Petition — James v. Tennessee Valley Authority

Supreme Court brief1984

Ask Donna

What actually matters in this document.

Text

83-989 mx <a

83-989 EO

In THE DEC 12 1983

SuprReEME Court OF THE UNITED STATES _—s—iéyj

ALEXANDER STEVAS. |

CLERK

Ocroser Term, 1983

WILLIAM N. JAMES, et. al,

Petitioners,

—against—

TENNESSEE VALLEY AUTHORITY, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Pau C. SAUNDERS,

Counsel of Record,

One Chase Manhattan Plaza,

57th Floor,

New York, N. Y. 10005

(212) 422-3000

WiLuiaM L. RosBINson,

RICHARD T. SEYMOUR,

STEPHEN L. Sprtz,

Lawyers’ Committee for

Civil Rights Under Law,

733 Fifteenth Street, N.W.,

Washington, D. C. 20005

(202) 628-6700

SuSAN W. REEVES,

Reeves and Still,

ALAN E. Kraus, 400 Commerce Center,

Rosin C. Lanpis, 2027 First Avenue North,

Dante J. LEFFELL, Birmingham, Alabama 35203

CRAVATH, SWAINE & MOoreE, (205) 322-6631

One Chase Manhattan Plaza, Attorneys for Petitioners

New York, N. Y. 10005

(212) 422-3000

Of Counsel.

December 12, 1983

QUESTIONS PRESENTED

This is a class action involving employment discrimination

against a class of black employees at TVA’s Muscle Shoals,

Alabama, facility. At trial, petitioners offered multiple regres-

sion analyses showing statistically significant pay rate dis-

parities in favor of whites and, thus, that black professional

employees were assigned to lower paid jobs than whites with

identical qualifications. The court of appeals held that since

those multiple regression analyses failed to “control for differ-

ences in job category” they failed to establish a prima facie case

of discrimination. Like the petition of the Solicitor General for

a writ of certiorari in Trout v. Lehman, 702 F.2d 1094 (D.C.

Cir.), petition for cert. filed, S52 U.S.L.W. 3387 (U.S. Oct. 28,

1983) (No. 83-706), this case raises important questions

concerning the use of statistical evidence in employment dis-

crimination cases. The questions presented are:

1. Was it error for the court of appeals, in rejecting the

multiple regression analyses, to rely on the extra-record works

of three experts in statistics without allowing the parties an

opportunity to argue to the court on the proper interpretation of

those works, and then, on a petition for rehearing, to refuse to

receiv >, much less consider, the affidavits of those same experts,

who pointed out that the court had seriously misunderstood and

misapplied their work?

2. Having misunderstood the extra-record works of the

three experts, was it error for the court of appeals to reject

statistical evidence relating to the class as a whole and to limit

evidence of racially biased pay rate disparities only to blacks

and whites occupying the same job categories, where that form

of analysis would inevitably mask the very discrimination

alleged?

PARTIES TO THE PROCEEDINGS

The petitioners are William N. James, Robert H. Nash and

Louie J. Sheffield, on behalf of themselves and a!l members of

the certified class, consisting of all past and present black salary

employees represented by the Salary Policy Employee Panel of

TVA’s Muscle Shoals, Alabama, Office of Agricultural and

Chemical Development, except Schedule A employees, from

January 17, 1973, until the present. The respondents are the

Tennessee Valley Authority, S. David Freeman, Richard M.

Freeman and Charles H. Dean, Jr.

ili

TABLE OF CONTENTS

Page

I i OO scscnsnrrosunctisesulectcmabenndteinesaiiabaaandas v

IIE MEIN 126nncctenisnseesesncetbdisiunssiisvedededneansinaaaminital 2

NER CUOUUIIOINE a seiicscssiscocneodsonservettergemicvdaapnainal 2

NE NOFOUI oie cscs ccnevessnorsscugpitigpaincsnucecumimunhibaidtsesonizeds 2

INE OE CD COO ooiscsssitcsscrcssclshtcinsscnnerascbichisiniesnmioe 3

I. The Proceedings Below...................... oon jasiebacdindeaes 3

II. Class-Wide Evidence of Discrimination .............. 4

III. The Multiple Regression Analyses ...................... 6

IV. The Petition for Rehearing ...................0:c:ccccccceeee 3

Reasons for Granting the WFit..................:ccccccceceeeeeeeeeeeees 12

I. The Court Should Grant the Writ to Correct a

Grave Procedural Irregularity That Deprived

Petitioners of Their Due Process Rights........... 12

II. The Court Should Grant the Writ to Correct a

Serious Error in the Use of Statistical Evi-

dence in an Employment Discrimination

Case, to Provide Guidance to the Lower

Courts and to Resolve a Conflict Between the

CRIES vascssccsonctecsiisnhsulopeaiiitioes socniaaieesiianimie 14

CII ciscsccessinitecsccnesictidiitinelapeinsliccageliaadeanttagiammaias 19

Appendices

A. Opinion of the Court of Pea Granting in

a Denyi Petition

aring and a ‘or

Rehearing En 14 F.2d 1066 (I ith

Cir. 1983) A-l

B. Order of the Court of

tion for Leave to mara

on Appeal

Order of the Court of Appeals Striking Affi-

davits from Petition for Rehearing............... C-1

Opinion of the Court of Appeals, 704 F.2d

CEP CAI. BPO cher bintenicviccsrvegnetesPines D-1

Opinion of the District Court on the Class

Claims, 528 F. Supp. 862 (N.D. Ala. 1981) E-1

Affidavit of Professor Franklin M. Fisher........ F-1

Affidavit of Professors David C. Baldus and

ye EE te” ERR pore ee amie 0 cre G-1

Affidavit of Professors Michael O. Finkelstein

SEE UTNE ciinis cciedccabiaspinssnavendacbiornabeinidind H-1

TABLE OF AUTHORITIES

Cases:

Carroll v. Sears, Roebuck & Co., 514 F. Supp. 788

(W.D. La. 1981), rev'd in part and aff'd in part, 708

gh Ri ge Le |: ) SE ona a ere

Citizens for a Better Environment v. United States EPA,

Ge ee Uke CFE Cas BONER D atincnsvediincthcantitioabocenentiiiens

Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d

NN 2 8 ARIE AIRES Pies ea Se Tare

EEOC vy. Federal Reserve Bank of Richmond, 698 F.2d

633 (4th Cir. 1982), cert. granted sub nom. Cooper v.

Federal Reserve Bank of Richmond, 52 U.S.L.W.

3342 (U.S. Oct. 31, 1983) (No. 83-185) oo. eee

Eastland v. TVA, 398 F. Supp. 541 (N.D. Ala. 1974),

rev'd in part and aff'd in part, 553 F.2d 364 (Sth

Cir. ), cert. denied, 434 U.S. 985 (1977) wo.eececeeeeceeeeeeee

Eastland v. TVA , 553 F.2d 364 (Sth Cir. ), cert. denied,

Co Be as Ce a ee ee eee

Eynde, Application of, 480 F.2d 1364 (C.C.P.A. 1973) ..

James v. Stockham Valves & Fittings Co., 559 F.2d 310

(5th Cir. 1977), cert. denied, 434 U.S. 1034 (1978) ...

Ohio Bell Telephone Co. v. Public Utilities Commission

SE Be he CUDSED ssscccentaiteetnectninipeonetacninonne

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th

ICT INIT ‘csincrosiiiduiiinkstabinsdadancqsinseeepeciddahipelinnasssiamiaiacict

Sobel v. Yeshiva University, 566 F. Supp. 1166

(S.D.N.Y. 1983) ..........+. sian taliaa gaeahiciadbaatlacacatin

Texas Department of Community Affairs v. Burdine, 450

Bic IE UIE Pt shcctictsainicssinnnectareqrocenpinghitinlpinmiiidetindives

Trout v. Hidalgo, 517 F. Supp. 873 (D.D.C. 1981),

aff'd in part and rev'd in part sub nom. Trout v.

Lehman, POD F.2d 1094 (D.C. Cir.), petition for cert.

filed, 52 U.S.L.W. 3387 (U.S. Oct. 28, 1983) (No.

83-706) a

Trout v. Lehman, 702 F.2d 1094 (D.C. Cir.), petition

for cert. filed, 52 U.S.L.W. 3387 (U.S. Oct. 28, 1983)

(No. 83-706)

15, 16, 17

i, 15, 16

Page

Turtle Mountain Band of Chippewa Indians v. United

States, 490 F.2d 935 (Ct. Cl. 1974) ......ccccccoscosssssssseceee 13

United States v. De Rose Industries, Inc., 519 F.2d 1066

RENEE ITEP Ta ins sans ctuinlanssadetoashesiiel eceatodiahiniuciaioumen 13

United States v. Greschner, 647 F.2d 740 (7th Cir.

PDI: cians dicaiccsaasenntnsn Sais hanee MbecviatiaeMechiedbiddaiibaneetieins 13

United States Postal Service Board of Governors v.

Aikens, 103 §.Ct. 1478, 75 L.Ed.2d 403 (1983) .......... 6

Valentino v. United States Postal Service, 674 F.2d 56

SUPT R a E) ROMUPD sis dcesrs odictessccobshchieebdieanesteventianasedsibiassbses 16

Vuyanich v. Republic National Bank of Dallas, 505 F.

Supp. 224 (N.D. Tex. 1980), mod. in part, reh.

denied, en banc, 521 F. Supp. 656 (N.D. Tex. 1981)... 17

Statutes and Rules:

ITN asc niicsdanseionbisassaignidatbavaicibtnkesictniebe 3

CREE TD ss ossich of ocanebannibahiboaiousare ateinsossboeibiion 2

I ass scat nn sind eseiipeapngadeboukvabopseendapabalin 3

ERM MN ne 3

ii It INN clicteriicecncestrscnséaiicombenisamsibebiotestoasesiabeegunmmsiidcben 3

EN I oc suka: cabaccnnssepeteniciiansaieteiaaboleeubibbienen 3

Se es A SPL TIE 3D Psivscessesenvinsaphecotestessesvensestanéviboues 3

A RPO TED vecsercovcvescoddncnnvencasopesssoodsinessiodadons 2

eI SE PDA GD saiccsdatoicvcsosincabbisaccesestnscatecsesbavembbstate 13

Sy ED PHIIICALD sansovicSnopidercenexsupasanibiocubbeteansbiinighnasanian 13

Miscellaneous:

D. Baldus & J. Cole, Statistical Proof of Discrimination

CESS RAS TORE BOO.) ccnccveriscorstereseinasseioetvessecsstobireteess 6

Finkelstein, The Judicial Reception of Multiple Regres-

sion Studies in Race and Sex Discrimination Cases,

80 Colum. L. Rev. 737 (1980) o.....cccccceescesseeceeeeeeseeeees 10

Fisher, Multiple Regression in Legal Proceedings, 80

Colum. L. Rev. 702 (1980) .0.......ccccscecscesseesseescereeeeseeees 6

B. Schlei & P. Grossman, Employment Discrimination

BACHE GE. WITS Y : seccicecsictsecdsindctaocthaaintnssctiatanicsticldiso 14

Annual Report of the Director, Administrative Office of

the United States Courts (1983) .....c.cccccecceesessesseereereeees 16, 18

. A ; |

ERS

No. 83—

IN THE

SUPREME CourRT OF THE UNITED STATES

OctToBer TERM, 1983

WILLIAM N. JAMES, et al.,

Petitioners,

—against—

TENNESSEE VALLEY AUTHORITY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Petitioners William N. James, et al., respectfully pray that

a writ of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Eleventh Circuit

entered on May 2, 1983, as modified on rehearing on Septem-

ber 12, 1983.

OPINIONS BELOW

The September 12, 1983, opinion of the Eleventh Circuit

granting in part and denying in part the petition for rehearing

and denying the suggestion for rehearing en banc is attached as

Appendix A and is reported at 714 F.2d 1066. The July 18,

1983, order of the Eleventh Circuit denying petitioners’ motion

to supplement the record on appeal is attached as Appendix B

and is unreported. The June 27, 1983, order of the Eleventh

Circuit striking the affidavits of the experts is attached as

Appendix C and is unreported. The May 2, 1983, opinion of

the Eleventh Circuit affirming in part and reversing in part is

attached as Appendix D and is reported at 704 F.2d 613. The

December 15, 1981, opinion of the district court on the class

claims is attached as Appendix E and is reported at 528 F.

Supp. 862.

JURISDICTIONAL STATEMENT

The opinion and judgment of the Eleventh Circuit were

entered on May 2, 1983. A timely petition for rehearing with a

suggestion for rehearing en banc was filed, and it was granted

in part and denied in part on September 12, 1983. The

jurisdiction of this Court rests on 28 U.S.C. § 1254(1).

STATUTE INVOLVED

Section 717(a) 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-16(a), provides in pertinent part:

“All personnel actions affecting employees or appli-

cants for employment . . . in executive agencies as defined

in section 105 of Title 5 (including employees and appli-

cants for employment who are paid from nonappropriated

funds), . . . shall be made free from any discrimination

based on race, color, religion, sex or national origin.”

STATEMENT OF THE CASE

I. The Proceedings Below

This is a class action alleging unlawful and pervasive

discrimination by the Tennessee Valley Authority (“TVA”)

against blacks in promotion, training, assignment and other

conditions of employment.' The jurisdiction of the United

States District Court for the Northern District of Alabama was

invoked pursuant to 42 U.S.C. § 2000e-5(f)(3); 42 U.S.C.

§ 1981; 16 U.S.C. § 83lc(b); 28 U.S.C. § 1343(a)(4); 28

U.S.C. § 1361; and 28 U.S.C. § 1331. On December 15, 1981,

following a trial on the merits, the district court entered

judgment in favor of defendant TVA on all claims.2 On May 2,

1 In addition, individual claims of two plaintiffs who the district

court held were not proper class representatives, one alleging dis-

crimination in hiring and the other alleging discrimination in training

and promotion, were consolidated for trial with the claims of the class

and class representatives. Both of those individual plaintiffs were

ultimately successful in their individual claims, and they are not

petitioners here.

2 The original complaint was filed on May 21, 1973, by Frank L.

Eastland. In addition to his individual allegations of discrimination,

Eastland’s complaint requested broad injunctive and monetary relief

on behalf of a class of employees and applicants for employment at

TVA’s Muscle Shoals facilities. On October 13, 1973, an amended

complaint added eleven plaintiffs and two defendants, the Salary

Policy Employee Panel and the Tennessee Valley Trades and Labor

Council, neither of which remains a defendant. On December 31,

1974, and June 5, 1975, the district court granted summary judgment

against all but one of the named plaintiffs. The district court held that

review of the remaining claims would be limited to the administrative

record and that, as a matter of law, a class action could not be

maintained by federal sector employees. Eastland v. TVA, 398 F.

Supp. 541 (N.D. Ala. 1974).

On February 28, 1977, the Fifth Circuit reversed in part and

affirmed in part. The Fifth Circuit held that three of the named

plairtiffs— Messrs. Eastland, James and Sheffield—were entitled to a

trial de novo on their claims and that they could seek to maintain a

class action. Eastland v. TVA, 553 F.2d 364 (Sth Cir.), cert. denied,

434 U.S. 985 (1977).

1983, the Eleventh Circuit affirmed the judgment against the

class.3 Petitioners sought rehearing and rehearing en banc.

The Eleventh Circuit agreed to modify one footnote of its

opinion but otherwise denied the petition for rehearing and

suggestion for rehearing en banc.

Il. Class-Wide Evidence of Discrimination

At trial, petitioners proved discrimination four ways:

(1) they proved that TVA used a highly subjective

personncl system giving uncontrolled di-cretion to a vir-

tually all-white group of managers and proved that the

system had in fact been abused by managers to favor the

persons they wanted to favor on racial grounds;

(2) they presented the testimony of more than 20

black witnesses as to the discrimination against them;

(3) they presented qualification-by-qualification pay

rate analyses showing that blacks with the same education

as whites, the same seniority as whites and even the same

combination of education and seniority as whites were

assigned to lower paying jobs than those same whites; and

(4) they presented multiple regression analyses show-

ing that when all qualifications were considered simulta-

neously, black race had a substantial and statistically

significant negative effect on pay, demonstrating that

blacks were assigned to lower paying jobs than whites with

identical qualifications.

3 The court of appeals reversed the district court’s judgment in

favor of TVA with respect to the claims of the two individual

plaintiffs, see note |, supra, finding that they had in fact been victims

of unlawful racial discrimination. The court of appeals affirmed the

judgment in favor of TVA, however, with respect to all of the class

claims and the individual claims of the other plaintiffs. The court of

appeals also affirmed the district court’s refusal to certify plaintiff

Eastland as a class representative of a class of applicants.

The district court rejected essentially all of that evidence.‘

With respect to the multiple regression analyses, which were at

the heart of petitioners’ statistical proof at trial and are at the

heart of this petition, the district court said only this:

“Plaintiffs’ regression analyses also compare salaries

of jobs requiring a wide range of skills, education, training,

and experience. Once again, the variables selected by the

plaintiffs for the regression analysis failed to adequately

reflect job comparability. Plaintiffs’ analyses can be given

little weight in light of the many important variables

excluded. Furthermore, the plaintiffs’ data cannot be used

to establish a prima facie case of either disparate treatment

or disparate impact.”” Appendix E at E-27.5

4 With respect to the subjectivity of the personnel system as a

factor contributing to discrimination, the court ruled that in order to

accept that argument it would have to “establish a presumption that

left to their own devices whites will, at least -dnconsciously, dis-

criminate against blacks”, a presumption it was unwilling to establish.

Appendix E at E-32. In rejecting the anecdotal evidence of dis-

crimination, the district court found only that “plaintiffs failed to show

by testimony at trial or by other evidence presented to the court a

single valid claim of any black who should have been promoted and

was not”. Appendix E at E-18. The district court also rejected the

“qualification-by-qualification” statistical analyses, because they did

not establish that “blacks in the same kind and level of work were

paid any less than whites” (a claim, incidentally, that petitioners

never made, since this was not an equal pay case) and because “these

comparisons ignored important differences in skills, education, train-

ing, and experience”. Appendix E at E-27. Despite that finding,

however, neither the district court nor TVA ever identified a single

qualification that was not later analyzed in petitioner’s evidence.

None of the factors suggested by TVA ever changed the result of

petitioners’ showing of discrimination.

‘5 Although the trial court held that petitioners had failed to

establish a “prima facie” case, it reached this conclusion only after a

full trial on the merits. To the extent that respondents’ evidence

purporting to discredit petitioners’ statistical evidence might be char-

acterized as “rebuttal” evidence, see Appendix D at D-7, the district

court was in error in considering the question of whether a prima facie

case was established. Under the rule of United States Postal Service

The court of appeals affirmed all of the district court’s findings

and conclusions with respect to class-wide discrimination.

Most of the court of appeals’ opinion was devoted to the

multiple regression analyses. Citing an article published by

Professor Franklin M. Fisher in 1980, Multiple Regression in

Legal Proceedings, 80 Colum. L. Rev. 702 (1980), and a

supplement to a treatise published by Professors David C.

Baldus and James W. L. Cole in 1982, Statistical Proof of

Discrimination (1980 and 1982 Supp.), the court held that

petitioners had not established a sufficient theoretical founda-

tion for their multiple regression model and had failed to

“control for job category”. Appendix D at D-15 to D-19.6

III. The Multiple Regression Analyses

To show that blacks disproportionately occupy lower pay-

ing jobs than similarly qualified whites, petitioners offered

multiple regression analyses that measured the effect each of

several factors had on pay rates of employees similarly situated

with respect to the other factors in the analysis. The factors

considered were age, length of service, non-technical degree,

Board of Governors v. Aikens, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983),

the proper inquiry flowing from such a characterization is whether

petitioners proved discrimination by a preponderance of the evidence.

Whether respondents’ evidence is characterized as rebuttal evidence

or—as botii the district court and the court of appeals treated it—as

evidence going to the sufficiency of petitioners’ prima facie case,

petitioners’ argument on the merits leads to the same result. If

respondents’ st*tistical evidence is treated as rebuttal evidence, it is

unsound, and petitioners have carried their ultimate burden of

persuasion under Aikens. If respondents’ evidence is not treated as

rebuttal evidence, it is still inadequate to cast doubt on petitioners’

prima facie case, which stands unrebutted and thus of itself satisfied

petitioners’ ultimate burden of persuasion, Texas

Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).

6 As we show below, those two grounds are simply different

facets of the same issue. See p. 9, infra.

technical degree, and race. An example of the result of that

analysis for one of the years, 1975, is as follows:

é Effect on Statistically

Variable Salary Significant

Bach year Of O96 ...:cccccsccssssescseeseess $ 167 Yes

Each year Of Service ................000 +) Yes

Non-Technical Degree ................ + 5,446 Yes

Technical Degree .............cccssseres +11,014 Yes

POT Wee sccovutcenn: ---abdscaseiiios - 3,838 Yes

Thus, with all of these qualifications held constant, one can

predict at a statistically significant level that a black employee

with any combination of those qualifications would be assigned

to a job at TVA paying $3,838 less than a white employee with

the same combination of qualifications.

TA criticized that analysis on three grounds. It argued

that petitioners used the wrong factors, that the inclusion of the

F (lowest paid) and M (highest paid) schedules might have

distorted the results and that it was improper to do a single

multiple regression analysis for the entire class—that instead

petitioners should have run separate regressions for each of the

five job categories in issue (i.e., “controlled for job category” ).

TVA’s expert, a psychologist, then performed his own

multiple regression analyses, one for each job category, testing

for the effects of a different set of factors. He admitted that

even his own analysis showed a statistically significant race

effect on at least one schedule, E, which was one of two

schedules at the heart of petitioners’ discrimination claim.’ In

7Schedule E consists primarily of laboratory aides, many of

whom have college degrees in the sciences. TVA’s analysis of

Schedule E showed that TVA had assigned blacks to jobs paying

$2,254 less than comparably qualified whites. The other schedule of

greatest concern to petitioners was Schedule D, consisting primarily of

laboratory analysts, most of whom have science degrees. At the class

certification stage of the case, TVA argued for a class consisting only

of Schedules D and E, and TVA performed a regression analysis on

addition, he was unable to do a regression analysis for another

job schedule, A, since TVA had never had a black employee on

it. For the other schedules, B and F (a schedule consisting

almost entirely of blacks), he found no significant race effect in

favor of whites.

In rebuttal, petitioners prepared new multiple regression

analyses in order to meet TVA’s hypothetical challenges. First,

petitioners used TVA’s suggested variables, and the results

continued to show significant pay rate disparities in favor of

whites when the class as a whole was considered. An example

of this result for 1979 appears as follows:

Effect on Statistically

a_i Salary _ ___J

Each year of service.............. ee Fo fs yes

Each year of education. ............ + 756.41 yes

Each year of age ...................... + 177.27 yes

Physical science degree............ + 7,348.44 yes

Natural science degree ............ + 6,931.64 yes

Ph.D in any field or bachelor’s

degree in chemical engi-

i itlbicetesstindercntvecseceniens + 7,361.32 yes

Engineering science degree ..... + 4,925.74 yes

Social science degree ............... + 2,784.68 yes

dat selideameideneseccndde -—3,019.50 yes

Petitioners then excluded, in turn, the F schedule and the M

schedule, and each time the results were the same—statistically

significant disparities in favor of whites. ;

The court of appeals did not question the factors tested by

petitioners either in their own analyses or in the rebuttal

analyses. Rather, it held that petitioners should have estab-

lished a “theoretical foundation” for their multiple regression

those two schedules together. If proper statistical methods are used,

see Appendix F ¥ 18, TVA’s own analysis establishes that black race

had a statistically significant effect on pay rates in the two schedules

combined (.0453 probability of finding the observed race effect by

chance, with .05 being statistically significant), as well as in Schedule

E alone (.0273 probability).

analyses and should have “controlled for job category”. Citing

and quoting from the work by Professors Baldus and Cole, the

court said that “a regression should account for the ‘interaction’

between the kind of job and the other variables”. Specifically,

the court observed that, for example, “length of service” may

have a greater effect on salary in some schedules than in others.

Appendix D at D-17 to D-18. As a result, the court concluded:

“Given the weakness of the theoretical foundation and

the failure to control for job category, the district court did

not err in determining that Eastland’s regressions were

insufficient to establish a prima facie case.” Appendix D at

D-19.8

The two bases on which the court of appeals relied in

rejecting petitioners’ multiple regression analyses—the sup-

posed lack of a “theoretical foundation” and the failure to

control for job category—are in fact one and the same. Since

petitioners’ rebuttal analyses considered all factors suggested by

respondents, they differed from respondents’ analyses only in

their “failure to control for job category”, and any alleged flaw

in the theoretical foundation for petitioners’ statistical model

must reside in that difference. See Appendix D at D-17.

Consequently, the court’s rejection of petitioners’ evidence rests

entirely on its understanding of statistical science as gleaned

from the works of Professors Fisher, Baldus and Cole.

IV. The Petition for Rehearing

Petitioners sought a rehearing and a rehearing en banc

and, in support of their petition, submitted the affidavits of the

same three experts relied on by the court, Professors Fisher,

Baldus and Cole, as well as the affidavit of Professor Michael O.

®Since a full plenary trial was held, the court’s emphasis on

whether petitioners had established a prima facie case is subject to the

same possible objection as the district court’s similar analysis. If this

was crror, however, it should have no effect on the proper resolution

of this case, since petitioners’ evidence both establishes a prima facie

case and proves discrimination by a preponderance of the evidence.

See note 5, supra.

Finkelstein (the avthor of a companion work to Professor

Fisher’s 9) and Professor Bruce Levin, a colleague of Professor

Finkelstein. (Copies of these affidavits are attached to this

petition as Appendices F, G and H, respectively.) Each of

those experts concluded that the court of appeals had made a

serious analytical error that affected the outcome of the case.

Their affidavits establish three central points:

—It is statistically unsound, as the court of appeals

required, to test for discrimination in job assignment and

promotion by multiple regressions that “control for job

category”, since such a control would mask the dis-

crimination alleged, particularly where, as here, it would

result in extremely small sample sizes.

—Even if it were correct to do so as a theoretical

matter, it was unnecessary to do so here, since TVA’s own

regression analyses demonstrate the error of the court’s

hypothesis that the effect of length of service on pay rate

might be different for the different job schedules. '°

—The record clearly shows that even when separate

job categories are considered, race continues to have a

significant effect on Schedules D and E."!

9 Finkelstein, The Judicial Reception of Multiple Regression

Studies in Race and Sex Discrimination Cases, 80 Colum. L. Rev. 737

(1980).

10 TVA’s regression analyses showed the following effects of

length of service on salary for each job schedule: A—unknown;

B—$220.01; D—$227.82; E—$174.72; F—unknown; M—$212.99.

( Defendants’ Exhibit (“DX”) 201.) These figures clearly belie the

court’s objection to petitioners’ methodology.

"7 “( B]lack race is such a significant negative factor affecting

job placement among equally qualified black and white employ-

ees on Schedules, D and E, that TVA’s own results in

DX201—showing that blacks on Schedule D earn $1,220, and

blacks on Schedule E earn $2,250, less than their similarly

qualified white counterparts—could have occurred by chance

only 22 times in every 10,000 cases.” Appendix F ¥ 19.

jet

Approximately a month later, the court of appeals, sua

sponte, struck the affidavits: i

“The Appellants have filed a petition for rehearing and

suggestion for rehearing en banc and, in support, without

leave of court have attached affidavits of statistical experts

who disagree with various parts of the court’s opinion. The

court will not consider these ex parte, post-decision state-

ments. The court sua sponte ORDERS that they are

stricken from the petition, and no opposing affidavits need

be filed.” Appendix C.

Immediately thereafter, petitioners moved for leave to

supplement the record on appeal with the stricken affidavits,

but that motion was denied. When the court of appeals ruled

on the merits of the petition for rehearing, it modified one

footnote in response to a suggestion by the amicus NAACP

Legal Defense and Educational Fund, Inc. and denied the rest

of the petition without comment. '2

“[T]hese observations taken together suggest that the re-

sults of the defendants’ separate analyses of Schedules D and E

tend to support conclusions not substantially different from those

drawn from the plaintiffs’ analysis of the pooled schedules, at

least to the degree that the pooled analysis indicates the presence

of disparate treatment in Schedules D and E.” Appendix G 4 21.

“[WlJe must reject the hypothesis that race was not an

influence on salary in either schedule.” Appendix H 4 10; see also

q 12.

12 The court modified its rationale for affirming the district court’s

exclusion of initial assignment claims from the class action. As

modified, the court’s opinion held that initial assignment claims

should not be considered because they were not “like or related to”

the claims made in the administrative complaints of the class repre-

sentatives. The court noted that none of the class representatives

could have raised an initial assignment claim because all were hired

before Title VII became applicable to the federal government, and

that from the record, it did not appear that the TVA had considered

discrimination in initial assignments in investigating the claims of the

class representatives. The court of appeals’ rejection of initial

assignment claims was wrong for several reasons.

REASONS FOR GRANTING THE WRIT

I. The Court Should Grant the Writ to Correct a Grave

Procedural Irregularity that Deprived Petitioners of

their Due Process Rights

The court of appeals’ misplaced reliance on material

outside the record, coupled with its refusal to allow the parties

an opportunity to correct the error, constituted a grave

procedural irregularity with far-reaching implications for em-

ployment discrimination cases and other cases as well. By

refusing even to receive, much less consider, the affidavits of the

very experts on whom it relied in its erroneous statistical

analysis, the court of appeals has deprived petitioners of their

fundamental rights to due process.

First, the court of appeals committed plain and dispositive

error by relying on material not considered by the trial court.

First, the district court had rejected the initial assignment claims

for a reason entirely different from that of the court of appeals—on

the ground that they were “applicant”, rather than “employee”,

claims. The court of appeals essentially made an independent finding

of fact unrelated to any findings of the district court.

Second, the court of appeals misapplied the “like or related” test.

As the court of appeals stated the test, it encompasses “the “scope” of

the EEOC investigation which can reasonably be expected to grow out

of the charge of discrimination.”” Appendix A at A-2 (quoting

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (Sth Cir. 1970))

(emphasis added). It is irrelevant to the application of this test that

the TVA may not have investigated discrimination in initial assign-

ments—may not, in other words, have done all it could “reasonably

be expected” to do.

Finally, the court of appeals noted that pervasiveness of a

discriminatory practice may support a broader application of the “like

or related” rule. Accordingly, if this Court should reverse the court of

appeals’ rejection of petitioners’ statistical evidence, finding, in effect,

that discrimination pervasive enough to warrant judgment for the

class existed or may have existed, the court of appeals should at least

be required to reconsider whether a broader application of the “like or

related” rule is appropriate in this case.

Turtle Mountain Band of Chippewa Indians v. United States,

490 F.2d 935, 945 (Ct. Cl. 1974). More fundamentally,

whether at trial or on appeal, courts may take judicial notice

only of facts that are not reasonably subject to dispute. Citizens

for a Better Environment v. United States EPA, 649 F.2d 522,

526 n.6 (7th Cir. 1981); United States v. Greschner, 647 F.2d

740, 742 n.2 (7th Cir. 1981); United States v. De Rose In-

dustries, Inc., 519 F.2d 1066, 1068 (Sth Cir. 1975); Application

of Eynde, 480 F.2d 1364, 1370 (C.C.P.A. 1973). Accordingly,

both the Federal Rules of Evidence and the Due Process Clause

require that a court taking judicial notice of a fact give the

parties an opportunity to refute it. Fed. R. Evid. 201(e); Ohio

Bell Telephone Co. v. Public Utilities Commission of Ohio, 301

U.S. 292 (1937); Conway v. Chemical Leaman Tank Lines,

Inc., 610 F.2d 360, 365 n.5 (Sth Cir. 1980).13 In the present

case, this right was not an empty formality but a critical

necessity determining the outcome. Because of its unguided

inference from extra-record expert evidence, the court of ap-

peals judicially noticed not a fact but an error, and as the

affidavits of Professors Baldus, Cole, Fisher, Finkelstein and

Levin establish, petitioners—if given an opportunity to be

heard—could have prevented the error. Petitioners sought such

an opportunity to be heard, but were turned away.

As the use of statistical evidence in employment dis-

crimination cases increases, the use—and misunder-

standing—by courts of expert treatises without illumination by

the parties will pose grave dangers to the ability of litigants to

ensure that their evidence is given proper weight—or is even

understood—by the courts. Quite apart from employment

discrimination cases, litigation raising complex technical,

mathematical and statistical issues is now a commonplace in the

federal courts. A precedent authorizing courts to go outside the

record, to misconstrue the extra-record materials relied on and

then to refuse correction from the authors of those very

materials poses the danger of generating many more plainly

incorrect decisions.

13 Cf. Fed. R. Evid. 706(a) (expert appointed by court subject

to cross-examination by each party).

We do not contend that courts of appeals should be quick

to permit appellants to supplement the record on appeal with

affidavits such as the ones we offered. We fully recognize that it

is highly unusual even to seek to supplement the record on

appeal. But where the court of appeals has itself gone outside

the record to find expert opinion on which to rely, especially

when its misreading of that opinion is dispositive, it is

fundamentally unfair and improper for the court not to permit

the aggrieved purty to submit sworn statements of those very

same experts in order t> show that the court misunderstood

them in the first place.

It may be that the court was concerned about the procedu-

ral propriety of inducing a battle of affidavits on appeal, but in

that case there was a simple remedy. The court could have, as

petitioners suggested, remanded the case to the district court for

the taking of additional evidence and for additional findings of

fact. Inexplicably, it refused to do so.

II. The Court Should Grant the Writ to Correct a Serious

Error in the Use of Statistical Evidence in an Employment

Discrimination Case, to Provide Guidance to the Lower

Courts and to Resolve a Conflict Between the Circuits.

The grave procedural irregularity committed by the court

of appeals led it into a serious and outcome-determinative error

on the merits, which of itself warrants granting the writ.

Statistics generally, and multiple regression analyses in

particular, are an important—probably indispensable—evi-

dentiary tool for Title VII litigants. See B. Schlei & P.

Grossman, Employment Discrimination Law 1342-43 & n.179

(2d ed. 1983). Yet they have generated substantial confusion

in the lower courts—of which the plain error of the court of

appeals in the present case is but one compelling example. The

question of when statistical evidence must account for differ-

ences in job categories is of particular importance, having arisen

in an increasingly large number of cases in recent years. See,

e.g., EEOC v. Federal Reserve Bank of Richmond, 698 F.2d

633, 655-57 (4th Cir. 1982), cert. granted sub nom. Cooper v.

Federal Reserve Bank of Ri hmond, 52 U.S.L.W. 3342 (US.

Oct. 31, 1983) (No. 83-185); James v. Stockham Valves &

Fittings Co., 559 F.2d 310, 331-32 (Sth Cir. 1977), cert. denied,

434 U.S. 1034 (1978); Sobel v. Yeshiva University, 566 F. Supp.

1166, 1178-80 (S.D.N.Y. 1983); Carroll v. Sears, Roebuck &

Co., 514 F. Supp. 788, 816 (W.D. La. 1981), rev’d in part and

aff'd in part, 708 F.2d 183 (Sth Cir. 1983). The guidance of

this Court is badly needed by the lower courts.

Currently before this Court is the petition of the Solicitor

General of the United States for a writ of certiorari in Trout v.

Lehman, 702 F.2d 1094 (D.C. Cir. 1983), petition for cert.

filed, 52 U.S.L.W. 3387 (U.S. Oct. 28, 1983) (No. 83-706).

The Solicitor General’s petition asks this Court to review a

decision that the inclusion in multiple regression analyses of

nonactionable pre-1972 federal government personnel decisions

does not render the analyses inadequate to prove actionable

employment discrimination. Although the question in Trout is

not identical to that presented here, the two are very closely

related: Both concern the standards a multiple regression

analysis must meet to qualify as evidence of employment

discrimination. If this Court should choose to review the

decision of the D.C. Circu‘t in No. 83-706, to evaluate the

probative value of a tainted regression analysis, it should at the

same time consider the present case, involving untainted and

highly probative statistical analyses that were rejected below on

the basis of unnecessary and meaningless requirements.

Regardless of the Trout case, the writ should issue in the

present case to correct the plain error and injustice of the

decisions below, which conflict with well reasoned authority in

another Circuit. The court of appeals was wrong on the merits,

and its error is outcome determinative. The works in question

do not lead to the conclusion that the court of appeals drew

from them; properly understood, they lead to the opposite

conclusion. No other court of which we are aware has made

the same error’, but in the lizht of the opiaion below from a

respected court that handles a great number of Title VII cases,

there is a danger that others now will. And because the error is

such a fundamental one, affecting the use of multiple regression

analysis in every single employment discrimination case in

which more than one type of job is in issue, there is a serious

risk that large numbers of meritorious cases will be jeopardized

because of the court’s opinion. (For the twelve months ending

on June 30, 1983, 9,097 new employment discrimination cases

were filed in the district courts. During the same twelve

months, 1,418 employment discrimination cases were appealed

to the courts of appeals. Annual Report of the Director,

Administrative Office of the United States Courts, Appendix I,

pp. A-4, A-20 (1983).)

In view of the nature of the error below, it is not surprising

that it conflicts with the rule in the Fifth Circuit. In James v.

Stockham Valves & Fittings Co., supra, the Fifth Circuit held it

was error, in an employment discrimination case involving

discrimination in promotion, to give weight to a regression

analysis that controlled for job class. The defendant’s regres-

sion analysis in Stockham Valves had treated “skill level”

14 The court of appeals stated that one other case, Valentino v.

United States Postal Service, 674 F.2d 56 (D.C. Cir. 1982), reached a

similar conclusion. But that is incorrect. Valentino holds that where a

class definition includes widely disparate jobs, the regression model

must include sufficiently detailed variables to account for the different

minimum objective job qualifications required for the various jobs.

Id. at 61, 70-71. See Trout v. Lehman, supra. Valentino does not

require class plaintiffs to perform separate regressions for each job

category within the class. See Trout v. Hidalgo, 517 F. Supp. 873, 883

(D.D.C. 1981), aff'd in relevant part sub nom. Trout v. Lehman, 702

F.2d 1094 (D.C. Cir.), petition for cert. filed, 52 U.S.L.W. 3387 (U.S

Oct. 28, 1983) (No. 83-706). Here, petitioners’ variables did in fact

account for all of the minimum objective job qualifications identified

by TVA or any of its witnesses.

—derived solely from the employee's job class—as a vari-

able.'5 The court of appeals said:

“ “Skill level’ was derived from an employee's job class; he

had ‘skill’ only if he worked in a job with a rating between

JC 10 and 13. The systematic exclusion of blacks from

promotion and training opportunities for such jobs, as is

alleged here, will automatically produce no black employ-

ees with ‘skill level’. A regression analysis defining ‘skill

level’ in that way thus may confirm the existence of

employment discrimination practices that result in higher

earnings for whites.” 559 F.2d at 332. See also Carroll,

supra, 514 F. Supp. at 816; Vuyanich v. Republic National

Bank of Dallas, 505 F. Supp. 224, 305 n.95 (N.D. Tex.

1980), mod. in part, reh. denied, en banc, 521 F. Supp. 656

(N.D. Tex. 1981).

A hypothetical éxample may illustrate the correctness of

the Fifth Circuit rule and the error of the court of appeals in this

case: Assume that a black with a degree in chemistry is hired on

the E schedule as an aide, a position that does not require a

degree in chemistry and in which no white person with a degree

in chemistry is employed. Because of his race, and despite his

credentials and strong performance in his job, he is repeatedly

denied promotion to the D schedule, the schedule in which

similarly qualified whites are employed, and remains in the E

1S The statistical methodology rejected by the Fifth Circuit in

Stockham Valves differs, technically, from that required by the

Eleventh Circuit in the present case, but both are infected with the

same infirmity. In the present case respondents urge that petitioners

must control for job category by performing separate regression

analyses for each job category, while in Stockham Valves, the

defendant included job category as a variable in its one regression

analysis. Both are methods of “controlling” for job category, see

Vuyanich v. Republic National Bank of Dallas, 505 F. Supp. 224, 305

n.95 (N.D. Tex. 1980), mod. in part, reh. denied, en banc, 521 F.

Supp. 656 (N.D. Tex. 1981), and in a case involving discrimination in

assignments and promotions, both have the same unacceptable effect:

allowing the defendant to remove from the evidence before the court

precisely the effect to be measured.

schedule for more than 10 years. Although he may be paid as

well as others in the E schedule, he does not belong there, and

he is in fact paid less than comparably qualified whites. A

regression analysis that controlled for job category would not

show any pay rate disparity based on race. It would show only

that he is paid as well as other aides, masking the very

discrimination he has suffered.'® The Fifth Circuit understands

the vice in controlling for job category in cases involving

assignments and promotions. The court of appeals in the

present case clearly did not.

Title VII cases are enormously expensive for the litigants

(most of whom cannot alone bear the expense) and time

consuming for the courts. As the conflict between the Fifth and

Eleventh Circuits here demonstrates, there is confusion among

the lower courts—and among litigants as well—as to what

types of evidentiary showings are sufficient to establish dis-

crimination. If they are entitled to nothing else, the litigants are

entitled to predictability. That, unfortunately, they do not have

today. Rather, they are repeatedly being faced with changing

standards of proof, changes, such as those here, that often make

little apparent sense. Clear direction from this Court is needed,

now more than ever. Without such direction, there is a clear

danger that private enforcement of Title VII will substantially

diminish, that private attorneys general (who now account for

more than 98% of all new employment discrimination cases'7 )

will find it impossible to continue to bear the heavy costs of

making the required statistical showings without

knowing in advance how those showings should be structured

sO as to succeed.

f6 This example is not wholly hypothetical. It closely parallels

the career of petitioner Sheffield.

17 Of the 9,097 new employment discrimination cases filed in the

district courts during the 12 months ending on June 30, 1983, only 170

were instituted by the government. Of the 1,418 employment

discrimination cases appealed to the courts of a during the same

period, only 51 involved appeals by the Gove t. Annual

of the Director, Administrative Office of the United States Courts,

Appendix I, pp. A-4, A-20 (1983).

CONCLUSION

In view of the foregoing, a writ of certiorari should issue to

the United States Court of Appeals for the Eleventh Circuit, so

that this Court may resolve the important issues raised in this

petition.

December 12, 1983.

Respectfully submitted,

PauL C. SAUNDERS,

Counsel of Record,

One Chase Manhattan Plaza,

57th Floor,

New York, N. Y. 10005

(212) 422-3000

WILLIAM L. ROBINSON,

RICHARD T. SEYMOUR,

STEPHEN L. Spitz,

Lawyers’ Committee for

Civil Rights Under Law,

733 Fifteenth Street, N.W.,

Washington, D.C. 20005

(202) 628-6700

SUSAN W. REEVES,

Reeves and Still,

400 Commerce Center,

2027 First Avenue North,

Birmingham, Alabama 35203

ALAN E. Kraus, (205) 322-6631

Rosin C. LANDIS,

DaNIEL J. LEFFELL,

CRAVATH, SWAINE & Moore,

One Chase Manhattan Plaza,

New York, N. Y. !0005

(212) 422-3000

Attorneys for Petitioners.

Of Counsel.

OPINION OF THE COURT OF APPEALS

GRANTING IN PART AND DENYING IN PART a

PETITION FOR REHEARING AND ae

DENYING SUGGESTION FOR REHEARING EN BANC

REPORTED AT 714 F.2d 1066 (11th Cir. 1983)

A-l

APPENDIX A

UNITED STATES CouRT OF APPEALS

For THE ELEVENTH CIRCUIT

FRANK L. EASTLAND, Individually, et a/.,

Plaintiffs-Appellants,

— against —

TENNESSEE VALLEY AUTHORITY, ef al.,

Defendants-Appellees.

No. 82-7008

Sept. 12, 1983

Appeals from the United States District Court for

the Northern District of Alabama,

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion May 2, 1983, 11 Cir., 1983,

704 F.2d 613).

Before GopBOLD, Chief Judge, Fay and SmitH*, Circuit.

Judges.

PER CURIAM:

The amicus brief filed by the NAACP Legal Defense and

Educational Fund, Inc., in support of the petition for rehear-

ing/rehearing en banc questions the correctness of footnote 9 of

our opinion, 704 F.2d at 620.

* Honorable Edward S. Smith, U.S. Circuit Judge for the Federal

Circuit, sitting by designation.

A-2

Footnote 9 is withdrawn and the following is substituted

for it:

9 The district court refused to consider the initial assign-

ment claims because they were “applicant claims” ex-

cluded by the Fifth Circuit’s opinion in Eastland I, 553

F.2d 364. Eastland I held that “a class action may only be

maintained if the requirements of Rule 23 .. . can be

complied with, and the only issues that may be raised are

those issues that were raised by the representative parties

in their administrative complaints, together with those

issues that may reasonably be expected to grow out of the

administrative investigation of their claims.” Jd. at 372.

Eastland argues that initial assignment claims were implicit

in the administrative complaints of both Nash and

Sheffield and therefore the issue was properly before the

court. “*

The starting point for determining the permissible

scope of the judicial complaint is the EEOC charge and

investigation. Evans v. U.S. Pipe & Foundry Co., 696 F.2d

925, 927 (Cir. 1983). In Sanchez v. Standard Brands, Inc.,

431 F.2d 455 (Sth Cir. 1970), the Fifth Circuit held “the

allegations in a judicial complaint filed pursuant to Title

VII ‘may encompass any kind of discrimination like or

related to the allegations contained in the charge and

growing out of such allegation during the pendency of the

case before the Commission.’” Jd. at 466 (quoting King

v. Georgia Power Co., 295 F. Supp. 943, 947 (N.D. Ga.

1968) (emphasis added)). Under the “like or related”

rule “the ‘scope’ of the judicial complaint is limited to the

‘scope’ of the EEOC investigation which can reasonably be

expected to grow out of the charge of discrimination”. Jd.

In the instant case none of the class representatives

raised an initial assignment claim in his administrative

complaint. The class representatives were not in a position

to raise such claims because all received their initial

assignments years before Title VII was made applicable to

TVA. Our review of the record reveals no indication that

the administrative investigations considered either dis-

crimination in initial assignments or the contention that

A-3

widespread discrimination resulted from TVA’s general

policy of delegating excessive subjective discretion to its

supervisory staff.

The “like or related” rule has been subject to varied

interpretations. See Evans, 696 F.2d 928-29. Although

the pervasiveness of a discriminatory practice or other

compelling circumstances may support a broader appli-

cation of the rule, on the facts of this case the district

court’s refusal to consider the initial assignment claims was

not error.

In all other respects, the petition for rehearing is DENIED.

No member of this panel nor judge in regular active

service on the court having requested that the court be polled

on rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 26), the suggestion for re-

hearing en banc is DENIED.

Big :

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

For THE ELEVENTH CIRCUIT

FRANK L. EASTLAND, individually, et al.

Plaintiffs-Appellants,

—against—

TENNESSEE VALLEY AUTHORITY, ef ai.,

Defendants-Appellees.

No. 82-7008

July 18, 1983

On Appeal from the United States District Court

for the Northern District of Alabama

Before GopBOLD, Chief Judge, Fay and Smrru*, Circuit

Judges.

GopsoLpD, Chief Judge:

It Is OnDERED that the motion of appellants for leave to

supplement his petition for rehearing and suggestion for rehear-

ing en banc with attached affidavits of statistical experts is

DENIED.

/s/ JoxuN C. GODBOLD

Chief Judge

* Hon. Edward S. Smith, U.S. Circuit Judge for the Federal

Circuit, sitting by designation.

ORDER OF THE COURT OF APPEALS

STRIKING AFFIDAVITS

FROM PETITION FOR REHEARING

C-1

APPENDIX C

IN THe UNitep States Court Or APPEALS

For THe ELEVENTH CIRCUIT

FRANK L. EASTLAND, Individually, ef a/.,

Plaintiffs-Appellants,

—against—

TENNESSEE VALLEY AUTHORITY, ef al.,

Defendants-Appellees.

No. 82-7008

July 27, 1983

On Appeal from the United States District Court for

the Northern District of Alabama

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

Before GopBoLy, Chief Judge, Fay and SmitH*, Circuit

Judges.

Gopso LD, Chief Judge:

BY THE COURT:

The appellants have filed a petition for rehearing and

suggestion for rehearing en banc and, in support, without leave

of court have attached affidavits of statistical experts who

disagree with various parts of the court’s opinion. The court

will not consider these ex parte, post-decision statements. The

court sua sponte Orpers that they are stricken from the

petition, and no opposing affidavits need be filed.

* Hon. Edward S. Smith, Judge for the U.S. Court of

Appeals for the Federal Circuit, sitting by designation.

: :

fe) w

S 2

5 :

D-1

APPENDIX D

UNITED STATES COURT OF APPEALS,

For THE ELEVENTH CIRCUIT

FRANK L. EASTLAND, Individually, et a/.,

Plaintiffs-Appellants

TENNESSEE VALLEY AUTHORITY, ef al.,

Defendants-Appellees.

No. 82-7008

May 2, 1983

Appeals from the United States District Court

for the Northern District of Alabama.

Before GopBoLp, Chief Judge, Fay and SmitH*, Circuit

Judges.

Gopso LD, Chief Judge:

Plaintiffs brought this action under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., alleging that

the Tennessee Valley Authority (TVA) engaged in racially

discriminatory employment practices. The original complaint

was filed in 1973 by Frank L. Eastland. The district court

granted summary judgment against all but two of the plaintiffs.

On appeal the Fifth Circuit reversed in part, affirmed in part

and remanded the case for further proceedings. The history of

these earlier proceedings is set forth in Eastland v. Tennessee

Valley Authority, 398 F. Supp. 541 (N.D. Ala. 1974), rev'd in

part, aff'd in part, 553 F.2d 364 (Sth Cir. 1977), cert. denied,

434 U.S. 985, 98 S.Ct. 611, 54 L. Ed. 2d 479 (1977) ( Eastland

I).

* Honorable Edward S. Smith, U.S. Circuit Judge for the Federal

Circuit, sitting by designation.

D-2

On remand the district court certified James, Nash and

Sheffield as representatives of a class consisting of past and

present black employees represented by the Salary Policy

Employee Panel of TVA’s Office of Agricultural and Chemical

Development (OACD). Subsequently the individual claims of

Eastland’ and Long were consolidated for trial with the claims

of the class and the class representatives.

The non-jury trial was bifurcated under Rule 42(b), Fed.

R. Civ. P. Stage I was limited to liability and injunctive relief.

Trial of this stage lasted seven weeks; 45 witnesses testified and

790 exhibits were received. The district court held in favor of

TVA on all claims and thus never reached the damage stage.

We affirm the judgment as to the class claims and the individ-

ual claims of the class representatives. We reverse as to

Eastland and Long.

I. Class Claims

TVA is a wholly owned government corporation that

provides electricity to the Tennessee Valley region and develops

agriculturai fertilizers among other projects. OACD is a

division of TVA involved in fertilizer research and production.?

As originally certified the plaintiff class includes

all past and present black salary policy employees repre-

sented by the Salary Policy Employee Panel of Tennessee

Valley Authority’s Muscle Shoals, Alabama, Office of the

Agricultural and Chemical Development, from January 17,

1973, until the present.

* Eastland is also a member of the class.

2 Defendants initially included: (1) members of TVA Board of

Directors, S. David Freeman, Richard M. Freeman and N. Robert

Clement; (2) the Salary Policy Employee Panel; and (3) Tennessee

Valley Trades and Labor Council. The Trades and Labor Council,

which represents essentially blue collar workers, did not actively

Participate in the litigation following entry of the class certification

order. At trial the court dismissed Eastland’s and Long’s individual

claims against the Salary Policy Employee Panel. The parties later

agreed to dismiss all claims against the Panel with the stipulation that

the Panel be bound by the decision on the merits.

D-3

The Salary Policy Employee Panel represents white collar

employees not in management positions. The positions repre-

sented by the panel are classified into the following salary

schedules.

SA—administrative

SB—clerical

SD—engineering and scientific

SE—aides and technicians

SF—custodial.?

Each job is given a level or grade within the particular

schedule. There are also “steps” within each grade. Higher

grades and higher steps within grades have correspondingly

higher pay.

The plaintiff class (hereinafter referred to as Eastland)

alleges that TVA unlawfully discriminates against black em-

ployees in promotion, job assignment, transfer, training and

other conditions of employment. The controversy centers

around the operation and effect of TVA’s personnel system.

Eastland contends that this system delegates “‘extensive subjec-

tive discretion” to a predominately white supervisory force and

that blacks have suffered as a result.

The personnel practices and policies attacked by Eastland

include: (1) the written job descriptions; (2) the system for

classifying jobs at a particular grade;5 (3) lack of a formal

3 Employees in management positions are classified on the M

Schedule. Public safety employees are classified on the G Schedule.

The employees on these schedules are not members of the class.

4The “keystone” of TVA’s personnel system is the written job

description. The description forms the basis for classification of a job

at a certain schedule and grade. A supervisor customarily writes the

job description.

5 When this litigation was begun TVA used the “classification

standard” system for evaluating job descriptions. Under this system

the division personnel officer would compare an individual’s job

description to standards set out in the classification standards manual

and determine the grade at which the job should be classified. An

employee not satisfied with his evaluation could request review by

TVA’s Division of Personnel or pursue a grievance or EEO claim.

Around 1975 TVA began the transition to the “factor format”

system for evaluating job descriptions. Under this system the division

personnel officer evaluates a job description by assigning quantative

[sic] values to job “factors”. The values are set out in guide charts.

The job evaluation is then sent to a union reviewer. If the reviewer

disagrees the matter may be appealed. A dissatisfied employee may

also pursue a grievance or EEO claim.

D-4

training program; (4) employee service reviews; and (5)

promotion and reclassification procedures.®

Eastland’s case included both statistical and anecdotal

evidence. The district court determined that the quality of both

modes of proof was insufficient to establish a prima facie case.

We agree.

On appeal Eastland raises a myriad of objections. Because

“it is neither practicable rior useful to write appellate opinions

dealing in detail with every facet of each case[,]” Ste. Marie v.

Eastern Railroad Ass’n, 650 F.2d 395, 397 (2d Cir. 1981), we

confine to our discussion to issues whose resolution is necessary

to our decision.

A. Class Certification

The original complaint was filed on behalf of a class

consisting of

all past, present, and future black employees and appli-

cants for employment in TVA’s Muscle Shoals, Alabama

area operations and facilities, and all black persons who

would apply or would have applied for employment in

said operations but for the defendant’s racially dis-

criminatory recruitment and employment practices or repu-

tation therefor.

The district court initially certified a class consisting of all past

and present black employees represented by the Salary Policy

Panel at OACD. Following the trial, the court further limited

the scope of the class by decertifying the Administrative or SA

schedule.

There are key differences between the class as alleged and

the class as ultimately certified. The certified class excludes all

6 An employee may progress to a higher level job by promotion

or reclassification. A promotion occurs when an established vacancy

is filled with an internal candidate. A reclassification occurs when an

employee classified at one level is moved to a higher level because he

is already performing the duties and responsibilities of the higher

level. Within OACD reclassification accounts for over 80% of

employees’ advancements to higher level jobs.

D-5

managerial employees and all employees represented by the

Tennessee Valley Trades and Labor Council. It also excludes

applicants and those denied employment or deterred from

seeking employment because of TVA’s discriminatory practices

or reputation.

Eastland argues that the district court abused its discretion

in narrowing the class. “[SJuits alleging racial or ethnic

discrimination are often by their very nature class suits, in-

volving classwide wrongs.” East Texas Motor Freight System,

Inc. v. Rodriguez, 431 U.S. 395, 405, 97 S.Ct. 1891, 1897, 52 L.

Ed. 2d 453 (1977). Eastland emphasizes that the requirements

of Fed. R. Civ. Proc. 23 have been met and that under the

“across-the-board” approach to Title VII, parties have been

permitted to represent those who “suffe[r] from different

practices motivated by the same policies”. Payne v. Travenol

Laboratories, Inc., 565 F.2d 895, 900 (Sth Cir.), cert. denied,

439 U.S. 835, 99 S.Ct. 118, 58 L. Ed. 2d 131 (1978) (citations

omitted ).

These arguments are unpersuasive. The Supreme Court

recently has reiterated the importance of careful attention to the

requirements of Rule 237 and cautioned against the overzealous

application of the “across-the-board” approach. General Tele-

phone Co. v. Falcon, 457 U.S. 147 157-160, 102 S.Ct. 2364,

2370-72, 72 L. Ed. 2d 740, 749-52 (1982). “The mere fact that

a complaint alleges racial or ethnic discrimination does not in

itself ensure that the party who has brought the lawsuit will be

an adequate representative of those who may have been the

real victims of that discrimination.” Jd. 457 U.S. at 157, 102

S.Ct. at 2370, 72 L. Ed. 2d at 750 (quoting Rodriguez, 431 U.S.

at 405-06, 97 S.Ct. at 1897-98).

7 Fed. R. Civ. P. 23 provides in part:

(a) Prerequisites to a Class Action. One or more members of a

class may sue or be sued as representative parties on behalf of all

only if (1) the class is so numerous that joinder of all members is

impracticable, (2) there are questions of law or fact common 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 parties will fairly and adequately protect the

interests of the class.

D-6

The district court limited the scope of the class based on a

determination that the representatives parties lacked sufficient

nexus with the putative class members to adequately protect

their interests. The determination that a party would ade-

quately protect the interests of a class is factual and depends on

the circumstances of each case. Guerine v. J & W Investment,

Inc., 544 F.2d 863, 864-65 (Sth Cir. 1977). Given the

character of the employees’ claim and the nature of the

evidence required to substantiate it, we find that the district

court did not abuse its discretion in narrowing the class.

B. Legal Framework

A Title VII action may be based upon disparate treatment

or disparate impact or both. In a disparate treatment case

proof of discriminatory motive or intent is essential. IJnter-

national Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335-

36 n.15, 97 S.Ct. 1843, 1854-55 n.15, 52 L. Ed. 2d 396 (1977).

A plaintiff can create an inference of discriminatory intent by

proving the four elements of the McDonnell Douglas test® or by

“offering [other] evidence adequate to create an inference that

an employment decision was based on a discriminatory crite-

rion illegal under the Act”. Jd. at 358, 97 S.Ct. at 1866

(footnote omitted ).

In an action alleging class-wide discrimination plaintiffs

must “establish by a preponderance of the evidence that racial

discrimination was the company’s standard operating proce-

dure—the regular rather than the unusual practice”. Jd. at 336,

97 S. Ct. at 1855 (footnote omitted). A prima facie case of

disparate treatment may be established by statistics alone if

8 Under the McDonnell Douglas test a plaintiff may establish a

prima facie case by showing that: (1) he belongs to a racial minority;

(2) he applied and was qualified for a job; (3) despite his quali-

fications he was rejected; and (4) after his rejection the position

remained open and the employer continued to seek applications from

persons of complainant’s qualifications. McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L. Ed. 2d 668

(1973).

D-7

they are sufficiently compelling. James v. Stockham Valves &

Fittings Co., 559 F.2d 310, 328-29 ( Sth Cir. 1977), cert. denied,

434 U.S. 1034, 98 S. Ct. 767, 54 L. Ed. 2d 781 (1978). Even

when the statistics are compelling, the prima facie case is

bolstered if the plaintiff offers anecdotal evidence to “[ bring]

the cold numbers convincingly to life.” Teamsters, 431 U.S. at

339, 97 S. Ct. at 1856.

Once plaintiff establishes a prima facie case of disparate

treatment, the burden shifts to defendant to rebut the inference

of discrimination by showing that plaintiff's statistics are mis-

leading or by presenting legitimate non-discriminatory reasons

for the disparity. Texas Department of Community Affairs v.

Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207

(1981). Defendant's burden is production not persuasion. If

defendant meets its burden, plaintiff may show that the asserted

explanations are inaccurate or otherwise unworthy of credence.

The ultimate burden of persuasion remains at all times with

plaintiff.

A plaintiff may also bring a Title VII action under the

disparate impact theory. Disparate impact is used to attack

employment practices that are facially neutral yet fall more

harshly on a protected class of employees. The employer’s

intent is not at issue. Griggs v. Duke Power Co., 401 U.S. 424,

91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). A prima facie case is

established by identification of a neutral employment practice

coupled with proof of its discriminatory impact. Johnson vy.

Uncle Ben’s, Inc., 657 F.2d 750, 753 (Sth Cir. 1981), cert.

denied, _._.. U.S. —, 103 S. Ct. 293, 74 L. Ed. 2d 277

(1982). Disparate impact may be established by statistical

evidence. New York City Transit Authority v. Beazer, 440 U.S.

568, 584, 99 S. Ct. 1355, 1365, 59 L. Ed. 2d 587 (1979). Once

plaintiff establishes a priina facie case the burden of persuasion

shifts to the employer. Johnson, 657 F2d at 752-53. The

employer must then prove either that the practice is related to

job performance, Dothard v. Rawlinson, 433 U.S. 321, 97 S. Ct.

2720, 53 L. Ed. 2d 786 (1977), or that plaintiff's statistical

proof is unacceptable. EEOC v. Datapoint Corp., 570 F.2d

1264, 1269-70 (Sth Cir. 1978).

D-8

1. Disparate Impact Model

Eastland attacks OACD’s personnel system under both

disparate impact and disparate treatment theories. According

to TVA, the attack on the excessive subjectivity of OACD’s

personnel system fails to identify a specific facially neutral

employment practice that can be appropriately tested under the

disparate impact model.

TVA relies on Pouncy v. Prudential Insurance Co., 668

F.2d 795 (Sth Cir. 1982). In Pouncy the court states:

The discriminatory impact model of proof in an

employment discrimination case is not, however, the

appropriate vehicle from which to launch a wide ranging

attack on the cumulative effect of a company’s employment

practices. Nor may just any employment practice be

challenged under this model simply because an uneven

racial balance exists in’ an employer’s work force.

—

We require proof that a specific practice results in a

discriminatory impact on a class in an employer’s work

force in order to allocate fairly the parties’ respective

burdens of proof at trial. The aggrieved party must prove

a disparate impact due to the selection procedure. The

employer then has the burden of proving that the selection

procedure is justified by a legitimate business reason.

Johnson, 657 F.2d at 753. Identification by the aggrieved

party of the specific employment practice responsible for

the disparate impact is necessary so that the employer can

respond by offering proof of its legitimacy. “Knowledge of

a legitimate business reason is uniquely available to the

employer who is . . . required to persuade the court of its

existence by a preponderance of the evidence.” Jd.

None of the three Prudential “employment practices”

singled out by the appellant—the failure to post job

openings, the use of a level system, and evaluating employ-

ees with subjective criteria—are akin to the “facially

neutral employment practices” the disparate impact model

D-9

was designed to test. Unlike educational requirements,

aptitude tests, and the like, the practices identified by

Pouncy are not selection procedures to which the disparate

impact model traditionally has applied. See 3 A. Larson

& L. Larson, Employment Discrimination § 73.00 (1981 &

1981 Supp. ).

Id. at 800-01 (footnotes omitted ).

The use of the disparate impact model in cases such as this

one is troublesome. Former Fifth Circuit precedent, however,

indicates that subjective selection and promotion procedures

may be attacked under the disparate impact theory. See

Johnson v. Uncle Ben’s, Inc., 628 F.2d 419, 426-27 (Sth Cir.

1980), vacated, 451 U.S. 902, 101 S.Ct. 1967, 68 L. Ed. 2d 290

(1981), modified and aff'd in part, rev'd in part, 657 F.2d 750

(Sth Cir. 1981), cert. denied, US. , 103 S.Ct. 293, 74

L. Ed. 2d 277 (1982). Since we agree with the district court

that Eastland failed to prove either disparate treatment or

disparate impact we need not decide whether this prior case law

is distinguishable.

2. Standard of Review

We review findings of fact under the clearly erroneous

standard, Fed. R. Civ. P. 52(a), which applies to questions of

“ultimate fact” such as a finding of discrimination or

nondiscrimination. Pullman-Standard v. Swint, 456 U.S. 273,

102 S.Ct. 1781, 72 L. Ed. 2d 66 (1982). “A finding is ‘clearly

erroneous’ when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that mistake has been committed.” U.S. v.

United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542,

92 L. Ed. 746 (1948).

C. The Evidence

Eastland launches a broad-based attack on TVA’s person-

nel system. The district -ourt found the evidence of racial

discrimination in transfers, training, assignment and other

D-10

conditions of employment unpersuasive. It tersely disposed of

these claims, finding that Eastland had failed to carry his

burden. We cannot hold the findings of nondiscrimination

clearly erroneous. Pullman-Standard, 456 U.S. 273, 102 S.Ct.

1781, 72 L. Ed. 2d 66.9

The court stated that “the only evidence worthy of review

is that on the issue of promotion.” Since we are unwilling to

disturb the disposition of the other claims, our discussion will

focus on the court’s treatment of the evidence as it relates to the

claim of promotion discrimination.

1. The statistics

Eastland presented a series of pay rate, initial assignment

and multiple regression analyses. The analyses were performed

for three different groups of TVA employees:

(1) Data Set A: blacks in the class and whites in TVA

facilities south of the Tennessee border served by the

Muscle Shoals Area Employment Office (MSEO area);

The certification order limited the class to past and present

employees, thereby excluding hiring or applicant claims. The district

court refused to consider the initial assignment claims because they

were “applicant claims.” Since we have held that the certification was

not an abuse of discretion, the propriety of the ruling in question turns

on whether the initial assignment claims were properly characterized

as applicant claims.

Eastland argues that an initial assignment claim is not an

applicant claim. An applicant claim relates to the hiring decision.

Once a person has been hired, his initial assignment is as much a

condition of his employment as is his later promotion or transfer.

Eastland cites James, 559 F.2d at 316-17, to support the proposition

that an initial assignment claim may properly be raised in a case in

which hiring discrimination is not at issue. TVA argues that under

OACD’s procedures applicants are hired for specific positions. Thus

the hiring decision includes dn initial assignment. TVA distinguishes

James, pointing out that it involved hiring blue collar workers into

unskilled entry level positions and subsequently assigning them to

racially segregated departments.

The district court found that the initial assignment claims were

applicant claims, thereby implying that OACD’s hiring and initial

assignment procedures could not be separately analyzed. Although

discrete initial assignment claims may be proper in some contexts, the

finding that in OACD initial assignment is part of the hiring process is

not clearly erroneous.

D-11

(2) Data Set B: blacks in the MSEO area and whites

in MSEO area;

(3) Data Set OACD: blacks in the class and corre-

sponding whites.

Data Sets A and B include individuals from divisions other

than OACD. The district court found the statistics from these

sets “irrelevant in determining whether there has been racial

discrimination at OACD, a small and unrepresentative portion

of [TVA].” Although these statistics could have been consid-

ered as corroborative evidence, their rejection was not error.

Eastland’s statistics compare salaries of black and white

employees. TVA contends that statistics showing disparities in

salaries are not probative in determining whether a promotion

system is discriminatory. According to TVA, average wage

statistics describe “only earnings”, and their relationship to the

promotion discrimination claim is attenuated.

The analyses use salary as a proxy for position on the job

hierarchy. The relationship between remuneration and job

level is not so attenuated as to invalidate these analyses. Higher

salaries generally coincide with higher level jobs. If blacks at

TVA earn less than whites it is because they are assigned to

lower ranking, lower paying positions. The Fifth Circuit has

implicitly accepted the use of a group’s average wage as a proxy

for position on the job hierarchy. James, 559 F.2d at 321-27

(court found discrimination in job allocation relying in part on

the disparity in average hourly earnings between black and

white employees); Vuyanich v. Republic National Bank of

Dallas, 505 F. Supp. 224, 338 (N.D. Tex. 1980). Therefore,

while the salary statistics are flawed in other respects they are

not irrelevant to the promotion discrimination claim.

A. Pay rate analyses

The pay rate analyses compare the average annual salaries

of black and white employees. The analyses classify the

employees according to Jength of service, level of education, job

Fra

D-12

schedule, and date hired. Statistics were also presented show-

ing the average annual salary upon initial assignment. These

analyses generally indicate that black employees earn less than

white employees.

The district court gave little weight to the pay rate statistics

because they “ignored important differences in skills, education,

training and experience. . . .” The court correctly evaluated the

limitations of the pay rate statistics. For example, the pay rate

analysis showing that blacks and whites with the same number

of years of service are paid differently does not demonstrate

discrimination because the other factors which influence salary

are not considered. While the pay rate analyses are not without

evidentiary value, they are deficient because they fail to take

into account the fact that a number of factors operate simulta-

neously to influence the amount of salary an OACD employee

receives. See Wilkins v. University of Houston, 654 F.2d 388,

402 (Sth Cir.), reh’g denied, 662 F.2d 1156 (1981), vacated,

US. __, 103 S.Ct. 34, 74 L. Ed. 2d 47 (1982),

remanded on other grounds, 695 F.2d 134 (Sth Cir. 1983).

B. Multiple regression analyses

Multiple regression analysis is a quantitative method of

estimating the effects of different variables on some variable of

interest.

In multiple regression, one first specifies the major

variables that are believed to influence the dependent

variable. ... There inevitably remain minor influences,

each one perhaps very small, but creating in combination a

non-negligible effect. These minor influences are treated

by placing them in what is called a random disturbance

term and assuming that their joint effect is not system-

atically related to the effects of the major variables being

investigated—in other words by treating their effects as

due to chance... .

D-13

The relationship between the dependent variable and

the independent variable of interest is then estimated by

extracting the effects of the other major variables. . .

Fisher, Multiple Regression in Legal Proceedings, 80 Colum. L.

Rev. 702, 705-06 (1980) (footnotes omitted ).

The probatives value of a multiple regression analysis

depends in part upon: (1) the inclusion of all the major

variables likely to have a large effect on the dependent vari-

ables; and (2) the validity of the assumption that the remaining

effects (the influences included in the random disturbance

term) are not correlated with the independent variables includ-

ed. Id. at 713.

In the case before us Eastland presented two sets of

regression analyses and TVA presented one set in rebuttal. In

all of the analyses salary is the dependent variable and race

(black ) is the variable of interest.

In Eastland’s first regression the independent variables

include: (1) age; (2) years of service; (3) non-technical degree;

(4) technical degree; (5) race (other); and (6) race (black).

The regression was performed for 1970, 1975, and 1979 on

Data Sets A & B, the four-city area't? and OACD. The

regression indicates that race (black) has a statistically signifi-

cant negative influence on salary.

TVA argues that regression analysis is inappropriate in this

case because of the small sample size in terms of the number of

blacks in the schedules and the lack of information on pre-TVA

work experience. TVA, while maintaining that regression

analysis is inappropriate, nonetheless presented a set of regres-

sion analyses in rebuttal. TVA ran a separate regression for

each job schedule, a regression combining schedules D & E,

and a regression combining schedules A & B. All of TVA’s

regressions are based on 1980 data and employ the same

independent variables, which include: (1) age; (2) years of

Shoals, Tuscumbia, Florence, and Sheffield, Alabama.

D-14

education; (3) years of service; (4) social science degree;

(5) physical science degree; (6) engineering science degree;

(7) Code R—Phd in any field or chemical engineering degree;

(8) race (black).'' With the exception of the E schedule

regression, TVA’s analyses indicate that race (black) does not

have a Statistically significant influence on salary. '2

Near the end of the trial Eastland introduced a second set

of regressions with independent variables basically the same as

those used by TVA in its regression. The second regression was

performed for the year 1979 on data sets A & B and OACD.'3

This regression indicated that race (black) has a statistically

significant negative influence on salary.

The district court found the multiple regression analyses

insufficient to establish a prima facie case because they failed to

adequately reflect job comparability. Eastland argues that the

court erred in its appraisal of his regression analyses. Accord-

ing to Eastland, the function of the regression analyses is to

demonstrate that blacks and whites with comparable quali-

fications are assigned to different jobs on the basis of race. The

function of the educational degree variable is to account for

differences in background and training. Unless TVA hires

unqualified persons one would not expect to find racially based

wage disparities between persons with similar technical training

unless blacks are being shunted into lower ranking, lower

paying jobs.

Eastland’s defense of his regression analyses is too facile.

Accounting for differences in education and years of service

does not eliminate all reasonable objections to regressions

performed across disparate occupational categories.

11 TVA ran a step-wise regression program. The validity of such

program: has been questioned. Fisher, supra, at 714.

12 Generally an F-value of 4 and/or a probability level of .05 is

accepted as statistically significant. On the E schedule regression race

(black) had a F-value of 3.96 and a probability level of .0546. These

values are at the borderline of statistical significance.

13 Regressions were run on OACD excluding M schedule and

OACD excluding F schedule.

D-45

TVA maintains that the regressions are entitled to little

weight because Eastland: (1) failed to establish an adequate

theoretical foundation for his model; and (2) failed to control

for job category. '4

1. Eastland’s foundation

The probative value of a regression analysis depends in

part upon the inclusion of all major variables likely to have a

large effect on the dependent variable. Wilkins v. University of

Houston, 654 F.2d at 402; Fisher, supra, at 713. ““[A] properly

done study begins with a decent theoretical idea of what

variables are likely to be important.” Fisher, supra, at 715. By

evaluating the basis upon which the party selected the variables

included in its regression the court may assess the model’s

validity.

14 TVA also insists that the failure of Eastland’s regression

analyses to account for the influence of pre-TVA work experience

seriously undermines the regressions’ probative value.

The failure to account for pre-TVA work experience may have

some effect on the value of the regressions. See Valentino v. United

States Postal Service, 674 F.2d 56, 71 n.25 (D.C. Cir. 1982). In light

of the fact that TVA’s own regressions did not account for this

variable, however, the omission should not have substantially im-

paired the validity of Eastland’s model.

A defendant’s claim that the plaintiff's model is inadequate

because a variable has been omitted will ordinarily ride on

evidence showing (a) that the qualification represented by the

variable was in fact considered, and (b) that the inclusion of the

variable in the regression changes the results of the regression so

that it no longer supports the plaintiff. Both of these facts are

established most clearly and directly if the defendant offers an

alternative regression model similar to the plaintiff's except for

the addition of the variable in question.

D. Baldus & J. Cole, Statistical Proof of Discrimination Sec. 8.23 at 74

(1980 & 1982 Supp. ).

It is also argued that Eastland’s regressions should be rejected

because they fail to filter out the effects of events occurring before

Title VII became applicable to OACD. “Statistics tuned to the proper

time period are more probative than statistics not so tuned, but

categorical rejection of the latter is not warranted.” Valentino, 674

F.2d at 71 n.26. Eastland’s failure to filter out the effects of pre-

liability acts is not ground for striking the regressions.

D-16

Three kinds of evidence may be offered in support of a

regression model; direct testimony as to what factors

operated in the decision-making process under challenge,

what kinds of factors generally operate in decision-making

processes of the kind under challenge, and expert testi-

mony concerning what factors can be expected to influence

the process under challenge according to principles of

economic theory.

D. Baldus & J. Cole, Statistical Proof of Discrimination Sec.

8.22 at 70 (1980 & 1982 Supp.) (hereinafter Baldus & Cole).

The strength of the factual foundation supporting a regression

model may be a factor in assessing whether the group status

coefficient indicates discrimination or the influence of legitimate

qualifications which happen to correlate with group status.

Baldus & Cole, supra, Sec. 8.021 at 66 (1982 Supp. ).

Eastland did not explain why the variables used in his first

regression were selected. Nor did he offer evidence indicating

which variables typically determine the salary of an OACD

employee.'5 Moreover, TVA’s cross examination revealed that

Eastland’s expert, Dr. Ireland, had only a general under-

standing of the structure of OACD and was not familiar with

the job hierarchy, promotion patterns or the salary level for

specific jobs.

TVA’s expert, Dr. Martin, challenged the validity of

Eastland’s model and identified several additional variables

which allegedly influenced salary at OACD. TVA maintains

that regression analysis is inappropriate in this case, but if a

18 See Stastny v. Southern Bell Tel. & Tel. Co., 485 F. Supp. 314,

323 (W.D.N.C. 1978), aff'd in part, 628 F.2d 267 (4th Cir. 1980)

(lack of solid evidence supporting choice of variables included in

regression model was a factor in the court’s scepticism concerning the

general regression assumption that certain independent variables in

fact determine the outcome of decisions); Presseisen v. Swarthmore

College, 442 F. Supp. 593, 616 (E.D. Pa. 1977), aff'd, 582 F.2d 1275

(1978) (lack of expert testimony concerning what factors “typically

go into the setting of salaries of a college faculty member” under-

mined value of plaintiff's statistical expert’s testimony and regression

model ).

D-17

regression is done it should account for the fact that the

importance of a variable in predicting salary will vary from

schedule to schedule. Using an expanded list of variables, TVA

conducted a separate regression for each job schedule.

Eastland’s second regression adopted “TVA’s variables”

but ran the regression for all of OACD. Eastland implies that

the validity of this model cannot be questioned because ‘the

regression employs TVA’s suggested variables. TVA, however,

emphasized the importance of accounting for differences be-

tween the schedules. Thus the validity of the second regression

’ is based upon that portion of TVA’s expert’s testimony which

Eastland chose to accept. Eastland never directly refutes TVA’s

contention that a variable’s importance in predicting salary

varies among the job schedules. Instead, he emphasizes that by

performing a separate analysis for each schedule one decreases

the likelihood of finding statistically significant relationships. In

sum, Eastland failed to establish a sufficiently strong theoretical

foundation for his regression analyses.

2. Failure to control for job category.

Eastland’s regressions include a large number of quali-

fication variables. At no point, however, do his regressions

control for job category. The district court found this defect

fatal.

Eastland’s regressions predict salary across all OACD job

schedules with one set of variables. Thus, the regression

equation attempts to fit all the varibles to the data set without

regard for job category. TVA assets that the importance of a

variable in predicting salary varies among the schedules and

even among the job titles within the schedules. Therefore, a

regression should account for the “interaction” between the

kind of job and the other variables.'® For example, if the pay

16 Baldus & Cole have recognized that:

one should consider “interaction” variables, which take account

of possible interactions between the primary qualification vari-

‘ables. For example, in the hypothetical wage case, a given

D-18

range for the F schedule is $13,000 to $15,000 and the range for

the M schedule is $20,000 to $55,000, a variable such as years

of experience means more on the M schedule than on the F

schedule. A regression that does not account for the kind of job

and years of experience may yield a statistically significant race

effect simply because blacks are more highly represented on the

F schedule.

While maintaining that regression analysis is inappropriate

in this case, TVA’s expert attempted to build a model that

would account for interaction between the independent vari-

ables and job schedule. TVA says that it was unable to perform

the analysis because of difficulties with the logic and complexity

of the model and the limited data base. Unable to produce an

adequate regression model for all of OACD, TVA opted for a

set of regressions broken down by job schedule. TVA’s

regressions showed a race effect only in the E schedule.

Eastland contends that TVA’s regression fails to under-

mine the probative value of his analyses, pointing out that: (1)

the breakdown by job schedule reduces the size of the data

base, thereby making it more difficult to establish statistically

significant relationships;'? and (2) TVA’s own regression shows

a race effect on the E schedule. Although Eastland’s arguments

are not frivolous, the bottom line in the prolix arguments and

responses presented to us is that his regression analyses fail to

control for job category.

A recent opinion of the D.C. Circuit supports the con-

tention that a regression performed across disparate occupa-

increase in the quality of an individual’s performance may

produce a larger wage increase for people with high seniority

than for those with low seniority. In such a case, an interaction

variable will be required to describe this relationship; a model

that assumes that the wage received is simply the sum of the

amounts determined individually by the candidate’s seniority and

job performance will not fit the date adequately.

Baldus & Cole, supra, Sec. 6.313[2] at 203.

17“All other things being equal, the test statistic and level of

significance rise as the sample size increases.” Baldus & Cole, supra,

Sec. 9.221 at 30.

D-19

tional categories must somehow account for job classification.

In Valentino v. United States Postal Service, 674 F.2d 56 (D.C.

Cir. 1982), the plaintiff brought a Title VII action against the

Postal Service charging that the subjective promotion system

for upper echelon positions discriminated against women.

Plaintiff introduced regression analyses that attempted to esti-

mate the influence of sex, length of government service, and

years of education on the salaries of Postal Service employees.

The court rejected them because of the failure to control for the

type of education and job category. Jd. at 70.

Valentino noted that a plaintiff's statistical data need not

consider every conceivable factor relevant to a promotion

decision but “the minimum objective qualifications necessary for

one to be eligible for promotion must be considered.” Jd. at 68

(quoting Davis v. Califano, 613 F.2d 957, 964 (D.C. Cir.

1980)) (emphasis in original). The court noted that the

burden of comparing appropriate groups in terms of minimum

objective qualifications was “onerous” in the case because of

the variety of occupational categories involved. In the present

case Eastland’s analyses account for many objective quali-

fications, but the failure to control for job category casts doubt

on whether the regressions are comparing appropriate groups.

Given the weakness of the theoretical foundation and the

failure to control for job category, the district court did not err

in determining that Eastland’s regressions were insufficient to

establish a prima facie case.'®

2. Individual testimony

Eastland presented testimony from over 20 OACD em-

ployees, each of whom testified to having been discriminated

against in some manner. The district court found the anecdotal

18 TVA presented statistics showing that the percentage of blacks

in each job schedule at OACD was greater than the percentage of

qualified blacks in the outside labor market. TVA also presented

progression charts showing the time black and white employees spend

in each grade before promotion. The court found TVA’s labor market

statistics the most relevant statistical data presented. The progression

charts were also favorably received. We express no opinion regarding

the court’s evaluation of TVA’s statistical proof, and we disregard

these findings as surplusage.

D-20

evidence unconvincing and therefore insufficient to establish a

prima facie case of discrimination. We have reviewed this

evidence, and we cannot hold that the district court erred in

concluding that it failed to establish a prima facie case.

Considering both the statistical and anecdotal evidence

presented on behalf of the plaintiff class the district court's

finding of non-discrimination is not clearly erroneous. '%

II. Individual Claims

A. Eastland

Eastland applied to TVA for a position as a helicopter

pilot. When two openings subsequently arose, white applicants

were selected. Eastland contends that he was adequately

qualified for the job and the decision not to hire him was

racially motivated. The court found that Eastland failed to

prove hiring discrimination. The finding of nondiscrimination

is clearly erroneous because it is based on several subsidiary

lindings that are clearly erroneous.

Under the McDonnell Douglas test, a plaintiff may estab-

lish a prima facie case of intentional discrimination by showing:

(i) that he belongs to a racial minority; (ii) that he applied

and was qualified for a job for which the employer was

seeking applicants; (iii) that, despite his qualifications, he

was rejected; and (iv) that, after his rejection, the position

remained open and the employer continued to seek appli-

cants from persons of complainant’s qualifications.

McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (footnote

omitted). The district court erroneously found that Eastland

had not shown that he was adequately qualified. Eastland was

a licensed pilot with considerable flying experience.2° TVA has

‘9 Having reached this conclusion we have no reason to review

the court’s findings regarding the subjectivity of OACD’s personnel

system.

20 When Eastland applied he had a commercial certificate for

helicopters with an instrument rating and a private pilot certificate for

single-engine fixed-wing aircraft. In the military and elsewhere

Eastland had accumulated over 1,500 hours of helicopter flight time

and over 200 hours of single-engine fixed-wing time.

D-21

failed to identify any standard additional requirements that

applicants must meet.?'

The court also found that Eastland failed to prove that,

after his rejection, TVA continued to seek applications from

similarly qualified persons. The Court’s position is that East-

land was at best minimally qualified and TVA never sought

minimally qualified applicants; the record does not support this

conclusion. The finding that after Eastland’s rejection TVA did

not continue to seek applications from persons with similar

qualifications is clearly erroneous.

Eastland established a prima facie case of intentional

discrimination. The burden then shifted to TVA to “produc[e]

evidence that the plaintiff was rejected, or someone else was

preferred, for a legitimate nondiscriminatory reason.” Bur-

dine, 450 U.S. at 254, 101 S.Ct. at 1094. TVA’s burden is

production not persuasion. If TVA carries its burden then

Eastland must prove that the asserted reasons are pretextual.

The district court found that even if Eastland established

that he was qualified for the position, TVA’s hiring decision was

justified because the white applicant had superior quali-

fications. But TVA’s selecting supervisor did not know whether

the white applicant’s qualifications were superior at the time the

hiring decision was made. TVA’s decision cannot be defended

on the basis of the relative qualifications of the applicants if

these qualifications were not considered.

The court also found that Eastland’s failure to apply for

temporary employment justified TVA’s decision not to hire him.

TVA, however, did not assert that it rejected Eastland on that

basis. .

In sum, Eastland established a prima facie case of in-

tentional discrimination and proved that the articulated

nondiscriminatory reasons for TVA’s hiring decision were mere

pretexts. The judgment must be reversed as to Eastland.

21 TVA hired Eastland as a pilot four months prior to trial. His

helicopter pilot qualifications were then substantially identical to his

qualifications as of 1972.

D-22

B. Long

Sanford Long was hired in 1950. During his career at

TVA he worked as a laborer, a chemical plant operator and

phosphorus recovery operator.22 He was authorized to serve as

a substitute Phosphate Handling Shift Foreman as well as a

substitute Chemical Plant Foreman.

In 1975 an opening arose for Chemical Plant Foreman. A

white employee, James Hammock, was selected for the posi-

tion. Long claims that his nonselection as Chemical Plant

Foreman was racially motivated. The district court found that

although Long was qualified for the position, the white candi-

date, Hammock, was better qualified. According to the court,

Long failed to prove that racial discrimination was the reason

for his nonselection. This finding is clearly erroneous.

Long established a prima facie case of intentional dis-

crimination under McDonnell Douglas by showing (1) he was

black; (2) he was fully qualified for the promotion; (3) he was

rejected; and (4) after his rejection Hammock was selected.

The district court found that TVA had rebutted Long’s

prima facie case by articulating legitimate nondiscriminatory

reasons for his nonselection. TVA asserts that Hammock was

better qualified because of his broader training experience,

initiative and leadership ability. We need not decide whether

TVA met its burden of articulating legitimate reasons for its

decision because Long established that TVA’s asserted reasons

were pretexts for discrimination. The findings to the contrary

are clearly erroneous.

Long had more seniority than Hammock both as a TVA

employee and as a substitute Che Plant Foreman. Ham-

mock had both an attendance and drinking problem before and

after his selection as foreman. The finding that Hammock’s

problems did not arise until after his promotion is clearly

erroneous. Moreover, Long presented considerable evidence of

Bellew’s (TVA’s selecting supervisor) racial bias. The district

22 In 1976 Long retired from TVA on a disability pension.

D-23

court found Bellew was not racially biased based largely on the

testimony of a single witness. Four black employees, however,

testified as to Bellew’s racially discriminatory behavior. After

reviewing the evidence we are left with the definite and firm

conviction that the court’s finding is in error.

The judgement as to Long must be reversed.

C. James

TVA hired William James as an SF-| janitor. After

several years James was reclassified as a bathhouse custodian

SF-2. In 1976, his job classification was reduced from bath-

house custodian, SF-2, to janitor SF-1 under reduction in force

procedures prescribed by the Civil Service. James alleges that

his demotion was the result of discrimination. We agree with

the district court that James’ claim is without merit.

TVA maintains that James’ grade classification was re-

duced because of a corresponding reduction in his duties.

According to James, the reduction in his workload that

prompted his demotion was caused by TVA’s tolerance of

makeshift bathhouses used by employees who refused to use

integrated facilities.

The record supports the finding that in 1976 there was

insufficient work at the bathhouse facilities to support James’

SF-2 position. James did not demonstrate that the decision to

demote him was motivated by a racial animus.

D. Nash

Nash makes three separate claims. As to each the district

court found in favor of TVA. We see no error.

First, Nash claims that TVA has taken reprisal against him

for contacting an EEO officer. To establish a prima facie case

of reprisal, an employee must show by a preponderance of the

evidence (1) that he engaged in a protected activity and that

that fact was known by the employer; (2) that the employer

took an adverse action against him; and (3) that there is a

D-24

causal connection between the protected activity and the ad-

verse action. Smalley v. City of Eatonville, 640 F.2d 765, 769

(Sth Cir. 1981). Evidence that the adverse treatment followed

closely upon the protected activity (i.e., contacting an EEO

officer) may be sufficient to establish a causal connection.

Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130,

1141 and n.13 (Sth Cir. 1981), cert. denied, 455 U.S. 1000, 102

S.Ct. 1630, 71 L.Ed.2d 866 (1982). It is undisputed that Nash

contacted an EEO counselor and as a result of that meeting the

counselor recommended that TVA conduct a service review of

his performance. The review was generally positive but

included the comment: “during the early part of the review

period [ Nash’s] work output was below his full capacity.” It is

not clear that this comment alone constitutes adverse action. In

any event, based on the testimony of Nash’s supervisor, the

court found that the comment was not made in reprisal for EEO

activities. This finding is not clearly erroneous.

Nash’s second claim is that he was improperly denied

reclassification. He testified that there was no material differ-

ence in his work before or after he was reclassified from SE-4 to

SE-S in 1976. The findings that Nash failed to prove he was

entitled to an earlier or higher reclassification are not clearly

erroneous.

Nash’s third claim is that he was discriminatorily denied

access to the M schedule. In defining the class the district court

excluded emoloyees on the M schedule and subsequently ruled

that promotions to the M schedule were not a part of the case.

We have already determined that the court did not abuse its

discretion in narrowing the class. In any event, Nash failed to

introduce sufficient evidence to prove his claim.

E. Sheffield

Louie Sheffield joined TVA in 1951 as a chemical aide on

the E schedule. He was promoted to SD-1! in 1963 and to SD-2

14 months later. Sheffield claims that (1) TVA’s failure to

recommend him for reclassification to SD-3 earlier in his career

D-25

was caused by racial discrimination; and (2) he was wrongfully

denied reclassification from SD-2 to SD-3 in late 1972 after his

supervisor had recommended the reclassification. The court

found Sheffield’s claims to be without merit, and we affirm.

The district court found that Sheffield failed to prove that

racial bias @#fused TVA to delay recommending his reclassifica-

tion to SD-3. This finding is not clearly erroneous.

In November 1972 Sheffield’s immediate supervisor rec-

ommended him for reclassification. The reclassification was not

effected until August 1973. The court found that TVA’s delay

in reclassifying Sheffield was caused by the psychological effect

of the hiring freeze and the ceiling on average grade level

imposed by the executive branch of the government. The

finding that Sheffield was not singled out for different treatment

because of his race is not clearly erroneous.

We AFFIRM the judgment as to the class claims and the

individual claims of the class representatives, James, Nash and

Sheffield. We Reverse the judgments entered against Eastland

and Long and REMAND for further proceedings.

Hour

OPINION OF THE DISTRICT COURT

ON THE CLASS CLAIMS

REPORTED AT 528 F. Supp. 862 (N.D. Ala. 1981)

E-1

APPENDIX E

IN THE UNITED STATES District COURT FOR THE

NORTHERN DisTRICT OF ALABAMA

NORTHWESTERN DIVISION

FRANK L. EASTLAND, individually, et al.,

Plaintiffs,

—against—

S. DaviD FREEMAN, ef al,

Defendants.

Civil Action No. 73-G-0487-NW

December 15, 1981

MEMORANDUM OPINION

GUIN, District Judge:

This cause came before the court after a bench trial held

from August |1 through 22, 1980, in Florence, Alabama, and

from September 29 through October 23, 1980, in Birmingham,

Alabama. The bench trial involved individual claims of

plaintiffs Frank L. Eastland and Sanford L. Long, and the class

action, which is the subject of this memorandum opinion. The

claims of Mr. Eastland and Mr. Long are considered in separate

memorandum opinions. The class representatives are William

N. James, Robert H. Nash, and Louis J. Sheffield. Mr. Long is

not a member of the class; however, since Mr. Eastland was

briefly employed as a salary policy employee by one of the

E-2

organizations within the Office of Agricultural and Chemical

Development (OACD), he is a class member. The defendants

consist of the members of the Tennessee’ Valley Authority

Board of Directors in their official capacity, S. David Freeman,

Richard M. Freeman, and Robert N. Clement, who will be

referred to as “TVA;” the Salary Policy Employee Panei

(Panel), which represents essentially TVA “white collar” em-

ployees exclusive of those on the “M” or management pay

schedule; and the Tennessee Valley Trades and Labor Council

(Council), which represents essentially TVA “blue collar”

employees. Since only a “white collar” class is certified, the

Council has not played an active role in this litigation after the

entry of the class certification order.

The procedural history of this case is quite lengthy. The

original complaint was filed on May 21, 1973, and was

substantially amended on October 9, 1973. The court originally

disposed of the case on motion for summary judgment by the

TVA defendants. The United States Court of Appeals for the

Fifth Circuit reversed in part and remanded for further pro-

ceedings, and the Supreme Court declined to review that

decision. Eastland v. Tennessee Valley Authority, 398 F. Supp.

541 (N.D. Ala. 1974), supplemented 9 EPD ¥ 10,213 (N.D.

Ala. 1975), supplemented 10 EPD 4 10,362 (N.D. Ala. 1975),

aff'd in part, rev'd in part, 553 F.2d 364 (Sth Cir. 1977), cert.

denied 434 U.S. 985, 98 S. Ct. 611, 54 L. Ed. 479 (1977). The

Fifth Circuit specifically upheld this court’s grant of summary

judgment against nine of the twelve piaintiffs. All but one of

those nine were employees of TVA’s Office of Agricultural and

Chemical Development (OACD) at Muscle Shoals, Alabama.

The ninth was an employee of TVA’s Division of Power

Production who was s¢eking an apprentice job at OACD. The

Fifth Circuit stated that these individuals could seek to inter-

vene as members of a certified class; none did so. After

remand, additional claims of certain of the named plaintiffs

were added by supplemental amendments, and another indi-

vidual, Sanford L. Long, sought to intervene.

E-3

At the court’s direction, the parties filed briefs, affidavits,

and exhibits on the question) of class certification, in lieu of a

hearing, on February 20, 1980. The court subsequently certi-

fied a class consisting of all past and present black salary policy

employees who are represented by the Salary Policy Employee

Panel of the Tennessee Valley Authority’s Muscle Shoals,

Alabama, Office of Agricultural and Chemicai Development

(OACD), from January !|7, 1973, until the present. Eastland v.

Tennessee Valley Authority, 23 EPD 4 31,166 (N.D. Ala. 1980).

With respect to back pay claims, the court fixed the applicable

time limit as two years prior to the date on which any plaintiff

first contacted a TVA EEO counselor.

At the initial trial session in Florence, the court dismissed

the actions of Mr. Eastland and Mr. Long on the merits with

respect to the Panel only. By agreement of the Panel and the

plaintiffs, the Panel was dismissed with the stipulation that it

would be bound by any decision on the merits. Order and

Stipulation of Agust 18, 1980.

The class action alleges unlawful and pervasive dis-

crimination against blacks in promotion, transfer, training,

assignment and other conditions of employment by the Ten-

nessee Valley Authority in violation of Title VII of the Civil

Rights of 1964, as amended by the Equal Employment

Opportunity Act of 1972. The court has subject matter

jurisdiction over this action under 42 U.S.C. § 2000e-16(c).

Although the class description does not allege dis-

crimination against blacks as a result of reductions in force

(RIF), evidence was presented concerning such discrimination

in connection with one of the class member’s claims, the claim

of Mr. James. However, the court finds that there was no proof

of RIFs impacting blacks in a discriminatory manner.

There was no proof of transfers impacting blacks in a

discriminatory manner.

Prooof of discrimination in training was limited to the

complaints of individual class members, discussed below. The

complaints may be summarized as unpersuasive, even as petty

E-4

and indicating supersensitivity to the point of near paranoia.

Improvement on the part of both plaintiffs and defendants at

OACD in communicating with one another is desirable; how-

ever, the evidence shows that TVA is aware of this problem and

is working on it. The issues in this case do not include mere

difficulties in communication, but involve allegations of racial

prejudice. There was no racial prejudice in training.

There was no evidence presented supporting dis-

crimination in assignment (not to be equated with “initial

assignment”), except for those few such complaints, all ade-

quately explained by the evidence, discussed in this court’s

review hereinafter of the testimony of the class members.

Certainly, even if all the complaints as to assignment were

taken as valid, they fall short of proof of unlawful or pervasive

discrimination in assignment of plaintiffs at OACD.

The catchall category of “other conditions of employment”

as an issue is, for all practical purposes, unsupported by any

real attempt at proof. Consequently, the only evidence worthy

of review is that on the issue of promotion.

Tennessee Valley Authority (TVA) was created by the

Tennessee Valley Authority Act of 1933, 16 U.S.C. §§ 831-

83ldd (1976), and is an agency of the United States Govern-

ment. TVA is currently organized administratively into eight

offices, with 27 constituent divisions. The office involved in the

class action and Mr. Long’s claim is the Office of Agricultural

and Chemical Development (OACD). Mr. Eastland’s claim

involved the former Division of Property and Supply, now the

Division of Property and Services, Office of Management

Services.

TVA employees can be divided into two broad categories:

white collar and blue collar. The employees generally repre-

sented by the Salary Employee Panel are white collar employ-

ees not in management positions. These employees include

those on the SA, SB, SD, SE, SF, and SG schedules. Empioyees

on the M (or management) schedule afe not represented by the

Salary Policy Employee Panel and are hence not part of the

ee.

E-5

class before this court. (See Orders of October 31, 1979, and

July 8, 1980, as amended July 10, 1980.) The TVA white collar

positions represented by the Salary Policy Employee Panel are:

the SA (administrative ) schedule

the SB (clerical) schedule

the SD (engineering and scientific) schedule

the SE (aides and technicians) schedule

the SF (custodial) schedule

the SG (public safety) schedule

Each of the above schedules is further divided into grade levels

and steps within grade levels.

Individuals move from lower to higher grades within

schedules or on to different schedules in one of two ways. One

way involves the filling of a vacant position by promotion or

lateral transfer. The position may have been vacated by a

previous incumbent or be one newly created. Rules for

selecting the person to be promoted or transferred are found in

the Agreement with the Salary Policy Panel. The Agreement

generally provides that it is TVA’s policy to promote or transfer

present employees; outside candidates may be selected if their

qualifications are shown to be superior to those of employee

candidates. Vacant positions may not be filled until the position

has been announced and employees have been given the

opportunity to apply for the announced vacancy. Exceptions to

this rule include temporary positions for less than one year,

positions in the two lowest grades of schedules SB, SE, and SF,

and positions in the two lowest levels of schedules SA and SD.

However, current employees may indicate interest and be

considered for any of these “excepted” positions under TVA’s

supplementary vacancy announcement procedure. It is clear to

this court that the class members benefit from the “employee

preference” policy at TVA.

Movement between grades and schedules under this an-

nouncement procedure is generally termed “promotion.” An

E-6

employee’s schedule or grade may be also changed by

“reclassification,” which is a different procedure. The court

finds that upward movement within the various pay schedules

at OACD is largely by reclassification of positions as opposed to

filling positions under the announcement procedures.

It is noted by the court that although the court allowed

plaintiffs to pursue the question of selection into the M schedule

from the salary policy ranks, which usually occurs from an SD-

4 level, no evidence was presented involving OACD. In addi-

tion, no evidence was presented concerning alleged blocked

progression into the SD-4 position.

After a full trial, this court, pursuant to the mandate of the

Fifth Circuit to continually reevaluate the adequacy of repre-

sentation in (b)(2) class actions, decertifies the class action as

to the SA schedule because the named plaintiffs lack a sufficient

nexus with the class as to the SA schedule. Gribsby v. North

Miss. Medical Center, Inc., 586 F.2d 457 (Sth Cir. 1978). See

also, Walker v. Jim Dandy Co., 638 F.2d 1330 (Sth Cir. 1981);

Johnson v. Uncle Ben’s, Inc., 628 F.2d 419, 423 (5th Cir. 1980);

Scott v. City of Anniston, 90 F.R.D. 267 (N.D. Ala. 1981).

There is no class representative for this schedule; there was no

evidence presented that anyone who is a class member or even

any black ever applied for a job on the SA schedule or was

qualified for such a job. However, as will be seen, this

decertification has no effect on the outcome. The court would

reach the same result as to the class claims even without this

partial decertification.

Furthermore, this court excludes any claims by plaintiffs

regarding “initial assignment” since the claims are applicant

claims and as such have been excluded by the mandate from

the Fifth Circuit.

The class representatives are William N. James, Robert H.

Nash, and Loui¢ J. Sheffield. Much of the testimony before the

court involved Ahe claims of these class representatives.

Mr. Jam¢s has been employed by TVA in various capaci-

ties since 1948. At the present he is an SF-1 janitor in OACD’s

iw, & cded

E-7

Division of Chemical Operations, and the only class member

from Chemical Operations who testified at the trial. He has

been a party to this suit since October 1973. His claims revolve

around a reduction in grade he received as a result of a

reduction in force (RIF) at OACD in 1976. Mr. James’

allegations involve, to a large extent, claims of intentional

reprisal related to the bathhouses.

The SF schedule is the custodial schedule. In 1950,

Mr. James became a janitor in the predecessor organization of

the Division of Chemical Development. On January 26, 1958,

he became an SF-2, bathhouse custodian, a position he retained

without interruption until June 2, 1976. Using TVA’s current

terminology, this was a move from an SF-1 to SF-2, and was a

reclassification of Mr. James’ position to reflect a higher level of

duties and responsibilities as opposed to a promotion where, in

the normal course, a new or vacant position is filled competi-

tively. This reclassification occurred after a request by Mr.

James for a reclassification hearing. According to TVA, the

reclassification occurred because more than 40 percent of Mr.

James’ time was spent keeping records on and assigning the

approximately 2,000 lockers in the various bathhouses at the

Division of Chemical Operations. These duties were judged to

be of a higher level than SF-1 janitor duties, and so supported

the higher classification.

The integration of the bathhouses at the Division of

Chemical Operations took place in 1964. It must be noted by

the court, that the majority of Mr. James’ testimony in this

cause and in his administrative complaint dealt with his allega-

tions that OACD permitted the existence of de facto segregated

bathhouse facilities for the employees at Chemical Operations.

Although the court finds the allegations to be without merit, in

order to clear the record the court will devote more attention to

Mr. James’ bathhouses than the facts strictly warrant.

The record reflects that there have been bathhouses at

Chemical Operations since TVA was created in 1933. The

E-8

bathhouses were provided for the convenience of the work

force and were equipped with lockers, restrooms, showers, and

arrangements for drying work clothes. Additional restroom

and wash basin facilities were provided at various locations in

the work areas, along with tool and storage lockers.

In 1964, four bathhouses were in use. The largest was

bathhouse number three, located in the central area of the

Chemical Operations plant area. Number three was divided

into an east and west end, both of which were in use in 1964. In

1964, number three was restricted to whites only, old number

one was used only by blacks, and number five was used by both

races, but with a partition separating the races.

Mr. James testified that the white bathhouses were better

maintained and more comfortable than the black facilities.

OACD management integrated the bathhouses in 1964 under a

plan agreed to by management and the unions, with the advice

and guidance of Walter R. Goldston, a black employee who

had considerable experience in such matters in the local

communities. The plan of integration was implemented at a

time when Mr. James was on a vacation from his position of

bathhouse custodian. The partition was torn down in number

five; number one was closed; and number three was being

integrated. At this point, Mr. James returned from vacation

and objected to the method of integration of the bathhouses.

On his own initiative, Mr. James started assigning lockers to

blacks in number three without regard to shift or crew

membership. Mr. James’ testimony that he started his method

of integration because the blacks were being crowded into only

one area of number three is contradicted by all other testimony

presented on this point.

Mr. James’ behavior upset the management and union

representatives because it disturbed the employees. Mr. James

was sent home, but was kept on pay status. Another janitor,

James Brown, a black, was temporarily assigned to Mr. James’

duties until the initial integration of number three was com-

E-9

plete. No disciplinary action was ever taken against Mr. James,

and he lost no pay over his disobedience. Upon his return to

work, he was temporarily assigned to other duties until the

initial integration process was complete, whereupon he resumed

his full duties as bathhouse custodian.

During the time period of 1964 to 1973, bathhouse use

decreased. This decrease was due to a combination of a

shrinking work force at Chemical Operations resulting from a

series of RIF’s and a change in working conditions and

personal habits, which were described in some detail by Mr.

Hester. Bathhouse number five was closed down, and three

new bathhouses were built.

In 1973, OACD management decided to contract out the

maintenance work at Chemical Operations because of the

higher labor costs associated with such work by Chemical

Operations’ own forces. This change in policy led to a sizeable

reduction in force (RIF), which affected the bathhouse use.

Number two was turned over to the work force of the mainte-

nance contractor, and Chemical Operations’ management in-

itially decided to shut down number three and keep only

number four open to meet the bathhouse needs of the reduced

work force, fewer of whom were using the facilities in any

event.

Because of these changes, the position of bathhouse custo-

dian, SF-2, in which Mr. James served, was originally planned

to be eliminated in 1973. However, he was offered continued

employment as a janitor at level SF-1.

The employees, both white and black, requested manage-

ment to keep bathhouse number three open. Due to the

preference of the employees, management decided to keep

number three open, and close number one and number four. A

result of this decision was the cancellation of Mr. James’ RIF on

August 21, 1973.

Mr. James contacted the TVA EEO counselor on August 3,

1973, prior to the cancellation of his RIF. His formal EEO

complaint was filed on August 22, and alleged that OACD’s

decision to close number three and climinate his position as

vathhouse custodian as a result was taken in reprsal for his civil

rights activities. In addition, he claimed that the building and

ground supervisor, a black M schedule employee, had put an

unfavorable and unjustified memorandum in his personnel file

in order to build a false record of unsatisfactory work perform-

ance’ and thus to lay the groundwork for his demotion or

termination, and that his supervisor was not affording him his

rights under the law.

TVA's director of EEO rejected the complaint on Septem-

ber 7, 1973. He ruled that part of the complaint had become

moot due to the intervening cancellation of the RIF. The issue

of Mr. James’ supervision was rejected as untimely since it

sought to reopen Mr. James’ 1969 EEO complaint about the

selection of two other black men to be the building and ground

supervisor, Braska Coffey, and janitor foreman, James Brown,

over him. This complaint had been decided adversely to Mr.

James, and his subsequent suit in this court was dismissed with

prejudice. The rest of the complaint was rejected as beyond the

purview of the EEO complaint procedure as presented, since it

sought to review the rejection of Mr. James’ union grievance

over the memorandum he received from Mr. Coffey. The

grievance had been rejected for untimeliness. The TVA

decision instructed Mr. James how to frame this last issue so

that it would come within the purview of the EEO procedure,

but the record fails to show any effort by Mr. James to follow

this advice. This decision formed the basis for Mr. James’

original allegations in the October 1973 amended complaint in

this action.

At trial, the facts surrounding the 1973 complaint were

addressed by Mr. James only as additional background to the

1976 EEO complaint. The court notes that there is nothing in

the record to support a finding that the TVA decision was

erroneous. The issues arising from Mr. James’ 1969 EEO

complaint were moot administratively and judicially by 1973,

and his RIF had been cancelled. Mr. James did not properly

invoke the administrative complaint process with regard to Mr.

Coffey’s memorandum to him, and failed to take advantage

properly of the director of EEO’s demonstration of how to raise

the issue of management's rejection of his grievance. The

record is undisputed that Mr. James did not follow any of the

available procedures to review the memorandum from his

supervisor. In 1976, Chemical Operations experienced a major

RIF with the final closing down of the entire phosphate branch.

Half of the Chemical Operations’ employees were terminated

through the RIF.

The position of bathhouse custodian was eliminated in the

1976 RIF. Bathouse number three was closed. However, Mr.

James was retained as a janitor at SF-1. Mr. James continues to

hold this position.

Mr. James filed a formal EEO complaint on March 31,

1976. He alleged that he had been discriminated against in the

selection of Harry Nash, a white male, for the position of

building and ground supervisor, the \M-1 position previously

held by Mr. Coffey. Mr. James also alleged that he and other

black members of the building and groufid unit had been

discriminated against by the lack of promotional opportunities

for them. Finally, he alleged that his demotion to SF-1 in the

RIF was due to racial discrimination. He alleged that Chemical

Operations would not have been able to reduce the number of

bathhouses it maintained if it had not tolerated segregated

“makeshift” bathhouses elsewhere in the plant.

TVA's director of EEO issued a decision on December 22,

1976, finding no discrimination in Mr. James’ claims. The

decision noted that the M schedule position of building and

ground supervisor had been eliminated in the 1976 RIF and

that Harry Nash, an SD schedule chemical engineer, assumed

minor supervisory duties over the janitors, with the principal

supervision being assigned to the black SF-3 janitor foreman,

Mr. Brown. The RIF was found not to be discriminatory; it

affected a major portion of Chemical Operations and impacted

both white and black employees. This decision was the basis

for Mr. James’ January 18, 1977, supplemental amended

complaint in this suit.

E-12

It is clear to the court that the series of RIF’s which the

Chemical Operations underwent from 1969 to 1976 would

clearly limit promotional opportunities for all races. The

opportunites for advancement in the janitorial work at Chem-

ical Operations were severely limited. Testimony at trial

revealed that a large number of individuals took advantage of

other opportunities to move into jobs with greater potential for

advancement. Mr. James was offered such advancement

opportunities through the years and turned them down for

personal reasons, s'ich as dislike of work on other than the day

shift, and a desire not to conflict with non-TVA employment.

Jobs such as chernical plant operators required rotating shifts.

Mr. James’ allegation about Harry Nash’s “selection” as super-

visor of the building and ground unit is completely erroneous.

This position was filled by a black man, Mr. Coffey, prior to the

1976 RIF. The position was eliminated in that RIF; Mr. Coffey

retired; and the position has not been recreated. Prior to the

1976 RIF, Mr. Nash was an SD-4 engineer; he was an SD-4

engineer after the RIF; he is still an SD-4 engineer. Due to the

elimination of Mr. Coffey’s position, the primary supervision of

the remaining janitors was assigned to the incumbent SF-3

foreman, Mr. Brown, himself a black, and Harry Nash was

given the very minor responsibility of serving as Mr. Brown’s

superior. Thus, Mr. James is attacking an alleged promotion

that was never made.

As far as Mr. James’ allegation that his position at SF-2

would not have been reduced in the 1976 RIF if the OACD had

suppressed the purported makeshift bathhouse facilities, this

court is of the opinion that no such facilities existed. At the time

of the 1976 RIF, Mr. James was no longer performing duties

above the SF-1 level for at least 40 percent of his time.

Furthermore, even if all the employees present after 1976 had

used the bathhouse facilities, it appears that there would not

have been sufficient work to support Mr. James’ position at

SF-2. The division shrank from having 2,000 lockers in 1958 to

350 in 1976.

Thus, Mr. James does not appear to have a valid claim on

any of his allegations before this court.

E-13

The next claim of a class representative considered by the

court is that of Robert H. Nash. Mr. Nash has been employed

by TVA since 1962 and by the Division of Chemical Devel-

opment since 1965. He has been a chemical laboratory analyst

since 1965. He was reclassified from SE-2 to SE-3 on January

2, 1966; from SE-3 to SE-4 on July 26, 1970; and from SE-4 to

SE-5, which is his present grade, on May 9, 1976. He orignally

joined this suit in October 1973, but summary judgment against

him was entered and affirmed on the claim he raised at that

point. His individual claim at issue, added by an amendment,

concerns events in 1973 and 1974. It involves his dissatisfaction

with the service review he received on April 1, 1974, for the

period from June |, 1973, to April 1, 1974, and his belief that

his position was not properly classified. Reprisal is an element

of his allegations.

The facts of Mr. Nash’s allegations are relatively simple.

In May 1973 he was an SE-4 chemical laboratory analyst

working for John F. McCullough, an M-S5 research chemist, in

what at that time was termed the Fundamental Research

Branch. Mr. McCullough had recommended that Mr. Nash’s

position be reclassified from SE-3 to SE-4 in 1970.

Mr. McCullough was subsequently promoted. At this time

he decided to reassign Mr. Nash to assist Richard Sheridan,

who was and is an SD-4 research chemist. Mr. McCullough

made this assignment due to Mr. Sheridan’s current projects

and need for some assistance from a technician.

Mr. Nash objected to the assignment. He was concerned

about working for a superior who was not on the M schedule,

and he alleged that Mr. Sheridan had a negative attitude

toward him as a black man. The court finds that Mr. Nash’s

allegations about Mr. Sheridan’s alleged racism were un-

founded based on the testimony presented at trial. It appears

that Mr. Nash’s beliefs about Mr. Sheridan’s alleged animus

adversely affected his work performance during the early part

of his assignment to Mr. Sheridan. His productivity was below

that of his normal capacity. However, after the period of initial

difficulty, his level of performance became satisfactory. At a

later time, Mr. McCullough counseled Mr. Nash on the matter

of his productivity and some problems with his tardiness.

E-14

Mr. Nash became dissatisfied with what he perceived to be

his lack of progress as a chemical laboratory analyst. Because

he believed that he was performing work at a level higher than

SE-4, he contacted the EEO counselor on January 21, 1974; the

counselor recommended that Mr. Nash be given a service

review. It is this service review which is the subject of Mr.

Nash’s complaint. In this review, Mr. Nash was rated by Mr.

Sheridan for the period of June 19, 1973, through June 1, 1974.

The review reflected fully adequate performance in four work

performance areas, adequate performance on other elements of

service, and adequate or better for his total service. Mr.

Sheridan also included a comment which stated as follows:

Mr. Nash does careful and reliable work; however,

during the earlier part of the review period, his work

output was below his full capacity. After informal coun-

seling by his supervisor, there has been a marked improve-

ment in his work outp«t and his general attitude that

demonstrates his capability to perform at a more than

satisfactory level.

Mr. Nash objects to the criticism of his productivity, and

filed his forma) EEO complaint on April 29, 1974. He alleges

that the service review is inaccurate and that he was under-

classified, as a reprisal for his EEO activities and on the basis of

his race. TVA’s director of EEO found no discrimination or

reprisal in his decision issued on December 18, 1974. However,

he directed management to improve communications with Mr.

Nash, to conduct a classification review of his position, and to

provide him with some measure of accomplishment so that he

could determine his progress towards SE-5. A classification

review was performed by an expert from TVA’s Division of

Personnel, who found that the job was properly classified. This

evaluation was never challenged.

Mr. Nash appealed the decision by the director of EEO to

the United States Civil Service Commission's Appeals Review

Board, which affirmed the director's decision in all respects on

August 19, 1975.

E-15

This court finds that Mr. Nash has no valid claim con-

cerning the service review. The question of the proper classifi-

cation of Mr. Nash’s position must also be resolved against him.

Mr. Nash’s comparison of his own job duties to those of

Raymond Thrasher, an SE-7, and Lucian Kendrick, an SE-6, is

unsupported by the evidence. Mr. Nash’s analytical procedures

appear to have been quite routine.

The evidence is also not sufficient to show any reprisal

motivation, and Mr. Nash has failed to show the court any

reason to disbelieve Mr. McCullough’s flat denial that he

criticized Mr. Nash for his EEO activities.

In June 1974, Mr. Nash was placed under the supervision

of John Kohler, a research chemist in Mr. McCullough’s group.

Mr. McCullough had decided that Mr. Kohler needed more

help than Mr. Sheridan and felt that it might be a good idea to

separate Mr. Nash and Mr. Sheridan due to the pending EEO

complaint. Mr. Kohler is Mr. Nash’s supervisor at the present

time.

In 1976 Mr. Nash’s position was reclassified to SE-5 due to

a decreased level of supervision required for Mr. Nash and due

to the increase in complexity of his work, which had moved into

the research area from analytical assignments.

The court notes with interest that Mr. Nash, with OACD

financial support, chose to obtain an.MBA degree rather than

upgrade his knowledge of chemistry, and has turned down an

M-schedule position on the EEO staff in Chattanooga.

The court finds that Mr. Nash has no valid claim under his

complaint herein.

The remaining class representative is Louie J. Sheffield.

Mr. Sheffield has been employed by OACD since 1952. From

1957 until 1963 he was a chemical laboratory analyst. On

February 3, 1963, his position was reclassified from SE-4 to SD-

1, as an analytical chemist. His position was reclassified to SD-

2 on April 26, 1964; and to SD-3, his present grade, on August

5, 1973. Mr. Sheffield has a BS degree in chemistry from North

Carolina A & T College; at the time of Mr. Sheffield’s gradu-

E-16

ation, the chemistry curriculum at North Carolina A & T

College was not accredited by the American Chemical Society.

He has been a party to this action since October 1973. He

alleges a racially based denial of reclassification of his chemist

position during the period from November 1972 until August

1973. He also alleges that he was discriminated against in day-

to-day work assignments, by denials of higher level work which

would have supported an earlier reclassification of his position.

Chemical Development and OACD require a BS degree in

chemistry from an American Chemical Society approved

curriculum for initial hiring to a professional chemist position

(on the SD schedule). Recipients of non-ACS degrees are

generally eligible for consideration for positions on the SE

(subprofessional ) schedule. Individuals with non-ACS degrees

are considered for SD positions if their schools have met all of

the substantive requirements for ACS accreditation, or if they

have had substantial related work experience. The evidence

before this court shows that OACD has applied this policy

equally to blacks and whiies. Blacks and whites with ACS

degrees have been hired into SD schedules ( with the exception

of at least one white with an ACS degree who was hired into an

SE position), while blacks and whites ithout ACS degrees

have started in SE positions, and blacks and whites from

schools wiih the equivalent of ACS accreditation (Southern

University and the University of North Alabama) have been

hired into SD positions. Current employees on the SE schedule

can progress to the SD schedule by upgrading their skills,

abilities, and knowledge, their work experience or additional

education and training, and then assuming duties and responsi-

bilities at a higher level. Mr. Sheffield was a beneficiary of this

route to professional ranks, as were other employees.

The lab in which Mr. Sheffield worked had no real control

over the level of its work. This lab had to work on analysis of

whatever samples were sent to it by other organizations with

OACD. From the testimony of Mr. Sheffield’s supervisors

before the court, it appears that Mr. Sheffield was assigned

work on the basis of his abilities and what was available i in the

lab at the time, and not on his race.

» -@

- 4

. " *

sa. t a

E-17

On the issue of the delay in the reclassification of Mr.

Sheffield's position from SD-2 to SD-3 during the period of late

1972 through the middle of 1973, the court must note that the

OACD was laboring under two separate and major personnel

restrictions imposed by the Executive Branch. One was an

absolute ceiling on the number of employees in the organiza-

tion. The other was a ceiling on average grade level, which

restricted moving an employee into a higher grade position

unless the move was to replace a former employee. Each

organization within TVA was assigned its own employment

ceiling and average grade level by top TVA management

through the Division of Personnel. In their concern that

employees whose positions were overdue for reclassification

might look elsewhere for work, Chemical Development man-

agement presented a list of top-priority individuals to Mr.

Duggins in the summer of 1972, and he was able to secure

limited relief from the controls from the Division of Personnel,

as long as the reclassifications were done slowly. Mr. Sheffield

was not on this priority list submitted in the summer of 1972.

Mr. Duncan, Mr. Sheffield’s supervisor, did not recom-

mend that Mr. Sheffield’s position be reclassified until late

November 1972, due to the fact that Mr. Sheffield had not been

performing work on the SD-3 level until that time. Mr.

Duncan’s recommendation for reclassification included the

names of six people in the general analytical lab. Before any

paper work was started on any of these six employees, the

President ordered a freeze on promotions in federal employ-

ment on December 11, 1972. Since reclassifications are not

formal promotions, this restriction did not have a firm effect on

Mr. Sheffield’s reclassification. However, the reclassification of

all six lab employees was stayed until after TVA submitted its

management plan to end the “freeze” in March 1973. There is

no basis to believe that Mr. Sheffield was singled out for

different treatment because of his race. The average grade

controls, plus the freeze implemented by the President, ap-

peared to have had a psychological effect on the minds of

management.

E-18

The court finds that progression in general in this lab was

not guaranteed. Mr. Sheffield himself testified about three

white employees who retired as SD-2’s. Furthermore, Mr.

Sheffield has never taken advantage of available OACD finan-

cial support to take additional course work in his field or in any

other field, unlike so many of plaintiffs’ other witnesses and

other class members. Mr. Sheffield has no valid claim herein.

The plaintiffs failed to show by testimony at trial or by

other evidence presented to the court a single valid claim of any

black who should have been promoted and was not. However,

the court will briefly discuss the claims of the other class

members who testified at trial.

Mr. Claude Eubanks is a black class member who was

initially hired by OACD as a scientific cooperative student in

1967. After spending some time in the military, Mr. Eubanks

was hired in 1971 as an SD-1| analytical chemist in the general

analytical laboratory in Chemical Development, the same unit

where Mr. Sheffield was employed. He has progressed to an

SD-3 through reclassification of his position, and is currently

attending the University of Alabama in Tuscaloosa as a candi-

date for an MS degree in chemical engineering. OACD is

paying his tuition, along with full salary and benefits. He has

also been reimbursed by OACD for other course work.

Mr. Eubanks alleges two claims in connection with the

comparison of his treatment with that of Charles Gilbert, one of

his white peers in the lab, who was hired at the SD-1 level. Mr.

Eubanks alleges that Mr. Gilbert was hired at a within-grade

salary one step higher than himself. However, this treatment

was explained by a personnel officer at OACD, Cathy Isom,

who testified that Mr. Gilbert’s higher grade step was due to the

fact that he had been a cooperative student at TVA and had

therefore worked for OACD for a longer period of time when

he was hired after graduation.

Mr. Eubanks also alleges that Mr. Gilbert has been

exposed to more analytical procedures. However, the two

men’s promotions occurred at approximately the same time.

Mr. Eubanks’ concerns appear imaginary due to the identi

progression of the two men to date. “S

E-19

Mr. Wendell Plain is a class member who was hired by

OACD as an SD-2 research chemist in 1975. He has since

progressed to an SD-3. He has an MS degree in chemistry. At

the present time he is pursuing an MS degree in chemical

engineering under the same OACD-paid arrangements as Mr.

Eubanks, and has also recieved reimbursement for other course

work from OACD. Mr. Plain also alleges that a white, Mr.

James Norman, was hired at a higher within-grade at the same

time that Mr. Plain was hired. However, this treatment was

explained by Mr. Norman's much higher grades in school.

Mr. Plain also complained that his progression to SD-3

was slower than it should have been due to problems with his

supervisor, Dr. Yong K. Kim, an oriental. It should be noted

that plaintiffs’ claims appear to be centered upon the “unfet-

tered discretion of the white supervisors at OACD,” and,

therefore, Mr. Plain’s problems with his oriental supervisor

should not be addressed. On the other hand, Mr. Plain’s

complaints appear to be quite trivial; he complains that at times

on his service reviews he should have been rated outstanding

instead of better than average or fully adequate.

Mr. Johnny Smith is another class member who testified at

the trial. He was an SD-2 research chemist in the research

branch in Chemical Development at the time of trial. The

reclassification of his position to SD-3 was in process. Mr.

Smith has a B.S. degree in chemistry from Alcorn A & M

University, and was in the midst of a Ph.D. program at V.P.I.

when he came to work for OACD in June 1976 as an SD-1

research chemist. When he left V.P.1., he had completed

enough course work to qualify for an M/S. degree but failed to

write a thesis. According to Mr. Davis, Chemical Development

will work with Mr. Smith to enable him to obtain the M.S.

degree from V.P.I. Most of Mr. Smith’s testimony consisted of

hearsay comments made by, or allegedly made by, James R.

Lehr, the head of Mr. Smith’s section. The court fails to give

credence to the garbled accusations made by Mr. Smith.

Testimony from Mr. Lehr and Marilyn Taylor, TVA’s director

of personnel, and a black woman, puts the hearsay in its context

E-20

and shows that Mr. Smith had not been singled out in a

discriminatory fashion.

Mr. Earl Bailey is also a class member. He is an SE-5

agricultural aide in the soils and fertilizer research branch of the

Division of Agricultural Development. He was the only witness

from this division at OACD who testified for plaintiffs. He has

a B.S. degree in biology from the University of North Alabama.

Mr. Bailey's complaint appears to have been resolved

through the EEO complaint resolution process. Mr. Bailey

works in the greenhouses. Prior to 1978 there were two white,

long-time SE-5’s who worked with him and were approaching

retirement age. OACD personnel officers had concluded that

due to some changes in higher levels of supervision at the

greenhouses, the SE-5 position could not be justified by the

level of work, and planned to abolish the positions after the

incumbents retired. Mr. Bailey had formed the expectation

prior to this time that his position would be reclassified to SE-5

when the incumbents retired. Upon learning that his position

would not be so classified, he instituted an administrative EEO

complaint. After an investigation the complaint was resolved

and Mr. Bailey received an SE-5 classification and back pay,

with the understanding that the SE-5 position would not

necessarily be filled at that level once Mr. Bailey vacated it. It

appears that both sides acted in good faith. The court also

notes that Mr. Bailey, while an SE-4, turned down an offer of an

SE-S5 at the greenhouses at TVA’s Brown’s Ferry Nuclear Plant

near Athens, Alabama, for financial reasons which seemed

important to him.

Mr. John Holmes, a class member, was an SD-2 analytical

chemist in the analytical research laboratory in the engineering

services branch of Chemical Development at the time of trial.

Mr. Holmes has a B.S. degree in chemistry from Alabanja

A & M University; his chemistry curriculum is not accredited by

the American Chemical Society. Mr. Holmes has chosen not to

pursue additional studies in his field, but is working on an

M.B.A. degree from the University of North Alabama, which is

being paid for by OACD.

E-21

Mr. Holmes’ allegations involve his position in a prior

quality control lab, where he was employed as an SE schedule

chemical laboratofy analyst. After voicing some concern about

advancement opportunities in this lab, he was given a lateral

transfer to th¢ analytical research laboratory, where he cur-

rently works/ His immediate supervisor in the prior lab was

black. The/smaller lab where he worked prior to the transfer

was staffed entirely by blacks. However, the court notes that

Mr. Clark worked in a similar small quality control lab, which

was staffed by whites except for him, and they were also on the

SE schedule. Thus the advancement opportunities in this lab

were connected to its size and work, and not the race of the

staff. |

Mr. Holmes’ demonstration of interest and ability has been

recognized by management, and has led to his transfer into an

area with more scope, both in terms of size and level of work.

This transfer has apparently assisted his progression upward.

The court received a great deal of evidence concerning the

claim of Ms. Ruby Goodloe. Ms. Goodloe started working at

OACD in 1974 on a part-time basis, while she was a full-time

chemistry student at the University of North Alabama. Ms.

Goodloe graduated from the University of North Alabama in

December of 1977 and came to work in the fundamental

research branch as an SD-1| research chemist in early 1978. She

later progressed to an SD-2 analytical chemist. She resigned

from OACD in April 1980.

Ms. Goodloe testified to a long story of her problems with

supervisors from early in her career until its end. She ascribes

all these problems to discrimination on the basis of her race.

The principal portion of her testimony involved Robin M.

Scheib, who is currently an M-5 research chemist in charge of

the scanning electron microscope (SEM) laboratory. The

testimony concerning Mr. Scheib involves Ms. Goodloe's work

for him as both a part-time SE schedule employee and as an SD

chemist.

E-22

Ms. Goodloe first alleges an allegation of discrimination

near the end of her part-time employment. She claims that Mr.

Scheib and Dr. Stephen K. Seale gave her an assignment as a

“test” to determine what within-grade step she would receive as

an SD-1. However, Mr. Scheib claims that the assignment was

a useful examination of some sample preparation methods,

The court finds that Ms. Goodloe’s within-grade step at SD-1

had nothing to do with her performance of this assignment.

Ms. Goodloe claims that other white employees were

exposes to more jobs and that she was left to train white

employees in darkroom procedures in the SEM lab after which

they would move on to other things. There is no evidence to

support her claims. Ms. Goodloe was always assigned the more

complex and demanding darkroom work and production of

finished prints and layouts.

Ms. Goodloe complains that Mr. Scheib criticized her more

harshly than her fellow white employees. However, Mr. Scheib

claims that he would become impatient with Ms. Goodloe

because she persisted in making the same mistakes after she

had been initially corrected.

Ms. Goodloe claims she was not adequately trained on the

equipment in the SEM lab, was not allowed to go to training

school, and instead was sent to a seminar which she felt was

unhelpful to her, due to her lack of experience with the SEM.

Mr. Scheib testifies that Ms. Goodloe received the same training

on the SEM that he had had, that she was not sent to the school

because she had already been taught the methods the school

taught, and that she was sent to the SEM seminar to be exposed

to methods of analyzing coal samples, of which Mr. Scheib

expected an increase due to the operation of the new “ammonia

from coal” plant at OACD. Ms. Goodloe left the SEM seminar

early. She claims that her bed was uncomfortable; Mr. Scheib

testified that she told him that she was homesick. Regardless,

she left the seminar before the session on coal samples.

Ms. Goodloe claims that Mr. Scheib harassed her with

problems concerning her time sheets while she was a part-time

employee, by calling her out of coffee breaks for no reason, and

E-23

by failing to allow her study time on the job, unlike other white

employees. The court finds that these allegations were unsup-

ported by the testimony at the trial.

Ms. Goodloe’s service reviews from Mr. Scheib were also a

point of allegation at the trial. Ms. Goodloe’s disagreements

with Mr. Scheib’s assessments were brought before the EEO

counselor. Although Mr. Scheib felt that his review accurately

reflected her performance, he agreed to upgrade her review on

the points of contention, and the matter was resolved. Her

service review by Mr. Scheib was also a point of contention

upon Ms. Goodloe’s transfer to Dr. Ray Gremillion’s super-

vision in Mav: 9. Again, Ms. Goodloe went to the EEO

counselor. On.. again, Mr. Scheib upgraded her review on

several points, motivated apparently by the spirit of com-

promise.

The transfer to Dr. Gremillion’s supervision is also an

issue. The work at the SEM lab had not expanded in the

expected fashion, and Dr. Gremillion needed help. His assis-

tant, Suzanne Hunter, had been shifted into a new assignment

with Dr. Seale, more in keeping with her skills. Mr. Lehr and

Dr. Seale had two slots to fill: one was with Dr. Gremillion, a

position of considerable potential for upward movement; the

other position was with Wendell Wilhide, to assist him in

operating a piece of analytical equipment called the XRF.

Mr. Lehr and Dr. Seale decided to place Doris Ash, now an

SD-1, after completing her B.S. degree in chemistry at the

University of North Alabam, with Mr. Wilhide, and to give the

position under Dr. Gremillion to Ms. Goodloe, in order to

utilize her total work experience, especially her background

with the SEM, which would be helpful in Dr. Gremillion’s

work. Ms. Ash had worked for Mr. Wilhide on a part-time

basis while she was a student at the University of North

Alabama. However, Ms. Goodloe had applied for the job with

Mr. Wilhide.

Ms. Goodloe was of the opinion that the position with Dr.

Gremillion had no future. This opinion was based on an earlier

attempt by Dr. Gremillion to reclassify the position when Mrs.

: E-24

Hunter had it. Ms. Goodloe was informed of the unknown

potential of the XRF position with Mr. Wilhide. The black

employees branch protested her transfer, and Dr. Seale settled

the matter by letting her have her choice of the two jobs. She

chose the position with Mr. Wilhide on the XRF.

From her testimony before the court, it appears that the

XRF was not the best choice for Ms. Goodloe. The XRF

machine was relatively new to OACD. Much of Ms. Goodloe’s

time with the XRF was spent on the critical work of sample

preparation in what was called the grinding room. Mr. Wilhide

gave a detailed description of the procedures and emphasized

the importance of producing a homogeneous sample for ana-

lysis by the XRF. It is clear to the court that Ms. Goodloe’s

work during this period was not exciting, but it was vital to the

proper utilization of the XRF and served as an appropriate

background to her understanding and training on the equip-

ment. The court specifically rejects Ms. Goodloe’s allegations

concerning Mr. Wilhide’s behavior during this period. Ms.

Goodloe alleges that Mr. Wilhide was pressuring her to pro-

duce more by moving some of the sample preparation equip-

ment closer together and by keeping a close eye on his watch

when she was working. As Mr. Wilhide testified, he moved

some equipment around due to his concern to save Ms.

Goodloe a few steps while carrying a heavy load. He alsovhad

a habit of looking at his watch while he was away from the

XRF because of the equipment’s time cycle. Although Ms.

Goodloe alleges some problems with her informal service

review from Mr. Wilhide, Mr. Wilhide indicated on the review

that there were no problems with her work. It was obvious that

Mr. Wilhide was satisfied with her work and told her so.

As with the SEM, the question of training came up in the

context of the XRF. Ms. Goodloe alleges a lack of training and

an assignment beneath her professional status, due to dis-

crimination because of her race. This claim is unfounded. She

was given some exposure to the XRF and provided with some

background training materials on the principles used by the

XRF in the fall of 1979. She was sent to the school run by the

E-25

vendor of the XRF to learn how to use it. She was given full

permission to operate the XRF as much as she desired while

Mr. Wilhide was on leave in late 1979, an opportunity of which

she did not take advantage. After he returned from his leave,

Mr. Wilhide was told by Ms. Goodloe that she had not run the

XRF. He concluded that he should not pressure her into

operating the equipment, and started giving her more ex-

perience on the XRF only after she asked for it, close to the

time of her resignation.

Upcen her resignation, the State of Alabama rejected her

claim for unemployment compensation by stating that: “The

claimant did voluntarily leave her most recent bona fide work

with [TVA] and she did so in order that she might relocate to

be with her husband who is employed in Chicago, Illinois. This

is an excellent personal cause for leaving but does not constitute

good cause connected with work for leaving.” Ms. Goodloe

had claimed that her resignation was due to the adverse racial

climate on her job.

Ms. Goodloe’s problems with her supervisors appear to the

court to be due to her failure to adequately communicate her

feelings to her supervisors. It appears that she did not take

criticism well and often repeated mistakes after correction.

Thus the court finds that her individual behavior and reactions -

created her problems, not her race.

Defendants introduced labor market analyses of the vari-

ous schedules at OACD, comparing the black representation on

these schedules with the percentage of blacks with the appropri-

ate qualifications in the labor market. Defendants introduced

such statistical data for the years 1972, 1975 and 1979. In all

three years for the schedules remaining in this action, the

percentage of blacks in the labor force at OACD was higher

than the percentage of blacks in the relevant labor market

Furthermore, representation on certain schedules was even

found to be significantly higher, more than two standard

deviations, than the relevant labor market percentages. In

1972, black representation in the SB and SF schedules was

significantly higher than in similar occupations in the labor

E-26

force. In 1975, black representation on the SD and SF

schedules was more than two standard deviations higher than

the percentage of blacks in the relevant labor market. By 1979,

the percentage of blacks at OACD on schedules SB, SD and SF

was significantly above the relevant labor market percentages.

As discussed further in this opinion, the court finds these

comparisons to be relevant to the issues before this court.

Although defendants used 1970 census data, it is the opinion of

this court that these census figures are the most recent available

numbers, and are the data provided by the Alabama Depart-

ment of Industrial Relations for EEO compliance purposes.

Because it is clear to this court that certain unskilled workers

cannot be promoted to skilled positions, the court feels that

these labor market statistics presented by the defendants are the

most relevant statistical data presented to the court.

In addition, the defendants submitted evidence concerning

promotions and reclassifications by a comparison of the amount

of time blacks and whites spent in a job title, schedule, and

grade before they were reclassified or promoted to a higher

schedule and grade. The defendants’ expert, Dr. Martin,

prepared progression charts depicting promotions and

reclassifications of individuals in each of these job titses, which

showed the number of months the individuals spent in their

schedule and grade before they were promoted or reclassified to

the next schedule and grade. No comparisons were made

unless there were blacks and whites in the same category.

There were no statistically significant differences between

blacks and whites in comparing the amount of time spent in a

schedule and grade prior to promotion or reclassification and,

in addition, no pattern of blacks having spent a longer time in

schedule and grade prior to promotion or reclassification.

Again, it should be reiterated that about 80 percent of t

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.