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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1056

## Text

~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 __......

11

13

16

17
19

la

ii

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

2

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.

3

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.

4

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).

5

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).

6

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

7

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).

8

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).

9

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).

10

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).

11

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. .

12

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-

13

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

14

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.

15

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.

\

16

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.

17

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).

18

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).

19

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

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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.

2a

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.

I

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.

3a

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.

4a

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

#

5a

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.

6a

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.

II

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.

i

Ta

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.

8a

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

9a

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).

IV

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;
(c) backpay, consisting of (i) the difference between the
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;
(c) substantial career development training in the area

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.

Vv

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,

V.

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
I

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.’
II

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0864%3A2. Public record. Not legal advice.