# Petition — John F. Lehman, Jr., Secretary of the Navy v. Yvonne G. Trout > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0864%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1056 ## 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0864%3A1. Public record. Not legal advice.