pendency of

this action. Appellants Berry, Bouie, Jackson, Germany, Brown and

McClendon filed charges with the EEOC slightly before or after this

2

The screening committee which conducted the interviews

consisted of two black and three white committee members.

3

The four additional plaintiffs were Carl Rhowe, Ronnie

Price, Carrie Price, and Eula Walker. Their claims of

discrimination in hiring were severed. According to the special

master's opinion, Walker also asserted a claim of discriminatory

promotion. Walker has not appealed the special master's

conclusions as they relate to her and we do not address them

here.

4

A claimant is required to bring his or her action within

ninety days of receiving a right-to-sue letter from the EEOC. 42

U.S.C.A. § 2000e-5(f)(1); Law v. Hercules, 713 F.2d 691 (11th

Cir.1983).

action commenced. 5 They were issued right-to-sue letters by the

EEOC after the present action had commenced and before the

expiration of the statutory 180-day conciliation period.6 Berry's

charge was dismissed by the EEOC for failure to cooperate with its

investigation. The other letters were apparently issued in

response to counsel's request for expedited treatment.

In October 1986, a fifty-five-day bench trial was held before

a special master. Almost four years after trial, the special

master recommended that the district court enter judgment in favor

of appellees. As to the nine appellants, the special master ruled

as follows. First, he held that Wynn, Johnson, and Berry 7 failed

to exhaust their administrative remedies because they failed to

receive a right-to-sue letter from the EEOC. Thus, he held that

these three appellants failed to satisfy the conditions precedent

to suit in federal court. He concluded that these appellants

could, however, bypass the conditions precedent under the

"single-filing rule"8 whereby they could rely on Forehand's

5

These appellants had previously filed charges with the EEOC

which are not relevant here.

6

See 42 U.S.C.A. § 2000e-5(f)(1).

7

The district court notes that the special master apparently

forgot to include Berry among the group of plaintiffs who did

receive notices of right to sue after the case was filed.

Forehand v. Florida State Hospital, 839 F.Supp. 807, 816 n. 4

(N.D.Fla.1993).

8

Under the single-filing rule, "in a multiple-plaintiff,

non-class action suit, if one plaintiff has filed a timely EEOC

complaint as to that plaintiff's individual claim, then

co-plaintiffs with individual claims arising out of similar

discriminatory treatment in the same time frame need not have

satisfied the filing requirement." Jackson v. Seaboard Coast

Line R.R., 678 F.2d 992, 1011 (11th Cir.1982). Two requirements

must be satisfied to entitle a plaintiff who has not exhausted

properly exhausted claims (both the individual claim and the

pattern and practice claim). The special master held that because

Forehand's claims failed on the merits, so did the claims of these

three appellants. Second, the special master held that the other

six appellants, Forehand, Bouie, Jackson, Germany, Brown, and

McClendon, had satisfied the conditions precedent to suit by

receiving right to sue letters, but that their individual claims

failed on the merits, i.e., they failed to prove discrimination at

trial. Third, the special master held that appellants failed to

prove a pattern and practice of discrimination.

Over two years later, the district court entered judgment in

favor of appellees. See Forehand, 839 F.Supp. at 812. First, the

district court held that the class had been improvidently certified

and, therefore, decertified the class. Id. at 811-12. Second, it

held that only Forehand had satisfied all conditions precedent to

suit, but that the other appellants could potentially rely on

Forehand's exhausted claims (both Forehand's individual claim and

her pattern and practice claim) under the single-filing rule. Id.

at 818. It then found, however, that the non-filing plaintiffs'

claims were so different from Forehand's promotion claim that they

should not be permitted to rely on Forehand's charge of

the EEOC review process (a "non-filing plaintiff") to append his

or her claim to a plaintiff who has (a "filing plaintiff"): 1)

at least one plaintiff must have timely filed an EEOC complaint

that is not otherwise defective; 2) the individual claims of the

filing and non-filing plaintiffs must have arisen out of similar

discriminatory treatment in the same time frame. Id. at 1011-12;

Forehand, 839 F.Supp. at 818.

discrimination.9 Id. at 820-21. Next, it held that appellants had

failed to prove a pattern and practice of discrimination. Id. at

819. These rulings left only Forehand's individual claim intact.

The district court permitted Forehand to supplement the record

before deciding her individual claim of disparate treatment. Id.

at 821. The court later adopted the special master's conclusion

that Forehand had failed to show that she was discriminatorily

denied promotion to the Ward Supervisor position.

II. DISCUSSION

A. Class Decertification

First, appellants challenge the district court's decision to

decertify the class ten years after the case was filed. See

Forehand, 839 F.Supp. at 811-12. The district court held that it

had improperly certified an "across-the-board" class which included

putative plaintiffs who allegedly suffered a variety of

discriminatory acts—a class which included all black employees who

suffered discrimination at the Hospital. The district court

determined that, based on the evidence presented at trial, its

previous class definition failed to comply with Rule 23 of the

Federal Rules of Civil Procedure. It determined, for example, that

its prior Rule 23 numerosity determination "was based on a rough

estimate of total black employees and not upon a careful estimate

of black employees having specific grievances similar to those of

the plaintiffs." Id. at 811.

Appellants argue that the district court erred in decertifying

9

Thus, because the non-filing plaintiffs could not append

their claims on Forehand's properly-exhausted claim, their claims

were dismissed.

the class. They contend that the district court was required to

revisit class certification to conform the class definition to the

evidence presented at trial. They urge that the district court's

decertification decision was especially inappropriate because the

case was filed ten years earlier and had already gone to trial.

A district court may alter or amend its certification order

anytime before its decision on the merits. Fed.R.Civ.P. 23(c)(1).

Questions concerning class certification are left to the sound

discretion of the district court. Freeman v. Motor Convoy,

Inc., 700 F.2d 1339, 1347 (11th Cir.1983). Even after a

certification order is entered, the judge remains free to

modify it in the light of subsequent developments in the

litigation. Falcon, 457 U.S. at 160, 102 S.Ct. at 2372

(1982).

Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th

Cir.), cert. denied, 479 U.S. 883, 17 S.Ct. 274, 93 L.Ed.2d 250

(1986). Although a class decertification order entered ten years

after commencement of the action is unusual and perhaps disfavored,

we find no abuse of discretion in this case. The district court's

conclusion that the class failed to conform to the requirements set

forth in General Telephone Co. of Southwest v. Falcon, 457 U.S.

147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740, is correct and

supported by the record.10 See Forehand, 839 F.Supp. at 811-12.

10

Further, appellants have failed to show how absent class

members are prejudiced by the district court's tardy decision to

decertify. Cf. Kilgo v. Bowman Transportation, Inc., 789 F.2d

859, 877-78 (11th Cir.1986). This decision inures to the benefit

of class members who would otherwise be bound by a decision

against them on the merits.

We pause to note, however, that the district court may

have based its decision to decertify the class on, inter

alia, its determination that none of the named plaintiffs

were entitled to relief.

Had an appropriate analysis been undertaken at the time

Accordingly, we affirm the district court's order decertifying the

class for the reasons stated therein. See Id.

B. Exhaustion and Equitable Modification

Berry, Bouie, Jackson, Germany, Brown, and McClendon

challenge the district court's determination that they failed to

exhaust their administrative remedies before commencing suit in

federal court.11 Before instituting a Title VII action in federal

district court, a private plaintiff must file an EEOC complaint

against the discriminating party and receive statutory notice from

the EEOC of his or her right to sue the respondent named in the

of certification, it is conceivable that some class

could have been properly certified. At this late stage

in the proceedings, however, given the evidence that

was presented at trial, the court declines to certify a

new and different class.

Forehand, 839 F.Supp. at 812. As discussed infra, on

remand, the district court may choose to consider the merits

of the individual claims of Bouie, Jackson, Germany, Brown,

and McClendon. In the event that the above-quoted language

indicates that the district court based its certification

decision on the merits of the named plaintiffs' claims, we

prefer to leave the district court the discretion on remand

to revisit the class decertification question. On remand,

if the district court determines that Bouie, Jackson,

Germany, Brown, and McClendon are entitled to relief on

their individual claims, we leave it to the sound discretion

of the district court to determine whether the class should

be redefined accordingly.

11

Appellants Wynn and Johnson do not contest the district

court's determination that they failed to exhaust their

administrative remedies independently by failing to obtain timely

right-to-sue letters from the EEOC. In the district court, Wynn

and Johnson attempted to bypass the exhaustion requirement under

the single-filing rule, see supra note 8, by appending their

individual claims to Forehand's individual claim. The district

court rejected this attempt. Wynn and Johnson do not challenge

the district court's decision in this regard. Thus, we affirm

the district court's decision that the individual claims of Wynn

and Johnson are to be dismissed for failure to satisfy the

conditions precedent to suit in federal court. We resolve their

pattern and practice claims in Section II.C., infra.

charge. Pinkard v. Pullman-Standard, 678 F.2d 1211, 1215 (5th Cir.

Unit B 1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 729, 74

L.Ed.2d 954 (1983) (citing, inter alia, 42 U.S.C. § 2000e-

5(f)(1)).12 Further, if, after the expiration of 180 days, the

charge has not been dismissed and no other action has been taken by

the EEOC, the EEOC is required to notify the claimant and that

claimant may bring suit in district court within 90 days

thereafter. 42 U.S.C.A. § 2000e-5(f)(1). 13 The court in Pinkard

held that the receipt of a right-to-sue letter is not a

jurisdictional prerequisite to suit in district court, but rather,

is a condition precedent subject to equitable modification. 678

F.2d at 1216. See also Fouche v. Jekyll Island—State Park

12

The Eleventh Circuit has adopted as precedent the

post-September 30, 1981, decisions of a Unit B panel of the

former Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33,

34 (11th Cir.1982).

13

If a charge filed with the Commission pursuant to

subsection (b) of this section is dismissed by the

Commission, or if within one hundred and eighty days

from the filing of such charge or the expiration of any

period of reference under subsection (c) or (d) of this

section, whichever is later, the Commission has not

filed a civil action under this section or the Attorney

General has not filed a civil action in a case

involving a government, governmental agency, or

political subdivision, or the Commission has not

entered into a conciliation agreement to which the

person aggrieved is a party, the Commission, or the

Attorney General in a case involving a government,

governmental agency, or political subdivision, shall so

notify the person aggrieved and within ninety days

after the giving of such notice a civil action may be

brought against the respondent named in the charge (A)

by the person claiming to be aggrieved or (B) if such

charge was filed by a member of the Commission, by any

person whom the charge alleges was aggrieved by the

alleged unlawful employment practice.

42 U.S.C.A. § 2000e-5(f)(1).

Authority, 713 F.2d 1518, 1525 (11th Cir.1983) ("[A]ll Title VII

procedural requirements to suit are henceforth to be viewed as

conditions precedent to suit rather than jurisdictional

requirements."). Because Berry, Bouie, Jackson, Germany, Brown and

McClendon filed suit before receiving their right-to-sue letters,

they must depend upon equitable modification.

Berry, Bouie, Jackson, Germany, Brown and McClendon argue that

the district court erred in holding that they failed to exhaust

their administrative remedies by failing to obtain right-to-sue

letters from the EEOC prior to suit. Specifically, they argue that

this Court in Pinkard established a per se rule in holding that

the receipt of a right-to-sue letter subsequent to the

commencement of a Title VII action, but while the action

remains pending, satisfies the precondition that a plaintiff

obtain statutory notice of the right to sue before filing a

civil action under Title VII.

Pinkard, 678 F.2d at 1219.

The district court rejected appellants' per se interpretation

of Pinkard, holding that the exhaustion rule is subject to

equitable modification only in appropriate circumstances.

Forehand, 839 F.Supp. 816-17. "That equitable modification was

appropriate in Pinkard, however, does not mean that equitable

modification is appropriate here. In Pinkard, there was nothing to

suggest that plaintiffs in any way frustrated the EEOC's effort to

investigate or conciliate the charges." Id. at 817. The district

court held that the dismissal of Berry's14 charge for failure to

cooperate in the EEOC's investigation meant that she could not

14

The district court noted that the special master failed to

include Berry in the group of plaintiffs who received

right-to-sue letters after suit was filed. Id. at 816 n. 4.

partake in Pinkard 's equitable modification of the exhaustion

rule. Further, the court held that Bouie, Jackson, Germany, Brown,

and McClendon were not entitled to Pinkard 's equitable

modification because they filed suit and requested their notices of

right to sue long before the 180-day statutory period had elapsed.

Id. at 817. The court found significant that the EEOC only issued

the letters after appellants' attorney sent the following request

to the EEOC district director:

Our reason for filing the charge of discrimination with

the EEOC was to perfect Title VII jurisdiction in this

lawsuit. Because we feel that a conciliation of both class

and individual aspects of this charge will not be possible

without judicial intervention, WE REQUEST A RIGHT-TO-SUE

LETTER.

Id. at 816.

Likewise, appellees urge that plaintiffs have failed to carry

their burden of demonstrating an equitable reason why the

exhaustion requirement should be relaxed. Like the district court,

they argue that appellants deliberately frustrated the EEOC

investigation and conciliation process by requesting their

right-to-sue letters prior to the expiration of the 180-day period.

Because the purpose of Title VII's exhaustion requirement is to

allow the EEOC an opportunity to perform its conciliation function,

appellees argue that these appellants are not entitled to equitable

modification because they asked the EEOC to forego this function.

In Pinkard, plaintiffs filed their Title VII suit four days

after they filed their complaint with the EEOC. After the

statutory 180 days had expired (during the pendency of the action),

plaintiffs received their right-to-sue letters.

The reason given by the EEOC for issuing the letters was that

this lawsuit was pending. Though the reason given was not one

of the published conditions for which the EEOC issues

right-to-sue letters, see 29 C.F.R. §§ 1601.19, 1601.28, the

letters were nevertheless effective.... Whether the EEOC was

correct in dismissing the charges for the reason given is

immaterial.

Pinkard, 678 F.2d at 1219. The court found it significant that,

because more than 180 days had elapsed since they filed charges

before the EEOC, plaintiffs had a right under the statute to obtain

their letters simply upon request. Id. at 1219. The court

concluded that "the receipt of a right-to-sue letter is a condition

precedent which, on proper occasion, may be equitably modified."

Id. at 1218-19. It based its decision, at least in part, on the

policy underlying EEOC regulations, i.e., permitting the EEOC an

opportunity to investigate charges and attempt conciliation between

the parties. Id. at 1218.15

The district court in this case distinguished Pinkard on the

grounds that Bouie, Jackson, Germany, Brown and McClendon filed

suit and requested their right-to-sue letters prior to the

expiration of the 180-day statutory period and before the EEOC had

an opportunity to investigate and conciliate. Forehand, 839

F.Supp. at 817.

After the district court's decision in this case, this Circuit

decided two more cases that must guide our analysis. In Sims v.

Trus Joist MacMillan, 22 F.3d 1059, 1062 (11th Cir.1994), we noted

that 42 U.S.C.A. § 2000e-5(f)(1) does not prohibit the EEOC from

15

In a footnote, the Pinkard court also noted that its rule,

although not condoning premature filing of Title VII actions,

protects plaintiffs from losing their right to sue if the court

fails to dismiss prior to the 90-day limitation period for filing

suit. Id. at 1219 n. 5.

issuing a right-to-sue letter prior to the expiration of 180 days.

We so noted in the course of holding that the 180-day requirement

is a condition precedent to suit subject to equitable modification.

In Sims, the EEOC had issued plaintiff's right-to-sue letter less

than two weeks after the charge had been filed because "the charge

would not be processed within 180 days." Id. at 1060. Plaintiff

had requested a right-to-sue letter at about the same time the EEOC

received his charge. The district court dismissed the case,

finding that the right-to-sue notice was "requested before the EEOC

had an opportunity to investigate the case." Id. at 1060.

Reversing the district court's dismissal, we reasoned:

"The 180-period was intended to afford victims of employment

discrimination a private cause of action where the EEOC does

not act, or does not act in a timely fashion. The EEOC's

regulation simply recognizes that the caseload will sometimes

be so heavy that it can be determined early on that no action

can be taken within 180 days and the issuing of an early

right-to-sue letter is a reasonable implementation of the

Act.... It is up to the EEOC to decide how to efficiently

administer the Act, and unless its decisions contravene

congressional intent we must afford them deference."

Id. at 1062 (quoting Rolark v. Univ. of Chicago Hospitals, 688

F.Supp. 401, 404 (N.D.Ill.1988)) (emphasis added). We pointed out

that an individual's right to sue is not conditioned upon the

EEOC's performance of its administrative duties. Id. at 1063.

As in this case, the Sims plaintiff requested a right-to-sue

letter before the 180-day period had expired and before the EEOC

had an opportunity to investigate, and the right-to-sue letter was

issued before the expiration of the 180-day period. However, Sims

is distinguishable from the instant case because the Sims plaintiff

did not file suit until after he received the right-to-sue letter,

and because the EEOC stated that it would be unable to process his

charge within the 180-day period.

In Cross v. State of Alabama, 49 F.3d 1490 (11th Cir.1995),

plaintiffs filed their Title VII suit more than two weeks before

they filed their employment discrimination charge with the EEOC.

Id. at 1504. Within approximately 60 days, they received their

notices of right to sue. Id. As is the case here, the notices

stated that " "[w]ith the issuance of this notice of right-to-sue,

the Commission is terminating any further processing of this

charge.' " Id.16 The defendants in Cross argued that plaintiffs'

filing of suit prior to filing their charges with the EEOC

prejudiced defendants' right to attempt resolution through the

conciliation procedures mandated by Congress. Id. The court held,

however, that "the Notices of Right To Sue gave appellees the

immediate right to file suit in federal district court." Id.

It is clear from the foregoing cases that receipt of a

right-to-sue letter is not a jurisdictional prerequisite to suit,

but rather, is a statutory precondition which is subject to

equitable modification.17 Because the issue is one requiring

16

We note that this statement appears on the notice of

right-to-sue that is issued upon counsel's request. The

appellate briefing in Cross confirms that plaintiffs requested a

right-to-sue letter.

17

Although Cross could be read to create a per se rule in

that it contains no discussion of any equitable considerations,

we decline to interpret it that way. Precedent binding on us and

on the Cross panel holds that procedural defects in Title VII

suits are subject to equitable modification. See Zipes v.

Transworld Airlines, Inc., 455 U.S. 385, 392, 102 S.Ct. 1127,

1132, 71 L.Ed.2d 234 (1982) ("[F]iling a timely charge of

discrimination with the EEOC is not a jurisdictional prerequisite

to suit in federal court, but a requirement that, like a statute

of limitations, is subject to waiver, estoppel and equitable

tolling."); Fouche v. Jekyll Island State Park Authority, 713

F.2d 1518, 1525 (11th Cir.1983) ("[A]ll Title VII procedural

consideration of the equities, we readily conclude that there is no

per se rule that receipt of a right-to-sue letter during pendency

of the suit always satisfies the exhaustion requirement. We reject

plaintiffs' proposed per se rule.

Thus, we agree with the district court's general proposition

that if a claimant attempts to frustrate investigation or

conciliation by the EEOC, equitable modification of the exhaustion

rule may be inappropriate. The district court properly applied

this rule to Berry; Berry's failure to cooperate with the EEOC

disentitled her to equitable modification. We affirm the district

court's holding that Berry failed to independently exhaust her

claims.18

With respect to Bouie, Jackson, Germany, Brown and McClendon,

the district court also denied equitable modification, finding that

they too had failed to cooperate with the EEOC. The district

court's opinion indicates its reliance upon three factors in making

this finding: (1) that these appellants "filed suit before they

filed charges with the EEOC," 839 F.Supp. at 817; (2) that they

"requested their notices of right to sue long before the 180-day

requirements to suit are henceforth to be viewed as conditions

precedent to suit rather than as jurisdictional requirements.");

Pinkard, 678 F.2d at 1216 ("[T]he receipt of a right-to-sue

letter is not a jurisdictional prerequisite, but rather is a

condition precedent subject to equitable modification.").

18

Berry does not appeal the district court's determination

that her individual claims are so different from Forehand's

individual promotion discrimination claims that she may not

append her claim to Forehand's claim pursuant to the

single-filing rule. She has, however, appealed the district

court's determination that appellants failed to prove a pattern

and practice of discrimination, an issue we take up in section

II.C., infra.

statutory period had elapsed and long before the EEOC had any

opportunity to perform the function assigned to it," id.; and (3)

that "in his letter to the EEOC, plaintiffs' counsel made clear

that he had no interest in permitting the EEOC to first attempt a

settlement of his clients' grievances ... and he perceived the

filing of the 1983 EEOC charges as little more than a necessary

technicality." Id.

Because of intervening case law—both Sims and Cross were

decided after the district court ruled—we are concerned about the

district court's finding of lack of cooperation on the part of

Bouie, Jackson, Germany, Brown and McClendon. With respect to the

first factor relied upon by the district court, it would be

inconsistent with Cross to base a finding of lack of cooperation

simply on the fact that suit was filed before filing the EEOC

charge. See also Pinkard, 678 F.2d at 1215 (suit was filed four

days after filing the charge). With respect to the second factor

relied upon by the district court, it would be inconsistent with

Sims, and probably also with Cross, to base a finding of lack of

cooperation simply on the fact that a party requested a

right-to-sue letter before the 180-day period expired and before

the EEOC had an opportunity to perform its function.

Indeed, the EEOC regulations expressly contemplate that a

plaintiff may make an early request for a right-to-sue letter, and

that the EEOC may issue the letter upon determining that it is

probable that it will be unable to complete its administrative

processing within the 180-day period. 29 C.F.R. § 1601.28(a)(2).

In this case, the EEOC did not certify that it would be unable to

complete processing within 180 days. 19 However, "Title VII "does

not condition an individual's right to sue upon the EEOC's

performance of its administrative duties.' " Sims, 22 F.3d at 1063

(quoting Jefferson v. Peerless Pumps Hydrodynamic, Div. of FMC

Corp., 456 F.2d 1359, 1361 (9th Cir.1972)); see also Pinkard, 678

F.2d at 1219 ("Whether the EEOC was correct in dismissing the

charges for the reason given is immaterial."). Accordingly, the

fact that the EEOC may not have complied with its own regulations

is of no moment in determining whether appellants are entitled to

equitable modification. A plaintiff should be free to make an

early request for a right-to-sue letter upon the assumption that

the EEOC will perform as contemplated in the regulations by issuing

the letter only if it is probable that it will be unable to

complete the administrative processing within 180 days. Both Sims

and Pinkard indicate that any deficiency in the EEOC's performance

of its duties should not adversely affect a plaintiff's right to

sue.

Thus, the intervening case law has thrown new light on two of

the three factors relied upon by the district court. We are

uncertain as to whether the district court would have reached the

same finding in light of the intervening case law. Accordingly, we

vacate for further proceedings not inconsistent with this opinion.

Of course, on remand the burden of proof with respect to equitable

modification remains on plaintiffs.

19

The right-to-sue letters issued to these appellants simply

stated: "With the issuance of this Notice of Right to Sue the

commission is terminating any further processing of this charge."

In a footnote, the district court offered what could be

construed as an alternative holding:

The special master considered the merits of some, but not all,

of the single-filing plaintiffs' claims. Of those claims that

he considered, he found not one to be meritorious. While the

single-filing plaintiffs did not include, in the record, the

transcripts of their trial testimony, this court cannot—based

on the record before it—say that the special master's findings

were clearly erroneous.

Forehand, 839 F.Supp. at 821 n. 6. Bouie, Jackson, Germany, Brown,

and McClendon have not provided transcripts of their trial

testimony to this Court. Accordingly, based on the limited record,

we are unable to determine whether the special master's findings

were clearly erroneous. We recognize that we have the authority to

affirm the special master's conclusion that appellants Bouie,

Jackson, Germany, Brown and McClendon failed to prove their case on

the merits. See Fed.R.App.P. 10(b)(2) ("If the appellant intends

to urge on appeal that a finding or conclusion is unsupported by

the evidence or is contrary to the evidence, the appellant shall

include in the record a transcript of all evidence relevant to such

finding or conclusion."); United States v. Dallas County Comm'n,

739 F.2d 1529, 1540 (11th Cir.1984) ("In the absence of a complete

record, we cannot adequately review the challenged findings ... and

must affirm the district court on this issue."). Although we

possess the authority to affirm as to these appellants on this

alternative ground because appellants failed to provide us with the

appropriate transcripts, we decline to do so for several reasons.

First, appellees do not invite us to do so and neither party

briefed the issue. Second, the district court's alternative

holding is couched in language that leaves us unsure as to whether

it would have relied on this ground alone. Moreover, as to

Forehand's individual claim of intentional discrimination, the

district court postponed review of the special master's

recommendation until the parties had an opportunity to supplement

the record. 839 F.Supp. at 821. We prefer to permit the district

court to exercise its discretion in deciding whether these five

appellants should be given a similar opportunity.20

In sum, we affirm with respect to Berry, and vacate and remand

with respect to Bouie, Jackson, Germany, Brown and McClendon.

C. Statistical Evidence

Finally, appellants argue that the special master erred in

adopting the Hospital's statistical evidence in lieu of their

statistical evidence, which, they contend, proves a pattern and

practice of racial discrimination. The statistical evidence in

this case was used to determine whether there existed a disparity

between the percentage of black employees "eligible" for a

promotion and the percentage of blacks promoted. At trial, both

parties tendered experts who testified as to the merits of their

statistical methodology. The Hospital's statistical evidence

showed no pattern and practice of discrimination, i.e., no

disparity between the percentage of blacks eligible for promotion

20

Bouie, Jackson, Germany, Brown and McClendon do not

challenge in this appeal the district court's rejection of their

attempt to come within the single-filing rule. Thus, the issue

of whether these appellants have satisfied the conditions

precedent to suit in federal court is determined by the

discussion in the text, supra, and the district court's

determination on remand.

21

and the percentage promoted. Appellants' statistical evidence

showed some evidence of such a pattern and practice, i.e., the

percentage of blacks eligible for promotion exceeded the percentage

actually promoted.22

The difference between the parties' statistical methodology

derives from the unique factual setting of promotions at the

Hospital. Over the ten-year period at issue in this case,

seventy-five percent of "promotions" came from a process that was

noncompetitive. Noncompetitive promotions did not require an

application and selection process, but rather, were often merely an

administrative reclassification of jobs which involved some

increase in pay. By contrast, twenty-five percent of promotions

resulted from a process that was competitive. These promotions

required an application and selection process.23 The percentage of

blacks who applied for competitive promotions was greater than the

percentage of blacks in the Hospital's workforce in general.

Ideally, to determine whether there existed a disparity

between the percentage of eligible blacks and those promoted, the

parties would compare the percentage of blacks seeking competitive

promotions to the percentage competitively promoted and,

21

The Hospital's expert found that of the 3,207 promotions

during the ten-year time period litigated in this case, 44.7

percent went to blacks. Over this period, blacks averaged 44.9

percent of the workforce at the Hospital.

22

Appellants' conclusions are best summarized by example.

Between 1976 and 1980, in the EEO-2 job category, appellants'

data predicted that 24.8 percent of promotions would go to blacks

whereas only about 21 percent of the employees promoted were

black.

23

For example, Forehand's promotion was a competitive

promotion.

independently, they would compare the percentage of blacks in the

workforce to the percentage granted noncompetitive promotions.

Appellees did, in fact, undertake such an analysis and found

approximate parity in the percentages.

24

Neither party placed primary reliance on this methodology.

Instead, both appellants and appellees attempted to compare the

percentage of all black employees promoted (including both

competitive and noncompetitive promotions) to the percentage in the

pool from which promotions were granted. The parties agreed on the

data to be used in counting the number and percentage of

promotions: they simply calculated the percentage of blacks who

were granted both competitive and noncompetitive promotions during

the ten-year time span litigated in this case.25 This calculation

yielded the percentage of blacks in the "at issue" jobs.

The parties disagreed, however, on the data to be used as the

"benchmark," i.e., the pool from which promotions were granted.

The appellants chose as their pool the percentage of blacks who

applied for competitive promotions. They call this an "applicant

flow" benchmark. To this applicant flow benchmark, appellants

24

The parties do not explain why they chose not to emphasize

what we have characterized the "ideal" analysis—i.e.: first,

comparing applicants for competitive promotions to those granted

competitive promotions; and, second, comparing employees

eligible for noncompetitive promotions to those granted

noncompetitive promotions. It appears as though both parties

initially avoided such analysis for fear that it would weaken

their cases. In addition, there is some indication that the

number of competitive promotions in each job category was so

small as to render any generalizations inaccurate, i.e., the

sample was so small that the results may not have been

statistically significant.

25

Both parties refined their data by job category and other

relevant classifications.

compared the percentage of blacks in the "at issue" jobs, i.e., the

percentage granted both competitive and noncompetitive promotions.

Thus, appellants compared the percentage of blacks who applied for

competitive promotions to the percentage of blacks who were granted

both competitive and noncompetitive promotions.

This methodology drastically skewed appellants' results.

Because the percentage of blacks was greater in the applicant pool

than in the Hospital workforce, the applicant flow benchmark would

tend to overstate any underrepresentation of blacks in the "at

issue" jobs.26 Comparing the percentage of black applicants for

competitive positions to the percentage of blacks granted both

competitive and noncompetitive promotions created the appearance of

disparity—the percentage of blacks in the pool from which

promotions were granted would appear to be greater than the

percentage of blacks promoted. In short, appellants chose a

26

Appellants' statistical evidence is best described by

example. Between 1976 and 1980, in the EEO-2 job category, 224

"promotions" (both competitive and noncompetitive) were granted.

24.8 percent of the applicants for competitive promotions in this

job category were black. Based on this information, appellants

predicted that 24.8 percent (approximately 55) of the promotions

(both competitive and noncompetitive) would go to black

employees. In fact, 21 percent (47 of the 224 promotions) went

to black employees. Thus, appellants argue that their data

indicate a pattern and practice of racial discrimination in

promotion decisions in the EEO-2 category.

The problem with appellants' analysis is that the 24.8

percent of black "applicants" (i.e., the benchmark) was

derived from the number of applications taken for

competitive promotions in the EEO-2 job category in 1981 and

1982. These applications for competitive promotions had

nothing to do with the noncompetitive promotions actually

granted in other years and bore no relation to the pool from

which noncompetitive promotions were granted. Further, as

discussed, blacks comprised a greater percentage of the

applicant pool than they did the workforce, thus skewing

appellants' aggregate analysis.

benchmark which artificially inflated the percentage of blacks in

the labor pool from which promotions were drawn. Then, when the

percentage of blacks actually promoted fell short of this

benchmark, appellants argued that the Hospital engaged in a pattern

and practice of discriminatory promotions. This overstatement of

any disparity in the selection of blacks was exacerbated by the

fact that only twenty-five percent of promotions at the Hospital

during the time period at issue were competitive promotions.

By contrast, the Hospital chose as its benchmark the

percentage of black employees within each job category at the

Hospital.27 We call this pool the "workforce" benchmark.28 By use

of the workforce benchmark, the Hospital compared the percentage of

blacks in the workforce to the percentage of blacks granted both

competitive and noncompetitive promotions. The workforce benchmark

is, in fact, based on the pool from which noncompetitive promotions

were drawn. Because the percentage of blacks in the Hospital

workforce was less than the percentage of black applicants for

competitive jobs, the workforce benchmark potentially understated

discrimination with respect to competitive promotions. Thus, the

workforce benchmark also skewed the statistical results, although

not as badly as did the applicant flow benchmark because, inter

alia, seventy-five percent of promotions were noncompetitive.

27

In other analyses, the Hospital's expert calculated the

percentage of black employees within each pay grade and job

category and in the labor force from which Hospital employees

were hired. Comparison of these benchmarks to the percentage of

black employees promoted also indicated that the Hospital did not

discriminate based on race in its promotion decisions.

28

The Hospital calls this pool the "internal benchmark."

In sum, both appellants' applicant flow benchmark and

appellees' workforce benchmark skewed the results of their

statistical analyses: the applicant flow benchmark overstated any

disparity while the workforce benchmark understated any disparity.

Because, however, seventy-five percent of promotions were

noncompetitive, the distorting effect of the appellants' applicant

flow benchmark was much greater than the distorting effect of the

appellees' workforce benchmark. The latter came closest to the

"ideal" analysis and, accordingly, the special master and district

court were not clearly erroneous in rejecting the applicant flow

benchmark. See Payne, 673 F.2d at 826 (holding that the court's

decision to accept one party's statistical evidence was not clearly

erroneous).

Appellants rejoin that the district court was required, as a

matter of law, to accept their applicant flow benchmark. They cite

several cases for the proposition that courts generally prefer

benchmarks based on applicant flow. For example, in International

Brotherhood of Teamsters v. United States, 431 U.S. 324, 342 n. 20,

97 S.Ct. 1843, 1856-57 n. 20, 52 L.Ed.2d 396 (1977), the Court

pointed out that "evidence showing that the figures for the general

population might not accurately reflect the pool of qualified job

applicants" would be relevant to undercutting the statistical

evidence at issue in that case. Similarly, in EEOC v. Olson's

Dairy Queen, Inc., 989 F.2d 165, 169 (5th Cir.1993), the court held

that the district court had erred by not fully considering an

applicant flow analysis. "[T]he "most direct route to proof of

racial discrimination in hiring is proof of disparity between the

percentage of blacks among those applying for a particular position

and the percentage of blacks among those hired'...." Id. at 169

(quoting Hester v. Southern Ry., 497 F.2d 1374, 1379 (5th

Cir.1974)). See also Payne v. Travenol Laboratories, Inc., 673

F.2d 798, 820-24 (5th Cir.), cert. denied, 459 U.S. 1038, 103 S.Ct.

452, 74 L.Ed.2d 605 (1982) (finding applicant flow data extremely

useful in detecting and proving discrimination).

Further, appellants argue that the Supreme Court's decision in

Ward's Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115,

104 L.Ed.2d 733 (1989), is dispositive of the statistical issue in

this case. In Ward's Cove, plaintiffs' statistics compared the

percentage of nonwhite workers in cannery positions to the

percentage of nonwhite workers in noncannery positions.29

Plaintiffs sought to make out their prima facie case of Title VII

disparate impact by showing that the percentage of nonwhite workers

was much higher for cannery positions than for noncannery

positions. The Court rejected this use of statistics holding that

"the pool of cannery workers cannot be used as a surrogate for the

class of qualified job applicants [for noncannery positions]

because it contains many persons who have not (and would not) be

noncannery job applicants." Id. at 653, 109 S.Ct. at 2123.

Appellants' reliance on Ward's Cove is misplaced and "

"fundamentally misconceive[s] the role of statistics in employment

discrimination cases.' " Id. at 650, 109 S.Ct. at 2121 (quoting

Hazelwood School Dist. v. United States, 433 U.S. 299, 308, 97

29

The cannery positions were generally unskilled whereas the

noncannery positions were generally skilled.

S.Ct. 2736, 2741, 53 L.Ed.2d 768 (1977)). The general rule from

Ward's Cove as to the choice of a statistical benchmark is that the

"proper comparison [is] between the racial composition of [the

at-issue jobs] and the racial composition of the qualified ...

labor market." Id. In this case, the "at issue jobs" were those

to which employees were promoted. The composition of the qualified

or eligible labor market differed, however, depending on whether

the promotion was "competitive" or "non-competitive." The special

master did not err in rejecting appellants' applicant flow

benchmark because it would tend to drastically overstate

discrimination. As discussed, appellants' statistical evidence

compared apples and oranges; it compared the applicants for a

small percentage of positions to all promotions granted. Although

appellees' choice of benchmark also distorted their results, this

distortion was much less than that resulting from appellants'

applicant flow benchmark.

Appellants urge us to adopt a per se rule that applicant flow

data are the best measure of the pool from which applicants are

selected. We decline. Such a per se rule would be nonsensical.

Courts should adopt the benchmark which most accurately reflects

the pool of workers from which promotions are granted unless that

pool has been skewed by other discriminatory hiring practices.30

Where an application is required for promotion, it will often be

appropriate to use a benchmark which calculates the percentage of

black applicants. Where, as here, no application is required for

most promotions, it makes no sense to compare the percentage of

30

There has been no such proof in this case.

black applicants (for other positions) to the percentage of black

noncompetitive appointees.

The usefulness of statistical data in assessing discriminatory

practices depends ... on the validity of the basic reference

population as the pole star being compared to the work force

of the employer ... and that ... [i]n a disparate treatment

case, the statistical evidence must be "finely tuned' to

compare the employer's relevant workforce with the qualified

populations in the relevant labor market.

Olson's Dairy Queen, 989 F.2d at 168 (quotation omitted).31

In sum, we affirm the judgment of the district court with

respect to the pattern and practice claim.

III. CONCLUSION

Accordingly, for the foregoing reasons, the decision of the

district court is

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

31

We summarily reject appellants' argument that the

workforce benchmark failed to account for those employees who

were "qualified or interested" in promotion. Appellees'

benchmark came closer to calculating the pool from which

promotions were drawn and this incorporates those employees who

would be qualified or interested in promotion (indeed, any

employee would be interested in a promotion that simply

reclassified his or her job and granted a pay raise).