Opposition — John F. Lehman, Jr., Secretary of the Navy v. Yvonne G. Trout

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~Supreme Court, U.S,

FILED

DEC 8 1908

No. 83-706

= STEVAS,

IN THE -

Supreme Court of the United States

OCTOBER TERM, 1983

JOHN F. LEHMAN, JR., SECRETARY OF THE NAVY, et al.,

Petitioners,

Vv.

YVONNE G. TROUT, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

BRADLEY G. MCDONALD |

JOHN F. KARL, JR.

McDONALD & KARL

1919 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 338-7800

JAMES L. LYONS

KELLOGG, WILLIAMS & LYONS

1919 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 785-8292

Attorneys for Respondents

WILson - Eres Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

oy | tonne n Ene Seam =

SUPMTFERNIINITE <ascinicceisnnskisssnessoninibnpemmonsiiceempatinaiatipn actin

A. Petitioners’ Mischaracterization of Regression

Evidence ................ a eee Ve uee Seger eee SAE FE Lr

B. Statistical Evidence Showing Post-1972 Dis-

crimination Ignored in Petitioners’ Statement....

C. Non-Statistical Evidence ......................---....-----0-s--

D. 1970-1974 Discrimination to Which Petitioners

OI is cic cnainienp sosechiln ccnp da eleghukadlinn Celta

Ba Se I osdrctiniassast cp deaciawboconaeconniaeueneanen

F. Motion for Reconsideration ..................................

Ni + 5 SRA aa Leen. REIS Ce Waser eePs DAE.”

I. Petitioners seek nothing more than an oppor-

tunity to relitigate factual issues decided by the

district court under the guise that the district

court misapplied the law regarding the burden

OE IE esi oie cin eee ms

II. This Court’s decision in Aikens does not require

vacating the court of appeals’ decision or sum-

mary reversal of the district court’s decisions....

III. The findings of the district court are amply sup-

ported by evidence of post-1972 discrimination

in petitioners’ employment decisions ..................

IV. The district court properly compared salaries and

careers of men and women, all of whom possessed

the relevant minimum objective qualifications...

V. The district court properly required petitioners

to prove nondiscrimination by “clear and con-

vincing evidence” at subsequent relief hearings..

eo ft 2 Sannin nee rmenenem mene mia eo) TEP)

APPENDIX A—Memorandum Order of the United

States District Court for the District

of Columbia, October i IE ccs atinlins

APPENDIX B—Memorandum Order of the United

States District Court for the District

of Columbia, March 10, 1982 __......

TABLE OF AUTHORITIES

CASES: Page

Addington v. Texas, 421 U.S. 418 (1979) ............. 18

Albemarle Paper Co. v. Moody, 422 U.S. 405

Sa fee RE I AR eee: + Le 4

Baxter v. Savannah Sugar Refining Corp., 495 F.2d

437 (5th Cir.), cert. denied, 419 U.S. 1033

I tas 18

Bolling v. Sharpe, 347 U.S. 497 (1954) ................. 13

Castaneda v. Partida, 430 U.S. 482 (1977)........ 4,11

DeMarco Vv. United States, 415 U.S. 449 (1974)... 8

Dothard vy. Rawlinson, 433 U.S. 321 (1977)........ 1l

EEOC v. American National Bank, 652 F.2d 1176

ce - esiuananingnasnon mcolaatinn 19

Hazelwood School District v. United States, 433

NR, Se ee ea ee 9, 13, 16, 17

Herman & MacLean v. Huddleston, 459 U.S. ——,

| eet CSE ae ene aero 18

International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977) ..................... 9, 10, 12, 17, 18

League of United Latin American Citizens v. City

of Salinas Fire Department, 654 F.2d 557 (9th

NG IR a iE aise lca aloe TB 18

McDonnell Douglas Corp. v. Green, 411 U.S. 792

ao SL RES a a SS Ne ie PE 9, 12,13

McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir.

i chemaes belie eadbennnds 18

Muntin v. State of California Parks and Recrea-

tion Department, 671 F.2d 360 (9th Cir. 1982).. 18

Nanty v. Barrows Co., 660 F.2d 1327 (9th Cir.

i aC CE RS ec APR Cae eee el 18

Pullman-Standard \ v. Swint, 465 U.S. ——, 102

4 | a ae See aera 8, 15

Sledge v. J.P. Stevens & Co., Inc., 585 F.2d 625

(4th Cir. 1978), cert. denied, 440 U.S. 981

(i978) .......- Piahiiediiaiipacanathciduoabedacng se dcente simdakiabdesipin 9,19

Stewart v. General Motors Corp., 542 F.2d 445

(7th Cir. 1976), cert. denied, 488 U.S. 919

SS a oe 18

Texas Department of Community Affairs v. Bur-

dine, 450 U.S. 248 (1981) ...........0.2...00000000.... 9, 11, 12, 18

iii

TABLE OF AUTHORITIES—Continurd

United States v. United States Gypsum Co., 333

i MI AAT: ccickceenictrnc actin Sondgecd esheets

United States Postal Service Board of Governors

v. Aikens, 460 U.S. ——, 103 S.Ct. 1478 (1983)..

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

ee eee re I Ste a a ee

TREATISES AND PERIODICALS:

D. Baldus, and J. Cole, Statistical Proof of Dis-

SN RUINS ch ei a

Finkelstein, The Judicial Reception of Multiple

Regression: Studies in Race and Sex Discrimi-

nation Cases, 80 Columbia Law Review 737

AES REO NA AS UE Sin | ne

Fisher, Multiple Regression in Legal Proceedings,

80 Columbia Law Review 702 (1980) 0.000000...

B.L. Schlei and P. Grossman, Employment Dis-

crimination Law (2nd ed. 1983) 00000.

STATUTES AND EXECUTIVE ORDERS:

Executive Order 9980 (1948) ........000.000ceececceeee

Executive Order 10,590 (1955) 000.

Executive Order 10,925 (1961) .....00000000 0.

Executive Order 11,246 (1964) 00000.

Executive Order 11,478 (1969) 0.000.

Public Law 89-554, 5 U.S.C. Section 7201 if MRS

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

No. 83-706

JOHN F. LEHMAN, JR., SECRETARY OF THE NAVY, et al.,

Petitioners,

Vv.

YVONNE G. TROUT, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

Respondents Yvonne G. Trout, et al., respectfully re-

quest that this Court deny the petition for a writ of

certiorari seeking review of the judgment of the United

States Court of Appeals for the District of Columbia

Circuit entered on March 11, 1983.

OPINIONS BELOW

In addition to the opinions cited by petitioners, the

opinion of the district court relating to relief proceedings

is reported at 31 F.E.P. Cases 281 and appears in Re-

‘spondents’ Appendix (‘‘Res. App.”) at la-13a. The

opinion of the district court denying petitioners’ motion

for reconsideration is reported at 28 F.E.P. Cases 658.

(Res. App. 14a-21a).

STATEMENT

Petitioners’ Statement (Pet. 2-8) fails to set forth

properly the evidence of discrimination considered by

the trial court. Further, petitioners’ Statement omits

certain material aspects of the proceedings below.

Respondents’ lawsuit alleging class-wide sex discrimi-

nation against NAVCOSSACT/NARDAC ', an agency of

the Department of the United States Navy, was tried

with three consolidated individual cases before United

States District Court Judge Harold H. Greene on June

16-27, 1980.2, Respondents charged petitioners with en-

gaging in a pattern and practice of sex discrimination in

hiring, performance evaluation, job assignment, promo-

tion and award procedures. (Pet. App. 42a). The liti-

gation was lengthy and complex. The district court heard

testimony from 42 witnesses and received into evidence

more than 7,500 pages of exhibits; the record on appeal

consists of five separate volumes, totaling 2,081 pages.

A. Petitioners’ Mischaracterization of Regression Evidence

Petitioners’ Statement mischaracterizes the regression

analyses used in this case. Petitioners’ suggestion

(Pet. 10) that the district court leaped from the fact

that women occupy lower pay grades than men to a find-

ing of discrimination ignores the salary regression anal-

yses that the district court used as part of the basis for

its opinion. Multiple regression techniques go far beyond

_.) The informal administrative charge of continuing pervasive sex

discrimination was filed on June 21, 1972. Respondents’ class action

was filed on January 10, 1973. (Petitioners Appendix (“Pet. App.’’)

4la).

2 The Petition for Writ of Certiorari relates to the class action

case only.

simple pay-grade comparisons. Statistical analyses of

personnel information were performed by experts for

both sides, using data furnished from agency records

during the course of discovery.” (Pet. App. 42a-45a).

Multiple regression analysis is “a statistical technique

designed to estimate the effects of several independ-

ent variables on a single dependent variable” and is

well-recognized by the courts in Title VII litigation.‘

Multiple regression analyses are particularly well suited

for comparing salaries paid to members of a protected

group to those paid to similarly qualified whites or males.

By including in the equation variables measuring qualifi-

cations, it is possible to estimate the effect of sex identity,

independent of the effects of these other factors. The dis-

trict court concluded that this methodology provides the

finder of fact with “the ability to determine how much in-

fluence factors such as sex, experience, and education each

have had on determining the value” of salary disparity

between men and women at NAVCOSSACT/NARDAC.

(Pet. App. 43a).

- Respondents’ multiple regression analyses revealed dif-

ferences based upon sex in the salaries of equally qual-

ified NAVCOSSACT/NARDAC female and male employ-

ees ranging between $2,000 and $3,000 for years 1972

through 1979. (Pet. App. 45 n.14). The district court

found that “these differences in salaries were statistically

5 Respondents’ expert was Mahlon R. Straszheim, Ph. D., a pro-

fessor of economics at the University of Maryland. Dr. Straszheim

has written widely on statistics and labor economics and has been

employed as a consultant on Title VII litigation by the U.S. Depart-

ment of Justice. (Joint Appendix (“JA”) 389-894, 1948-1946).

4 Fisher, Multiple Regression in Legal Proceedings, 80 Columbia

Law Review 702 (1980); Finkelstein, The Judicial Reception of

Multiple Regression: Studies in Race and Sex Discrimination

Cases, 80 Columbia Law Review 737 (1980); D. Baldus and J. Cole,

Statistical Proof of Discrimination (1980); B.L. Schlei and P.

Grossman, Employment Discrimination Law (2nd ed. 1983), pp.

1342-1343.

significant at the .01 level, that is, they would be expected

to arise by chance less than one percent of the time if

there were no discrimination based on sex.”* (Pet. App.

45 n.14).

B. Statistical Evidence Showing Post-1972 Discrimina-

tion Ignored in Petitioners’ Statement

Petitioners’ Statement ignores other statistical €vi-

dence showing sex discrimination occurring after 1972

presented by respondents upon which the district court

based its opinion. Respondents presented separate salary

regressions for those persons employed in 1979 who

were hired after 1972 as one means of demonstrating

the existence of post-1972 discrimination. The district

court noted that this evidence demonstrated statistically

significant salary differences between men and women

for persons hired after 1972, a finding which was con-

sistent with the evidence on salary differences for all

employees:

Plaintiffs’ expert also performed several variant re-

gressions, including running of the 1979 model using

a population of employees hired only since 1972,

when Title VII became applicable to federa] employ-

ees; running of the 1979 model using subpopulations

categorized by agency origin within NARDAC; and

running of data for both 1977 and 1979 using a

logarithmic, rather than a linear, equation. Each of

these variants produced statistically significant re-

sults which were wholly consistent with those of the

basic model.

(Pet. App. 45a n.14). (Emphasis added). This finding

alone directly refutes petitioners’ assertion that there

was no post-1972 discrimination.

5 This level of statistical significance exceeds the standard re-

quired by this Court. Castaneda v. Partida, 430 U.S. 482, 496-497

n.17 (1977). Albemarle Paper Co. v. Moody, 422 U.S. 405, 480

(1975).

Analysis of promotion data offered by respondents

showed women were treated less favorably than men, a

result regarded by the district court as a “repetition” of

evidence reflected in the regression findings. (Pet. App.

45a n.14). The salary regressions and the promotion

analysis provide direct evidence of discrimination after

1972.

C. Non-Statistical Evidence

Petitioners’ Statement also ignores the role of non-

statistical evidence in the findings of fact by the district

court. In addition to basing the finding of class dis-

crimination upon respondents’ statistical analyses, the

district court considered extensive non-statistical evi-

dence—which it found strengthened respondents’ claim

of discrimination. (Pet. App. 60a). In denying peti-

tioners’ motion for reconsideration, the district court ob-

served that the “decision on the class action did not rest

solely on statistics; there was also substantial testimony

by individuals who were discriminated against to sup-

port that decision.” (Res. App. 17a n.4).

This evidence included the testimony of numerous pres-

ent and former employees of NARDAC. (Pet. App. 42a,

n.3, 60a). These witnesses testified to the discriminatory

denial of promotion for supervisory positions to women,

routine assignment of women to lower-level positions,

and preselection of men for supervisory positions in vio-

lation of federal law. (Pet. App. 60a, n.49, n.50 and

n.51). All of the department and division heads at

NARDAC (with the exception of one black male) were

white males. Of approximately 215 to 220 project lead-

ers, only 6 were women. (Pet. App. 47a, n.18). Peti-

tioners’ own witnesses testified concerning agency prac-

tices of unlawful preselection and failure to post vacancy

announcements in violation of merit pigmotion regula-

tions. (Pet. App. 61a).

D. 1970-1974 Discrimination to Which Petitioners Stipulated

Additional facts supporting a finding of discrimina-

tion were contained in a statement of facts to which both

petitioners and respondents stipulated as a result of ex-

tensive pre-trial proceedings in 1974 and a lengthy com-

prehensive pretrial order (“PTO”). These stipulated

facts contained admissions of continuing, pervasive, and

unlawful discriminatory conduct which, standing alone,

are sufficient to support a finding of classwide discrimina-

tion. The Navy admitted that the entire management

structure engaged in unlawful hiring, promotion, and

technical evaluation procedures which favored males.

Persons were preselected for promotions, vacancies were

not advertised, and a secret technical evaluation system

was used to justify promotion of less qualified males.°

*The Navy admitted that for an extended period of time the

entire management structure engaged in unlawful hiring, promo-

tion, and technical evaluation practices, contrary to the merit prin-

ciples set forth in 5 C.F.R. § 335.108 et seq. (1972). PTO 8-10, 18-

18, 26-31. (JA 46-48, 51-56, 64-69). Highest management officials,

including the Commanding Officer, civilian Technical Director, Per-

sonnel Officer and Department Heads, were involved. PTO 6-40.

(JA 44-78). Merit promotion vacancy announcements were usually

not publicly posted.

In answers to interrogatories, the Technical Director of

NAVCOSSACT admitted that it was routine management proce-

dure at NAVCOSSACT to preselect employees for promotion prior

to publication of any vacancy announcement. Employees who ap-

plied for any publicized vacancies were not given any consideration

since the promotion decision had already been made. By his own

admission, the Technical Director would first ask the male depart-

ment heads “who they would support for promotions” and then

make promotion recommendations to the Commanding Officer who

would generally acquiesce. PTO 29. (JA 67).

Further, the Technical Director, with the concurrence of the

Commanding Officer of NAVCOSSACT, instituted an unlawful, se-

cret technical evaluation system that was used to justify promotion

of less qualified males. PTO 38-40. (JA 76-78). Male military and

civilian management at the agency routinely hired former military

E. Relief Order

On October 20, 1981, the district court issued a relief

order requiring each class member to file a proof of claim

showing her employment history, membership in the class

and claim for relief. (Res. App. 4a). After the employee

files a proof of claim, “the burden shifts to employer to

demonstrate by clear and convincing evidence that its

employment decisions with regard to that individual were

based on legitimate factors unrelated to the policy of

discrimination which has already been proved.” (Res.

App. 5a). The order further provides that “[{s]hould the

employer succeed in meeting this burden, the employee is

entitled to come back with evidence that such legitimate

factors were pretextual.” (Res. App. 5a).

F. Motion for Reconsideration

On October 30, 1981, petitioners filed a motion for

reconsideration on the grounds that “in the course of pre-

paring for the relief proceedings, defendants collected

evidence which required that the Court vacate its finding

of liability.” (Res. App. 15a). The district court denied

this motion as untimely because the evidence petitioners

sought to introduce “clearly should and could have been

presented while the trial was proceeding.” (Res. App.

16a). The district court also found that the proffered

evidence was “largely cumulative and would be unlikely

to produce a different result.” (Res. App. 16a). The dis-

trict court’s denial of petitioners’ motion for reconsidera-

tion was affirmed by the court of appeals. (Pet. App.

19a-21a).

officers with few professional qualifications as technical employees

and unlawfully promoted them over senior qualified female technical

employees. PTO 14-15. (JA 52-538).

ARGUMENT

I. Petitioners seek nothing more than an opportunity to

relitigate factual issues decided by the district court

under the guise that the district court misapplied the

law regarding the burden of proof.

Petitioners’ first question presented makes no challenge

to well-settled legal principles regarding burdens of proof

for finding discrimination in Title VII class actions or

the role of statistics in establishing or rebutting a prima

facie case of discrimination. Nor do petitioners suggest

that the opinion of the court of appeals is inconsistent

with the law in other circuits or that there are signifi-

cant differences in law among the circuits regarding the

proof required to establish that unlawful discrimination

exists. Accordingly, petitioners’ first question is not

worthy of certiorari on grounds either of unsettled law

or conflicts among the circuits.

Petitioners’ argument that the district court made a

legal error in interpreting voluminous statistical evi-

dence is in reality an argument of fact, rather than of

law. Complex statistical evidence on these questions was

extensively debated at trial by expert witnesses. The dis-

trict court’s findings were reviewed by the court of ap-

peals which concluded that these findings could not be

set aside under the “clearly erroneous” standard.’ In

short, petitioners’ first question seeks an opportunity to

relitigate complex factual contentions that have already

been extensively reviewed below. Petitioners simply

7™“(Flactfinding is the basic responsibility of district courts,

rather than appellate courts.” DeMarco v. United States, 415 U.S.

449, 450 n.* (1974) (per curiam). A district court’s findings of fact

may be set aside as “clearly erroneous” only when the reviewing

court is left with “a definite and firm conviction that a mistake has

been committed.” Pullman Standard v. Swint, 465 U.S. ——, 102

S.Ct. 1781, 1788 n.14 (1982), citing United States v. United States

Gypsum Co., 383 U.S. 364, 395 (1948).

disagree with the district court’s application of well-

settled legal principles to well-reasoned factual findings.

In a pattern-and-practice class action, the plaintiffs

must show by a preponderance of evidence that the de-

fendants discriminate against women as part of their

regular operating procedures. Hazelwood School District

v. United States, 433 U.S. 299, 307 (1977); Interna-

tional Brotherhood ef Teamsters v. United States, 431

U.S. 324, 336 (1977) ; McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

Initially, plaintiffs may make a prima facie case, which

entitles them to a presumption that defendants have dis-

criminated against the class, by introducing statistical

evidence from which the trier of fact can infer discrimi-

nation." Statistical evidence alone is sufficient to estab-

lish a prima facie case of discrimination. Hazelwood,

433 U.S. at 307-308. Under Teamsters, the defendant

can rebut the inference of discrimination created by the

plaintiffs’ statistics by showing that the statistics are

“inaccurate” or by demonstrating that the plaintiffs’ dis-

parities shown are statistically “insignificant” or that

equally or more appropriate statistical comparisons do

not demonstrate any significant disparity between the

salaries of similarly qualified men and women. Team-

sters v. United States, 431 U.S. at 338-340, 360 n.20;

Sledge v. J. P. Stevens & Co., Inc., 585 F.2d 625, 634-636

(4th Cir. 1978), cert. denied, 440 U.S. 981. If the de-

fendant cannot dispel the inference of the existence of

a pattern and practice of discrimination by attacking

plaintiffs’ statistical evidence, the court will infer that

all class members were victims of illegal discrimination.

Teamsters Vv. United States, 431 U.S. at 362.

§ What establishes a prima facie case varies from case to case

and is not a rigid formula to be applied without variation. Me-

Donnell Douglas Corp. v. Green, 411 U.S. at 802, n.18. The burden

of establishing a prima facie case is “not onerous.” Burdine v.

Texas Department of Community Affairs, 450 U.S. 248, 258 (1981).

The district court carefully applied these well-settled

iegal principles to voluminous evidence presented by lay

and expert witnesses on both sides. The district court

found that respondents’ multiple regression analyses, as

well as other statistical studies, had made a prima facie

showing of discrimination. The district court felt that

it was justified “absent some explanation, to draw the

conclusion that equally qualified female employees of

NARDAC consistently received lower salaries on average

than male employees, and accordingly, that they had been

the victims of improper discrimination.” (Pet. App.

45a).

The district court found petitioners’ attempt to rebut

respondents’ statistics to be deficient. “{D]efendants did

not choose to perform any regressions correcting the

specification errors which they claimed afflicted plain-

tiffs’ regressions.” ° (Pet. App. 58a). Further, petition-

ers chose not to introduce several of their regressions into

evidence. (Pet. App. 59a).

The district court also found that cohort analysis, the

principal statistical technique used by petitioners, was un-

sound in theory and defective in execution. Petitioners’

cohort analysis divided the data under examination into

such small sample groups as to render statistical analysis

meaningless and also failed to include many employees

of NAVCOSSACT/NARDAC. Thus, the district court

properly rejected petitioners’ statistical evidence.

* The district judge asked expert witness, Dr. Robert Hall, why

petitioners had not introduced a more refined regression analysis to

rebut respondents’ prima facie case. Dr. Hall replied that doing so

would be expensive. He continued by stating: “It was something

we talked about doing. We had access to the personnel files of the

agency and we could have gone into these personnel files, and if

they are adequate and I am not sure, if they do have adequate

information, we could have started building up a complex linear

model.” (JA 1921-1923).

The district court carefully considered the statistics

presented by petitioners apleoes 4 that these statistics

were not probative of the questi¢éa of discrimination.”

The district court specifically held:

[D]jefendants’ evidence has not “raise[d] a genuine

issue of fact as to whether [they] discriminated

against the plaintiff[s].” Texas Department of Com-

munity Affairs Vv. Burdine, supra, 450 U.S. at ——,

191 S.Ct. at 1091. Because defendants have failed to

produce evidence that would allow the Court to con-

clude that they did not unlawfully discriminate, the

Court, applying the burden-of-production rule articu-

lated by the Supreme Court in Burdine, finds that

defendants have not rebutted plaintiffs’ prima facie

case of discrimination.

(Pet. App. 59a). Petitioners simply failed to meet the

“evidentiary obligation” imposed by Burdine, 450 U.S.

at 258.

Petitioners’ suggestion that the district court failed

to focus on the ultimate question of discrimination is

specious. In sum, petitioners seek a writ of certiorari

based largely on statistical evidence presented by their

experts which the trial court rejected as insufficient to

raise a genuine issue of material fact as to the accuracy

of the picture painted by respondents’ statistics.

II. This Court’s decision in Aikens does not require vacat-

ing the court of appeals’ decision or summary reversal

of the district court’s decision.

Petitioners mistakenly seek to use United States Postal

Service Board of Governors v. Aikens, 460 U.S. ——, 103

S.Ct. 1478 (1983), to obtain an opportunity to relitigate

10 The facts here are similar to those found in Castaneda Vv.

Partida where the petitioner also introduced “practically no evi-

dence.” 430 U.S. at 498. See also Dothard v. Rawlinson, 433 U.S.

821, 331 (1977). As this Court noted in Burdine, the defendant

cannot meet its burden merely “by argument of counsel.” 450 U.S.

at 255 n.9. .

the facts of this case. (Pet. 13-14). The Aikens decision

did not redefine burdens of proof in Title VII cases but

simply reaffirms well-settled principles of law articulated

in Teamsters, McDonnell Douglas, and Burdine. The

Aikens opinion is silent on the use of statistics in Title VII -

class actions and does not discuss how lower courts should

interpret expert testimony regarding statistics. Accord-

ingly, Aikens provides no basis for a reinterpretation of

the statistical evidence in this case.

In Atkens, a black individual employed by the U.S.

Postal Service alleged individual racial discrimination

and presented evidence that he possessed the necessary

skills for a promotion that was given to a white. How-

ever, the district court ruled against Aikens on the basis

that he had not offered direct proof of discriminatory

intent. The court of appeals reversed, ruling that the dis-

trict court had erred when it forced respondent to sub-

mit direct evidence of discriminatory intent.

This Court agreed with the circuit court that:

As in any lawsuit, the plaintiff may prove his case

by direct or circumstantial evidence. The trier of

fact should consider al] the evidence, giving it what-

ever weight and credence it deserves. Thus, we

agree with the Court of Appeals that the District

Court should not have required Aikens to submit di-

rect evidence of discriminatory intent. See IJnter-

national Brotherhood of Teamsters v. United States,

431 U.S. 324, 358 n. 44 (1977) (“[T]he McDonnell

Douglas formula does not require direct proof of

discrimination.’’).

Aikens, 103 S.Ct. at 1481 n.3. This Court vacated the

reversal by the court of appeals only because it could not

be certain whether the district court’s mistaken view of the

law had influenced its findings regarding discrimination.

In this case, the court of appeals, after expressly con-

sidering petitioners’ arguments and reviewing the rec-

ord, found ample evidence of post-1972 discrimination.

(Pet. App. 16a). Thus, it is clear that Aikens is inap-

plicable to the facts of this case.

Petitioners’ contention that the lower courts committed

fundamental error in failing to focus on the question

of discrimination (Pet. 8-9) is entirely imaginary. The

lower courts followed well-settled principles of law re-

garding the burden of proof, reiterating the standards

articulated in McDonnell Douglas and Burdine. Citing

the standard in Burdine, the district court concluded that

the evidence supported the finding that petitioners had

discriminated against class members. (Pet. App. 59a).

The trial court never lost sight of the requirement that

respondents were required to carry the ultimate burden

of proving discrimination by a preponderance of evi-

dence. Petitioners simply failed to satisfy the burden

of production of evidence, as required by Burdine.

III. The findings of the district court are amply supported

by evidence of post-1972 discrimination in petitioners’

employment decisions.

Having failed to convince the district court that the

salary differences between men and women were not

caused by sex discrimination, petitioners seek to defend

the salary disparity between men and women with the

argument that all of the discrimination occurred in the

pre-1972 period.'' The gravamen of petitioners’ argu-

1 Just as a state employer was subject to the command of the

Fourteenth Amendment not to engage in purposeful discrimina-

tion, so also was the federal government subject to the command of

the Fifth Amendment not to discriminate. Hazelwood School Dis-

trict v. United States, 433 U.S. at 310, n.16; Bolling v. Sharpe, 347

U.S. 497, 499-500 (1954).

Even prior to the passage o’ the Equal Employment Opportunity

Act of 1972, Congress specifically provided for nondiscrimination in

ment is that because there is no independent evidence of

post-1972 discrimination, statistics which include pre-

1972 data may not properly be considered in determining

liability. This argument is incorrect.

Petitioners’ argument that respondents’ multiple re-

gression analysis include pre-1972 employment decisions

is based on a failure to understand the evidence at trial.

Respondents’ regression analyses included four varia-

bles—salary, education, experience and sex. No pre-1972

variables showing pre-Act salary relationships are in-

cluded in these regressions. Respondents’ regressions do

not imply any assumptions about the fairness of initial

grade, initial salary or any pre-1972 condition of employ-

ment because these variables are excluded. (J.A. 360-

382).

Regressions were performed for each of the years

1972 through 1979. These regressions explain differ-

ences in salary and rates of promotion between men and

women for each year from 1972 through 1979 and do not,

contrary to petitioners’ assertions, measure pre-1972

salary relationships.

Petitioners’ argument runs counter to the immense

factual record before the trial court. Respondents offered

probative evidence of post-1972 discrimination by ex-

amining salary disparities in 1979 only for those persons

entering NARDAC after 1972, which included more than

half of all persons employed in 1979. The district court

noted that these results Were wholly consistent with the

results of the basic model.

federal employment. Pub. L. 89-554, now codified at 5 U.S.C. Section

7201. Executive Orders 9980 (1948), 10,590 (1955), 10,925 (1961),

11,246 (1964) and 11,478 (1969) also assured the right of federal

employees to be free from discrimination prior to the passage of the

1972 Act.

Plaintiffs’ experts also performed several variant

regressions, including running of the 1979 model

using a population of employees hired only since

1972, when Title VII became applicable to federal

employees; running of the 1979 model using subpop-

ulations categorized by agency origin within

NARDAC; and running of data for both 1977 and

1979 using a logarithmic, rather than a linear, equa-

tion. Each of these variants produced statistically

significant results which were wholly consistent with

those of the basic model. (Emphasis added).

(Pet. App. 45a n.14). Petitioners’ assertion that there is

no evidence of post-1972 discrimination in the record (Pet.

3, n.2) is contradicted by the plain, unambiguous state-

ment of the district court. The court of appeals also re-

jected petitioners’ argument that the record contained no

evidence of post-1972 discrimination. The court stated:

“{T]here is no doubt whatsoever that the plaintiffs’ satis-

tical analysis included a substantial amount of data con-

cerning post-1972 employment decisions affecting class

members.” (Pet. App. 16). Thus, petitioners’ reliance on

Aikens is misplaced.

In light of extensive statistical and eyewitness testi-

mony supporting a finding of pattern and practice dis-

crimination against the class, “the record permits only

one resolution of the factual issue[s] in this lawsuit.”

Pullman-Standard vy. Swint, 102 S.Ct. at 1792. Where

the record contains ample evidence of post-1972 discrimi-

nation (‘including the stipulated facts in the pretrial

order) and where the district court found evidence of

post-1972 discrimination to be probative and where peti-

tioners failed to present sufficient evidence to even create

“a genuine issue of fact” on the issue of discrimination,

this Court should not grant certiorari to allow petition-

ers to relitigate facts already subjected to an intensive

review by the court of appeals.

IV. The district court properly compared salaries and

careers of men and women, all of whom possessed the

relevant minimum objective qualifications.

Neither petitioners nor respondents dispute the law

that when special qualifications are required to fill the

jobs at issue, the relevant statistical comparisons must be

among those who possess those qualifications. Hazelwood

School District v. United States, 433 U.S. at 308. Yet

petitioners seek to use Hazelwood to lead the Court into

a factual inquiry into the statistical evidence presented

at trial and into an esoteric debate over proxy variables

in multiple regression analysis. ‘Pet. 15). This inquiry

is unnecessary because the lower courts fully considered

petitioners’ claims.

The plaintiff class certified by the district court con-

sisted entirely of female technical professional employees,

all of whom performed computer-related tasks. (Pet.

App. 14a, 41a). Each class member has at least three

years of general experience. (Pet. App. 14a). Peti-

tioners’ decisions to assign each class member to a tech-

nical or professional position is an admission that each

has the minimum objective qualifications for holding her

job.”

The court of appeals rejected petitioners’ claim that

respondents’ statistics did not account for minimum ob-

jective qualifications, noting that respondents’ statistics

were based on a homogeneous class of occupations. (Pet.

App. 12a-14a). The requirement of measuring minimum

objective qualifications when data from diverse occupa-

tional groups is pooled, as in Valentino v. United States

Postal Service, 674 F.2d 56 (D.C. Cir. 1982), is not pres-

ent in the instant case. In fact, the district court’s opin-

ion in Trout was specifically approved in Valentino. 674

F.2d at 68, 70, 71 n.26.

12 Petitioners never raised this issue at trial and there is no evi-

dence in the record to suggest that any class member lacks the

minimum objective qualifications for her job.

In sum, the Hazelwood requirements were met by the

class definition and were built into the multiple regres-

sion analyses that form one of the bases for the trial

court’s finding of liability.”

V. The district court properly required petitioners to

prove nondiscrimination by “clear and convincing evi-

dence” at subsequent relief hearings.

Following this Court’s analysis in International Broth-

erhood of Teamsters, 431 U.S. at 361-362, the district

court held that the force of proof of a policy of discrimi-

nation “does not dissipate at the remedial stage.” (Res.

App. 4a). The “finding of discrimination with regard to

the class affords the members of the class a presumptive

entitlement to relief.” (Res. App. 4a). The district court

also ruled that once the individual class member meets

her initial burden of coming forward with a proof of

claim,"* the burden of proof shifts to the employer to

“demonstrate by clear and convincing evidence that the

employment decisions with regard to that individual were

based on legitimate factors unrelated to the policy of dis-

crimination which has already been proved.” (Res. App.

5a).

18 Judge MacKinnon in dissent also rejected petitioners’ argu-

ment that respondents’ statistics should specifically account for the

minimum objective qualifications of each class member for each job.

Judge MacKinnon “defer[red| to the district court’s determination,

upheld by the opinion for the court, that plaintiffs’ statistical

proxies adequately reflected the minimum objective qualifications.”

(Pet. App. 35a, n.12).

1 At the relief stage, each class member wil! be required to sub-

mit a proof of claim showing her employment history, membership

in the class, and claim for relief. Petitioners will then have an op-

portunity to show that some members of the class fail to meet

qualifications for specific promotions, thus eliminating any possi-

bility that a particular class member may gain unfair advantage.

(Res. App. 5a-8a).

The court of appeals affirmed the decision placing on

petitioners an affirmative burden of proving an absence

of discrimination by “clear and convincing evidence.”

(Pet. App. 2la-22a). The court relied on its opinion in

McKenzie v. Sawyer, 684 F.2d 62, 77-78 (D.C. Cir.

1982), which provides that a finding of class liability re-

quires defendants, as proven discriminators, to carry a

heavier burden of proof in subsequent relief hearings.

(Pet. App. 2la-22a).

The “clear and convincing evidence” standard’ flows

logically from this Court’s decision in Teamsters v. United

States, 431 U.S. at 361-362. This Court has often “re-

quired proof by clear and convincing evidence where par-

ticularly important interests or rights are at stake.”

Herman & MacLean v. Huddleston, 459 U.S. ——, 103

S.Ct. 683, 691 (1983). A preponderance of evidence stand-

ard is appropriate only where both parties should “share

the risk of error in roughly equal fashion.” Jd. 103 S.Ct.

at 692, citing Addington v. Texas, 421 U.S. 418, 423

(1979).

The holding below of a “clear and convincing evidence”

standard is entirely consistent with the rulings of the

other courts of appeal that have considered this issue.”

E.g., Baxter v. Savannah Sugar Refining Corp., 495 F.2d

487, 444-445 (5th Cir.), cert. denied, 419 U.S. 1033

(1974). Stewart v. General Motors Corp., 542 F.2d 445,

453 (7th Cir. 1976), cert. denied, 433 U.S. 919 (1977).

15 The Ninth Circuit also imposes a heavier burden on defendants

at the relief stage of individual Title VII cases where the employer

has been found guilty of discrimination. Such proven discrimina-

tors are required to prove by “clear and convincing evidence” that

the victim of discrimination would not have been hired in the ab-

sence of discrimination. League of United Latin American Citizens

v. City of Salinas Fire Department, 654 F.2d 557, 559 (9th Cir.

1981); Nanty v. Barrows Co., 660 F.2d 1827, 1833-1334 (9th Cir.

1981) ; Muntin v. State of California Parks and Recreation Depart-

ment, 671 F.2d 360, 363 (9th Cir. 1982).

Petitioners assert that there is a conflict in the appel-

late courts, relying on dictum in Sledge v. J.P. Stevens &

Co., Inc., 585 F.2d at 637 and EEOC v. American National

Bank, 652 F.2d 1176, 1201 (4th Cir. 1981). But the issue

of the defendant’s burden of proof in relief hearings was

not presented in Sledge since plaintiffs’ claims had been

precluded prior to the relief hearings, and the court of

appeals gave no indication that it had considered and re-

fused to follow the rule established in all circuits that

have actually ruled on the question. The Fourth Circuit’s

brief statement in EEOC v. American National Bank re-

peating the dictum from Sledge is equally devoid of any

indication that that court is intentionally diverging from

the rule followed in other circuits. 652 F.2d at 1201. In

sum, there is no conflict in the circuits sufficient to war-

rant review in this Court.

CONCLUSION

For the foregoing reasons, the petition for writ of cer-

tiorari should be denied.

Respectfully submitted,

BRADLEY G. MCDONALD

JOHN F. KARL, JR.

McDONALD & KARL .

1919 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 338-7800

JAMES L. LYONS

KELLOGG, WILLIAMS & LYONS

1919 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 785-8292

Attorneys for Respondents

December 8, 1983

pry

r 4

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 73-0055

YVONNE G. TROUT, et al.,

Plaintiffs,

Vv.

EDWARD HIDALGO, et al.,

Defendants.

Civil Action No. 76-1206

MARIE LOUISE BACH, et ai.,

‘ Plaintiffs,

EDWARD HIDALGO, et al.,

Defendants.

| Filed Oct. 20, 1981)

MEMORANDUM ORDER

By its Opinion and Order of April 16, 1981 (as

amended on May 8 and May 26, 1981), this Court di-

rected the parties to submit memoranda concerning the

relief issues in these consolidated cases.' The Court held,

1 Originally four actions were consolidated for trial: Trout v.

Hidalgo, No. 78-0055; Hardy v. Hidalgo, No. 76-0815; Bach vy.

Hidalgo, No. 76-1206; and Trout v. Hidalgo, No. 78-1098. The

Court, in its Opinion and Order of April 16, 1981, dismissed Nos.

76-0815 and 78-1098, and the plaintiffs in those actions are not

entitled to relief. See n. 9, infra.

after a lengthy trial on the merits, that defendants vio-

lated Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et seg., by engaging in a

pattern and practice of sex discrimination with regard

to performance evaluation, job assignments, promotion,

and award procedures against a class of employees con-

sisting of all female professional technical employees em-

ployed by the Naval Command Support Activity

(NAVCOSSACT) or by the Navy Regional Data Auto-

mation Center (NARDAC) at any time between June 6,

1972 and June 4, 1979. Judgment was entered in favor

of the class, and also in favor of two individual plain-

tiffs with regard to their private Title VII claims.* This

memorandum concerns the kind of relief to which the

prevailing plaintiffs are entitled, and the procedures by

which that relief is to be determined.

Title VII authorizes a court to award backpay to a

plaintiff where the court has found that the employer

“has intentionally engaged in or is intentionally engaging

in an unlawful employment practice.” 42 U.S.C. § 2000e-

5(g). The Supreme Court has noted the “obvious con-

nection” between backpay and the objectives of Title VII,

and has concluded that “given a finding of unlawful dis-

crimination, backpay should be denied only for reasons

which, if applied generally, would not frustrate the cen-

tral statutory purposes of eradicating discrimination

throughout the economy and making persons whole for

injuries suffered through past discrimination.” Albemarle

Paper Co. v. Moody, 422 U.S. 405, 421 (1974). Defend-

ants have offered, and the Court can find, no reason why,

as a genera] proposition, backpay should be denied to the

plaintiffs in this case; although defendants have reserved

the right to appeal the Court’s holding of liability, they

2 One of these individual plaintiffs, Marie Bach, is not a member

of the class, while tne other, Clara Perlingiero, is a member.

do not appear to dispute its authority to award relief in

the form of backpay to individual class members should

liability be upheld. The issue before the Court, there-

fore, is not whether backpay is justified, but rather, the

manner in which backpay is to be awarded to individual

discriminatees.

This issue encompasses two conceptually distinct ques-

tions: first, who within the class is entitled to receive

backpay, and second, how are the amounts of the back-

pay awards to be calculated. Plaintiffs argue that both

of these questions can and should be answered through

application of multiple regression analyses* of the type

upon which plaintiffs’ experts relied at trial and which

the Court found sufficient to support liability. It is clear,

and plaintiffs appear to concede, that a classwide, statis-

tical approach to the question of backpay eligibility (as

opposed to the amount of the award) Would result in the

award of backpay to some class members whose ad-

vancement either has never been restrained or has been

impeded for reasons other than unlawful discrimination.

The statute provides, however, that

[nJo order of the court shall require . . . the pay-

ment to [an individual] of any packpay, if such in-

dividual . . . was refused employment or advance-

ment or was suspended or discharged for any reason

other than discrimination on account of race, color,

religion, sex, or national origin.

3 Multiple regression is

a statistical technique designed to estimate the effects of several

independent variables on a single dependent variable . . . [T]he

methodology provides the ability to determine how much influ-

ence factors such as sex, experience, and education each had

had on determining the value of a variable such as salary level.

Opinion of April 16, 1981, p. 4.

The analyses performed by pisintiffe’ experts showed that, taking

into account prior experience and education, female employees re-

ceived substantially lower salaries than male employees.

42 U.S.C. § 2000e-5(g); see also Day v. Matthews, 530

F.2d 1083, 1085 (D.C. Cir. 1976). Courts have uni-

formly held that after a pattern and practice of dis-

crimination by an employer against a class of employees

has been proved, the entitlement or eligibility of class

members to relief must be determined on an individ-

ualized basis, in order to assure that the employer’s de-

cisions with regard to particular class members were in-

deed discriminatorily based. See, e.g., International

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

357-59 (1977); Franks v. Bowman Transportation Co.,

Inc., 424- U.S. 747, 772 (1976); Mitchell v. Mid-

Continental Spring Co. of Kentucky, 588 F.2d 275 (6th

Cir. 1978) ; Wells v. Meyer’s Bakery, 561 F.2d 1268, 1274

(7th Cir. 1977); Stewart v. General Motors Corp., 542

F.2d 445, 452-53 (7th Cir. 1977); Pettway v. American

Cast Iron Pipe Co., 494 F.2d 211, 259 (5th Cir. 1974).

This does not mean, of course, that each member of

such a class must set out to prove a case of discrimina-

tion from scratch. After an employer’s policy of dis-

crimination has been proved, “the force of that proof

does not dissipate at the remedial stage.” Teamsters v.

United States, supra, 431 U.S. at 361. The finding of

discrimination with regard to the class affords to the

members of the class a presumptive entitlement to relief.

Teamsters v. United States, supra, 431 U.S. at 362;

Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d

at 259. But the law does place an initial burden on the

individual class member to come forward, give a history

of his employment with the defendant, and list the as-

signments or opportunities denied to him due to discrim-

ination. Stewart v. General Motors Corp., supra, 542

F.2d at 453; see also Teamsters v. United States, supra,

431 U.S. at 362; Pettway v. American Cast Iron Pipe

Co., supra, 494 F.2d at 259.4 Once this is done, however,

* Under the Teamsters case, a class member is not required to

show that he actually applied for an opening in order to qualify for

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

which has already been proved. Stewart v. General Mo-

tors Corp., supra, 542 F.2d at 453. Should the employer

succeed in meeting this burden, the employee is entitled

to come back with evidence that such legitimate factors

were pretextual. Teamsters v. United States, supra, 431

U.S. at 362 n.50.

Once it is determined on an individualized basis which

members of the class have in fact been harmed by unlaw-

ful discrimination and are accordingly entitled to back-

pay, class-wide procedures may be used for computation

of the amount of backpay to which these class members

are entitled. Such procedures have been held to be espe-

cially appropriate where the utilization of an individ-

ualized method of calculation would lead the court into

a “quagmire of hypothetical judgments” due to the “class

size or the ambiguity of promotion or hiring procedures

or the illegal practices continu[ing] over an extended

period of time.” Pettway v. American Cast Iron Pipe

Co., supra, 494 F.2d at 261; accord, Wells v. Meyer’s

Bakery, supra, 561 F.2d at 1274; Stewart v. General

Motors Corp., supra, 542 F.2d at 452; see also Kirby v.

Colony Furniture Co., Inc., 613 F.2d 696, 705-706 (8th

Cir. 1980). One class-wide method for computing back-

pay awards discussed approvingly by the Courts of Ap-

peals for the Fifth and Seventh Circuits is the “com-

patibility” or “representative employee earnings” for-

mula. Under such an approach

the presumptive entitlement to relief. “When a person’s desire for

a job is not translated into a formal application solely because of

his unwillingness to engage in a [futile] gesture, he is as much a

victim of discrimination as is he who goes through the motions of

submitting an application.” 431 U.S. at 365-66. Such a non-

applicant must show, however, that he would have applied had it

not been for the employer’s discriminatory practices. Jd.

Approximations are based on a group of employees,

not injured by the discrimination, comparable in

size, ability, and length of employment—such as ad-

jacent persons on the seniority list or the average job

progress of persons with similar seniority—to the

class of plaintiffs.

Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d

at 262; Stewart v. General Motors Corp., supra, 542

F.2d at 453; Bowe v. Colgate-Palmolive Co., 489 F.2d 896,

902 (7th Cir. 1973). The Court views plaintiffs’ recom-

mended class-wide approach to the computation of back-

pay—which “uses salary regressions to calculate the

earnings of men with years of experience equal to that

of each woman, and awards each woman the estimated

salary difference” "—as closely approximating a “com-

parability” approach as described above.

Applying these principles to the case at bar, the Court

will direct the following procedures to be implemented

for the determination of backpay awards. Plaintiffs’

counsel shall forthwith forward to all class members who

can be located a notice and claim form. This form should

request the following information: the individual’s em-

ployment history with NAVCOSSACT or NARDAC (in-

5 Plaintiffs’ Memorandum on Estimation of Relief, Appendix A,

p. 3.

Defendants strongly dispute the use of plaintiffs’ statistical tech-

niques in the relief phase, and claim them to be inaccurate and

misleading. They concede, however, that their present criticism

does not differ markedly from their attacks on plaintiffs’ statistical

analyses throughout the trial. Defendants’ Memorandum in Re-

sponse to Court's April 16, 1981 Opinion and Order, p. 8. The

Court found plaintiffs’ techniques to have sufficient validity to with-

stand these criticisms at trial, and defendants have proffered no

convincing arguments that would cause the Court to reconsider at

the present stage.

cluding the positions held by the employee, grade levels,

and salaries) ; employment decisions by defendants which

the employee claims were adverse to her, or opportunities

which the employee claims were denied to her for dis-

criminatory reasons; and any other information with

regard to the employee’s education or other qualifications

that she might choose to volunteer.* Any individual mem-

ber of the class who wishes to be considered for backpay

eligibility will be required to submit this completed form

to the Court no later than thirty days from the date of

this Memorandum.

With the submission of this completed form, a class

member will be deemed to have met her initial burden of

proof under the principles outlined above.’ The Court

will refer these individual claims either to a United

States Magistrate or to a Special Master (depending

upon the number of claims at issue) for the holding of

hearings at which defendants will be afforded the op-

portunity to show that the decisions made with regard to

each claimant were based on reasons other than unlaw-

ful discrimination, and each claimant will have the op-

portunity to rebut any such showing on the grounds of

® Defendants shall provide to the members of the class free access

to their personnel files to enable them to collect the necessary

information.

If a class member clai is to have been denied a promotion, assign-

ment, or other such opportunity but no record exists of an applica-

tion for such an opportunity, she should include specific and de-

tailed evidence, by way of affidavit or otherwise, that she would

have applied for the position or opportunity were it not for the

deterrent effect of defendants’ discriminatory practices and policies.

TIt is hoped by the Court that at this point the majority of the

claims will be settled through negotiations between the government

and the individual claimants through their counsel. For those

claims still outstanding, however, the remainder of the above pro-

cedures will be instituted.

pretext.’ See 42 U.S.C. § 2000e-5(f) (5); Rule 53, Fed-

eral Rules of Civil Procedure.

Where the Magistrate or Special Master finds defend-

ants unable to rebut the pre-umption in favor of a class

member’s entitlement to relief, he shall rely upon the

table contained in Appendix A and the Supplement to

Appendix A of Plaintiff’s Memorandum to calculate the

amount of backpay to which the class member is en-

titled. The backpay tables submitted by plaintiffs merit

further comment in two respects.

First, Tables A-2 and A-3 compute backpay awards

for a period from July 1, 1970 to June 30, 1972. An

award of backpay for that period would, in effect, aug-

ment the remedies made available to federal employees

by the 1972 amendments to the Civil Rights Act as inter-

preted by the Court of Appeals for this Circuit, which

has held that the remedies available to federal employees

under section 717(c) of the Equal Employment Opportu-

nities Act of 1972 (42 U.S.C. § 2000e-16(c), effective as

of March 24, 1972) apply to discrimination occurring be-

fore the effective date of the Act only where judicial or

administrative proceedings were pending as of that date.°

8 With regard to Yvonne Trout and Charlene Hardy—both of

whom are members of the class and both of whose private discrimi-

nation claims were denied—any submission of a notice and claim

form would be futile, since the government has already shown at

trial, and the Court has already found, that any adverse treatment

of them was supported by reasons apart from sex discrimination.

See Sledge v. J. P. Stevens & Co., Inc., 585 F.2d 625, 638 (4th Cir.

1978).

® Klapac v. McCormick, 640 F.2d 1361, 1366-67 (D.C. Cir. 1981) ;

Womack v. Lynn, 504 F.2d 267, 269 (D.C. Cir. 1974). But, as

stated by the Supreme Court in Hazelwood School District vy. United

States, 483 U.S. 299, 309 n.15),

This is not to say that evidence of pre-Act discrimination can

never have any probative force. Proof that an employer en-

gaged in racial discrimination prior to the effective date of

Since proceedings in this case were not begun until

after March 24, 1972, the Magistrate or Special Master

may not include in his final awards backpay relating to

employment before that date.

Second, the statistical methodology used by plaintiffs’

experts to compute backpay differs somewhat from that

approved by the Court as a basis for liability. The sta-

tistical analysis presented at trial, introduced to prove

that discrimination existed, relied upon linear equations,

whereas the regressions used by plaintiffs to approximate

the salary structure of men and women as a basis for

establishing backpay awards are based on logarithmic

equations. It is not entirely clear from the submissions

of the parties which of the two approaches would result

in the calculation of more equitable backpay awards.

Plaintiffs merely state that a logarithmic approach is

preferable because it provides larger awards to persons

at higher grades and more experience, consonant with the

evidence that promotion to the upper grades is the source

of the largest salary differential between men and women

employed by defendants; *® defendants merely assert that

plaintiffs are changing the form of their regression anal-

ysis in mid-stream only because it happens now to be to

their advantage.'' These arguments do not enable the

Title VII might in some circumstances support the inference

that such discrimination continued.

In the liability phase of the present action, the Court indeed took

into account the effects of pre-Act discrimination as they affected

post-Act salary differentials. Opinion of April 16, 1981, p. 8.

10 Plaintiffs’ Memorandum Addressing Relief, p. 16; Appendix A,

p. 3, 25.

11 Defendants’ Reply Memorandum, p. 14. Defendants have also

submitted their own regression analysis for relief purposes; but

since these regressions improperly take into account variables such

as starting grade, which are under the control of the discriminat-

ing employer, they must be rejected. See Opinion of April 16, 1981,

pp. 9, 17-18.

10a

Court at this time to resolve which of these two forms

would provide the better relief. For that reason, the

Court will refer the choice between these two forms of

regressions to the Magistrate or Master charged with

their application. He may hold further hearings or re-

quire further briefings by the parties to aid in his deter-

mination which of the two forms might result in the

more accurate approximation of the injury suffered by

the class of discriminatees.

III

Plaintiffs also ask for injunctive relief prohibiting dis-

crimination of the type practiced in the past by defend-

ants, and imposing upon them affirmative future goals

serving to reduce hereafter the disparity in salaries and

promotions. They propose that promotion objectives be

established for the next three years by specifying a

target percentage of women at upper grade levels (or, in

the alternative, that future promotion rates for women

be set at the same multiple as that of men for the same

period). To encourage the agency to meet these goals,

plaintiffs propose a rather novel “front pay” approach,

in which regression analysis would be applied to the

future so as to compensate for any shortfalls in defend-

ants’ meeting their promotion goals.

Although relief in the form of goals or quotas has

been approved by many appellate courts (see Regents of

the University of California v. Bakke, 488 U.S. 265

(1978) ), courts have generally agreed that such relief is

“appropriate only under limited and compelling circum-

stances.” Sledge v. J. P. Stevens, supra, 585 F.2d at 646;

United States v. Chicago, 549 F.2d 415, 437 (7th Cir.

1977) ; Kirkland v. New York State Department of Cor-

rectional Services, 520 F.2d 420, 427 (2d Cir. 1975).

Courts have been particularly reluctant to order promo-

tion quotas, primarily because of the possibility of in-

juring blameless majority-group members through re-

lla

verse discrimination. See Schlei & Grossman, Employ-

ment Discrimination Law 1211 (1976), 332-33 (1979

Supp.) ; see also Kirkland v. New York State Department

of Correctional Services, supra, 520 F.2d at 427 (dis-

cussing the hazards of reverse discrimination). Where

effective relief can otherwise be afforded, the preference

is to avoid the imposition of quotas. Sledge v. J. P. Stev-

ens, supra, 585 F.2d at 646.

The Court finds no compelling need here for the im-

position of a goal or a quota for future promotions.

Class members will be compensated for the injuries suf-

fered from past discrimination through the backpay

procedures outlined above, and the Court is able satisfac-

torily to ensure that defendants maintain a non-discrimi-

natory course in the future by less drastic means than a

system of promotion quotas. For a period of the next

three years, NARDAC will be required to maintain its

promotion files, and to report to the Court on a semi-

annual basis upon the results of its promotion actions.

See Teamsters v. United States, supra, 431 U.S. at 361.

During that period, the Court will maintain jurisdiction

over the action in order to monitor defendants’ perform-

ance and ensure equal opportunity in the future. See

Watkins v. Washington, 472 F.2d 1373, 1877 (D.C. Cir.

1972).

Remaining is the relief to be awarded to the two in-

dividuals who prevailed in their private claims at trial,

Marie Bach and Clara Perlingiero. On the basis of the

evidence and the findings of the Court and after consid-

eration of the parties’ memoranda, the following relief

will be ordered for Marie Bach: (a) retroactive promo-

tion to a GS-14 as of March 13, 1976, and to a GS-15 as

of May 8, 1978;** (b) restoration to the duties, respon-

12 Defendants claim that Ms. Bach merits no higher than a GS-13

which is the grade from which she was demoted in 1979. This,

however, ignores: the Court’s findings that Ms. Bach was twice re-

12a

sibilities and functions of a GS-15 security manager;

GS-13 salary she earned and the GS-14 salary she would

have earned during the period between March 13, 1976

and May 7, 1978, and (ii) the difference between the

GS-13 salary she earned and the GS-15 salary she would

have earned from May 9, 1978 until such date as she

receives her promotion to GS-15; (d) restoration of her

performance evaluations from 1975-1976 to that of “out-

standing”; and ‘e) reasonable costs and attorney’s fees.

The relief to Clara Perlingiero shall be as follows:

(a) retroactive promotion to a GS-13 as of September 1,

1971 through November 26, 1972, and to a GS-14 as of

September 1, 1979;** (b) backpay, consisting of the

larger of (i) the amount she would receive as a member

of the class under the class backpay procedure, supra, or

(ii) the difference between the GS-12 salary she earned

and the GS-13 salary she would have earned from Sep-

tember 1, 1971 until November 26, 1972, plus the differ-

ence between the GS-13 salary she earned and the GS-14

salary she would have earned from September 1, 1979

until such date as she receives her promotion to GS-14;

moved from positions of responsibility for which she was qualified,

and that defendants failed to classify her position at a grade com-

parable to that of other security specialists in the Navy with simi-

lar functions. Opinion of April 16, 1981, pp. 24-25.

13 Plaintiffs request that Ms. Perlingiero be promoted to GS-15

as of September 1, 1971, because on that date a reorganization took

place causing a white male to be placed in a supervisory role over

her at a GS-15 level. There is no basis in the record from which to

infer that, had there been no discrimination, Ms. Perlingiero would

have been promoted three grades (from a GS-12 to a GS-15), how-

ever. On the other hand, defendants’ contention that Ms. Perlin-

giero should be given no promotion from her present grade of a

GS-18 fails to take into account the Court’s findings that when she

was made project leader in September of 1979, she was not given the

GS-14 rank that her male predecessor had possessed. See Opinion

of April 16, 1981, pp. 26-28.

13a

of telecommunications and in areas that will enable her

to meet the new standards in the GS-334 series; (d) up-

grading of her performance evaluations from January 1,

1972 to the present so as to place her within the upper

third of her grade class; and (e) reasonable costs and

attorney’s fees.

For the reasons stated above, it is this 19th day of

October, 1981,

ORDERED That plaintiffs’ counsel shall prepare a

notice and claim form as outlined in the above Memo-

randum, and that he shall send such form forthwith to

all class members who can be located; and it is further

ORDERED That any member of the class wishing to

be considered for backpay eligibility submit to the Court

a completed notice and claim form no later than thirty

days frorn the date of this Order; and it is further

ORDERED That defendant NARDAC shall maintain

its promotion files through October 1, 1984, and shall

report to the Court twice each year during this period

(on April 1 and October 1) on the results of its promo-

tion actions; and it is further

ORDERED That defendants shall afford relief to

plaintiffs Marie Bach and Clara Perlingiero as outlined

in Part IV of the above Memorandum.

/s/ Harold H. Greene

HAROLD H. GREENE

United States District Judge

l4a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 73-0055

YVONNE G. TROUT, et al.,

Plaintiffs,

Vv.

JOHN F. LEHMAN, JR., et al.,

Defendants.

Civil Action No. 76-1206

MARIE LOUISE BACH, et al.,

Plaintiffs,

JOHN F. LEHMAN, JR., et al.,

Defendants.

Civil Action No. 78-1098

YVONNE G. TROUT,

Plaintiff,

Vv.

JOHN F. LEHMAN, JR., et al.,

Defendants.

[Filed Mar. 10, 1982]

15a

MEMORANDUM ORDER

Trial on these cases was held from June 16, 1980 to

June 27, 1980. During that ten-day trial, the Court

heard numerous witnesses, including sevéral experts who

provided thorough and detailed evidence on the statistical

aspects of the class action. On April 16, 1981, the Court

issued a twenty-page opinion which, in exhaustive detail,

discussed the issues and the evidence, with particular

emphasis on the question of defendants’ liability with re-

spect to the class. See Trout v. Hidalgo, 517 F. Supp.

873 (D.D.C. 1981). Thereafter, the Court directed the

parties to submit memoranda on the relief issues flowing

from the previous findings of liability, and on October 20,

1981, a Memorandum Order was issued setting forth the

kind of relief to which the prevailing plaintiffs would be

entitled and the procedures by which that relief is to be

determined.

On October 30, 1981, the government moved for recon-

sideration of the April 16 decision, and it is that motion

which is presently before the Court.' The basic thrust of

the motion is that, in the course of preparing for the

relief proceedings, defendants collected evidence which

requires that the Court vacate its finding of liability and

enter judgment instead in favor of defendants. This mo-

tion will be denied, for a number of different reasons.

First. These cases have been in this Court for many

years, one of them dating back to January 1973. During

that period, the government had ample opportunity to

collect evidence and otherwise to prepare its case. Indeed,

as the trial record shows, the government was fully pre-

pared, and it was permitted to adduce evidence without

1 The government also noted an appeal. On February 8, 1982, at

the government’s request, the time for filing its appellate brief was

stayed by the Court of Appeals pending decision by this Court of

the motion for reconsideration.

l6a

restriction from the Court. It is not at all clear why

the Court should reopen the trial twenty months after its

completion to hear evidence that clearly should and could

have been presented while the trial was proceeding.”

The government’s request is more akin to a demand for

a new trial than for reconsideration (see, e.g., Safeway

Stores, Inc. v. Coe, 186 F.2d 771 (D.C. Cir. 1943)), but

in any event it has failed to satisfy the diligence require-

ments for relief from the judgment. See Johnson Waste

Materials v. Marshall, 611 F.2d 598, 597 (5th Cir.

1980); Good Luck Nursing Home, Inc. Vv. Harris, 636

F.2d 572, 577 (D.C. Cir. 1980); Carr v. District of Co-

lumbia, 543 F.2d 917, 925-27 (D.C. Cir. 1976); Tobacco

Road v. City of Novi, 490 F. Supp. 537, 549 (E.D. Mich.

1980) ; Bell Telephone Laboratories, Inc. v. Hughes Air-

craft Co., 422 F. Supp. 372 (D. Del. 1976); 6A Moore’s

Federal Practice 7 59.08[3] (1979); 7 Moore’s Federal

Practice { 60.23[4] (1979).*

Second. The evidence now being proffered is largely

cumulative and would be unlikely to produce a different

result. That evidence once again reflects defendants’

position that women were not disadvantaged in their ini-

tial placement in the agency; that pre-Title VII activities

may not be considered in Title VII actions for any pur-

2 The evidence now proffered clearly is not of the type that by

means of due diligence would not have been available at the time

of trial. Defendants’ repeated insistence that they collected this

evidence as part of their involvement with the relief issues does not

address the question as to why this evidence, if it bears on liability,

was not produced when the liability phase of these actions was tried.

3 Under Rule 59, Fed. R. Civ. P., a party has only ten days from

the entry of a judgment to move for a new trial. Clearly, de-

fendants did not satisfy this ten-day time limitation. Moreover, to

take advantage of the more liberal time standard under Rule

60(b) (2), Fed. R. Civ. P., defendants must make a somewhat

stronger showing than under Rule 59 that the evidence could not

have been discovered by due diligence. 7 Moore’s Federal Practice

J 60.23[4] at 273.

17a

pose or under any theory; that the “snapshot” method of

statistical analysis and defendants’ own regression anal-

ysis better reflect the actual situation than the regression

analysis employed by plaintiffs’ expert; and that no dis-

crimination was proved with respect to the two individual

plaintiffs who prevailed. All of these contentions were

fully considered by the Court when it rendered its April

16, 1981 decision; the government is not entitled to a re-

opening of the trial for the receipt of additional evidence

on these much-litigated issues.‘

Third. While conceding that it “is in everyone’s inter-

est to resolve this matter as expeditiously as possible”

(Defendants’ Memorandum of Points and Authorities,

p. 21), defendants would nevertheless have the Court re-

try the liability issues which were laid to rest twenty

months ago. They reason that a finding of no discrimi-

nation would eliminate any requirement for relief pro-

ceedings; after reopening the trial, the Court “will then

be able to move this matter towards ultimate resolution

by correction of the errors” and that “there is much that

remains to be resolved’ (Defendants Memorandum, p.

21). These arguments are wholly unpersuasive. To be

sure, if the Court dismissed these actions, there would be

no need for relief proceedings; but there is simply no

warrant in the evidence for such a course. It is equally

true that much remains to be done—i.e., consideration of

the details of the reiief. Resolution of that subject mat-

ter is hardly advancéd, however, by yet another trial on

liability.

Fourth. Defendants also raise an issue as to the bur-

den of proof to be imposed at the individual relief hear-

ings. In its October 20, 1981 Memorandum Order the

Court held that each individual class member would have

4 Moreover, the Court’s decision on the class action did not rest

solely on statistics; there was also substantial testimony by individ-

uals who were discriminated against to support that decision. See

Trout v. Hidalgo, supra, 517 F. Supp. 873.

18a

the burden of coming forward, giving the history of his

employment with the agency, and listing the assignments

or opportunities that were denied as a consequence of

discrimination. Once this was done, the burden would

then shift to the agency to demonstrate by clear and con-

vincing evidence that its employment decisions with re-

gard to such individual were based on legitimate factors

unrelated to the policy of discrimination. Citing Texas

Department of Community Affairs v. Burdine, 450 U.S.

248 (1981), defendants argue that the Court has placed

too onerous a burden on them.

The Supreme Court in Burdine reiterated what had

always been the law in this Circuit: that the plaintiff

retains the burden of persuasion. Bundy v. Jackson, 641

F.2d 934, 951 (D.C. Cir. 1981). Burdine holds that once

plaintiff has established a prima facie case, the burden

shifts to the defendant to produce “evidence that the

plaintiff was rejected, or someone else was preferred, for

a legitimate, nondiscriminatory reason.”* 450 U.S. at

254. Accord Aikens v. U’nited States Postal Service, 665

F.2d 1057 (D.C. Cir. 1981); Bundy v. Jackson, supra,

641 F.2d 934; and Day v. Mathews, 530 F.2d 1083 (D.C.

Cir. 1976).

The Supreme Court’s clarification of the burden. of

proof at the liability stage has nothing to do with the

burden appropriately to be imposed at the relief stage of

a case in which classwide discrimination has been found.

Once a court has determined that an employer has dis-

criminated against class members, the individual dis-

criminatee should not be forced to prove discrimination

in his or her individual case all over again. See Nanty

v. Barrows Co., 660 F.2d 1327, 1333 (9th Cir. 1981);

League of United Latin American Citizens v. City of

Salinas Fire Department, 654 F.2d 557, 559 (9th Cir.

5 If defendant satisfies this burden, plaintiff is of course given the

opportunity to prove the defendant’s reasons were mere pretexts.

19a

1981); Taylor v. Teletype Corp., 648 F.2d 1129, 1137,

n.18 (8th Cir. 1981). To impose such a requirement

would emasculate the finding of classwide liability. In-

ternational Brotherhood of Teamsters v. United States,

431 U.S. 324, 361-62 (1977). As the Court of Appeals

for this Circuit has stated, “where a Title VII defendant

is proved a discriminator as a matter independent of the

plaintiff’s claim of discriminatory denial of a tangible job

benefit, the court should ease the plaintiff’s burden on

that latter claim.” Bundy v. Jackson, supra, 641 F.2d

at 952. When the individual discriminatee comes for-

ward with evidence of job opportunities that were denied

to him or her, it is appropriate to require the defendants

to prove by clear and convincing evidence that there were

nondiscriminatory reasons for the defendants’ employ-

ment decision. Bundy v. Jackson, supra, 641 F.2d at

953; Nanty v. Barrows, supra, 660 F.2d at 1333.

Fifth. Defendants finally® complain that they were

not given an adequate opportunity for evidentiary hear-

ings on the question of relief. Defendants of course had

such an opportunity during the trial and, as the Court

observed in its April 16 opinion, it thereafter merely af-

forded the parties an opportunity for the submission of

further memoranda on this issue. Plaintiff attached to

its memorandum a report of its expert which explained

the relief aspects of the theory that this individual had

advanced when he testified as an expert witness at the

trial. In any event, defendants will have a full oppor-

tunity to submit evidence on the issue of the form of

regression which will most fairly reflect the injury suf-

® Defendants also point out, correctly, that in its restatement on

October 20, 1981, of the liability found in the April 16, 1981 Opin-

ion, the Court erred. As the remainder of the October 20 Memo-

randum makes clear, liability was found only with respect to initial

grade placements and promotions. The reference to performance

} evaluations, job assignments, and award procedures in the Memo-

randum will be stricken.

20a

fered by the class as a consequence of defendants’ actions

(see October 20 memorandum, pp. 9-10).

Defendants’ motion for reconsideration is untimely

(see note 3 supra) and it fails to provide any basis ei-

ther for reconsideration of the Court’s previous rulings

or for a new trial.’

In the decision of April 16, 1981, in which the Court

found defendants liable with respect to the class, it also

ruled that two of the individual plaintiffs were entitled

to relief and that the claims of the remaining three plain-

tiffs lacked merit and would be dismissed. One of the

plaintiffs against whom judgment was entered--Yvonne

G. Trout—thereupon took the appeal. The Court of Ap-

peals issued an order on January 2, 1982, which pro-

vided, inter alia, that Ms. Trout’s appeal in No. 81-1531

would be held in abeyance pending her application to this

Court for a certification under Federal Rule of Civil

Procedure 54(b) and the Court’s ruling thereon. On

February 1, 1982, Ms. Trout filed the appropriate peti-

tion with this Court.

Rule 54(b) provides in pertinent part that when more

than one claim is presented, the court may direct the

entry of final judgment as to one or more but fewer than

all of the claims or parties upon its express determina-

tion that there is no just reason for delay and an express

direction for the entry of judgment. The Trout claim,

while in one sense intertwined with the claims of the

class and those of the other individual plaintiffs, in an-

other, is sufficiently separate that the entry of a final,

appeaiable judgment would be warranted. Moreover, as

7 The defendants appear to concede that their motion is addressed

to the Court’s discretion. See Memorandum of Points and Authori-

ties, pp. 5-9. See also Wilson v. Thompson, 638 F.2d #01, 808 (5th

Cir. 1981) ; Audiovisual Publishers, Inc. v. Cenco, Inc., 580 F.2d 50,

52 (2d Cir. 1978) ; 64 Moore's Federal Practice " 59.08[8)} at 59-114

(1979) ; 7 Moore’s Federal Practice ‘| 60.28(4) at 278 (1979).

2la

the discussion in Part I supra indicates, the ultimate dis-

position of the class action is likely to be substantially

delayed on account of the government’s decision to appeal

the findings of this Court in advance of the relief stage.

There is thus no just cause for delay with respect to the

Trout action. It should also be noted that the government

has no objection to the granting of the Trout petition.

III

For the reasons stated, it is this 8th day of March,

1982,

ORDERED That defendants’ motion for reconsidera-

tion be and it is hereby denied, and it is further

ORDERED That the petition of Ms. Trout for certifi-

cation under Rule 54(b) will be granted.

/s/ Harold H. Greene

HAROLD H. GREENE

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.