# Petition — Bostick v. Boorstin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 898

## Text

@upreme Court, UU. ~
FILED

JUN 23 1980

IN THE ICHAEL RODAK, JR., CLERW

Supreme Court of the United States

OCTOBER TERM, 1979

“.29= 2080

ROBERT L. BOSTICK, ET AL., Petitioners,

Vv.

DANIEL J. BoorsTIN, As the Librarian for the Library of
Congress, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

JERRY S. COHEN
HERBERT E. MILSTEIN
MICHAEL D. HAUSFELD

KOHN, MILSTEIN & COHEN
1776 K Street, N.W.
Washington, D.C. 20006

Attorneys for Petitioners
Of Counsel:

HAROLD E. KOHN

KOHN, SAVETT, MARION &
Graf, P.C.

1214 IVB Building

1700 Market Street

Philadelphia, Pennsylvania
19103

ATES MELE NIRA SARIN
PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

Oooo

TABLE OF CONTENTS

PAGE
SPR UNIO Gc hchv kta dc nae v0 edo ts on eke eeES ENE 2
NE. a asda en een ws ae kn ee oe Cesk Ce 2
CED TROD i icin decks annss tee cestamwenuees 2
STATUTORY PROVISIONS INVOLVED ............2eee eee: 3
eT GP TO CRs oik ki cakes sc bet cedbansieuas 6
REASONS FOR GRANTING THE WRIT..........0...-20 000: 10

I.

Il.

III.

On an Important Question of Federal Law, the
Decision of the District of Columbia Circuit
Court of Appeals is in Direct Conflict with the
Decisions of Other Circuits ..............0000-

The District Court’s Refusal to Grant Class
Relief in Light of Admitted Systemic Discrimi-
nation Violates the Purpose and Intent of Title
on and is in Conflict with the Law of Other

| eT eee Te reer Trees eee ee

The Lower Courts’ Misapplication of the Rele-
vant Statistical and Graphic Analyses Demon-
strating Statistically Significant Disparities Bet-
ween Black and Non-Black a At-
tributable to Race is a Substantial Error Re-
quiring Review and Guidance by this Court....

SIE Fok hick bak vc ck Sen Cee
Dt ee et ee ea eee.

10

14

19

TABLE OF AUTHORITIES
CASES PAGE

Albemarle Paper Co. v. Moody, 422 U.S. 1008 (1975) .. 17

Alexander v. Aero Lodge No. 735, 565 F.2.d 1364 (6th
Le Big) bcc eas Wah s 4) ones 6% 11

Barnett v. Martin-Marietta Corp., 522 F.2d 333 (10th
ee ees Wiles boi ies bear hewe wee s+ 18

Bolton v. Murray Envelope Corporation, 553 F.2d 881
ech POG, aka g esk6 essa eee ae Kes 18

Donaldson v. Pillsbury Co., 554 F.2d 825 (8th Cir. 1977) 12
Gibson v. Local 40, 543 F.2d 1259 (9th Cir. 1976) .... 12, 18

Hazelwood School District v. United States, 433 U.S.
ee teh Feb eee ee pe

Fiuff v. N.D. Cass Company of Alabama, 4 E.P.D.
4 7833 (N.D. Ala. 1971), reversed, 485 F.2d 710

re 10, 19
International Brotherhood of Teamsters v. United
EE EE, OP EEDTED ccc scrccccccctsceces 17, 22
James v. Stockham Valves and Fittings Co., 559 F.2d
rd a a s:esn b Av'a beso 0s 0% Oss 18, 19
Morton v. Mancari, 417 U.S. 535 (1974). ............ 13, 14
Parham v. Southwestern Bell Telephone Co., 433 F.2d
a eS ck a's pr k ovo ews bd on bie 17, 18
Payne v. Travenol Laboratories, 565 F.2d 895 (5th Cir.
a hic s sap cada ck eer evseasaess 11
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.),
cert. denied, 404 U.S. 1006 (1971) ................ 17
Rosen v. Public Service Electric and Gas Company, 477
EE OPEN, vs vows cdasccvcccscesecces 17
Saracini v. Missouri Pacific Railroad Co., 431 F.Supp.
SE 16, 18

Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.
ee Lo con sb ne ieee wads onev os 11

iii

Table of Authorities Continued

CASES: PAGE

Sledge v. J.P. Stevens & Co., Inc., 585 F.2d 625 (4th
Ferre rreet rrr eer eee 18

Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th
a -, . See perenne ee reer irre frase 15, 16

Williams v. Mumford, 6 E.P.D. 48785 (D.C. 1973}... 10, 11
Williams v. Tennessee Valley Authority, 552 F.2d 691

Le a ig, errr Tr erererrrrrrc etree 14
Wright v. Stone Container Corp., 524 F.2d 1058 (8th
eR ee rr rery Pre tees fete r 11, 12
STATUTES AND RULES CITED:
p ER Cae Bo DS ree ee eer eee ro 2
rv ate Don & °. |) Pr ereererererer er errr 17

42 U.S.C. ZOOOG(C)-16 .. 0. cece ec ee eevee 3, 4,5, 6 7, 13

iV

INDEX TO APPENDIX

First District Court Decision, dated August 17, 1973.... la

First Court of Appeals Decision, dated February 10,
PPO cd chs rk rela ees LAW oee ee eM kaek bale 10a

i FOE On ene aE A A Ee 26a

Second Court of Appeals Decision, dated February 22,
Ps nies bc dns s naa w RSA ee CADET Rees wae cies 45a

IN THE
Supreme Court of the United States

OCTOBER TERM, 1979

No.

ROBERT L. BOSTICK, ET AL., Petitioners,

Vv.

DANIEL J. BoorsTIN, As the Librarian for the Library of
Congress, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

Petitioners Robert L. Bostick, et al. respectfully
pray that a Writ of Certiorari issue to review the judg-
ment and opinion of the United States Court of Appeals
for the District of Columbia Circuit entered in this pro-
ceeding on February 22, 1980, and the Orders denying
Petitioners’ Motion for Rehearing and Suggestion for
Rehearing en banc entered on March 24, 1980.

2

OPINIONS BELOW

The initial decision of the district court (App. 1a)
was entered on August 20, 1973 and is reported at 6
E.P.D. 48785. The initial Court of Appeals decision
(App. 10a) dismissing an interlocutory appeal from the
District Court Decision, is reported at 511 F.2d 363
(D.C. Cir. 1975). This Court denied certiorari, 423 U.S.
828 (1975). The most recent district court decision (App.
26a) is unreported. The most recent Court of Appeals
decision (App. 45a) is reported at 22 E.P.D. 430,682.

JURISDICTION

The judgment of the Court of Appeals for the
District of Columbia Circuit was entered on February
22, 1980. A timely Petition for Rehearing and Sugges-
tion for Rehearing en banc was denied on March 24,
1980, and this Petition for Certiorari was filed within
ninety (90) days of that date. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the typicality requirement of Fed. R.
Civ. P. 23 can be interpreted to require factual identity
of the claims of all class members in a Title VII employ-
ment discrimination case?

2. Whether a class action is a superior method of
adjudicating claims of systemic discrimination by
Federal employees?

3. Whether the lower courts erred by failing to con-
sider fashioning class relief in light of unrefuted
evidence of racially motivated employment discrimina-
tion against the class, even though the ‘‘class represen-

3

tative’’ did not prevail on his individual claim and the
court did not certify a class?

4. Whether the lower courts erred by misinter-
preting and misapplying the statistical and graphic
evidence establishing a statistically significant disparity
between the annual salaries and grade levels of similarly
situated black and non-black employees attributable to
race?

STATUTORY PROVISIONS INVOLVED
Rule 23(a) reads:

(a) Prerequisites to a Class Action. One or more
members of a class may sue or be sued as represen-
tative parties on behalf of all only if (1) the class is
sO numerous that joinder of all members is imprac-
ticable, (2) there are questions of law or fact com-
mon to the class, (3) the claims or defenses of the
representative parties are typical of the claims or
defenses of the class, and (4) the representative par-
ties will fairly and adequately protect the interests
of the class.

Rule 23(b)(3) reads:

Class Actions Maintainable. An action may be
maintained as a class action if the prerequisites of
subdivision (a) are satisfied, and in addition:

* * *

(3) the court finds that the questions of law or
fact common to the members of the class
predominate over any questions affecting only in-
dividual members, and that a class action is
superior to other available methods for the fair and
efficient adjudication of the controversy.

42 U.S.C. § 2000e-16 provides:

(a) All personnel actions affecting employees or
applicants for employment (except with regard to

4

aliens employed outside the limits of the United
States) in military departments as defined in section
102 of Title 5, in executive agencies (other than the
General Accounting Office) as defined in section
105 of Title 5 (including employees and applicants
for employment who are paid from _ nonap-
propriated funds), in the United States Postal Ser-
vice and the Postal Rate Commission, in those units
of the Government of the District of Columbia hav-
ing positions in the competitive service, and in those
units of the legislative and judicial branches of the
Federal Government having positions in the com-
petitive service, and in the Library of Congress shall
be made free from any discrimination based on
race, color, religion, sex, or national origin.

(b) Except as otherwise provided in this subsec-
tion, the Civil Service Commission shall have
authority to enforce the provisions of subsection (a)
of this section through appropriate remedies, in-
cluding reinstatement or hiring of employees with
or without back pay, as will effectuate the policies
of this section, and shall issue such rules, regula-
tions, orders and instructions as it deems necessary
and appropriate to carry out its responsibilities
under this section. The Civil Service Commission
shall —

(1) be responsible for the annual review and
approval of a national and regional equal
employment opportunity plan which each
department and agency and each appropriate
unit referred to in subsection (a) of this section
shall submit an order to maintain an affir-
mative program of equal employment oppor-
tunity for all such employees and applicants for
employment:

(2) be responsible for the review and evalua-
tion of the operation of all agency equal
employment opportunity programs, periodically

5

obtaining and publishing (on at least a semian-
nual basis) progress reports from each such
department, agency, or unit; and

(3) consult with and solicit the recommenda-
tions of interested individuals, groups, and
Organizations relating to equal employment op-
portunity.

The head of each such department, agency, or unit
shall comply with such rules, regulations, orders,
and instructions which shall include a provision that
an employee or applicant for employment shall be
notified of any final action taken on any complaint
of discrimination filed by him thereunder. The plan
submitted by each department, agency, and unit
shall include, but not be limited to —

(1) provision for the establishment of train-
ing and education programs designed to pro-
vide a maximum opportunity for employees to
advance so as to perform at their highest
potential; and

(2) a description of the qualifications in
terms of training and experience relating to
equal employment opportunity for the principal
and operating officials of each such depart-
ment, agency, or unit responsible for carrying
out the equal employment opportunity program
and of the allocation of personnel and
resources proposed by such department, agen-
cy, Or unit to carry out its equal employment
opportunity program.

With respect to employment in the Library of Con-
gress, authorities granted in this subsection to the
Civil Service Commission shall be exercised by the
Librarian of Congress.

(c) Within thirty days of receipt of notice of final
action taken by a department, agency, or unit refer-
red to in subsection (a) of this section, or by the

6

Civil Service Commission upon an appeal from a
decision or order of such department, agency, or
unit on a complaint of discrimination based on
race, color, religion, sex or national origin, brought
pursuant to subsection (a) of this section, Executive
Order 11478 or any succeeding Executive orders, or
after one hundred and eighty days from the filing
of the initial charge with the department, agency, or
unit or with the Civil Service Commission on appeal
from a decision or order of such department, agen-
cy, or unit until such time as final action may be
taken by a department, agency, or unit, an
employee or applicant for employment, if aggrieved
by the final disposition of his complaint, or by the
failure to take final action on his complaint, may
file a civil action as provided in section 2000e-5 of
this title, in which civil action the head of the
department, agency, or unit, as appropriate, shall
be the defendant.

(d) The provisions of section 2000e-5(f) through
(k) of this title, as applicable, shall govern civil ac-
tions brought hereunder.

(e) Nothing contained in this Act shall relieve any
Government agency or official of its or his primary
responsibility to assure non-discrimination § in
employment as required by the Constitution and
statutes or of its or his responsibilities under Ex-
ecutive Order 11478 relating to equal employment
opportunity in the Federal Government.

STATEMENT OF THE CASE

Petitioner Bostick is a black employee of the
Library of Congress. On or about April 29, 1972,
Bostick filed a formal Complaint alleging discrimination
with the Equal Employment Opportunity (EEO) Office
of the Library of Congress. He claimed that from the
time he began his employment with the Library in 1947
he had been subject to racial discrimination with regard

7

to his job classification and promotion. Four months
later he amended his Complaint and alleged discrimina-
tion affecting all other black employees of the Library.
In November 1972 the EEO Office returned the Amend-
ed Complaint, stating that it was not equipped to handle
broad inquiries into the general policies and practices of
the Library.

In August 1972, another black Library employee,
Joslyn Williams, filed an action in the district court,
alleging that he was the victim of racially discriminatory
practices at the Library. On March 20, 1973, an Amend-
ed Complaint was filed, adding Bostick as a plaintiff as
well as class-wide allegations of discrimination. The
Amended Complaint alleged that the Library had
discrininated against all blacks currently employed by it,
all blacks who had been employed at any time since
1960, and all blacks who had sought employment unsuc-
cessfully since 1960. The Amended Complaint sought
relief on behalf of the individuals and both injunctive
and monetary relief for the class as a whole.

On August 20, 1973, after a hearing, the district
court denied the request for class certification. The
denial was based on two grounds: First, that Williams’
and Bostick’s positions at the Library were not typical
of the class they sought to represent as required by Rule
23(a)(3), Federal Rules of Civil Procedure. Second,
given the administrative remedies available to federal
employees apart from Title VII of the Civil Rights Act
of 1964, as amended by the Equal Employment Oppor-
tunity Act of 1972, 42 U.S.C. § 2000e-16, the class ac-
tion was not ‘‘superior to other available methods for
fair and efficient adjudication of the controvery’’ as re-
quired by Fed.R.Civ.P. 23(b)(3). Petitioners attempted
to obtain review of the district court’s decision, but it

8

was denied, on the grounds that the decision was not a
final order.

In March 1978, Bostick’s case went to trial. The
district court failed to award either individual or class
relief, despite the fact that the unrefuted testimony in-
dicated that from 1947 through at least 1972 the Library
had engaged in numerous illegal, discriminatory prac-
tices including among others: the failure and refusal to
recruit black applicants; the promotion of white
employees through word-of-mouth procedures; the de-
meaning of individual black employees; the refusal to
place blacks in positions of responsibility; the placement
of blacks with higher educational qualifications in the
same positions as whites with lower educational
qualifications and the promotion of white employees
with lower educational qualifications to higher positions
than blacks who possessed higher educational.

Black employees of the Library as of 1972 were oc-
cupying lower grades and receiving lower salaries than
similarly situated white employees and this significant
difference was attributable to race, as the Library’s own
Statistician concluded. The evidence of racial discrimina-
tion which resulted in pay and grade disparities between
blacks and whites was corroborated by the Library’s
own studies. When the Library itself analyzed the pay
and grade levels of its employees, it concluded that there
was a Clear relationship between race and grade: blacks
were on the average two grades below whites, with com-
mensurately lower salaries.

The Library’s Administrative Hearing Examiners
each independently concluded that the Library had
engaged in systemic racial discrimination after 1972. The
Report issued by the Special Inquiry Team of the

American Library Association indicated that the Library
had consistently restricted the employment opportunities
of blacks. The numerous reports which the Library itself
requested after 1972 found, without qualification, that
the Library had employed, before and afater 1972,
racially discriminatory written examinations for pur-
poses of hiring and promotions. The Library utilized re-
quirements which had a racially disparate effect, as
shown by the racial mix of those ultimately selected for
hire or promotion before and after 1972; and the
Library utilized, before and after 1972, non-objective
standards for selection and promotion which had the ef-
fect before and after 1972 of restricting the advancement
of black employees.

Bostick’s ‘‘reclassification’’ problem was one
classically experienced by blacks at the Library. The use
of the classification procedures to discriminate against
black Library employees by relegating them to lower
positions within the Library was confirmed by the
American Library Association, Library of Congress In-
quiry Team Report. Prior to 1972, there existed in the
Library an ‘‘invisible ceiling’? above which blacks were
not promoted.

Up to 1972, there was a practice and pattern of
racial discrimination at the Library which had a continu-
ing impact on tenured employees. There was a
Statistically significant difference in salary and grade
levels at the Library which was attributable to race,
after control variables were accounted for. In fact,
Defendant’s expert quantified the amount of the
discrimination. He concluded that as a result of the
discriminatory practices, black employees of the Library
had been deprived of a sum of approximately
$8,409,160 in wages during the years 1974-76 alone that
they would have earned had they been white.

10

Yet, despite this evidence, the district court declined
to order any relief. Petitioners then appealed to the
Court of Appeals for the District of Columbia. The
Court of Appeals’ review of the class certification deci-
sion was limited to a footnote, and a petition for rehear-
ing was denied.

REASONS FOR GRANTING THE WRIT

I. On an Important Question of Federal Law,
the Decision of the District of Columbia Cir-
cuit Court of Appeals is in Direct Conflict with
the Decisions of Other Circuits.

A. The Courts Below Misconstrued the ‘‘Typicali-
ty’? Requirement of Rule 23, As Applied to
Class Actions Under Title VII.

The decision of the Court of Appeals, affirming the
district court’s denial of class certification on the
grounds of lack of typicality, adopted a seriously flawed
reading of the typicality requirement. This narrow view
of the requirement, which focused on the necessarily dif-
fering factual circumstances of each employee,
represented an extreme minority view at the time it was
expressed; as of this date, all of the cases on which the
court below relied have either been reversed or have
been substantially discredited. The District of Columbia
Circuit now stands alone in its severely restrictive inter-
pretation of the typicality requirement.

The decision denying class certification in this mat-
ter was premised upon a case which was subsequently
overturned by the Fifth Circuit sitting en banc, Huff v.
N.D. Cass Company of Alabama, 4 E.P.D. 47833 (N.D.
Ala. 1971), reversed, 485 F.2d 710 (Sth Cir. 1973) (en
banc). Williams v. Mumford, 6 E.P.D. 48785 at p.

1]

5385. This error was compounded by the lower courts’
misconstruction of the typicality requirement of Rule 23
of the Federal Rules of Civil Procedure (‘‘F.R.C.P.’’)

The district court incorrectly held that under the
typicality requirement, the employment position of the
class representative must be typical of each member of
the class. App. 3a-5a. Under this definition there could
never be a class of black employees seeking to remedy
effects of systemic discrimination. By this definition, a
class could consist only of those persons occupying the
very same employment position as the person who seeks
to sue. Discrimination would have to be opposed on a
job function by job function basis. Neither Rule 23 nor
Title VII intended such a piecemeal remedy.

The lower courts apparently believed that the
typicality requirement of F.R.C.P. 23(a)(3) should not
be relaxed in Title VII cases. This notion is contradicted
by the opinions of other Circuits. Senter v. General
Motors Corp., 532 F.2d 511, 517, 523-24 (6th Cir.
1976), cert. denied, 429 U.S. 870 (1976); Wright v.
Stone Container Corp., 524 F.2d 1058, 1061-62 (8th Cir.
1975).

No precedent supports the restrictive interpretation
of the typicality requirement applied by the lower
courts. The district court held that simply because the
representative plaintiff’s employment position was held
by no other members of the class he sought to represent,
his position was unique and therefore he was not
typical. 6 E.P.D. at 5385. However, Rule 23 does not
focus on the position of the representative plaintiff; it
requires only that the claims of the plaintiff be typical
of those of the class. Payne v. Travenol Laboratories,
565 F.2d 895, 900 (Sth Cir. 1978); Alexander v. Aero
Lodge No. 735, 565 F.2d 1364, 1372 (6th Cir. 1977);

12

Donaldson v. Pillsbury Co., 554 F.2d 825, 830-831 (8th
Cir. 1977); Gibson v. Local 40, 543 F.2d 1259, 1264 (9th
Cir. 1976). This was a fundamental error by the court in
denying certification.

The representative plaintiff in this case alleged no
unique instances of discrimination directed at him as an
individual. He alleged that the racial discrimination
which he suffered exemplified the pervasive racial
discrimination at the Library. Even if Bostick’s job posi-
tion is unique, his claims were not. They involved the
way in which the Library’s classification program was
utilized in a discriminatory manner against minorities, a
claim typical of the class. Indeed, if the position of the
lower courts were adopted, there could never be a class
of persons discriminated against.

The typicality requirement of Rule 23(a)(3) is
satisfied when the class representative demonstrates the
existence of other class members with ‘‘similar’’ or
‘*typical’’ grievances. Wright v. Stone Container Corp.,
supra, 524 F.2d at 1062.

Under the lower courts’ narrow reading of typicali-
ty, virtually no class action could be maintained unless
the named plaintiff’s employment position mirrored that
of the class members. Such a requirement would impose
a crushing burden upon Title VII class action plaintiffs.

B. The Court’s Holding that a Class Action Is
Not a Superior Method of Adjudication for
Federal Employee Discrimination Claims Is
Clearly Erroneous. .

In denying class certification, the district court also
held that plaintiffs had failed to satisfy the
‘superiority’? requirement of F.R.C.P. 23, on the
grounds that the Federal Government had already pro-

_

a

13

vided an effective mechanism for remedying discrimina-
tion complaints and that while a class action might be a
superior method of adjudication for private Title VII
litigants, Federal employees had no need for class action
suits to redress their discrimination complaints.

‘*‘{Ujnlike the situation of the employee in the
private sector effective administrative remedies
against racial discrimination are available to federal
employees outside of Title VII, and the need for
class action adjudication is less apparent than in in-
stances in which Title VII alone is in the picture.’’
App. 6a.

Again, the district court’s opinion rests on a faulty
premise. Under its analysis, there could never be any ti-
tle VII class-action litigation against the Federal Govern-
ment because there are administrative procedures geared
to resolving these sorts of complaints in the Federal
Government.

The court’s opinion completely ignores and in fact
totally contradicts the 1972 amendments to Title VII,
which extended the guarantees of equal employment op-
portunities to Federal employees. 42 U.S.C. § 2000e-16.

This Court recognized the importance of the 1972
legislation by its reference to the legislative history of
those amendments in Morton v. Mancari, 417 U.S. 535,
n.22 546-47, (1974):

‘‘This disproportionate distribution of minorities
and women throughout the Federal bureaucracy
and their exclusion from higher level policymaking
and supervisory positions indicates. the
government’s failure to pursue its policy of equal
opportunity.”’

‘fA critical defect of the Federal equal employment
program has been the failure of the complaint pro-
cess. That process has impeded rather than advanc-

14

ed the goal of the elimination of discrimination in
Federal employment... .”’

‘*The present law and the proposed statute do not
permit industry and labor organizations to be the
judges of their own conduct in the area of employ-
ment discrimination. There is no reason why
government agencies should not be treated similar-
I

The existence of administrative procedures does not
rule out the propriety of class actions in federal employ-
ment cases brought pursuant to Title VII. Such a result
would defeat the spirit and intent of the 1972 amend-
ments. Class actions involving federal employee
discrimination complaints are not only proper, but are
necessary, to effectuate the Congressional intent. See,
e.g., Williams v. Tennessee Valley Authority, 552 F.2d
691, 697 (6th Cir. 1977).

II. The District Court’s Refusal To Grant Class
Relief In Light Of Admitted Systemic
Discrimination Violates The Purpose And In-
tent Of Title VII And Is In Conflict With The
Law Of Other Circuits.

In Title VII cases the federal courts have not only
the power but the duty to consider the effects of the
employer’s alleged discrimination on the class; this duty
exists whether or not the suit is brought or certified as a
class action, and the court is obligated to provide relief
to affected employees, whether or not it awards relief to
the individual plaintiff. In failing to fulfill this obliga-
tion, the lower courts erred.

The courts below ignored the voluminous, uncon-
tradicted evidence of class-wide discrimination at the
Library and declined to grant any relief to the class.

15

This refusal effectively repealed the protective provisions
of Title VII, leaving the class of discriminated-against
employees with no means of ameliorating the pervasive
racial discrimination at the Library.’

The district court assumed that a prima facie case
had been proved, but determined that Bostick’s claims
had been effectively rebutted by the Library. In so do-
ing, however, the lower courts did not consider the ef-
fect that the Library’s discriminatory practices had on
the class. This failure was clear error. The court has a
duty to assess evidence of discriminatory conduct
against the class regardless of whether it has certified a
class action or determined that the plaintiff’s individual
claim has merit.

The courts have recognized that Title VII
discrimination suits are by their very nature class ac-
tions, whether or not they are denominated as such. In
Sprogis v. United Air Lines, Inc., 444 F.2d 1194,
1201-02 (7th Cir. 1971), the Court held:

‘‘The vindication of the public interest expressed by
the Civil Rights Act constitutes an important facet

' The courts’ failure to assess the impact of the evidence of class-
wide discrimination coupled with the Library’s refusal to comply
with minimum federal affirmative action standards effectively in-
sulates the Library from persons seeking relief from_ its
discriminatory employment practices. The Library takes the posi-
tion that it is not required to (nor in fact does it) meet the affir-
mative action guidelines of the Civil Service Commission or the
Equal Employment Opportunity Commission. Trial Testimony of
Dr. Eugene Walton, Coordinator of the Affirmative Action Pro-
grams at the Library, pp. 641-42, 653, 659-60. Its failure to meet
these minimum standards is in direct defiance of the express
language of Title VII which specifically include the Library as being
within its scope (42 U.S.C. § 2000e-16a) and which direct the
Librarian of Congress to fulfill the responsibilities granted to the
Civil Service Commission with respect to the Library’s employment
practices, a mandate which is blatantly ignored.

16

of private litigation under Title VII. In Bowe v.
Colgate-Palmoilive Co., 416 F.2d 711, 719 (7th Cir.
1969), Judge Kerner recognized that such a suit is
necessarily a class action ‘as the evil sought to be
class characteristic, i.e., race, sex, religion or na-
tional origin.’ See also Jenkins v. United Gas Cor-
poration, 400 F.2d 28, 33 (Sth Cir. 1968). At stake,
therefore, are the interests of the other members of
that class, and the court has a special responsibility
in the public interest to devise remedies which effec-
tuate the policies of the Act as well as afford
private relief to the individual employee instituting
the complaint.

Section 706(g) of the Act grants to federal courts
plenary powers to fashion affirmative _ relief
eradicating present discrimination and redressing
the adverse consequences of past unlawful conduct
... In Bowe, we held that this power ‘should be
broadly read and applied so as to effectively ter-
minate the practice and make its victims whole.’
416 F.2d at p. 721. In order to accomplish that
result, we ordered that the ‘relief should be made
available to all who were so damaged whether or
not they filed charges and whether or not they join-
ed in the suit.’ /d.; Cf. Griffin v. County School
Board of Prince Edward County, 377 U.S. 218y
224, 84 S.Ct. 1226, 12 L.Ed.2d 256 at 1201-02.”’
(citations omitted)

Similarly, in Saracini v. Missouri Pacific Railroad
Co., 431 F. Supp. 389, 395 (E.D. Ark. 1977), the Court
held:

‘*Despite the fact that this case was not brought as
a class action, this court is of the opinion that
general relief would be appropriate ... Title VII
cases inherently involve discrimination against a
class characteristic, [citing Parham, supra,] and
under this reasoning, courts have upheld class-type
injunctive and affirmative relief in cases by in-
dividual plaintiffs.’’

17

Where racial discrimination has been alleged, the
district court has not merely the power but the duty to
render a decree which will, as far as possible, eliminate
discriminatory effects of the past as well as bar like
discrimination in the future. /nternational Brotherhood
of Teamsters v. United States, 431 U.S. 324 (1977);
Albemarle Paper Co. v. Moody, 422 U.S. 1008 (1975).

The remedial provision of Section 706(g) of Title
VII, 42 U.S.C. § 2000e-5(g), which provides that a court
may enjoin and order such affirmative action as may be
appropriate, must be broadly read and applied so as to
effectively terminate the practices of racial discrimina-
tion and make its victims whole. The relief contemplated
by Title VII is intended to restore those wronged to their
rightful status absent the effects of the unlawful
discrimination. Rosen v. Public Service Electric and Gas
Company, 477 F.2d 90, 96 (3d Cir. 1973); Robinson v.
Lorillard Corp., 444 F.2d 791 (4th Cir.), cert. denied,
404 U.S. 1006 (1971).

= In Parham v. Southwestern Bell Telephone Co., 433
F.2d 421, 428-29 (8th Cir. 1970), the court noted the
flexibility in awarding relief which is authorized by Title
VII:

[OJnce a violation of Title VII has been found,
courts possess wide discretion in modeling decrees
to insure compliance with the 1964 Civil Rights Act
... In the exercise of that discretion, courts have
devised various remedies for Title VII violations.
[United States v. International Brotherhood of]
Electrical Workers Local 38, supra, 428 F.2d 144
[6th Cir. 1970] (case remanded to district court with
directions to retain jurisdiction and determine ap-
propriate affirmative relief); [United States v.]
Sheet Metal Workers, Local 36, supra, 416 F.2d
123)(8th Cir. 1969} (locals ordered to modify

18

employment-referral systems programs); United
States v. Hayes International Corporation, 415 F.2d
1038 (Sth Cir. 1969 (preliminary injunction
granted); [United States v.] Plumbers Local 73,
supra, 314 F.Supp. 160 [S.D. Ind. 1969] (union’s
apprenticeship program revised, court retaining con-
tinued jurisdiction to insure compliance); (United
States v. Bethlehem Steel Corporation, supra, 312
F.Supp. 977 (W.D.N.Y. 1970) (extensive plan for
ending discriminatory seniority rights adopted).

Thus, .whether or not an_ individual plaintiff
establishes his or her own right to relief, the evidence in-
troduced in the case may, as in this case, be of such a
nature as to establish a pervasive policy of discrimina-
tion against minorities. In such circumstances, a court is
obligated to consider and grant relief to the other
minorities being discriminated against whether or not
the plaintiff proves his individual claim and whether or
not the court has certified a class. See Sledge v. J.P.
Stevens & Co., Inc., 585 F.2d 625, 634 (4th Cir. 1978);
Bolton v. Murray Envelope Corporation, 553 F.2d 881,
883 (Sth Cir. 1977); Gibson v. Local 40, Supercargoes
and Checkers of the Int’l. Longshoremen’s and
Warehousemen’s Union, 543 F.2d 1259, 1263 (9th Cir.
1976); Barnett v. Martin-Marietta Corp., 522 F.2d 333,
340 (10th Cir. 1974); Huff v. N.D. Cass Co., 485 F.2d
710 (Sth Cir. 1973) (en banc). See also, Parham v.
Southwestern Bell Telephone Co., supra; Saracini v.
Missouri Pacific Railroad Co., supra, 431 F.Supp. at
396.

Moreover, the courts’ failure to assess the impact of
Defendant’s discriminatory practices on the class, which
were exactly like those found to exist in James v.
Stockham Valves and Fittings Co., 559 F.2d 310 (Sth
Cir. 1977), is in direct conflict with the fifth Circuit’s

19

ruling in that case. There, as here, evidence was in-
troduced to demonstrate that there were no objective
criteria for purposes of job selection and promotion but
rather that wholly subjective non-validated criteria were
employed by the Defendants. Furthermore, the evidence
in both cases clearly established gross disparities in the
wages earned by black and white employees, the use of
subjective evaluations of employees by predominantly
white supervisors. In both cases, the employers pre-
sented defenses based on nonvalidated testing and the
nature and quality of educational levels achieved by the
employees. The Fifth Circuit in James found that such
evidence clearly established a case of racial discrimina-
tion. The District of Columbia Circuit essentially ig-
nored this evidence.’

Ill. The Lower Courts’ Misapplication Of The
Relevant Statistical And Graphic Analyses
Demonstrating Statistically Significant
Disparities Between Black And Non-Black
Employees Attributable To Race Is A Substan-
tial Error Requiring Review And Guidance By
This Court

The lower courts miscontrued the nature and func-
tion of statistical evidence and improperly applied its
conclusions to the facts presented by the experts.

Both the Library and Bostick presented expert
witnesses with regard to an analysis of pay disparities
between black and white employees at the Library.

Bostick’s expert was Dr. Charles Mann and the
Library’s expert was Dr. C.J. Bartlett. Both concluded

> The critical deficiency in the decision of the Court of Appeals is
that it considered this evidence only as applied to Bostick and not
as to its class-wide impact. App. 4a n. 9.

20

that there were statistically significant pay disparities at-
tributable to race between black and white employees
prior to 1972 and that the black employees of the
Library hired prior to 1972 and still within the Library
were suffering the present effects of past discrimination.

In both analyses of pay disparity and race, Bostick
was specifically included within a group which showed a
statistically significant disparity between — similarly
situated white and black employees.

Specifically with regard to long-term employees
such as Bostick, it was the finding of the Library’s ex-
pert that:

‘‘With regard to annual salary and grade level there
did appear to be race differences that cannot be ex-
plained by differences in tenure, education or age.
The data also suggests that most of these dif-
ferences were a result of large differences in the
longer tenure employees, those hired prior to ©
1972.”

Significantly, the Library’s report concluded:

‘‘The overall pattern of results suggests the present
salary and grade disparity for the longer tenure
employees may be the residual effect of past per-
sonnel policies.’’

With regard to employees hired after 1972, both ex-
perts concluded that there still existed a statistically
significant pay and grade disparity of substantial
magnitude attributable to race between white and black
employees at the Library for the years 1972 through
1974,

From 1972 on, the Library has maintained or ac-
quiesced in policies and practices which favor white ap-

21

plicants and employees with regard to their educational
achievements — white employees received and receive
substantially more pay per year of education than iden-
tically situated black employees.

The district court indicated that it was not convinc-
ed that the statistical evidence demonstrated a ‘‘causal
connection between any racial discrimination at the
Library and the decision not to reclassify Bostick’s posi-
tion’? App. The court’s findings with regard to the
Statistical evidence presented are at odds with the mean-
ing of statistical data in cases of this type. Statistics can-
not isolate a causal relationship between evidence of pat-
terns of disparity and a particular employment decision
affecting only one individual. See Hazelwood School
District v. United States, 433 U.S. 299 (1977). Rather,
they allow an examination of the patterns present in
groups of similarly situated individuals to determine if
there is a disparity in their levels of achievement as in-
fluenced by employment policies or practices.
Hazelwood, supra. In this case, both statistical experts
found a disparity between the pay and grade levels of
black and white employees with the same or similar
education and employment qualifications as Bostick.
This disparity was attributed by both experts to race.

The statistics raise the inference that what happened
to Bostick was the result of racial discrimination. The
Statistics should not have been rejected because they
allegedly failed to establish a causal relationship, since
this is not the nature of statistics.

Moreover, the District Court compounded its error
by ignoring the legitimate results of the statistical
analysis in its statement that the statistics did not sustain
Bostick’s burden of proving there was racial discrimina-

22

tion in the Library in 1972 affecting Bostick. (App.
39a-40a.) The question the Court should hav. addressed,
and did not, was how the Library’s past racially
discriminatory policies and practices affected Bostick’s
employment opportunities in and after 1972.

The court’s statements concerning the relevance and
import of statistical evidence and the use of such
evidence in Title VII cases were clear errors of law.

The use of statistics, this Court has noted, has
played a particularly significant role in cases alleging
patterns or practices of broad-based racial discrimina-
tion. See International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977). See also Hazelwood
School District v. United States, supra.

Indeed, this Court has stated that:

‘‘Where gross statistical disparities can be shown,
they alone may in a proper case constitute prima
facie proof of a pattern or practice of discrimina-
tion.’” Hazelwood School District, supra, at 307-08.

The evidence of discriminatory hiring and promo-
tion practices in this case was confirmed by independent
Statistical analyses by experts retained by Bostick and
the Library. The lower courts’ misapplication of this
evidence and their inability or unwillingness to consider
the impact of this data is clear error requiring reversal
and guidance from this Court.

23

CONCLUSION

For these reasons, a Writ of Certiorari should issue
to review the Judgment and Opinion of the Court of
Appeals for the District of Columbia Circuit.

Respectfully submitted,

JERRY S. COHEN
HERBERT E. MILSTEIN
MICHAEL D. HAUSFIELD

Kohn, Milstein & Cohen
1776 K Street, N.W.
Washington, D.C. 20006

Attorneys for Petitioners

APPENDIX

la

First District Court Decision

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

No. 1633-72
August 20, 1973
[4 8785] Joslyn N. Williams et al., Plaintiffs
v.

L. Quincy Mumford et al., Defendants.

[Statement of Case]

Jones, D.J.: This is a suit for declaratory, injunctive, and
monetary relief against allegedly racially discriminatory prac-
tices at the Library of Congress. The defendants are L. Quin-
cy Mumford, the Librarian of Congress, and Robert W. Hut-
chison, the Library’s Director of Personnel. Jurisdiction is
based on title VII of the Civil Rights Act of 1964, as amend-
ed by the Equal Employment Opportunity Act of 1972, 86
Stat. 103, 42 U.S.C.A. § 2000e-16, which specifically brings
federal employees, including those at the Libarary of Con-
gress, within the coverage of the Act. Presently pending
before the Court are the plaintiffs’ motion and application
for class action determination and the defendants’ motions to
strike the class action allegations, to sever the claims of the
two individual plaintiffs, to dismiss as to defendant Hutchin-
son, and for a protective order. The motion to certify as a
class action will be denied, the claims of the two plaintiffs
will be severed, the protec tive order will be granted,' and the
defendant Hutchison will be dismissed.

' At the time of the oral hearing on the motions, it was agreed by
counsel that the question of the scope of discovery against which
the protective order is sought would be governed by the ruling on
the motion for class action certification.

2a

In their amended complaint,’ the plaintiffs bring this suit
as a class action under Fed. R. Civ. P. 23(a), 23(b)(2) and (3)
on behalf of all black persons currently employed at the
Library, all those black persons who were employed by the
Library at any time since 1960 but who are no longer
employed, for whatever reason, and all black persons who
unsuccessfully sought employment with the Library at any
time since 1960. Racially discriminatory practices relating to
recruitment, hiring, promotion, segregated job classifications,
and firing are alleged to have been conducted by the defen-
dants. Although it has been held that a suit brought by a
black alleging title VII violations is perforce a sort of class ac-
tion for other employees similarly situated, Jenkins v. United
Gas Corp., {1 EPD 49908] 400 F. 2d 28, 33 (Sth Cir. 1968),
the requirements of Fed. R. Civ. P. 23 relating to class ac-
tions must still be fulfilled before that remedy may properly
be invoked. Arey v. Providence Hospital, [4 EPD 7788] 55
F. R. D. 62, 67-68 (D.D.C. 1972). In this case the plaintiffs
have failed to meet the requirement of Fed. R. Civ. P.
23(a)(3) that their claims be typical of the claims of the class,
as well as the requirement of Fed. R. Civ. P. 23 (b)(3) that
the class action method of adjudication be superior to other
available methods for the ‘‘fair and efficient’’ resolution of
the controversy. In this connection, several concerns uniquely
related to title VII suits against federal government agencies
dictate that this case not be maintained as a class action.

[Plaintiff’s Claims Unique}

The claims of the individual plaintiffs demonstrate their
unique nature, and thus preclude the plaintiffs from meeting

? This case was originally brought to enjoin the alleged unlawful
firing f the plaintiff Williams under circumstances outlined, infra.
After denial of the plaintiff Williams’ motion for summary judg-
ment,leave was granted to file an amended complaint under title
VII, 180 days having elapsed since the filing with the Library of the
initial complaint of discrimination and final action not having been
taken. The isntant class action complaint, joing the plaintiff Bostick
and ading the defendant Hutchison, was then filed.

3a

the typicalness requirement of Fed. R. Civ. P. 23(a)(3). In
June, 1972, over five years after the plaintiff Williams had
been hired as a copyright examiner, he was informed that his
employment would be terminated in July because of flase
Statements in his employment application.’ Williams alleges
that in an attempt to gain time for negotiation he was coerced
into signing a resignation effective August 11, 1972. On that
date, ‘Williams unsuccessfully attempted to withdraw that
resignation. Still later on the 11th, Williams filed a complaint
with the Equal Opportunity Ofice of the Library, alleging
that his firing was for racially discriminatory reasons. Shortly
thereafter, the original complain in this case was filed.‘

In the amended complaint, the plaintiff Bostick alleges
that since he began his employment at the Library in 1947 on
three occasions he has requested a job reclassification for pur-
poses of promotion. In the first two attempts, the reclassifica-
tions became effective approximately six and four years later,
respectively. The third request for promotion has been pen-
ding for over two years. Bostick alleges that white employees
are promoted without their request, and that whites hired at
the same time as he have attained far higher grade levels
because of racial discrimination. Bostick is a ‘‘visual informa-
tion specialist’? in the Congressional Research Service of the
Library. The position is unique. No one else holds such a
position in the Library.

[Class Action Not Proper]

From the foregoing, it is apparent that the claims of the
named plaintiffs in this case lack the typicalness of the claims

> Although the truth of the statements in the application was at
issue in the earlier stages of this letigation, counsel for the plaintiffs
admitted at the ral hearing on the motions that the statements were
in fact false. Transcript 13-14. Williams ccontends, however, that in
order to obtain a job he had to demonstrate qaualifications
superior to those of white applicants. Thus, he allegesthat the false
statements in the application were the result of racial prejudice that
would have denied him the job if he had not lied.

“See note 2, supra.

4a

of the class that is needed to make them proper class
representatives. Whether Williams resigned or was fired, he
has admitted to making false statements on his original ap-
plication for employment; Bostick is employed in a unique
capacity, one given to classification dispute, as is evident
from the allegations of the complaint. Even though both of
the plaintiffs are black and the charge of the complaint is
racial discrimination, the cases of the plaintiffs are too far
removed from the general policy and patterns of discrimina-
tion alleged in the complaint. Each of their claims of
discrimination is unique, and thus the Court holds that
neither is a proper class representative. See Smith v. North
American Rockwell Corp., [2 EPD 410,214] 50 F.R.D. 515
(N.D. Okla. 1970).

In reaching this conclusion, the Court is fully cognizant
of the rule that in determining whether a case should proceed
as a class action the question to be answered is not whether
the plaintiffs will prevail on the merits, but rather whether the
requirements of Fed. R. Civ. P. 23 have been met. Halverson
v. Convenient Food Mart, Inc., 458 F. 2d 927 (7th Cir. 1972);
Miller v. Mackey International, Inc., 452 F. 2d 424 (Sth Cir.
1971). Thus in describing the allegations of the individual
plaintiffs, no view is rendered on the possible success o. their
claims on the merits.

The Court imposes no requirement that the plaintiffs
show that they were discriminated against individually before
they may maintain a class action. Hadnott v. Laird, [4 EPD
47678] 149 U.S. App. D.C. 358, 365 n. 21, 463 F. 2d 304,
311 n. 21 (1972). But the Court is equally mindful that proof
of racial motivation alleged by the plaintiffs to have occurred
in their situations does not thereby prove the claims of those
whom they seek to represent. Relief against the discriminatory
practices alleged in the complaint hinges upon proof that each
practice is prohibited conduct that has been engaged in by the
Library. In view of the potentially severe res judicata conse-
quences of class suits, the Court must be careful to ascertain
that the requisite typicalness of the plaintiffs’ claims is pre-

Sa

sent. Therefore, the Court does require that the plaintiffs be
members of the class they purport to represent with claims
typical of that class so as to guarantee effective representation
of the class members. Because the other members of the
potential class clearly are not similarly situated to the plain-
tiffs, whose claims of discrimation involve unique cir-
cumstances, the plaintiffs are not proper class representatives
and the motion to certify the class will be denied. See Huff v.
N.D. Cass Co., [4 EPD 47775] 468 F. 2d 172 (Sth Cir. 1972)
(reheard en banc Oct. 30, 1972, decision pending);
Developments in the Law — Employment Discrimination and
Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev.
1109, 1218-19 (1971).

[Superior Method Requirement]

Even if the plaintiffs were proper class representatives,
however, the requirement of Fed. R. Civ. P. 23(b)(3) that a
clas action be ‘‘superior to other available mehtods for the
fair and efficient adjudication of the controversy’’ has not
been met. See, e.g., Wilcox v. Commerce Bank of Kansas Ci-
ty, 474 F. 2d 336, 345 (10th Cir. 1973). This requirement is
particularly significant in title VII suits against the federal
government authorized by the 1972 amendments, supra.

Although the 1972 amendments for the first time made
title VII specifically applicable to the federal government, it
has been well established that the federal government has no
license to discriminate. Bolling v. Sharpe, 347 U. S. 497
(1954). The 1972 amendments to title VII have removed the
final barrier to suit, the defense of sovereign immunity, and
federal employers are now fully sub ject to its strictures. But
federal employees have long had and still have advantages
over their provately employed counterparts in remedying
alleged illegal conduct by their employers. Title VII is fre-
quently the only basis upon which victim of private
discrimination may proceed. On the other hand federal
employees have long been able through judicial action to re-
quire agencies to follow their own personnel procedures and

6a

regulations. Service v. Dulles, 354 U.S. 363 (1957). Thus,
unlike the situation of the employee in the private sector, ef-
fective administrative remedies against racial discrimination
are available to federal employees outside of title VII, and the
need for class action adjudication is less apparent than in in-
stances in which title VII alone is in the picture. The cir-
cumstances of this case are particularly illustrative.

The Library of Congress has had regulations for process-
ing complaints of discrimination since at least 1967. Library
of Congress Regulation [LCR] 2010-3. That regulation re-
quires the Librarian to take corrective action upon a finding
of discrimination at the final administrative step. Ringer v.
Munford, [5 EPD 8481] 355 F. Supp. 749 (D.D.C. 1973).
Given this effective administrative remedy outside of title VII,
the Court finds that a class action is not the superior method
of adjudication in this case, and thus the motion to certify
the class under Fed. R. Civ. P. 23(b)(3) must be denied on
that basis.

[Administrative Record]

There is yet a third independent ground upon which the
motion to certify the class must be denied. Although the case
is brought as a class action aleging across the board racially
discriminatory practices throughout the Library, neither plain-
tiff raised any allegation of class discrimination in his ad-
ministrative complaint of discrimination before the Library.’
Thus the allegatins of class discrimination have not proceeded
through the proper exhaustion of administrative remedies,
and cannot form the basis for a class action at this time.
Hackley v. Johnson, [6 EPD 8725] F. Supp. .
n. 11 (D.D.C. July 13, 1973) (Gessell, Jr.) (dictum). Title VII
suits against federal employers are normally to be reviews of
administrative action. /d., F.Supp. at . As such,

* LCR 2010-3, § E and LCR 2010-3 (Appendix), § V.C make it
clear that a group complaint could have been filed by either plain-
tiff.

7a

the complaint should be limited to the allegations made at the
administrative level.

In Hackley, unlike the present case, the Court had before
it the final and complete administrative record. Judge Gesell
concluded in that case that it was proper that the suit proceed
solely as a review of that record. In the present case, no final
administrative decision was made on the complaint of either
plaintiff within 180 days of the filing of the complaint, and
therefore the plaintiffs had a right to file suit in this Court. 42
U.S.C.A. § 2000e-16)c). Of necessity, the instant suit cannot
be decided solely on the basis of a review of the ad-
ministrative record because a complete record does not exist.
But given the policies of title VII suits against the federal
government, even the de novo proceedings in this Court
should be restricted to the matters raised in the administrative
complaint. The motion to certify as a class actin must
therefore be denied.

A contrary result is not required by the many decisions
under title VII concerning private employers which have read
the initial complaint to the Equal Employment Opportunity
Commission [EEOC] broadly in finding sufficient exhaustion
to form the basis for a class action. First, the unique status of
federal employees even without title VII mandates that com-
plete exhaustion be required. Second, even under the broad
principle that an action brought pursuant to title VII should
be limited ‘‘to the scope of the EEOC investigatin which can
reasonably be expected to grow out of the charge of
discrimination,’’ Sanchez v. Standard Brands, Inc., {2 EPD
10,252] 431 F. 2d 45, 466 (Sth Cir. 1970), the plaintiffs have
not sufficiently exhausted their administrative remedy to bring
ihis case as a class action.

The allegations of the cmplaint, it will be recalled, are:
(1) that the plaintiff Bostick was denied promotion in a uni-
que job; and (2)that the plaintiff Williarns was fired because
of his race, and not because of his admittedly false statements
on his employment application. It cannot be expected that an

8a

investigation of these charges would reasonable be expected
to encompass the across the board allegations of discrimina-
tion which the plaintiffs have made in their complaint, cover-
ing the entire recruitment, hiring, promotion, and termination
practice in the entire Library of Congress. In all likelihood,
their allegations would not lead to such a broad investigation
even within the two departments in which the plaintiffs were
employed.* At the same time, it must be recalled that either
plaintiff could have filed his initial charge with the Library as
a group complaint, note 5 supra. Neither did, In these cir-
cumstances the scope of the instant suit cannot be expanded
byond the allegations of discrimination against the plaintiffs
merely by adding class actin language in the complaint.

[Other Rulings]

What has gone before indicates that the claims of the in-
dividual plaintiffs, unique in their nature, must be seveed as
improperly joined under Fed. R. Civ. P. 20. The broad rang-
ing discovery sought by the plaintiffs relating to the Library’s
entire employment file since 1960 will be restricted to matters
relating to the plaintiffs’ individual claims.

The motion of the defendant Hutchison to dismiss will
be granted. Under the 1972 amendments, the ‘‘head of the
department, agency, or unit, as appropriate, shall be the
defendant.’’ 42 U.S.C.A. § 2000e-16)c). Thus the defendant
Hutchison, the director of personnel, is not a proper defen-
dant and should be dismissed. Moreover, it is clear that any
relief that the Court may subsequently order on the individual
claims of the plaintiffs can be afforded by orders against the
remaining defendant, the Librarian of Congress.

6 In this respect, the attempted reliance by the plaintiffs on the
findings of racial discrimination in the Library by the hearing ex-
aminer in Ringer v. Mumford, [5 EPD 8481] 355 F. Supp. 749
(D.D.C. 1973) is misplaced. The Court did not hold that those fin-
dings were not arbitrary and capricious. It had no occasion to
review those finding of class-based discrimination and still has
none. 355 F. Supp. at 753, 754n.11. .

9a

Therefore, it is this 17th day of August, 1973, Ordered:

1. ‘hat the motion of the plaintiffs for certification as a
class action be and the same is hereby denied:

2. That the motion of the defendants to sever the claims
of the individual plaintiffs be and the same is hereby granted;

3. That the motion of the defendants for a protective
order be and the same is hereby granted and the requests for
discovery served upon the defendants shall be limited to mat-
ters relating to the administrative complaints of discrimina-
tion filed with the Library by the plaintiff Williams on
August 11, 1972; and by the plaintiff Bostick on April 19,
1972; and

4. That the motion to dismiss of the defendant Hut-
chison be and the same is hereby granted.

10a

First Court of Appeals Decision

UNITED STATES COURT OF APPEALS,
DISTRICT OF COLUMBIA CIRCUIT.

No. 73-2120
JOSLYN N. WILLIAMS AND RoserT L. Bostick, Appellants,
v.
L. QuiNCY MUMFORD, LIBRARIAN OF CONGRESS, ET AL.
Argued 31 Oct. 1974
Decided 10 Feb. 1975
Rehearing En Banc Denied April 4, 1975.

Before Ross and WILKEY, Circuit Judges, and MARKEY, *
Chief Judge for the United States Court of Customs and Pa-
tent Appeals.

WILKEY, Circuit Judge:

Williams and Bostick are black employees of the Library
of Congress. Bostick claims that from the time he began his
employment with the Library in 1947 he has been subject to
racial discrimination as regards his job classification and pro-
motion. On or about 19 April 1972 Bostick filed a formal
complaint alleging discrimination with the Equal Employment
Opportunity (EEO) Office of the Library of Congress. Four
months later he amended his complaint and _ alledged
discrimination affecting all other black employees of the
Library. In November 1972 the EEO Office returned the
amended complaint, stating that the office was not equipped
to handle broad inquiries into the general policies and prac-
tices of the Library.

- Williams had been employed as a copyright examiner
with the Library since June 1967. Soon after he began his
employment with the Library he was elected president of

* Sitting by designation pursuant to 28 U.S.C. § 293(a).

lla

Local 1826 of the American Federation of Government
Employees, a union which represents Library employees and
president of a task force named ‘‘Black Employees of the
Library of Congress.’’ Williams alleges he was active in pro-
moting equal employment in the Library and in aiding
employees who brought discrimination actions. In June 1972
he was given notice of removal effective 21 July 1972.' The
removal was based on charges of material misrepresentations
relating to his schooling, made on his 1967 application for the
position of copyright examiner. In lieu of removal, on 21 July
1972 the Library accepted a _ resignation submitted by
Williams to be effective on 11 August 1972. However, shortly
before the effective date of his resignation, Williams re-
quested that his resignation be withdrawn. After the Library
refused to allow the withdrawal, on 11 August Williams filed
his administrativ complaint with the EEO Office, alleging that
his resignatin was coerced and that his removal was racially
motivated,

Three days later Williams also filed in the District Court
an action solely on his own behalf, alleging that his removal
was the result of racial discrimination and that his resignation
had been coerced. On 20 March 1973 Williams filed an
amended complaint, adding an allegation that 180 days had
passed without final administrative action on his ad-
ministrative complaint. At this point Bostick’s allegations of
discrimination were also added to Williams’ complaint. Final-
ly allegations were added alleging discrimination against all
blacks currently employed by the Library all blacks who had
been employed at any time since 1960, and all blacks who had
sought employment unsuccessfully since 1960, thus making
the complaint on its face a classaction

On 20 August 1973, after a hearing, the District Court
denied Williams’ and Bostick’s request for class certification.

' Williams also contends he was given the notice of removal just
one week before he was to address the American Library Associa-
tion’s convention about the racial employment policies and prac-
tices of the Library.

12a

The denial was based on two grounds: First, that Williams’
and Bostick’s claims were not typical of the claims of the
class they sought to represent as required by Rule 23(a)(3),
Federal Rules of Civil Procedure. Second, given the effective
administrative remedies available to federal employees apart
from Title VII of the Civil Rights Act of 1964 as amended

by the Equal Employment Opportunity Act of 1972,’ the
class action was not ‘‘superior to other available methods for
the fair and efficient adjudication of the controversy’’ as re-
quired by Rule 23(b)(3), Federal Rules of Civil Procedure.

On 25 September 1973 an appeal from the refusal to cer-
tify a class action was taken.’ We are presented with the
question whether the refusal by a district court to certify a
class action constitutes an appealable order. On the facts of
this case, we decide that such an order is not appealable and
therefore dismiss this appeal for lack of jurisdiction.

1. APPEALABILITY UNDER 28 U.S.C. §§ 1291

[1] The principal source of our jurisdiction to hear ap-
peals from the District Court is 28 U.S.C. § 1291 which pro-
vdes: ‘*The courts of appeals shall have jurdisdiction of ap-
peals from all final decisions of the district courts of the
United States . . . except where a direct review may be had in
the Supreme Court.’’ Our task, thus, must be to determine
whether the refusal to certify a class action constitutes a final
decision. A final decision is not necessarily ‘‘the last order
possible to be made in a case . . .’;* however, to be ‘‘final’” it
must have the effect of resolving litigation on the merits. We
have been instructed by the Supreme Court to give a flexible
interpretation to ‘‘final decision’? when used in the context of
section 1291. As a result, the requirements of finality must be

742 U.S.C. § 2000e-16.

’ The District Court refused a request to certify the question for
appeal under 28 U.S.C. § 1292(b) on 10 October 1973.

‘ Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85
S.Ct. 308, 311, 13 L.Ed.2d 199 (1964).

13a

given a ‘‘practical rather than a technical contructin.’’’ ‘‘The
inquiry requires some evaluation of the competing considera-
tions underlying all questins of finality—‘the inconvenience
and costs of piecemeal review on the one hand and the
danger of denying justice by delay on the other.’ Dickinson v.
Petroleum Conversion Corp., 338 U.S. 507, 511 [70 S.Ct.
322, 324, 94 L.Ed. 299] (1950) (footnote omitted).’’®

[2] Applying this analysis, it becomes apparent that an
order refusing to certify a class action is generally not a final
decision within the meaning of section 1291.’ It does not
dispose of litigation. It is purely procedural in nature, in that
it determines merely the parties to the action without express-
ing any judgment as to the merits of the case. Moreover, the
correctness of the District Court’s determination does not
evade review since it, along with other prcedural decisions, is
brought up on appeal after final disposition on the merits.

[3,4] Having stated the general rule two qualifications
must be made and their relevance considered. First, it must
be recognized that in some types of cases the refusal to certify
a Classification, as a practical matter, does dispose of the ac-
tion. This is because the plaintiff has such a small monetary

* Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546,
69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949).

* Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140,
2149, 40 L.Ed.2d 732 (1974).

” Caceres v. International Air Transport Assoc., 422 F.2d 141
(2nd Cir. 1970); City of New York v. International Pipe &
Ceramics Corp., 410 F.2d 295 (2nd Cir. 1969); Hackett v. General
Host Corp., 455 F.2d 618 (3rd Cir.), cert. denied, 407 U.S. 925, 92
S.Ct. 2460, 32 L.Ed.2d 812 (1972); Lamarche v. Sunbeam Televi-
sion Corp., 446 F.2d 880 (Sth Cir. 1971); Siebert v. Great Northern
Dev. Co., 494 F.2d 510 (Sth Cir. 1974); Walsh v. City of Detroit,
412 F.2d 226 (6th Cir. 1969)(order permitting class action); King v.
Kansas City So. Indus., Inc., 479 F.2d 1259 (7th Cir. 1973); Thill
Sec urities Corp. v. New York Stock Exchange, 469 F.2d 14, 17
(7th Cir. 1972)(denial of a motion to strike clas action allegations);
Gerstle v. Continental Airlines, Inc., 466 F.2d 1374 (10th Cir.
1972).

l4a

or other interest to be vindicated in the action that it would
not be worth the plaintiff’s time to continue the actin. In a
series of recent cases, the Second Circuit has developed a
body of law relating to this type of case, commonly referred
to as the ‘‘Death Knell’’ doctrine. Secondly, in some cases a
subsidiary controversy develops as an offshoot of the main
litigation. A decision disposing of such an offshoot may be
held to be a final decision even if the decision if procedural in
nature, if it appears likely that the matter would evade review
if taken on appeal after a final disposition of the entire litiga-
tion. This has been called the Collateral Order doctrine. We
turn now to examine both doctrines in more detail

A. The Applicability of the ‘‘Death Knell’’ Doctrine

The ‘‘Death Knell’’ doctrine was developed in the Second
Circuit in the crucible of Eisen v. Carlisle & Jacquelin. In
Eisen I* the Second Circuit denied a motion to dismiss an ap-
peal from a District Court order refusing to certify a class ac-
tion. In that case, Eisen sued on behalf of himself and all
odd-lot purchasers and sellers on the New York Stock Ex-
change alleging antitrust and Securities Act violatins. Eisen’s
claim for damages was only for $70.00. Appropriately
enough, the court noted:

We can safely assume that no lawyer of competence is
going to undertake this complex and costly case to
recover $70 for Mr. Eisen. . . . If the appeal is dismissed,
not only will Eisen’s claim never be adjudicated, but no
appellate court will be given the chance to decide if this
class action was proper under the newly amended Rule
23 [Federal Rules of Civil Procedure].’

The Second Circuit faced the same issue soon thereafter in
Green v. Wolf Corp. Plaintiff Green and the members of the
class alleged that they had been required to pay an excessive

* 370 F.2d 119 (1966), cert. denied, 386 U.S. 1035, 87 S.Ct. 1487,
18 L.Ed.2d 598 (1967).

* 370 F.2d at 120.

15a

price for certain publicly held securities. As the court noted,
‘*Green obviously does not intend to press what will probably
be an enormously complex and expensive action to recoverless
than $1,000.’’'® In two cases consolidated under the title Korn
v. Franchard Corp.,'' the court decided that Mrs. Korn’s suit
for violations of the federal securities laws and for violations
of New York law ‘‘will go no further without class suit
designatin.’’ Because Mrs. Korn’s losses amounted to $386,
the Second Circuit denied a motion to dismiss an appeal de-
nying class actin certification. However, in the companion
case the actual claims of the representative plaintiffs were for
about $8,500. The court concluded, ‘‘[t]hat figure is close
enough to the federal jurisdictional minimum for certain
types of cases to suggest it is sufficient incentive to keep the
case alive.’’'? Accordingly, the ‘‘Death Knell’’ doctrine was
inappropriate in that case and the appeal was dismissed.

In this case, it is clear that both Bostick and Williams
have a sufficient incentive to continue this suit. Williams in
his original complaint requested reinstatement in his former
position. Today Williams in addition would be entitled to ap-
proximately two and a half years’ back pay should be
prevail,'? an amount which we can safely assume is greatly in

'° 406 F.2d 291, 295 n. 6 (1968), cert. denied, 395 U.S. 977, 89
S.Ct. 2131, 23 L.Ed.2d 766 (1969).

'' 443 F.2d 1301 (2nd Cir. 1971).

'? 443 F.2d at 1306-07. More recently, the ‘‘Death Knell’’ doc-
trine has been specifically rejected by the Seventh Circuit, King v.
Kansas City So. Indus., Inc., 479 F.2d 1259 (7th Cir. 1973), and
criticized by the Third Circuit, Hackett v. General Host Corp., 455
F.2d 618 (3rd Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32
L.Ed.2d 812 (1972). However, the vitality of the doctrine has been
reasserted by the Second Circuit. General Motors Corp. v. City of
New York, 501 F.2d 639 (1974); Kohn v. Royall, Koegel & Wells,
496 F.2d 1094 (1974); Herbst v. International Tel. & Tel. Corp.,
495 F.2d 1308 (1974); Shayne v. Madison Square Garden Corp.,
491 F.2d 397 (1974).

'?42 U.S.C. § 2000e-5(g), made applicable to the Federal
Government by 42 U.S.C. § 2000e-16(d).

l6a

excess of $10,000.00. As to Bostick, the request is for a
higher GS rating, which he alleges was improperly denied
him. In addition, it should be noted that the Equal Employ-
ment Opportunity Act amendments specifically provided for a
reasonable attorney’s fee for the prevailing party at the
discretion of the court in just this type of case.'* It certainly

'*42 U.S.C. § 2000e-5(k), made applicable to the Federal
Government by 42 U.S.C. § 2000e-16(d).

Hackett v. General Host Corp., 455 F.2d at 622)23:

Thus the ‘‘death knell’’ rule would operate only in that nar-
row category of cases where the object of the suit is the
recovery of money damages, and where a statute affords
federal jurisdiction regardless of amount. This narrow category
is, however, significant for consumer advocates. But even in
this field, the ‘‘death knell’’ rationale, based upon the assump-
tion that no competent lawyer would undertake a complicated
case to recover a small amount of money, must be qualified by
several considerations. A number of federal statutes provide
for the award of counsel fees and costs.’ Indeed the statute
under which 3. E.g. statutes providing for damages arising
from the following improper actions, a single instance of which
may harm individual members of large clases, additionally pro-
vide that successful plaintiffs’ attorneys shall be awarded
reasonable attorneys’ fees and costs: Failure to disclose under
the Truth in Lending Act 15 U.S.C. § 1640 (1971); Unlawful
wiretapping, 18 U.S.C. § 2520 (1971). Other statutes place the
decision of whether to allow reasonable attorneys’ fees and
costs within the discretion of the district court: Securities Acts
Violations; 15 U.S.C. §§ 77k, 77www; 78i (1971). See also 28
U.S.C. § 2678 (1971) providing for reasonable attorneys’ fees
in suits involving torts committed by the Federal Government
where its immunity has been waived.

Mrs. Hackett sues contains such a provision. 15 U.S.C. § 15
(1971). If the ‘‘death knell’’ is to ring for her case the rope is
in her attorney’s hand. There is no certain basis for the
assumption that an interested holder of a small claim will be
unable to prevail upon a private attorney to pursue that claim
in the hope of being compensated by the award of ‘‘reasonable
counsel fees’’ against a wrongdoer. Moreover the burgeoning
in recent years of interest in publicly supported legal service
organizations and of private support for legal aid and public
interest law firms cannot be disregarded.‘ Many small but im-

17a

may be questioned whether the ‘‘Death Knell’’ doctrine can
ever be applied to a case where attorney’s fees are available to
the prevailing party.'*

B. The Applicability of the Collateral Order Doctrine

The Collateral Order doctrine had its origins in the
Supreme Court case of Cohen v. Beneficial Industrial Loan
Corp.,'® in which the Court considered the constitutionality
of requiring a plaintiff in a New Jersey federal court to post
bond to insure payment of defendant’s attorney’s fees as re-
quired by New Jersey statute. The case was ‘‘too important
to be denied review and too independent of the cause itself to
require that appellate consideration be deferred until the
whole case is adjudicated.’’'’ In Cohen the interlocutory
order being appealed was effectively immune from review
after judgement. If the District Court’s decision not to apply
the New Jersey statute were not reviewable at that point, the
defendant would, as a practical matter, be denied any protec-
tion under the statute. Eisen III'* is a more recent application
of the same doctrine. The District Court decided that the
defendants would be required to bear 90% of the cost of
notice to the plaintiff class of odd-lot buyers and sellers. Ob-
viously, even if the defendants could have theoretically sought
to collect their outlay had they prevailed, there would be little
practical possibility of collecting over $20,000 from the over
two million members of the class. As the Supreme Court
noted on appeal from Eisen III:

portant 4. See Note, The New Public Interest Lawyers, 79 Yale
L.J. 1068 (1970). claims heretofore, for purposes of litigation,
beyond the pale of financial practicability, have been suc-
cessfully litigated by such organizations in recent years. Thus
an adverse class action decision may ring out as a death knell
on far fewer occasions than superficial analysis would suggest.

'© 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
'’ 337 U.S. at 546, 69 S.Ct. at 1226.

'* Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2nd Cir. 1973),
affirmed on this issue, 417 U.S. 156, 94 S.Ct. 2140, 2150, 40
L.Ed.2d 732 (1974).

18a

Analysis of the instant case reveals that the District
Court’s order imposing 90% of the notice cost on
respondents likewise falls within ‘‘that small class [of
decision which finally determine claims of rights
separable from, and colateral to, rights asserted in the
action, too important to be denied review and too in-
dependent to the cause itself to require that appelate con-
sideration be deferred until the whole case _ is
adjudicated].’’ It conclusively rejected respondents’ con-
tention that they could not lawfully be required to bear
the expense of notice to the members of the petitioner’s
proposed class. Moreover, it involved a collateral claim
unrelated to the merits of the petitioner’s claims. Like
the order in Cohen, the District Court’s judgment on the
allocation of notice cost was ‘‘a final disposition of a
claimed right which is not an ingredient of the cause of
action and does not require consideration with

S299
i

[5] In this case, the refusal to certify a class action did
not determine collateral claims completely independent of the
merits of the case. The order is indistinguishable from other
procedural determinations made in the course of discovery
and trial. No funds were required to be expended as in Eisen,
nor rights granted under independent statutes to be dispensed
with as in Cohen. Above all, the correctness of the District
Court’s decision is subject to effective review on appeal from
final judgement. We hold, in conclusion, that the District
Court’s refusal to certify a class action in this case did not
constitute the ‘‘Death Knell’’ of the action nor was it a col-
lateral and independent determination. Therefore, the deci-
sion was not a ‘‘final’’ one within the meaning of section
1291.

'°417 U.S. at 172, 94 S.Ct. at 1250.

19a

Il. APPEALABILITY UNDER 28 U.S.C. §§ 1292(a)(1)

In the alternative, appellants contend that this court has
jurisdiction over this appeal under 28 U.S.C. ** 1292(a)(1)
which provides:

The courts of appeals shall have jurisdiction of appeals
from: (1) Interlocutory orders of the district courts gran-
ting, continuing, modifying, refusing or dissolving in-
junctions, or refusing to dissolve or modify injunctions,
except where a direct review may be had in the Supreme
The Court also stated that ‘‘[t]he cases cited by the City deal-
ing with injunctive relief sougiit by school children to prevent
discrimination on the ground of race have no application here.’’
410 F.2d at 299. The opinion offers us no further elaboration.

4 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966).
$385 U.S. at 25, 87 S.Ct. at 195.

26 See, e.g., Enelow v. New York Life Insurance Co., 293 U.S.
379, 55 S.Ct. 310, 79 L.Ed. 440 (1935); Ettleson v. Metropolitan
Life Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176
(1942); City of Morgantown v. Royal Insurance Co., 337 U.S. 254,
69 S.Ct. 1067, 93 L.Ed. 1347 (1949); Baltimore Contractors, Inc. v.
Bodinger, 348 U.S. 176 (1955). In Enelow and Ettleson it was held
that where the plaintiff’s action was originally cognizable in law, a
procedural motion deciding that defendant’s equitable defenses
should be tried first was held to be an appealable order under sec-
tion 1292(a)(1)’s predecessor. On the other hand, in City of
Morgantown and Baltimore Contractors it was held that when the

2la

Court in Switzerland Cheese has opted for a narrow construc-
tion of the statutory language. Although an order denying
class action certification might at some later stage have an ef-
fec t on the scope of equitable relief, such orders ‘‘in no way
touch on the merits of the claim’’ and thus fall outside of the
scope of the section.

Conscious as we are of our responsibility to maintain the
jurisdictional balance drawn by the Congress under sections
1291 and 1292, we are particularly reticent to expand upon
Statutory language which was intended as a limited exception
to the final judgment rule.?”? We emphasize that the District

plaintiff’s action was one cognizable in equity and the defendant’s
counterclaim was either one in law (City of Morgantown) or one in
equity (Baltimore Contractors), the trial court’s decision as to the
order of the proceedings was interlocutory in form and substance
and was not appealable under section 1292(a)(1). Of course, the im-
portance of these decisions, as a practical matter, has been undercut
by Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948,
3L.Ed.2d 988 (1959), and its progeny. However, these cases do give
some indication of the meaningless distinctions which continue to
be given some currency in this area of the law.

*? In Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75
S.Ct. 249, 99 L.Ed. 233 (1955), the Supreme Court discussed in
some detail the legislative history of section 1292. Specifically, the
Court discussed the fundamental policy determinations underlying
the statute:

The Congress is in a position to weigh the competing interests of
the dockets of the trial and appellate courts, to consider the prac-
ticability of savings in time and expense, and to give proper weight
to the effect on litigants. When countervailing considerations arise,
interested parties and organizations become active in efforts to
modify the appellate jurisdiction. This Court, however, is not
authorized to approve or declare judicial modification. It is the
responsibility of all courts to see that no unauthorized extension or
reduction of jurisdiction, direct or indirect, occurs in the federal
systems. . . . Any such ad hoc decisions disorganize practice
by encouraging attempts to secure or oppose appeals with the con-
sequent waste of time and money. The choices fall in the legislative
domain. They are enlargement of the allowable list of appealable
interlocutory orders; abandonment of fragmentary appeals; or

22a

Court did not state that the claim for an injunction had no
merit, nor that it lacked jurisdiction to grant an injunction,
nor even did it express any opinion as to whether injunctive
relief was warranted at any particular point in the pro-
ceedings. The District Court denied certification of a class ac-
tion under Rule 23, Federal Rules of Civil Procedure, a quite
distinguishable action. As a result, appellants have failed to
bring the order within the only arguably relevant exception to
the final judgment rule, 28 U.S.C. § 1292(a)(1).

The appeal must therefore be dismissed.

Before BAZELON, Chief Judge, and WRIGHT, MCGOWAN,
TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY,
Circuit Judges.

ORDER
PER CURIAM.

It appearing that appellants’ suggestion for rehearing en
banc and amicus curiae’s suggestion for rehearing en banc
having been transmitted to the full Court and there not being
a majority of the Judges in regular active service in favor of
having this case reheard en banc, it is

Ordered by the Court en banc that the aforesaid sugges-
tions for rehearing en banc are denied.

Statement of Circuit Judge SpoTTSwooD W. ROBINSON,
Il, with whom Chief Judge BAZELON and Circuit Judges J.
SKELLY WRIGHT and LEVENTHAL join, as to why they would
grant rehearing en banc.

Spottswoop W. Rosinson, III, Circuit Judge:

It is hardly necessary in this age to argue the worth of
the class action in our ever-expanding system or

general allowance of such appeals in the discretion of the trial judge
upon findings of need, with or without the consent or approval of
the appellate court.

348 U.S. at 181-82, 75 S.Ct. at 252 (footnote omitted).

23a

jurisprudence. Over the years it has promoted the conve-
nience of courts and parties infinitely, reduced the expense of
lawsuits incalculably, and the contributed immeasurably to ef-
ficient judicial administration. It has, too, made its mark on
the deveiopment of the law. The reports are dotted with land-
mark cases which without benefit of representative litigation
would never have seen the light of day.

Even more profoundly, the class action has provided ac-
cess to the judicial process for those who need it most. It has
been the refuge of the poor, the hope of the downtrodden,
and the salvation of the many whom our social institutions all
too frequently victimize, unwittingly or otherwise. Truly it is
said that ‘‘[t]he class action is one of the few legal remedies
the small claimant has against those who command the status
quo.’””!

In sum, as two leading authorities have aptly observed,
‘‘[iJt now is apparent that the increasing complexity and ur-
banization of modern American society has tremendously
magnified the importance of the class action as a procedural
device for resolving disputes affecting numerous people.’”?
And since class-action litigation could be chilled by nonap-
pealability of denials of certifications save in narrowly limited
circumstances, it is highly important to ascertain whether the
panel’s decision to that effect is correct.’ The importance of
the question is underscored by the number of decisions it has
generated in other circuits, and the difficulty of the problems
by the conflict of opinion which plagues them.‘

' Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 186, 94 S.Ct. 2140,
2156, 40 L.Ed.2d 732, 748 (1974) (Douglas, J. dissenting).

*7 C. Wright & A. Miller, Federal Practice § 1751, at 510 (1972).

* Rehearing en banc is warranted ‘‘when the proceeding involves
a question of exceptional importance.’’ Fed.R.App.P. 35(a)(2).

* See Yaffee v. Powers, 454 F.2d 1362, 1364-1365 (Ist Cir. 1972);
Caceres v. International Air Transport Ass’n, 422 F.2d 141,
142-144 (2d Cir. 1970); City of New York v. International Pipe and
Ceramics Corp., 410 F.2d 295, 298-299 (2d Cir. 1969); Rodgers v.
United States Steel Corp., 508 F.2d 152, 159-161 (3d Cir. 1975);

24a

1 would, accordingly, grant rehearing of this case en
banc. That is not necessarily to say that the panel reached the
wrong result. It is to say, however, that in my view the matter
calls for consideration and decision by the full court.

Hackett v. General Host Corp., 455 F.2d 618, 621-626 (3d Cir.),
cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972);
Brunson v. Board of Trustees, 311 F.2d 107, 108-109 (4th Cir.
1962), cert. denied, 373 U.S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690
(1963); Lamarche v. Sunbeam Television Corp., 446 F.2d 880 (Sth
Cir. 1971); Siebert v. Great Northern Dev. Co., 494 F.2d 510, 511
(Sth Cir. 1974); Walsh v. City of Detroit, 412 F.2d 226, 227 (6th
Cir. 1969); King v. Kansas City Southern Indus., 479 F.2d 1259,
1260 (7th Cir. 1973); Thill Sec. Corp. v. New York Stock Ex-
change, 469 F.2d 14, 15-17 (7th Cir. 1972); Price v. Lucky Stores,
501 F.2d 1177, 1179 (9th Cir. 1974); Gerstle v. Continental Airlines,
466 F.2d 1374, 1377 (10th Cir. 1972).

25a

Second District Court Decision

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 72-1633
Rosert L. Bostick, Plaintiff,
v.

DANIEL J. Boorstin, Defendant.

Judgment
Filed September 13, 1978

For reasons more fully stated in the attached Memoran-
dum, Findings of Fact, and Conclusions of Law, it is this
12th day of September 1978, hereby

ORDERED and ADJUDGED that JUDGMENT should be and is
entered for DEFENDANT.

/s/ Louis T, OBERDORFER
United States District
Judge

26a

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 72-1633
Rosert L. Bostick, Plaintiff,
Vv.

DANIEL J. BoorstiIn, Defendant.

Memorandum, Findings Of Fact, And Conclusions Of Law
Filed September 13, 1978

Plaintiff, Robert L. Bostick, is employed by the Library
of Congress as a visual information specialist, grade GS-13.
In this action he alleges that officials at the Library have
discriminated against him by failing to promote him, or to
reclassify his position, to grade GS-15 in violation of Title
VII of the Civil Rights Act of 1964 as amended by the Equal
Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-2,
et seq. Specifically, he argues that the managers of the
Library discriminated against him on the basis of race (1) in
refusing his request that his position be reclassified to GS-15,
(2) in de-emphasizing certain of his duties in connection with
a classification audit of his position, (3) in refusing to assign
additional duties to him in order to entitle him to an
‘‘automatic promotion plan’’ available to other employees,
and (5) in failing to make him a beneficiary of the Library’s
affirmative action program. The Library counters that none
of the decisions affecting Bostick were motivated by con-
sideration of race, and that Bostick is classified as the highest
grade level permitted by Civil Service Commission guidelines
for someone performing the duties which Bostick performs.

For the reasons stated in the Findings and Conclusions
which follow, the Court concludes that Bostick has failed to

27a

prove discrimination on the basis of race. Accordingly, judg-
ment will be entered for the Library.'

I. FINDINGS OF FACT
A. Bostick’s Early Experience at the Library

Bostick is a high school graduate. He has taken post-high
school courses in graphic analysis and visual information, but
has earned no advanced degrees. He began his employment at
the Library in mid-February 1947 as a graphic information
specialist, in the General Research Section. No GS level was
assigned to the position yntil the spring of that year. Until a
grade assignment was made, Bostick was paid at the hourly
rate of a CAF-11. Bostick was subsequently transferred to the
Legislative Research Service (LRS) [later renamed Congres-
sional Research Service (CRS)}] where he has remained
employed until the present.

During the period 1947 through 1950, Bostick very ably
developed the graphic service of the Library from its incep-
tion to an efficiently organized program that successfully met
every demand for illustrative material. The demand for
graphic services increased steadily and in April 1950, a
graphic analyst was appointed to work with Bostick. Shortly
thereafter, despite the increased work load, LRS dismissed

' Bostick’s complaint was originally filed with Joslyn Williams as
co-plaintiff. Together they sought to represent all black employees
of the Library since 1960, in an action challenging a variety of
employment practices. Their motion for class certification,
however, was denied, and separate trials were ordered. Williams v.
Munford, No. 1633-72 (D.D.C., Aug. 20, 1973), appeal dismissed,
511 F.2d 363 (D.C. Cir. 19750 (rehearing en banc denied), cert.
denied, 423 U.S. 828 (1975).

Throughout this proceeding, Bostick’s counsel has repeatedly
sought reconsideration of class certification. It has long been ap-
parent that Bostick occupied a unique position at the Library, and
that the issues raised by his reclassification request are not typical
of the class members he sought to represent. Accordingly, the
Court has refused to reconsider the question of class certification.

28a

Bostick’s assistant. Since that time, Bostick has worked
without in-house assistance.

In September 1952, Bostick requested that his position be
reclassified to grade GS-12 to reflect a change in his job
duties and an increase in his performance. In March 1953,
LRS submitted Bostick’s reclassification request to the
Classification Office within the Library. In April 1953, the
Classification Office informed Bostick that his request had
been denied because his position was correctly classified as
GS-11. In May 1953, the Library’s Classification Officer
wrote to the Civil Service Commission (CSC) to clarify the
distinctions between the CSC classification standards for the
grades GS-11 and GS-12 in Bostick’s series. In late July 1953,
the CSC ruled that Bostick’s position was correctly allocated
at grade GS-11.

In September 1953, the Library’s Director of Personnel
and the Library’s Classification Officer wrote to the CSC in
support of the reclassification of Bostick’s position. They
spoke very highly of Bostick, his work, and his respon-
sibilities. The evidence at trial indicates that their assessments
are as accurate today as they were then. They stated:

* * *

Based on study of the grade GS-11 and GS-12 stan-
dards for Illustrator (General), GS-1020, it seems to us
that the duties and responsibilities outlined in the
description may be properly allocable to grade GS-12.
The following are factors, we believe, that should be
considered: (a) As demonstrated by the exhibits, there
has been a steady increase in the complexity of
assignments since the last allocation in April 1948 which
complexity we do not believe was present at that time.
(b) The demand for graphic analysis by Members and
Committees of Congress has increased almost to the ex-
clusion of work for the staff of the Legislative Reference
Service or of the Library. (c) The consultative element in
the position has increased to the point where Mr. Bostick

29a

is consulted by Members on points of graphic presenta-
tion in much the same way as analysts in their respective
fields in the Legislative Reference Service. In addition, in
many instances, perhaps even the greater number, the
presentation is left completely to his own discretion.

We wish to point out again that Mr. Bostick carries
Out his assignments without any technical supervision.
When he receives requests for graphic presentation of a
topic, he analyzes and inteprets data presented. He is fre-
quently called upon to see that the initial data to be
graphically presented is collected. If established
authoritative sources exist, he gathers the data himself; if -
the services of an expert in a particular field are required,
he relies upon the appropriate staff member to collect
and evaluate necessary information.

. . » One of the factors in the recent development of the
position has been the major shift of activity from work
for other members of the Legislative Reference Service
who do work for Congress to work, primarily, directly
for Members and Committees of Congress. Thus, in a
real sense the incumbent of the position acts as a top
specialist and advisor for Congress as do the senior
specialists and other high level specialists of the Library
in other fields. ... The personal contacts, the impor-
tance and effect of the work performed and the in-
dependence of operation which these facts imply cannot
be overly emphasized.

. . + We would also liken this position to the position
described in the GS-12 standards as the top specialist for
an agency. In this case, in a real sense, Congress is the
agency whose graphic work he advises on or performs
and at times directs.

* * *

30a

Nevertheless, in March 1954, the CSC informed the Library
that Bostick’s position was appropriately graded at GS-11.

Bostick appealed the CSC’s decision to the CSC Board
of Appeals and Review, and in late February 1955, the Board
informed Bostick that his position was properly classified at
the GS-11 level.

On July 21, 1955, Bostick submitted another reclassifica-
tion request to LRS, together with a draft description of his
job. LRS forwarded the request to the Library’s Classifica-
tion Office in February 1956. On August 16, 1957, the
Library wrote to the CSC concerning the reclassification of
Bostick’s position. On September 15, 1958, the CSC replied
that the Library had the authority to increase the grade of
Bostick’s position. In November 1958 the Classification Of-
fice determined to reclassify Bostick’s position to GS-12 and
the Librarian of Congress took the unusual action of per-
sonally visiting Bostick to review his work. On December 1,
1958, the Library reclassified Bostick’s position to GS-12.

On February 8, 1961, Bostick asked Dr. Hugh Elsbree,
the Director of LRS, about the possibility of reclassifying his
position to a higher grade. In late August 1963, LRS sent to
the Classification Office various papers submitted by Bostick
in support of his request for reclassification to GS-13, and
specifically requested early attention to Bostick’s reclassifica-
tion request. In December 1963, Mr. Clarence Witt of the
Classification Office interviewed Bostick. In March 1964 the
Classification Office interviewed Bostick. In March 1964 the
Classification Office refused the request; Bostick’s position
was ‘‘redescribed’’ at the same GS-12 level.

In April 1964 Bostick filed a written position classifica-
tion appeal with the Library’s Assistant Director of Person-
nel. In early April 1965 Bostick’s position was reclassified to
GS-13 on the basis of an ‘‘incumbency allocation.’’? This

> “‘Incumbency allocation’’ refers to the classification of a posi-
tion at a higher than normal level because of the impact the par-
ticular strengths of the incumbent has on the job.

3la

reclassification was explained at trial by Lester S. Jayson.
From the early 1960’s until his retirement from the Library in
the mid-1970’s, Jayson served first as Deputy Director, and
subsequently, as Director of CRS.’ Jayson took a personal in-
terest in Bostick’s case. Together with Burnish Walker, then
Executive Officer of CRS,‘ Jayson was responsible for the use
of an incumbency allocation in Bostick’s case. He turned to
this seldom employed device because he was aware that
Bostick was at the full performance level for the visual infor-
mation series, 1084, and because he knew that the CSC had
on previous occasions ruled that GS-12 was the highest grade
that Bostick’s duties would support.

B. The Refusal to Reclassify at Issue in this Suit

In the third week of April 1971 Walker sent Bostick a
memorandum stated that, to his knowledge, Bostick’s posi-
tion description had not been reviewed recently. The
memorandum requested Bostick’s comments on the accuracy
and currency of the description of his position. By memoran-
dum dated May 20, 1971, Bostick responded that, indeed, he
did disagree with the position description. He argued that his
responsibilities were substantially equal to those of other
“*specialists’’ in the CRS who are graded at GS-15:

* * *

I submit that the duties and responsibilities of the
Visual Information Specialist are comparable to those
Outlined in the CRS job description for **Specialist,
GS-15’’ as it relates to:

1. Nature and Purpose of work, including
A. Introduction, and B. Duties
2. Scope and Effect of Work

’ Jayson was named by Bostick as one of the Library officials
alleged to have discriminated against him on the basis of race.

‘ Walker is another official alleged to have discriminated against
Bostick on the basis of race.

32a

3. Supervision and Guidance Received
4. Mental Demands
5. Personal Work Contacts

It should be noted, however, that since the
incumbent’s position was last reviewed, an additional ele-
ment has been added: As the workload demands, and
depending upon the availability of funds, the Visual In-
formation Specialist prepares layouts, specifications and
directions for the preparation of visual information
material by private commercial, specialists on a contrac-
tual basis. The incumbent has responsibility to review
finished products, and to accept, reject or modify such
visual material prior to delivery to Congressional offices.

I further assert that the product of the other specialists
is the written presentation, while that of the incumbent is
the visual presentation. ...

In June 1971 Walker requested from James Robinson a
detailed description of Bostick’s duties. During the early
1970’s Robinson served with the CRS as the Coordinator of
Research. He was responsible for the review and quality con-
trol of all outgoing CRS work, and he personally reviewed
the work product of the entire CRS staff. He had day-to-day
contacts with Bostick, and was familiar with the scope and
nature of his work. Robinson was a forthright and credible
witness who testified that he did the best he could to describe
Bostick’s position fairly and accurately. The memorandum
Robinson submitted to Walker states:

.. . [The CRS graphics] program combines the work of
(Visual Information Specialist) Mr. Bostick, the contract
service of Art Services, Inc. and often the supporting in-
formational services of the analysts of the CRS subject
divisions. ...

In terms of fanfold requests, the graphics workload
has been divided roughly equally between Mr. Bostick

33a

and Art Services ... It should be noted that a fanfold
request can vary in content from a simple mounting job
or the lettering of a certificate to a complex map with
multiple overlays or a series of 9 graphs. Both have had
fanfold requests covering this range. In terms of cost to
the service for this 49 week period [June 1970 — May
1971], CRS has paid Art Services $4,979 in contract job
changes, and paid Mr. Bostick $19,500 in gross wages.

Though some project requests are received directly
from Congressional offices by Mr. Bostick, the front of-
fice receives the bulk of these requests and I assign them.
Assignment criteria are as follows: If Mr. Bostick’s
backlog is such that he can meet the deadline and no
special photographic equipment is needed to complete the
assignment, the request is assigned to Mr. Bostick; his
cost to the Service is fixed and the quality of his work is
excellent. In instances where the deadline is very short (a
common occurance) or when substantial technical equip-
ment is needed, or when Mr. Bostick’s time is fully
scheduled, or at his request, I assign the project to Art
Services. Occasionally, but not often, a job will be split;
i.e., Mr. Bostick consulting with the Congressional office
and doing a conceptual sketch, and Art Services render-
ing the finished work. Such instances normally arise
either when the job is sufficiently complex that graphics
consultation is indicated, but working time is short, or
when Mr. Bostick has begun routine assignments that he
cannot finish in time to meet the deadline . . . When Mr.
Bostick is absent or hurrying to finish a priority assign-
ment, I have called upon Art Services to provide graphics
consultation to Congressional requesters (in my
presence); this alternative has proven quite successful.
The Art Services graphics consultant and specialist nor-
mally used is Mr. Brown whose services are charged to
CRS at the rate of $10.50 per hour, and whose pay scale
is $7.00 per hour.

34a

Within this general framework, Mr. Bostick’s actual
work month typically includes the following professional
services: reception of graphics requests from Congres-
sional offices by phone or in person; writing up such re-
quests in standard CRS format; advising inquiring CRS
analysts, Members and their staffs as to sound and ex-
ploitable graphics techniques and possibilities applicable
to their purposes, executing a broad range of visual,
graphic, design, geometric and artistic skills in the form
of statistical or organizational charts, lettered tables,
maps, illustrations, inscriptions, in ornamental lettering
styles, layouts ready for the printer, and visual informa-
tional presentations for inclusion in the Congressional
Record, hearings, reports, CRS monographs and com-
mittee prints; maintaining a working knowledge of and
relationship with certain other Library divisions such as
the Map Division, Photoduplication Service and Prints
and Photographs; securing from CRS analysts the re-
quisite economics, military, demographic, political or
other specialized data for completion of assignments; the
translation of these data and other information supplied
by requesting offices into visually effective and accurate
graphic forms. Since Mr. Bostick works without
technical supervision or in-house graphics assistance, a
good deal of his time is taken up by self-checking and
proofing of his own work... . In large measure the op-
tion of utilizing out-of-house contract services has reduc-
ed the workload pressures and schedule demands upon
Mr. Bostick without imposing significant supervisory or
administrative duties upon him. This three-sided arrange-
ment has since its inception a year ago been productive,
harmonious and flexible enough to respond to the ex-
treme variation of graphic services requested and the
shifting volume flow typical of our enterprise at CRS.

In response to questions arising on occasion: (a) Art
Services .. . can perform nearly all of the services pro-
vided by Mr. Bostick except his continued liaison with

35a

other departments of the Library. They would, of
course, lack his personal acquaintance with a number of
Congressional staff personnel and some Members, and
could not be expected to provide the flexibility and con-
venience of a qualified in-house artist, (b) in terms of
analytical work, Mr. Bostick frequentiy performs
graphics analysis and computational tasks of a quite
sophisticated nature; he is rarely, if ever, called upon to
do economic, social, scientific or other forms of subject
discipline analysis. Indeed this would be counterproduc-
tive in that CRS retains highly trained specialists
specifically for such analytical duties, and they are ex-
pected to provide data and services for Congress through
a graphics specialist on a priority basis equal to that for
direct requests.

From August 1971 to May 1972 Bostick and CRS of-
ficials engaged in a protracted and ultimately unsuccessful
endeavor to write a position description which would be ac-
ceptable to both Bostick and his CRS supervisors. In early
May 1972 CRS sent a draft description of Bostick’s position
to the Classification Office with a request that his position be
reviewed. Jayson testified that he specifically recommended io
the Library’s Classification Officer that Bostick’s position
receive the highest grade to which it was entitled under CSC
standards in light of the duties which Bostick performed. The
CRS referral was prepared by Basil T. Owens, then Assistant
Executive Officer of CRS under Walker. It recommended
that Bostick’s position be awarded

the highest possible allocation consistent with the work
he performs as measured against Civil Service standards
applicable to his occupational series.

On April 20, 1972, Bostick filed his administrative
discrimination complaint with the Library’s EEO Office.

Between July and October of 1972, James Lee, a Posi-
tion Classifications Officer in the Library’s Classification Of-
fice, reviewed Bostick’s position. Lee met with Bostick per-

36a

sonally and conducted a 2 1/2 hour desk audit to review the
duties Bostick performed. Lee testified and the Court finds,
that his audit of Bostick’s position was conducted in-
dependently and without any interference or influence by
CRS personnel; that the position description which CRS sub-
mitted to the Classification Office quite accurately reflected
the duties which Bostick actually performed; and that CRS
officials were responsive and cooperative in providing Lee
with information concerning Bostick’s position. This
testimony is corroborated by credible testimony to the same
effect from Jayson and Owens. Lee also testified as an expert
on classification that Bostick does not perform the same kind
of work as CRS ‘Senior Specialists’? and ‘‘Analysts’’;* that
Bostick was at the full performance level for his series; that
grades above GS-12 are rarely found within the 1084 series;
that the CSC standards for the 1084 series quite accurately
describe the duties performed by Bostick; and that any
research which Bostick performs in connection with his posi-
tion is inherent in the position itself and does not exceed the
research required at the GS-13 level.

In October 1972 Bostick received a copy of Lee’s descrip-
tion of Bostick’s position. Bostick discussed the description
with Lee at length, and told Lee he was very disappointed
with it. At the end of November 1972 Bostick returned his
revised position description, unsigned, to Mr. Henderson, the
Chief of the Economics Division of CRS. Bostick took the
position that the description still did not reflect the full scope

‘ In response to questioning by the Court, Jayson briefly describ-
ed the typical profile of a GS-15 ‘‘specialist’’ at CRS. Specialists
are among the top experts in the United States in their fields. A
typical inquiry of a specialist in economics might be: if Congress
reduced the social security tax by 1%, what impact would that have
on inflation? Specialists are responsible for analyzing the available
sources of information and doing independent research if necessary.
Their typical work product is a written report, which is reviewed by
the appropriate Division Chief at CRS, and by the Coordinator of
Research for policy. With varying amounts of editorial revision,
these reports are frequently published by Congress.

37a

of his duties and responsibilities. Henderson nevertheless sign-
ed the position description and sent it to Walker.

In late December 1972 Robert L. Kuntzelman, then the
Placement and Classification Officer for the Library, re-
quested from the CSC an advisory opinion concerning the
proper allocation of Bostick’s position with respect to series
and grade. In early March 1973 the CSC answered that based
on the information which had been provided by the
Classification Office, there was no basis for a reclassification
of Bostick’s position above GS-13.

Meanwhile, in early October 1972, Beatrice J. Branch,
the Equal Opportunity Counselor responsible for investigating
Bostick’s discrimination complaint, submitted her in-
vestigative report. That report concludes that Bostick’s com-
plaint was for resolution through classification appeals, rather
than through EO channels. In early March 1973 Lloyd Pauls,
Equal Opportunity Officer, after conducting his own in-
vestigation, issued an independent decision concurring with
Branch’s conclusion. He stated, however,

In the documents accompanying the position descrip-
tion that were sent to Civil Service it states ...:

Because of incumbent’s more than 27 years as the
Service’s Visual Specialist his services as an advisor
are frequently requested by various Senators, Con-
gressmen, and their respective staffs. In this capacity
he advises them on how best to achieve the desired
results. He is recognized by peers in his field as an
authority and is frequently contacted by other Agen-
cies and private industry.

It would appear to this Officer that a career employee
with these qualifications not having received more than
two promotions in 26 years of employment in the Library
of Congress and having seen many other career
employees come to the Library after he did and receive
grade levels higher than he should receive some type of
monetary gain.

38a

Bostick has not appealed the Library’s decision not to
reclassify his position to GS-15, either through internal
Library or CSC classification appeal channels. He is currently
a GS-13, step 8, with a salary of just under $30,000 per year.

C. The Evidence of ‘‘Systemic Discrimination’’

In support of his contention that Library managers made
decisions affecting him based on race, Bostick introduced
statistical evidence and reports by Dr. Charles Mann, an ex-
pert on statistical analysis. Dr. Mann testified at trial, and ex-
plained his analysis and conclusions in some detail. The
statistical analysis was based on Mann’s examination of the
Library’s computerized records of payroll information. Mann
controlled for differences in education and tenure in the civil
service, and compared salaries of black and white employees
at the Library. His conclusion was that

[a]fter taking into account measures of education and ex-
perience there is a consistent pattern of highly significant
disparity in pay between Black and nonBlack employees
of the Library of Congress. For the years 1974, 1975,
and 1976, this disparity is estimated to be approximately
three to four million dollars per year depending on the
procedure used to measure education and tenure.

The Library did not dispute Dr. Mann’s statistics. In an
effort to show that the disparity evidenced by these statistics
is unrelated to Bostick’s failure to be promoted, the Library
introduced the report and testimony of Dr. Claude Bartlett,
another expert on statistical analysis. Bartlett conducted
statistical analysis similar to that performed by Mann. In ad-
dition to considering disparity in pay, however, Bartlett also
considered whether there was a disparity in the frequency
with which blacks and whites were promoted at the Library
and he considered separately employees of the Library who
were hired prior to the effective date of Title VII and those
who were hired after. Bartlett concluded:

39a

Overall, the data indicate that for 1974, 1975 and 1976
there was not disparity in promotion rate between Blacks
and Non-Blacks. With regard to annual salary and grade
level there did appear to be race differences that cannot
be explained by differences in tenure, education or age.
The data also suggest that most of these differences were
a result of large differences in the longer tenure
employees, those hired prior to 1972. For employees
hired more recently the disparity in treatment appeared
to be substantially less in 1974, for both salary and
grade. By 1975 grade differentials were similar to 1974,
but salary differentials were not significant. By 1976,
there were no unexplainable differences in grade of salary
level. Thus, the overall pattern of results suggests the
present salary and grade disparity for the longer tenure
employees may be the residual effects of past personnel
practices. The most recent data available for salary and
grade indicates that no disparity can be attributed to
race. Furthermore, for all employees, regardless of date
of hire, no consistent disparity was found in promotion
rate.

At trial, Bostick’s counsel and expert’ argued that
Bartlett’s analysis could be reconciled with Mann’s because
subtle systemic discrimination has relatively little short-term
impact and only takes its toll over time. The Library contend-
ed there was no basis for this inference. The evidence does
not convince the Court that there was causal connection bet-
ween any racial discrimination at the Library and the decision
not to reclassify Bostick’s positon. Although not necessary
for its decision, the Court further finds that the evidence of
disparate treatment of minority employees at the Library in-
ferrable from Dr. Mann’s report and testimony, when viewed
in the perspective of Dr. Bartlett’s testimony, does not sustain
plaintiff’s burden of proving that there was racial discrimina-
tion at the Library in 1972 affecting plaintiff.

40a

D. The Affirmative Action Program and the Career
Service Promotion Plan

Dr. Eugene Walton, the Library’s Assistant Director of
Personnel for Equality Programs testified at trial with some
pride about the Library’s affirmative action program, for
which he has primary responsibility. His program de-
emphasizes paperwork and, in Walton’s words, is ‘‘result
oriented.’’ It is in large part based on the views and sugges-
tions of minority Library personnel, which Walton collected
by distributing questionnaires. The core of the program is the
Training, Appraisal, and Promotion program (TAP), under
which employees are selected and trained for more advanced
positions known to be available within the Library. The affir-
mative action program also includes a tuition support pro-
gram for career oriented education, and a program of outside
research for validating Library job requirements.

While the TAP program is theoretically available at all
grade levels, the results have been primarily at the GS-5 to
GS-8 levels, where there have been job openings at the
Library in which minority Library employees have been in-
terested, and for which they could qualify with a feasible
amount of additional training. In contrast, there is no posi-
tion at the Library in Bostick’s field for which he couid
qualify with additional training.

The ‘‘automatic promotion plan’’ from which Bostick
claims he was discriminatorily excluded is explained in a
December 3, 1973 memorandum from Jayson to all CRS
staff. The purpose of the plan is

to assist in providing career service which will attract,
develop, and retain persons having outstanding
capabilities for work in the Congressional Research Ser-
vice.

The plan’s policy is to promote employees to the next higher
grade when their work product indicates that they are regular-
ly performing duties described in the position description for

4la

the higher grade, and there is no reason to believe that they
will continue to perform at that level. Necessarily, the plan is
only available to employees in ‘‘ladder positions,’’ i.e., where
the work the employee performs is performed at the Library
at increasing levels of complexity and responsibility. Bostick,
at grade GS-13, was already one step above the last rung
generally available in his ladder.

Il. CONCLUSIONS OF LAW

Jurisdiction of the Court is based on Title VII of the
Civil Rights Act of 1964, as amended by the Equal Employ-
ment Opportunity Act of 1972, 42 U.S.C. 2000e, ef seq.

A. The Library’s Refusal to Reclassify

Insofar as Bostick’s claim is based on the allegations that
the job he was actually performing was properly classifiable
at GS-15, and that the Library’s failure so to classify it was
based on racial discrimination, Bostick arguably failed to ex-
haust his administrative remedies in the form of classification
appeals.* Cf. Haneke v. Secretary of Health, Education and
Welfare, 535 F.2d 1291 (D.C. Cir. 1976). However, since this
claim is closely related to Bostick’s allegations that his super-
visors at the Library de-emphasized certain supervisory and
research functions he alleges he performed, and that these
supervisors failed to assign additional duties to Bostick’s posi-
tion for discriminatory reasons, the Court received evidence
on all of the circumstances relating to Bostick’s classification
requests.

Under Title VII, the plaintiff has the burden of proving
discrimination by a preponderance of the evidence. Hackley
v. Roudebush, 520 F.2d 108, 117 (D.C. Cir. 1975). McDon-

* Under Library of Congress Regulation 2016-8, § 2.A.2a,
Library employees with classification grievances may pursue ad-
ministrative appeals through the Library’s Placement and
Classification Office, the Library’s Assistant Director of Personnel,
or directly to the CSC,

42a

nell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) sets
the scheme for the allocation of the burden of proof fre-
quently applied in Title VII cases. Under this scheme the
plaintiff bears the initial burden of establishing a prima facie
case of discrimination by adducing evidence that he belongs
to a racial minority and that he has received treatment dif-
ferent from that received by similarly situated non-minority
employees. The burden then shifts to the defendant to ar-
ticulate a non-discriminatory justification for the disparity in
treatment. If the defendant can do this, the plaintiff is then
expected to adduce evidence to show that this justification
was not in fact the reason for the disparate treatment.

The evidence presented by the parties does not conve-
niently fit into the McDonnell Douglas scheme. The facts that
GS-12 is the full performance level for the series in which
Bostick’s position is classified, and that Bostick is the only
visual information specialist employed by CRS, made it dif-
ficult for him to show disparate treatment by reference to
other visual information specialists. Bostick relied in large
part on statistical evidence that blacks at the Library are paid
less than whites with similar education, past work experience,
etc., to create an inference that he, like other blacks at the
Library, was the victim of disparate treatment which could
only be explained by otherwise undetectable, but pervasive,
racial animus. The Library countered the testimony and
statistical studies of Bostick’s expert, Dr. Charles Mann, with
the testimony and analysis of their own expert, Dr. Claude
Bartlett. On balance, the statistical evidence was inconclusive.
Furthermore, it provided little guidance to the Court in
deciding whether discrimination entered into the particular
decisions which affected Bostick.

Assuming that the statistical and expert testimony that
black employees at the Library have fared less well than other
employees makes out a prima facie case, Bostick still could
not have prevailed on his claim. The Library has satisfied the
Court that the determination not to reclassify Bostick’s posi-

43a

tion to GS-15 resulted from the fact that Bostick’s position
was believed to be — and was — properly classified under the
CSC position classification standards at grade GS-13. Racial
discrimination did not enter into that decision.

The evidence further demonstrates that Bostick’s super-
visors did not in any way de-emphasize his capabilities, in-
dependence, supervisory duties, or research functions in order
to subvert the review of Bostick’s position description by the
Classification Office of the Library.

Little evidence relating to the Library’s decision to hire
an independent commercial art contractor in lieu of staffing
the Library’s own gr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2601%3A1. Public record. Not legal advice.