Petition — John F. Lehman, Jr., Secretary of the Navy v. Yvonne G. Trout
Supreme Court brief1984
Ask Donna
What actually matters in this document.
Text
' | Office-Supreme Coisrt, Us.
- Rg.ene | fe FILED
OCT 28 i993
| ALEXAND
Eee a
In the Supreme Court of the Anited States
; OCTOBER TERM, 1983
CLERK
JOHN F. LEHMAN, JR., SECRETARY OF THE NAVY,
ET AL., PETITIONERS
v.
YVONNE G. TROUT, ET AL.
PETITION FOR A4’WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Rex E. LEE
Solicitor General
J. PAUL MCGRATH
Assistant Attorney General
CAROLYN B. KUHL -
ROBERT E. Kopp ind
Attorneys a
Department of Justice “4
Washington, D.C. 20530
(202) 633-2217
t
pee
; ie
x -
Peat
i *
3 Powi ot
Le te ‘ : tk 2 foe
3 ; + 2 pie = a tet ey
i+ is ag yO a ge e, a ee to JY
arg z *f Meow Sv geen : ; "et
~ - a rae yA at € ‘e. :
QUESTIONS PRESENTED
1. Whether, in light of this Court’s subsequent deci-
sion in United States Postal Service Board of Gover-
nors v. Aikens, No. 81-1044 (Apr. 4, 1983), the court of
appeals erred in affirming the judgment of the district
court despite concluding that the statistical analysis
upon which that court had relied in finding discrimina-
tion in violation of Title VII of the Civil Rights Act of
1964, as amended (42 U.S.C. 2000e et seg.), included
data that could not form a basis for imposing liability.
Our primary submission is that, because of the errors
in the district court’s analysis identified by the court of
appeals, no violation of Title VII has been established
under the standard prescribed in Aikens, and the judg-
ment of the court of appeals should accordingly be sum-
marily vacated and the case remanded for reconsidera-
tion in the light of Aikens. If this Court nevertheless
decides to set this case for plenary review, two addi-
tional questions are presented:
2. Whether intentional discrimination is established
in a class action suit involving professional technical po-
sitions by a statistical analysis that fails to account ade-
quately for minimum objective qualifications for those
positions.
3. Whether, in remedial hearings after a class-wide
violation of Title VII has been found, the burden shifts
to the employer to demonstrate “by clear and convinc-
ing evidence” that its employment decisions with re-
gard to particular individuals were based on legitimate,
non-discriminatory factors.
(1)
Rag T
ar ae 24
II
PARTIES TO THE PROCEEDINGS
The petitioners are John F. Lehman, Jr., Secretary
of the Navy, and Capt. James C. Richardson, Jr., Com-
manding Officer of the Navy Regional Data Automation
Center. The named respondents representing the class
are Clara A. Perlingiero and Yvonne G. Trout. In addi-
tion, the individual claims of Marie Bach, Charlene
Hardy, and Joan S. Creighton were consolidated with
the class action in the district court, and Bach’s appeal
was consolidated with the class action in the court of
appeals. Hardy and Creighton did not appeal from the
district court’s denial of their claims; Trout’s individual
appeal was rejected and this Court denied her individu-
al petition for certiorari on April 18, 1983 (No. 82-1429).
TABLE OF CONTENTS
Page
NU, 20 i ois cveccaccsscebupnuedgumned 1
iis diab ides £4640 5 eGR nodes CONE 1
Pee ee oe 2
IES Ua GN ya co hive cad bbAnes 0¥b.0s ck dew en 2
Reasons for granting the petition.............. 8
SIRES Bs ay oc dvucs cus) dakee 6s sehmuen 16
UR, Siinade ce ikes6ss oes bueaeeee ePeeee eR la
ET EN Coo oud aps ad ae vecendekess a sutheds 40a
GES So ivdes beh kades 1A deh sen tae be eknn 72a
TABLE OF AUTHORITIES
Cases:
California v. *Zitchell Brothers’ Santa Ana
Reeeene, AUG, WO. ass ibis dc ce' 15
EEOC vy. American National Bank,
GER Tie BOWE asc sicc's c ubdine coradeuttes 15
EEOC vy. Federal Reserve Bank, 698 F.2d
633, petition for cert. pending sub nom.
Cooper v. Federal Reserve Bank, No.
BPR cdevknawdsve Kb apivanabomraneae 12
Hazlewood School District v. United States,
GE i cas es cae Ceparasanbae Craite 14
Herman & MacLean v. Huddleston, Nos.
81-680 & 81-1076 (Jan. 24, 1983)......... 15
International Brotherhood of Teamsters v.
United States, 431 U.S. 324 ............ 9, 15
Lee v. Washington County Board of Educa-
on Be ee ee er 15
McKenzie v. Sawyer, 684 F.2d 62......... 7, 15
(III)
S|
oe
IV
Cases—Continued: Page
Pegues v. Mississippi State Employment
Service, 699 F.2d 760, petition for cert.
pending, No. 83-139............eeeceees 9
Pouncy v. Prudential Insurance Co. of
ro A Pre eee 9
Pullman-Standard v. Swint, 456 U.S. 273. 9, 13
Sledge v. J. P. Stevens, 585 F.2d 625, cert.
Gonted, G40 WB. BGb os. cckevvacesoasere 15
Stewart v. General Motors Corp., 542 F.2d
445, cert. denied, 483 U.S. 919.......... 15
United Air Lines v. Evans, 431 U.S. 553 .. 11
United States Postal Service Board of Gov-
ernors v. Aikens, No. 81-1044 (Apr. 4,
BE de> vc csuk at oueney seein 8, 10, 13, 14, 16
Valentino v. United States Postal Service,
Ee BE Speesmenere tay ees” thar a by 10
Wilkins v. University of Houston, 654 F.2d
BN cbs icncss\belveeds oabal chee 9
Wilkins v. University of Houston, 662 F.2d
Beis oSasis os cs c2ks Fs ve tek evs eh eS 13
Statute and regulation:
Civil Rights Act of 1964, § 717(a), 42 U.S.C.
(Supp. V) 2000e-16(a) ............20008. 2
> Chane Oe OEE, avec cas veces saves tind 11
Miscellaneous:
Finkel, The Judicial Reception of Multiple
Regression Studies in Race & Sex Dis-
crimination Cases, 80 Colum. L. Rev. 737
CEWOEE sich dota chbgapeatobeths cea Wnaan 14
4
In the Supreme Court of the Anited States
OCTOBER TERM, 1983
No.
JOHN F. LEHMAN, JR., SECRETARY OF THE NAVY,
ET AL., PETITIONERS
Vv.
YVONNE G. TROUT, ET AL.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
The Solicitor General, on behalf of the Secretary of
the Navy and the Commanding Officer of the Navy Re-
gional Data Automation Center, petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the District of Columbia Circuit in
this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra,
la-39a) is reported at 702 F.2d 1094. The opinion of the
district court (App., infra, 40a-70a) is reported at 517
F. Supp. 873.
JURISDICTION
The judgment of the court of appeals was entered on
March 11, 1983. Rehearing was denied on May 31, 1983
(App., infra, 73a). The time for filing a petition for a
writ of certiorari was extended to and including Octo-
ber 28, 1983, by Justice Brennan on August 15, 1983.
(1)
2
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATUTE INVOLVED »*
Section 717(a) of Title VII of the Civil Rights Act of
1964, 42 U.S.C. (Supp. V) 2000e-16(a), provides in per-
tinent oe
rsonnel actions affecting employees or a
Pant ~ fe nog sap diene Sn mili itary de .
ments as defined in section 102 of Title 5,
shall be beam free from any discrimination Sid
on race, color, religion, sex, or national original.
STATEMENT
1. Four cases involving individual and class sex dis-
crimination claims under Title VII were brought
against petitioners (the Secretary of the Navy and the
Commanding Officer of the Navy Regional Data Auto-
mation Center) and consolidated for trial in the United
States District Court for the District of Columbia. Re-
spondents’ class allegations were that the Navy inten-
tionally discriminated in employment practices against
“all female professional technical employees employed
by the [Naval Command Support Activity] ‘NAVCOSS-
ACT’ or the [Navy Regional Data Automation Center]
‘NARDAC’ at any time between June 6, 1972 and June
4, 1979.”1 App., infra, 4la. The employees involved
performed computer-related tasks.
1 NAVCOSSACT was responsible for the Chief of Navy Oper-
ations’ computer activities in the 1960’s and 1970’s. Among its
duties were the development and operation of highly classified
computer programs and systems relating to national defense.
These activities included wargaming, telecommunications, and
strategic command and control. The name of NAVCOSSACT
was changed to NARDAC on March 17, 1977, when the Navy
effected a major reorganization of its data processing activities.
In order to consolidate these activities, data-processing person-
nel and support resources of the Navy Materiel Command Sup-
port Activity, the Navy Accounting and Finance Center and the
Naval District, Washington, D.C., were transferred to
NARDAC.
8
At trial, respondents relied on a computerized multi-
ple regression analysis to show that women received
lower salaries than men, in an attempt to show women
were paid less than one would expect in the absence of
discrimination. A multiple regression analysis is a sta-
tistical technique designed to estimate the effects of
several independent variables on a given result. Prop-
erly used, such an analysis can show how much influ-
ence factors such as sex, experience, and education had
on perceived disparities in salary levels. Here, the inde-
pendent variables included in respondents’ study were
the following: (1) level (but not type) of formal educa-
tion, (2) years between date of last education and entry
into the federal service—in effect, the age at which the
employee was hired, (3) length of service (but not type
of service) with NAVCOSSACT and NARDAC, and (4)
length of service (but not type of service) with the fed-
eral government. App., infra, 6a. After accounting for
these four variables, the analysis attributed the re-
maining salary differences to the sex of the employees
considered. Based on this analysis, which reflects the
effects of pre-1972 actions on salaries within the plain-
tiff class as well as the effects of actions taken by
agencies other than NAVCOSSACT and NARDAC, re-
spondents’ expert concluded that there was statistically
significant adverse treatment of women at NAVCOSS-
ACT and NARDAC.
Petitioners introduced evidence to show that this
conclusion resulted from certain flaws in respondents’
analysis, including the fact that respondents’ study
relied on data regarding employment decisions that
could not form the basis of Title VII liability. Accord-
2 To eliminate the effects of pre-1972 actions and actions
taken by employees other than NAVCOSSACT/NARDAC, peti-
tioners ran the same regressions used by respondents, but only
for those employees hired by petitioners after 1972. In no year
for which those regressions were run (1974-1979) was sex a sta-
tistically significant variable. Def. Exh. 204, at 4-6, Def. Exh.
205; Tr. 1427-1432, 1436-1437, 1500-1506.
4
ingly, petitioners’ evidence excluded—and was the only
evidence to exclude—employment decisions that the
court of appeals ultimately held were not action-
able—i.e., the effect of pre-1972 actions and initial
placement decisions. See page 6, infra,.* On the basis
of this evidence, petitioners contended that when such
irrelevant factors as pre-1972 actions and initial place-
ment decisions were eliminated and persons with com-
parable computer experience were compared, women
advanced in a statistically indistinguishable way from
men.
2. Following a trial, the district court ruled that peti-
tioners had discriminated against the class of women
professional technical employees in initial grade place-
ment and promotions, basing its finding largely on the
regression analysis presented by respondents.‘ Essen-
3 This evidence included an extensive “cohort analysis” that
grouped men and women who started at NAVCOSSACT and
NARDAC at the same GS level at similar times and compared
their advancements. In addition, applicant flow data presented
by petitioners showed that women applying for promotions from
September 1976 to 1979 had statistically the same treatment
with regard to promotions as did their male counterparts.
In addition, petitioners filed a motion for reconsideration af-
ter trial based upon new statistical analyses. These new analy-
ses were intended to further clarify two points: (1) an evaluation
of NAVCOSSACT and NARDAC personnel files showed that
women who were initially placed at NAVCOSSACT and
NARDAC had 49% of the computer experience of men, and the
generally lower initial placement level of women simply reflect-
ed their relative lack of computer experience; and (2) any show-
ing of adverse treatment of women was eliminated when initial
placement and time-barred acts were removed from the regres-
sion analyses. The district court rejected this evidence as
untimely.
“ The court also considered five individual claims, ruling in fa-
vor of respondents on two and against them on the remaining
three claims. The court of appeals affirmed the district court’s
finding of discrimination against the two individuals, but modi-
,
5
tial to the district court’s ultimate conclusion was its re-
jection of two arguments made by petitioners. First,
the court ruled (App. infra, 46a-48a) that petitioners’
objection to respondents’ failure to distinguish between
pre- and post-1972 actions was not valid because dis-
crimination occurring before 1972 “even if coupled with
neutral employment practices since then, produced ac-
tionable continuing discriminatory effects after 1972
* * * "5 Second, the court rejected (App., infra, 48a)
petitioners’ contention that respondents’ regression
analyses were flawed because they placed responsibility
on petitioners for decisions regarding initial placement
of employees when hired by, or transferred to, NAV-
COSSACT and NARDAC.®
Applying similar reasoning, the district court also re-
jected petitioners’ statistical analyses, in large part be-
cause they did not take into account pre-1972 discrimi-
nation, App., infra, 57a, and because they “assumed
that the employees studied were placed in an appropri-
ate salary grade at the outset, and (the analyses) there-
fore could not and did not detect any bias in the hiring
and placement process.” App., infra, 56a (footnote
omitted). Relying on its conclusion that pre-1972 ac-
fied the relief awarded. We do not challenge the rulings regard-
ing the individual claims in this petition.
5 The court stated that it knew of no practical method of
separating the effects of pre-1972 and post-1972 discrimination
in a regression analysis (App., infra, 48a n.20).
® The district court also rejected petitioners’ contention that
respondents’ regression analysis failed to account adequately
for the minimum necessary objective qualifications of the posi-
tions at issue. That is, petitioners contended that the fundamen-
tal cause for the mistaken notion that sex discrimination caused
the salary disparity between men and women in NAVCOSSACT
and NARDAC was the failure of respondents’ analyses to ac-
count for differences in computer-related experience. The dis-
trict court rejected this argument on the ground that respon-
dents’ variables were sufficiently accurate to establish a prima
facie case. App., infra, 49a-52a.
6
tions and initial placement decisions were actionable,
the district court concluded that respondents’ multiple
regression analysis established a prima facia case, and
that “applying the burden-of-production rule articulated
by the Supreme Court in [Texas Department of Com-
munity Affairs v.] Burdine, [450 U.S. 248 (1981),]
* * * the [petitioners] have not rebutted [respondents’]
prima facie case of discrimination” (App., infra, 59a).
3. A divided court of appeals (MacKinnon, J., dis-
senting) affirmed in part and reversed in part the dis-
trict court’s ruling on the class claims presented in this
ease. It reversed the district court’s holding that peti-
tioners, rather than other federal agencies responsible
for formulating federal personnel regulations, were re-
sponsible for determining the grade levels of new em-
ployees.” The appellate court also ruled that the district
court’s theory for permitting the inclusion of pre-1972
statistics in respondents’ analysis “is flatly inconsistent
with the Supreme Court’s pronouncements in Hazle-
wood School District v. United States, 483 U.S. at
309-10, * * * and United Air Lines, Inc. v. Evans, 431
U.S. 553, 558 (1977)” (App., infra, 15a-16a).
Notwithstanding these rulings, the court of appeals
affirmed the district court’s decision that respondents
had established a prima facie case that petitioners had
violated Title VII with regard to promotions (App.,
infra, 17a-18a) and that petitioners had not rebutted
that case (App., infra, 18a-19a).8 The court acknowl-
7 In accordance with that determination, the court of appeals
concluded that “the District Court erred in holding that the
class was entitled to relief for discriminatory initial place-
ments” (App., infra, 17a; emphasis in original).
® The court of appeals’ opinion focuses almost exclusively on
the statistical evidence presented. Without discussion, it notes
that “the District Court properly considered the statistical and
nonstatistical evidence on a cumulative basis in assessing the
strength of the [respondents’] prima facie case.” App., infra, 6a
n.7.
7
edged (App., infra, 16a) that, because they group
nonactionable employment decisions with actionable
ones, respondents’ analyses “hold the potential for some
distortion”; it nonetheless concluded that respondents
had established a prima facie case because their analy-
ses “included a substantial amount of data covering
post-1972 employment decisions affecting class mem-
bers.” ‘
The court of appeals also affirmed the district court’s
decision regarding the burden of proof that would be
placed on the employer in remedial hearings held to de-
termine liability to individual class members. Reiterat-
ing its ruling in McKenzie v. Sawyer, 684 F.2d 62,
76-78 (D.C. Cir. 1982), the court held (App., infra,
21a-22a): “Because such class members are presump-
tively entitled to relief upon showing that they were po-
tential victims of the defendants’ discriminatory prac-
tices * * * the defendants must ‘rebut the plaintiffs’
individual showing by clear and convincing evidence’.
McKenzie, 685 F.2d at 78.”
Judge MacKinnon dissented from the majority’s im-
position of class-wide liability. He argued that the dis-
trict court had incorrectly allocated the burden of proof
by requiring defendants to “disprove the plaintiffs’ alle-
gations” (App., infra, 29a; emphasis in original). More-
over, he concluded (id. at 3la) that the district court
“was so concerned with the allocation of the ‘stages’ of
proof, focusing upon whether the plaintiffs established
a prima facie case and whether the defendant rebutted
that case, that it lost sight of the basic principle that
® Regarding petitioners’ objection that respondents’ analyses
ignored the minimum objective qualificatons necessary for
placement and promotion in the professional technical job series
at issue, the court ruled (App., infra, 12a-l4a) that respon-
dents’ variables were closely enough related to years of comput-
er experience to provide an adequate basis for inferring dispar-
ate treatment.
ae ee
8
plaintif’* were ultimately required to prove intentional
discrimin. tion by a preponderance of the evidence.”
Petitioners filed a petition for rehearing, suggesting
rehearing en banc. The court of appeals denied the peti-
tion, with Judges Tamm, Wilkey, MacKinnon and Bork
dissenting (App., infra, 75a).
REASONS FOR GRANTING THE PETITION
The outcome of most Title VII litigation involving
class-wide claims of discrimination is determined by the
court’s evaluation of statistical evidence and analyses.
It is, therefore, crucial that such evidence be carefully
analyzed, bearing in mind that the ultimate responsibil-
ity of the court is to apply the substantive principles of
law underlying Title VII and, as this Court emphasized
in United States Postal Service Board of Governors v.
‘Aiken, supra, to determine whether, at the conclusion
of the trial, plaintiffs have established that they have
been discriminated against in violation of Title VII. The
uncritical acceptance of statistical evidence, without re-
gard to settled principles of law carefully developed by
Congress and this Court’s prior decisions, will inevita-
bly undermine the objectives of Title VII. The courts
below imposed liability relying on a statistical analysis
whose conclusion was based, in critical part, on evi-
dence that did not relate to employment decisions ac-
tionable under Title VII. The data offered in this case
showed only that women in respondent’s class generally
occupy lower pay levels than men in a unit of the Navy
that has recently increased substantially the number of
its women employees, with resultant added concentra-
tion of women at trainee and entry level positions.
The district court and the court of appeals rendered
their decision before Aikens was decided, and com-
mitted the same fundamental error as the lower courts
in Aikens.!° Had the court of appeals focused “directly
1° In our petition for rehearing, we called the court’s atten-
tion to Aikens and its application to this case.
9
on the question of discrimination,” Aikens, slip. op. 5,
and decided whether plaintiffs, at the conclusion of the
evidence, had established the existence of discriminato-
ry employment practices, it would necessarily have con-
cluded that there was no basis for affirming the district
court’s imposition of liability. The foundation of the dis-
trict court’s evaluation of the evidence was simply
swept away by the court of appeals’ ruling that the ef-
fects of pre-1972 actions and initial placement decisions
could not form the basis for imposing liability. The dis-
trict court relied on statistical evidence that factored in
employment decisions that the court of appeals specifi-
cally found could not form the basis for imposing liabili-
ty under Title VII, and rejected petitioners’ statistical
evidence precisely because it excluded such decisions.
Once the court of appeals corrected those errors in the
district court’s legal analysis, there remained no relia-
ble evidence upon which the appellate court could prop-
erly conclude that respondents had established, with
respect to the class claims, any violation of Title VII by
petitioners. Accordingly, the court of appeals should
have either reversed the district court’s decision or re-
manded the case to the district court for an evaluation
of all the evidence under correct legal standards.
Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982).
The district court and the court of appeals agreed
that the determination of whether defendants had en-
gaged in class-wide discrimination “revolves primarily
around the statistics submitted by the parties and the
analysis of the statistics by the parties’ experts” (App.,
infra, 42a, 6a). Statistical evidence “must be regarded
with a substantial degree of caution,” Pegues v.
Mississippi State Employment Service, 699 F.2d 760,
766 (5th Cir. 1983), petition for cert. pending, No.
83-139, because the usefulness of statistics “depends on
all the surrounding facts and circumstances.” Interna-
tional Brotherhood of Teamsters v. United States, 431
U.S. 324, 340 (1977). No valid conclusions regarding pe-
titioners’ employment practices can be drawn unless
10
the statistical evidence is analyzed in accordance with
legally correct interpretations of substantive Title VII
Law. See Pegues, 699 F.2d at 767-768; Pouncy v. Pru-
dential Insurance Co. of America, 668 F.2d 795, 803
(5th Cir. 1982); Wilkins v. University of Houston, 654
F.2d 388, 395 (5th Cir. 1981). In this case, the court of
appeals premised liability on statistics which admittedly
were not meaningfully tied to correct legal principles.
When analyzed in light of those principles and of the
government’s evidence revealing their flaws, those sta-
tistics simply do not show that NAVCOSSACT and
NARDAC discriminated against women in promotions
during the relevant time frame. Yet the court of ap-
peals, repeating the same error that court had made in
Aikens, based its decision on whether respondents’ evi
dence was adequate to establish a prima facie case in
the absence of evidence by the government proving the
flaws in respondents’ statistical presentation (App.,
infra, 10a-21a; Cf. id. at 3la-33a (dissenting opinion).
It is undisputed that the women in respondents’ class
in general occupy lower pay grades than men. It is,
however, both erroneous and contrary to the purposes
of Title VII for a court to leap from that fact alone to
the conclusion that discrimination has caused the dis-
parity. Recent recruitment efforts have brought more
members of previously under-represented groups into
the federal workforce in technical fields such as the
computer operations involved here.'' Substantial num-
1! Evidence at trial (Def. Exh. 198, at 1-18; Tr. 1409-1425)
showed that the selection of women for trainee positions at
NAVCOSSACT/NARDAC generally compared favorably with
their availability at the appropriate grade level both nationally
and locally: Nationwide Wash., D.C.
Total % Female % Female
New Hires % Female Availability Availability
Grade (1/1/72-3/12/72) _—_ Representation
5 26 38.46 20.88 27.09
7 64 42.19 18.91 24.28
9 16 18.75 17.33 21.97
im
be? sw
i
1]
bers of women and minorities are accordingly necessari-
ly clustered in entry level positions, and are paid ac-
cordingly. Until these inexperienced workers gain the
requisite experience and training, and until vacancies
occur at higher level positions, it cannot legitimately be
expected that minorities and women will be equally dis-
tributed throughout an agency’s workforce. See Valen-
tino v. United States Postal Service, 674 F.2d 56, 72
n.29 (D.C. Cir. 1982). Unwarranted speculation, such
as that of the court below, that the disparity between
the numbers of men and women in higher level posi-
tions is the result of discrimination penalizes agencies
for recruiting women and minorities at entry-level posi-
tions, thereby discouraging such recruitment efforts
and, in the long run, tending to decrease the opportuni-
ties of these groups for advancement in new fields.
Moreover, the court of appeals’ substantive rulings
entirely eliminated the legal basis for the district
court’s conclusion that respondents’ regression analysis
established facts necessary to impose liability on peti-
tioners. The court of appeals correctly ruled that two
critical components of respondents’ analysis were not
legally relevant. First, it held that the district court
had erred in ruling that petitioners’ pre-1972 actions
“even if coupled with neutral employment practices
since then, produced actionable continuing discrimina-
tory effects after 1972” (App., infra, 47a). As this
Court said in United Air Lines v. Evans, 431 U.S. 553,
558 (1977) (emphasis in original): “the emphasis should
not be placed on mere continuity; the critical question is
whether any present violation exists.” Accordingly,
here as in Evans, where the present system is neutral,
pre-1972 acts of discrimination, alone, do not convert it
into a violation of Title VII. Second, the court of ap-
peals properly concluded that petitioners had estab-
lished at trial “that initial grade placements were made
by either the CSC [Civil Service Commission] or the
OPM [Office of Personnel Management] or by em-
12
ploying agencies that were not made defendants in this
case” (App., infra, 17a).!* There was thus no basis for
holding defendants here responsible for initial place-
ment decisions.
The inclusion of data regarding pre-1972 actions and
initial placement decisions necessarily rendered respon-
dents’ regression analysis, and the district court’s con-
clusions based on it, unreliable. See EEOC v. Federal
Reserve Bank, 698 F.2c 633, 645 (4th Cir. 1983), peti-
tion for cert. pending sub. nom. Cooper v. Federal Re-
serve Bank, No. 88-185. Liability cannot be premised
upon the results of a multiple regression analysis that
inextricably intertwines the effects of actionable em-
ployment decisions with the effects of nonactionable
employment decisions. It is not possible to isolate the
portion of such results, if any, attributable to decisions
on which liability may properly be grounded. The sta-
tistical results upon which the trial court relied reflect-
ed without differentiation the combined effects of three
factors: (1) timely promotion decisions upon which it
would be legally permissible to premise liability; (2) un-
timely promotion decisions upon which it would not be
legally permissible to premise liability; and (3) timely
and untimely initial placement and decisions of others
upon which it would not be legally permissible to prem-
ise petitioners’ liability. Based on the evidence relied
upon by the trial court, it is not legally or logically pos-
sible to determine which, if any, portion of the com-
bined results of these three factors is due to personnel
actions upon which liability can be based. Indeed, the
district court specifically stated that there was “{nJo
The grade (i.e., salary) levels of persons entering the fed-
eral service are determined in accordance with OPM (formerly
CSC) regulations that take account of relevant education and
experience. Similarly, OPM regulations limit the extent to
which a person’s grade level may be increased on a transfer
from one agency to another. See generally 5 C.F.R. Pts.
300-351.
13
practical method of separating the effects of pre-1972
and post-1972 discrimination in regression analysis”
(App., infra, 48a n.20); but see note 14, infra.* It was,
therefore, improper for the court of appeals to hold
without further refinement or analysis that the relevant
evidence established an inference of discrimination suf-
ficient to carry respondents’ burden of proof. Wilkins
v. University of Houston, 662 F.2d 1156, 1157 (5th Cir.
1981).
Under Pullman-Standard vy. Swint, 456 U.S. 273,
292 (1982), a remand is required where the district
court findings are rendered unreliable by an erroneous
view of the law, such as the district court exhibited
here, unless “the record permits only one reso’ution of
the factual issue.” See also United States Postal Serv-
ice Board of Governors v. Aikens, supra. The evidence
in this record when evaluated under the correct legal
standards regarding the effects of pre-1972 actions and
initial placement decisions does not permit the conclu-
sion that the trier of the fact would be required to re-
solve the issues in respondents’ favor. Thus, the state
of the record required the court of appeals to remand
the case to the district court for further proceedings un-
der proper legal standards. In Aikens, this Court or-
dered remand because “we cannot be certain that [the
district court’s] findings of fact in favor of the Postal
Service were not influenced by its mistaken view of the
law” (slip op. 5). In the instant case, the district court’s
acceptance of respondents’ statistics and its rejection of
petitioners’ statistics are expressly based upon the very
legal errors recognized by the court of appeals (pages
‘9 The district court made no finding that promotion decisions
alone were discriminatory, because it believed, contrary to the
court of appeals’ ruling, that petitioners had control over initial
placement decisions. Indeed, the district covrt specifically re-
jected defendants’ extensive statistical evidence, which focused
on promotions and showed no adverse treatr-ent of class mem-
bers, because that evidence did not deal with initial placement.
(App., infra, 55a n.40, 59a n.47.)
14
3-6, supra). Accordingly, the principle of Aikens, a for-
tiorari, requires a remand to the district court here.'*
The courts below rendered their decisions prior to
Aikens. The court of appeals’ decision cannot stand in
light of this Court’s direction in Aikens that all of the
evidence must be evaluated at the conclusion of the
case in order to determine whether plaintiffs carried
their burden of establishing by a preponderance of the
evidence that defendants intentionally discriminated
against them. We therefore submit that the court of ap-
peals’ decision should be summarily vacated and the
case remanded with appropriate directions for further
proceedings. '®
‘4 The respondents’ multiple regression analysis could then be
rerun using a model that factors out the effects of irrelevant em-
ployment decisions (i.e., decisions occurring prior to March 24,
1972, and decisions relating to initial placement at time of hire).
This can be easily accomplished with the simple addition of a
variable to the respondents’ model that accounts for grade or
salary as of March 24, 1972, and for grade or salary at initial
placement for those placed after March 24, 1972. See Finkle-
stein, The Judicial Reception of Multiple Regression Studies in
Race and Sex Discrimination Cases, 80 Colum. L. Rev. 737,
745-746 (1980).
While we would not oppose affording respondents a further
opportunity for evidentiary development in light of the court of
appeals’ clarification of the governing legal standards, we sub-
mit that, in fairness, the government should also be given the
opportunity to submit additional evidence, such as that sub-
mitted with our motion for reconsideration. See note 3, supra.
We submit that such evidence will establish that women at
NAVCOSSACT and NARDAC have received as many promo-
tions and advanced as rapidly as similarly situated men at all
relevant times.
158 In light of this submission, we do not urge that the Court
grant plenary review in order to consider the two additional
questions we have presented. We do not, on balance, believe
that these questions present issues requiring plenary considera-
tion at this time. Should the Court set the case for briefing and
argument, however, we believe that these additional questions
should also be considered, in order to present the case in its full
factual and legal context.
15
The Court recognized in Hazelwood School District v. United
States, 433 U.S. 299, 308 (1977), that when special qualifications
are required to fill the jobs at issue, the relevant statistical
comparisons must be among those who possess these qualifica-
tions. Here, respondents’ regression analysis failed to account
for such qualifications, since it did not factor in computer-
related experience as an independent variable. The court below
concluded (App., infra, 14a) that the independent variable of
length of employment with NAVCOSSACT/NARDAC was a
valid proxy for such experience. That conclusion overlooks the
fact that the grade level at which a class member is initially
placed when joining NAVCOSSACT/NARDAC reflects her
computer-related experience before coming to the agency. All
respondents’ independent variables relevant to that initial
placement (education, length of government service and, essen-
tially, age) ignore that experience. The class members had sig-
nificantly less computer-related experience; that relative lack of
experience was not adequately reflected in respondents’ regres-
sion analysis.
The court of appeals followed its prior practice in imposing a
heightened burden of proof on the employer at the remedial
stage of Title VII litigation. It held that after a class member
shows she has been adversely affected, the employer must re-
but the presumption of discrimination by “clear and convincing
evidence” establishing a legitimate business reason for the ad-
verse action. App., infra, 2la-22a; McKenzie v. Sawyer, 684
F.2d 62, 78 (D.C. Cir. 1982). This ruling is consistent with the
practice in the Seventh and Fifth Circuits (Stewart v. General
Motors Corp., 542 F.2d 445, 453 (7th Cir. 1976), cert. denied,
433 U.S. 919 (1977); Lee v. Washington County Board of Edu-
cation, 625 F.2d 1235, 1239 (5th Cir. 1980)), but it conflicts with
the practice in the Fourth Circuit, where the employer may jus-
tify his actions by a simple preponderence of the evidence.
Sledge v. J. P. Stevens, 585 F.2d 625, 637 (1978, cert. denied,
440 U.S. 981 (1979); EEOC v. American National Bank, 652
F.2d 1176, 1201 (4th Cir. 1981). Petitioners are defendants
placed in the unusual posture of having the burden of proof
shifted to them at the remedial stage. The shift of the burden is,
we submit, clearly adequate to protect the interests served by
Title VII under the ordinary “preponderance of the evidence”
standard. See International Brotherhood of Teamsters v.
United States, 431 U.S. 324, 362 (1977); California v. Mitchell
Brathers’ Santa Aaa Theater, 454 U.S. 90, 93 (1981); Herman &
MacLean v. Huddleston, Nos. 81-680 & 81-1076 (Jan. 24, 1983).
16
CONCLUSION
The judgment of the court of appeals should be va-
cated and the case remanded for further consideration
in light of United States Postal Service Board of Gover- —
nors v. Aikens, supra.
Rex E. LEE
Solicitor General
J. PAUL MCGRATH
Assistant Attorney General
CAROLYN B. KUHL
ROBERT E. Kopp
Attorneys
OCTOBER 1983
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 81-2370
YVONNE G. TROUT, ET AL.
Vv.
JOHN F, LEHMAN, JR., SECRETARY OF THE NAVY, ET AL.,
APPELLANTS
No. 81-2373
MARIE LouIs E. BACH, ET AL.
Vv.
JOHN F. LEHMAN, JR., SECRETARY OF THE NAVY, ET AL.,
APPELLANTS
[See draft, attached, for No. 82-1304. ]
No. 82-1305
YVONNE G. TROUT, ET AL.
Vv.
JOHN F. LEHMAN, JR., SECRETARY OF THE NAVY, ET AL.,
APPELLANTS
Appeals from the United States District Court
for the District of Columbia
(D.C. Civil Actions Nos. 73-55 & 76-1206
Argued November 19, 1982
Decided March 11, 1988
la
es) he
2a
Before MACKINNON and EDWARDS, Circuit Judges, and
SwyYGERT, * Senior Circuit Judge, United States Court of
Appeals for the Seventh Circuit.
Opinion for the Court filed by Circuit Judge EDWARDS.
Separate opinion by MACKINNON, Circuit Judge, dis-
senting in part and concurring in part.
EDWARDS, Circuit Judge: These appeals arise out of Dis-
trict Judge Harold H. Greene’s rulings against the Depart-
ment of the Navy (“Navy”), an operational unit within the
Navy, and certain named officials in four consolidated Title
VII‘ sex discrimination cases on the questions of liability ,?
relief,? and reconsideration. We are asked to review the
District Court’s conclusion that the appellants discrimi-
nated against a class of female professional technical em-
ployees in initial grade placements and promotions. We are
also requested to review the District Court’s ruling that,
once an individual class member shows in a remedial hear-
ing that she was a potential victim of the proven discrimi-
nation, the burden shifts to the employer to demonstrate
by clear and convincing evidence that its employment deci-
sions with regard to that individual were based on legiti-
mate factors unrelated to the policy of discrimination that
has already been proved. Finally, the appellants challenge
the District Court’s findings of discrimination against two
individual employees and the relief ordered for those
individuals.
In pursuing these appeals, the appellants have raised an
issue concerning the sufficiency of the prima facie case pre-
sented by the class plaintiffs. On the record at hand, we be-
lieve that the appellants’ objections on this score arise from
*Sitting by designation pursuant to 28 U.S.C. § 294(d) (Supp. V
1981).
! Title VII of the Civil Rights Act of 1964, 42 U.S.C. $§ 2000e to
2000e-17 (1976 & Supp. IV 1980).
2 Trout v. Hidalgo, 517 F. Supp. 873 (D.D.C. 1981).
3 Trout v. Hidalgo, Civ. No. 73-55 (D.D.C. Oct. 20, 1981), reprinted
in I Joint Appendix (“Jt. App.”) 16.
* Trout v. Lehman, Civ. No. 73-55 (D.D.C. Mar. 10, 1982) reprinted
in I Jt. App. 28.
3a
too stringent a view of the requisites of a prima facie case.
“The burden of establishing a prima facie case of disparate
treatment,” the Supreme Court has emphasized, “is not on-
erous.” Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). On the basis of the evi-
dence of discrimination introduced at trial, Judge Greene
properly held that the class plaintiffs had satisfied this bur-
den; the Navy’s objections to the plaintiffs’ statistical pre-
sentation were speculative and unquantified, and the
court’s decision to disregard those challenges was neither
clearly erroneous nor contrary to established legal princi-
ples.5 We hold, however, that evidence introduced at trial
effectively rebutted the inference that the defendants had
discriminated in initia! grade placements, and we reverse
that aspect of the District Court’s judgment of class-wide
liability.
The remaining issues raised in these appeals are less dif-
ficult to resolve. As the appellants appeared to concede in
the oral argument before this court, the District Court’s ap-
plication of the clear and convincing evidence standard in
individual relief hearings is consistent with the law of this
circuit. The District Court’s findings of discrimination
against two individual employees, moreover, rest largely
on its evaluation of the design, motive, and intent with
which the appellants acted; while “it would be our duty to
correct clear error,” United States v. Yellow Cab Co., 338
U.S. 338, 342 (1949), the trial court’s choice between two
permissible views of the weight and direction of the evi-
dence was not clearly erroneous. Nevertheless, we are
unable to determine whether the District Court acted with-
in its authority in fashioning relief for these individuals,
and we remand several elements of the relief award for fur-
ther consideration.
* Although a more thorough analysis of the evidence offered by the
appellants in support of their motion for reconsideration might have
led the trial court to conclude that the prima facie case had been
rebutted—a proposition about which we will not speculate since the
appellants’ evidence was not subjected to the rigors of the adversarial!
process—we find no basis for overturning the court's discretionary re-
fusal to retry the case many months after rendering its decision.
4a
I, BACKGROUND
A. Factual Background
The appellants in these cases are officials of the Navy
and an agency of the Navy formerly referred to as the Na-
val Command Support Activity and now known as the
Navy Regional Data Automation Center (““NAVCOSS-
ACT/NARDAC”). NAVCOSSACT was originally estab-
lished as the center of Navy computer operations for na-
tional defense purposes; in 1977, NAVCOSSACT was
dissolved and its personnel and resources were combined
with those of several other agencies to form NARDAC,
which develops computer systems and documents for com-
puter systems, delivers the systems and documents to user
organizations, and trains personnel in their operation. The
appellees are employees or former employees of NAVCOS-
SACT/NARDAC, some of whom are members the class of
“all female professional technical employees employed by
... [NAVCOSSACT] or ... [NARDAC] at any time be-
tween June 6, 1972, and June 4, 1979.”
The genesis of this protracted litigation, the annals of
which fill many volumes and the resolution of which already
has consumed a large chunk of judicial resources, can be
traced to June 21, 1972. It was then that Yvonne Trout, a
NAVCOSSACT computer systems analyst, filed an infor-
mal charge of sex discrimination on behalf of herself and a
class of female NAVCOSSACT employees. This charge, the
relevant portion of which alleged “[t]he existence of a con-
tinuing and pervasive pattern of discrimination against
women which results in their being deprived of considera-
tion for and promotion to upper grade levels and manage-
ment positions,” II Jt. App. 632-33, was made part of a for-
mal complaint filed by Trout on September 20, 1972.
Shortly thereafter, on January 10, 1973, Trout filed.a civil
action in the District Court alleging, in part, “a continuing
and pervasive pattern of discrimination with respect to all
* Trout v. Middendorf, Civ. No. 73-55 (D.D.C. June 18, 1979) (order
limiting class definition), Record (“R.") 115; see Trout v. Hidalgo, 617
F. Supp. 878, 877 (D.D.C. 1981).
5a
professionaal technical female applicants and employees.”
Complaint § 63, R.1.
For purposes of this appeal, the extensive procedural his-
tory of Trout’s civil action may be summarized quickly. In
April 1973, Clara Perlingiero, another NAVCOSSACT
computer systems analyst who had filed informal charges of
sex discrimination in September 1971 and August 1972 and
a formal administrative complaint in September 1972, was
allowed to join as a party plaintiff. Immediately thereafter,
the District Court conditionally certified a class consisting
of “all past, present and future female professional techni-
cal employees of ... [NAVCOSSACT].” Trout v. Warner,
Civ. No. 73-55 (D.D.C. Apr. 6, 1973) (order authorizing
class action), R.16. In 1976, two additional cases involving
sex discrimination were filed by NAVCOSSACT employees
and consolidated with Trout’s case; one of these suits al-
leged discrimination against Marie Bach, a security mana-
ger and nonmember of the conditionally certified class. An
independent action filed by Trout was also consolidated
with her original case in 1978. The conditionally certified
class was redefined in June 1979, see text at note 6 supra,
and a ten-day trial of the consolidated actions was con-
ducted in June 1980.
B. The District Court’s Decisions
1. Class Claims
As the District Court recognized, “[t]he class action as-
pects of this lawsuit involve an alleged pattern and practice
of sex discrimination in [NAVCOSSACT/NARDAC’s]
hiring, performance evaluation, job assignment, promotion,
and award procedures.” Trout v. Hidalgo, 517 F. Supp.
873, 877 (D.D.C. 1981). Hiring and initial job placement
procedures, however, were the subject of only a small frac-
tion of the trial testimony and exhibits. The meager evi-
dence adduced regarding the determination of initial grade
levels for new NAVCOSSACT/NARDAC employees uni-
formly supported the defendants’ contention that they were
not responsible for initial placement decisions. The plain-
tiffs, in fact, made no effort whatsoever to rebut the de-
fendants’ evidence attributing sole responsibility for initial
os |
6a
placement decisions to the Civil Service Commission
(“CSC”) and the Office of Personnel Management (“OPM”).
Notwithstanding this deficiency in the plaintiffs’ proof with
respect to initial placements, the District Court held, on
the basis of extensive statistical evidence and the testimony
of a number of present and former NAVCOSSACT/
NARDAC employees, that the class plaintiffs had estab-
lished a prima facie case of sex discrimination in both initial
placements and promotions, and that the defendants had
failed to rebut that showing.
These conclusions rested primarily, but not exclusively,’
on the District Court’s assessment of the probative value of
the competing statistical studies presented by the parties.
The plaintiff’s expert, whose techniques and findings were
ultimately accepted by the court, began his analysis with
the undisputed salary differentials between men and wom-
en at NAVCOSSACT/NARDAC, reflecting a relative con-
centration of women in lower-level positions. His study was
designed to determine whether these differentials could be
explained by differences between men and women in educa-
tional attainment and experience. Using data from NAV-
COSSACT/NARDAC personnel records, he specified a
model in which the dependent variable was salary and the
independent variables were (1) level of education, (2) years
of NAVCOSSACT/NARDAC experience, (3) years of other
governmental experience, (4) years of potential nongovern-
mental experience between the date of receipt of last edu-
cational degree and date of entry into the federal service,
and (5) sex. Factors (1) through (4) proved insufficient to
explain the salary differentials. Even when differences in
education and experience were taken into account, female
employees continued to receive substantially lower salaries
than men. Indeed, “[t]hese differences in salaries were sta-
tistically significant at the .01 level, that is, they would be
7 The District Court also found persuasive the testimony of a num-
ber of class members. Although we do not specifically discuss this tes-
timony, the District Court properly considered the statistical and
nonstatistical evidence on a cumulative basis in assessing the strength
of the plaintiffs’ prima facie case. EEOC v. American Nat'l Bank, 652
F.2d .176, 1188-89 (4th Cir. 1981), cert. denied, 108 S. Ct. 235 (1982).
7a
expected to arise by chance less than one percent of the
time if there were no discrimination based on sex.” Trout,
517 F. Supp. at 879 n.14. An additional regression confined
to employees hired after 1972, the effective date of Title
VII in the federal service, yielded results consistent with
the basic model.
The defendants responded to this statistical showing of
discrimination in two ways. First, they argued that the
plaintiffs’ statistics were insuificiently refined to support a
prima facie case because (1) the regressions omitted critical
variables concerning the minimum objective qualifications
required for promotions within NAVCOSSACT/NARDAC,
(2) the regression results were biased by the expert’s fail-
ure to eliminate the effects of nonactionable pre-1972 dis-
crimination, and (3) the inclusion of the effects of discrimi-
nation by agencies other than NAVCOSSACT/NARDAC
skewed the regression results. The view of the requisites of
a prima facie case embodied in these objections was reject-
ed by the trial judge, who apparently believed that while
otherwise valid studies incorporating these factors could be
used to rebut a prima facie case, the plaintiffs’ statistical
evidence was sufficiently accurate to give rise to an infer-
ence of actionable discrimination. Such studies did consti-
tute the second prong of the defendants’ response to the
plaintiffs’ case, but the District Court concluded that the
statistical analyses proffered by the defendants suffered
from a number of defects that rendered them less persua-
sive than the plaintiffs’ exhibits.
Following the trial of the plaintiffs’ liability claims, and
after holding the defendants liable for discrimination
against the class of female professional technical employees
at NAVCOSSACT/NARDAC, the District Court directed
the parties to submit memoranda on potential methods of
determining individual employees’ entitlement to relief.
Taking liberties with this instruction, the defendants pre-
sented a number of new statistical studies on the question
of class liability and substantial documentary evidence per-
taining to their responsibility for initial grade placement
decisions. These data later formed the basis for a motion
for reconsideration, which the trial court characterized as
a.
8a
“more akin to a demand for a new trial than for reconsider-
ation.”* The basic thrust of this motion was that the de-
fendants, in preparing for the relief proceedings, had col-
lected new evidence that required the court to enter judg-
ment for them on the question of liability. In the court’s
view, however, this motion was untimely and provided no
basis for either reconsideration or a new trial. The court
reasoned that the defendants had had ample time to pre-
pare their case, the evidence was not of a sort that would
have been unavailable to a duly diligent defendant at the
time of the trial, the new studies were cumulative and un-
likely to affect the result, and the resolution of the entire
matter would not be advanced by another trial on the ques-
tion of liability.
If the District Court’s rulings on class liability are af-
firmed, this lawsuit must enter a second phase, in which
class members’ entitlement to relief will be determined on
an individual basis. See, e.g., International Brotherhood of
Teamsters v. United States, 431 U.S. 324, 360-62 (1977). On
this point, the District Court held that, after an employee
demonstrates in remedial hearings that she was a potential
victim of the proven discrimination, “the burden shifts to
the employer to demonstrate by clear and convincing evi-
dence that its employment decisions with regard to that in-
dividual were based on legitimate factors unrelated to the
policy of discrimination which has already been proved.”®
This placement of the burden of persuasion provides a sec-
ond ground for challenging the District Court’s resolution
of the class action aspects of this suit.
2. Individual Claims
In addition to resolving the issue of class liability, the
District Court considered five individuals’ allegations of sex
discrimination and ruled in favor of two of the employees.
It found, first, that Marie Bach, a nonmember of the class,
® Trout v. Lehman, Civ. No. 73-55, mem. op. at 2 (D.D.C. Mar. 10,
1982), reprinted in I Jt. App. 28, 29.
* Trout v. Hidalgo, Civ. No. 73-55, mem. op. at 4 (D.D.C. Oct. 20,
1981), reprinted in I Jt. App. 16, 19.
9a
had been removed from her position as a GS-13 security
manager in 1976 and 1979, replaced by younger males with
grades of GS-14 and GS-15, and subjected to other discrimi-
natory acts, including the failure to classify her position at
a grade comparable to that of other Navy security special-
ists with similar functions. Among the relief awarded Bach
were two retroactive promotions and commensurate back-
pay. The court also found that Clara Perlingiero, a class
member, had been discriminatorily denied promotions in
1971 and 1979 and subjected to other discriminatory acts,
including the failure to classify her position at a grade com-
parable to similarly situated males. Among the relief
awarded Perlingiero were retroactive promotions to GS-13
as of September 1971 and to GS-14 as of September 1979
and commensurate backpay. Both the findings of liability
and the awards of relief have been challenged in these
appeals.
II, DISCUSSION
A. The Scope of Review
In reviewing the challenged decisions, we are guided by
the principle that “factfinding is the basic responsibility of
district courts, rather than appellate courts,” DeMarco v.
United States, 415 U.S. 449, 450 n.* (1974) (per curiam),
and the rule that a district court’s factual findings may not
be set aside unless clearly erroneous, Pullman-Standard v.
Swint, 102 S. Ct. 1781, 1789 (1982); Fep. R. Crv. P. 52(a).
This rule, of course, does not apply to conclusions of law,
Pullman-Standard, 102 S. Ct. at 1789, or to factual find-
ings that result from the application of incorrect legal prin-
ciples, Inwood Laboratories, Inc. v. Ives Laboratories,
Inc., 102 S. Ct. 2182, 2189 n.15 (1982). But most findings of
fact, including findings of discriminatory intent, will be left
undisturbed unless “the reviewing court on the entire evi-
dence is left with the definite and firm conviction that a
mistake has been committed.” United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948).
Although many of the issues raised in these appeals in-
volve purely factual conclusions of the District Court, sev-
eral present legal questions or mixed questions of law and
10a
fact. The trial court’s findings of discrimination against
Bach and Perlingiero and its assessment of the relative pro-
bative force of the parties’ statistical evidence, for exam-
ple, are undoubtedly factual. See Pullman-Standard, 102
S. Ct. at 1790-91; Medina v. Reinhardt, 686 F.2d 997, 1007
(D.C. Cir. 1982). But the appellants’ challenges to the suffi-
ciency of the prima facie case of discrimination against the
class of female professional technical, employees at NAV-
COSSACT/NARDAC, grounded as they are in the alleged
omission from the statistical showing of factors reflecting
important legal principles, raise legal issues that trigger a
more careful examination by this court.
B. The Prima Facie Case
To establish a prima facie case of sex discrimination in
initial grade placements or promotions, plaintiffs are re-
quired to show only that it is more likely than not that their
employers failed properly to place or promote women be-
cause of discriminatory intent. See Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978); O’Brien v. Sky
Chefs, Inc., 670 F.2d 864, 866 (9th Cir. 1982). This burden
is not a heavy one, Texas Department of Community Af-
fairs v. Burdine, 450 U.S. at 253, and the required showing
may be made by statistics alone, Hazelwood School District
v. United States, 433 U.S. 299, 307-08 (1977), or by a “cu-
mulation of evidence, including statistics, patterns, prac-
tices, general policies, or specific instances of discrimina-
tion,” EEOC v. American National Bank, 652 F.2d 1176,
1188 (4th Cir. 1981), cert. denied, 103 S. Ct. 235 (1982).
If the plaintiffs have used statistics to make out a prima
facie case, the defendants may rebut the inference of dis-
crimination b' presenting a legitimate, nondiscriminatory
explanation for the observed statistical disparity or by rais-
ing a genuine issue of material fact concerning the accuracy
of the picture painted by the plaintiffs’ statistics. See Inter-
national Brotherhood of Teamsters v. United States, 431.
U.S. at 360; Croker v. Boeing Co. (Vertol Division), 662
F.2d 975, 991 (3d Cir. 1981) (en banc). To prevent the latter
course from becoming an incomprehensible battle of the ex-
perts, several general principles should guide a court’s as-
lla
sessment of the sufficiency of the plaintiffs’ prima facie
case. The most important of these principles is that, while
plaintiffs must demonstrate to the court’s satisfaction that
their statistical comparisons are meaningful, they need not
present a perfect statistical analysis at the prima facie case
stage. See Dothard v. Rawlinson, 433 U.S. 321, 331 (1977);
Medina v. Reinhardt, 686 F.2d at 1008-09; Vuyanich v.
Republic National Bank, —% F. Supp. 224, 306-07, 354-57
(N.D. Tex. 1980).
The appropriate degree of refinement of the plaintiffs’
statistical analysis, moreover, may depend on the quality
and control of the available data. See Vuyanich, 505 F.
Supp. at 356. If the plaintiffs account for the effects of ex-
traneous variables to the extent reasonably permitted by
the available data and the evidence presented strongly sup-
ports an inference of discriminatory treatment, the District
Court properly may cc iclude that the plaintiffs have made
out a prima facie case. As noted in Detroit Police Officers’
Association v. Young, 608 F.2d 671 (6th Cir. 1979), cert.
denied, 452 U.S. 938 (1981), a court should not “require
proof to a mathematical certainty, ... [because] there is no
such requirement [under Title VII]. Deficiencies in the data
base ‘may, of course, detract from the value of [statistical]
evidence,’ but ordinarily would not obliterate its evidentia-
ry value.” Jd. at 687 (citations omitted) (quoting
Teamsters, 431 U.S. at 340 n.20). This is particularly true
where, as here, the defendants controlled the only sources
of data on which statistical analyses could be based. As the
District Court observed, “plaintiffs cannot legitimately be
faulted for gaps in their statistical analysis when the infor-
mation necessary to close those gaps was possessed only by
defendants and was not furnished either to plaintiffs or to
the Court.” Trout, 517 F. Supp. at 883 (footnote omitted).
Furthermore, the most effective way to rebut a statistic-
ally based prima facie case is to present more accurate sta-
tistics. As the Supreme Court has made clear, where “the
employer discerns fallacies or deficiencies in the data of-
fered by the plaintiff, he is free to adduce countervailing
evidence on his own.” Dothard, 433 U.S. at 331. But un-
quantified, speculative, and theoretical objections to the
om .
12a
proffered statistics are properly given little weight by the
trial court:
When a plaintiff submits accurate statistical data,
and a defendant alleges that relevant variables are ex-
cluded, defendant may not rely on hypothesis to lessen
the probative value of plaintiff's statistical proof.
Rather, defendant ... must either rework plaintiff's
statistics incorporating the omitted factors or present
other proof undermining plaintiff’s claims.
Segar v. Civiletti, 508 F. Supp. 690, 712 (D.D.C. 1981). Al-
though NAVCOSSACT/NARDAC did present some
studies of its own—ultimately rejected by the District
Court—tending to undermine the plaintiffs’ claims, it did
not, for the most part, attempt to correct the alleged defi-
ciencies in the plaintiffs’ statistical presentation in its trial
testimony or exhibits. See IV Jt. App. 1921-23. For this
and other reasons—set forth below—these alleged short-
comings neither prevented the plaintiffs from establishing a
prima facie case nor constituted a persuasive rebuttal to an
otherwise adequate initial showing.
1. Minimum Objective Qualifications
The appellants’ principal objection to the statistical anal-
yses on which the District Court relied appears to be that
the statistics ignored the minimum objective qualifications
necessary for placement and promotion in the professional
technical job series at issue. In Davis v. Califano, 613 F.2d
957 (D.C. Cir. 1979), this court suggested that “the mini-
mum objective qualifications necessary for one to be eligi-
ble for promotion must be considered in the statistical data
presented initially by a plaintiff.” Jd. at 964 (emphasis in
original). The Davis court also speculated that “if a particu-
lar number of years of work experience were established as
a minimum job criterion, then that would need to be re-
flected in the proffered statistics.” Jd. At least part of the
Davis court’s rumination became the law of this circuit in
Valentino v. United States Postal Service, 674 F.2d 56
(D.C. Cir. 1982), in which we affirmed a ruling that mem-
bers of a class consisting of a wide variety of occupational
categories had failed to make out a prima facie case of sex
13a
discrimination. “‘When special qualifications are required
to fill particular jobs,’” the court declared, “proof that does
not center on those ‘who possess the necessary qualifica-
tions’ falls short.” Jd. at 67-68 (quoting Hazelwood School
District v. United States, 433 U.S. at 308 n.13).?°
Relying on these cases, the appellants claim that place-
ments and promotions within the NAVCOSSACT/
NARDAC work force rest on minimum objective qualifica-
tions established by the OPM. These qualifications, they ar-
gue, can be summarized in terms of years of computer-
related experience; as a result, any analysis of initial
placements and promotions above the GS-5 level must in-
clude the amount of computer-related experience possessed
by the employees. Because the appellants contend that the
plaintiffs’ statistics did not account for such experience,
they conclude that the regressions could not establish a
prima facie case. We reject this line of argument for two
principal and related reasons: first, we find that the plain-
tiffs’ statistical analyses did account for minimum objective
qualifications; and second, contrary to the appellants’ asser-
tions, we find the conclusions reached by the District Court
in this case to be consistent with the principles enunciated
in Valentino.
Not only did the Valentino court implicitly approve the
results reached by the District Court in this case, see id. at
68, 70, but the reasoning underlying its decision is wholly
inapplicable in a case, like this one, where all members of
the class are professional technical employees with general-
ly similar job skills. The regression analyses under consid-
eration in Valentino, like the studies presented in this
case, attempted to estimate the effect of sex, years of edu-
cation, and length of governmental service on employee’s
salaries. But that case, unlike this one, involved a class
composed of individuals in numerous occupational catego-
1° Valentino's holding is limited, we believe, by the fact that the
plaintiffs’ expert there had failed to submit qualification data that were
available. Jd. at 71 n.23. If data on a particular minimum objective
qualification are simply unavailable, Valentino's requirement may be
eased, for “({e)xactness is not required at the prima facie stage.”
Medina v. Reinhardt, 686 F.2d at 1008-09 & n.6.
l4a
ries with readily distinguishable qualifications whose ex-
perts had “utterly failed to control for type of education and
job classification.” Jd. at 70. The “grossly imprecise” com-
parisons that resulted, Medina v. Reinhardt, 686 F.2d at
1010, simply could not provide a reasonabie basis for infer-
ring disparate treatment. It would, it seems clear, truly
have been “irrational to assume ‘equal qualifications’ to fill
engineering or secretarial vacancies among persons educa-
ted the same number of years and employed by the govern-
ment for the same length of time.” Valentino, 674 F.2d at
71 (footnotes omitted).
So understood, the result in Valentino turns on the inad-
equacy of the proxies—years of education and government
experience—for the myriad minimum objective qualifica-
tions of the diverse positions held by class members. No
such problem is present here. The class certified by the
District Court consists solely of employees performing
computer-related tasks, and the only minimum objective
qualification identified by the appellants is one-to-three
years of computer-related experience. Far from being
“grossly imprecise,” the plaintiffs’ proxy for this qualifica-
tion—years of experience with NAVCOSSACT/NAR-
DAC—provides a perfectly adequate basis for inferring
disparate treatment. As the appellants observe, this proxy
arguably does equate time spent in a clerical position with
time spent in the computer field and could thus penalize
them for moving female employees from lower-level, non-
professional jobs into technical professional computer posi-
tions with higher potential salaries. Brief for “ »pellants at
44 & n.21. But the record does not suggest that such move-
ment occurred with any regularity, see IV Jt. App.
1860-61, much less with sufficient frequency to cast doubt
upon the inference of discrimination arising from the plain-
tiffs’ statistical showing."
11 The appellants also argue that the plaintiffs’ statistics overstate
the qualifications of women in ways that, while not related to the mini-
mum objective qualifications for NAVCOSSACT/NARDAC positions,
exaggerate the expected salaries of female employees and reduce the
explanatory power of the plaintiffs’ model. They contend, for example,
that the plaintiffs’ failure to account for type of education biased their
15a
2. Relevant Time Frame
The appellants also argue that the plaintiffs’ statistics
failed to make out a prima facie case because they ignored
the time limitations embodied in Title VII. Absent a valid
claim of continuing violation, see, e.g., McKenzie v. Saw-
yer, 684 F.2d 62, 72 (D.C. Cir 1982), Milton v. Weinberger,
645 F.2d 1070, 1074-77 (D.C. Cir. 1981), Title VII does not
apply retroactively to discrimination against federal em-
ployees that occurred prior to March 24, 1972, unless a
complaint was pending on its effective date. Stoller v.
Marsh, 682 F.2d 971, 974 (D.C. Cir. 1982); Thompson v.
Sawyer, 678 F.2d 257, 289 (D.C. Cir. 1982); Brown v.
Turner, 659 F.2d 1199, 1201-02 (D.C. Cir. 1981). In this
case, the administrative complaint on which the class alle-
gations rest was not filed until June 21, 1972. Under the
Civil Service Regulations in effect at that time, all claims
originating more than fifteen days prior to that complaint
are time-barred. 5 C.F.R. § 713.214(a) (1) (i) (1972) (cur-
rently codified at 29 C.F.R. § 1613.214(a) (1) (i) (1982)); see
Milton, 645 F.2d at 1072 & n.6. Although the District Court
recognized these fundamental principles, the appellants be-
lieve that it erred in refusing to apply them when analyzing
the plaintiffs’ statistical evidence.
The District Court concluded that plaintiffs need not fac-
tor out time-barred discrimination because defendants may
be held liable for the continuing effects of that discrimina-
tion. This theory was once in vogue, but it is flatly incon-
sistent with the Supreme Court’s pronouncements in
statistics because most computer science degrees are earned by men,
and that the plaintiffs’ nongovernmental experience proxy biased their
statistics because women, on the average, spend more time out of the
labor force than do men. Because the testimony offered at trial did not
quantify these objections or show that such differences existed in the
population of NAVCOSSACT/NARDAC employees, the District Court
could, at most, speculate that the omissions might have had some ef-
fect on the statistical showing. See, e.g., I] Jt. App. 758-60; IV Jt.
App. 1880-85. Such speculation, based on evidence not “keyed to the
population here involved,” Trout, 517 F. Supp. at 881, would do little
to undermine the plaintiffs’ prima facie case. See Vuyanich v. Republic
Nat'l Bank, 505 F. Supp. at 307.
l6a
Hazelwood School District v. United States, 433 U.S. at
309-10, and United Air Lines, Inc. v. Evans, 431 U.S. 553,
558 (1977). As noted above, however, we believe that the
District Court’s conclusion that the plaintiffs’ statistics
were capable of establishing a prima facie case was correct,
albeit in part for the wrong reason, and should thus be af-
firmed. See Helvering v. Gowran, 302 U.S. 238, 245 (1937);
Eikenberry v. Callahan, 653 F.2d 632, 636 (D.C. Cir.
1981).
By grouping nonactionable hiring decisions with those
for which NAVCOSSACT/NARDAC could properly be
held liable, certain of the plaintiffs’ statistical analyses hold
the potential for some distortion concerning the adverse im-
pact of the appellants’ post-1972 promotion policies. How-
ever, it is clear that the plaintiffs did not rely solely on data
regarding nonactionable hiring decisions; indeed, there is
no doubt whatsoever that the plaintiffs’ statistical analyses
included a substantial amount of data concerning post-1972
employment decisions affecting class members. For these
reasons, we do not believe that “failure to factor out time-
barred discrimination discredited the analyses. Statistics
tuned to the proper time period are more probative than
statistics not so tuned, but categorical rejection of the lat-
ter is not warranted.” Valentino v. United States Postal
Service, 674 F.2d at 71 n.26. The approach to statistics
adopted by the Supreme Court in Hazelwood, 433 U.S. at
309-10, and International Brotherhood of Teamsters v.
United States, 431 U.S. at 360, plainly suggests that statis-
tics including time-barred decisions are “sufficient to sup-
port a prima facie case and shift the burden to the defend-
ant to show that its actions during the relevant period
rebut the inference of discrimination raised by the plain-
tiff’s broad summary.” Movement for Opportunity &
Equality v. General Motors Corp., 622 F.2d 1235, 1258 (7th
Cir. 1980).%?
12 See EEOC v. American Nat'l Bank, 652 F.2d at 1188, 1194-95;
B. SCHLEI & P. GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 326-27
(Supp. 1979). But see EEOC v. United Va. Bank/Seaboard Nat'l, 615
F.2d 147, 150-51 (4th Cir. 1980.)
17a
Although the appellants did attempt to make such a
showing, the trial court found their statistical evidence de-
fective on other grounds. We can find no basis upon which
to overturn Judge Greene’s findings on this point. There-
fore, we agree that the appellants’ evidence was incapable
of raising a genuine issue concerning the validity of the in-
ference of discrimination raised by the plaintiffs’ statistical
presentation. As a result, NAVCOSSACT/NARDAC was
left with only an unquantified theoretical objection that
could not undermine the prima facie case. See II Jt. App.
743-44.
3. Relevant Employer
The appellants’ final objection to the sufficiency of the
prima facie case is that the plaintiffs’ statistics attribute to
NAVCOSSACT/NARDAC responsibility for the employ-
ment decisions of other agencies over which it had no con-
trol. Undisputed trial testimony reveals, they claim, that
initial grade placements were made by either the CSC or
the OPM or by employing agencies that were not made de-
fendants in this case. As we read the record, the District
Court’s conclusion that NAVCOSSACT/NARDAC [“did”]
not make a convincing showing that it had no control over
initial grade determinations,” Trout, 517 F. Supp. at 880,
was clearly erroneous. The rebuttal evidence submitted by
the defendants at trial was sufficient to raise a genuine is-
sue concerning their responsibility for initial placement de-
cisions, and the plaintiffs made no attempt to counter this
evidence. We conclude, therefore, that the Disrict Court
erred in holding that the class was entitled to relief for dis-
criminatory initial placements.
This does not mean, however, that the plaintiffs’ statis-
tics could not make out a legally sufficient prima facie case
of discrimination in promotions. Because NAVCOSS-
ACT/NARDAC did not quantify the extent to which the
disparity between men and women revealed by the plain-
tiffs’ statistics was attributable to the locked-in effects of
nonactionable discrimination, see, e.g., IV Jt. App. 1829,
the plaintiffs’ statistical analyses created a justifiable infer-
ence that the defendants had “failed to promote equitably
18a
individuals who were discriminated against at hiring,”
Trout, 517 F. Supp. at 885, or had slowed the progress of
women who had initially been properly placed.
C. The Rebuttal Evidence
NAVCOSSACT/NARDAC attempted to bolster its ob-
jections to the plaintiffs’ statistical evidence by introducing
several statistical studies of its own at trial and by prof-
fering additional analyses at the relief and reconsideration
stages. The District Court, however, found the former
studies unpersuasive for a variety of reasons and refused to
consider the latter as untimely tendered. The appellants
object to both of these decisions.
1. The Evidence Offered at Trial
The evidence introduced at trial in opposition to the
plaintiffs’ statistical studies consisted primarily of a “co-
hort” analysis (which examined the flow through NAV-
COSSACT/NARDAC’s promotional system of male and fe-
male employees with similar hiring dates who started at
the same grade level), a promotion study, and several re-
gression analyses. As we have already observed, the Dis-
trict Court’s decision to reject this evidence can be upset
only if clearly erroneous. See Medina v. Reinhardt, 686
F.2d at 1007; Payne v. Travenol Laboratories, Inc., 673
F.2d 798, 823 (5th Cir.), cert. denied, 103 S. Ct. 451 (1982).
Although the appellants characterize the reasons underly-
ing Judge Greene’s rejection of their studies as unproven
speculation, our review of the record has not left us with a
“definite and firm conviction that a mistake has been
committed.” United States v. United States Gypsum Co.,
333 U.S. at 395.
As the District Court observed, NAVCOSSACT/NAR-
DAC’s regression studies were, for the most part, not in-
troduced into evidence at trial. The defendants relied in-
stead on brief descriptions of the conclusions allegedly
supported by studies that were not in evidence. See, e.g.,
II Jt. App. 761. Judge Greene’s decision to assign little
weight to these studies, which, in any event, did not cor-
rect the specification errors allegedly afflicting the plain-
19a
tiffs’ regressions, was totally reasonable. The defendants’
promotion analysis, moreover, consisted solely of twenty-
three pages of statistics, see II Jt. App. 636-41, 719-35,
which, as far as we can tell, were never adequately ex-
plained at trial. Nothing in the record leads us to believe
that the District Court’s characterization of this study as
less persuasive than the plaintiffs’ regressions was clearly
erroneous,
The centerpiece of the defendants’ rebuttal presentation
was their cohort analysis. The experts who peformed this
study “divided ... [NAVCOSSACT/NARDAC’s] work
force into groups by the year in which the employees joined
the agency and the GS grade at which they entered” and
examined the “promotion experiences of each of these
groups or ‘cohorts’ over time ... to compare the relative
progress of men and women.” Trout, 517 F. Supp. at 884.
Having reviewed the record on this point, we cannot say
that Judge Greene’s ultimate conclusion that the cohort
analysis was less persuasive than the plaintiffs’ regressions
was clearly erroneous. As the defendants’ expert conceded
in another context, see IV Jt. App. 1874, the division of the
work force into extremely small segments made it unlikely
that this cohort study would detect sex-based disparities.
See Schmid v. Frosch, 680 F.2d 248, 249-50 & n.4 (D.C.
Cir. 1982) (per curiam); Woodard v. Lehman, 530 F. Supp.
139, 145 (D.S.C. 1982); Segar v. Civiletti, 508 F. Supp. at
698. The District Court could properly conclude, moreover,
that the exclusion of a substantial number of employees
from the cohort analysis reduced its probative force. And,
even though the defendants could not be held liable for dis-
criminatory initial grade placements, see Part II.B.3.
supra, the lack of verification of the critical assumption of
proper initial placements substantially reduced the persua-
sive appeal of the cohort study. See Trout, 517 F. Supp. at
885 & n.45; Segar, 508 F. Supp. at 698.
2. The Appellants’ Attempt to Retry the Case
The appellants’ objection to the District Court’s disposi-
tion of their motion for reconsideration is both meritless
and outrageous for what it suggests. At some point litiga-
20a
tion must come to an end, even though it is always possible
to offer more evidence. Notwithstanding NAVCOSS-
ACT/NARDAC’s contention that the new evidence might
alter the previous finding of class liability, the District
Court could properly conclude that the time for rebuttal
had come and gone. Although the court had inherent power
to reconsider its interlocutory orders concerning class-wide
liability, see Laffey v. Northwest Airlines, Inc., 642 F.2d
578, 583-84 (D.C. Cir. 1980), the critical question is wheth-
er there was good cause to do so. Absent a convincing
showing that the District Court’s answer to this question
constituted an abuse of discretion, we will not second-guess
its decision. Cf. GAF Corp. v. Transamerica Insurance
Co., 665 F.2d 364, 370-71 (D.C. Cir. 1981) (discussing Rule
60(b) motion for relief from judgment); Washington Mobili-
zation Committee v. Jefferson, 617 F.2d 848, 850 (D.C. Cir.
1980) (discussing Rule 59a) motion to reopen record).
The facts of this case afford no support for a suggestion
that the District Court abused its discretion in refusing to
reconsider the question of class-wide liability. As Judge
Greene properly concluded, the evidence on which the re-
quest for reconsideration was based could have been dis-
covered and presented at trial by a duly diligent defendant.
Cf. 6A J. MOORE, MOORE’S FEDERAL PRACTICE { 59.08{3}
(1982) (discussing motion for new trial). The defendants had
over seven years in which to collect evidence and prepare
their case, and they have offered no good reason whatsoev-
er to explain why their statistical analyses were not pro-
duced at trial. Even if these analyses might have adequate-
ly rebutted the plaintiffs’ prima facie case—an issue on
which our comments would be wholly gratuitous—the Dis-
trict Court plainly did not abuse its discretion in concluding
that it need not conduct another trial on the question of
liability.
We would add that we find it extremely troublesome-—in
light of the long and complex history of this litigation and in
light of Judge Greene’s patient and thoughtful treatment of
the case—that the appellants would even propose that the
trial court reopen and retry the matter. In the context of
this case setting, such an adversaria! tactic is irresponsible,
2la
insensitive to the extraordinary burdens faced by district
courts already overloaded with heavy dockets, and wasteful
of precious resources of litigants and the judiciary. Viewed
in this posture, we consider the appellants’ request for re-
consideration an affront to the judicial system.
D. The Clear and Convincing Evidence Standard
Once a class has established liability in a disparate treat-
ment case, “a discrete remedy phase begins. Any individual
ciass claimant may raise a presumption that he is entitled
to relief upon a prima facie showing of class membership.
The burden of proof then shifts to the employer to rebut
that presumption in each individual case.’’ Milton v.
Weinberger, No. 81-2200, slip op. at 8 (D.C. Cir. Oct. 26,
1982) (as modified, Dec. 20, 1982). This burden, the District
Court held, is quite substantial: After an individual employ-
ee lists the assignments or opportunities denied her or de-
scribes other ways in which she was victimized, an employ-
er must rebut the presumption of discrimination with “clear
and convincing evidence.” See Stewart v. General Motor
Corp., 542 F.2d 445, 453 (7th Cir. 1976), cert. denied, 433
U.S. 919 (1977); Baxter v. Savannah Sugar Refining
Corp., 495 F.2d 437, 444-45 (5th Cir.), cert. denied, 419
U.S. 1033 (1974).
Relying on International Brotherhood of Teamsters v.
United States, 431 U.S. at 360-62, and Texas Department
of Community Affairs v. Burdine, 450 U.S. at 254-56, the
appellants argue that the effect of a finding of class-wide
discrimination is identical to the effect of a prima facie case
in an individual suit. They claim, therefore, that they can
defeat individual class members’ entitlement to relief mere-
ly by advancing legitimate, nondiscriminatory reasons for
their employment decisions. As the appellants appeared to
recognize in the oral argument before this court, however,
their precise claim was recently considered and rejected in
McKenzie v. Sawyer, 684 F.2d at 76-78. We held in
McKenzie that the situation of an individual class member
after a showing of class-wide liability “is not analogous to
the situation of an individual plaintiff who has made out a
prima facie case of disparate treatment.” Jd. at 77. Because
22a
such class members are presumptively entitled to relief
upon showing that they were potential victims of the de-
fendants’ discriminatory practices, Teamsters, 431 U.S. at
362, the defendants must “rebut the plaintiffs’ individual
showings by clear and convincing evidence.” McKenzie, 684
F.2d at 78. Cf. Day v. Mathews, 530 F.2d 1083, 1085-86
(D.C. Cir. 1976) (per curiam) (individual case).
E. The Individual Claims
The appellants’ final challenges to the District Court’s de-
cisions concern its findings of discrimination against two in-
dividual plaintiffs, Marie Bach and Clara Perlingiero, and
the relief awarded to those individuals. We have found no
basis for challenging the District Court’s conclusion that ap-
pellee Bach was relieved of her responsibility for automatic
data processing security in March 1976 and May 1978 for
discriminatory reasons. When tested against the clearly er-
roneous standard, the court’s conclusions that questions
concerning her technical background were not the predomi-
nant reason for the personne! actions and that the reasons
given were mere pretext for discrimination are impreg-
nable.
When her responsibilities were removed, Bach was a
GS-13 security specialist; the duties that she had preformed
were transferred to males at the GS-14 and GS-15 levels in
1976 and to males at the GS-15 level in 1978. Apparently for
this reason, the District Court ordered her retroactively
promoted to GS-14 as of March 1976 and to GS-15 as of May
1978. We agree with the District Court that these reassign-
ments could constitute evidence that the defendants had
failed appropriately to classify Bach’s position. Trout v. Hi-
dalgo, No. 73-55, mem. op. at 10 n.12 (D.D.C. Oct. 20,
1981), reprinted in I Jt. App. 16, 25. We believe, however,
that further consideration of the propriety of the retroac-
tive proinotions is necessary because it is not clear that
Bach was ever denied a promotion to GS-14 or GS-15 and
the males who assumed her duties may have had additional
responsibilities that justified their higher classifications.
We have found no basis for upsetting the District Court’s
conclusions that “the various actions taken against
23a
[Perlingiero] were based on sex discrimination and on retal-
iation, as distinguished from objective efficiency-related
factors,” Trout, 517 F. Supp. at 891, and that she should be
awarded a retroactive promotion to GS-14. The promotion
to GS-13 made effective September 1, 1971 poses a more
troubling question. This award was improper, the appel-
lants argue, because Perlingiero had no administrative
complaint pending on March 24, 1972, the effective date of
Title VII. Although the record suggests that Perlingiero
may have withdrawn a complaint filed on September 1,
1971 in response to promises that her grievance would be
remedied, the District Court made no finding to that effect,
and we are thus unable to discern the rationale underlying
its retroactive promotion to GS-13.
III. CONCLUSION
For the reasons set forth above, we affirm in part, re-
verse in part, and vacate and remand in part. The District
Court’s findings of class-wide discrimination in promotions
and discrimination against Bach and Perlingiero are af-
firmed, as is its decision impoSing the clear and convincing
standard of proof in individual relief hearings. The court’s
imposition of liability for discrimination in initial grade
placements is reversed, and its awards of retroactive pro-
motions to GS-14 and GS-15 and commensurate backpay to
Bach and a retroactive promotion to GS-13 and commensu-
rate backpay to Perlingiero are vacated and remanded. All
other elements of the individual relief are affirmed.
So Ordered.
24a
MACKINNON, Circuit Judge (dissenting in part and con-
curring in part).
I. STANDARD OF REVIEW
Claiming to differentiate between this court’s review of
“findings of fact” and “conclusions of law,” the opinion for
the court unnecessarily restricts its scrutiny of the trial
court’s decision. [Op. at 11] Denominating the trial court’s
findings of discrimination in the individual claims as pri-
marily “factual,” the court’s opinion essentially declines to
review these judgments.
Categorizing determinations by the district court as “fac-
tual” or “legal” in the context of an employment discrimina-
tion class action is not as simple as the court’s opinion
suggests. Other courts have recognized the appropriate
standard of review in such cases and their decisions, not
recognized by the court, in my opinion provide a more rea-
sonable guide to the appropriate review in these cases.
The Seventh Circuit, has acknowledged that
[t]he statement that discrimination exists for the pur-
poses of establishing liability under Title VII ... is as
much a conclusion of law as a finding of fact. A distine-
tion must be drawn between subsidiary facts to which
the “clearly erroneous” standard applies, and the ulti-
mate fact of discrimination necessary to trigger a stat-
utory ... violation....
United States v. City of Chicago, 529 F.2d 415, 425 (7th
Cir. 1977). In line with this pronouncement the court con-
tinued to an “independent examination” to determine
whether the alleged “employment practices as a matter of
law, were proscribed under Title VII....” Jd. See also,
Detroit Police Officers’ Association v. Young, 608 F.2d
671, 686 (6th Cir. 1979).
Categorizing determinations by the district court as “fac-
tual” and thereby insulating them from meaningful review
can be highly improper. The review employed in this dis-
sent is distinguishable from that employed in the opinion
for the court in two critical respects. First, while accepting
the district court’s factual deterzninations, I have teviewed
25a
the district court’s application of the relevant legal stand-
ards of proof. Second, I have reviewed the cistrict court’s
findings of fact in support of its judgment to be certain that
these findings have an evidentiary basis in the record.
Therefore, this analysis is premised upon a somewhat dif-
ferent standard of review then that employed in the opinion
for the court, supra.
II. CLASS CLAIMS
A. Liability for Initial Placement and Hiring
Plaintiffs alleged that defendant engaged in a pattern or
practice of discrimination against the class of women in nu-
merous respects—“hiring, performance evaluation, job as-
signment, promotion and award procedures.” The trial
court found the defendant liable for discrimination in hiring
and/or initial placement, as well as promotion. The district
court’s judgment with respect to liability for hiring and/or
initial placement should be vacated and remanded for dis-
missal, however, because these claims of the class were not
properly before the court. Neither of the class representa-
tives (Trout and Perlingiero) had standing to claim that
they were discriminated against with respect to initial hir-
ing and/or placement. Both of these women were hired well
before the effective date of Title VII;! neither named plain-
tiff ever administratively challenged her hiring or initial
placement;? and neither alleged in her complaint that she
was discriminated against with respect to hiring or initial
placement. Consequently, these named plaintiffs cannot
represent a class challenging the defendant’s hiring or ini-
tial placement practices; they do not share an injury with
the class they purport to represent. “To have standing to
sue as a class representative it is essential that a plaintiff
must be a part of that class, that is, he must possess the
1 In her complaint, plaintiff Trout states that she was bired in March
1967. Trout Complaint 47. Plaintiff Perlingiero states’that she was
hired in October 1967. Perlingiero Complaint 4 67.
? The filing of a “charge” » ‘th the Equal Employment Opportunity
Commission (EEOC) is a prerequisite to suit under Title VII. 42
U.S.C. § 2000e-16 (1976).
26a
same interest and suffer the same injury shared by all
members of the class he represents.” Schlesinger v. Re-
servists Committee to Stop the War, 418 U.S. 208, 216
(1974).
It is easy to understand how the district court came to
consider the hiring and initial placement issue, even though
it was not properly presented. The original complaints,
alleging individual and class discrimination, were filed in
1973. The theory of the case was that the defendnat had en-
gaged in a “pattern or practice” of discrimination. Even
though neither of the named plaintiffs alleged that they had
been discriminated against with respect to hiring or initial
placement, the class-aspects of their complaints asserted
that the defendant had pursued discriminatory hiring and
placement practices with respect to the class of women.*
On April 6, 1973, the district court conditionally certified
the class as consisting of “all past, present and future fe-
male professional technical employees of the defendant Na-
val Command System Support Activity.” The certification
order did not specify the issues for resolution.
During the 1960s and early 1970s, the “across the board”
theory of discrimination in the class action-employment dis-
crimination context was in vogue. This theory had its
origins in the Fifth Circuit,‘ and essentially permitted a
3 Count One of the Trout Complaint alleges:
34. There exists at NAVCOSSACT a continuing and pervasive
pattern of discrimination against women individually and as a
class with respect to the recruiting and hiring of professional
technical employees.
* The first “across the board” case which clearly held that a plaintiff
could represent a class challenging alleged discriminatory employment
practices to which he (individual plaintiff) had not actually been sub-
jected was Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122,
1124 (5th Cir. 1969).
The Johnson court's “across the board” approach was endorsed by
commentators, Developments in the Law—Employment Discrimina-.
tion and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev.
1109, 1218-22 (1971), and applied by trial courts, Mack v. General Elec-
tric Co., 329 F. Supp. 72, 73-76 (E.D. Pa. 1971); Wilson v. Monsanto
Co., 315 F. Supp. 977, 979 (E.D. La. 1970); and Bateman v. Retail
Credit Co., 320 F. Supp. 1115, 1116 (N.D. Ga. 1970).
27a
plaintiff who alleged individual discrimination because of a
particular employment practice to litigate class claims
which included allegations of other, different discriminato-
ry employment practices. Class claims which were broader
than those asserted by the named plaintiff were considered
a permissible “across the board” attack on the defendant’s
employment practices. Long v. Sapp, 502 F.2d 34, 40-43
(5th Cir. 1974); Huff v. N.D. Cass Company of Alabama,
485 F.2d 710, 714 (5th Cir. 1973); and Carr v. Conoco Plas-
tics, Inc., 423 F.2d 57, 62-66 (5th Cir.), cert. denied, 400
U.S. 951 (1970).
As jurisprudence on this subject developed, the “across
the board” approach was generally repudiated® and the Su-
preme Court cautioned courts that the typicality require-
ment of Rule 23 of the Federal Rules of Civil Procedure and
considerations of standing mandated that a named plaintiff
must share the same injury as the class he purports to rep-
resent. In East Texas Motor Freight System, Inc. v. Rod-
riguez, 431 U.S. 395 (1977), the Court held that plaintiffs
alleging discrimination in denial of transfer could not main-
tain a class action challenging hiring by the defendant-
Another Fifth Circuit case frequently cited as a forerunner in devel-
oping the “across the board” theory of class action-employment dis-
crimination is Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir.
1968). In Oatis, however, the named plaintiffs alleged that they had,
in fact, been injured by the same employment practices challenged by
the class. Judge Bell, writing for the court, endorsed allowing a
“board” attack against the defendant’s employment practices, but rec-
ognized that the “issues that may be raised by plaintiff in ... a class
action are those issues that he has standing to raise[,] i.e., the issues
as to which he is aggrieved. ...” Jd. at 499 (Emphasis added). Thus,
subsequent reliance upon Oatis for the proposition that in an “across
the board” attack a named-plaintiff may assert class claims based upon
injuries which he did not suffer is misplaced. The Oatis court recog-
nized that the issues raised in a class action must be identical to those
issues which the named plaintiff has standing to raise.
5 Courts of the Fifth Circuit continue to adhere to an “across the
board” theory of standing in class suits, and attempt to distinguish the
Court’s decision in East Texas Motor Freight System, Inc. v. Rodri-
guez, 431 U.S. 395 (1977). For a discussion of the Fifth Circuit’s adher-
ence to this theory, see Vuyanich v. Republic National Bank of Dallas,
505 F. Supp. 224, 234-37 (N.D. Tex. 1980).
28a
employer: The Court reversed the Fifth Circuit’s sua
sponte class certifiction and imposition of class-wide liabili-
ty, and held that these plaintiffs could not represent a class
whose alleged injury they did not share. Numerous subse-
quent decisions recognized and applied the principle an-
nounced in Rodriguez.* Named plaintiffs cannot represent
a class to litigate an issue which they themselves do not
have standing to pursue.
On June 18, 1979, the Trout class was “fully certified” by
the trial court. The conditional order of class certification
was redefined to specify the class as follows.
That the class is hereby determined to consist of all fe-
male professional technical employees employed by the
Naval Command System Support Activity or the Navy
Regional Data Automation Center at any time be-
tween June 6, 1972 and June 4, 1979.
Again, the court did not specify the scope of the class
issues, and does not appear to have re-evaluated the pro-
priety of these plaintiffs continuing to represent a class of
women challenging discrimination in hiring and/or initial
placement. However, by this date it was clear that a named
plaintiff could only litigate, on behalf of a class, claims
which she shared. Therefore, these plaintiffs could not liti-
gate claims of discrimination in hiring and/or initial promo-
tion on behalf of this class. As the Supreme Court “has re-
peatedly held, a class representative must be part of the
class and ‘possess the same interest and suffer the same in-
* Abron v. Black & Decker (U.S.) Inc., 654 F.2d 951 (4th Cir. 1981)
(district court improperly found class-wide liability for racial discrimi-
nation in “recruitment; job classification; hiring; assignment; promo-
tion; transfer; discipline; discharge; benefits; apprenticeship training
programs; compensation; terms, conditions and privileges of employ-
ment” when only claim presented by representative plaintiff was for
discrimination with regard to a specific, temporary transfer); DeGrace
v. Rumsfeld, 614 F.2d 796 (1st Cir. 1980) (plaintiff who did not claim
that he had been discriminated against in the hiring process and whose
“individual grievance—termination—did not implicate hiring proce-
dures” could not represent class alleging racially discriminatory hir-
ing); and Hill v. Western Elec. Co., Inc., 596 F.2d 99 (4th Cir. 1979)
(plaintiffs alleging racial discrimination in work assignments and pro-
motions cannot represent class challenging denial of employment).
29a \
jury’ as the class members. Schlesinger v. Reservists Com-
mittee to Stop the War, 418 U.S. 208, 216.” East Texas Mo-
tor Freight, supra, at 403. It is unquestioned that Trout
and Perlingiero were not members of the class of discrimi-
natees (applicants) they sought to represent. Therefore,
their class claims could not encompass allegations of dis-
crimination in hiring and/or initial placement.
That portion of the judgment against the defendant based
upon the finding of class-wide discrimination in hiring
and/or initial grade placement should therefore be vacated
and the district court directed to dismiss those class claims.
In addition, the district court’s improper consideration of
claims of class-wide hiring and initial placement discrimina-
tion, which functions were exercised by other agencies, so
permeated the trial court’s evaluation of the evidence pre-
sented that its judgment of liability for discrimination in
promotion cannot stand. As discussed infra, the promotion
claim should be remanded to the district court for retrial.
The sole issue for consideration, to which all proof must
then be relevant, would be whether the defendant discrimi-
nated against women as a class in promotions during the
relevant time period.
B. Promotion Claims—Proper Evaluation of this
Claim at Retrial
A fundamental problem with the conduct of this case in
the district court is that some basic tenants of employment
discrimination-class action case law were ignored. The trial
court appears to have confused the respective burdens of
proof, ultimately finding against the defendant because it
did not disprove the plaintiffs’ allegations. Such procedure
improperly allocates the burden of proof.”
7 In addition to not distinguishing between the respective burdens of
proof and production incumbent upon a plaintiff and defendant, it ap-
pears that the court in several instances did not properly scrutinize the
evidence.
This action was tried as a consolidated case, co:nprised of a class ac-
tion and five individual actions. The court recognized that
{t]he allegations made by these plaintiffs, and particularly those
of Ms. Trout, are at best confusing in that major and minor com-
~ Saet Copy
Sos ek = cet
30a
Two theories for proof of employment discrimination in
violation of Title VII have been recognized by the
Court—disparate treatment or disparate impact. /nterna-
tional Brotherhood of Teamsters v. United States, 431 U.S.
324, 335-36 n.15 (1977). In this case the plaintiff alleges that
the employer followed a “pattern or practice” of disparate
treatment of female employees that was discriminatory. To
prevail upon a disparate treatment claim, plaintiffs must
prove that a particular group (females) was regularly
treated in a discriminatory fashion, andsthat this treatment
was intentional—motive is essential.* Proof of disparate
treatment may be by statistics or by instances of individual
discrimination, or both.
In individual disparate treatment cases the Court has
established “stages” of proof which are intended to simplify
the factfinder’s analysis of the evidence presented. The
Court has emphasized thet these “stages” do not alter the
traditional burden of proof in a civil case.® A careful read-
ing of Texas Department of Community Affairs v.
Burdine, 450 U.S. 258 (1981) and its predecessors, high-
lights the conclusion that the Court was addressing the
method of proving discrimination in the case of an individ-
plaints are indiscriminately recited, sometimes without a clear
delineation of what is claimed to be sex discrimination or retalia-
tion and what is contended to be mere supporting data.
517 F. Supp. at 888 n.55.
This confusion in plaintiff's case was not completely unravelled by the
court, both as to the individual claims (discussed infra) and the class
claims. The court failed to distinguish between that statistical evidence
which tended to prove plaintiffs’ discriminatory hiring claims and that
which went to the promotion claims.
* In a “pattern or practice” case, the plaintiff must prove:
more than the mere occurrence of isolated or “accidental” or spo-
radiec discriminatory acts. [The plaintiff must) establish by a pre-
ponderance of the evidence that ... discrimination was the [em-
ployer’s| standard operating procedure—the regular rather than
the unusual practice.
Int’! Bhd. of Teamsters v. United States, 431 U.S. 324, 386 (1977)
(footaote omitted).
* “The ultimate burden of persuading the trier of fact that the de-
fendant intentionally discriminated against the plair.iff remains at all
times with the plaintiff.” Burdine, 450 U.S. at 253 (footnote omitted).
3la
ual plaintiff. The “stages” which the court described can-
not be mechanically applied to the case of class litigation of
alleged employment discrimination. This is the error of the
district court. (And the court’s opinion here) As recognized
in Vuyanich v. Republic National Bank of Dallas, 521 F.
Supp. 656 (N.D. Tex. 1981), proof of employment discrimi-
nation in the class action context differs from that offered
in the individual plaintiff case. The three “stages” applica-
ble in the trial of an individual plaintiff’s claim are merged
into two in class litigation: (1) The plaintiff initially proves
both a “prima facie” case and discrimination by a prepon-
derance of the evidence. (2) Then, the defendant’s proof
must cast sufficient doubt on the plaintiff’s proof (and sta-
tistics) “to cause the trier of fact to conclude that the plain-
tiff has not proved discrimination by a preponderance of the
evidence.” Jd. at 663.
The district court in Trout was so concerned with the al-
location of the “stages” of proof, focusing upon whether the
plaintiffs established a prima facie case and whether the
defendant rebutted that case, that it lost sight of the basic
principle that plaintiffs were ultimately required to prove
intentional discrimination by a preponderance of the evi-
dence. It is submitted that, based upon the evidence pre-
sented, the ultimate burden of proof was not met.
Statements in the opinion for the court suggest a recogni-
tion of the fact that establishing a prima facie case might
not always be the equivalent of proving discrimination by a
preponderance of the evidence. At p. 12 the opinion states
“while plaintiffs must demonstrate to the court’s satisfac-
tion that their statistical comparisons are meaningful, they
need not present a perfect statistical analysis at the prima
facie case stage.” (Emphasis added) This statement may
constitute a recognition that additional proof may be re-
quired at some later stage in order to prevail on the merits.
However, in this case, no additional proof was forthcom-
ing—and the “inference” of discrimination wnich the dis-
trict court drew from the plaintiffs’ statistics became suffi-
ciently probative for plaintiffs to prevail upon their claim of
discrimination by a preponderance of the evidence. Upon
examining the plaintiffs’ evidence, I cannot agree that the
32a
evidence which was sufficient to establish a prima facie
showing was also sufficient to establish liability.
The only “facts” supporting the plaintiffs’ claim were that
(1) as undisputed, “the average salary for female employees
at NARDAC has throughout the relevant period been con-
siderabiy lower than that of males,” 517 F. Supp. at 878; (2)
that women were generally over-represented at the lower
grade positions, id.; and (3) that the salary differential
could only be accounted for by reference to the gender of
the employee, id. at 879. Plaintiffs did not establish wheth-
er these facts were due to discrimination in hiring and ini-
tial placement (women being consistently hired only at the
lower levels); or althrough hired properly, women were not
being promoted as equitably as men; or whether because of
a low rate of turnover, the effects of pre-1972 discrimina-
tion in hiring and promotion have not been eliminated, even
though the defendant’s employment practices are now neu-
tral. Simply demonstrating that women earn less than men
in this division, and that the earnings differential may only
be explained by reference to gender, certainly suggests
that discrimination has occurred, or may be occurring. But
those facts do not, without more, prove discrimination in
hiring or promotion.
Having found that the plaintiffs’ statistics were sufficient
to establish a prima facie case, the district court placed an
improper burden upon the defendant to “rebut” such proof.
It was incumbent upon the defendant only to raise genuine
issues as to the sufficiency of the plaintiffs’ evidence.?®
1° Discussing the burden which falls upon an employer to respond to
the plaintiff's prima facie proof in the class action context, the Su-
preme Court has explained:
The burden then shifts to the employer to defeat the prima facie
showing of a pattern or practice by demonstrating that the
{plaintiff's} proof is either inaccurate or insignificant.
Teamsters, supra, at 360 (Emphasis added).
The opinion for the court suggests that the defendant failed to meet
the plaintiffs’ prima facie showing because it failed to introduce an ac-
ceptable statistical showing which would prove discrimination was not
ercurring. While the defendant was certainly free to introduce such
proof, I believe that such proof was not necessary; to require such
proof impermissibly burdens the defendant. As stated by the Court in
33a
Presentation of such evidence by defendant would then re-
turn the “scales to equipoise,” requiring the plaintiff to
prove discrimination in order to prevail. To require any
more proof from a defendant in response to the plaintiff's
prima facie showing impermissibly shifts the burden of
proof traditionally required in a civil case.
Contrary to the district court’s conclusion, the defendant
made three specific challenges to plaintiffs’ statistics which
raised a serious question as to the accuracy and/or suffi-
ciency of the plaintiffs’ proof. The defendant argued
1. that the statistics attributed responsibility to the
defendant for hiring and initial placements, such de-
cisions not being within the defendant’s control;
2. that the statistics included the effects of time-
barred acts; and
3. that the statistics did not take into account mini-
mum objective qualifications.
These challenges to the accuracy of the plaintiffs’ proof are
designed to “discredit the plaintiff’s statistics by demon-
strating flaws in the assumptions, data or analyses pre-
sented.” Vuyanich v. Republic National Bank of Dallas,
521 F. Supp. 656, 663 (N.D. Tex. 1981).
The opinion for the court concedes that the defendant
successfully challenged the plaintiffs’ proof of discrimina-
tion in hiring and initial placement, and yet this is not con-
sidered adequate to raise a “question” as to the sufficiency
of the plaintiffs’ statistics on the whole. The plaintiffs did
not differentiate between their statistical evidence which
tended to prove discrimination in hiring, and that which
tended to prove discrimination in promotion. Based upon
this lack of distinction, the defendant objected that the in-
ference of discrimination which was drawn from these sta-
tistics was not attributable to it, if such inference was
based upon alleged discriminatory hiring. The defendant’s
Teamsters, supra, the defendant need only clearly demonstrate inac-
curacies in the plaintiff's proof, which then requires the plaintiff to re-
spond and prove his case. A defendant may meet plaintiff's prima
facie showing by either presenting its own set of acceptable statistics
or by “other proof undermining plaintiff's claims.” Segar v. Civiletti,
508 F. Supp. 690, 712 (D.D.C. 1981).
34a
objection to plaintiffs’ statistics, based upon its denial of lia-
bility for hiring and/or initial placement decisiuns, did raise
a genuine issue as to the sufficiency of plaintiffs’ proof.
The government’s second challenge was that plaintiffs’
statistics included pre-1972 data and that, therefore, any
finding of discrimination based upon this data was not ac-
tionable."! The district court rejected this challenge stating
that although discrimination prior to 1972 is not directly ac-
tionable, “in some circumstances (evidence of such conduct)
can support the inference that such discrimination contin-
ued.” 517 F.2d at 880. Suggesting that this defendant had
discriminated prior to 1972, the court then stated that
“such discrimination before 1972, even if coupled with neu-
tral employment practices since then, produced actionable
continuing discriminatory eifects. ...”’ Jd. (Emphasis
added). This is an incorrect application of the law.
In Hazelwood School District v. United States, 433 U.S.
299 (1977), it was held that an employer who discriminated
before 1972, but who ceased uponm*enactment of the statute
would not have violated the Act if after 1972 all employ-
ment decisions were made in a non-discriminatory fashion.
Thus, if pre-Act practices produced discrimination, but dis-
crimination ceased in 1972, the employer would not be lia-
ble for the “frozen-in” effects of discrimination. In my opin-
ion the above-quoted statement by the district court to the
contrary is erroneous.
This error in applying the law is not harmless in the con-
text of this case. The government challenged the discrimi-
nation inferred from the plaintiffs’ statistics by asserting
that it was the result of pre-1972 practices. Therefore, it
was incumbent upon the plaintiffs to prove that the dis-
crimination suggested by their statistics was not due to
non-actionable pre-Act conduct. This challenge to the plain-
"In United Airlines, Inc. v. Evans, 431 U.S. 553 (1977), the Court
stated that while evidence of pre-Act violations by the employer might
be “relevant background evidence,” such acts were “merely ... unfor-
tunate event(s] in history which ha[ve] no present legal consequences.”
Id. at 558 (Emphasis added). Thus, this defendant's objection to the in-
clusion of pre-act practices in plaintiffs’ statistics was based upon
sound authority.
35a
tiffs’ statistics is valid and sufficient to raise a genuine issue
as to the accuracy of the plaintiffs’ statistical proof. The
district court should not have disregarded the defendant’s
argument. 517 F.2d 879-80.
Two of the three government challenges to the accuracy
of the plaintiffs’ statistics were valid.'* And yet, the dis-
trict court did not find this sufficient to raise a question re-
garding plaintiffs’ initial showing so as to require plaintiffs
to introduce additional, more accurate and refined proof.
Clearly the district court placed too great a burden of proof
on the defendant, and based its ultimate finding of liability
upon an insufficient showing by the plaintiffs. On a retrial
plaintiffs must fully satisfy their burden of proof.
III. INDIVIDUAL CLAIMS
A. Perlingvero
1. Denial of Promotion
This finding of liability for discriminatory denial of pro-
motion should be reversed because the plaintiff failed, as a
matter of law, to prove discrimination by a preponderance
of the evidence.
Even though on appeal, the government specifically chal-
lenged both the district court’s findings of ultimate liability
and its finding that plaintiff Perlingiero had successfully es-
tablished a prima facie case, without any analysis, the
court’s opinion “found no basis for upsetting the District
Court’s conclusions” on this issue. An examination of the
record reveals that the government’s challenge is
well-taken.
In this Circuit, to establish a prima facie case of discrim-
inatory refusal to promote, the plaintiff must
show that she belongs to a protected group, that she
was qualified for and applied for a promotion, that she
was considered for and denied the promotion, and that
other employees of similar qualifications who were not
members of the protected group were indeed pro-
12 T defer to the district court’s determination, upheld by the opinion
for the court, that plaintiffs’ statistical proxies adequately reflected
the minimum objective qualifications. Op. at 14-16.
be
36a
moted at the time the plaintiff’s request for promotion
was denied.
Bundy v. Jackson, 461 F.2d 934, 951 (D.C. Cir. 1981).
Herein, the district found that:
a new layer of three supervisory positions was estab-
lished at the GS-14 level; Ms. Perlingiero applied for
all three; and all of them were again given to white
males who were junior to her.
517 F. Supp. at 891.
This statement embodies the requisite elements of proof to
establish a prima facie claim of discrimination in promo-
tion.'%
“To meet a prima facie case, a defendant must present
with clarity and reasonable specificity a legitimate, nondis-
criminatory reason for the action it took.” Valentino v.
United States Postal Service, 675 F.2d 56, 63 (D.C. Cir.
13 Because they are not “clearly erroneous,” I defer to the district
judge’s factual findings which support the legal conclusion that a
prima facie case was established. However, I am compelled to note
that the plaintiff's evidence tending to establish a prima facie case
was minimal. The plaintiff did not clearly identify who received the
three promotions, and provided no evidence to support the court’s
finding that the individuals who were promoted were “junior to her.”
When asked how many promotions there had been in her code (unit)
the plaintiff testified:
there were four in my department, three of them went to white
males, one person in particular that I knew fairly well who was a
GS-9 in 1967 when I was a 12 was one of those promoted to a
GS-14.
Tr. at 252. (Emphasis added.)
The plaintiff also introduced a letter from the Department of Defense’s
Office of Personnel and Security (dated 30 November 1979) informing
her that she was not selected for the GS-334-14/15 position for which
she applied. The letter stated
you meet the qualifications required by this position, but you
were not rated among the “best qualified.”
I Jt. App. 324.
The foregoing is the only evidence cited by appellee, upon which the
court could have based its conclusion that Perlingiero was
discriminatorily denied promotion. Independent examination of the
record has failed to reveal any additional evidence to support the
court’s conclusion.
37a
1982). This “burden” on the defendant is not one of persua-
sion, but merely of “production.” The defendant need only
articulate a legitimate explanation for its choice; an employ-
er is not required to “persuade the court that it was actual-
ly motivated by the proffered reasons.” Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 254
(1981). (Emphasis added). The Supreme Court has empha-
sized the nature of this “burden” on the defendant by re-
minding courts that “[t]he ultimate burden of persuading
the trier of fact that the defendant intentionally discrimi-
nated against the plaintiff remains at all times with the
plaintiff.” Burdine, supra, at 253.
Without explicating the facts supportifig his conclusion,
the district judge simply found that the defendant failed to
rebut the plaintiff’s prima facie case. However, as a mat-
ter of law, the defendant clearly rebutted the inference of
discrimination by articulating a legitimate, nondiscrimina-
tory reason for this plaintiff’s nonpromotion. Testimony by
the defendant’s witness revealed that of the three positions
available, two were selected at one point in time, and an-
other selected later. The applicants for the positions were
evaluated by a “rating and ranking panel.” In both in-
stances, plaintiff Perlingiero’s name was not forwarded to
the selecting officer on the list of “best qualified” candi-
dates. Therefore, if she was discriminated against in this
promotion decision, it was by the “rating and ranking” pan-
el; testimony reveals, however, that each panel had wom-
en members.'* The defendant’s witness also explained why
Perlingiero was not qualified to be recommended by the
“rating and ranking” panel. The plaintiff offered no evi-
dence to contradict this testimony.
In light of the defendant’s explanation of the reasons for
Perlingiero’s non-promotion, and the showing that the
decision-making process was fair, the defendant, as a mat-
ter of law, successfully rebutted plaintiff’s prima facie
ease. To require the defendant to produce additional
‘# In fact, Ms. Trout, the plaintiff in a companion case, was a mem-
ber of the second “rating and ranking” panel which did not recommend
Ms. Periingiero for promotion.
28a
“proof” would contradict the Court’s requirement in
Burdine and alter the traditional burdens of proof.
Once the defendant meets the plaintiff’s prima facie
proof, the plaintiff has “the opportunity to demonstrate
that the proffered reason was not the true reason for the
employment decision.” Burdine, supra, at 256. The plain-
tiff must carry the “ultimate burden” of persuading the
court that “she has been the victim of intentional discrimi-
nation.” JJ. Plaintiffs offered no additional evidence to
demonstrate that the defendant’s explanation was merely
pretextual, or to prove actual discriminatory treatment in
this employment decision.
Reviewing all the evidence introduced by the plaintiff on
this issue, in my opinion it is insufficient to sustain the legal
conclusion that Perlingiero was intentionally discriminated
against when she was not promoted to the GS-14 position in
1979.
2. Additional Alleged Acts of Discrimination
In support of its finding of liability for discrimination
against Perlingicro the district court states that
[s]he was repeatedly passed over for promotion in fa-
vor of males, some of whom had inferior credentials or
were junior to her, and at least one of whom was clear-
ly preselected for the position.
This conclusion is clearly erroneous as there is no evidence
in the record to support it. In fact, the relevant evidence,
from the plaintiff herself, contradicts this conclusion.
On cross-examination the plaintiff was unable to identify
any promotions for which she had applied, with the excep-
tion of one in 1971 (prior to the effective date of Title VII)
and the GS-14 position in 1979, discussed supra. To be re-
peatedly “passed over” for promotion within the Civil Serv-
ice system one must have applied for a promotion.
For the foregoing reasons, the judgment in favor of
Perlingiero must be vacated. This analysis is guided by the
requirement that “as a matter of law” certain facts must be
proven to prevail upon a claim of employment discrimina-
tion. I am compelled to disagree with the trial judge’s judg-
ment of liability (and the court’s opinion affirming) because
39a
I cannot find evidentiary support in the record which clear-
ly establishes that plaintiff has proved the legal requisites
necessary to support her claim.
“B. Bach
Reviewing the record and the district court’s—findings
and conclusions on Bach's claim, I agree with the court’s
opinion affirming the judgment against the defendant.
CONCLUSION
In my view the court’s opinion in material respects
“glosses-over” serious problems with the judgment of the
district court. I thus dissent to the extent indicated above.
- , .
Pes
Pot
Be
Sad 7
40a
APPENDIX B
UNITED STATES DISTRICT COURT,
DISTRICT OF COLUMBIA.
April 16, 1981
Civ. A. Nos. 73-55, 76-315, 76-1206, 78-1098
YVONNE G. TROUT, ET AL., PLAINTIFFS,
v.
EDWARD HIDALGO, ET AL., DEFENDANTS.
CHARLENE HARDY, PLAINTIFF,
v.
EDWARD HIDALGO, ET AL., DEFENDANTS.
MARIE LOUISE BACH, ET AL., PLAINTIFFS,
v.
EDWARD HIDALGO, ET AL., DEFENDANTS.
YVONNE G. TROUT, PLAINTIFF,
v~,
EDWARD HIDALGO, ET AL., DEFENDANTS.
OPINION
HAROLD H. GREENE, District Judge.
These four consolidated cases raise individual and class
sex discrimination claims under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.
The defendants in all of these actions are officials of the De-
? Although plaintiff Bach, in Civil Action No. 76-1206, also asserts a
claim under the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. § 633a (1974), plaintiffs did not argue this claim in
their trial brief and the statistical evidence at trial was devoted exclu-
sively to sex discrimination. By order filed December 13, 1976, the
Court struck the claims for relief involving individual disciplinary
action.
4la
partment of the Navy and an agency of the Department of
the Navy formerly referred to as the Naval Command Sup-
port Activity (NAVCOSSACT) and, since March, 1977, as
the Navy Regional Data Automation Center (NARDAC).?
NAVCOSSACT was established in 1962 as the center of
Navy computer operations for national defense purposes.
The organization grew from about 250 employees in 1962 to
one employing over 1,000 individuals in the late 1960’s. By
the early 1970’s, however, lesser United States involve-
ment in foreign conflicts and fiscal restraints placed upon
the agency resulted in a reduction in the size of the organi-
zation, and consequently fewer high-grade employees were
authorized and fewer promotions occurred. In 1977, NAV-
COSSACT was dissolved in the course of a reorganization
of the Navy’s automated data processing activities (ADP),
and its personnel and resources were combined with per-
sonnel and resources of the Navy Material Command Sup-
port Activity, the Navy Accounting and Finance Center,
and the Naval District Washington, D.C., to form
NARDAC. NARDAC develops computer systems and doc-
uments for computer systems, trains personnel in the
operations of systems, and delivers the systems to user
organizations.
Plaintiffs Yvonne G. Trout and Clara Perlingiero, both
computer systems analysts, brought the first of the
currently-pending actions, Civil Action No. 73-55, and they
are also the representatives of the class previously condi-
tionally and now fully certified in that case consisting of “all
female professional technical employees employed by
{NAVCOSSACT] or [NARDAC] at any time between June
6, 1972, and June 4, 1979.” Trout is also the plaintiff in Civil
Action No. 78-1098, in which she alleges retaliatory actions
arising from her initia] claim. Charlene Hardy, the plaintiff
in Civil Action No. 76-315, is a retired computer program-
mer from NARDAC and a member of the designated class.
Marie Louise Bach, a NARDAC security manager, and
? For the sake of simplicity, both of these agencies as well as the
several individual defendants are generally hereinafter referred to as=———""""
NARDAC.
ok «J
42a
Joan Swann Creighton, director of the NARDAC Training
Department, are the plaintiffs in Civil Action No. 76-1206,
but they are not members of the class.
I
The class action aspects of this lawsuit involve an alleged
pattern and practice of sex discrimination in defendants’
hiring, performance evaluation, job assignment, promotion,
and award procedures. Their resolution revolves primarily
around the statistics submitted by the parties and the anal-
ysis of those statistics by the parties’ experts.* As might be
expected, the evidence adduced by plaintiffs in these areas
differs sharply from that advanced by defendants. More-
over, as will be explained below, neither analysis is wholly
free from defects or ambiguities. Some of these problems
are attributable to the underlying data (see note 4 infra)
while others are to a degree inherent in the various meth-
ods of analysis (see, e.g., 884 infra) which almost inevita-
bly required those performing them to make trade-offs in
terms of inclusiveness and specificity. On balance, how-
ever, for the reasons indicated below, the court finds plain-
tiffs’ statistical proof to be the more reliable.
That proof consists essentially of multiple regression
analyses of raw statistical data furnished to plaintiffs by de-
fendants in the course of discovery.* Multiple regression is
5 However, as discussed in Part IV infra, testimony concerning ac-
tual personnel practices was also adduced on the class action issues.
*The data used by both parties’ experts for statisticai analysis
consisted of a computer tape and a computer printout furnished to
plaintiffs by defendants in response to an interrogatory. The tape in-
cluded eighteen recent job actions taken with respect to each employee
from 1970 to 1979, as well as the employee's age, sex, date of entry in
federal service, date of hire by, and departure from, NARDAC, and
the prior employing agency. The printout included age, sex, education-
al level, date of entry in federal service, date of hire by NAVCOSS-
ACT, and all job actions between 1972 and 1977. These data, from
which all subsequent analyses were derived, were first requested by
plaintiffs on May $, 1980, five weeks before the trial began. Some of
the deficiencies in the parties’ statistical analysis can be traced directly
to certain gaps in these two sources of data. Had either party focused
its attention earlier on the critical role statistical analysis would play
43a
a statistical technique designed to estimate the effects of
several independent variables on a single dependent varia-
ble. Properly used in a case such as this, the methodology
provides the ability to determine how much influence fac-
tors such as sex, experience, and education each have had
on determining the value of a variable such as salary level.®
The analysis also enables an observer to cumulate effects of
the various factors so as to determine the degree to which
explanation of the dependent variable can be attributed to
the independent variables in combination.* Regression
analysis is well recognized by the literature and the courts
in Title VII litigation.’
Plaintiffs’ expert® began his analysis with the undisputed
fact that the average salary for female employees at
NARDAC has throughout the relevant period been consid-
erably lower than that of males. At the beginning of that
period, in 1972, women earned $2,700 less than men, that
is, 82 percent of the male salaries; at the end of the period,
in 1979, women earned $4,300 less than men, or 84 percent
of the male salaries. The salary differentials throughout
in the proof of this case, it might have been possible to obtain and ana-
lyze the personnel records themselves as a basis for more accurate
determinations.
5 See Fisher, Multiple Repression in Legal Proceedings, 80
Colum. L. Rev. 702, 721-25 (1980).
* The best measure of the degree of explanation of movement of the
dependent variable by the model is known as R?. A value for R? of 1.0
represents total explanation; zero indicates no explanation.
7 See, e.g., Presseisen v. Swarthmore College, 442 F.Supp. 593
(E.D.Pa.1977), aff'd, 582 F.2d 1275 (3rd Cir. 1978); Agarwal v. McKee
and Co., 16 E.P.D. 4 8301 (N.D.Cal.1977); Wade v. Mississippi Coop-
erative Extension Service, 528 F.2d 508, 514 (5th Cir. 1976); Penn-
sylvania v. Local 542, Operating Engineers, 469 F.Supp. 329, ly»
E.P.D. € 9028 (E.D.Pa.1978); Finkelstein, The Judicial Reception of
Multiple Regression Studies in Race and Sex Discrimination Cases, 80
Column.L.Rev. 737 (1980); Note, Beyond the Prima Facie Case in
Employment Discrimination Law: Statistical Proof and Rebuttal, 89
Harv.L. Rev. 387 (1975); Fisher, supra note 5.
*® Plaintiffs’ principal expert was Mahlon R. Straszheim, Ph.D., a -
professor of economics at the University of Maryland. .
® The relative decrease in the percentage gap when compared to the
increase in the dollar gap is accounted for by inflation.
~~
44a
this period reflect the relative concentration of women in
NARDAC in the lower civil service grade levels. During
that period, women constituted about 20 percent of the
NARDAC labor force. They were consistently overrepre-
sented in the lower grades, with their share varying be-
tween 21 and 50 percent for GS-7 through GS-11 and be-
tween 42 and 100 percent for GS-5, and they were with
equal consistency underrepresented in the upper grades,
where they occupied between 3 and 10 percent of the jobs
at GS-14 and above. In the middle positions there also was
a contrast, although it was less stark. Women held approxi-
mately 24 percent of the GS-12 positions, and about 10 per-
cent of the GS-13 positions.
With these salary differentials clearly established, plain-
tiffs’ expert sought to determine next, on a year-by-year
basis between 1972 and 1979,'° whether the disparity could
be accounted for by differences between men and women in
education and experience,'! or whether it was more likely
to be attributable to sex discrimination. To accomplish this
analysis, the expert witness specified for regression a line-
ar model which included dummy variables for level of edu-
cation,!? years of NARDAC service, years of other govern-
ment employment service, years of _ potential
nongovernment experience between date of receipt of last
educational degree and date of entry in federal service, and
sex.!® The dependent variable was salary.
1° No regression was run for 1978.
1! Experience and education were largely determinative of salary at
NARDAC. In 1972, for example, each year of service at the agency
tended to increase the salary level by $1,209, each year of service at
other federal agencies by $194, and each year of “nonfederal service”
by $152. Employ «s with graduate degrees tended to receive $3,788
more than those with no college experience.
12 The 1979 regression model did not include education variables be-
cause education data were unavailable. Plaintiffs’ expert reported that
this alternative specification altered the magnitude of the sex coeffi-
cient only slightly and did not change the statistical significance of the
coefficient.
18 For a discussion of the problems surrounding the accuracy of the
experience and education factors used by plaintiffs, see Part III infra.
sn Sal
ss
45a
When prior experience and education were thus taken
into account, female employees still received substantially
lower salaries than men, the yearly differential attributable
to sex ranging from $2,200 to $3,500.'* Since there never
was any suggestion by the government that factors other
than education or experience could legitimately account for
the differences,'® the Court would clearly have been jus-
tified, absent some explanation, to draw the conclusion that
equa!ly qualified female employees of NARDAC consistent-
ly received lower salaries on the average than male employ-
ees and, accordingly, that they had been the victims of im-
proper discrimination.
II
The government’s answer to plaintiffs’ statistical case
was two-fold. It argues initially that various defects in the
analysis renders its ultimate conclusions unreliable and
that, inasmuch as plaintiffs have the burden of proof, this
unreliability demands that judgment be entered against
14 Women received $2,271 less than men in 1972, $2,189 less in 19738,
$3,437 less in 1974, $2,547 less in 1975, $2,885 less in 1976, $3,106 less
in 1977, and $3,109 less in 1979. These differences in salaries were sta-
tistically significant at the .01 level, that is, they would be expected to
arise by chance less than one percent of the time if there were no dis-
crimination based on sex. In each regression, all of the other variables
showed up as significant at the .01 level, with the exception of the
dummy variables for college. The R*’s, representing the explanatory
fit of the model overall range from .42 to .64. Plaintiffs’ expert also
performed several variant regressions, including running of the 1979
model using a population of employees hired only since 1972, when Ti-
tle VII became applicable to federal employees; running of the 1979
model using subpopulations categorized by agency origin within
NARDAC; and running of data for both 1977 and 1979 using a logarith-
mic, rather than a linear, equation. Each of these variants produced
statistically significant results which were wholly consistent with those
of the basic model. The expert finally offered evidence to show that
women were treated less favorably than men in grade level placement
in hiring and promotion decisions. Because this evidence merely
amounted to a repetition of evidence already built into the regression
conclusions, and was substantially less probative than the regression
analysis, the Court has not considered it on an independent basis. _
15 See note 11 supra; but see also 879-881 infra.
46a
them. Additionally, the government presented statistical
evidence through its own experts, arguing that, even if
plaintiffs’ statistical analysis were deemed to constitute a
prima facie case, that case was adequately rebutted by the
government’s statistical findings. The Court considers each
of these arguments in turn.
The government’s objections to the reliability of plain-
tiffs’ statistically-based conclusions may be summarized as
follows. First, it is claimed that plaintiffs’ expert improper-
ly permitted pre-1972 statistical evidence and evidence of
other agencies’ actions to intrude into his analyses. In this
regard, defendants assert that the inclusion of individuals
hired before 1972 (when Title VII was not applicable to fed-
eral employees) and of individuals who transferred from
other federal agencies (whose salaries were presumably al-
ready predetermined) would inappropriately subject the
defendants to liability for actions that either were not legal-
ly cognizable when they occurred or were attributable to
agencies other than NARDAC. Second, defendants argue
that plaintiffs’ expert failed to include in his analysis sever-
al relevant factors and that for this reason the coefficient
suggesting discrimination was biased. And third, it is con-
tended that the experience factor used by plaintiffs’ expert,
who included as experience the entire period between com-
pletion of education and hiring by the government, reflects
not so much actual experience as merely age.
A. Defendants’ objection to the failure of plaintiffs’ ex-
pert to eliminate all pre-1972 data is not as persuasive as
might appear at first blush. Although discriminatory con-
duct which occurred solely prior to March 24, 1972, is not
directly actionable in Title VII suits against the federal
government,'* it has been recognized that evidence of such
conduct can
in some circumstances support the inference that such
discrimination continued, particularly where relevant
16 Hazelwood School District.v. United States, 433 U.S. 299, 97
S.Ct. 2736, 53 L.Ed.2d 768 (1977).
47a
aspects of the decision-making process had undergone
little change.'?
Between 1967 and 1972, NARDAC engaged in a number
of practices which unfairly discriminated or had the strong
potential to discriminate against women—among them the
conducting of evaluations of employees on a subjective ba-
sis by male supervisors;'® the failure to advertise promo-
tion opportunities; and the preselection of male employees
for higher level positions by male supervisors. It is likely
that such discrimination before 1972, even if coupled with
neutral employment practices since then, produced actiona-
ble continuing discriminatory effects after 1972, particular-
ly since Civil Service regulations patterned after the so-
called Whitten Amendment (5 C.F.R. § 300.602 (1968);
P.L. 253, 82d Cong., Ist Sess. (1951)), constraimed the
maximum allowable rate of grade promotion.’® Under these
17 Hazelwood, supra, 433 U.S. at 309 n.15, 97 S.Ct. at 2742 n.15.
For example, on that basis, if promotion decisions within the period of
legal responsibility indicate an adverse impact on a protected group,
but there is too small a sample within that period on which to base a
finding of statistical significance, the data for earlier periods may be
aggregated with the information for more recent periods. See
Finkelstein, supra note 7, at 746; Vera v. Bethlehem Steel Corp., 448
F.Supp. 610, 615 (M.D.Pa. 1978); Parson v. Kaiser Aluminum and
Chemical Corp., 575 F.2d 1374, 1385, rehearing denied, 583 F.2d 132
(5th Cir. 1978); Patterson v. Youngstown Sheet and Tube Co., 440
F.Supp. 409, 411-13 (N.D.Ind. 1977).
18 All of the department and division heads and other management
officials at NARDAC (with the exception of one black male) were
white males. Of the approximately 215 to 220 project leaders, only 6
were women. See Rowe v.General Motors Corp., 457 F.2d 348, 358-59
(5th Cir. 1972); Ste. Marie v. Eastern Railroad Ass'n, 458 F.Supp.
1147, 1162 (S.D.N.Y.1978); Neely v. Grenada, 438 F.Supp. 390, 407-08
(N.D.Miss.1977); Stastny v. Southern Bell Tel. & Tel. Co., 458
F.Supp. 314, 345-46 (W.D.N.C.1978); Kyriazi v. Western Electric Co.,
461 F.Supp. 894, 923 (D.N.J.1978).
1® The situation is analogous to the effect of racial discrimination by
labor unions that is succeeded by use of neutral seniority rules, or of
discriminatory voting registration practices followed by neutral, but
particularly arduous, requirements. In such cases, courts have not hes-
itated to hold that “freezing” the effects of prior discrimination is ac-
tionable. See, e.g., United States v. Jacksonville Terminal Co., 451
F.2d 418, 450-51 (5th Cir. 1971); Quarles v. Philip Morris, Inc., 279
48a
circumstances, it was appropriate for plaintiffs’ expert not
to exclude completely the effects of pre-1972 conditions.”°
With regard to defendants’ objection that plaintiffs in-
cluded employees who transferred from other agencies with
“predetermined grades and salaries,” NARDAC did not
make a convincing showing that it had no control over ini-
tial grade determinations.?! Although the agency was, of
course, entitled to attempt to demonstrate in its own statis-
ticel analysis that if grade placement decisions by other
agencies were excluded no vestige of discriminatory results
would remain, the Court could not appropriately dismiss
plaintiffs’ own analytical conclusion upon that basis. The
logical product of defendants’ theory would be a require-
ment that plaintiffs in Title VII cases must join as defend-
ants all government agencies from which any employees
ever transferred—a proposition which suggests that the
objection is not compelling.??
B. The other objections made by defendants to plaintiffs’
statistics essentially raise legal issues relating to the bur-
den of proof. Certainly, plaintiffs’ expert did not, in his
analysis, account for each of the factors that the govern-
ment suggests should have been considered. It is also true
that a model which incorporated additional potentially rele-
F.Supp. 505, 516 (E.D.Va.1968); United States v. Dogan, 314 F.2d
767, 772-73 (5th Cir. 1963).
20 No practical method of separating the effects of pre-1972 and
post-1972 discrimination in regression analysis was suggested by de-
fendants or is readily apparent. See Segar v. Civiletti, 508 F.Supp.
690, at 697 (D.D.C.1981). Plaintiffs did perform one regression includ-
ing solely employees hired after 1972 and found statistically significant
discrimination in salaries. That study, however, was not a suitable re-
placement for broader regressions, if only because its exclusion of
long-time employees precluded analysis of promotion practices in
higher grades.
21 See 885-886 infra, for a discussion of the issue regarding
NARDAC’s liability for initial grade determinations, which in signifi-
cant respect also applies to transferees.
22 A court recently dealt with the identical issue by assuming that,
in the absence of evidence to the contrary, transferor agencies and
transferee agencies discriminated equally. See Segar v. Civiletti,
supra, 508 F.Supp. at p. 699 n.4.
49a
vant factors (such as type or quality of education and expe-
rience) would form a more perfect foundation for determi-
nations regarding allegations of discrimination. However,
defendants have furnished no evidence that inclusion of the
missing variables or refinement of others would have al-
tered rejection of the hypothesis of no discrimination. In-
deed, they failed to offer any evidence indicating that type
of education and experience or quantity of experience per
age was distributed unequally among the women and men
in the NARDAC population.
To be sure, defendants did suggest that technical,
computer-related education and experience are not equally
distributed in the general population between men and
women,?* and they have also argued that women are more
likely than men to leave the labor force to raise children,
and, hence that on the average they possess less experience
per age than men. However, the generalities offered by lay
witnesses on these subjects are inadequate, by themselves,
to undermine plaintiffs’ analysis. Certainly, the Court
would not be justified in accepting mere sex stereotypes as
an adequate rebuttal. What was required in this circuin-
stance was substantial, expert supporting evidence keyed
to the population here involved, but such evidence was not
forthcoming. See Vuyanich v. Republic National Bank,
505 F. Supp. 224 (N.D.Tex. 1980).
C. Thus, the basic question is—have the plaintiffs satis-
fied their burden of proof by adducing the type of statistical
evidence that they did, or were they affirmatively and as
part of their own case required to do more?**
Under current law, a plaintiff has the burden of estab-
lishing a prima facie case of sex discrimination under Title
VII.** In class action litigation under that statute, statis-
*3 Census data were submitted in support of this proposition.
*4 In an ideal world, all of the necessary proof would be fully avail-
able, and the decision could then be said to be based on correctness to
a scientific and mathematical certainty. However, in an actual trial
context, the Court must, absent unusual circumstances, make its deci-
sion on the basis of what evidence has been presented.
*%8 Under McDonnell Douglas Corp. ». Green, 411 U.S. 792, 98 S.Ct.
1817, 36 L.Ed.2d 668 (1973), the plaintiff in » Title VII case has the
50a
tics often play an important role in both parties’ claims re-
garding the existence of discrimination.** Indeed, statistics
alone may suffice to establish a prima facie case.?7 As the
Supreme Court made it clear in Hazelwood School District
v. United States, supra, 433 U.S. at 307-08, 97 S.Ct. at
2741-42,
[w]here gross statistical disparties can be shown, they
alone may in a proper case constitute prima facie proof
of a pattern or practice of discrimination.”*
burden of establishing a prima facie case; the defendant may then re-
but the prima facie case by demonstrating legitimate business reasons
for the apparent discrimination, and olainttt may then attempt to
show that the reasons given amount to a pretext. See Texas Depart-
ment of Community Affairs v. Burdine, —. U.S. —_, 101 S.Ct.
1089, 67 L.Ed.2d 207 (1981).
26 See International Brotherhood of Teamsters v. United States, 431
U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977).
27 Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d
498 (1977); United States v. International Union of Elevator Con-
structors, Local No. 5, 538 F.2d 1012, 1015 n.6 (3rd Cir. 1976); Wetzel
v. Liberty Mutual Insurance Co., 508 F.2d 239, 259 (3rd Cir. 1975);
Davis v. Califano, 613 F.2d 957 (D.C. Cir. 1979).
2® Where racial or sex-based disparities are particularly gross, plain-
tiffs have often relied on mere percentage differentials between the
work force and the general population to base a claim of discrimination
(see B. Schlei and P. Grossman, Employment crimination Law,
332 nn.80-82 (1979 Supp.), although, as the Supreme Court pointed out
in Hazelwood, supra, 433 U.S. at 308 n. 13, 97 S.Ct. at 2742 n. 13,
such comparisons are only highly probative when skills required for
the job are ones “that many persons possess or can fairly readily ac-
quire.” Some courts have also allowed such data to be used for skilled
>=. bre
—S - 2
é
5la
As indicated, parties in complicated Title VII actions are
increasingly using multiple regression analysis, such as that
conducted in the instant case, to separate the phenomenon
of discrimination from a myriad of innocent interacting fac-
tors.2® While such analysis can assist significantly in mak-
ing the refined and sophisticated judgments required,*° it
would be erroneous to impose upon the party relying upon
this technique the burden of incorporating every conceiva-
ble refinement and disproving every contingency. As Pro-
fessor Finkelstein has pointed out,**
[iJn criticizing models it is possible to speculate end-
lessly that different data, forms of equation, or explan-
atory variables would yield significantly different and
superior results. Compelling definite calculations will
bring such easy speculation down to earth,*?
In the case at hand, plaintiffs used regression analysis to
attempt to eliminate such possible explanations for the sala-
2° “Multiple regression is well suited to [distinguish sex discrimina-
tion from differences in qualifications such as education and experi-
ence] fairly precisely. Moreover, without a multiple regression study it
is difficult to see how it could be decided. The raw comparison of aver-
age wages for women and for men may make one suspicious, but it can-
not tell one anything definite.” Fisher, supra note 5, at 721.
* The Court does not interpret Movement fur Opportunity v. Gen-
eral Motors Corp., 622 F.2d 1235 (7th Cir. 1980), which is heavily
relied upon by defendants, to the contrary. In that case, in which the
court found defendants’ work force “flow” statistics more probative on
the issue of discrimination than plaintiffs’ statistics, plaintiffs merely
compared work force percentages with potential work force composi-
tion figures and did not perform any regression analysis. On the basis
of that evidence, moreover, the court held that plaintiffs had made a
prima facie showing, albeit one that defendants adequately rebutted.
* Finkelstein, Regression Models in Administrative Proceedings, 86
Harv.L. Rev. 1442, 1466 (1973).
% Judge Robinson of this Court recently adopted this same position
in Segar v. Civiletti, supra, when he held, at p. 712, that
(w)hen a plaintiff submits accurate statistical data, and a defend-
ant alleges hat relevant variables are excluded, defendant
must qlitee seneth plaintiff's ey ce oe the
omitted factors or present other proof plaintiff's
52a
ry differentials as educational and experience factors. They
succeeded in doing so to a substantial extent. The govern-
ment argues, in essence, that because plaintiffs did not re-
fine the variables in their regression to an absolute degree,
they failed in meeting the required burden of proof. The
Court declines to impose upon Title VII plaintiffs so im-
practical a requirement.
This conclusion is especially compelling when, as here,
the deficiencies in plaintiffs’ statistical proof may to a sub-
stantial extent be attributed to the defendants. In the
course of discovery, plaintiffs requested NARDAC’s com-
puterized personnel records describing employees’ grade,
salary, promotion, training, job performance, education,
and prior employment experience, among other informa-
tion. Defendants replied that much of the information was
unavailable, and they furnished instead a coniputer tape
which provided only the data used by plaintiffs’ expert in
preparing his statistical analysis. To be sure, plaintiffs’ re-
quest was made relatively late in the history of this long-
pending litigation. Nevertheless, plaintiffs cannot legiti-
mately be faulted for gaps in their statistical analysis when
the information necessary to close those gaps was pos-
sessed only by defendants and was not furnished either to
plaintiffs or to the Court.**
D. Defendants rely to the contrary principally upon two
eases in which courts have criticized regression analyses.
In Agarwal v. McKee and Co., 16 E.P.D. 4 8301 (N.D.
Cal. 1977), the plaintiffs sought to support their claims of
racial discrimination with a multiple regression, but the
Court refused to credit the findings of discrimination, citing
that their failure to include variables representing types of
education and types of experience. In the view of that
court, regressions which aggregate individuals of all posi-
33 See Donnell v. General Motors Corp., 576 F.2d 1292, 1297 (8th
Cir. 1978); Dickerson v. United States Steel Corp., 439 F.Supp. 55, 80
n. 27 (E.D.Pa.1977), rev'd on other grounds, 582 F.2d 827 (8rd Cir.
1978). One clear purpose of discrimination law is to foree employers to
bring their employment processes into the open. See Note, Employ-
ment Testing: The Aftermath of Griggs v. Duke Power Company, 72
Col. L. Rev. 900, 908 (1972).
53a
tions, and which treat “all job positions as fungible, involv-
ing equal levels of knowledge, skill and responsibility” are
invalid. 16 E.P.D. at 5581. In the instant case, all members
of the class are professional technical employees with gen-
erally similar job skills, and it is not at all clear that the
Agarwal ruling would be pertinent here.** In any event,
the Court does not agree with the view that an aggregation
across job lines necessarily destroys the probative value of
regressions. Absent a demonstration that such an aggrega-
tion imports a bias into the conclusions, the methodology is
not inappropriate. Indeed, as is discussed in more detail be-
low, the technique is superior to methods which entail a
fragmentation into populations so small that statistical
analysis loses much of its power to find any discrimina-
tion.*5 To the extent that Agarwal may be read as sug-
gesting that type and quality of education and experience
must always be included in a valid statistical model pro-
posed by a Title VII plaintiff, it appears to be simply wrong
and has for that reason been justly criticized. In the words
of Professor Finkelstein,
The failure to code type or quality of prior experience
or education should more properly fall on the employer
than on the plaintiff, since such coding would be rele-
vant only to the extent the employer could demon-
*% A position similar to that taken by the court in Agarwal was also
expressed in a recent decision of Judge Gasch of this District. See
Valentino v. United States Postal Service, 511 F.Supp. 917 at 957
(D.D.C.1981). Defendants’ reliance upon that case in this context is
likewise misplaced, and for similar reasons. The class in that action in-
cluded “economists, computer experts, business managers, personnel-
ists, engineers. statisticians, lawyers, accountants, and secretaries.”
At p. 940. The instant case, of course, involves no such aggregation of
disparate occupations.
%* Defendants’ response to plaintiffs’ expert’s objection to the aggre-
gation by year only in defendants’ promotion analysis was that the
most accurate analysis would have been to disaggregate by each sepa-
rate promotion decision. See Defendants’ Post-Trial Brief Regarding
Statistics pp. 10-11 n. 4. Although defendants are correct that no inac-
curacies are introduced by such disaggregation, it is also true that no
comparative information is generated until individual cases are aggre-
gated. The cost of following defendants’ suggestion seems inordinately
high.
54a
strate that differences in type of education or prior
employment experience were vaiidly related to the re-
quirements of the job.**
In Presseisen v. Swarthmore College, 442 F. Supp. 593
(E.D.Pa. 1977), aff'd, 582 F.2d 1275 (3rd Cir. 1978), both
parties conducted sophisticated regression studies to but-
tress their contentions regarding the practice of sex dis-
crimination in faculty employment decisions. The court in
that case found that neither side had adequately supported
its own regression analysis, and in that posture it saw only
two basic alternatives: to ignore both sets of statistical
analysis or to consider both studies as if they suffered no
defects. After concluding that it did “not believe that the
statistics give rise to any inference whatsoever,” it held
that plaintiffs had not made out a prima facie case. That
conclusion, however, must be viewed in the peculiar con-
text in which it arose. The action was brought by faculty
members at a liberal arts college, and the court’s decision
necessarily was colored by the fact that it is difficult to
quantify and thus to incorporate into a regression analysis
such factors as scholarship, teaching ability, and the like,
which play a predominant role in employment decisions at
such an institution.*’ The instant case does not to the same
degree involve factors of such elusiveness. Moreover, de-
fendants here did not offer their own regressions to correct
the deficiencies they complained of in plaintiffs’ analysis.**
For the reasons stated, the Court rejects the various ob-
jections proffered by the government and it concludes that,
based upon the statistics, plaintiffs have established a
prima facie case of sex discrimination in initial grade place-
% Finkelstein, Judicial Reception, supra note 7, at p. 744. It may be
noted, too, that the court did not hold that the plaintiffs had failed to
meet their burden of proof but merely that they did not adequately re-
fute defendant’s presentation of legitimate nondiscriminatory reasons
for its conduct.
37 See also, Marimont v. Califano, 464 F.Supp. 1220, 1227 (D.D.C.
1979); Finkelstein, supra note 7, at p. 744.
%® See 886-887 infra, for a discussion of the regressions defendants
did conduct.
55a
ment and promotion against the class of professional techni-
cal women employed at NARDAC.
Ill
To rebut this prima facie case, the government, through
its experts,®® introduced its own statistical evidence. This
evidence, based essentially upon the same data as that used
by plaintiffs, consisted of a so-called cohort analysis and
various independent regressions.”
A. The cohort analysis examined the flow of male and fe-
male employees of the same grade level through
NARDAC’s premotional system. The experts divided the
work force into groups by the year in which the employees
joined the agency and the GS grade at which they entered.
The promotion experiences of each of these groups or “co-
horts” over time were examined to compare the relative
progress of men and women. On the basis of this analysis,
the government’s experts concluded that NARDAC’s pro-
motion system had not had any disportionately adverse im-
pact on female employees.
Although defendants’ statistics did support that conclu-
sion, several defects inherent in their use of the statistics
severely mitigate its force.*!
First and foremost, the-cohort analysis necessarily divid-
ed the population under examination into extremely small
segments or groups.*? As population size decreases, a dis-
3® Defendants’ experts were Peter Lewin, Ph.D., assistant professor
of economics, University of Texas at Dallas; and Robert R. Hill,
Ph.D., assistant professor, Texas A&M University.
“ Defendants also offered a promotion analysis to refute allegations
of discriminatory promotion practices. However, because this analysis
suffers from a number of the same defects that limit the probative
value of defendants’ other statistical analysis (such as excessive disag-
gregation and inability to reflect discrimination in hiring, see infra)
and is inherently less probative than regression analysis (see pp.
877-878, 882 supra), it does not significantly assist defendants.
*' In a similar situation, it has been said of cohort analysis (Segar v.
Civiletti, supra, at p. 712), that it “was irreparably flawed ... and is
devoid of probative value.”
“2 For example, many of the cohorts contain only two, three, or four
employees.
56a
parity must be increasingly large to be statistically signifi-
cant, for the division of observations into small groups nec-
essarily reduces the detectable level of significance. See Jn-
ternational Brotherhood of Teamsters v. United States,
supra, 431 U.S. at 340, 97 S.Ct. at 1856; Mayor of
Philadelphia v. Educational Equality League, 415 U.S.
605, 620-21, 94 S.Ct. 1323, 1333-34, 39 L.Ed.2d 630 (1974);
Beyond the Prima Facie Case in Employment Discrimina-
tion Law: Statistical Proof and Rebuttal, 89 Harv. L.Rev.
387, 417-18 (1975). The failure of the government’s analysis
to reject, in many instances, the hypothesis of
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.